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Dennis Andrew NILSEN v the United Kingdom - 36882/05 [2010] ECHR 470 (9 March 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/470.html
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[2010] ECHR 470
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FOURTH
SECTION
DECISION
AS TO
THE ADMISSIBILITY OF
Application no.
36882/05
by Dennis Andrew NILSEN
against the United Kingdom
The
European Court of Human Rights (Fourth Section), sitting on 9 March
2010 as a Chamber composed of:
Lech Garlicki, President,
Nicolas
Bratza,
Giovanni Bonello,
Ljiljana
Mijović,
David Thór Björgvinsson,
Ledi
Bianku,
Mihai Poalelungi, judges,
and Lawrence
Early, Section
Registrar,
Having
regard to the above application lodged on 5 October 2005,
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 Dennis Andrew Nilsen, is a British national who was
born in 1945. He is currently in prison. He was represented before
the Court by Mr N. Wells, a lawyer practising in Manchester. The
United Kingdom Government (“the Government”) were
represented by their Agent, Ms H. Upton, of the Foreign and
Commonwealth Office.
A. The circumstances of the case
The
facts of the case, as submitted by the parties, may be summarised as
follows.
In
1983 the applicant was convicted of the murder of six men and of the
attempted murder of two others. The bodies of the deceased had been
variously dismembered, buried, burned, boiled and/or disposed of
otherwise. He was arrested when a drain cleaning company, called to
his building to investigate a blocked drain, found human flesh. The
applicant had confessed to numerous additional killings, but
identification of all of the victims was not possible at that point.
The applicant is subject to a whole life tariff and has always been a
Category A security prisoner. The High Court (see below) later
described his offences as “as grave and depraved as it is
possible to imagine”.
In
1985 a journalist published a book about the murders entitled
“Killing for Company”: it drew extensively on the
applicant’s notes written whilst on remand and it contained
graphic descriptions of the applicant’s crimes.
In
1992 the applicant began to write his autobiography. By 1996 his work
amounted to 400 closely typed pages. He handed the manuscript to his
then solicitor, with a view to publication, who took it with him when
he left the prison. The prison authorities did not know about, or
consent to, the manuscript leaving the prison. A number of copies
were made and these are still, unpublished, outside the prison. The
High Court later described the manuscript as falling into three
parts. The first concerned aspects of the applicant’s life
before he committed the offences and contained explicit details of
sexual encounters with various men. The second concerned the offences
and included considerable detail of the killings and the ways in
which the bodies of the victims were abused, dismembered and disposed
of. The third – the longest part – was essentially a
diary of prison experiences with reflections on the criminal justice
system. On 7 July 1996 the applicant’s then solicitor wrote to
the prison stating that the applicant intended to publish the
manuscript “at some later date” and offering the Governor
the opportunity to read it “in case it should be thought that
any abuse of the legal visit has occurred”. However, in a
subsequent letter that solicitor informed the Governor that he no
longer had instructions to permit the prison authorities to read the
manuscript.
On
7 March 2001 a new solicitor sent a copy of the manuscript in a
sealed package to the prison with a cover letter stating that it was
legally privileged material to be handed to the applicant unopened
but disclosing the nature of the material. The Governor returned it
to the solicitor on the basis that it was not legal correspondence.
On 28 March 2001 the solicitor wrote to the prison claiming the right
to send the manuscript to the applicant and on 25 May 2001 the
Governor replied noting that it was clear that manuscript was
intended for publication, that correspondence in and out of the
prison which contained material intended for publication was
restricted under paragraph 34(9) of Standing Order No. 5B (“SO5B”)
and that it was necessary for the prison service to examine the
material in order to determine if SO5B applied.
The
applicant began judicial review proceedings. On 19 March 2002 the
High Court found that the prison authorities had the right to examine
the manuscript to see whether it would be in accordance with the
rules for it to be passed to the applicant and dismissed the
application. The judgment noted that it was not in dispute that the
applicant’s objective was to rework the manuscript for
publication.
The
prison authorities then read the manuscript. By letter dated
23 October 2002 the applicant was informed by the Governor of
the decision of the prison service that the manuscript would not be
passed on to him:
“The Prison Service has now read the manuscript
... It has decided not to allow the manuscript to be passed to [the
applicant] and because of this I am returning the manuscript to you.
The Prison Service considers that the manuscript is
material intended for publication, that it is about [the applicant’s]
offences and that it does not consist of serious representations
about a conviction or sentence and does not form part of serious
comment about crime, the processes of justice or the penal system.
[The applicant] is not permitted to send such material out of prison:
[SO5B] paragraph 34(9)(c); Standing Order 4, paragraph 40. Because
the manuscript has been out of prison for a number of years, it is
likely that copies have been made by third parties. However, to date
[the applicant] has not caused the manuscript to be published and has
indicated that he wishes to do further work on it. The Secretary of
State has no reason to believe that any such further work would alter
the character of the manuscript.
The only way in which the Secretary of State can in
practice realistically seek to prevent [the applicant] from
publishing such material is by withholding the manuscript from [the
applicant pursuant to rules 34 and/or 70 of the Prison Rules
...and/or paragraph 40 of SO5B [see relevant domestic law below].
The reasons why the Secretary of State has concluded
that publication of the manuscript, or of a revised version of it,
would be contrary to paragraph 34(9)(c) ...are as follows.
The manuscript is about [the applicant]. But it is also
about his offences: the offences themselves, how [the applicant] came
to commit them, and how he is now being punished for them. The
offences are an integral part of the manuscript.
The manuscript does not consist of serious
representations about conviction or sentence or form part of serious
comment about crime, the processes of justice or the penal system.
