European Court of Human Rights

Subsequently, Mr. F. Gölcüklü and Mr. Thór Vilhjálmsson, substitute judges, took the respective places of Mrs. Bindschedler-Robert, whom the President had exempted from sitting on the case, and Mr. Bernhardt, who was prevented from taking part in the further consideration of the case (Rules 22 § 1 and 24 §§ 1 and 4).

The Government’s memorial was received at the registry on 2 October 1981. On 4 December, the Secretary to the Commission, who had informed the Registrar on 14 October that the Delegates did not themselves wish to reply in writing, transmitted to the Court observations on the memorial, which had been submitted to the Delegates by the applicants’ lawyers.

There appeared before the Court:

- for the Government:

       Mrs. A. Glover, Legal Adviser,

               Foreign and Commonwealth Office,                                         Agent,

       Mr. S. Brown,

       Mr. N. Bratza, Barristers-at-Law,                                            Counsel,

       Mrs. S. Evans,

       Mr. C. Osborne,

       Miss V. Dews, Home Office,

       Mr. R. Phillips, Treasury Solicitor’s Office,                            Advisers;

- for the Commission:

       Mr. J. Fawcett,

       Mr. F. Ermacora,                                                                 Delegates,

       Mr. A. Lester, Q.C.,

       Mr. M. Beloff, Q.C.,

       Mr. B. Raymond,

       Mr. S. Grosz, Solicitors,

                            assisting the Delegates (Rule 29 § 1, second sentence, of    

                            the Rules of Court).

The Court heard addresses by Mr. Brown for the Government and by Mr. Fawcett, Mr. Ermacora and Mr. Lester for the Commission, and also replies to questions put by two of its members.

On the same date, the President directed that the Government should have until 22 November to reply in writing to the said memorial, a time-limit which he subsequently extended at the Government’s request to 14 January 1983. The reply was received at the registry on the last-mentioned date.

On 25 January 1983, the President directed that the Delegates of the Commission should have until 14 March 1983 to file any observations which they or the applicants might wish to make on the aforesaid reply.

AS TO THE FACTS

I.   FACTS PARTICULAR TO THE INDIVIDUAL APPLICANTS

A. Mr. Silver

This applicant did not complain through the internal prison channels (see paragraphs 51-53 below) of the stopping of his correspondence; he claimed that the prison governor prevented him from raising each incident by way of petition to the Home Secretary because he, Mr. Silver, already had petitions outstanding at the material times.

B. Mr. Noe

This applicant apparently complained through the internal prison channels of this action, other than the stopping of his letter no. 9, but without success.

C. Mrs. Colne

This applicant raised the matter, both directly and through a Member of Parliament, with the Home Secretary, but without success.

D. Mr. Tuttle

This applicant apparently complained, in a petition to the Home Secretary, of the stopping of his correspondence, but without success.

E. Mr. Cooper

This applicant apparently complained unsuccessfully through the internal prison channels of the stopping of 6 of the 14 letters, namely nos. 20, 22, 23, 24, 26 and 27.

F. Mr. McMahon

This applicant submitted three petitions to the Home Secretary, of which one was successful: it was admitted that a letter to the Archbishop of Canterbury (no. 33) should not have been stopped as the addressee was a Member of Parliament; the letter was accordingly sent and Mr. McMahon withdrew his complaint in this respect. The reasons for the stopping or withholding of the remaining 11 letters are indicated in paragraphs 59, 61, 66 and 70 below.

G. Mr. Carne

This applicant apparently complained, either through the internal prison channels or by having the matter raised with the Parliamentary Commissioner for Administration, of the stopping of each of these letters, but to no avail.

II.   DOMESTIC LAW AND PRACTICE

The rules made by the Home Secretary currently in force, a number of which relate to prisoners’ correspondence, are the Prison Rules 1964, as amended ("the Rules").

At the time of the events giving rise to this case and until 30 November 1981, both Orders and Instructions contained, in addition to directives on the control of prisoners’ correspondence, internal rules and guidance of a general nature concerning the day to day administration of the prison. The Orders and Instructions were made available to Members of both Houses of Parliament for reference but not to the public or prisoners, although the latter received, by means of cell cards, information about certain aspects of the control of correspondence.

With effect from 1 December 1981, the directives on prisoners’ correspondence were substantially revised. In addition, revised Orders relating to correspondence have been published in their entirety, matters of a management or administrative nature which do not concern a prisoner’s entitlement to correspond and were considered inappropriate for publication having been eliminated from the Orders and embodied in Instructions. The Rules themselves have not been amended, although the Government indicated at the hearing before the Court that as soon as practicable Rule 34(8) (see paragraph 29 below) would be repealed in so far as it affected correspondence.

(a) the relevant Orders and Instructions in force until 30 November 1981; and

(b) the changes that took effect after that date.

A. General provisions

"33(1) The Secretary of State may, with a view to securing discipline and good order or the prevention of crime or in the interests of any persons, impose restrictions, either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons.

 ...

(3) Except as provided by these Rules, every letter or communication to or from a prisoner shall" (or, with effect from 1 June 1974, "may") "be read or examined by the governor or an officer deputed by him, and the governor may, at his discretion, stop any letter or communication on the ground that its contents are objectionable or that it is of inordinate length."

B. Provisions concerning the identity of correspondents

"33(2) Except as provided by statute or these Rules, a prisoner shall not be permitted to communicate with any outside person, or that person with him, without the leave of the Secretary of State.

34(8) A prisoner shall not be entitled under Rule 34" - which regulates the quantity of correspondence - "to communicate with any person in connection with any legal or other business, or with any person other than a relative or friend, except with the leave of the Secretary of State."

1. Position prior to 1 December 1981

In addition, standing leave had been granted for correspondence falling into certain special categories, as explained in paragraphs 31-36 below.

