Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 11523/85

by Harry GRACE

against 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. 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 27 March 1985

by Harry GRACE against United Kingdom and registered on 2 May 1985

under file N° 11523/85;

Having regard to

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

the Commission;

- information submitted by the Government, pursuant to Rule 40

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

11 October 1985;

- comments in reply from the applicant on 30 October and

19 November 1985;

- the Commission's decision of 5 May 1986 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

1 October 1986;

- the observations in reply submitted by the applicant on

27 October 1986;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a United Kingdom citizen, born in 1942, who

at the time of lodging his application was detained at H.M. Prison,

Parkhurst.

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

His first (Application No. 9551/81) was declared partially

inadmissible on 1 March 1982 and partially admissible as to the

complaint relating to prisoner's correspondence on 4 March 1985. The

Committee of Ministers found a breach of Article 8 of the Convention

in that case (Resolution DH (87) 3). His second application,

concerning the refusal of leave to appeal out of time against

conviction (Application No. 10951/84) was declared inadmissible on 4

March 1985.

In the present application, the applicant alleges that he only

discovered during the week commencing 15 April 1985 (from the

Assistant Prison Governor of the prison at which he was then detained)

that a further 14 of his letters had been stopped:

1. 17.2.80 from Liverpool Prison to G.H.

2. 19.8.80 " Hull Prison to H.H.

3. 5.7.82 " Hull Prison to C.G.

4.,5.(1982

undated) " Hull Prison to P.H. (solicitor)

6. (undated) " Hull Prison to J.R.

7. 15.7.82 " Hull Prison to B.Y.

8. 7.8.83 " Liverpool Prison to G.O. (M.P.)

9. 10.8.83 " Liverpool Prison to K.O. (Chief Constable

of Liverpool)

10. 24.8.83 " Albany Prison to C.R.

11. 23.11.83 " Albany Prison to General Medical Council

12. 21.5.84 " Wandsworth Prison to Judge P.

13. 23.5.84 " Wandsworth Prison to Judge P.

14. 28.6.84 " Albany Prison to E.C.

The applicant did complain of the censorship of letters Nos.

12 and 13 in separate petitions to the Home Secretary, which were

rejected in October and December 1984.

The applicant also petitioned the Home Secretary on 21 April

1985 concerning all the letters save letter 8. In the petition he

alleged violations of Articles 8 and 6 of the Convention.

On 31 October 1985 the Home Secretary decided to take no

action concerning the applicant's latter petition whilst his

complaints were pending before the Commission.

COMPLAINTS

The applicant complains of an unjustified interference with

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

Convention, because of the stopping of 14 of his letters by the prison

authorities.

He also alleges a violation of Article 6 of the Convention in

respect of letters Nos. 4, 5, 9, 11, 12 and 13.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 27 March 1985 and registered

on 2 May 1985. On 3 June 1985 the Rapporteur, pursuant to Rule 40

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

information from the Government concerning the factual circumstances

of the alleged stopping of the fourteen letters in question. The

Government submitted the information requested on 11 October 1985 to

which the applicant replied on 30 October and 19 November 1985.

On 5 May 1986 the Commission decided to give notice of the

application, pursuant to Rule 42 para. 2 (a) of its Rules of

Procedure, to the respondent Government, and to invite the parties to

submit their written observations on the admissibility and merits of

the application. The Government submitted their observations on

1 October 1986, to which the applicant replied on 27 October 1986.

SUBMISSIONS OF THE PARTIES

1. On the facts concerning the stopped letters

Letter 1 - 17.2.80 from Liverpool Prison to G.H.

The Government state that they have been unable to find the

relevant "submitted letters book", which is believed to have been lost

during a change in the location of the Censors' Department at

Liverpool Prison. However, they have no reason to believe that the

applicant was not informed of the stopping of this letter, but they

can find no record to confirm this. In this letter the applicant

asked G.H. to find a woman with whom he could correspond and have

visits. It was presumably censored for contravening the former

Standing Order 5A 23 (3), which forbade prisoners' communications with

persons not personally known to them before they came into custody,

subject to the prison governor's discretion, and forbade persons from

seeking pen friends. (This letter would not now be stopped under the

current Standing Order 5.)

The applicant claims that he was not informed of the stoppage

of this letter at the material time. If he had been given the reasons

for stoppage he would have re-written the letter. The letter should

anyway not have been stopped for the reasons now given by the

Government for its censorship.

Letter 2 - 19.8.80 from Hull Prison to H.H.

