Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 12395/86

by Peter CHESTER

against the United Kingdom

The European Commission of Human Rights sitting in private on

10 July 1989, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

S. TRECHSEL

F. ERMACORA

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

J. CAMPINOS

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

Mr. L. LOUCAIDES

Mr. H.C. KRÜGER, Secretary to the Commission

Having regard to Article 25 of the Convention for the

Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 10 March 1986

by Peter CHESTER against the United Kingdom and registered on

19 September 1986 under file No. 12395/86;

Having regard to:

- the reports provided for in Rule 40 of the Rules of

Procedure of the Commission;

- the Commission's decision of 3 May 1988 to bring the

application to the notice of the respondent Government

and invite them to submit written observations on its

admissibility and merits;

- the observations submitted by the respondent Government

on 18 July 1988 and the observations in reply submitted

by the applicant on 20 February 1989;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom, born in 1954

and detained in H.M. Prison Wakefield, where he is serving a sentence

of life imprisonment.

This is the applicant's second application to the Commission.

His first, No. 9488/81, concerning the censorship of prisoners'

correspondence, was the subject of a decision by the Committee of

Ministers that the applicant had suffered a violation of Article 8 of

the Convention (Resolution DH (86) 6).

The facts of the present case as submitted by the parties may

be summarised as follows:

1. On 6 March 1986, whilst the applicant was detained at H.M.

Prison Parkhurst he was involved in certain disturbances and placed in

the punishment block of the prison. He complained to the prison

Governor and allegedly wrote a letter about the incident to a

gentleman at the Home Office, but that letter was never received by

the addressee. However, there is no prison record of this letter's

existence.

2. The applicant was allowed to write the following week to his

Member of Parliament, Lord Avebury, but a letter dated 9 March 1986 to

Mr. D. Speakman was stopped, because it contained complaints which had

not been put to the prison Governor or Home Office. He was given an

opportunity to rewrite the letter (presumably omitting the offending

passages).

The Government stated before the Commission that, for the

protection of prison staff, prisoners were generally required to air

any complaints about prison treatment or staff misconduct through

internal channels before or at the same time as they complained

externally. (The simultaneous ventilation restriction did not apply

to correspondence with solicitors at the material time and has since

been abolished altogether.) The prescribed procedures were set out in

Standing Order 5B, which is published and available to inmates.

Standing Order 5B 34(j) prohibited correspondence containing certain

types of complaint:

"Complaints about prison treatment which the inmate has not

yet raised through the prescribed procedures unless the

complaints are about a matter already decided at region

headquarters or the complaints are about a matter which

does not require investigation or on which no corrective

or remedial action is possible, such as complaints of a

general nature about conditions, e.g. about overcrowding

or poor facilities, which are basically descriptive of

the conditions the inmate is experiencing and his feelings

about them. As soon as a complaint about prison treatment

has been made through the prescribed procedures it may be

mentioned in correspondence. The prescribed procedures are:

i. with respect to an adjudication, by petition to the

Secretary of State;

ii. with respect to an allegation of misconduct or

impropriety by a member of staff, in writing to the

Governor, or by petition to the Secretary of State;

iii. in relation to any other matter, by petition to the

Secretary of State or by application to the Board of

Visitors or by application to a visiting officer of the

Secretary of State.

Statements about prison treatment are not treated as

complaints when they are matters of fact e.g. that an inmate

has suffered injury, or that he has been punished for an

offence against prison discipline, or that he is in the

process of making a complaint through the proper channels."

Records at Parkhurst Prison show that this letter to Mr.

Speakman was stopped because it contained allegations of incompetence

on the part of senior management at that prison. His letter to Mr.

Speakman was posted two days later on 11 March 1986 as soon as the

applicant petitioned the Secretary of State in accordance with

Standing Order 5B 34j(ii). The applicant claimed that his letter

contained factual statements and not allegations of staff misconduct.

