CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 25 mars 1983

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text-indent:-17pt } .s26FF04E7 { margin-top:0pt; margin-left:17.3pt; margin-bottom:0pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sFDE7661F { margin-top:12pt; margin-bottom:0pt; text-indent:14.4pt } .s40F41F73 { margin-top:0pt; margin-bottom:0pt; text-align:right } .sF6A12959 { width:33%; height:1px; text-align:left } .s2EB42ED2 { margin-top:0pt; margin-bottom:0pt; font-size:10pt }       COURT (CHAMBER)             CASE OF SILVER AND OTHERS v. THE UNITED KINGDOM   (Application no. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75)             JUDGMENT       STRASBOURG   25 March 1983   In the case of Silver and others, The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and the relevant provisions of the Rules of Court [] , as a Chamber composed of the following judges:   Mr.   G. Wiarda , President ,   Mr.   Thór Vilhjálmsson ,   Mr.   F. Gölcüklü ,       Mr.   F. Matscher ,   Mr.   L.-E. Pettiti ,   Sir   Vincent Evans ,   Mr.   C. Russo , and also Mr. M.-A. Eissen , Registrar , and Mr. H. Petzold , Deputy Registrar , Having deliberated in private on 23 and 24 September 1982 and 24 and 25 February 1983, Delivers the following judgment, which was adopted on the last-mentioned date: PROCEDURE 1.    The case of Silver and others was referred to the Court by the European Commission of Human Rights ("the Commission"). The case originated in seven applications (nos. 5947/72, 6205/73, 7052/75, 7061/75, 7107/75, 7113/75 and 7136/75) against the United Kingdom of Great Britain and Northern Ireland lodged with the Commission on various dates between 1972 and 1975 by Mr. Reuben Silver, Mr. Clifford Dixon Noe, Mrs. Judith Colne, Mr. James Henry Tuttle, Mr. Gary Cooper, Mr. Michael McMahon and Mr. Desmond Roy Carne under Article 25 (art. 25) of the Convention. The Commission ordered the joinder of the applications on 11 March 1977. 2.    The Commission’s request was lodged with the registry of the Court on 18 March 1981, within the period of three months laid down by Articles 32 § 1 and 47 (art. 32-1, art. 47). The request referred to Articles 44 and 48 (art. 44, art. 48) and to the declaration whereby the United Kingdom recognised the compulsory jurisdiction of the Court (Article 46) (art. 46). The purpose of the request was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Articles 6 § 1, 8 and 13 (art. 6-1, art. 8, art. 13). 3.    The Chamber of seven judges to be constituted included, as ex officio members, Sir Vincent Evans, the elected judge of British nationality (Article 43 of the Convention) (art. 43), and Mr. G. Wiarda, the President of the Court (Rule 21 § 3 (b) of the Rules of Court). On 25 April 1981, the President drew by lot, in the presence of the Registrar, the names of the five other members, namely Mrs. D. Bindschedler-Robert, Mr. F. Matscher, Mr. L.-E. Pettiti, Mr. C. Russo and Mr. R. Bernhardt (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). 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). 4.    Mr. Wiarda, who had assumed the office of President of the Chamber (Rule 21 § 5), ascertained, through the Registrar, the views of the Agent of the Government of the United Kingdom ("the Government") and the Delegates of the Commission regarding the procedure to be followed. He decided on 4 May that the Agent should have until 4 September 1981 to file a memorial and that the Delegates should be entitled to file a memorial in reply within two months from the date of the transmission of the Government’s memorial to them by the Registrar. The President agreed on 13 August to extend the first of these time-limits until 2 October 1981. 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. 5.    The Court held a preparatory meeting on 27 January 1982 when it formulated certain proposals with a view to the limitation of the scope of the hearings to be held before it. On the same occasion, the Court drew up a list of questions and requests which were communicated by the Registrar on 10 February to the Government and the Commission; replies thereto were received from the Government on 14 June and, as regards one question, from the Commission on 6 August. 6.    After consulting, through the Registrar, the Agent of the Government and the Delegates of the Commission, the President directed, on 17 May, that the hearings should open on 22 September 1982 and, on 22 July that their scope should be limited in the manner set out in his Order of the last-mentioned date. 7.    The hearings were held in public at the Human Rights Building, Strasbourg, on 22 September 1982. 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. 8.    On 22 September, the Commission filed a number of documents, including a memorial which they had received from the applicants regarding the application of Article 50 (art. 50) of the Convention in the event that the Court should find a violation to have occurred. 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 9.    The principal complaint of all seven applicants was that the control of their mail by the prison authorities constituted a breach of their right to respect for correspondence and of their freedom of expression, guaranteed by Articles 8 and 10 (art. 8, art. 10) of the Convention, respectively. They also alleged that, contrary to Article 13 (art. 13), no effective domestic remedy existed for the aforesaid breaches. In addition, Mr. Silver claimed that he had been denied access to the courts, in violation of Article 6 § 1 (art. 6-1), on account of the refusal of two petitions for permission to seek legal advice. I.    