The Government concede that, as they hold the original of the

letter, it seems it was not posted. Permission was given for the

letter to be posted, but apparently the instructions were not carried

out. It had been originally held up for a security check.

The applicant claims that he was not informed of the stoppage

at the time and contends that the Government's submissions admit the

lack of justification for censorship.

Letter 3 - 5.7.82 from Hull Prison to C.G.

The Government state that this letter was stopped because the

applicant used a letter intended for his legal adviser to write to a

relation. He was, however, permitted to rewrite the letter. In view

of this it seems clear that the applicant was aware that the original

letter was stopped.

Standing Order 5 B 11 provides that "a convicted inmate who is

a party to legal proceedings .... may have extra letters on

application, provided that the letter is in connection with the

proceedings". It is recorded in the "submitted letters book" that the

prison governor noted that the applicant was abusing this privilege

and accordingly the letter was stopped as it failed to meet the

criteria of the Standing Order.

The applicant claims that he was not informed of the stopping

of this letter at the time. He was writing so many letters (some of

them rewrites) at that stage that any letter paper given to him would

not have specified that it was for rewriting a letter. The letter in

question did refer to some legal matters. Its censorship was not,

therefore, warranted.

Letter 4 - (1982 undated) from Hull Prison to P.H. (solicitor)

The Government have no record of the letter.

The applicant claims that the letter could not have been

undated as prison writing paper is issued date-stamped.

Letter 5 - (1982 undated) from Hull Prison to P.H. (solicitor)

As the Government hold the original of this letter they assume

that it must have been stopped. There is no record as to why, but it

may have been stopped because it contained unventilated complaints

about prison treatment. The applicant complained that he was being

victimised - by being moved to another wing of the prison - because he

had asked the solicitor to write to the governor about another matter.

At that time the simultaneous ventilation rule was applicable

(Standing Order 5 B 34 j). The simultaneous ventilation rule no

longer applies to legal correspondence, and this letter would no

longer be stopped.

The applicant claims that the prison governor was responsible

for the stopping of letters 4 and 5 and never recorded his decision

because he was allegedly victimising the applicant at the time and

wanted to impede the applicant in taking civil proceedings against

him. This is also why he was not informed of the censorship.

Letter 6 - (undated) from Hull Prison to J.R.

The Government hold the original of the letter and, therefore,

assume that it was stopped. There is no record as to why and there is

nothing on the face of the letter to indicate that it should have been

stopped. The Government have no reason to suppose that the applicant

was not informed of the stopping of the letter, but can find no record

to confirm this.

The applicant contends that the letter was illegally stopped

and the fact that the Government can offer no explanation as to why it

was censored shows that he was not informed that this had happened.

Letter 7 - 15.7.82 from Hull Prison to B.Y.

The Government state that the letter was stopped, in August

1982, according to the records, for being a misuse of an extra letter

(like letter 3 above). The applicant was apparently allowed to

rewrite the letter and did so, writing to B.Y. on 14 or 15 August

1982. Thus it seems clear that the applicant was aware that the

original letter was stopped.

The applicant claims that he was not informed of this

censorship, particularly in view of his busy correspondence at that

time (cf. comments on letter 3). No prison record proves that he was

called up and told of the censorship.

Letter 8 - 7.8.83 from Liverpool to G.O. (M.P.)

This letter was stopped because it contained unventilated

complaints. The prison records note that the applicant was called up

by the assistant prison governor and informed of the censorship, of

the internal ventilation procedure and of rewriting possibilities.

The simultaneous ventilation rule in Standing Order 5 B 34 j applies

to letters to Members of Parliament. The letter was properly stopped

under the rule because he was alleging that an inmate who had

committed suicide two and a half months previously had been

ill-treated by prison officers, and that another inmate had been

assaulted by officers.

The applicant claims that he was not "officially" informed of

the censorship which occurred because of his serious allegations,

which allegations were in fact investigated by the Liverpool Police.

He states that he did air the complaints in a statement to the

assistant prison governor. The applicant denies having been called up

and informed. He contends that the assistant governor was trying to

cover up the serious allegations he had made.

Letter 9 - 10.8.83 from Liverpool Prison to K.O. (Chief

Constable of Liverpool Police)

This letter was stopped because it contained one of the

complaints raised in letter 8 which had not been ventilated

internally. The assistant prison governor recalls investigating the

complaints made in letter 8 and informing the applicant of the

censorship of that letter and letter 9. The applicant was allowed a

special letter to the Chief Constable in respect of those matters he

had ventilated internally.