(a) Correspondence with legal advisers

"A prisoner who is a party to any legal proceedings may correspond with his legal adviser in connection with the proceedings and unless the Governor has reason to suppose that any such correspondence contains matter not relating to the proceedings it shall not be read or stopped under Rule 33(3) of these Rules."

"Subject to any directions of the Secretary of State, a prisoner may correspond with a solicitor for the purpose of obtaining legal advice concerning any cause of action in relation to which the prisoner may become a party to civil proceedings or for the purpose of instructing the solicitor to issue such proceedings."

Order 17A provided, inter alia, that:

(i)   the inmate had to have sought a solicitor’s advice before he would be permitted to institute proceedings;

(ii)  at each stage a written application, with reasons, had first to be made to the prison governor for the necessary facilities; they had to grant immediately, except that, in the case of prospective civil proceedings against the Home Office "arising out of or in connexion with" the imprisonment, the "prior ventilation rule" (see paragraph 47 below) generally applied.

Correspondence in this category was otherwise subject to the restrictions on contents mentioned at paragraphs 41-47 below.

(b) Correspondence with Members of Parliament

(c) Correspondence with Consular and Commonwealth officials

(d) Correspondence with certain organisations

Correspondence in this category was otherwise subject to the restrictions on contents mentioned at paragraphs 41-47 below.

(e) Applications to the European Commission of Human Rights

2. Position with effect from 1 December 1981

(a) recipients of correspondence (other than spouses) who have requested that no further letters be sent;

(b) other prisoners, who are not relatives, where there is reason to believe that correspondence would seriously impede rehabilitation or where the prevention of communication is desirable in the interests of security or good order or discipline;

(c) ex-prisoners, where there is reason to believe that correspondence would seriously impede rehabilitation;

(d) a person (other than a close relative) or organisation believed to be planning or engaged in activities that seriously threaten the security or good order of a prison establishment.

C. Provisions concerning the quantity of correspondence

"34(1) An unconvicted prisoner may send and receive as many letters ... as he wishes within such limits and subject to such conditions as the Secretary of State may direct, either generally or in a particular case.

(2) A convicted prisoner shall be entitled

(a) to send and to receive a letter on his reception into a prison and thereafter once a week;

 ...

(3) The governor may allow a prisoner an additional letter ... where necessary for his welfare or that of his family.

(4) The governor may allow a prisoner entitled to a visit to send and to receive a letter instead.

 ...

(6) The visiting committee or board of visitors" (or, with effect from 1 January 1972, "The board of visitors") "may allow a prisoner an additional letter ... in special circumstances ...

(7) The Secretary of State may allow additional letters ... in relation to any prisoner or class of prisoners."

1. Position prior to 1 December 1981

The prison authorities’ discretion under Rules 34(3), (6) and (7) to allow further letters was exercised where possible.

These quantitative restrictions did not apply to remand prisoners (Rule 34(1)), but they were in most other respects subject to the same regulations on correspondence as convicted prisoners.

2. Position with effect from 1 December 1981

D. Provisions concerning the contents of correspondence

"34(8) A prisoner shall not be entitled under Rule 34" - which regulates the quantity of correspondence - "to communicate with any person in connection with any legal or other business ... except with the leave of the Secretary of State."

1. Position prior to 1 December 1981

(i)   objectionable references to persons in public life;

(ii)  discussion of crime and criminal methods or of the offences of others;

(iii)  any complaint about the courts, the police and the prison authorities that was a deliberate and calculated attempt to hold them up to contempt;

(iv)  threats of or incitement to violence;

(v)   material intended for publication or for use on wireless or television (this rule was relaxed as regards certain specialised publications);

(vi)  grossly improper language;

(vii)  statements about private individuals which were patently scandalous or libellous or otherwise deliberately calculated to do them harm;

(viii) begging requests for money or valuable property;

(ix)  complaints about prison treatment;

(x)   allegations against prison officers;

(xi)  attempts to stimulate public agitation or petition.

Similar regulations applied to incoming letters (Order 5A 26(4) d.).

As recorded in paragraphs 32 and 35 above, the prohibition on the inclusion of complaints about prison treatment or allegations against prison officers did not apply to certain correspondence with legal advisers (after 6 August 1975) and with specified organisations (after 26 August 1977), provided always that the "prior ventilation rule" (see paragraph 47 below) had been satisfied.

(b) Until 28 November 1975, a broadly similar list of prohibited contents applied to letters to Members of Parliament, except that they could contain complaints about prison treatment or against prison staff in respect of which the "prior ventilation rule" had been observed. Thereafter, a letter to a Member of Parliament would have been stopped only if it included an unventilated complaint of that kind (Order 5C, as amended by Instruction 62/1975). At the time of the change of practice, a notice summarising the regulations concerning letters to Members of Parliament was issued for the information of prisoners. It contained the following passage:

"A complaint or request about prison treatment should be made to the Governor, Board of Visitors or visiting officer, or by petition to the Home Secretary .... A complaint against a member of staff should be made to the Governor. A complaint on these matters may not be made to a Member of Parliament before official action is complete."

(c) Letters from convicted prisoners who were foreign nationals or citizens of the Irish Republic or a Commonwealth country to Consular or Commonwealth officials were subject to the same rules as to contents as letters to Members of Parliament until 3 September 1975. On that date this restriction was abolished (Order 5A 20, as amended by the Instruction of 3 September 1975).

2. Position with effect from 1 December 1981

(a)   The prohibition on representations about trial, conviction or sentence (see paragraph 43 above) is abolished.

(b)   Provisions similar to the earlier Order 5A 24 (designed to prevent the evasion or circumvention of the regulations - see paragraph 44 above) remain in force.

