Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21451/93

by Harold GERRARD

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 18 October 1995, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

G.B. REFFI

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

K. HERNDL

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 15 April 1992 by

Harold GERRARD against the United Kingdom and registered on

1 March 1993 under file No. 21451/93;

Having regard to:

- the reports provided for in Rule 47 of the Rules of Procedure of

the Commission;

- the observations submitted by the respondent Government on

5 November 1993 and the observations in reply submitted by the

applicant on 22 November 1993, 9 September 1994, 11 November 1994

and 25 April 1995;

Having deliberated;

Decides as follows:

THE FACTS

a. Particular circumstances of the case

The applicant is a British citizen born in 1936 and currently

serving a sentence of imprisonment in HM Prison Blundeston. He is

represented before the Commission by Ms. Nuala Mole of the AIRE Centre,

London.

The facts as submitted by the parties may be summarised as

follows.

The applicant was convicted of murder and sentenced to life

imprisonment in 1986.

Since the applicant arrived at HM Prison Blundeston in or about

1987, he states that his correspondence from his solicitor has been

persistently opened without him being present. He lists six particular

letters - 21 February 1992, 29 February 1992, 10 March 1992,

6 May 1992, 9 May 1992 and 1 December 1992. He states that a letter

dated 11 February 1993 was opened in his presence but that the prison

officer proceeded to read it.

By response dated 25 February 1992 to the applicant's complaint

about opening of letters, the Governor acknowledged that a solicitor's

letter, which was marked in accordance with prison procedure (see

Relevant domestic law and practice below), had been opened in the

applicant's absence contrary to the rules but that the officer

concerned had personally acknowledged his oversight.

The applicant complained further about the opening of the first

three letters above in a complaint form dated 10 March 1992. He stated

that it had been alleged that all three had been opened in error but

that he considered that opening was happening too often for it to be

an accident. He was informed in reply by the Area Manager that the

appropriate handling procedures were in operation.

The applicant also complained about the letter of 6 May 1992.

In a reply dated 15 May 1992 the Area Manager stated that since it did

not appear that the applicant was party to or defendant in civil or

criminal proceedings his correspondence from his solicitor was subject

to the normal opening procedures. His appeal against this received the

response dated 1 June 1992 that the implications of the Campbell

judgment were still under consideration by the Government but that

further steps had been taken to prevent errors in the handling of mail

to which Standing Order 5B 32(3) applied. The applicant's complaint

concerning the opening of the letter dated 1 December 1992 met the

reply that the relevant standing order was applied.

The applicant states that letters dated 12 May 1992 and

14 January 1993 from the Commission were given to him pre-opened. The

applicant complained about the latter to the Prison Governor and was

informed by reply dated 20 January 1993 that correspondence from the

Commission could still be opened in a prisoner's absence under the

applicable standing order.

The applicant wished to challenge the prison authorities'

interference with his correspondence as being in breach of the prison

rules and the European Convention of Human Rights. Legal aid for the

application to the courts was refused by the Legal Aid Area Office on

8 December 1992 on the ground that he had not shown that he had

reasonable grounds for taking the proceedings and that it was

considered that he had no reasonable prospects of success in the

proceedings. The applicant's appeal to the Area Committee was rejected

on 19 February 1993 on the same grounds.

On 1 January 1994, the Prison Rules with regard to the opening

of correspondence with solicitors and the Commission were amended (see

below).

Since that date, the applicant states that four letters to him

from his solicitors dated 11 February, 2 March, 5 March and

30 March 1994 have been opened by the prison authorities despite the

letters being clearly marked.

In respect of the four letters mentioned above, the Government

state that the envelope of the first of the above letters was opened

by the prison officer in error when it was face down and when it was

turned and the Rule 37 marking noted, the contents were not taken out

and an apology made orally to the applicant. The envelope for the

letter of 30 March 1994 was also opened in error but the contents not

removed and an apology made to the applicant. No formal complaint was

received by the prison authorities in respect of any of these

incidents.

b. Relevant domestic law and practice

Position prior to 1 January 1994

Section 47(1) of the Prison Act 1952 reads as follows:

"The Secretary of State may make rules for the regulation and

management of prisons ... and for the classification, treatment,

employment, discipline and control of persons required to be detained

therein."

Rules 33(2) and (3) of the Prison (Amendment) Rules 1989 read as

follows:

(2) "Except as provided by statute or these Rules,a prisoner

shall not be permitted to communicate with any outside person, or that

person with him, without the leave of the Secretary of State.

(3) Except as provided by these Rules, every letter or

communication to or from a prisoner may be read or examined by the

governor or an officer deputed by him, and the governor may, at his

discretion, stop any letter or communication on the ground that its

contents are objectionable or that it is of inordinate length."

Correspondence to a prisoner from his solicitor and from the

Commission could therefore be opened by the prison authorities.

An exception was made in respect of correspondence with a

solicitor regarding pending legal proceedings:

Rule 37A provided:

"A prisoner who is a party to any legal proceedings may

correspond with his legal adviser in connection with the proceedings

and unless the governor has reason to suppose that any such

correspondence contains matter not relating to the proceedings it shall

not be read or stopped under Rule 33(3) of these Rules."

This rule was supplemented by Standing Order 5B which provided

that incoming correspondence from legal advisers which was marked "SO5B

32(3)" was not to be read or stopped and was only to be opened for

examination in the presence of the inmate unless the governor has

reason to suppose that the letter was not in fact within the privilege

conferred by Prison Rule 37A.