The applicant contends that all matters were raised internally

and that he was not informed of the censorship or offered a rewrite.

Significantly there is no record of any issue of a rewrite.

Letter 10 - 24.8.83 from Albany Prison to C.R.

This is a further case of censorship for misuse of a letter

issued under Standing Order 5 B 11 (see letters 3 and 7 above).

Although the applicant discussed legal matters in the letter, it was

clearly a "domestic" letter rather than "in connection with the

proceedings" in the sense of furthering the applicant's legal affairs.

The prison records show that the letter was stopped by the assistant

prison governor and that a substitute letter was issued to the

applicant on 29 August 1983 and posted the next day. He could not

therefore have been unaware that the earlier letter had been stopped.

The applicant claims that he was not "officially" informed of

this censorship and that the subsequent letter to C.R. was not a

rewrite.

Letter 11 - 23.11.83 from Albany Prison to General Medical

Council

The Government state that this letter was posted, bearing a

postmark of 1 December 1983. However it was returned by the Post

Office marked "insufficiently addressed".

The applicant claims that he was not informed of this

occurrence at the relevant time and was not given an opportunity to

readdress it correctly. It was, therefore, illegally stopped.

Letters 12 and 13 - 21.5.84 and 23.5.84 from Wandsworth

Prison to Judge P.

The Government state that the letters were stopped because

they contained threats. The applicant knew of their censorship

because he petitioned the Home Secretary about them being stopped in

May and June 1984. Their censorship was justified under Standing

Order 5 B 34 f.

The applicant claims that the letters did not contain threats,

but were illegally stopped in order to harass him.

Letter 14 - 28.6.84 from Albany Prison to E.C.

The Government state that this letter was stopped on 2 July

1984. They have no reason to believe that the applicant was not

informed of the stopping of the letter, but can find no record to

confirm this, the relevant "submitted letters book" having been lost.

Although the reasons for censorship are not clear, because this letter

was to another inmate it is possible that it was stopped under

Standing Order 5 B 26, or for containing cryptic references to

individuals, and, in particular, to "methods" used by staff, contrary

to Standing Order 5 B 34 e.

The applicant claims that he was not informed of the stoppage

at the time, which was allegedly illegal, the reasons now given by the

Government for censorship being a mere cover up.

2. Relevant domestic law and practice

The Government

The rules in England and Wales governing the stopping of

prisoners' correspondence are set out in prison Standing Order 5.

Standing Order 5 was revised in 1981 in the light of the relevant

provisions of the Convention and the Commission's Report in the case

of Silver and Others v. the United Kingdom.

Circular Instruction 34/1981, issued on 31 August 1981 to

accompany the new Standing Order 5 operative as of 1 December 1981,

provides as follows:

"When a letter has been stopped the inmate should be informed

without delay that it has been stopped, told the reason ....

and given the opportunity to rewrite the letter. The fact

that he has been so told should be recorded." (Part B

paragraph 12)

The previous Standing Order 5, which was in force when the

first two letters were stopped, contained a similar provision, but did

not require staff to record that a prisoner had been told.

Unfortunately, in the case of a number of the letters covered

by the application the record required by the Circular Instruction was

either not made, or cannot be traced. However where it has been

recorded that a letter has not been sent and that a further letter was

issued in its place (a rewrite), then that is in effect a record that

the inmate was told of the censorship of the first letter. A prisoner

would not be issued with a second letter without being told that the

first had been stopped. However the inmate does not always rewrite an

amended version of the stopped letter, so the absence of a record of

the issue of a second letter does not suggest a failure to tell him

that the letter was stopped.

To improve record keeping, the Government intends to issue a

Circular Instruction as to where the record should be made that a

prisoner has been told of a stoppage, and to make better arrangements

for the long-term storage of the relevant records. In addition

instructions will be issued to the effect that letters returned

undelivered by the Post Office should be returned to the prisoner (see

letter 11 above).

The applicant

The applicant has no observations on this aspect of the

Government's submissions.

3. Admissibility and merits

The Government waive objections as to the admissibility of

letters Nos. 1, 2, 5, 6 and 14, but point out that nowadays letters 1

and 5 would not be stopped for the reasons then applying. The

stopping of letters 2 and 6 were apparently administrative errors and

the facts regarding letter 14 are very obscure.

As regards the remaining letters the Government contend that

the complaint of their censorship is inadmissible for the following

reasons:

Letters 3, 7 and 10: Thee letters were stopped for good

reason in accordance with Standing Orders, and the applicant must have

been aware of this since he was permitted to rewrite them.

