FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 56745/00 by Wayne Thomas BLACK against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 27 September 2005 as a Chamber composed of:

Mr J. Casadevall , President , Sir Nicolas Bratza , Mr G. Bonello , Mr M. Pellonpää , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego , judges , and Mrs F. E lens-Pas sos , Deputy Section Registrar ,

Having regard to the above application lodged on 1 December 1999 ,

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, Wayne Thomas Black, is a United Kingdom national, who was born in 1967 and is currently in prison in HMP Longmartin. He was represented before the Court by Mr S. Creighton, a lawyer practising in London .

A. The circumstances of the case

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

On 26 July 1995 the applicant was sentenced to 20 years ’ imprisonment for armed robbery. On 8 January 1996 he was sentenced to consecutive sentences of 3 years ’ imprisonment for escaping lawful custody and of one year for assault. He is eligible for consideration for release on parole on licence on 5 September 2006 and for au tomatic release on licence on 5 September 2010 .

On 29 May 1997 he was escorted to the searching area for high risk prisoners following a prison visit. Two officers conducted the strip search. During that search an item fell from the applicant ’ s anus. The applicant immediately picked it up and re-inserted it into his anus. The officers then ordered the applicant to hand over the object and the applicant refused to do so stating “I cannot do that”. He was charged with disobeying a lawful order contrary to Rule 47(19) of the Prison Rules 1964 (applicable at the relevant time).

On 31 May 1997 the hearing of the charge before the prison Governor commenced and the applicant was granted an adjournment to obtain legal advice. On 10 June 1997 he applied to the Governor to be permitted legal representation at the hearing. The hearing re-commenced on 12 June 1997 . The request for legal representation was repeated but was refused by the Governor.

The applicant ’ s defence to the charge was that the item was a suppository. Evidence was adduced that no suppositories had been prescribed to the applicant in the 2 years prior to the incident and that the applicant had not complied with the officers ’ order. He was found guilty as charged. He was awarded 5 additional days ’ detention together with exclusion from work and forfeiture of privileges for 10 days.

The applicant applied to the Home Office to have the Governor ’ s ruling quashed on the basis that he could not have handed over the item as it had already been re-inserted in his anal area. Hi s application was rejected on 1 August 1997 .

He then complained to the Prisons Ombudsman who gave his opinion and recommendation on 9 August 1997 . He was not persuaded that the adjudication had properly investigated the sequence of events during the search: if it was the case that the applicant had already re-inserted the item when he was asked for it, the prison officer ’ s request to retrieve it may not have been lawful. He recommended that the Governor ’ s finding be quashed.

By letter dated 5 January 1998 the prison service confirmed that the Prisons Ombudsman ’ s recommendation had not been accepted.

On 17 April 1998 the applicant applied for leave to apply for judicial review of the decision of the Governor. A hearing took place in the High Court on 21 June 1999 . The prison service submitted that effective drugs ’ control in prison required them to have the power to conduct strip searches including making a request to remove items suspected of being secreted internally. The applicant provided medical evidence to the effect that such removal risked being harmful to him. The High Court rejected the application finding, inter alia , that, depending as it does on the circumstances of the case, an order to a prisoner to remove an item from his anus will not necessarily be unlawful. The applicant did not appeal.

B. Relevant domestic law and practice

The Court refers to its outline of domestic law and practice in the Ezeh and Connors v. the United Kingdom judgment ( Ezeh and Connors v. the United Kingdom [GC], nos. 39665/98 and 40086/98, § 31-62 , ECHR 2003 ‑ X ).

Rule 39 of the Prison Rules 1964 (applicable at the relevant time) provided that prisoners could be searched as often as a Governor deemed necessary and that such searches were to be conducted in as seemly a manner as was consistent with discovering anything concealed. Prison guidelines added that a physical search could only be conducted by a medical officer with the consent of a prisoner.

Rule 47(19) of those Prison Rules provided that it was an offence against prison discipline to disobey a lawful order.

COMPLAINTS

The applicant complained under Articles 3 and 8 about the order to remove the item secreted in his anal passage.

He further complained that his trial by the prison Governor violated Article 6 because he was not allowed legal representation, because of the role of the Governor and because of the absence of a public pronouncement of the decision.

In addition, he complained under Article 5 § 1 about the five additional days detention awarded by the Governor.