Rather it is a platform for [the applicant] to seek to justify his
conduct and denigrate people he dislikes. The Secretary of State
believes that his decision is in accordance with Article 10 of the
European Convention on Human Rights. He accepts that withholding the
manuscript is an interference with [the applicant’s] freedom of
expression. But he considers that this is justified in the
circumstances.
The withholding of the manuscript is prescribed by law,
for the reasons set out above.
The withholding of the manuscript pursues a legitimate
aim, namely the protection of morals, the protection of the
reputation or the rights of others and the protection of information
received in confidence. The manuscript contains several lurid and
pornographic passages. It contains highly personal details of a
number of [the applicant’s] offences. It seeks to portray [the
applicant] as a morally and intellectually superior being who
justifiably holds others in contempt. Its publication would be likely
to cause great distress to [the applicant’s] surviving victims
and to the families of all his victims, and would be likely to cause
a justifiable sense of outrage among the general public.
The withholding of the manuscript is a proportionate
response in the circumstances. There is a pressing social need to
avoid the harm described above. No lesser measure will avoid that
harm. [the applicant] is free to send out writings that comply with
the terms of the Prison Rules and the Standing Orders.
In reaching his decision, the Secretary of State has
borne in mind that [the applicant] is serving a whole life tariff.
The Secretary of State’s present view is that for as long as
[the applicant] remains in prison, preventing the publication of the
material in the manuscript is justified, no matter how long that may
be.”
The
applicant sought leave to challenge by judicial review the decision
of 23 October 2002 and on 19 December 2003 the High Court refused his
application. The applicant relied on three grounds.
In
the first place, the applicant submitted that paragraph 34(9)(c) of
SO5B was unlawful given Article 10 of the Convention. He argued that
Parliament had neither expressly not impliedly conferred upon the
prison Governor or service the power to regulate matters beyond the
prison walls, any implied power was limited to matters concerning
good order and discipline and prison security so that the prevention
of harm to the families of victims and the prevention of public
outrage were not matters for a prison Governor. The High Court found
it abundantly clear that section 47 of the 1952 Act enabled the
Secretary of State to promulgate Rule 34 of the 1999 Rules which
conferred upon him a discretion to impose “any restriction or
condition, either generally or in a particular case, upon the
communications to be permitted between a prisoner and other persons”,
provided that he considered that it was Convention compliant.
Paragraph 34(9)(c) was the result of such an exercise of discretion.
Once it was accepted that the paragraph allowed the Secretary of
State to concern himself with consequential effects outside the
prison, and not just matters such as internal prison security, it
followed that he could restrict a prisoner’s freedom of
expression in pursuance of the legitimate aim of, inter alia,
the prevention of disorder or crime, the protection of morals and the
protection of the rights and freedoms of others. This case was, in
the High Court’s view, “an object lesson in why private
feelings and public outrage may be matters of highly relevant
concern”. Paragraph 34 struck a balance which, in principle,
complied with Article 10 acknowledging as it did the prisoner’s
right to expression as regards serious representations but
restricting it in relation to other matters.
Secondly,
the applicant maintained that paragraph 34(9)(c) could not apply to
autobiographical writings. The High Court found that Article 10 did
not confer special status on autobiographical work, whatever its
nature or content, and the solution was to be found in the general
principles of Article 10 of the Convention.
Thirdly,
the applicant argued that the application of that paragraph was
disproportionate or irrational: it was a futile exercise since copies
of the manuscript existed already outside the prison and since the
material was already in the public domain given the book “Killing
for Company”; the applicant wished to work on it to make it
less offensive and its later dissemination could be controlled; and
what was at issue was the return of the manuscript which had been in
the prison for years without objection. The High Court found:
“The decision letter ... unquestionably carried
out a proportionality assessment. ... I am entirely satisfied that
his decision satisfies the demands of proportionality and the test of
rationality. ... The Secretary of State is entitled, and in my view
right, to take the view that, notwithstanding the risk of publication
of material which is already in hands outside his control, it is not
futile to prevent [the applicant] from doing what he wishes to do –
that is, publish his material in a revised form. The history of the
original movement of the material out of prison, putting it at its
lowest, justifies the Secretary of State’s view that there is a
significant risk that, if the material is entrusted to [the
applicant], it may later leave the prison in a revised form without
the knowledge or consent of the prison authorities. I am wholly
unpersuaded that what is already in the public domain, in particular
in Killing for Company, is such as to render any further restriction
pointless. There is an appreciable difference between the publication
of material which is all the prisoner’s own work and the
publication of his account by another person over whom the prisoner
had no control. The difference is highlighted by the fact that [the
applicant] intends to dispute significant parts of [the previously
published book].
I have already explained ... that ... the Secretary of
State is entitled to have regard to the likely effect of publication
on members of the public, including survivors and the families of
victims of [the applicant’s] serial offences. I am unimpressed
by the suggestion that anyone can choose not to read whatever may be
published.
... I have not read the entirety of [the applicant’s]
material. To do so would take 2-3 days. However, from what I have
seen of it and from what I have learned from the witness statements
of Steven Taylor (filed on behalf of [the applicant]) and Professor
Martin Wasik (filed on behalf of the Secretary of State), I am
satisfied that the Secretary of State reached unimpeachable
conclusions about it – both as regards proportionality and as
regards its falling outside the “serious representations”
and “serious comment” exceptions in paragraph 34(9)(c).
... although the majority of [the applicant’s]
submissions on proportionality were made in the context of Article
10, [he] also sought to rely on Article 1 of the First Protocol ...
The arguments on behalf of [the applicant] which failed to relation
to Article 10 produce no more favourable an analysis in relation to
Article 1 of the First Protocol.”