FACTS PARTICULAR TO THE INDIVIDUAL APPLICANTS A. Mr. Silver 10.    The first applicant, Mr. Reuben Silver, was born in 1915 and was a United Kingdom citizen. When he lodged his application with the Commission (20 November 1972), he was detained in prison in England. He was released from prison in February 1974 and died in March 1979. 11.    In the period from January 1972 to March 1973, 7 of Mr. Silver’s letters were stopped by the prison authorities for the reasons indicated in paragraphs 59, 62, 63, 66, 68 and 69 below. 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. 12.    On 20 November 1972, Mr. Silver petitioned the Home Secretary for permission to seek legal advice concerning allegedly negligent treatment in prison and also complained, inter alia, about his medical and dental treatment. Permission was refused on 18 April 1973. On 30 July 1973, he submitted another petition in which he referred to his earlier petition and requested leave to seek legal advice about his dental treatment. The second petition was apparently granted on 1 October 1973, but Mr. Silver claimed that he was never so informed. At the time of both petitions, prisoners could not seek legal advice about prospective civil proceedings without the Home Secretary’s leave (see paragraph 32 below). B. Mr. Noe 13.    The second applicant, Mr. Clifford Dixon Noe, is a citizen of the United States of America, born in 1930. When he lodged his application with the Commission (1 February 1973), he was serving a sentence of imprisonment in England after being convicted of fraud. He was released from prison on 31 January 1977 and subsequently deported from the United Kingdom. 14.    In the period from May 1972 to April 1975 and for the reasons indicated in paragraphs 6O, 61, 67 and 71 below, 4 of Mr. Noe’s letters were stopped by the prison authorities and the posting of a further letter was delayed for three weeks. 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 15.    The third applicant, Mrs. Judith Colne, is an Australian citizen, born in 1927. She is a schoolteacher and resides in London. 16.    Around May 1974, Mrs. Colne began correspondence with a Mr. Michael Williams, the brother of an imprisoned friend of hers. Mr. Williams was then detained in H.M. Prison Albany and was a "category A" prisoner, this being the security category reserved for persons who, if they escaped, would be highly dangerous to the public or the police or to the security of the State. Following his transfer in July 1974 to H.M. Prison Hull, their correspondence was noticed and stopped for the reason indicated in paragraph 59 below. It resumed, unnoticed, following his further transfer to H.M. Prison Wakefield in August 1974 but was discovered during the following month; thereafter, and for the same reason, all correspondence between them was prevented. This applicant raised the matter, both directly and through a Member of Parliament, with the Home Secretary, but without success. D. Mr. Tuttle 17.    The fourth applicant, Mr. James Henry Tuttle, is a United Kingdom citizen, born in 1914. When he lodged his application with the Commission (20 March 1975), he was detained in prison in England. He was released on licence on 5 January 1981. 18.    In March 1975, 2 of Mr. Tuttle’s letters were stopped by the prison authorities for the reasons indicated in paragraphs 62, 64 and 68 below. This applicant apparently complained, in a petition to the Home Secretary, of the stopping of his correspondence, but without success. E. Mr. Cooper 19.    The fifth applicant, Mr. Gary Cooper, is a United Kingdom citizen, born in 1946. When he lodged his application with the Commission (28 October 1974), he was serving a sentence of imprisonment in England. He was released on 14 December 1981, but was later imprisoned again. 20.    In the period from April 1974 to March 1976, 14 of Mr. Cooper’s letters were stopped by the prison authorities for the reasons or in the circumstances indicated in paragraphs 60, 65, 67 and 71 below. 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 21.    The sixth applicant, Mr. Michael McMahon, is a United Kingdom citizen, born in 1944. When he lodged his application with the Commission (8 July 1975), he was serving a sentence of imprisonment in England, as a "category A" prisoner, after being convicted of murder. He was released on 18 July 1980. 22.    In the period from March 1975 to February 1976, 11 of Mr. McMahon’s outgoing letters were stopped by the prison authorities and one letter to him was withheld. 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 23.    The seventh applicant, Mr. Desmond Roy Carne, is a United Kingdom citizen, born in 1945. When he lodged his application with the Commission (5 April 1975), he was serving a sentence of imprisonment in England after being convicted of theft. He was released on 30 August 1977. 24.    In the period from November 1974 to May 1976, 22 of Mr. Carne’s letters were stopped by the prison authorities for the reasons indicated in paragraphs 59, 60, 64, 66, 67 and 68 below. 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 25.    