FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35757/06 by Jeffrey Shane WATKINS against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 6 October 2009 as a Chamber composed of:

Lech Garlicki , President, Nicolas Bratza , Giovanni Bonello , Ljiljana Mijović , David Thór Björgvinsson , Ledi Bianku , Mihai Poalelungi , judges, and Fatoş Aracı , Deputy S ection Registrar ,

Having regard to the above application lodged on 24 August 2006,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Jeffrey Shane Watkins, is a British na tional who was born in 1962 and is currently serving a life ‑ sentence in a prison in Rugby . He was represented before the Court by Mr E. Abrahamson, a lawyer practising in Liverpool . The United Kingdom Government (“the Government”) were represented by their Agent, Mr D. Walton of the Foreign and Commonwealth Office, London .

The facts of the case, as submitted by the parties, may be summarised as follows .

1. The interception of the applicant ’ s correspondence

Between 1 May 1998 and 5 December 2000 the applicant was engaged in a variety of legal proceedings, actual or contemplated, which necessitated correspondence with various legal advisers, courts and other bodies. For the first part of this period he was detained at prison W. and in September 1999 he was moved to prison F.

On 16 September 1998, whilst the applicant was being detained in Prison W., he asked the officer on duty for his mail and was told that unless he opened the letters in that officer ’ s presence he would not be allowed to have them. The applicant pointed out that he was entitled to take his legal correspondence unopened unless the governor had reasonable cause to suspect an illicit enclosure, but the officer refused to give it to him. The officer proceeded to inform the applicant that he would be referring the letters to the principal officer in his wing.

On 17 September 1998 another prison officer summoned the applicant to his office and told him that there were two legal letters for him. Each envelope was marked with a reference to Rule 37A of the Prison Rules 1964 (“the Rule,” later replaced by Rule 39 of the Prison Rules 1999, see Relevant Domestic Law below) and each bore a franked strip containing details of the solicitor from whom the correspondence originated. The officer pulled out legal paperwork from a larger envelope which had already been opened. When the applicant complained, the officer told him that the envelope was already open when he had entered the office. The officer then inspected the contents of the envelope before he handed the envelope and the legal papers over to the applicant. The officer then picked up a smaller envelope, opened it, and inspected its contents before handing it over. When the applicant protested about the breach of the applicable Rule, the officer laughed and said “So report me to John Major” (the British Prime Minister between 1990 and 1997). The following day the applicant made a formal complaint about the matter which led to the promulgation of a notice to staff drawing attention to the effect of the Rule in question.

On 5 October 1998 the applicant noticed that his name was on a board indicating that he had received mail. When the applicant asked for his mail he was told that there was a letter for him marked with reference to the Rule, but the officer on duty refused to hand it over to him unless he was willing to open it in his presence. Later that day another officer called the applicant and informed him that there was a letter for him. The officer then proceeded to rip the letter open. When the applicant asked him why he was doing this, the officer told him that the new notice mentioned above only applied to outgoing mail. The applicant made a complaint ten days later.

2. The proceedings in the County Court

On 5 December 2000, whilst the applicant was pursuing County Court proceedings against one of the prison officers, that particular officer opened two letters marked “Durham County Court” addressed to the applicant without the latter ’ s knowledge or consent. The officer then handed them to the applicant already opened.

The applicant made several complaints to the effect that his correspondence, both outgoing and incoming, was being treated by prison officers in a manner that conflicted with the requirements of the Rule.

The applicant found his attempts to pursue the matter both through the formal prison complaints systems and the Prisons Ombudsman unsatisfactory, and he was eventually granted legal aid to bring an action for damages in the courts.

On 15 July 2003 the County Court gave judgment refusing the applicant ’ s claims for damages for misfeasance in public office against the Home Office and 14 named prison officers. The judge found that most of the prison officers had committed a breach of the Rule but that they had not acted in bad faith. He found further that some misunderstandings had arisen in prison W. from the fact that although the prison governor had notified both prisoners and prison staff on 21 September 1998 about the effect of the Rule, he had overlooked the fact that the letters which a court sent to a prisoner bore the name of the court on the envelope but contained no reference to Standing Order 5 (see Relevant Domestic Law below). Moreover, the judge was satisfied that some of the officers had opened the relevant letters accidentally and in other cases he ascribed the breach of the Rule to inadequate training. Therefore, the applicant ’ s claims against those officers failed as bad faith was an essential ingredient of the tort of misfeasance in public office.