On
17 November 2004 the Court of Appeal rejected the applicant’s
appeal. He again argued that paragraph 34 of SO5B fell outside the
powers conferred on the Secretary of State by the 1952 Act. Having
reviewed relevant domestic law, the Court of Appeal confirmed that
paragraph 34 did not exceed the 1952 Act in that section 47 of the
1952 Act spoke not only of the regulation and management of prisons
but about control of prisoners. The applicant further argued that
paragraph 34 of SO5B itself conflicted with Article 10 of the
Convention. The Court of Appeal, in the first place, found the
limitation in paragraph 34 of SO5B to be consistent with relevant
domestic jurisprudence as regards Article 10 and prisoners:
“Criminals who are deprived of their liberty by a
sentence of imprisonment are deprived of enjoyment of their
possessions and of communication with the outside world, save in so
far as the prison authorities permit this. Prison rules must
necessarily make provision for the use prisoners may make of their
possessions and for what may be sent from the outside world in to
prisoners and what prisoners may send out. [The applicant] does not
challenge this. The issue is the matters to which the Secretary of
State can properly have regard when making rules in relation to these
matters.
... Penal legislation is not required to spell out those
aspects of a prison regime that properly constitute an incident of
the punishment of deprivation of liberty. The powers conferred on the
Secretary of State under the [1952 Act] include, at least, the power
to have regard, when regulating what a prisoner can and cannot do, to
the natural incidents of penal imprisonment.
It is not so easy to define the test of what are the
natural incidents of penal imprisonment, and these are certainly
susceptible to change as a result of changes in attitude to
punishment. In [R(Mellor) v. Secretary of State for the Home
Department [2001] EWCA Civ 472)] at paragraph 65 the Master of
the Rolls expressed the view that:
‘Penal
sanctions are imposed, in part, to exact retribution for wrongdoing.
If there were no system of penal sanctions, members of the public
would be likely to take the law into their own hands. In my judgment
it is legitimate to have regard to public perception when considering
the characteristic of a penal system.’
We endorse that statement. In considering what
restrictions can properly be placed on prisoners as natural incidents
of imprisonment regard can be had to the expectations of right
thinking members of the democracy whose laws have deprived the
prisoners of their liberty.
In his decision letter, the Governor made the point that
publication of [the applicant’s] typescript would be likely to
cause great distress to families of his victims and a justifiable
sense of outrage among the general public. There is ample authority
that freedom of expression includes the freedom to publish outrageous
matter. But the outrage referred to by the Governor was not outrage
at the subject matter, but outrage that a prisoner should be
permitted to publish such material from his prison cell. ...
[In the present case, we] are concerned with a tightly
drawn restriction on a prisoner writing about his crimes, which is
subject to an exception for ‘serious representations about
conviction or sentence’ or ‘part of serious comment about
crime, the processes of justice or the penal system’.
We do not believe that any penal system could readily
contemplate a regime in which a rapist or a murderer would be
permitted to publish an article glorifying in the pleasure that his
crime had caused him. English jurisprudence suggests that to restrict
prisoners from publishing such matter is a legitimate exercise of the
power conferred on the Secretary of State by the Prison Act. We have
concluded that, from the viewpoint of that [domestic] jurisprudence,
the wording of Paragraph 34 (9)(c) draws the line appropriately
between what is and what is not acceptable conduct on behalf of a
prisoner and falls within the powers conferred on the Secretary of
State by the Prison Act.”
The
Court of Appeal also found that this Court’s jurisprudence did
not mean that paragraph 34 of SO5B was in conflict with Article 10 of
the Convention. That court also rejected the proposition that
the wording of paragraph 34 was too vague to indicate to an inmate
what would fall foul of the law, finding that the wording of the
exception was “clear and readily capable of application by a
prison Governor”.
The
Court of Appeal went on to review this Court’s case-law. While
Hirst v. the United Kingdom (no. 2) ([GC], no. 74025/01, ECHR
2005 IX) found that a blanket ban on voting was
disproportionate, it accepted that it was open to the legislative to
tailor disenfranchisement to particular offences. In Bamber v. the
United Kingdom (application no. 33742/96 (1997)) the Commission
accepted that some measure of control over the content of prisoners’
communications (the scope of which was not in issue in that case) was
not in itself incompatible with the Convention. The significance of
the Silver Commission Report (Silver and Others v. the
United Kingdom (1980), application nos. 5947/72 et seq., Report
of Commission 11 October 1980) was not so much that it was a decision
endorsing a restriction that had much in common with that under
consideration in the appeal (Silver was decided nearly 25
years previously and standards could change). It was rather that it
exemplified the approach of considering what restrictions on freedom
of expression are normal incidents of imprisonment. That approach was
more clearly demonstrated by the Commission’s approval of the
prohibition of letters in connection with business matters without
the prior leave of the Secretary of State: in this respect, the
Commission commented that it was, in principle, a normal consequence
of imprisonment, necessary ‘for the prevention of disorder’
that convicted prisoners cease their professional activities during
their term of imprisonment. The Court of Appeal noted that this Court
had not found it necessary to comment on this conclusion of the
Commission and affirmed both decisions on narrower grounds than that
adopted by the Commission.
The
Court of Appeal concluded that this Court’s jurisprudence did
not support the applicant’s arguments that it was
disproportionate for imprisonment to carry with it some restrictions
on freedom of expression or for those restrictions to have regard to
the effect of the exercise of that freedom in the world outside the
prison walls. Paragraph 34 was not therefore in conflict with the
requirements of Article 10 of the Convention.