(c)   The list of prohibited contents (see paragraph 45 (a) above) has been revised; the main items which may now not be included in incoming or outgoing letters may be summarised as follows:

(i)   material which would jeopardise prison security;

(ii)  material which would assist or encourage the commission of a disciplinary or criminal offence;

(iii)  material which could jeopardise national security;

(iv)  descriptions of the making of certain destructive devices;

(v)   certain obscure or coded messages;

(vi)  threats of violence or damage to property likely to induce fear in the recipient;

(vii)  blackmail or extortion;

(viii) certain indecent or obscene material;

(ix)  information which would create a clear threat or present danger of violence or physical harm to any person;

(x)   complaints about prison treatment, in respect of which the "simultaneous ventilation rule" (see paragraph 49 below) has not been observed;

(xi)  material initiating a private prosecution;

(xii)  certain specified material intended for publication or for use by radio or television;

(xiii) in the case of a convicted prisoner, material constituting the conduct of a business activity, which expression is defined so as to exclude certain specified personal transactions.

The foregoing list does not apply to correspondence with Consular and Commonwealth officials or, with the exception of item (x), to correspondence with Members of the United Kingdom Parliament (new Orders 5D5 and 5E6).

As regards item (xiii) above, it remains the basic rule that inmates may not conduct any business activity from prison, but this no longer applies to unconvicted prisoners who may correspond without restriction about such matters (revised Orders 1C 4 and 1C 5).

E. Censorship practice (before and after 1 December 1981)

A prisoner whose letter is stopped on account of its contents will be given the opportunity of rewriting it. Where the cause of the stoppage is the addressee’s identity, the prisoner may use his entitlement to that letter to write to another person.

F. Complaints concerning censorship (before and after 1 December 1981)

1. Internal channels of complaint

(a) The Board of Visitors

(b) Petitions to the Home Secretary

On a petition being made by a prisoner, complaining of a decision of the prison authorities to stop or censor his correspondence, the Home Secretary would, if he concluded that the relevant Orders had not been properly interpreted or applied by the prison authorities, issue directions to them to secure compliance. Although it is possible for him to depart from the Orders in particular cases, this is likely to occur only rarely, if at all, since their very purpose is to ensure uniformity of practice and to avoid arbitrary interference with correspondence.

Prior to 1 December 1981, directives concerning the submission of petitions were contained in Orders 5B 1-16. It was, in particular, provided that, with certain exceptions, a prisoner could not petition if and so long as he was awaiting a reply to an earlier petition (Order 5B 12(2)).

With effect from 1 December 1981, the provisions of Order 5B 12(2) have been relaxed by new Orders 5C9 and 5C10. A further petition may now be submitted if a month has elapsed since the submission of the previous petition. Moreover, even though an earlier petition be outstanding, a prisoner may petition forthwith on certain specified matters, including interference with his correspondence.

2. The Parliamentary Commissioner for Administration

Until 23 August 1979, prisoners could communicate with the Ombudsman only through a Member of Parliament who was willing to assist. Although this remains the normal method of approach, they may now write directly; however, their letters to the Ombudsman are subject to the same restriction with regard to the simultaneous ventilation of complaints about prison treatment as correspondence with Members of Parliament (see paragraphs 48 and 49 above) and he still cannot proceed with an investigation unless the prisoner’s constituency Member so requests.

3. Application to the domestic courts

The Court notes in this context that in Raymond v. Honey 1982 1 All England Law Reports 759, Lord Wilberforce pointed out that it was a principle of English law that "a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication".

4. Malicious or groundless complaints

III.  THE APPLICATION IN THE PRESENT CASE OF DOMESTIC LAW AND PRACTICE ON THE CONTROL OF CORRESPONDENCE

The Government informed the Court that the total number of letters sent and received by prisoners in England and Wales in a year was of the order of ten million. An indication of the total volume of the correspondence of the applicants in this case who were in prison is given by the fact that, in the under-mentioned periods (being periods for which records are most readily available), the number of letters written by them and posted by the prison authorities in the form in which they were written was: Mr. Silver - 419 (20 March 1968 to 2 August 1973); Mr. Noe - 149 (14 November 1972 to 15 April 1975, during which time he was at liberty for almost two years); Mr. Tuttle - 94 (2 January to 29 December 1975); Mr. Cooper - 299 (8 August 1974 to 24 June 1976); Mr. McMahon - 492 (5 December 1974 to 9 February 1977); Mr. Carne - 480 (14 October 1974 to 16 June 1976).

The texts of 59 of these letters are set out in Appendix III to the Commission’s report, copies of the remaining 5 not being available. The available letters are those hereinafter referred to by number, the others those referred to solely by date.

A. Provisions concerning the identity of correspondents

Restriction on correspondence other than with a relative or friend (see paragraphs 29-30 above)

(a)   Mrs. Colne’s letters nos. 13, 14 and 15 to Mr. Williams (see also paragraph 16 above);

(b)   Mr. McMahon’s letters nos. 35, 36, 37, 38, 39, 40 and 41 (addressed respectively to a broadcasting association, a barrister, the presenter of a television programme, a journalist, the police officer who had been in charge of the investigation of Mr. McMahon’s case, a professor of law and the Mayor of Islington) and a letter of 31 December 1975 from the same journalist to Mr. McMahon. The applicant had previously exchanged three letters with the barrister in question, who was not known to him, but their correspondence was prohibited when it appeared that it would go further than a general enquiry. Although letter no. 41 was stopped, Mr. McMahon was apparently allowed to write to a local borough councillor.

This restriction was also a subsidiary ground for stopping Mr. Silver’s letter no. 4 and Mr. Carne’s letter no. 48 (see paragraph 68 below).

B. Provisions concerning the contents of correspondence

1. Restriction on communications in connection with any legal or other business (see paragraphs 32, 35, 41 and 46 above)

(b) Mr. Cooper’s letter no. 27 to a solicitor concerning a pending prosecution, which letter also post-dated Instruction 45/1975, was stopped as it was considered that he had already had sufficient facilities to seek legal advice.