Position from 1 January 1994

An amendment was made to the Prison Rules which came into force

on 1 January 1994: Prison (Amendment) (No. 2) Rules 1993.

"For rule 37A there shall be substituted the following-

Correspondence with legal advisers and courts

37A.-(1) A prisoner may correspond with his legal adviser and any

court and such correspondence may only be opened, read or stopped

by the governor in accordance with the provisions of this rule.

(2) Correspondence to which this rule applies may be opened if

the governor has reasonable grounds to suspect that it contains

an illicit enclosure...

(3) Correspondence to which this rule applies may be opened, read

and stopped if the governor has reasonable cause to believe its

contents endanger prison security or the safety of others or are

otherwise of a criminal nature.

(4) A prisoner shall be given the opportunity to be present when

any correspondence to which this rule applies is opened and shall

be informed if it or any enclosure is to be read or stopped...

(6) In this rule, "court" includes the European Commission of

Human Rights, the European Court of Human Rights and the European

Court of Justice..."

COMPLAINTS

The applicant complains of the persistent opening of his

correspondence from his solicitor and from the Commission. He also

alleges that a number of letters have failed to reach their

destination. He invokes Articles 8 and 25 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 15 April 1992 and registered

on 1 March 1993.

On 30 June 1993, the Commission decided to communicate the

application to the Government and to ask for written observations on

the admissibility and merits of the complaints under Article 8 of the

Convention.

The Government's observations were submitted on 5 November 1993

after one extension in the time-limit and the applicant's observations

in reply were submitted on 22 November 1993.

On 8 December 1993, the Commission decided to grant legal aid to

the applicant.

On 11 March 1994, the AIRE Centre, London wrote to the Commission

enclosing a letter of authority from the applicant and requesting an

extension in the time-limit for submitting further observations in

reply to the Government. After two further extensions of time, the

applicant's representatives submitted observations on 9 September 1994.

Further information was submitted on behalf of the applicant on

11 November 1994.

On 11 January 1995, the Commission requested the Government to

submit further written observations on the admissibility and merits of

the applicant's complaints.

The Government's further observations were submitted on 10 March

1995 and the applicant's further reply was sent on 25 April 1995.

THE LAW

The applicant complains of the opening of his correspondence from

his solicitor and the Commission prior to February 1993. He invokes

Article 8 and 25 (Art. 8, 25) of the Convention.

i. Article 8 (Art. 8) of the Convention

Article 8 (Art. 8) of the Convention provides as relevant:

"1. Everyone has the right to respect for ... his

correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

The respondent Government acknowledge that one letter from the

applicant's solicitor was opened in breach of prison rules and accepts

that other letters from the applicant's solicitor or the Commission may

also have been opened pursuant to the rules in force. They point out

that the rules have now changed and it is now established that letters

from solicitors and the Commission should only be opened in the

presence of a prisoner in specified circumstances. They submit that an

apology having been made in respect of one incident, the matter should

be regarded as resolved. Insofar as it is alleged that letters have

been opened since the change in the applicable rules, the Government

state that this happened by mistake in respect of two letters, the

contents of which were not read and for which an apology was made and

that the applicant did not make formal complaint in regard to any of

the four alleged instances of opening.

The applicant submits that his correspondence has and continues

to be subject to a persistent practice of opening and an apology cannot

be considered in these circumstances as resolving the matter. It is

emphasised that as a mandatory life prisoner the applicant is in a

vulnerable position and that the civil rights which he still retains

have assumed an enlarged significance for him. The applicant has

accordingly suffered significant distress from the opening of his

privileged correspondence. It is submitted that the continuing

incidents suggest that the Government do not take seriously their

obligation to protect a prisoner's privileged correspondence.

The Commission considers that the applicant's complaints raise

serious issues of fact and law under the Convention the determination

of which should depend on an examination of the merits. It follows that

the complaints cannot be dismissed as manifestly ill-founded within the

meaning of Article 27 para. 2 (Art. 27-2) of the Convention. No other

ground for declaring them inadmissible has been established.

ii. Article 25 (Art. 25) of the Convention

The applicant has also complained that he has been hindered in

the effective exercise of his right of individual petition contrary to

Article 25 para. 1 (Art. 25-1) in fine which provides:

"The Commission may receive petitions addressed to the Secretary

General of the Council of Europe from any person, non-

governmental organisation or group of individuals claiming to be

the victim of a violation by one of the High Contracting Parties

of the rights set forth in this Convention, provided that the

High Contracting Party against which the complaint has been

lodged has declared that it recognises the competence of the

Commission to receive such petitions. Those of the High

Contracting Parties who have such a declaration undertake not to

hinder in any way the effective exercise of this right.

The Commission notes that the applicant has complained of the

opening of his letters from the Commission : he has not complained that

his correspondence with the Commission had been delayed or tampered

with in any way. The Commission finds no evidence in the present case

that the applicant suffered any prejudice in regard to the presentation

of his application before the Commission or that he was in any way

frustrated in the exercise of his right of individual petition contrary

to Article 25 para. 1 (Art. 25-1) in fine.

For these reasons the Commission, unanimously,

DECLARES ADMISSIBLE the applicant's complaints concerning

interference with his correspondence from his solicitor and the

Commission, without prejudging the merits;

DECIDES TO TAKE NO FURTHER ACTION in respect of the alleged

interference with the effective exercise of the right of

individual petition.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)

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GERRARD v. THE UNITED KINGDOM

GERRARD v. THE UNITED KINGDOM

LEXI