As
to whether the restriction was disproportionate on the facts of his
case, the applicant argued, in the first place, that it was futile. A
book had been already published containing graphic descriptions of
his crimes which he had provided to its author and there were copies
of the manuscript outside the prison the publication of which the
Secretary of State was powerless to prevent. The Court of Appeal
found these submissions paradoxical: the applicant’s primary
argument was that the Governor’s conduct was illegal in
preventing him from publishing his typescript and yet he was also
submitting that the Governor’s conduct could not pose any
significant impediment to that. It continued:
“We do not consider that there is any merit in
this part of [the applicant’s] case. The fact that, 19 years
ago, Brian Masters published an account of [the applicant’s]
crimes is not likely to do much to diminish the public outrage that
will be felt if the prison service permits [the applicant] himself to
publish his own account. [The applicant] has not caused or permitted
the typescript to be published in its present form. He has made it
plain that he wants to work on it before publication. We do not
consider that the prison service can be expected to waive prison
rules in order to assist him to achieve a goal which is contrary to
the Secretary of State’s policy. [The applicant] has argued
that he should be given the opportunity to transform his typescript
into a work which makes serious representations about his conviction
or sentence or serious comment about crime, the processes of justice
or the penal system. There is no evidence that [the applicant] has
any such intention.”
The
applicant sought leave to appeal to the House of Lords arguing that
the Court of Appeal erred in law and invoking Article 10 of the
Convention: the prison service did not have the power to regulate his
Article 10 rights outside the prisons; that refusing to return the
manuscript was disproportionate since it was futile to prevent
publication since the material was in the public domain; that
paragraph 34 of SO5B was too vague (he also invoked Article 8 in this
respect); that the application of paragraph 34 was disproportionate
in that it would never be possible for the applicant to publish his
writing in his lifetime (he was serving a life sentence); and that
the Court of Appeal applied an insufficiently intrusive form of
review by placing itself in the shoes of the decision maker, the
latter of whom was not qualified to make the decision he did (Article
8 was also invoked in this context).
On
18 April 2005 the applicant was refused, by summary decision, leave
to appeal to the House of Lords.
B. Relevant domestic law and practice
1. The Prison Act 1952 (“the 1952 Act”)
Sections
1 and 3 of the 1952 Act vest in the Secretary of State for Justice
all existing powers exercisable in relation to prisons whether under
statute, common law or charter, and grant the Secretary of State
power to do all acts necessary for the maintenance of prisons and
prisoners. Section 4 of the 1952 Act reads as follows:
“(1) The Secretary of State shall have the general
superintendence of prisons and shall make the contracts and do the
other acts necessary for the maintenance of prisons and the
maintenance of prisoners.
(2) Officers of the Secretary of State duly authorised
in that behalf shall visit all prisons and examine the state of
buildings, the conduct of officers, the treatment and conduct of
prisoners and all other matters concerning the management of prisons
and shall ensure that the provisions of this Act and of any rules
made under this Act are duly complied with.
(3) The Secretary of State and his officers may exercise
all powers and jurisdiction exercisable at common law, by Act of
Parliament, or by charter by visiting justices of a prison.”
Section
47(1) of the 1952 Act provides:
“Rules for the management of prisons, remand
centres, detention centres and Borstal institutions
(1) The Secretary of State may make rules for the
regulation and management of prisons... and for the classification,
treatment, employment, discipline and control of persons required to
be detained therein.”
2. The Prison Rules 1999 (“the 1999 Rules”)
The
1999 Rules (as amended by the Prison (Amendment) (No. 2) Rules 2000),
in so far as relevant, provide as follows:
“34. (1) Without prejudice to sections 6 and 19 of
the Prison Act 1952 and except as provided by these Rules, a prisoner
shall not be permitted to communicate with any person outside the
prison, or such person with him, except with the leave of the
Secretary of State or as a privilege under rule 8.
(2) Notwithstanding paragraph (1) above, and except as
otherwise provided in these Rules, the Secretary of State may impose
any restriction or condition either generally or in a particular
case, upon the communications to be permitted between a prisoner and
other persons if he considers that the restriction or condition to be
imposed-
(a) does not interfere with the convention rights of any
person; or
(b)(i) is necessary on grounds specified in paragraph
(3) below;
(ii) reliance on the grounds is compatible with the
convention right to be interfered with; and;
(iii) the restriction or condition is proportionate to
what is sought to be achieved.
(3) The grounds referred to in paragraph (2) above are-
(a) the interests of national security;
(b) the prevention, detection, investigation or
prosecution of crime;
(c) the interests of public safety;
(d) securing or maintaining prison security or good
order and discipline in prison;
(e) the protection of health or morals;
(f) the protection of the reputation of others;
(g) maintaining the authority and impartiality of the
judiciary; or
(h) the protection of the rights and freedoms of any
persons.”
Rule
70 provides:
“No person shall, without authority, convey into
or throw into or deposit in a prison, or convey or throw out of a
prison, or convey to a prisoner, or deposit in any place with intent
that it shall come into the possession of a prisoner, any money,
clothing, food, drink, tobacco, letter, paper, book, tool, controlled
drug, firearm, explosive, weapon or other article whatever. Anything
so conveyed, thrown or deposited may be confiscated by the governor.”
3. Standing Orders (“SOs”)
In
order to ensure uniformity of practice throughout prisons, the
Secretary of State also issues to prison governors, pursuant to his
general powers and duties under sections 1 and 4 of the 1952 Act,
management guidance or directives in the form of SOs. While
previously these SOs were not made available to the public or
prisoners, they were at the relevant time available, inter alia,
in prison libraries and on the Prison Service website. SOs have since
been replaced by Prison Service Orders.
SO5B
dealt with communications between prisoners and other persons, is
entitled “restrictions on general correspondence” and
where relevant provides:
“1. The examination and reading of correspondence
to and from inmates is undertaken to prevent its use to jeopardise
the good order of establishments, to detect and prevent offences
against prison discipline or the criminal law and to satisfy other
ordinary and reasonable requirements of prison administration.
Accordingly the extent to which correspondence needs to be read will
vary according to the nature of the establishment, inmate and
correspondence ....
33. For the purpose of restrictions on content, inmates’
correspondence, both incoming and outgoing, is divided into the
following groups (1) general correspondence, that is to say
correspondence with ... individuals ... [excluding, for example,
correspondence between a prisoner and his legal adviser].