(c) The following letters were stopped on the ground of failure to seek the Home Secretary’s prior leave:

(i)   Mr. Noe’s letter no. 10 to a solicitor, which included the following passage: "... the property is going to be lost if you don’t come quickly - It is worth 100 to £125,000 - the equity - after refinancing and allowing good solicitor’s fees - will be £50 to £75,000 - of which you will have a piece also";

(ii)  Mr. Carne’s letter no. 49 to the Devon Crown Court, which contained a request that medical reports produced at his trial be sent to his Member of Parliament.

2. Prohibition on representations connected with the prisoner’s trial, conviction or sentence (see paragraph 43 above)

It was also a subsidiary ground for the stopping of Mr. McMahon’s letters nos. 35 and 37 (see paragraph 59 above).

3. Prohibition on letters evading or circumventing the regulations (see paragraph 44 above)

4. Prohibition on discussion of the offences of others (see paragraph 45 (a), item (ii), above)

5. Prohibition on complaints calculated to hold the authorities up to contempt (see paragraph 45 (a), item (iii), above)

This was also a subsidiary ground for stopping Mr. Carne’s letter no. 51 (see paragraph 68 below).

6. Prohibition on threats of violence and grossly improper language (see paragraph 45 (a), items (iv) and (vi), above)

65.   Mr. Cooper’s letters nos. 28, 29, 30 and 31, all addressed to his parents were stopped on two grounds: that they contained threats of violence and that they employed grossly improper language.

7. Prohibition on material intended for publication (see paragraph 45 (a), item (v), above)

(a)   Mr. Silver’s letter no. 5, addressed to the Advisory Rabbi, The Jewish Chronicle, and seeking dietary advice. The letter was stopped although it was marked "Not for publication" and contained an express request that, because of the rules of the prison, no part of it be published;

(b)   Mr. McMahon’s letters nos. 32, 34 and 42, the first two being addressed to the producer of a television programme and the third to a newspaper.

This was also a subsidiary ground for stopping Mr. McMahon’s letter no. 37 (see paragraph 59 above) and Mr. Carne’s letters nos. 60 and 61 (see paragraph 68 below).

8. Prohibition on the inclusion in letters to legal advisers and Members of Parliament of unventilated complaints about prison treatment (see paragraphs 45 (a) and (b) and 47 above)

(a)   Mr. Noe’s letters nos. 9 and 11;

(b)   Mr. Cooper’s letters nos. 20, 22, 23, 24 and 26, and a further letter of 3 April 1974;

(c)   Mr. Carne’s letters nos. 43, 45, 53, 54, 58 and 59, and further letters of 27 December 1974 and 11 January 1975.

The stopping of letter no. 43, written whilst Mr. Carne was detained on remand, was the subject of an unsuccessful petition to the Home Secretary; the Government subsequently conceded before the Commission that the censorship was erroneous, as the letter could not be said to contain a complaint.

The same prohibition also led to the stopping of Mr. Carne’s letter no. 56, to a solicitor.

Mr. Noe’s letters nos. 9 and 11 were stopped under this rule for the additional reason that the addressee was a barrister as well as a Member of Parliament.

9. Prohibition on the inclusion in general correspondence of complaints about prison treatment (see paragraph 45 (a), item (ix), above)

(a)   Mr. Silver’s letters nos. 1, 2, 3, 4 and 6, no. 4 being addressed to the Chief Rabbi and the remainder to the applicant’s wife. It appears that, one week after the stopping of letter no. 4, which concerned dietary grievances, Mr. Silver was allowed to send a similar letter to the Rabbi;

(b)   Mr. Tuttle’s letter no. 18, to his wife;

(c)   Mr. Carne’s letters nos. 44, 46, 47, 48, 50, 51, 52, 55, 60 and 61, addressed respectively to a Mr. McAndrew (nos. 44 and 50), the National Council for Civil Liberties (nos. 46 and 55), the Howard League for Penal Reform (no. 47), a medical practitioner (no. 48), the Health Service Commissioner (no. 51), the Secretary of the National Association for Mental Health (no. 52) and journalists (nos. 60 and 61). Letters nos. 46, 55 and 47 all pre-dated Instruction 38/1977 (see paragraph 35 above).

10. Prohibition on allegations against prison officers (see paragraph 45 (a), item (x), above)

11. Prohibition on attempts to stimulate public agitation or petition (see paragraph 45 (a), item (xi), above)

12. Miscellaneous

Mr. Cooper’s letters nos. 19, 21 and 25, all addressed to relatives, were stopped on grounds of the general control of "objectionable" letters under Rule 33(3) but without an official explanation being given. The Commission observed that the authority for this action was not clear, beyond the general discretion under the said Rule.

PROCEEDINGS BEFORE THE COMMISSION

On 5 March 1976, 19 December 1975 and 4 October 1977, respectively, the Commission declared inadmissible the applications of Mr. Silver, Mr. Noe and Mr. Cooper in so far as they contained certain additional complaints. On the last-mentioned date, it declared admissible the remainder of those applications and the whole of the other four; previously, on 11 March 1977, it had ordered the joinder of the seven applications in pursuance of Rule 29 of its Rules of Procedure. Subsequently, each applicant also contended that there had been breach of Article 13 (art. 13) on account of the absence of an effective remedy before a national authority in respect of the alleged violations of his or her Convention rights.

Although the next of kin are today to be regarded as having the status of "applicants" (see the Deweer judgment of 27 February 1980, Series A no. 35, pp. 19-20, § 37), for the sake of convenience the present judgment will continue to refer to Mr. Silver as an "applicant".