Finally, he invoked Article 13, in conjunction with Articles 5 and 6 of the Convention, in that he had no effective domestic remedy.

THE LAW

A. Article 3 of the Convention

This Article provides (in so far as relevant):

"No one shall be subjected to ... inhuman or degrading treatment or punishment."

The applicant submitted that the order that he remove the item secreted in his anus violated Article 3 of the Convention because of the potential for injury that he faced in complying with that order.

The Court notes that no force was ever used on the applicant. The Court does not consider that the applicant has demonstrated that the order to remove from his anus an item he himself had just placed was treatment attaining the minimum level of severity which would fall within the scope of Article 3 of the Convention. This complaint must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

B. Article 8 of the Convention

This Article provides (in so far as relevant):

“1. Everyone has the right to respect for his private ... life.

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 ... for the prevention of disorder or crime...”

The applicant submitted that the order that he remove the item secreted in his anus constituted an interference with his rights under Article 8. He did not dispute that this interference was prescribed by law, or that it pursued a legitimate aim but claimed that it was not necessary in a democratic society. He pointed to the potential medical dangers of complying with the order. He also relied on the evidence of a former Assistant Prisons Ombudsman to the effect that such orders had no real deterrent effect because prisoners would rather face the lesser penalty of disobeying a lawful order than hand over the item and face a more severe penalty for possessing an unauthorised article.

The Court recalls that even a minor medical intervention might constitute an interference with a person ’ s right to respect for private life (see Galloway v. United Kingdom (no. 34199/96 , Commission decision of 9 September 1998 and Peters v. the Netherlands (no. 21132/93 , Commission decision of 6 April 1994 , Decisions and Reports (DR) 77A, p. 75). The Court notes that, in this case, there was no interference with the applicant ’ s physical integrity but is prepared to assume, in the light of its conclusion below, that the order itself constituted an interference with the applicant ’ s private life.

It was not disputed, and the Court sees no reason to find otherwise, that this interference was “in accordance with the law” in that Rule 39 of the Prison Rules 1964 provided that a prisoner could be searched. The Court further finds that the interference pursued the legitimate aim of the prevention of disorder and crime, a point also not disputed by the applicant.

The Court further recalls that in the above-mentioned Peters case, the Commission found that the necessity for an interference with the rights of a convicted prisoner had to be appreciated “with reference to the ordinary and reasonable requirements of imprisonment.” In the Galloway case, the Commission also reiterated that the availability of drugs in prison was a considerable problem for the authorities and that random drugs testing was a valid way of combating it. The Court considers that the same can be said of random drugs searches.

The present case involved a drugs search, the conduct of which the applicant does not take issue. During that search an item fell out of the applicant ’ s anus. The applicant has not explained why, if the item in question was merely a suppository as he alleged, he did not hand it over to be inspected before re-inserting it in his anus. The Court is satisfied that, given the seriousness of the problem of drugs in prison, the order to remove the item applicant from his anus (which item which had just fallen out and which the applicant himself had replaced without handing it over for inspection), can be reasonably be considered as necessary in a democratic society for the prevention of disorder or crim e within the meaning of Article 8 § 2 of the Convention. The suggestion that the penalties for disobeying an order did not have a sufficiently deterrent effect (on prisoners hiding unauthorised items) does not render the order a disproportionate interference.

It follows that this complaint must be rejected as being man ifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention.             

C. Article 6 §§ 1 and 3 of the Convention

This Article provides (in so far as relevant):

“1. In the determination of ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...

3. Everyone charged with a criminal offence has the following minimum rights:...

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”

The applicant argued that, in the light of the judgment in Ezeh and Connors v. the United Kingdom ( [GC], nos. 39665/98 and 40086/98, ECHR 2003 ‑ X ) , Article 6 applied to his adjudication proceedings. He contended that Article 6 had been violated because he was not allowed legal representation (Article 6 § 3(c)), because of the role of the Governor (Article 6 § 1) and because of the absence of a public pronouncement of the decision (Article 6 § 1).

The Government accepted that Article 6 applied to the adjudication and, further, that the complaints about the role of the Governor and the lack of legal representation were admissible.