Though the County Court judge found that three prison officers had, on the balance of probabilities, acted in bad faith when dealing with the applicant ’ s legally privileged correspondence in breach of the Rule, he was not satisfied that the applicant had suffered any loss or damage as a result. In particular, the judge stated that at its highest, the applicant ’ s case was that he had suffered embarrassment and injury to his sense of pride and dignity. Without minimising in any way the effect of the breaches of confidentiality in issue, the judge found that the reactions suffered by the applicant came nowhere near to mental, still less physical injury. Neither had there been any allegation of financial loss or actual prejudice to his position in any of the litigation in which he was engaged. Furthermore, having listened to the evidence and seen the applicant in the witness box, it was considered that he had not been particularly embarrassed or humiliated. In sum, the applicant seemed to the County Court judge to be “ a man of some intelligence who had acquired some knowledge of the legal process and, without in any way trivialising his complaints or minimising the effect upon him, ... it could be said that in many ways he appeared to thrive on these conflicts.”

3. The appeal proceedings

An application for permission to appeal was made but refused by the County Court judge. The application for leave to appeal was then renewed before the Court of Appeal and permission to appeal was granted on the papers on 17 October 2003. The applicant appealed against the dismissal of his claims against the three officers who had acted in bad faith, contending that the tort of misfeasance in public office was a tort actionable per se , and so capable of being established without proof of damage, or alternatively capable of being established by proof of anxiety and distress falling short of physical or mental injury.

On 20 July 2004 the Court of Appeal gave judgment on the applicant ’ s appeal against the County Court ’ s decision of 15 July 2003. The applicant ’ s appeal was allowed on the ground that, acting in bad faith, the three officers had infringed a constitutional right of such importance, namely, that of unimpeded access to court and access to confidential legal advice, that the applicant ’ s cause of action in misfeasance in public office was complete even without proof of damage. The Court of Appeal held that the County Court judge ’ s conclusion on the issue was therefore wrong and that the applicant was entitled at least to nominal damages against the officers who had acted in bad faith. The Court of Appeal further stated that it was for the trial judge and not itself to determine whether exemplary damages should be awarded.

The applicant ’ s appeal was allowed, a nominal award of GBP 5 (British pounds sterling) was entered against the three defendants who had been found to have acted in bad faith and the case was remitted back to the County Court judge to determine whether to make an exemplary award against any of the defendants and if so, for assessment of the sums to be awarded. The Court of Appeal also granted the Home Office leave to appeal to the House of Lords on condition that it paid the applicant ’ s costs irrespective of the outcome.

4. The proceedings before the House of Lords

On 29 March 2006 the House of Lords allowed the Home Office ’ s appeal and restored the judgment of the County Court judge. The House of Lords found that, though in the present context the unlawfulness of what was done to interfere with the applicant ’ s enjoyment of his right to confidential legal correspondence was clear, the House should not take the novel step of introducing into the tort of misfeasance in public office a right to damages (based on the importance of the constitutional right infringed) in the absence of material damage to the victim. It was noted in this regard that the great weight of authority treated damage as an element of the tort. Furthermore, it was considered that the applicant had legal remedies available to him, namely, judicial review against prison officers who acted in breach of the applicable rules (even in the absence of bad faith) and the prison governors. Moreover, it was suggested that errant officers would be susceptible to disciplinary sanctions and that failure to initiate such proceedings could also on appropriate evidence be challenged by judicial review, or alternatively that the officers in question might well be indictable for the common law offence of misconduct in public office.