3. The applicant was then transferred to H.M. Prison Frankland in

April 1986. There restrictions were placed on the number of letters

he could write, whereas he had corresponded without such a restriction

at Parkhurst. He complained to the Home Office about the disparity in

prison censorship practices. The Secretary of State refused to take

any action regarding this complaint (petition reply dated 22 July

1986).

A prisoner's entitlement to letters is set out in paragraph 7

of Standing Order 5B and is applicable to all prisons in England and

Wales:

"(1) All convicted prisoners are entitled under Prison Rule

34 to one statutory letter a week on which postage is paid

at public expense....

(3) .... inmates may send, in addition to the statutory

letter at public expense, at least one letter a week on

which postage is paid from earnings. The Governor should

allow additional letters paid from earnings so far as is

practicable, taking into account the need to examine and

read correspondence and the staff resources available.

Inmates are generally allowed to receive as many letters

as they are allowed to send."

The number of letters allowed varies according to the

establishment, and is at the discretion of the prison Governor. Over

12 million incoming and outgoing letters are handled by the prison

authorities of England and Wales annually. At Frankland Prison a

prisoner's allowance is normally three per week, over and above the

weekly statutory letter at public expense, although more may be

permitted in exceptional cases. During the period covered by this

application, namely from 7 March 1986 until 1 October 1987, the

applicant wrote over 600 letters which were sent out, an average of

just over 8 per week. Some weeks he sent out over 30 letters.

4. On 22 July 1986 a letter of complaint to the applicant's

solicitor was stopped for failing to put the complaint before the

Governor, even though the applicant claimed to have done so. He

petitioned the Home Office about the stopping of the letter. The

Secretary of State rejected the complaint on 15 December 1986 on the

grounds that the letter had been correctly stopped under Rule 37 (A)

of the Prison Rules 1964. On 3 July 1987 the Government informed the

Commission that this letter had in fact been stopped in error and an

apology had now been made to the applicant.

5. The applicant alleged that Circular Instruction 63/66

unjustifiably limits prisoners' purchase and use of cards, e.g. only

24 cards may be sent or handed out at Christmas. The use of circular

instructions denies prisoners necessary information as to censorship

practices.

The Government responded as follows to this allegation:

"The number of Christmas cards prisoners may send is set out

in Standing Order 5B 13, which provides that:

'At Christmas a convicted inmate will be allowed to send an

additional letter to be paid for from his prison earnings;

and the Governor has discretion to allow more....

In addition up to 12 cards with stamps may be bought from

the prison canteen out of prison earnings or private cash.'

In recognition of the special needs of long-term prisoners as

many as 24 cards may be sent by inmates in certain prisons,

including Frankland.

The restriction on the number of cards which may be sent is

necessary to avoid placing too great a burden on the censor's

offices. Inmates are only allowed to send cards bought in

the prison canteen - which may include charity cards - to

avoid the necessity of searching each one.

The applicant was allowed to send Christmas cards in

accordance with the aforementioned guidelines."

6. The applicant alleged that the prison authorities would not

allow him to petition the Home Secretary about his correspondence

complaints at one stage (around October 1986).

The Government responded that without further information

about the allegation it was not possible to investigate it, but, in

principle, the "one petition at a time" rule laid down in Standing

Order 5C does not apply to petitions about correspondence. The

relevant part of this Order provides as follows:

"9. Generally an inmate who has petitioned and not received

a reply should not be allowed to petition on any other matter

unless a month has elapsed since the previous petition was

submitted or the Governor considers that an exception should

be made or except as in Order 5C 10 as below.

10. An inmate sould be allowed to petition about the

following matters whether or not he is awaiting a reply

to a previous petition on any subject:

...

(d) interference with his correspondence."

Despite this guideline the applicant was refused a

correspondence petition to the Home Secretary in March 1987 (see para.

12 below).

7. The applicant alleged that a letter to a fellow inmate at

Frankland Prison had been returned to him although it had been passed

by the prison censor. The censorship was upheld by the Secretary of

State (petition reply 17 December 1986).