However, they submitted that Article 6 § 1 was not violated by the fact that the adjudication decision was not announced publicly. They relied on Campbell and Fell v. the United Kingdom ( judgment of 28 June 1984 , Series A no. 80 § 91), submitting that the requirement of public pronouncement should not be interpreted literally. They pointed out that the applicant was entitled to a copy of the record of the adjudication, including the Governor ’ s decision; that the applicant was able to complain about the decision to the Prisons Ombudsman or bring judicial review proceedings; that various independent bodies (such as representatives of the Prison Ombudsman, the Chief Inspector of Prisons, and the prison ’ s Board of Visitors) could have attended the hearing unannounced; and that prisoners in general had not indicated any desire to have the outcome of their disciplinary hearings published. Given the above, the failure to pronounce the decision publicly did not violate Article 6 § 1 of the Convention.

The applicant replied that the requirement to pronounce adjudication decisions publicly was only qualified when publicity would prejudice the interests of justice. He contended that the Campbell and Fell case supported his complaint. He submitted that judicial review was not a sufficient mechanism for making adjudication decisions public because it was not the same as an appeal. The only “appeal” procedure was the right to review by the Secretary of State, which would not result in the publication or public pronouncement of the decision. He also pointed out that none of the independent bodies, referred to by the Government, had a day to day role in attending adjudications. The present case was distinguishable from B. and P. v. the United Kingdom (nos. 36337/97 and 35974/97 , ECHR 2001 ‑ III ) because it fell within the criminal as opposed to the civil sphere. He disputed the Government ’ s suggestion that prisoners had not expressed a general desire for adjudication decisions to be made public and he contended that, in any case, there was a societal interest in the public pronouncement of adjudication decisions. Finally, he argued that, in the absence of public pronouncement of prison adjudications, it was not possible to ensure that findings of guilt and punishments in prison adjudication proceedings were consistent and fair.

The Court considers that these complaints raise complex and serious issues under Article 6 §§ 1 and 3 of the Convention which require determination on the merits. It follows that they cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

D. Article 5 of the Convention

This Article provides (in so far as relevant):

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person following conviction by a competent court...”

The applicant argued that his detention for five days beyond his automatic release date with no determination of his detention by a court was in breach of Article 5 § 1 of the Convention.

In its Ezeh and Connors ’ judgment, the Court held (op. cit., § 122):

“The Court ... considers, as did the Chamber, that the effect of the 1991 Act was to introduce more transparency into what was already inherent in the system of grants of remission. While it abandoned the term “loss of remission” in favour of “awards of additional days”, the 1991 Act embodied in law what had already been the reality in practice. Accordingly, any right to release did not arise until the expiry of any additional days awarded under section 42 of the 1991 Act. The legal basis for detention during those additional days continued therefore to be the original conviction and sentence.”

Accordingly, the legal basis of the applicant ’ s detention during th e five additional days was not the sentence imposed by the Governor but rather the original conviction and sentence of the trial court whose competence the applicant did not dispute.

As a result, this complaint must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 and inadmissible within the meaning of Article 35 § 4 of the Convention.

E . Article 13 of the Convention

This Article provides (in so far as relevant):

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority...”

The applicant submitted that the procedures available to him to challenge the prison adjudication proceedings were inadequate to satisfy Article 13 of the Convention. He submitted that judicial review did not allow the facts or the merits of the case to be reconsidered.

For the reasons given above, the Court does not consider that the applicant had an arguable claim for a violation of Articles 5 of the Convention. Accordingly, in so far as he is complaining under Article 13 in conjunction with Article 5, this complaint must be rejected as manifestly ill ‑ founded within the meaning of Article 35 § 3 of the Convention ( Boyle and Rice v. the United Kingdom , judgment of 27 April 1988, Series A no. 131, § 52) and inadmissible within the meaning of Article 35 § 4 of the Convention.

His complaint under Article 6 concerned prison adjudication proceedings which he alleged were determinative of a “criminal charge” against him. In such a case, Article 6 is the lex specialis in relation to Article 13, the latter of which has less stringent requirements ( Yankov v. Bulgaria , no. 39084/97, § 150 , ECHR 2003 ‑ XII (extracts) ) . As a result, in so far as he is complaining under Article 13 in conjunction with Article 6, this complaint must also be rejected as manifestly ill-founded within the meaning of Article 35 § 3 and inadmissible within the meaning of Article 35 § 4 of the Convention.

For these reasons, the Court unanimously

Decides to declare admissible the complaints made under Articles 6 §§ 1 and 3 of the Convention;

Decides to declare the remainder of the application inadmissible.

Françoise E lens-Pas sos Josep Casadevall                Deputy Registrar President