Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 14176/88

by Thomas Michael Joseph RYDER

against the United Kingdom

The European Commission of Human Rights sitting in private on

19 January 1989, the following members being present:

MM. C.A. NØRGAARD, President

G. SPERDUTI

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

G. BATLINER

H. VANDENBERGHE

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

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 24 June 1988

by Thomas Michael Joseph RYDER against the United Kingdom and

registered on 2 September 1988 under file No. 14176/88;

Having regard to the report provided for in Rule 40 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen born in 1957. He is

currently serving a sentence of imprisonment in H.M. Prison Durham.

The facts as submitted by the applicant may be summarised as follows.

The applicant was arrested in June 1985 and detained on remand

in connection with drugs offences. On 30 August 1985, the applicant

escaped from custody while appearing in the magistrates court. He was

re-arrested in January 1986 and charged with escape from legal

custody, grievous bodily harm and possession of a fire-arm.

The applicant was subsequently classified as a violent

prisoner likely to escape or be rescued by an armed gang.

On 20 March 1986, the applicant was additionally charged with

an offence of robbery and of demanding money with menaces. On 22 May

1986, the applicant made an unsuccessful attempt to escape, following

which he was charged with assault and threatening to kill.

The applicant was tried in relation to the drugs charge in

October 1986. He was convicted and sentenced to 4 years' imprisonment.

On arrival at H.M. Prison Walton, Liverpool, the applicant was placed

on the "E" list (escape) and given category "A" status (maximum

security). On 11 November 1986, the applicant was moved to H.M.

Prison Strangeways, Manchester.

During November - December 1986, the applicant received two

letters from his solicitor marked "Rule 37 A - Private and

Confidential" on both sides of the envelope. However, these letters

had been opened and read by the prison censor. The applicant

complained to the Acting Governor, who assured him that "Rule 37 A"

correspondence would only be opened if he was present and that once

the inside of the envelope had been inspected, the letter would be

replaced and returned. Despite this assurance, the applicant's mail

in December 1986 was again opened and read. His solicitor however was

assured that letters subject to Rule 37 A would not be censored in

future.

On 17 March 1987, the applicant returned to H.M. Prison

Walton, Liverpool. In April 1987, he received a letter marked "Rule

37 A" which had been opened. The applicant complained to the

Principal Officer who apologised, stated that he had only recently

received Home Office instructions regarding "Rule 37 A" letters and

assured the applicant that mail would not be abused in future.

Later in April 1987, the applicant received a visit from his

solicitor and discovered that a letter sent by his solicitor four days

before and marked "Subject to Rule 37 A", concerning counsel's advice,

had not yet been received by him. The solicitor wrote to the prison

governor enquiring about the letter. The Governor stated that

enquiries would be made to trace the letter.

On 1 May 1987, a prison officer visited the applicant with a

cheque to be signed: he informed the applicant that the letter

accompanying the cheque would be distributed that evening. The

applicant however did not receive the letter until the following

afternoon and the applicant complained to the assistant governor

concerning the delay. The assistant governor said that he would look

into the matter. He also said that enquiries had failed to discover

the missing letter from the solicitor. On 18 May 1987, the applicant

submitted a petition to the Secretary of State regarding the opening

of his correspondence.

On 24 July 1987, a prison officer attempted to give the

applicant a letter from his solicitor marked "Rule 37 A" which had

been opened. The applicant refused to accept the letter and applied

to see the Governor. On 27 July 1987, the applicant had an interview

with the Acting Governor, who stated that she would look into the

matter. The applicant now requested that he be given the letter and

was told that it would be returned to him after the Governor had

spoken to the official censor. The applicant was informed later that

afternoon that the letter had gone missing. He gave the Governor his

solicitor's address in order that a copy of the letter could be

forwarded. The applicant petitioned the Secretary of State on 29 July

1987 regarding this matter. The applicant petitioned again on 19

August 1987 concerning further letters from his solicitor having been

opened on 1, 4 and 15 August 1987. The Governor had apologised to the

applicant concerning the letter of 1 August 1987, explaining that a

novice censor had opened it by mistake.

On 29 September 1987, the Secretary of State replied to the

petitions of 18 May and 19 August but it appears that the reply did

not reach the applicant at that time.

On 27 November 1987, the Secretary of State replied to the

applicant's petition of 29 July 1987, regretting that the letter

handed to the applicant on 24 July 1987 had been accidentally opened.

It was stated that the letter had not been read and that when it went

missing, his solicitor had been immediately contacted in order to

request a second copy. The applicant was also informed that the

letter of 15 August 1987 had been opened since his name had not been

visible.

On 29 February 1988, the applicant, now in H.M. Prison Durham,

was handed the reply dated 29 September 1987 to his petitions of 18

May and 19 August 1987. In this reply, the Secretary of State

regretted that the letter of 4 August 1987 had been opened but

commented that this was understandable given the absence of any "Rule

37 A" indication on the envelope. The loss of the solicitor's letter

was regretted and reference made to a previous apology made in writing

to the applicant's solicitors.

