PARTLY DISSENTING OPINION OF JUDGE SIR JOHN FREELAND

1. I regret that I have found it necessary to part company with the majority of the Court on the question whether the interference with the applicant ’ s correspondence with his solicitor gave rise to a violation of Article 8 (art. 8).

2. In the first place, I have felt unable to agree that there is no reason to distinguish between the different categories of correspondence with lawyers. In my view, the analytical approach of the Commission in treating as two separate categories ( i ) correspondence with a solicitor concerning contemplated or pending legal proceedings and (ii) general correspondence with a solicitor is both consistent with the earlier case-law and correct.

3. As to the substantive law applying to these categories, although my conclusions with regard to category (ii) are, for the reasons which I shall give below, at variance both with those of the Commission and with those of the majority of the Court, I would not dissent from the proposition that, because of the link with the principle of effective access to court under Article 6 (art. 6), correspondence in category ( i ) should not be opened by the prison authorities unless in any particular case they have reasonable cause to believe that the privileged channel is being abused. I accept that to include within this category contemplated proceedings, as well as pending proceedings, would be to require for the United Kingdom a further relaxation of the regime of control going beyond that introduced in the wake of the friendly settlement in the McComb case and would present the authorities with some difficulties of definition and identification; but I am not persuaded that such difficulties would be insuperable. I also accept that any such enlargement of the privileged channel of communication would involve some increase in the risk of abuse - but not, I consider, to an extent that should be intolerable.

4. If I were satisfied that it had been established that a particular item of correspondence between the applicant and his solicitor indeed concerned either contemplated or pending proceedings and had been opened by the prison authorities without their having had reasonable cause to suspect abuse, I would therefore have been prepared to vote for a finding of violation of Article 8 (art. 8) in this respect. That is, however, not the case. The applicant has relied on generalised assertions about interference with his correspondence with his solicitor and has neither produced nor identified any particular letter which could be established to have related to contemplated or pending legal proceedings and to have been opened by the prison authorities without reasonable cause for suspicion of abuse. Any privilege from disclosure attaching to such a letter would be his and could be waived by him; and his failure to be specific in this context contrasts with the particularity of at least part of his complaints in relation to correspondence with the Commission, where he submits copies of letters from the Commission which he says were opened (and the Government accept that some of them were). It also places the Government at a disadvantage in evaluating the allegations made against them and responding to the case which needs to be met; and it deprives the Court of the opportunity to consider in detail the situation with regard to individual letters, as it has done in the earlier cases concerning the application of Article 8 (art. 8) to interference with prisoners ’ correspondence. To my mind, more should be required before a State is found to be in violation of its obligations under the Article (art. 8) (the view of the majority that there is no reason to distinguish between the different categories of correspondence with lawyers of course enables it to be satisfied by the assertions made).

5. General correspondence with a solicitor, as distinct from correspondence relating to contemplated or pending proceedings, may include communications about any among an enormously varied and extensive range of personal or financial subjects - for example, property management - where the link with the principle of effective access to court is absent and the need for confidentiality is no more cogent, by the nature of the subject-matter, than in the case of correspondence with any other person of affairs who might be dealing with it. I accept, of course, that the relationship between lawyer and client is, for good reasons, normally to be regarded as privileged. I do not, however, find in Article 8 (art. 8) or in the previous case-law anything which seems to me to give that privilege so overriding a force as to limit the discretion of prison authorities, in relation to general correspondence between a convicted prisoner and his solicitor, to opening a letter only in an exceptional case where they have reasonable cause to believe it contains prohibited matter. Indeed, it seems quite clear from its judgment in the case of Silver and Others (Series A no. 61, in particular p. 39, para. 101) that the Court there considered that, making due allowance for their margin of appreciation, the authorities were entitled as a justifiable measure of control over prisoners ’ correspondence (and, by inference, irrespective of the extent to which they might have had prior cause for suspicion of abuse) to open and read - and in the circumstances of that case even to stop - a letter from a prisoner to his solicitor which did not relate to contemplated or pending proceedings.