- by a series of votes (with one exception unanimous), that, save in respect of six letters (namely, Mr. Silver’s letter no. 7, Mr. Cooper’s letters nos. 28-31 and Mr. Noe’s letter no. 12), the censorship of the applicants’ mail by the prison authorities constituted a violation of their right to respect for correspondence, ensured by Article 8 (art. 8) of the Convention;

- that it was not necessary to pursue a further examination of the matter in the light of Article 10 (art. 10);

- unanimously, that there had been a violation of Mr. Silver’s right of access to the civil courts, ensured by Article 6 § 1 (art. 6-1);

- by fourteen votes to one, that the absence of effective domestic remedies for the applicants’ claims under Article 8 (art. 8) constituted a violation of Article 13 (art. 13).

FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT

"(1) With regard to Article 8 (art. 8)

(i)  in so far as the Commission concluded that the facts found disclosed no breach by the United Kingdom of its obligations under Article 8 (art. 8) of the Convention, to confirm and uphold the Commission’s conclusions;

(ii) in so far as the Commission’s conclusions in respect of the issues under Article 8 (art. 8) of the Convention are contested by the United Kingdom Government, to make findings in accordance with the submissions set out in the Government’s memorial;

(iii) in so far as the Commission’s findings of breaches of the Convention are not contested by the United Kingdom Government on the grounds of the changes made by the revised Standing Orders to the practice in the United Kingdom relating to prisoners’ correspondence:

(a) to decide and declare that the facts found disclose no breaches otherwise than as set forth in the report of the Commission;

(b) to take express note in its judgment of the changes made by the revised Standing Orders as remedying the breaches so found by the Commission;

(2) With regard to Article 6 (art. 6)

(i)  to take express note in its judgment of the changes made to the law and practice in the United Kingdom relating to the control of correspondence between prisoners and their legal advisers since the judgment of the Court in the Golder case;

(a) in light of such changes to decline to examine further the claims of breaches of Article 6 (art. 6) of the Convention;

alternatively

(b) to decide and declare that the facts found disclose no breaches by the United Kingdom of its obligations under Article 6 (art. 6) of the Convention otherwise than as set forth in the report of the Commission;

(3) With regard to Article 13 (art. 13)

to decide and declare that the facts found do not disclose a breach by the United Kingdom of its obligations under Article 13 (art. 13) of the Convention, alternatively that such facts would not disclose any such breach after the coming into effect of the revised Standing Orders relating to prisoners’ correspondence."

AS TO THE LAW

I.  THE SCOPE OF THE PRESENT CASE

The applicants criticised the new control system in various respects. The Government, for their part, asked the Court to take note of the changes effected in 1981 and also in 1975 (see paragraph 32 above); although their submissions suggested that the Court should at least take the new regime into account as remedying breaches of the Convention which had previously existed, they stated at the hearings that they were not seeking a ruling on its compatibility with the Convention.

II.  THE ALLEGED VIOLATION OF ARTICLE 6 § 1 (art. 6-1)

"In the determination of his civil rights and obligations or 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."

The Court will confine itself to the 1972 petition: the Commission found it not to have been established that the 1973 petition had been refused and the point was not pursued before the Court.

81. The Government’s principal plea was that the Court should decline to rule on the matter in light of the changes made to the law and practice since the Golder judgment (see, inter alia, paragraph 32 above).

The Court is unable to accept this plea. The changes in question were introduced, firstly, to give effect to the terms of that judgment and, secondly, as a result of the proceedings before the Commission in the present case. Nevertheless, dating as they do from 1975 and 1981, they clearly could not have restored the right claimed by Mr. Silver under Article 6 § 1 (art. 6-1); it is therefore not possible to speak of a "solution", even partial, "of the matter" (see, mutatis mutandis, Rule 47 § 2 of the Rules of Court and the X v. the United Kingdom judgment of 5 November 1981, Series A no. 46, p. 27, § 64). In addition, the memorial of 22 September 1982 (see paragraph 8 above) contains a claim in the name of this applicant for just satisfaction under Article 50 (art. 50) and a determination by the Court of the Article 6 § 1 (art. 6-1) issue may be of relevance in this connection.

III. THE ALLEGED VIOLATION OF ARTICLE 8 (art. 8)

"1. Everyone has the right to respect for his private and family life, his home and 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."

A.  Were the interferences "in accordance with the law"?

1. General principles

The Government accepted that the principles enounced in the said judgment concerning the expression "prescribed by law/prévues par la loi" in Article 10 (art. 10) were also applicable to the expression "in accordance with the law/ prévue par la loi" in Article 8 (art. 8). Indeed, this must be so, particularly because the two provisions overlap as regards freedom of expression through correspondence and not to give them an identical interpretation could lead to different conclusions in respect of the same interference.

A law which confers a discretion must indicate the scope of that discretion. However, the Court has already recognised the impossibility of attaining absolute certainty in the framing of laws and the risk that the search for certainty may entail excessive rigidity (ibid.). These observations are of particular weight in the "circumstances" of the present case, involving as it does, in the special context of imprisonment, the screening of approximately ten million items of correspondence in a year (see paragraph 57 above). It would scarcely be possible to formulate a law to cover every eventuality. Indeed, the applicants themselves did not deny that some discretion should be left to the authorities.

In view of these considerations, the Court points out once more that "many laws are inevitably couched in terms which, to a greater or lesser extent, are vague and whose interpretation and application are questions of practice" (ibid.). And in the present case the operation of the correspondence control system was not merely a question of practice that varied in each individual instance: the Orders and Instructions established a practice which had to be followed save in exceptional circumstances (see paragraphs 26 and 27 above). In these conditions, the Court considers that although those directives did not themselves have the force of law, they may - to the admittedly limited extent to which those concerned were made sufficiently aware of their contents - be taken into account in assessing whether the criterion of foreseeability was satisfied in the application of the Rules.