34. General correspondence ... may not contain the
following:
...
(9) Material which is intended for publication or for
use by radio or television (or which, if sent, would be likely to be
published or broadcast) if it ...
(c) is about the inmate’s crime or past offences
or those of others, except where it consists of serious
representations about conviction or sentence or forms part of serious
comment about crime, the processes of justice or the penal system...”
COMPLAINTS
The
applicant complained mainly under Article 10, but also under Article
8 and Article 1 of Protocol No. 1, about the refusal of the prison
Governor to return his manuscript to him.
THE LAW
A. Article 10 of the Convention
The
applicant complained under Article 10 of the Convention about the
refusal by the Governor to return his manuscript to him so he could
revise it for publication.
While
he also made certain submissions in the context of his Article 10
complaint to the effect that he would also have simply wished to have
his autobiographical work back for his own benefit (not for
publication), the Court has examined these submissions under Article
8 below.
1. The parties’ observations
The
applicant maintained that the interference (refusing to allow the
return of his manuscript to him) was not “prescribed by law”:
paragraph 34 of SO5B was too vague and unforeseeable and the
interference was not in accordance with domestic law as a Governor
could not (by implication from the 1952 Act only) restrict prisoners’
rights outside prison.
He
also maintained that the restriction did not pursue a legitimate aim
as it was futile since copies of the manuscript existed outside the
prison and since the relevant book had been already published.
The
applicant also argued that the restriction was a disproportionate
interference with his right to freedom of expression. The text of
paragraph 34 of SO5B was, itself, disproportionate and the
application of paragraph 34 was, on the facts of the case,
unjustified. The position of the domestic authorities went against
this Court’s jurisprudence (notably, T v. the United
Kingdom, application no. 8231/78 (1983) 49 DR 5; the above cited
cases of Bamber and Hirst; Silver and Others v. the
United Kingdom, 25 March 1983, Series A no. 61; Dickson v. the
United Kingdom [GC], no. 44362/04, ECHR 2007 XIII; and
Yankov v. Bulgaria, no. 39084/97, ECHR 2003 XII
(extracts)). The margin of appreciation open to this Court was narrow
since freedom of expression was a fundamental right; since work on
the manuscript and its publication would involve an important facet
of his identity and sense of self; and since the questions arising in
this case had never been the subject of democratic debate.
A
restriction on freedom of expression outside prison was not an
inherent part of imprisonment in that it did not flow directly from
the loss of liberty. It thus amounted to an additional punishment
which a prisoner discovered piecemeal during the course of his
imprisonment and which was not justified by good order, discipline
and security in the prison.
Far
too much weight was given to “public concern”. The
restriction could not be justified on the basis of public outrage
alone (the above cited Hirst and Dickson judgments). No
evidence was adduced about any surviving victims. There was no
evidence that such a negative public reaction would flow from the
nature of the manuscript or from his publishing it. The Governor did
not argue that his purpose was to “propagate any offensive
views or to encourage others to commit similar acts”.
On
the contrary, his manuscript had a serious scientific and social
value in which there was considerable public interest. His writings
stimulated much academic and medical debate: they constituted “an
essential foundation” for the academic and public understanding
of the psychopathological aspects of criminality as well as a useful
research tool for those engaged in the study of incarcerated
prisoners. Both expert and lay members of the public were entitled to
know everything that was available about him to assess the risks
posed by persons such as he who suffered from a serious personality
or other psychiatric disorder. He also relied on the right of others
to “receive knowledge, information and communication”.
The
material was already in the public domain in a much more sensational
form in a book on which he had closely co-operated, there were copies
of the manuscript outside the prison and there was also existing
extensive internet information about him and his offences.
The
restriction was also a blanket ban. All of the manuscript was held
back and, if there were parts considered “offending”,
then it should be returned to him to excise the offending passages.
Moreover, the application of paragraph 34 to autobiographical
writings by life prisoners meant that it would never be possible for
him to publish his writing in his lifetime.
The
Court of Appeal was far too deferential to the Governor’s
unqualified opinion: the former should have placed itself in the
shoes of the latter. The Court of Appeal also erred in its
assessment of the proportionality of the interference. Its judgment
would be consistent with an application to send out material but not
to receive material one has already written. Indeed, there was no
sufficient link between the reasons for the restriction given and the
particular restriction at issue in the present case (the deprivation
of his right to re-work and publish). There was no appropriate
weighing of the competing individual and other interests (Dickson
v. the United Kingdom, cited above).
The
Government maintained that there had been no violation of Article 10
of the Convention.
The
Secretary of State’s letter of 23 October 2002 expressly
accepted that the refusal to return the manuscript to the applicant
was an interference with his freedom of expression. That decision,
taken pursuant to paragraph 34 of SO5B, was prescribed by law and
they relied on the domestic judgments, noting that the applicant did
not challenge the lawfulness of the 1999 Rules or the SO, the
Secretary of State had reserved the right to rely on other provisions
if it became necessary to do so (which, so far, it was not) and this
Court had consistently held that the totality of the 1952 Act, the
Prison Rules and the SOs were sufficiently clear and accessible such
that decisions taken thereunder to impose restrictions on
correspondence and communications were “prescribed by law”.
Similar SOs were approved in T v. the United Kingdom, cited
above.
The
restriction pursued legitimate aims and the Government referred to
the letter of refusal of the Secretary of State (the protection of
morals and of the reputation or rights of others and of information
received in confidence) as well as those relied upon by the Secretary
of State before the Court of Appeal (the prevention of crime in that
restricting a prisoner’s freedom of expression was part of the
punishment of imprisonment and this acted as a deterrent to the
commission of offences by the prisoner or others). The Court of
Appeal found the restriction to pursue the legitimate aims of
preventing and deterring crime (the restriction was a consequence of
imprisonment) and of protecting the morals and reputation of others
(the distress and justifiable outrage of the public, surviving
victims and of families of deceased victims). This was consistent
with Convention jurisprudence.