COMPLAINTS

The applicant complains that because of his classification as

category "A" he was prevented from receiving normal visits and

interviewing potential witnesses for the defence. He also complains

that the move to H.M. Prison Strangeways made it difficult for him to

see his solicitors. He complains that as a result he was unable to

prepare any of his cases properly. He invokes Article 6 paras. 1 and

3 (b) and (d) of the Convention in this respect.

The applicant also complains of continuous interference with

his correspondence with his solicitor, which was opened in his

absence. Despite his complaints, the applicant submits that this

censorship continued and invokes Articles 8, 10 and 13 of the

Convention.

THE LAW

1. The applicant has complained of interference with his correspondence

with his solicitor and has invoked Article 8 (Art. 8) of the Convention. While

the applicant has also invoked Article 10 (Art. 10) of the Convention, the

Commission recalls that where interference is alleged in the communication of

information by correspondence Article 8 (Art. 8) is the lex specialis and no

separate issue arises under Article 10 (Art. 10). The Commission will

therefore examine the applicant's complaint under Article 8 of the Convention,

which provides:

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

and family life, his home and 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."

Insofar as the applicant complains of interference with

letters which he brought to the attention of the Secretary of State in

his petition of 29 July 1987, the Commission is not required to decide

whether or not the facts alleged by the applicant disclose any

appearance of a violation of this provision, as Article 26 (Art. 26) of the

Convention provides that the Commission "may only deal with the matter

... within a period of six months from the date on which the final

decision was taken".

In the present case the reply of the Secretary of State which

was the final decision regarding the subject matter of this petition,

was given on 27 November 1987, whereas the application was submitted

to the Commission on 24 June 1988, that is, more than six months after

the date of this decision. Furthermore, an examination of the case

does not disclose the existence of any special circumstances which

might have interrupted or suspended the running of the six months

period.

It follows that this part of the application has been

introduced out of time and must be rejected under Article 27 para. 3

(Art. 27-3) of the Convention.

As regards the other alleged interferences, the Commission

recalls that on 1 May 1987 a letter allegedly went missing and that

letters which arrived on 1 August, 4 August and 15 August 1987 from

his solicitor had been opened. In the reply to the applicant's

petitions of 18 May 1987 and 19 August 1987, the Secretary of State

referred to the written apology to the applicant's solicitors

concerning the missing letter and explained that the letter of

4 August 1987 had not been marked Rule 37 A. The reply to the

applicant's other petitions had already explained that the letter of

15 August 1987 had not been addressed to the applicant and had been

opened to discover to whom it was sent. As regards the letter of

1 August 1987, the Commission recalls that the Governor had apologised

to the applicant for its opening and explained that a novice censor

had been responsible.

The Commission's previous case-law indicates that the opening

of a prisoner's correspondence with his solicitor may raise issues

under Article 8 (Art. 8) of the Convention. In the case of McComb v. the

United Kingdom (No. 10621/83, Dec. 11.3.85, to be published in D.R.),

the Commission declared admissible the complaints of a prisoner

regarding the censorship of his correspondence with his solicitor.

The Commission also recalls that pursuant to a friendly settlement in

that case, the United Kingdom Government agreed to issue instruction

that such correspondence would not be opened, save in the presence of

the prisoner concerned.

The Commission notes that these instructions appear to have

been implemented in the prisons in which the applicant was detained

but that various incidents occurred in which letters from his

solicitor were nonetheless opened. The Commission further notes that

the applicant was able to complain to the Governor and the Secretary

of State concerning these incidents and received various apologies and

explanations, which the Commission finds to be reasonable in the

circumstances of this case. In the absence of any evidence of a

deliberate flouting or disregard of the Secretary of State's

instructions, the Commission finds that the applicant can no longer

claim to be a victim of a violation of Article 8 (Art. 8) of the Convention.

It follows that these complaints are manifestly ill-founded

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

2. The applicant has also invoked Article 13 (Art. 13) of the Convention

in relation to his correspondence complaints.

Article 13 (Art. 13) of the Convention provides:

"Everyone whose rights and freedoms as set forth in

this Convention are violated shall have an effective

remedy before a national authority notwithstanding that

the violation has been committed by persons acting in an

official capacity."

The Commission finds however, in light of previous case-law,

that a petition to the Secretary of State constitutes an effective

remedy where, as in this case, the applicant complains of the

misapplication of the Secretary of State's own directives (see e.g.

Eur. Court H.R., Silver judgment of 25 March 1983, Series A no. 61,

para. 116, p. 43). The Commission accordingly finds that this

complaint discloses no appearance of a violation of Article 13 (Art. 13) of the

Convention.

It follows that this complaint is manifestly ill-founded

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

3. The applicant has also complained of being hampered in the

preparation of his cases as a result of his classification and of the

location of his prison. He invokes Article 6 paras. 1 and 3 (b) and

(d) (Art. 6-1, 6-3-b, 6-3-d) of the Convention.

The Commission has examined these complaints as they have been

submitted by the applicant. The Commission however finds that these

complaints, expressed in general and unspecific terms, have been

unsubstantiated and consequently disclose no appearance of a violation

of the Convention. It follows that this part of the application is

also manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.

For these reasons, the Commission

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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RYDER v. THE UNITED KINGDOM

RYDER v. THE UNITED KINGDOM