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AS TO THE ADMISSIBILITY OF

Application No. 15817/89

by Douglas WAKEFIELD

against the United Kingdom

The European Commission of Human Rights sitting in private on

1 October 1990, the following members being present:

MM. C.A. NØRGAARD, President

J.A. FROWEIN

F. ERMACORA

E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.C. GEUS

A.V. ALMEIDA RIBEIRO

M.P. PELLONPÄÄ

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 2 October 1989

by Douglas WAKEFIELD against the United Kingdom and registered on

23 November 1989 under file No. 15817/89;

Having regard to the report provided for in Rule 47 of the

Rules of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a citizen of the United Kingdom born in 1947

and detained in HM Prison Full Sutton, Yorkshire, where he is serving

two separate life sentences for murder (1974) and manslaughter

(1979). He is a high security risk "category A" prisoner. This is

his second application to the Commission. His first concerned an

alleged denial of writing facilities for his autobiography and the

postponement of any parole date for him. The Commission rejected

these claims under Articles 10 and 3 of the Convention as manifestly

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

(No. 14972/89, Dec. 12.7.89).

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

may be summarised as follows.

On 6 December 1988 the applicant petitioned the Home Secretary

with a request that he be either permanently or temporarily

transferred to a Scottish prison to enable his fiancée, who lives in

Scotland, to visit him. His fiancée has three young children and

lives on social security benefits. She does not, therefore, have the

money to visit him in Full Sutton. The applicant submits that his

relationship with his fiancée is very sound and has great promise for

the future. She represents no security risk for the prison

administration. Moreover, the applicant has established strong ties

with his fiancée's children. The applicant has no one else visiting

or writing to him.

In June 1989 the Home Office telephoned the applicant's prison

to ask if he still wanted a Scottish Prison transfer. A speedy reply

was required and the applicant immediately confirmed his transfer

request. However, three months later the applicant received a

petition-reply, dated 7 September 1989, refusing any transfer without

giving reasons for this decision.

The Government provided the Commission with the following

reasons for the refusal:

"The Government are normally prepared to grant transfers

provided that the inmate has at least six months to serve,

that he was normally resident in Scotland at the time of his

offence or has close family ties there, and that he appears

unlikely, if transferred, to disrupt or attempt to disrupt

any prison establishment or otherwise pose an unacceptable

risk to security. Any exceptional circumstances may also be

taken into account...

The applicant's request for permanent transfer was refused

because on the evidence available both the Home Office and

the Scottish Home and Health Department were not satisfied

that he had established sufficiently strong links with

Scotland during his time in custody. The applicant was not

ordinarily resident in Scotland prior to his offence and, to

the best of the Government's knowledge, had not lived there

at all. He had no close family residing there. The

applicant had met his fiancée on only one occasion, although

they had written a considerable number of letters. The

applicant's circumstances therefore did not meet the

criteria referred to above and it was considered that there

were not strong compassionate or other compelling grounds

for transfer.

A temporary transfer to receive accumulated visits was

refused because it was thought that the applicant would pose

an unacceptable risk in terms of security and management in

Scotland. Where category A inmates are involved, a request

for temporary transfer must be considered with particular

care because of the risk involved in any movement of an

inmate requiring conditions of maximum security. Particular

security risks arise with this type of transfer because the

inmate will know roughly when the return journey is likely

to take place; moreover he may deliberately prompt his

immediate return by misbehaviour with a view to an escape

attempt in transit.

However, in recognition of the efforts made by the applicant

over the last few years to improve his behaviour, the Prison

Service are currently reviewing his application for

temporary transfer."

The applicant has now been informed by the prison

administration that if he wishes to go to a Scottish prison for a

month of visits he has to comply with the strict security conditions

which would normally apply to a double escapee as there is no

equivalent to his category A classification in Scotland. He is

hesitant about accepting these conditions which he deems unreasonable

in view of the fact that he has never tried to escape.

COMPLAINTS

The applicant complains that the refusal of a transfer, even

temporary, under reasonable conditions, to facilitate visits from his

fiancée, constitutes inhuman and degrading treatment, as it may destroy

his de facto family ties. He also complains of a denial of his right

to respect for private and family life and home. He invokes Articles

3 and 8 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 20 October 1989 and

registered on 23 November 1989. On 20 December 1989, pursuant to

Rule 40 para. 1 of the Rules of Procedure, the Rapporteur requested

the Government to provide information about the refusal of the

applicant's transfer to a Scottish prison. The Government provided

this information (above in THE FACTS) on 26 February 1990, to which

the applicant replied on 12 April 1990. On 5 June 1990 the applicant

informed the Commission of the present proposals and conditions upon

which he could be temporarily transferred to a Scottish prison.

THE LAW

The applicant has complained that the original refusal and

present conditions placed on the proposal to transfer him to a

Scottish prison so that he can be visited by his fiancée constitute

violations of Articles 3 and 8 (Art. 3, 8) of the Convention.

Article 3 (Art. 3) of the Convention prohibts, inter alia,

inhuman and degrading treatment and Article 8 para. 1 (Art. 8-1) of

the Convention ensures, inter alia, the right to respect for private

and family life. The second paragraph of Article 8 (Art. 8) provides

for certain limited exceptions to that right, such as measures

necessary in a democratic society for the prevention of disorder or

crime.

The Commission finds that the handling of the applicant's

request for a transfer to a Scottish prison, whilst frustrating for

the applicant, does not amount to the severe level of ill-treatment

proscribed by Article 3 (Art. 3) of the Convention. The Commission

also finds that the relationship between the applicant and his fiancée

cannot be said to amount to the kind of family life protected by

Article 8 (Art. 8) of the Convention. For such family life to arise

more substantial ties than the one meeting and correspondence in this

case must exist. Moreover, there is no evidence in the case-file of

any family relationship between the applicant and his fiancée's

children.

However, the Commission considers that the relationship

between the applicant and his fiancée does fall within the scope of

the notion of private life envisaged by Article 8 (Art. 8) of the Convention.

It is of the opinion that Article 8 (Art. 8) requires the State to assist

prisoners as far as possible to create and sustain ties with people

outside prison in order to promote prisoners' social rehabilitation.

In this context the location of the place where a prisoner is detained

is relevant. Accordingly the Commission finds that the refusal to

allow the applicant a permanent transfer to Scotland to be near his

fiancée constitutes an interference with the applicant's right to

respect for private life ensured by Article 8 para. 1 (Art. 8-1) of

the Convention.

The question arises whether that interference was justified

for one or more of the reasons laid down in the second paragraph of

Article 8 (Art. 8). In this context the Commission must take account

of the serious nature of the offences for which the applicant was

convicted and his classification as a category A, high security risk.

With the applicant's background it is conceivable that certain

restrictions on his transfer may be necessary to pursue the legitimate

aim of preventing disorder or crime, within the meaning of Article 8

para. 2 (Art. 8-2) of the Convention. The Commission has also taken

account of the extent of the applicant's relationship with his fiancée

and the Government's present proposal to transfer the applicant

temporarily to a Scottish prison, under strict security conditions, to

facilitate the fiancée's visits. The Commission finds that in the

circumstances of the case this proposal is proportionate to the

aforementioned aim. It concludes, therefore, that the interference

with the applicant's right to respect for private life is justifiable

as 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.

It follows from the above considerations that the application

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

(Art. 27-2) of the Convention.

For these reasons, the Commission, by a majority,

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

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WAKEFIELD v. THE UNITED KINGDOM

WAKEFIELD v. THE UNITED KINGDOM