Moreover,
the restriction was proportionate and in accordance with the
Convention jurisprudence. As to the previously published book and
other copies of the manuscript existing outside the prison, the
Government pointed out that the applicant took issue with that book.
It was the fact that the applicant himself would publish that was
objectionable and the fact that the manuscript has not been published
to date demonstrated that the Secretary of State’s decision was
not futile. This was not a case where the same material had already
been published.
Finally,
the Government argued that the Court should grant the State a wide
margin of appreciation. Both the executive and the judiciary
domestically were in a better position than an international court to
assess the objectives of imprisonment and what weight should properly
be given to the justifiable public concerns in the case.
2. The Court’s assessment
Article
10, in so far as relevant, reads as follows:
“1. Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to
receive and impart information and ideas without interference by
public authority and regardless of frontiers. ...
2. The exercise of these freedoms, since it carries
with it duties and responsibilities, may be subject to such
formalities, conditions, restrictions or penalties as are prescribed
by law and are necessary in a democratic society, ..., for the
prevention of disorder or crime, for the protection of health or
morals, for the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence,
...”.
(a) The relevant interference with the right to
freedom of expression
The
Court considers, in the context of Article 10, that the refusal
pursuant to paragraph 34 of SO5B to return the applicant’s
manuscript to him in prison so he could revise it with a view to its
publication amounts to an interference with his right to freedom of
expression under Article 10 of the Convention. The Government did not
dispute this.
The
Court must therefore examine whether the interference was “prescribed
by law”, whether it had a legitimate aim within the meaning of
Article 10 § 2 and whether it was “necessary in a
democratic society” for the aforesaid aim.
(b) “Prescribed by law”
As
to whether there was a legal basis for paragraph 34 of SO5B and
therefore for the interference, the Court recalls that in the
above-cited Silver and Others judgment the same
regulatory structure (SOs controlling, inter alia,
correspondence leaving the prison based on the 1952 Act and the
Prison Rules) was considered to meet the requirements of “in
accordance with the law”, the judgment noting that the
principles regulating the lawfulness requirements of Article 8 were
the same as those already established as regards Article 10
(“prescribed by law”). This was so despite the fact, as
argued by the applicants in Silver and Others, that the
conditions and procedures set out in the SOs were not contained in
the underlying Prison Rules and the 1952 Act itself (the Silver
and Others judgment, § 85-89).
The
Court therefore finds that section 47 of the 1952 Act (which referred
to the control of prisoners) enabled the Secretary of State to
promulgate Rule 34 of the 1999 Rules which conferred upon him a
discretion to impose “any restriction or condition, either
generally or in a particular case, upon the communications to be
permitted between a prisoner and other persons” including
outside the prison, provided that it was Convention compliant and,
further, that paragraph 34(9)(c) of SO5B identifying permitted
communication outside prison was the result of such an exercise of
discretion (see the judgment of the High Court, at paragraph 10
above).
The
Court also notes that the text of Rule 34 of the Prison Rules 1999
and paragraph 34(9) of SO5B was clear as to the permitted content of
communications outside the prison, that those Rules and SOs were
published (the latter in the prison library and on the prison service
website), that the applicant did not suggest that he was unaware of
those provisions and, indeed, that he was legally represented at the
relevant time.
It is
therefore of the view that paragraph 34 of SO5B was a sufficiently
clear and foreseeable application of Rule 34 of the Prison Rules 1999
to be considered as being “prescribed by law” within the
meaning of Article 10 of the Convention (the above cited Silver
and Others judgment, §§ 33-36, 86-90 and the
above-cited Bamber case).
(c) Legitimate aim
The
applicant maintained that the restriction had no legitimate aim as
not returning his manuscript to him was futile since copies of the
manuscript were outside the prison and given the book published in
1985. The Court has examined this submission in the context of
whether the interference was “necessary in a democratic
society” (see immediately below). Otherwise, the Court finds,
having regard to the decision of the prison service, the High Court
and the Court of Appeal, that the restriction pursued the legitimate
aims of, inter alia, the protection of health or morals and
the protection of the reputation or rights of others.
(d) “necessary in a democratic society”
The
Court recalls the fundamental principles underlying its judgments as
regards Article 10 of the Convention (Yankov v. Bulgaria, no.
39084/97, § 129, ECHR 2003 XII (extracts)) and as regards
the rights enjoyed by prisoners as outlined in its Hirst
judgment (cited above):
69. In this case, the
Court would begin by underlining that prisoners in general continue
to enjoy all the fundamental rights and freedoms guaranteed under the
Convention save for the right to liberty, where lawfully imposed
detention expressly falls within the scope of Article 5 of the
Convention. For example, ... they continue to enjoy ... the right to
freedom of expression (Yankov v. Bulgaria, no. 39084/97,
§§ 126-45, ECHR 2003 XII, and T. v. the United
Kingdom, no. 8231/78, Commission’s report of 12
October 1983, DR 49, p. 5, §§ 44-84); ... the right to
respect for correspondence (Silver and Others v. the United
Kingdom, judgment of 25 March 1983, Series A no. 61); .... Any
restrictions on these other rights must be justified, although such
justification may well be found in the considerations of security, in
particular the prevention of crime and disorder, which inevitably
flow from the circumstances of imprisonment (see, for example,
[Silver and Others v. the United Kingdom, 25 March 1983, §§
99-105, Series A no. 61], where broad restrictions on the right of
prisoners to correspond fell foul of Article 8, but the stopping of
specific letters containing threats or other objectionable references
was justifiable in the interests of the prevention of disorder or
crime).