The control over and responsibility for prisons and prisoners in England and Wales is vested by the Prison Act 1952 in the Home Secretary. He is empowered by section 47(1) of that Act to 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". Such rules are contained in statutory instruments laid before Parliament and made in accordance with the negative resolution procedure, that is, they come into operation unless Parliament otherwise resolves. 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"). 26.    With a view to securing uniformity of practice throughout prison establishments, the Home Secretary also issues to prison governors management guides or directives in the form of Standing Orders ("Orders") and Circular Instructions ("Instructions"). Unless otherwise authorised, governors are required to comply with these directives, but they do not have, or purport to have, the force of law. 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. 27.    As far as prisoners’ correspondence is concerned, the Home Secretary’s directives to governors were and are intended to serve a dual function: on the one hand, to circumscribe the discretion conferred on governors by the Rules, and, on the other, to state the manner in which the Home Secretary has decided in certain respects to exercise his own discretionary powers thereunder. The principal provisions which the Rules contain on the subject are set out below, accompanied by a summary of: (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 28.    The following Rules, containing general provisions on the control of correspondence, came into operation on 25 March 1964 and are still in force: "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 29.    The following basic Rules, both concerning the identity of persons with whom a prisoner may correspond, came into effect on 25 March 1964 and are still in force: "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 30.    Under Rule 34(8), as supplemented by Orders 5A 22, 5A 23 and 5A 30, prisoners had to seek the Home Secretary’s leave to correspond with any person other than a close relation; they were, however, also normally allowed, without the necessity to seek such leave, to correspond with other relatives or existing friends, but the governor had discretion to forbid such correspondence on grounds of security or good order and discipline or in the interests of the prevention or discouragement of crime. Governors had a discretion - which they would have been unlikely to exercise in favour of a "category A" prisoner, such as Mr. Williams or Mr. McMahon - to allow communications with other persons not personally known to the prisoner before he came into custody, but generally he could not write to other prisoners, ex-prisoners, marriage bureaux, "Monomark addresses" or specified categories of pen friends. 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 31.    With effect from 1 January 1973, uncensored correspondence relating to civil or criminal proceedings to which the prisoner was already a party was permitted under Rule 37A(1), which is still in force and reads: "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." 32.    Until 6 August 1975, inmates had to petition the Home Secretary for permission to seek advice about, or give instructions for, the institution of civil proceedings (with the exception of certain divorce cases). On that date, Instruction 45/1975 introduced changes which were subsequently reflected in Rule 37A(4) and directions made by the Secretary of State thereunder, in the shape of Order 17A. Rule 37A(4), which came into operation on 26 April 1976 and is still in force, reads: "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 33.    Prisoners were free to communicate with their Members of Parliament, subject to the restrictions on contents mentioned at paragraphs 41-47 below.       (c) Correspondence with Consular and Commonwealth officials 34.    Prisoners who were foreign nationals or citizens of the Irish Republic or a Commonwealth country were free to communicate with the accredited representatives of their countries in the United Kingdom, subject to the restrictions on contents mentioned at paragraphs 41-47 below. (d) Correspondence with certain organisations 35.    Under Order 5A 31(2) b., a prisoner could, without first seeking leave from the Home Secretary or the prison governor, write to the National Council for Civil Liberties, "Justice", "Release" or the Howard League for Penal Reform to seek legal advice about his conviction and sentence, or about general matters. He could, in addition, write to these organisations to ask for legal proceedings to be instituted and, although originally he could not seek legal advice from them about any matter relating to his prison treatment, this was subsequently allowed by Instruction 38/1977, subject however to the "prior ventilation rule" (see paragraph 47 below). In the two latter cases, however, the prisoner had first to follow the procedures introduced by Instruction 45/1975 and then enshrined in Order 17A (application to the governor for facilities; see paragraph 32 above). 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 36.    Special provisions applied to applications to the Commission; in particular, the Home Secretary’s leave was required neither for their submission nor for correspondence with legal advisers relative thereto, and the "prior ventilation rule" did not apply. 2. Position with effect from 1 December 1981 37.    