Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11392/85

by Raymond HODGSON

against the United Kingdom

The European Commission of Human Rights sitting in private

on 4 March 1987, the following members being present:

MM. C. A. NØRGAARD, President

G. SPERDUTI

J. A. FROWEIN

E. BUSUTTIL

G. JÖRUNDSSON

S. TRECHSEL

B. KIERNAN

A. S. GÖZÜBÜYÜK

A. WEITZEL

J. C. SOYER

H. G. SCHERMERS

H. DANELIUS

H. VANDENBERGHE

F. MARTINEZ

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 15 October 1984

by Raymond HODGSON against the United Kingdom and registered on

12 February 1985 under file N° 11392/85;

Having regard to

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

of the Commission;

- the Commission's decision of 16 May 1985 to bring the

application to the notice of the respondent Government and invite them

to submit written observations on its admissibility and merits;

- the information provided by the Government on

12 September 1985;

- the applicant's response to that information on

9 October 1985;

- the Commission's decision of 4 March 1986 to maintain its

invitation to the parties to submit written observations on

admissibility and merits;

- the Government's observations of 9 May 1986;

- the applicant's observations in reply on 26 June 1986;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom, born in 1952

and detained in H.M. Prison Peterhead, Scotland, where he is serving a

ten year prison sentence.

This is his second application to the Commission. His first,

Application No. 10779/84, complaining of his trial, conviction and

legal representation, was declared inadmissible as being manifestly

ill-founded (Article 27 para. 2 of the Convention) on 16 March 1984.

The present application concerns the censorship of the

applicant's correspondence. The facts of the case may be summarised

as follows:

The applicant was convicted of various sexual offences on

19 January 1982. His appeal was heard on 2 December 1982 when it was

rejected. Despite the fact that he had no further proceedings

outstanding or any possibility of initiating such proceedings, the

applicant wrote on several occasions to the High Court of Justiciary,

Justiciary Office, Edinburgh between 1982 and 1984 concerning his

trial and appeal. On 13 August 1984 the Justiciary Office provided

certain information and requested the applicant to state the purpose

of any further requests for information so that the Office could

determine what priority should be given to any future replies. The

applicant claims that for the first time he was provided with

essential information in that letter regarding his appeal. On

15 August 1984 the applicant wrote again to the Justiciary Office but

his letter was ignored. Instead the Deputy Principal Clerk of

Justiciary wrote to the applicant's Prison Governor on 23 August 1984

in the following terms:

"I am instructed to ask you to call the above named prisoner

before you in order to inform him that Lords Commissioners

of Justiciary do not enter into correspondence with prisoners

in relation to the cases which have been brought before them

as the presiding judge at a Court of First Instance or as a

Judge of Appeal. I refer, of course, to the latest series of

letters which this man has been allowed to write from prison,

copies of which I enclose herewith.

As all reasonable requests for relevant information have now

been met, Hodgson should be informed that his request to

forward a letter to Mr McNish has been refused as has his

demand for the home address of Mr McNish. It is not the

policy of the Court to allow correspondence between prisoners

and retired Officers of Court in relation to matters which

have arisen in the course of that officer's official duties.

Finally, I have to ask you not to allow this man to write

again to this office. He should be reminded, yet again,

that the decision of the Court of Criminal Appeal on

2 December 1982 is, in terms of Section 262 of the Criminal

Procedure (Scotland) Act 1975, final and conclusive and not

subject to review by any Court whatsoever."

Thereupon, after showing the applicant a copy of this letter,

the Prison Governor prohibited the applicant's correspondence to the

High Court, pursuant to Rule 74 (1) and (4) of the Prison (Scotland)

Rules 1952 and the relevant Standing Orders (MA 4 (2)) which provide:

"74.- (1) Communications between prisoners and their relatives

and friends shall be allowed in accordance with the following

provisions, subject to such restrictions as may be laid down

by the Secretary of State with a view to the maintenance of

discipline and order and the prevention of crime, and no other

person shall be allowed to communicate with a prisoner without

the authority of the Secretary of State ....

(4) Subject to the provisions of Rule 50 (4) every letter to

or from a prisoner shall be read by the Governor or by an

officer deputed by him for that purpose and it shall be within

the discretion of the Governor to stop any letter if he

considers that the contents are objectionable."

MA 4 (2): "If the recipient of correspondence from an inmate

requests in writing to the prison authorities that further

letters should not be sent, the inmate should be informed of

the request, asked to co-operate by not writing and given the

opportunity to discuss the matter with a member of staff. If

the inmate then hands out a further letter for posting, the

Governor may, at his discretion, give effect to the

recipient's wishes and inform the inmate that his letter will

not be sent. However correspondence between husbands and

wives should not be stopped other than on the order of a

court."