70. There is no
question, therefore, that a prisoner forfeits his Convention rights
merely because of his status as a person detained following
conviction. Nor is there any place under the Convention system, where
tolerance and broadmindedness are the acknowledged hallmarks of
democratic society, for automatic disenfranchisement based purely on
what might offend public opinion.
... the principle of proportionality requires a
discernible and sufficient link between the sanction and the conduct
and circumstances of the individual concerned. The Court notes in
this regard the recommendation of the Venice Commission that the
withdrawal of political rights should only be carried out by express
judicial decision (see paragraph 32 above). As in other contexts, an
independent court, applying an adversarial procedure, provides a
strong safeguard against arbitrariness.”
Accordingly,
a person retains his or her Convention rights on imprisonment, so
that any restriction on those rights must be justified in each
individual case. This justification can flow, inter alia, from
the necessary and inevitable consequences of imprisonment and/or from
an adequate link between the restriction and the circumstances of the
prisoner in question. However, it cannot be based solely on what
would offend public opinion (the above-cited Dickson case, §
69).
The
Court also considers that an ample margin of appreciation was
accorded to the domestic authorities given the prescribed balancing
of the relevant competing individual and public interests which was
carried out, the lack of any European consensus on the subject and
the particular knowledge of the needs of society required in this
context (Dickson, §§ 77-85).
In
the first place, the Court does not consider that the relevant
domestic provisions were, of themselves, disproportionate.
The
Court recalls that some control over the content of prisoners’
communication outside the prison is part of the ordinary and
reasonable requirements of imprisonment and is not, in principle,
incompatible with Article 10 of the Convention (mutatis mutandis,
Golder v. the United Kingdom, 21 February 1975, § 45,
Series A no. 18 and Silver and Others v. the United Kingdom,
25 March 1983, § 98, Series A no. 61).
Moreover,
drawn as it was from a provision (Rule 34 of the 1999 Rules) allowing
interferences with prisoners’ communications only if
justifiable on Convention grounds, paragraph 34 of SO5B allows a
prisoner to publish material about his crimes if it consists of
“serious representations about conviction or sentence or forms
part of serious comment about crime, the processes of justice or the
penal system”. The applicant did not claim that the
restrictions imposed in the present case precluded him from making
any such serious representations or comments (Bamber v. the United
Kingdom, cited above).
Furthermore,
the Court considers it evident that the relevant restriction,
allowing as it does such constructive communication by prisoners
about their crimes, does not amount to a blanket restriction on their
Article 10 rights of the nature at issue in the above-cited Hirst
case. The Dickson case (see, in particular, § 82) is also
distinguishable: neither the structure nor the application of
paragraph 34 of SO5B exclude a real balancing of the relevant
competing individual and public interests at stake. On the contrary,
paragraph 34 of SO5B is based on a provision which explicitly
requires Convention compliance and, in particular, the carrying out
of a balancing exercise, which task the domestic courts performed.
Secondly
and as to the application of those provisions in the present case,
the Court notes that the domestic authorities refused to pass on the
manuscript to him for revision and publication but returned it to his
solicitor, given the anguish its publication would cause to surviving
victims and to all victims’ families and given the sense of
outrage which its publication would cause among the general public
and, further, because of the risk that the applicant would manage to
remove, uncontrolled, a manuscript out of the prison as he had done
before (paragraphs 8 and 12 above). The applicant appeared to
criticise the scope of the courts’ assessment on judicial
review: however, there was no dispute on the facts (the applicant did
not later challenge the description of the manuscript by the
Secretary of State or of the High Court); the Secretary of State
carried out a proportionality test which was reviewed in some detail
by both domestic courts on judicial review on the basis of relevant
Convention case-law and the applicant does not specify in what other
respects the decision-making process leading to the relevant
interference was other than fair and afforded due respect to the
relevant interests and, notably, those of the applicant (Chapman
v. the United Kingdom [GC], no. 27238/95, § 92, ECHR
2001 I).
The
Court has therefore examined whether the above-noted reasons for the
interference given by the domestic authorities can be considered
“relevant and sufficient” (for example, Yankov,
cited above, § 129).
As
to the nature of the manuscript, the parties did not submit a copy of
same and has therefore noted the relevant descriptions of the text of
the domestic authorities. The High Court described its structure
(paragraph 5 above). The Governor’s letter of 23 October 2002
(paragraph 8 above) noted that the prison service had read the
manuscript and found that it concerned the applicant and his offences
(the offences themselves, how the applicant came to commit them, and
how he was being punished for them) and that the offences were an
integral part of the manuscript. That letter noted that the
manuscript did not consist of serious representations of the nature
referred to in paragraph 34 of SO5B but was rather “a platform
for [the applicant] to seek to justify his conduct and denigrate
people he dislikes.” It contained “several lurid and
pornographic passages”. It contained “highly personal
details of a number of the applicant’s offences” and it
sought to portray the applicant as a “morally and
intellectually superior being who justifiably holds others in
contempt”. The High Court judge did not re-read the manuscript
but from what he had seen of it and from witnesses (including one of
the applicant’s witnesses) found these conclusions of the
prison service to be “unimpeachable”.
Secondly,
the Court deems it reasonable for the domestic authorities to have
considered that the publication of the manuscript would be
distressing for surviving victims and for all victims’ families
and would provoke a sense of outrage amongst the public. The
applicant’s numerous crimes were described by the High Court as
“as grave and depraved as it is possible to imagine”,
with which description the applicant does not take issue.