Letter 4: There is no evidence that this letter was ever

written.

Letters 8 and 9: These letters were stopped under the

simultaneous ventilation rule in accordance with Standing Orders.

In the case of letter 8 there is clear evidence that the applicant was

so informed; in the case of letter 9 it is highly likely that the

applicant was so informed.

Letter 11: This letter was not stopped, but returned by

the Post Office marked "insufficiently addressed".

Letters 12 and 13: These letters were stopped in accordance

with Standing Orders because they contained threats. The applicant

was aware that they had been stopped.

In short, the Government consider that in the case of letters 4

and 11 there was no interference with the applicant's right to respect

for his correspondence contrary to Article 8 para. 1 of the

Convention. In the case of letters 3, 7, 8, 9, 10, 12 and 13 the

interference was justified under Article 8 para. 2, as being in

accordance with the law and necessary in a democratic society for one

or other of the reasons given in Article 8 para. 2.

The Government reserve their submissions on the merits.

The applicant

It is implicit in the applicant's observations on the various

letters that he maintains his claim that all the letters in question

were censored in unjustifiable interference with his right to respect

for correspondence ensured by Article 8 of the Convention.

THE LAW

1. The applicant has complained of the stopping by the English

prison authorities of 14 of his letters, and of not informing him of

their censorship until April 1985 when he petitioned the Home

Secretary with his complaints.

He has invoked 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 has also invoked Article 6 para. 1 (Art. 6-1) of the Convention in

respect of the censorship of letters to a solicitor, the Chief Constable

of Liverpool Police, the General Medical Council and a judge (letters 4, 5, 9,

11, 12 and 13 above in THE FACTS). Article 6 para. 1 (Art. 6-1) of the

Convention provides for a fair hearing before an independent and impartial

tribunal in the determination of the individual's civil rights and obligations

or criminal charges against him. An inherent element of this provision is

access to court (Eur. Court H.R. Golder judgment of 21 February 1975 Series A

No. 18 para. 36).

2. The Government have raised no objection to the admissibility of

the applicant's complaints in respect of the following 5 letters:

17.2.80 to G.H. (letter 1 above in THE FACTS)

19.8.80 to H.H. (letter 2)

(undated 1982) to P.H. (letter 5)

(undated) to J.R. (letter 6)

June 1984 to E.C. (letter 14).

However, the Government contend that there has been no

unjustified interference with the other letters in question.

3. The Commission first notes that there is evidence that 12 of

the applicant's letters were stopped by the prison authorities. As

regards these letters,the Commission finds that there has been an

interference with the applicant's right to respect for correspondence

within the meaning of Article 8 para. 1 (Art. 8-1) of the Convention. The

question whether that interference was in accordance with the law, and

necessary in a democratic society for one or more of the reasons laid

down in Article 8 para. 2 (Art. 8-2), is one which raises complex issues of law

and fact warranting an examination on the merits (cf. Eur. Court H.R.

judgment of Silver and Others of 25 March 1983, Series A No. 61, and

Comm. Report 11.10.80).

4. The Commission next notes that the applicant's letter of

23.11.83 to the General Medical Council (letter No. 11 above in THE

FACTS) was posted but returned by the Post Office marked

"insufficiently addressed", of which fact the applicant was not

informed at the material time. The Commission considers that although

there was no decision to stop this letter, the failure by the prison

authorities to inform the applicant of its return and to give him an

opportunity to complete the address, constitutes an interference with his right

to respect for correspondence under Article 8 para. 1 (Art. 8-1) of the

Convention. Whether that interference finds justification in the second

paragraph of Article 8 (Art. 8) is a question which raises complex issues of

law and fact also necessitating an examination on the merits.

5. Finally, the Commission observes that there is no record of

the censorship of one of the two undated 1982 letters to P.H.,

solicitor (letter No. 4 above in THE FACTS). Although the prison

records in the present case are apparently incomplete, the Commission

nevertheless finds the applicant's claims in respect of this letter

vague and unsubstantiated. Accordingly his complaint about its

alleged censorship must be rejected as being manifestly ill-founded,

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

For these reasons, the Commission

DECLARES ADMISSIBLE, without prejudging the merits of the

case, the applicant's complaint that 13 of his letters were censored

by the prison authorities;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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GRACE v. THE UNITED KINGDOM

GRACE v. THE UNITED KINGDOM

LEXI