The House of Lords also considered that any breach of a fundamental human or constituti onal right would be covered by s ection 7 of the Human Rights Act 1998. I t could reasonably be inferred that Parliament had intended that infringements of the core human and constitutional rights protected by the Act should be remedied under it and not by the development of parallel remedies. As it was held that there was no existing right to damages where misfeasance in public office had caused no material damage to the victim, the European Court of Human Rights could be expected to award compensation for non-pecuniary loss in cases where the evidence showed an egregious and deliberate abuse of power by a public officer.

Though ultimately agreeing with the majority that the appeal should be allowed, Lord Walker of Gestingthorpe commented that if the Home Office were successful in their appeal, the applicant would have no private law remedy at his disposal and that judicial review would not offer him a prospect of damages. He considered that judicial review, with the preliminary filter of the need for leave and little prospect of obtaining an order for cross-examination of witnesses, was hardly a satisfactory substitute for an action in the county court.

The House of Lords ultimately ruled that the tort of misfeasance in public office was never actionable without proof of material damage as its function was to compensate the claimant and not punish the public officer. Consequently, it was held that the Home Office ’ s appeal should be allowed, that the Court of Appeal ’ s order should be set aside save as to costs and that the order of the County Court judge should be restored.

B. Relevant domestic law and practice

Rule 39 of the Prison Rules 1999 (SI 1999/728) which replaced rule 37A of the Prison Rules 1964 (SI 1964/388) in identical terms provides as follows:

“(1) A prisoner may correspond with his legal adviser and any court and such correspondence may only be opened, read or stopped by the governor in accordance with the provisions of this rule.

(2) Correspondence to which this rule applies may be opened if the governor has reasonable cause to believe that it contains an illicit enclosure and any such enclosures shall be dealt with in accordance with the other provision of these Rules. (3) Correspondence to which this rule applies may be opened, read and stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature.

(4) A prisoner shall be given the opportunity to be present when any correspondence to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped.

(5) A prisoner shall on request be provided with any writing materials necessary for the purposes of paragraph (1).

(6) In this rule, "court" includes the European Commission of Human Rights, the European Court of Human Rights and the European Court of Justice; and ‘ illicit enclosure ’ includes any article possession of which has not been authorised in accordance with the other provisions of these Rules and any correspondence to or from a person other than the prisoner concerned, his legal adviser or a court. ”

Standing Order 5 includes a direction that an envelope carrying correspondence between an inmate and his/her legal adviser should be marked with a reference to the above Rule. It further explains the effect of the new Rule as follows:

“Prison Rule 37A [now Rule 39] ... applies to all correspondence between an inmate and his or her legal adviser or a court (including the European bodies referred to in the Rules). Such correspondence carries special privileges under the Rules and may not be read or opened for examination unless in accordance with instructions laid down by Prison Service Headquarters...”

Home Office instruction (113/1995, 21 December 1995) to prison governors requires them to protect such correspondence against inadvertent or deliberate opening by, in particular, the training of staff handling prisoners ’ mail.

Part 54.3 of the Civil Procedure Rules and section 31 (4) of the Supreme Court Act 1981 contain the relevant rules governing the bringing of a claim for damages in tort in the same proceedings as a judicial review claim. Claims for public law remedies (such as a mandatory order, prohibitory order or quashing order), injunctions or declarations may be made by way of judicial review proceedings. Damages may also be claimed alongside such remedies provided that a cause of action for such damages exists under the law of tort.

Since the coming into force of the Human Rights Act 1998 (“HRA 1998”) on 2 October 2000, a court may grant such relief or remedy within its powers as it considers just and appropriate for breaches of Convention rights (section 8 of HRA). In deciding whether to award damages, or the amount of any award, the court must take into account the principles applied by this Court in relation to the award of compensation under Article 41 of the Convention.

COMPLAINTS

The applicant complain s under Article 8 § 1 of the Convention that the interception of his legal mail constituted an unlawful interference with his right to respect for his correspondence. He claims that the interference with his correspondence was in bad faith and in deliberate breach of the applicable rules.

The applicant further complains under Article 6 of the Convention that the interference with his legally privileged correspondence deprived him of his right of access to court.