The Government responded that on the basis of this information

it is not possible to ascertain the letter in question. However

whilst the applicant was removed from association from other inmates

at his own request, pursuant to Rule 43 of the Prison Rules 1964, as

amended, correspondence with a fellow inmate, Mr. Clarke, was

prohibited.

Standing Order 5B 26 deals with correspondence between

prisoners:

"Correspondence with another convicted inmate requires the

approval of both governors, except where the inmates are

close relatives as described in Standing Order 5B 28 below

or where they were co-defendants at their trial and the

correspondence relates to their conviction or sentence.

Subject to the provisions of Orders 5B 24-30 approval

should be given unless there is reason to believe that such

correspondence will seriously impede the rehabilitation

of either, or where it would be desirable, in the interests

of security or good order and discipline, that the inmates

should be separated from each other, or prevented from

communicating with each other."

In exercise of the discretion conferred by this guideline, the

Governor of Frankland took the view that correspondence between Mr.

Clarke and the applicant was not conducive to the good order and

discipline of the establishment whilst the latter was removed from

association. For this reason, after an exchange of letters between

the two prisoners about a forthcoming adjudication, the Governor

decided that correspondence between them should be stopped until the

applicant returned to normal location.

The applicant denied that he was removed from association at

his own request or that he and Mr. Clarke had corresponded about an

adjudication.

8. On the morning of 4 December 1986 the applicant was not

allowed to receive a visit because he refused to wear ill-fitting

shoes. He claimed to have been assaulted by prison officers,

following his noisy protest about the wasted visit, when he was placed

in a special cell ("the strong box") and stripped of his clothes. He

stated that he was refused writing paper to write to his solicitor

until he was returned to his normal cell the same evening. He further

alleges that the prison doctor failed to examine him fully and that

the next day he was refused a petition of complaint to the Secretary

of State. After an investigation of the alleged assault, the prison

authorities considered that reasonable force had been used in the

circumstances.

9. The applicant claimed that the ventilation in his prison block

at H.M. Prison Frankland was inadequate and caused him headaches.

10. The applicant alleged that a letter to the Commission was

stopped on 1 December 1986.

The Government stated that the letter was not stopped but

merely delayed because the applicant had not written in the correct

format and the letter had been wrongly addressed: On 1 December 1986

he was refused a form to write to the Commission on the grounds that

his complaint had not been dealt with through domestic procedures, but

the Assistant Governor checked the Circular Instruction and then

issued a form some 30 minutes later. On checking the petition the

Assistant Governor noticed that the applicant had addressed it wrongly

and had used both sides of the sheet of paper. Circular Instruction

34/81 instructs Governors to ensure that petitions to the Commission

be written on white line A4 size paper using one side only. Bearing

the Circular Instruction in mind the applicant was asked by the

Assistant Governor to rewrite it. This he did and it was posted on

5 December 1986.

After petitioning the Home Secretary about this incident, the

applicant was advised that the Secretary of State had found that "no

unwarranted interference or delay" in his petition to the "European

Court of Human Rights" had occurred (petition reply dated 17 February

1987).

11. The applicant objected to the stamp placed on his outgoing

correspondence by the prison authorities reminding correspondents to

provide their name and address when writing to prisoners. The

applicant found the practice offensive because it implied that his

correspondents were writing to him anonymously.

The Government responded that, for the protection of the

public and the prevention of further crime, inmates are not allowed to

write to certain types of correspondent. The most important of these

are:

i. minors, where their parents have requested the stopping

of correspondence with the inmate concerned;

ii. other convicted inmates, where the Governor considers

this would seriously impede the rehabilitation of either or

that correspondence would not be in the interests of good

order and discipline;

iii. anyone who has previously served a custodial sentence if

the Governor believes it would impede the rehabilitation of

either; and

iv. persons or organisations whom the Governor believes

present a genuine and serious threat to the security or

good order of that or any other Prison Department

establishment.

