Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 27042/95

by Brian George Edward DAVIS

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 17 January 1997, the following members being present:

Mrs. J. LIDDY, President

MM. M.P. PELLONPÄÄ

E. BUSUTTIL

A. WEITZEL

L. LOUCAIDES

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

M. VILA AMIGÓ

Mrs. M. HION

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 7 October 1994 by

Brian George Edward DAVIS against the United Kingdom and registered on

18 April 1995 under file No. 27042/95;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1934. He is detained

in Her Majesty's Prison, Long Lartin and is represented before the

Commission by Mr S. Creighton, a solicitor practising in London.

A. The particular circumstances of the case

The applicant is serving a sentence of life imprisonment imposed

in April 1982. He previously served a sentence of imprisonment from

1962 to 1976. The applicant has undertaken prison work during both

sentences, and has received prison wages, as provided for by Rule 28

of the Prison Rules 1964. Throughout the applicant's detention, until

February 1990, a sum was deducted from the applicant's gross weekly

prison earnings and paid into the "General Fund", which was used to

provide entertainment and other facilities for prisoners. The sum

deducted was between 3 and 7 pence per week and appears on the

applicant's weekly pay slip in the "debits" column. The total sum

deducted from his earnings over the whole period was £67.62. After

February 1990 the policy of deductions from wages to be paid into the

General Fund ceased.

The applicant claims that the deduction of sums paid into the

General Fund was unlawful. On 25 July 1990 the applicant petitioned

the Secretary of State to authorise the return of the deducted money.

On 14 September 1990 the applicant was informed that the Secretary of

State had declined to authorise the reimbursement, on the grounds that

the fund had been "used to provide facilities for all prisoners in the

establishment".

On the 11 December 1990 the applicant applied to the High Court

for leave to seek judicial review of the decision to deduct the money

and of the refusal to return it. On 28 January 1991 this application

was refused without a hearing.

The applicant renewed his application for leave to apply for

judicial review at an oral hearing on 25 April 1991. Leave was again

refused and the applicant's legal aid withdrawn. The applicant renewed

his application for leave to apply for judicial review to the Court of

Appeal. The applicant appeared in person on 27 November 1991, when the

Court of Appeal granted him leave.

The substantive application for judicial review and for damages

and/or restitution of the money deducted from the applicant's wages,

was heard on 17 February 1993 and was dismissed by the High Court. On

this occasion the applicant was represented by counsel. The court held,

inter alia, that under Rule 28(6) of the Prison Rules, the Secretary

of State was empowered to use his discretion to divert a part of

prisoners wages to a fund to be used for the benefit of all prisoners.

The applicant's legal aid was again withdrawn. He appealed to

the Court of Appeal against the substantive decision of the High Court.

On 25 April 1994 the applicant represented himself at a contested oral

hearing at which his appeal was dismissed. The Court of Appeal re-

stated that it was within the Home Secretary's discretion under

Rule 28(6) of the Prison Rules to make deductions from a prisoner's

wages. The Court of Appeal further held that the applicant had no

proprietary right to his gross earnings, rather his proprietary right

was restricted to the net sum he received after deductions. The

applicant applied for leave to appeal to the House of Lords, this was

refused on 7 June 1994.

B. The relevant domestic law

The prison regime in England and Wales is governed by the Prison

Act 1952 ("the 1952 Act") and the Prison Rules 1964 (as amended). The

powers of the executive to detain prisoners, and to regulate the

conditions of their detention derive from the authority of the 1952

Act. Section 47 of the 1952 Act enables the Secretary of State for the

Home Department to make rules by statutory instrument. The Prison

Rules 1964 were introduced pursuant to that section.

Prison Rule 28 governs work and pay. So far as relevant, it

provides:

"28. (1) A convicted prisoner shall be required to do useful

work for not more than ten hours a day, and arrangements

shall be made to allow prisoners to work, where possible,

outside the cells and in association with one another.

...

(6) Prisoners may be paid for their work at rates approved

by the Secretary of State, either generally or in relation

to particular cases."

As a matter of domestic law a prisoner is not recognised as being

in an employer/employee relationship with either a prison governor or

with the Home Office. Accordingly there is no contractual right to

payment of wages.

COMPLAINTS

The applicant alleges a violation of Article 1 Protocol No. 1 of

the Convention. He alleges that his gross prison wages constituted

possessions for the purposes of Article 1 Protocol No. 1 of the

Convention. He complains that the deductions made were not permitted

under the Prison Rules and thus amounted to an unlawful deprivation of

his property in breach of Article 1 Protocol No. 1 of the Convention.

THE LAW

The applicant complains that the compulsory deduction of part of

his gross prison wages amounted to a deprivation of his possessions in

violation of Article 1 of Protocol No. 1 (P1-1) of the Convention.

Article 1 of Protocol No. 1 (P1-1) of the Convention provides as

follows:

"Every natural or legal person is entitled to the peaceful

enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the

conditions provided for by law and by the general principles of

international law.

The preceding provision shall not, however, in any way impair the

right of a State to enforce such laws as it deems necessary to

control the use of property, in accordance with the general

interest or to secure the payment of taxes or other contributions

or penalties."

The Commission recalls that with regard to the concept of

"possessions" under Article 1 Protocol No. 1 (P1-1) of the Convention,

it is initially incumbent on an applicant to establish the precise

nature of the right in domestic law to the alleged "possessions". In

the present case the Court of Appeal held that the applicant did not

have a proprietary right in the wages deducted from his gross pay and

that his proprietary right was merely to the net wages that entered his

account. Nevertheless, the concept of "possessions" is autonomous and

the fact that the domestic law does not acknowledge a particular legal

right, does not conclusively determine that the interest is not a

possession for the purposes of Article 1 Protocol No. 1 (P1-1) of the

Convention (see Eur. Court HR, Tre Traktorer Aktiebolag v. Sweden

judgment of 7 July 1989, Series A no. 159 at para. 53).

The Commission is not, however, required to resolve the issue of

whether the applicant's gross wages amounted to a "possession", as the

application is, in any event, inadmissible for the following reasons.

The domestic courts held that the Secretary of State had a

statutory basis under Prison Rule 28 (6), which enabled him to

authorise compulsory deductions from prisoners' wages. The Commission

notes that these deductions were made in order to supply a fund which

was used to provide entertainment facilities to benefit all prisoners.

The practice of deducting a few pence from each prisoners wage was long

established and applied to all prisoners' wages.

In these circumstances the Commission considers that any

interference with and/or deprivation of property, was in the public

interest, and was subject to the conditions provided for by law.

In these circumstances the Commission concludes that the present

case does not disclose any appearance of a violation of Article 1

Protocol No. 1 (P1-1) of the Convention.

It follows that this application is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

M.F. BUQUICCHIO J. LIDDY

Secretary President

to the First Chamber of the First Chamber

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DAVIS v. THE UNITED KINGDOM

DAVIS v. THE UNITED KINGDOM

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