The applicant finally complains under Article 13 of the Convention that he had no effective domestic remedy available to him. He alleges in this regard that the domestic courts were unable to give a declaration as to infringements of rights under the Convention until the Human Rights Act 1998 came into force on 2 October 2000.

THE LA W

The applicant complained that the interference with his legal correspondence whilst he was in prison was in breach of the applicable domestic r ules and violated his right to respect for his correspondence . He further complained that he had no effective domestic remedy at his disposal. He relied on Articles 8 § 1, 6 and 13 of the Convention.

1. The Government ’ s submissions

The Government submitted that the applicant ’ s complaints were inadmissible under Article 35 of the Convention as he had failed to exhaust domestic remedies; or that alternatively he was no longer a victim. They argued in this regard that the domestic acknowledgment of the breach of the applicant ’ s rights constituted sufficient redress as the award of monetary damages were not appropriate in the circumstances of his case.

As regards any incidents postdating 2 October 2000, the Government submitted that the applicant could have made a claim for a breach of his Convention rights under the Human Rights Act 1998 (“HRA 1998”). To the extent that cross-examination was required on issues of disputed fact, the court could have made provision for it (reference was made to the case of R. (Wilkinson) v. the Responsible Medical Officer Broadmoor Hospital ([2001] Court of Appeal, Civil Division (England Wales) 1545), at §§ 23-25, 53, 55, 62 and 82-84 ). The dom estic court would have the power both to make a declaration and, if appropriate, to award damages on the principles applied by this Court.

The Government further contended that judicial review proceedings would also, in the circumstances of the applicant ’ s case, have been an effective remedy in respect of the incidents occurring prior to 2 October 2000. The substance of the applicant ’ s Convention rights under Article 8 in respect of his legal correspondence was reflected in Rule 39 of the Prison Rules 1999. The applicant ’ s claim was not that Rule 39 of the Prison Rules 1999 failed to comply with his Convention rights, but rather that the Rule itself had been breached by prison officers. The Government argued that judicial review was the natural means through which the applicant could have tested whether Rule 39 had been breached, and by which he could have obtained declaratory relief in relation to any such breach and if appropriate an order of the court prohibiting such breaches in the future.

Though an application for judicial review would not have permitted the applicant to recover damages in respect of breaches of Convention rights occurring prior to 2 October 2000 where he was unable to show any breach of private law rights entitling him to damages, the Government asserted that his case could not appropriately have led to an award of damages on the principles applicable under Article 41 of the Convention. In the great majority of cases where this Court had found violations of Article 8 of the Convention in relation to prisoners ’ correspondence, it had considered the finding of a violation in itself to constitute just satisfaction for the applicants concerned and had held that no damages should be payable ( Silver v. the United Kingdom (cited above) § 10; Campbell a nd Fell v. the United Kingdom , judgment of 28 June 1984, Series A no. 80 § 141; McCallum v. the United Kingdom , judgment of 30 August 1990, Series A no. 183 § 37; Campbell v. the United Kingdom, judgment of 25 March 1992 , Series A no. 233 § 70; and William Faulkner v. the United Kingdom , judgment of 4 June 2002, no . 37471/97, § 18).

Where awards of non-pecuniary damages had been made by this Court, they had been modest awards made in circumstances in which particular aggravating factors were present. Consequently, the non-availability of damages in the applicant ’ s case was immaterial to the adequacy of judicial review as a remedy for the purposes of the Convention.

2 . The applicant ’ s submissions

In his brief observations in reply, the applicant reiterated that his right to respect for his correspondence had been breached in contravention of the applicable domestic rules. He asserted that without a financial penalty being imposed on the Government by way of non-pecuniary compensation being awarded to him for the breaches, there was no incentive for the Government to ensure that legally privileged correspondence would not be interfered with in the future.

3 . The Court ’ s assessment

The Court considers that it is not required to determine whether the applicant has exhausted all remedies in domestic law since the application is inadmissible for the following reasons.