On 29 October 1984 the applicant contested the Prison

Governor's decision by way of a petition to the Secretary of State for

Scotland. On 26 March 1985 the Scottish Home and Health Department

informed the applicant that his request to write directly to the High

Court of Justiciary was refused, but that, if he wished, he could

request his solicitor to raise his complaint directly with the court.

The applicant in the meantime had taken an equivalent step to this

latter proposal by complaining to the Lord Chancellor about the Lord

Justice Clerk and Justiciary Office. His complaint was referred to

the Scottish Courts Administration, which office informed the

applicant on 22 April 1985 that, given his pending proceedings before

the Commission, it would be inappropriate for them to comment.

In reply to a further petition (dated 10 June 1985) to the

Secretary of State for Scotland requesting clarification of the

Justiciary Office letter of 23 August 1984, the Scottish Home and

Health Department stated (Petition reply dated 5 June 1985) that the

High Court of Justiciary had been consulted, but believed no further

clarification was necessary. The applicant was again advised that he

could have access to the Justiciary Office through his solicitor.

The applicant claims that he wished for further information

from the Justiciary Office in order to institute proceedings for

damages and a possible private criminal prosecution against his former

agent and defence solicitor.

COMPLAINTS

The applicant complains that his correspondence to the High

Court of Justiciary was unlawfully prohibited. He originally invoked

Articles 6 para. 1 and 8 of the Convention, but in subsequent

submissions he has emphasised the Article 8 aspect of his complaint.

PROCEEDINGS BEFORE THE COMMISSION

The application was communicated to the Government on 10 May

1985 and, after an extension of the time limit for submission of

observations, the Government, in a letter dated 12 September 1985,

proposed amending Standing Order MA 4 (2) by the addition, at the end

of the paragraph, of the following words:

"This paragraph does not apply to correspondence with a

court (including a named judge) or any public authority."

The amendment was circulated to the governors/wardens of all

prisons in Scotland by the Scottish Home and Health Department.

The applicant replied, in a letter dated 9 October 1985, that

he did not consider the amendment sufficient compensation, and that he

was not prepared to agree to the withdrawal of his application until

such time as the restrictions on his right to correspond with anyone

he wishes are removed.

On 4 March 1986 the Commission decided that the parties'

written observations on admissibility and merits were still required.

The Government submitted such observations on 9 May 1986, to which the

applicant replied on 26 June 1986.

SUBMISSIONS OF THE PARTIES

The Government

Part I - The facts

The Government points out that the applicant wrote to the

Justiciary Office on numerous occasions between 1982 and 1984. By

August 1984 that Office considered that it had given all the

information that could reasonably be given. Hence the "informal

request" to stop further correspondence in the Clerk's letter of

23 August 1984 to the Prison Governor. It was the intention of that

Office not to have stopped all correspondence, but only that

concerning his conviction, sentence and appeal. However the letter in

question did not make this clear. The Prison Governor instructed the

prison censors to stop all the applicant's mail to the Justiciary

Office, pursuant to Standing Order MA 4 (2).

The applicant has not had any proceedings before the High

Court of Justiciary or Court of Criminal Appeal and he was not seeking

to initiate such proceedings. This would not be the competent

jurisdiction for the applicant's intended proceedings against his

defence solicitor.

The restriction on the applicant's writing to the High Court

of Justiciary was lifted on 12 September 1985. By a circular letter

dated 16 October 1985, Standing Order MA 4 (2) was amended to exclude

the stopping of correspondence with courts or other public

authorities.

Part II - Relevant domestic law and practice

The Court Clerk's request to the Prison Governor was of an

informal nature, not being based on any rule of law and it did not

have any legal effect. The Court's Office normally replies to

reasonable requests for information, there being no written

administrative practice regulating its correspondence. Judges do not

enter into correspondence with convicted persons.

Prison Governors have delegated censorship powers, deriving

from the Prisons (Scotland) Act 1952 and the Prison (Scotland) Rules

1952. These powers are exercised in accordance with administrative

instructions contained in Prisons (Scotland) Standing Orders.

Standing Order MA 4 (2) makes provision for the stopping of letters at

the request of the recipient (see Rule 74 (1) and (4) Prison

(Scotland) Rules 1952 and MA 4 (2) set out in THE FACTS p. 4 above).

It was in pursuance of this Standing Order that the Prison Governor

stopped the applicant's correspondence with the High Court of

Justiciary, which order has now been amended to exclude correspondence

with court or other public authorities.

Pursuant to the case of Raymond v. Honey (1982) 1 All E.R.

756, it is clear that under English law Prison Governors have no

authority to prevent prisoners' access to court in respect of the

initiation or conduct of proceedings. Scottish law would be similar

in this respect, although there is little specifically about access to

court in the Prison (Scotland) Rules. The Scottish Standing Orders,

however, make it clear that prisoners are to have all necessary access

to court.