In order to enforce these restrictions it is necessary for

correspondents to state their name and address. It is the practice at

Frankland Prison, in cases where an inmate has received an anonymous

letter, to stamp any outgoing letters thought to be going to the same

correspondent with a reminder to give his/her name and address next

time. This is what happened in the present incident.

The applicant denied that anyone wrote to him anonymously.

12. The applicant was then transferred to H.M. Prison Long Lartin.

There certain of his letters were temporarily stopped: a letter dated

12 March 1987 to the Clerk of Public Petitions, House of Commons, and

two letters dated 16 March 1987 addressed respectively to Miss T.

Bailey and the Reverend B. Greenaway. The applicant was not allowed

to petition the Home Secretary immediately about this censorship.

According to the Government these letters were stopped

pursuant to paragraph 7 of Standing Order 5B (para. 3 above). At

Long Lartin Prison this Standing Order concerning letter quotas is

enforced by issuing prisoners with standard prison letter forms.

Where a letter is not written on such official paper, it must be

submitted for posting with a postal authority slip so that the number

of letters sent can be recorded. These slips are available from the

prison censor's office. The three letters were stopped because they

were not accompanied by such slips, which the applicant subsequently

obtained, and the letters were sent in their original form.

The Government also informed the Commission that the applicant

had not been refused a petition to the Home Secretary. However the

applicant submitted with his application an acknowledgement of this

fact in a letter dated 26 May 1987 from the Earl of Caithness,

Minister of State, Home Office, to the Rt Hon. Tony Benn, the

applicant's Member of Parliament, who had raised the matter with the

Home Secretary. In that letter the Minister stated as follows:

"Mr. Chester was indeed refused the issue of a petition

in March and I am sorry to say that the decision to

do so was a mistake. The situation arose from an

administrative misunderstanding which was subsequently

rectified.

Apart from this one incident Mr. Chester's correspondence

is not being unlawfully stopped or interfered with in

any way, indeed he was allowed an increase in his normal

entitlement of letters in order to assist his settling

in at Long Lartin."

13. The applicant was then transferred to H.M. Prison Wakefield.

From there a letter (on or about 8 September 1987) to Mrs. S.

Rutkowski and a letter dated 1 October 1987 to the Rt. Hon. Tony Benn,

MP, were stopped because he had exceeded his letter allowance,

contrary to paragraph 7 of Standing Order 5B. He had already written

four outgoing letters during each of the weeks in question.

COMPLAINTS

The applicant complains of an unjustified interference with

his correspondence, contrary to his right to respect for

correspondence ensured by Article 8 of the Convention. He also

invokes Articles 10, 17 and 18 of the Convention. He relies on

previous submissions to the Commission in his application No. 9488/81,

and alleges that the United Kingdom Government have misled the

Commission with regard to purportedly uniform censorship practices,

and have failed to take effective action to ensure a relaxation of

those practices and a genuine reform.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 10 March 1986 and registered

on 19 September 1986.

On 13 May 1987, after making a preliminary examination of the

case, the Rapporteur requested the Government, pursuant to Rule 40

para. 2 (a) of the Commission's Rules of Procedure, to provide

information regarding the censorship practices and incidents described

by the applicant. Information was provided by the Government on

3 July 1987, to which the applicant replied on 3 August 1987.

On 3 May 1988 the Commission examined the admissibility of the

application. It decided to give notice of the case to the respondent

Government, pursuant to Rule 42 para. 2 (b) of the Rules of Procedure,

and to invite the parties to submit their observations on the

admissibility and merits of the application. The Government submitted

their observations on 18 July 1988. The applicant was invited to

submit his before 16 September 1988. This time limit was suspended

pending the applicant's legal aid application to the Commission and

the instruction of solicitors. The solicitors appointed by the

applicant informed the Commission on 5 January 1989 that the applicant

had withdrawn his instructions. The applicant was then invited to

submit his observations before 17 March 1989. They were submitted on

20 February 1989.

THE LAW

1. The applicant has complained of an unjustified interference

with his right to respect for correspondence ensured by Article 8

(Art. 8) of the Convention, the relevant part of which provides as

follows:

"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 .... for the prevention of disorder or crime ...."