The Court reiterates that it falls first to the national authorities to redress any violation of the Convention. In this regard, the question whether an applicant can claim to be the victim of the violation alleged is relevant at all stages of the proceedings under the Convention (see, inter alia , Siliadin v. France , no. 73316/01, § 61, ECHR 2005-VII). A decision or measure favourable to the applicant is not in principle sufficient to deprive him of his status as a “victim” for the purposes of Article 34 of the Convention unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention (see, inter alia , Eckle v. Germany , judgment of 15 July 1982, Series A no. 51, p. 30, § 66; Dalban v. Romania [GC], no. 28114/95, § 44, ECHR 1999-VI; and Siliadin , cited above, § 62).

As to the redress which has to be afforded to an applicant in order to remedy a breach of a Convention right at national level, the Court has generally considered this to be dependent on all the circumstances of the case, having regard, in particular, to the nature of the Convention violation found. In cases in which the Convention violation has caused significant pecuniary or non-pecuniary damage to the applicant, the Court has further found it decisive for an applicant ’ s loss of victim status that the latter had received the payment of compensation which was reasonable as to quantum (compare Busa v. Hungary , no. 28453/95, Commission decision of 15 January 1997, in respect of a complaint under Article 3 against excessive use of force by the police; Murillo Saldias and Others v. Spain (dec.), no. 76973/01, 28 November 2006, concerning a breach of the administrative authorities ’ positive obligations under Article 2; and Dalban , cited above, § 44, in respect of a conviction in breach of Article 10).

The Court notes that the domestic courts unequivocally acknowledged that the opening of the applicant ’ s correspondence was unlawful as contravening Rule 39 of the Prison Rules, which Rule reflected the substance of the applicant ’ s rights under Article 8 of the Convention in respect of the control of legal correspondence.

The question remains whether sufficient redress was afforded to the applicant in respect of the breach of his Convention rights.

The Court notes in the first place that the County Court judge found that the applicant had not suffered any loss or damage as a result of the breaches and that there had been no allegation of actual prejudice to the applicant ’ s position in any of the litigation in which he was engaged. The Court observes in this regard that a nu mber of the letters in question appear to have been opened in the applicant ’ s presence and their contents inspected but not read by the prison officers before they were handed over to the applicant.

The Court further notes that, while in certain cases where it has itself found a violation of Article 8 arising out of the control of prisoners ’ correspondence, the Court has held that the finding constitutes sufficient just satisfaction for the breach, (see, for example, Stojanović v. Serbia , no 34425/04, § 85, 19 May 2009 and Pisk-Piskowski , no. 92/03, § 33, 14 June 2005), the normal practice in such has been to award a modest sum in respect of non-pecuniary damage (see, for example, Wenerski v. Poland , no. 44369/02, § 85, 20 January 2009 and Pawlak v. Poland , no. 39840/05, § 71, 15 January 2008). However, in those cases, unlike the present, there was no finding by the domestic courts, and no admission on the part of the authorities at domestic level, that the applicant ’ s Convention rights had been violated or that the control of the applicant ’ s correspondence was otherwise unlawful.

In the instant case, the Court observes that the applicant ’ s submission that an award in respect of non-pecuniary damage should be made is founded on an argument that, without a financial penalty being imposed, there would be no “incentive” for the Government to ensure that legally privileged correspondence would not be interfered with in the future. However, the Court observes that, as emphasised by the House of Lords, any breach of a Convention right occurring after the coming into effect of the HRA 1998 (including the opening of the applicant ’ s own letters in December 2000) would be covered by Article 7 of that Act and that an award of compensation against the Government could be expected where the evidence showed an egregious and deliberate abuse of power by a public officer.

The Court accordingly finds that, in the particular circumstances of the present case, the acknowledgment of the breach of the applicant ’ s rights in the past, combined with the existence since 2000 of a remedy in respect of any simil ar breach, afforded the applicant sufficient redress even in the absence of a financial award.

It follows that the applicant can no longer claim to be the victim of a violation of his rights under Articles 8, 6 and 13 within the meaning of Article 34 of the Convention and that his application must be rejected pursuant to Article 35 § 4.

For these reasons, the Court unanimously

Declares the application inadmissible.

Fatoş Aracı Lech Garlicki Deputy Registrar President