The Government recognised that the correspondence control system must itself be subject to control and the Court finds it evident that some form of safeguards must exist. One of the principles underlying the Convention is the rule of law, which implies that an interference by the authorities with an individual’s rights should be subject to effective control (see, inter alia, the Klass and others judgment of 6 September 1978, Series A no. 28, pp. 25-26, § 55). This is especially so where, as in the present case, the law bestows on the executive wide discretionary powers, the application whereof is a matter of practice which is susceptible to modification but not to any Parliamentary scrutiny (see paragraph 26 above).

However, the Court does not interpret the expression "in accordance with the law" as meaning that the safeguards must be enshrined in the very text which authorises the imposition of restrictions. In fact, the question of safeguards against abuse is closely linked with the question of effective remedies and the Court finds it preferable to take this issue into account in the wider context of Article 13 (art. 13) (see paragraphs 111-119 below).

2. Application in the present case of the above-mentioned principles

(a) Non-contested items

(a) restriction on correspondence with legal adviser, on the ground that the applicant had already had sufficient facilities to seek legal advice (see paragraphs 32 and 60 above): Mr. Cooper’s letter no. 27;

(b) prohibition on representations connected with the prisoner’s trial, conviction or sentence (see paragraphs 43 and 61 above): Mr. Noe’s letter no. 8 and Mr. McMahon’s letters nos. 35 and 37;

(c) prohibition of grossly improper language (see paragraphs 45 (a), item (vi), and 65 above): Mr. Cooper’s letters nos. 28-31;

(d) prohibition on material intended for publication (see paragraphs 45 (a), item (v), and 66 above): Mr. Silver’s letter no. 5, Mr. McMahon’s letters nos. 32, 34, 37 and 42 and Mr. Carne’s letters nos. 60 and 61;

(e) prohibition on the inclusion in letters to legal advisers and Members of Parliament of unventilated complaints about prison treatment (see paragraphs 45 (a) and (b), 47 and 67 above): Mr. Noe’s letters nos. 9 and 11, Mr. Cooper’s letters nos. 20, 22, 23, 24 and 26 and his further letter of 3 April 1974, and Mr. Carne’s letters nos. 43, 45, 53, 54 and 56 and his further letters of 27 December 1974 and 11 January 1975;

(f) prohibition on the inclusion in general correspondence of complaints about prison treatment (see paragraphs 45 (a), item (ix), and 68 above): Mr. Silver’s letters nos. 1, 2, 3, 4 and 6, Mr. Tuttle’s letter no. 18 and Mr. Carne’s letters nos. 44, 46, 47, 48, 50, 51, 52, 55, 60 and 61;

(g) prohibition on allegations against prison officers (see paragraphs 45 (a), item (x), and 69 above): Mr. Silver’s letter no. 6;

(h) the petition aspect of the prohibition on attempts to stimulate public agitation or petition (see paragraphs 45 (a), item (xi), and 70 above): Mr. McMahon’s letters nos. 32 and 34;

(i) the general control of "objectionable" letters (no official explanation having been given - see paragraph 71 above): Mr. Cooper’s letters nos. 19, 21 and 25.

As regards items (a) and (i), the Commission considered that the actual measure of interference complained of was not foreseeable; in the remaining cases, it considered that the rule under which the stopping was effected could not itself be foreseen.

The Government did not contest these findings on the part of the Commission, and the Court sees no reason to disagree. It therefore holds that the stopping of these letters on the grounds indicated above was not "in accordance with the law".

(b) Contested items

In determining whether the foreseeability criterion was satisfied in this instance, account cannot be taken of the Orders which supplemented Rule 34(8): they were not available to prisoners nor do their contents appear to have been explained in cell cards (see paragraphs 26, 30 and 88 above). However, the wording of Rule 34(8) (see paragraph 29 above) is itself quite explicit: a reader would see not that correspondence with persons other than friends or relatives is allowed subject to certain exceptions but rather that it is prohibited save where the Secretary of State gives leave. Moreover, the Court considers that account should also be taken of Rule 33(2) - which contains a prohibition similar to that found in Rule 34(8) - and of Rule 34(2), from which it would be apparent that there were limits on the quantity of the correspondence of convicted prisoners (see paragraphs 29 and 38 above).

For these reasons, the Court concludes that the interferences in question were "in accordance with the law".

The Court considers that the terms of the notice in question were such as to make those concerned sufficiently aware of the practice in the matter (see paragraph 88 above). The stopping of these letters was therefore a foreseeable application of the Rules and, hence, "in accordance with the law".

(a) restrictions on communications in connection with any legal or other business (see paragraphs 32, 35, 41, 46 and 60 above): Mr. Noe’s letter no. 10, and Mr. Carne’s letters nos. 49 and 57 and his letter of 15 September 1975 to the National Council for Civil Liberties;

(b) prohibition on letters evading or circumventing the regulations (see paragraphs 44 and 62 above): Mr. Silver’s letter no. 1 and Mr. Tuttle’s letter no. 18;

(c) prohibition on discussion of the offences of others (see paragraphs 45 (a), item (ii), and 63 above): Mr. Silver’s letter no. 7;

(d) prohibition on complaints calculated to hold the authorities up to contempt (see paragraphs 45 (a), item (iii), and 64 above): Mr. Tuttle’s letter no. 17;

(e) prohibition on threats of violence (see paragraphs 45 (a), item (iv), and 65 above): Mr. Cooper’s letters nos. 28-31;

(f) Mr. Noe’s letter no. 12, which was delayed pending receipt of instructions from the Home Office (see paragraph 71 above).

The Commission found that each of the above interferences was foreseeable from the text of the Rules and was therefore "in accordance with the law". The applicants disputed this on the ground that the two further requirements which, in their submission, flowed from that expression (see paragraphs 89 and 90 above) had not been satisfied.