6. I confess that I am not persuaded of the existence of any compelling reason for going further now. The responsibility on prison authorities to maintain security and order in prisons, and to prevent the instigation by prisoners of activities outside prison such as threats or violence against witnesses or the unlawful disposal of proceeds of crime, is a very heavy one. In the present case, the judge at the applicant ’ s trial recommended that he "be kept in prison for at least twenty years in order to safeguard members of the public for at least that period of time"; and the applicant was for most of the relevant period held as a Category A prisoner (that is, as one of "the group of inmates requiring the highest degree of security which will consist of those who must in no circumstances be allowed to get out, whether because of national security considerations or their violent behaviour is such that members of the public or the police would be in danger of their lives if they were to get out"). To require that the measures of control applicable in a prison where the inmates include prisoners such as the applicant must treat general correspondence with a solicitor no differently, so far as justification for opening is concerned, from correspondence relating to contemplated or pending proceedings seems to me to strike the balance between the protection of prison security, on the one hand, and the respect due to confidentiality, on the other, too much in favour of the latter. To do so would in my view be to underestimate the practical risks, to which the Government have drawn attention, of creating a privileged channel of communication so wide in scope as virtually to invite abuse.

7. Nor do I think it a sufficient answer to say, on the question of possible abuse, that solicitors are officers of the court and are subject to disciplinary sanctions for professional misconduct. Quite apart from the fact that disciplinary sanctions on a solicitor after the escape of a ruthless and violent prisoner might well come nowhere near to offsetting the harmful consequences to the public of such an escape, it is unnecessary even to go to the extent of postulating a failure of professional competence or integrity on the part of a solicitor. As Sir Basil Hall and Mrs Liddy pointed out in their partial dissent from the opinion of the Commission, use may be made of solicitors to convey information without their being aware of its significance. There is also the possibility of abuse, without the knowledge of a solicitor, as the result of, for example, pressure on a junior non-professional employee in the firm ’ s office who has access to its stationery.

8. I also differ from the majority as to the weight to be attached to the fact that the applicant was entitled to have visits in prison from his solicitor, which would take place out of the hearing of a prison officer. The essential element of the right of access to legal advice - the opportunity to consult in confidence with a lawyer - was therefore available to him in an effective and practical manner. Certainly there would be some inconvenience and additional expense if the lawyer had to travel a substantial distance to the prison for a consultation, as Mr Carroll had to do on his visits to the applicant in Peterhead. But the degree of burden which this imposes does not seem excessive in relation to the effects of other restrictions on freedom of movement which flow from the need to constrain a prisoner who is in a high-security risk category. If the applicant wished, visits could in any event be arranged from a solicitor practising locally (I should perhaps add here that I do not think it could reasonably be argued that the right of access to legal advice extends to an entitlement to receive advice from a particular lawyer of the client ’ s own choosing and only from him or her, whatever the physical situation of the client and that lawyer may be).

9. In sum, although the case here differs from that of category ( i ) in that there is ample ground for proceeding on the footing that there has been interference, under the restrictions in force, with general correspondence between the applicant and his solicitor, I have concluded that such interference was justifiable as "necessary in a democratic society" within the meaning of Article 8 para. 2 (art. 8-2), just as it was (and here I agree with the majority) "in accordance with the law" and legitimate in its aim. It therefore did not give rise to a violation of the Article.

10. As for correspondence with the Commission, I agree that the applicant has not substantiated his complaint of interference with his outgoing letters. In the case of incoming mail, I have after some initial hesitation concurred in the conclusion that the opening of letters from the Commission to him gave rise to a violation of Article 8 (art. 8). There must admittedly be some additional risk arising from the existence of a further channel of communication in which letters will not be liable to be opened unless in any particular instance there is reasonable cause to believe that the privilege is being abused. The view which I have reached, however, is that in the case of correspondence with the Commission the extent of that additional risk would be so slight that the routine opening of letters from it cannot be adequately justified as "necessary in a democratic society".

[*]  The case is numbered 52/1990/243/314.  The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).  The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.

[*]   As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990 .

[*]  Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 233) of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.