Most of the restrictions which the earlier Orders and Instructions contained on the identity of correspondents have now been abolished. Although the relevant Rules have not themselves been amended, the revised Orders (nos. 5B23-5B30) state that, provided the provisions concerning the contents of correspondence (see paragraph 48 below) are observed, a prisoner may communicate with any person or organisation, subject to certain exceptions of which the principal are: (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 38.    The following basic Rules concerning the amount of correspondence which a prisoner may conduct came into operation on 25 March 1964 and are still in force: "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 39.    In addition to his entitlement under Rule 34(2) to send - at public expense - and to receive one letter per week, a convicted prisoner was allowed to send at his own expense at least one extra letter per week, and to receive a reply (Order 5A 3(8) and Instruction 155/1968). 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 40.    The revised Orders (nos. 5B7 and 5B14) do not alter the basic entitlement but specify that additional extra letters should be allowed as far as practicable. D. Provisions concerning the contents of correspondence 41.    In addition to Rule 33(3), the text whereof appears at paragraph 28 above, the following basic Rule concerning the contents of prisoners’ correspondence came into operation on 25 March 1964 and is still in force: "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 42.    Rules 33(3) and 34(8) were supplemented as follows by various Orders and Instructions. 43.    Under Order 5A 31, a convicted prisoner was specifically prohibited from making representations on matters connected with his trial, conviction or sentence to any judge, public authority, representative of any Commonwealth or foreign government (subject to certain exceptions for prisoners who were foreign nationals or citizens of another Commonwealth country) or unofficial organisation (subject again to certain specific exceptions). Such representations could, however, be made to the Home Secretary. 44.    Under Order 5A 24, prisoners were not allowed to send letters requesting anyone to make on their behalf a communication which they would not be permitted to make directly, or certain other letters which would circumvent the regulations. 45.   (a) Orders 5A 26(4) a. and b. and 5A 29 prohibited the inclusion in outgoing letters (other than those to Members of Parliament or Consular or Commonwealth officials, to which special rules applied) of any of the following matters: (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). 46.    With the exception of certain correspondence in connection with legal business for which standing leave had been granted as explained in paragraphs 31, 32 and 35 above, Rule 34(8) prohibited any communications on any legal or other business without the prior leave of the Home Secretary. The conduct of business by prisoners was further dealt with by Orders 1C 4-6, the basic provision being that "an inmate" - whether convicted or not - "may not conduct any business activity in prison, but should be allowed reasonable facilities for arranging its conduct on his behalf". However, subject to this general rule, governors had discretion to allow an inmate to deal with certain limited personal business matters, in particular to dispose of private property, to sign a cheque or to make or sign a will or other document. The broad effect of the regulations was that, although a prisoner could not participate personally on a continuing basis in a business concern, he was allowed to make arrangements to protect the value, for his own and his family’s benefit, of his personal property and any business interests. 47.    A complaint about prison treatment or an allegation against a prison officer could be contained or referred to only in correspondence with legal advisers, specified organisations, Members of Parliament or Consular or Commonwealth officials, as indicated in paragraph 45 above. Moreover, under the "prior ventilation rule" - set out, in particular, in Order 17A - a letter in any of these categories which alluded to such a matter would, with certain exceptions, be stopped unless and until the prisoner had ventilated his complaint through the normal internal channels (petition to the Home Secretary, or application to the Board of Visitors, a visiting officer of the Home Secretary or the prison governor) and been given a definitive reply. Thereafter, and in general irrespective of the outcome, the correspondence could proceed. 2. Position with effect from 1 December 1981 48.    Rules 33(3) and 34(8) are now supplemented by the new Orders 5B34 and 5B40. The current position is as follows. (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). 49.    The "prior ventilation rule" (see paragraph 47 above) has now been replaced by the "simultaneous ventilation rule", set out in Order 5B34 j. A complaint about prison treatment may be referred to in correspondence as soon as it has been raised through the prescribed procedures and without the prisoner’s having to await the outcome of the internal enquiry. The rule does not apply to complaints not requiring investigation or to general complaints in respect of which no corrective or remedial action is possible (for example, regarding overcrowding): these may be mentioned in correspondence without any internal ventilation. Moreover, the effect of the new Orders is that, in contrast to the earlier position, a duly ventilated complaint may now be referred to in any letter, irrespective of the identity of the correspondent. E. Censorship practice (before and after 1 December 1981) 50.    