As to
the impact on surviving victims and on all victims’ families,
the applicant suggested that there may be no surviving victims, but
he neither argued nor demonstrated this in the domestic proceedings
or presented any pertinent evidence to this Court. In any event, it
is reasonable to suppose that there remain at least close family
members of surviving victims and of those persons in respect of whom
he was convicted of murder. Such impact was a main, if not key,
concern of the domestic authorities. That the perpetrator of such
crimes would seek to publish for personal reasons his own account of
the killing and mutilation of his victims is an affront to human
dignity, one the fundamental values underlying the Convention.
As to
the sense of outrage amongst the public, the Court considers, as did
the Court of Appeal, that there was a substantive and substantial
difference between the author of grave, depraved and serious crime
publishing himself a detailed autobiographical description of those
offences and a third party writing about the crimes and their
perpetrator (the book published in 1985). Having regard to the
human dignity considerations noted above, the Court regards the
public outrage relied upon by the domestic courts in the present case
as distinguishable from the broader notion of “offence to
public opinion” referred to in the above-cited Hirst
case (see paragraph 49 above). It is in this sense that public
outrage at the applicant’s proposed publication remains a
pertinent justification for the restriction at issue. The Court
notes, in any event, that this justification was not the sole basis
for retaining the manuscript (the above-cited Dickson
judgment, at § 69).
While
the applicant suggested that the manuscript would have a serious
academic and medical contribution to make, such a limited
dissemination of the manuscript was not what the applicant requested
of the prison service or the courts in the present case. Indeed,
there would appear to be nothing in the response of the authorities
which would exclude his requesting controlled and limited
communication of the manuscript to professionals who wished to
receive it.
Thirdly,
the domestic authorities had to measure this negative effect against
the risk of returning the manuscript to the applicant to revise it
for publication: he had already managed to ensure that the manuscript
left the prison uncontrolled and they were entitled to decide not to
take the risk that that would happen again as regards a revised
edition.
The
applicant further maintained that the restriction was futile since
copies of the manuscript were already in the public domain and given
the book published in 1985. However, the Court considers that the
reasoning of the High Court and the Court of Appeal answers this
fully: the applicant brought domestic proceedings (and this was his
main submission to this Court) to get his manuscript back to rework
it and publish a revised version which is not, of course, in the
public domain. Indeed, the applicant clearly has not wished, given
that copies have remained unpublished outside the prison for years,
to publish the original manuscript. In addition, and as noted above,
there is indeed a relevant difference between publishing a detailed
autobiographical description of his crimes and a third party doing so
(the book published in 1985). The Court does not therefore accept the
argument that the material was already in the public domain (as in
Observer and Guardian v. the United Kingdom (26 November 1991,
§§ 66-70), Series A no. 216).
As
to his suggestion that the refusal to return the manuscript took away
the opportunity to rewrite it so as to comply with paragraph 34 of
SO5B, the Court notes that the applicant presented neither to the
domestic courts nor to this Court any indication as to how such a
voluminous autobiographical manuscript, of which his offences are an
integral part, could be excised of injurious material and comment and
become a serious representation about conviction or sentence or form
part of serious comment about crime, the processes of justice or the
penal system.
For
all of these reasons, the Court considers that the interference was
necessary in that it corresponded to a pressing social need and was
proportionate to the legitimate aims pursued. It follows that this
complaint is manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
B. Article 8 of the Convention
The
applicant also invoked Article 8 of the Convention. Apart from a
reference in the summary conclusion of his application, the applicant
relied on Article 8 to argue that the restriction was neither
foreseeable or lawful. In his observations to this Court, he added
that his right to private life had been violated because not
returning the manuscript prevented him simply from having it and from
writing down further personal thoughts on the manuscript in private
apart from any question of publication. He added that he relied on
his arguments under Article 10 as regards the lack of justification
for the restriction. He also appeared to invoke his right to
correspond under Article 8 of the Convention.
The
Government submitted that no separate question arose under Article 8
of the Convention. The case concerned communications rather than
correspondence and the applicant did not make any distinct
submissions under Article 8 of the Convention.
The
Court recalls that the applicant’s only request domestically
was for the manuscript back, to re-write it with a view to publishing
it and, consistently, he principally invoked Article 10 of the
Convention. It is further noted that the applicant did not develop
the argument about obtaining a copy of the manuscript for himself and
not for publication before the Governor, the High Court or the Court
of Appeal and, while he invoked Article 8 before the House of Lords,
this was still with a publication objective. In such circumstances,
even if this complaint could constitute an issue separate from his
publication complaint and could be one which would fall within the
scope of Article 8 and even assuming he could be said to have
exhausted domestic remedies in that respect, this complaint remains a
cursory and undeveloped one before this Court.
Finally,
the Court would agree with the Government that his reference to an
interference with “correspondence” under Article 8 does
not give rise to any issue separate to that examined under Article 10
of the Convention.
It
follows that these complaints are manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
C. Article 1 of Protocol No. 1 to the Convention
The
applicant also submitted, without more, that “if necessary”
he invoked his right to protection of property under Article 1 of
Protocol No. 1.
The
Court recalls that he sought to invoke this Article before the High
Court, but his submissions on proportionality were made in the
context of Article 10 and publication. There is no evidence that he
invoked this Article before the Court of Appeal or the House of Lords
and he did not invoke this Article in his letter of introduction or
in his application form (the latter received on 12 October 2005). His
first reference to this Article was in his observations and it is as
brief and conditional as outlined in the preceding paragraph.
Even
assuming therefore that the applicant could be considered to have
exhausted domestic remedies in this respect and complained to this
Court under Article 1 of Protocol No. 1 within six months of the
relevant final decision in that regard, the Court considers that the
applicant has not demonstrated that this complaint raises any issues
separate from those examined above under Article 10 of the
Convention.
Accordingly,
these complaints are manifestly ill-founded and must be rejected in
accordance with Article 35 §§ 3 and 4 of the Convention.
For
these reasons, the Court unanimously
Declares the application inadmissible.
Lawrence Early Lech Garlicki
Registrar President