In view of the position which the Court has taken in those paragraphs on the applicants’ said submission, it concurs with the Commission’s finding.

B.  Did the interferences have aims that are legitimate under Article 8 § 2 (art. 8-2)?

This matter was not discussed or questioned before the Court. It sees no reason to doubt that each interference had an aim that was legitimate under Article 8 (art. 8).

C.  Were the interferences "necessary in a democratic society"?

1. General principles

(a) the adjective "necessary" is not synonymous with "indispensable", neither has it the flexibility of such expressions as "admissible", "ordinary", "useful", "reasonable" or "desirable" (see the Handyside judgment of 7 December 1976, Series A no. 24, p. 22, § 48);

(b) the Contracting States enjoy a certain but not unlimited margin of appreciation in the matter of the imposition of restrictions, but it is for the Court to give the final ruling on whether they are compatible with the Convention (ibid., p. 23, § 49);

(c) the phrase "necessary in a democratic society" means that, to be compatible with the Convention, the interference must, inter alia, correspond to a "pressing social need" and be "proportionate to the legitimate aim pursued" (ibid., pp. 22-23, §§ 48-49);

(d) those paragraphs of Articles of the Convention which provide for an exception to a right guaranteed are to be narrowly interpreted (see the above-mentioned Klass and others judgment, Series A no. 28, p. 21, § 42).

2. Application in the present case of the above-mentioned principles

(a) Non-contested items

(a) restriction on correspondence other than with a relative or friend (see paragraphs 29-30 and 59 above): Mrs. Colne’s letters nos. 13-15, Mr. McMahon’s letters nos. 35-41 and a letter of 31 December 1975 to him from a journalist, Mr. Silver’s letter no. 4 and Mr. Carne’s letter no. 48;

(b) restriction on communications in connection with any legal or other business (see paragraphs 32, 35, 41, 46 and 6O above): Mr. Cooper’s letter no. 27, and Mr. Carne’s letters nos. 49 and 57 and his letter of 15 September 1975 to the National Council for Civil Liberties;

(c) prohibition on complaints calculated to hold the authorities up to contempt (see paragraphs 45 (a), item (iii), and 64 above): Mr. Tuttle’s letter no. 17 and Mr. Carne’s letter no. 51;

(d) prohibition on the inclusion in letters to legal advisers and Members of Parliament of unventilated complaints about prison treatment (see paragraphs 45 (a) and (b), 47 and 67 above): Mr. Noe’s letters nos. 9 and ll, Mr. Cooper’s letters nos. 20, 22, 23, 24 and 26 and his further letter of 3 April 1974, and Mr. Carne’s letters nos. 43, 45, 53, 54, 56, 58 and 59 and his further letters of 27 December 1974 and 11 January 1975;

(e) the petition aspect of the prohibition on attempts to stimulate public agitation or petition (see paragraphs 45 (a), item (xi), and 70 above): Mr. McMahon’s letters nos. 32 and 34;

(f) prohibition on letters evading or circumventing the regulations (see paragraphs 44 and 62 above): Mr. Silver’s letter no. 1 and Mr. Tuttle’s letter no. 18.

As regards item (f), the Commission considered that the measure, although taken on an intrinsically legitimate ground, was excessive. In the remaining cases, on the other hand, it was the ground itself as well as the measure which did not correspond to a necessity, within the meaning of Article 8 § 2 (art. 8-2); the Commission expressed the same opinion as regards the stopping, on the principal or subsidiary grounds indicated in sub-paragraphs (b), (c), (d), (f) and (g) of paragraph 91 above, of the letters listed in those sub-paragraphs. Finally, the Commission considered that the stopping of Mr. Cooper’s letters nos. 19, 21 and 25 (see paragraph 71 above) was not "necessary".

The Government did not contest these findings on the part of the Commission, and the Court sees no reason to disagree. It therefore holds that the stopping of the letters in question was not "necessary in a democratic society".

(b) Contested items

The Court notes that this letter - written by a prisoner convicted of fraud (see paragraph 13 above) - did not simply concern legal problems but interpretations (see paragraph 60 above).  Without expressing any opinion on the restrictions in force at the relevant time on the conduct by prisoners of business activities in general, the Court considers, making due allowance for the United Kingdom’s margin of appreciation, that the authorities were entitled to think that the stopping of this particular letter was necessary "for the prevention of disorder or crime", within the meaning of Article 8 § 2 (art. 8-2) of the Convention.

In the absence of evidence to the contrary, the Court must assume that Mr. Silver was given the aforesaid opportunity, in accordance with the usual procedure (see paragraph 50 above). Bearing in mind that the other criminals referred to were "category A" prisoners (see paragraph 16 above), the Court finds that the authorities were entitled to think that the stopping of this particular letter was necessary "in the interests of public safety" and "for the prevention of disorder or crime", within the meaning of Article 8 § 2 (art. 8-)2).

The Court agrees with the Commission. Letters nos. 28-30 contained clear threats and letter no. 31 can be regarded as a continuation thereof. In the Court’s judgment, the authorities had sufficient reason for concluding that the stopping of these letters was necessary "for the prevention of disorder or crime", within the meaning of Article 8 § 2 (art. 8-2).

The Court is of the view that when in any particular instance subordinate prison authorities are in doubt as to how they should exercise their supervisory functions regarding prisoners’ correspondence, they must be able to seek instructions from higher authority. In the case of Mr. Noe’s letter no. 12, the prison authorities found it necessary in the light of the law and practice applicable at the time to refer the letter to the Home Secretary for instructions; he decided that it should not be stopped. In these circumstances and bearing in mind that the subject-matter of the letter was not really urgent, the Court does not consider that the resultant delay of three weeks in despatching the letter was so serious as to constitute a violation of Article 8 (art. 8).