The applicant has also invoked Articles 10, 17 and 18

(Art. 10, 17, 18) of the Convention with respect to his censorship

complaint. However the Commission does not find these provisions of

the Convention pertinent to the facts of the application.

The applicant contends that the interference with his

correspondence was neither in accordance with the law nor necessary in

a democratic society for the prevention of disorder or crime, within

the meaning of Article 8 para. 2 (Art. 8-2) of the Convention. The

Government concede an interference with the applicant's right to

respect for correspondence in certain instances, such as the

stopping or delaying of certain letters in excess of the

applicant's weekly letter allowance, but contend that the

interference was in accordance with the law and necessary for the

prevention of disorder or crime. Insofar as errors were committed by

the prison administration, as with the mistaken censorship of the

applicant's letter of 22 July 1986 to his solicitor, the Government

have offered an apology and conclude that the applicant can no

longer claim to be a victim of a violation of the Convention.

2. The Commission finds that there has been no interference with

the applicant's right to respect for correspondence ensured by Article

8 para. 1 (Art. 8-1) of the Convention in respect of his

unsubstantiated claim that a letter dated 6 March 1986 was stopped, a

temporary inability to petition the Secretary of State about a

correspondence complaint in March 1987 and the stamping of his

outgoing correspondence with a reminder to addressees to put their

names and addresses clearly on their incoming letters. It concludes

that these aspects of the case are manifestly ill-founded within the

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

3. However, the Commission also finds that there has been an

interference with the applicant's Article 8 (Art. 8) right as follows:

- insofar as his letters dated 9 March 1986 to Mr. Speakman and

dated 22 July 1986 to his solicitor were respectively delayed and

stopped for failing to observe the simultaneous ventilation rule (the

Commission considers that the applicant may still claim to be a victim

of a violation of Article 8 (Art. 8) in respect of the second letter to his

solicitor, despite the apology he received from the Government a year

later);

- insofar as three of the applicant's letters were delayed and

two stopped for exceeding the weekly letter quota (delayed letters

dated 12 March 1987 to the Clerk of Public Petitions, 16 March 1987 to

Mrs. T. Bailey, 16 March 1987 to the Rev. B. Greenaway, and stopped

letters dated 8 September 1987 to Mrs. S. Rutkowski and 1 October 1987

to the Rt. Hon. Tony Benn, MP);

- generally insofar as a weekly letter quota and a Christmas

card quota were imposed on the applicant; and

- insofar as there was a complete ban on the applicant's

correspondence with a fellow inmate during the applicant's placement

in the segregation unit at H.M. Prison Frankland.

However, the question whether that interference was in

accordance with the law and justified, as being necessary in a

democratic society for the prevention of disorder or crime, within the

meaning of Article 8 para. 2 (Art. 8-2) of the Convention, is one

which raises complex issues of law and fact warranting an examination

on the merits.

4. Finally, the applicant has complained of a short delay in the

sending of a letter dated 1 December 1986 to the Commission. The

Commission has examined this complaint in the context of the effective

exercise of the right of individual petition ensured by Article 25

para. 1 (Art. 25-1) of the Convention. However, the Commission finds

that the delay in question did not hinder the applicant's access to

the Commission and that, therefore, there has been no interference

with the effective exercise of his right of petition.

For these reasons, the Commission

DECLARES ADMISSIBLE, without prejudging the merits of the

case, the applicant's complaints concerning the simultaneous

ventilation rule, mail quotas and correspondence with a

fellow prisoner;

DECLARES INADMISSIBLE the remainder of the application;

DECIDES to take no action in respect of the alleged

interference with the effective exercise of the right

of individual petition.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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CHESTER v. THE UNITED KINGDOM

CHESTER v. THE UNITED KINGDOM

LEXI