Part III - Admissibility and merits

In the Government's submission, in view of the lifting of the

restriction of his correspondence and the amended Standing Order, the

applicant can no longer claim to be a victim of a violation of the

Convention within the meaning of Article 25 of the Convention.

It contends that the amended Standing Order is compatible with

the right to respect for correspondence ensured by Article 8 of the

Convention.

In so far as the applicant alleges denial of access to court

the Government notes that this did not occur in the applicant's case.

He was not seeking access to the civil courts and the criminal

proceedings against him had been definitively terminated by the High

Court of Justiciary, sitting as an appeal court, on 2 December 1982.

The Convention does not guarantee a right to initiate private criminal

proceedings. No denial of access to court was intended by the

Justiciary Office or the prison authorities. If the applicant had

intended to institute legal proceedings and his correspondence thereon

censored, he would have had a domestic remedy by way of an application

to commit the Prison Governor for contempt of court (cf.

aforementioned Raymond and Honey case).

Part IV - Conclusions

The Government concludes that the application is

(a) inadmissible on the ground that the applicant is not a

victim of a breach of the Convention or, alternatively,

(b) inadmissible under Articles 6 and 8 as being manifestly

ill-founded.

As a further alternative, it is submitted that there has been

no breach of the Convention.

The applicant

The applicant claims to have needed information from the

Justiciary Office about his former solicitor or agent, in order to

prosecute an action for damages and a possible private criminal

prosecution against him.

The applicant does not accept that the restriction on his

correspondence has been lifted by Standing Order MA 4 (2) amended,

because the copy of the order which was supplied to him in May 1986

remains unchanged. In any event Standing Orders are mere guidelines

which are not binding upon the prison authorities. He thereby claims

to remain a victim of a breach of the Convention.

The applicant contends that MA 4 (2) is unnecessary as it

short circuits the recipient's right to have a court order or

injunction forbidding further correspondence. There is no appeal

against an arbitrary decision by a Prison Governor to stop

correspondence.

The applicant accepts that he was not denied access to court,

except in so far as he was requesting information to enable him to

take action against his previous agent. He contests the jurisdiction

and availability of contempt proceedings for a denial of access to

court.

Conclusion

The applicant concludes that he is a victim of a violation of

the Convention, that the Government's submissions are unfounded, that

Standing Order MA 4 (2), in its original or amended form, is

unnecessary and unjustifiable, and that the only restrictions on his

correspondence should be those relating to general correspondence, as

laid down in Standing Order MA 7.

THE LAW

1. The applicant complains of the prohibition on his correspondence

to the High Court of Justiciary from August 1984 until 12 September

1985. His principal complaint is that he is a victim of a violation of 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 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."

He originally complained of a breach of Article 6 para. 1 (Art. 6-1) of

the Convention which provides, inter alia, for a fair hearing in the

determination of a person's civil rights and obligations or any

criminal charge against him. An inherent aspect of this right is that

of access to court (Eur. Court H.R. Golder judgment of 21 February

1975 Series A Vol. 18 para. 36). However, the applicant accepted in

his written observations on admissibility and merits that he was not

actually denied access to court, although he had wished to seek

certain information from the High Court of Justiciary which might have

been of assistance in a possible action against his former solicitor

or agent.

2. The Government has submitted that, in view of the lifting of

the contested restriction on 12 September 1985 and the amendment to

Standing Order MA 4 (2) preventing the recurrence of such censorship,

the applicant may no longer claim to be a victim of a breach of the

Convention within the meaning of Article 25 (Art. 25).

3. The Commission recalls previous case-law in which it has held

that where there is a change in legislation or an effective resolution

of the factual basis of an application during the course of

proceedings before the Commission, the applicant may, in certain

circumstances, no longer claim to be a victim of a violation of the

Convention (No. 7658/76, Dec. 5.12.78, D.R. 15 p. 128 and No. 9435/81,

Dec. 11.5.82 unpublished).

The Commission notes that the applicant was able to write

several letters to the High Court of Justiciary prior to the

prohibition in August 1984. Between August 1984 and June 1985 the

prohibition was under review before the Secretary of State for

Scotland and the Scottish Courts Administration. Throughout the

prohibition the applicant was not actually denied access to court in

respect of civil proceedings, or any criminal proceedings against him,

and his solicitor could have obtained any information the applicant

required from the High Court of Justiciary on his behalf. The

contested restriction was lifted on 12 September 1985 and the

offending Standing Order amended soon after. In these circumstances,

the Commission finds that the applicant can no longer claim to be a

victim of a violation of the Convention, within the meaning of

Article 25 (Art. 25) of the Convention.

It follows that the application is now 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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HODGSON v. THE UNITED KINGDOM

HODGSON v. THE UNITED KINGDOM

LEXI