D. Conclusions on Article 8 (art. 8)

On the other hand, the stopping of the 57 remaining letters was not "necessary in a democratic society" (see paragraph 99 above); there has therefore been a violation of Article 8 (art. 8) in each case.

IV. THE ALLEGED VIOLATION OF ARTICLE 10 (art. 10)

Neither Government nor applicants dissented from this opinion, with which the Court concurs.

V.  THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)

"Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity."

A. Article 13 taken in conjunction with Article 6 § 1 and Article 10 (art. 13+6-1, art. 13+10)

- as regards Mr. Silver’s complaint under Article 6 § 1 (art. 6-1) concerning the refusal of his 1972 petition (see paragraph 12 above), no separate issue arose under Article 13 (art. 13);

- its opinion concerning Article 10 (art. 10) (see paragraph 107 above) rendered it unnecessary to examine under Article 13 (art. 13) the Article 10 (art. 10) aspects of the applicants’ complaints.

B. Article 13 taken in conjunction with Article 8 (art. 13+8)

The Commission, having examined various possible channels of complaint, came to the conclusion that there was no effective domestic remedy and, hence, a violation of Article 13 (art. 13). The Government requested the Court to hold that the facts of the case disclosed no breach of that provision or, alternatively, that they would disclose no such breach after the coming into effect of the revised Orders.

l12. Having held that the scope of the present case does not extend to the correspondence control system in force since December 1981 (see paragraph 79 above), the Court is unable to examine the Government’s alternative plea.

(a) where an individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention, he should have a remedy before a national authority in order both to have his claim decided and, if appropriate, to obtain redress (see the above-mentioned Klass and others judgment, Series A no. 28, p. 29, § 64);

(b) the authority referred to in Article 13 (art. 13) may not necessarily be a judicial authority but, if it is not, its powers and the guarantees which it affords are relevant in determining whether the remedy before it is effective (ibid., p. 30, § 67);

(c) although no single remedy may itself entirely satisfy the requirements of Article 13 (art. 13), the aggregate of remedies provided for under domestic law may do so (see, mutatis mutandis, the above-mentioned X v. the United Kingdom judgment, Series A no. 46, p. 26, § 60, and the Van Droogenbroeck judgment of 24 June 1982, Series A no. 50, p. 32, § 56);

(d) neither Article 13 (art. 13) nor the Convention in general lays down for the Contracting States any given manner for ensuring within their internal law the effective implementation of any of the provisions of the Convention - for example, by incorporating the Convention into domestic law (see the Swedish Engine Drivers’ Union judgment of 6 February 1976, Series A no. 2O, p. 18, § 50).

It follows from the last-mentioned principle that the application of Article 13 (art. 13) in a given case will depend upon the manner in which the Contracting State concerned has chosen to discharge its obligation under Article 1 (art. 1) directly to secure to anyone within its jurisdiction the rights and freedoms set out in section I (see the above-mentioned Ireland v. the United Kingdom judgment, Series A no. 25, p. 91, § 239).

The Board of Visitors cannot enforce its conclusions (see paragraph 52 above) nor can it entertain applications from individuals like Mrs. Colne who are not in prison.

As regards the Parliamentary Commissioner, it suffices to note that he has himself no power to render a binding decision granting redress (see paragraph 54 above).

In this connection, the applicants stressed that the Convention, not being incorporated into domestic law, could not be directly invoked before the English courts; however, they acknowledged that it was relevant for the interpretation of ambiguous legislation, according to the presumption of the latter’s conformity with the treaty obligations of the United Kingdom.

In the Court’s view, to the extent that the applicable norms, whether contained in the Rules or in the relevant Orders or Instructions, were incompatible with the Convention there could be no effective remedy as required by Article 13 (art. 13) and consequently there has been a violation of that Article (art. 13).

To the extent, however, that the said norms were compatible with Article 8 (art. 8), the aggregate of the remedies available satisfied the requirements of Article 13 (art. 13), at least in those cases in which it was possible for a petition to be submitted to the Home Secretary (see paragraph 116 above): a petition to the Home Secretary was available to secure compliance with the directives issued by him and, as regards compliance with the Rules, the English courts had the supervisory jurisdiction described in paragraph 117 above.

VI. THE APPLICATION OF ARTICLE 50 (art. 50)

"If the Court finds that a decision or a measure taken by a legal authority or any other authority of a High Contracting Party is completely or partially in conflict with the obligations arising from the present Convention, and if the internal law of the said Party allows only partial reparation to be made for the consequences of this decision or measure, the decision of the Court shall, if necessary, afford just satisfaction to the injured party."

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Holds that the refusal of Mr. Silver’s petition of 20 November 1972 to the Home Secretary gave rise to a violation of Article 6 § 1 (art. 6-1) of the Convention;

2.  Holds that, with the exception of Mr. Silver’s letter no. 7, Mr. Noe’s letters nos. 10 and 12 and Mr. Cooper’s letters nos. 28 to 31, the stopping or delaying of all the letters written by or addressed to each applicant which are at issue in the present case constituted a violation of Article 8 (art. 8);

3.  Holds that it is not necessary also to examine the case under Article 10 (art. 10);

4.  Holds that it is also not necessary to examine under Article 13 (art. 13) the article 6 § 1 and Article 10 (art. 6-1, art. 10) aspects of the applicants’ complaints;

5.  Holds that there has been a violation of Article 13 (art. 13) to the extent specified in paragraph 119 of the judgment;

6.  Holds that the question of the application of Article 50 (art. 50) is not ready for decision;

accordingly,

(a) reserves the whole of the said question;

(b) delegates to the President of the Chamber power to fix the further procedure.

Done in English and in French, the English text being authentic, at the Human Rights Building, Strasbourg, this twenty-fifth day of March, one thousand nine hundred and eighty-three.

Gérard WIARDA

President

Marc-André EISSEN

Registrar