Except as otherwise provided by the Rules (for example, Rule 37A(1); see paragraph 31 above) and until 1 June 1974, all communications to or from a prisoner had, according to Rule 33(3), to be read and examined, although Order 5A 26 gave prison governors a discretion to subject specified domestic correspondence to no more than a cursory examination. With effect from that date, Rule 33(3) was amended to make reading and examination optional, but governors remained and remain subject to the Home Secretary’s directives in this respect. Thus, at the present time, outgoing domestic correspondence is normally not to be read or examined at open establishments; elsewhere, all correspondence is to be examined but not necessarily read (new Order 5B32). 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 51.    An inmate who is aggrieved by a decision to stop or censor his correspondence may complain to the prison governor, the Board of Visitors or a visiting officer of the Home Secretary or he may petition the Home Secretary himself. A prisoner may ventilate his complaint through any or all of these channels and, if more than one is utilised, in such sequence as he wishes. (a) The Board of Visitors 52.    As far as the Board of Visitors is concerned, it may examine the compatibility of the decision complained of with the Rules and the Home Secretary’s directives. It will draw the governor’s attention to any irregularity, or report to the Home Secretary; although its powers are advisory in character, its advice will be implemented save in exceptional circumstances. (b) Petitions to the Home Secretary 53.    Inmates have the right to submit petitions to the Home Secretary about any matter, for example to seek a permission which the local prison management is not empowered to grant or has refused, or to complain of prison treatment. 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 54.    Complaints concerning the control of correspondence may also be raised with the Parliamentary Commissioner for Administration (the Ombudsman). Under section 5 of the Parliamentary Commissioner Act 1967, this officer, who is appointed by the Crown, may, if so requested by a member of the House of Commons, investigate any action taken in the exercise of administrative functions by specified authorities (including the Home Office) where a complaint has been made by a member of the public who claims to have sustained injustice in consequence of "maladministration". Such an investigation may generally not be conducted where court proceedings are available. Section 12 of the Act expressly provides that the Ombudsman may not question the merits of a discretionary decision taken without maladministration; accordingly, his jurisdiction does not extend to interferences with a prisoner’s correspondence effected pursuant to a correct exercise of a discretion conferred by the Rules or the Home Secretary’s directives. Moreover, he cannot grant direct relief for maladministration since he is limited to reporting the results of his investigation to the Member of Parliament who requested it, the authority concerned and, in certain circumstances, each House of Parliament (section 10). 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 55.    The exercise by the prison authorities of their powers under the Rules to control correspondence is subject to the supervisory control of the English courts by way of proceedings for judicial review. In the exercise of this jurisdiction the courts will intervene to secure compliance by the prison authorities with the Rules in so far as they confer on prisoners an entitlement to send or receive correspondence (for example, Rule 37(A)1; see paragraph 31 above), and to ensure that the discretion to restrict correspondence, conferred on the authorities by the Rules, is not exercised arbitrarily, in bad faith, for an improper motive or in an ultra vires manner. 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 56.    Sanctions may be imposed on prisoners who commit disciplinary offences. Under Rule 47, the latter include making "any false and malicious allegation against an officer" and repeatedly making "groundless complaints", be it in a petition, correspondence or otherwise. An inmate who makes an allegation against a member of the prison staff is to be warned accordingly (Instruction 88/1961, now replaced by unpublished Instruction 14/1980). III.   THE APPLICATION IN THE PRESENT CASE OF DOMESTIC LAW AND PRACTICE ON THE CONTROL OF CORRESPONDENCE 57.    The present case arises from the stopping of 62 letters written by the applicants, that is to say 7 by Mr. Silver, 4 by Mr. Noe, 3 by Mrs. Colne, 2 by Mr. Tuttle, 14 by Mr. Cooper, 10 by Mr. McMahon and 22 by Mr. Carne; in the case of Mrs. Colne, the 3 letters are examples of the correspondence which she was prevented from continuing with Mr. Williams. In addition, Mr. Noe complained of delay in posting one of his outgoing letters and Mr. McMahon of the withholding of one of his incoming letters. 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