CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 4 mars 1987

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                      AS TO THE ADMISSIBILITY OF                     Application No. 11392/85                   by Raymond HODGSON                   against the United Kingdom             The European Commission of Human Rights sitting in private on 4 March 1987,   the following members being present:                   MM. C. A. NØRGAARD, President                   G. SPERDUTI                   J. A. FROWEIN                   E. BUSUTTIL                   G. JÖRUNDSSON                   S. TRECHSEL                   B. KIERNAN                   A. S. GÖZÜBÜYÜK                   A. WEITZEL                   J. C. SOYER                   H. G. SCHERMERS                   H. DANELIUS                   H. VANDENBERGHE                   F. MARTINEZ                 Mr.   H. C. KRÜGER Secretary to the Commission           Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;           Having regard to the application introduced on 15 October 1984 by Raymond HODGSON against the United Kingdom and registered on 12 February 1985 under file N° 11392/85;           Having regard to   -        reports provided for in Rule 40 of the Rules of Procedure of the Commission;   -        the Commission's decision of 16 May 1985 to bring the application to the notice of the respondent Government and invite them to submit written observations on its admissibility and merits;   -        the information provided by the Government on 12 September 1985;   -        the applicant's response to that information on 9 October 1985;   -        the Commission's decision of 4 March 1986 to maintain its invitation to the parties to submit written observations on admissibility and merits;   -        the Government's observations of 9 May 1986;   -        the applicant's observations in reply on 26 June 1986;           Having deliberated;           Decides as follows:         THE FACTS           The applicant is a citizen of the United Kingdom, born in 1952 and detained in H.M. Prison Peterhead, Scotland, where he is serving a ten year prison sentence.           This is his second application to the Commission.   His first, Application No. 10779/84, complaining of his trial, conviction and legal representation, was declared inadmissible as being manifestly ill-founded (Article 27 para. 2 of the Convention) on 16 March 1984.           The present application concerns the censorship of the applicant's correspondence.   The facts of the case may be summarised as follows:           The applicant was convicted of various sexual offences on 19 January 1982.   His appeal was heard on 2 December 1982 when it was rejected.   Despite the fact that he had no further proceedings outstanding or any possibility of initiating such proceedings, the applicant wrote on several occasions to the High Court of Justiciary, Justiciary Office, Edinburgh between 1982 and 1984 concerning his trial and appeal.   On 13 August 1984 the Justiciary Office provided certain information and requested the applicant to state the purpose of any further requests for information so that the Office could determine what priority should be given to any future replies.   The applicant claims that for the first time he was provided with essential information in that letter regarding his appeal.   On 15 August 1984 the applicant wrote again to the Justiciary Office but his letter was ignored.   Instead the Deputy Principal Clerk of Justiciary wrote to the applicant's Prison Governor on 23 August 1984 in the following terms:           "I am instructed to ask you to call the above named prisoner         before you in order to inform him that Lords Commissioners         of Justiciary do not enter into correspondence with prisoners         in relation to the cases which have been brought before them         as the presiding judge at a Court of First Instance or as a         Judge of Appeal.   I refer, of course, to the latest series of         letters which this man has been allowed to write from prison,         copies of which I enclose herewith.           As all reasonable requests for relevant information have now         been met, Hodgson should be informed that his request to         forward a letter to Mr McNish has been refused as has his         demand for the home address of Mr McNish.   It is not the         policy of the Court to allow correspondence between prisoners         and retired Officers of Court in relation to matters which         have arisen in the course of that officer's official duties.         Finally, I have to ask you not to allow this man to write         again to this office.   He should be reminded, yet again,         that the decision of the Court of Criminal Appeal on         2 December 1982 is, in terms of Section 262 of the Criminal         Procedure (Scotland) Act 1975, final and conclusive and not         subject to review by any Court whatsoever."           Thereupon, after showing the applicant a copy of this letter, the Prison Governor prohibited the applicant's correspondence to the High Court, pursuant to Rule 74 (1) and (4) of the Prison (Scotland) Rules 1952 and the relevant Standing Orders (MA 4 (2)) which provide:           "74.- (1) Communications between prisoners and their relatives         and friends shall be allowed in accordance with the following         provisions, subject to such restrictions as may be laid down         by the Secretary of State with a view to the maintenance of         discipline and order and the prevention of crime, and no other         person shall be allowed to communicate with a prisoner without         the authority of the Secretary of State ....             (4) Subject to the provisions of Rule 50 (4) every letter to         or from a prisoner shall be read by the Governor or by an         officer deputed by him for that purpose and it shall be within         the discretion of the Governor to stop any letter if he         considers that the contents are objectionable."           MA 4 (2): "If the recipient of correspondence from an inmate         requests in writing to the prison authorities that further         letters should not be sent, the inmate should be informed of         the request, asked to co-operate by not writing and given the         opportunity to discuss the matter with a member of staff.   If         the inmate then hands out a further letter for posting, the         Governor may, at his discretion, give effect to the         recipient's wishes and inform the inmate that his letter will         not be sent.   However correspondence between husbands and         wives should not be stopped other than on the order of a         court."           On 29 October 1984 the applicant contested the Prison Governor's decision by way of a petition to the Secretary of State for Scotland.   On 26 March 1985 the Scottish Home and Health Department informed the applicant that his request to write directly to the High Court of Justiciary was refused, but that, if he wished, he could request his solicitor to raise his complaint directly with the court. The applicant in the meantime had taken an equivalent step to this latter proposal by complaining to the Lord Chancellor about the Lord Justice Clerk and Justiciary Office.   His complaint was referred to the Scottish Courts Administration, which office informed the applicant on 22 April 1985 that, given his pending proceedings before the Commission, it would be inappropriate for them to comment.           In reply to a further petition (dated 10 June 1985) to the Secretary of State for Scotland requesting clarification of the Justiciary Office letter of 23 August 1984, the Scottish Home and Health Department stated (Petition reply dated 5 June 1985) that the High Court of Justiciary had been consulted, but believed no further clarification was necessary.   The applicant was again advised that he could have access to the Justiciary Office through his solicitor.           The applicant claims that he wished for further information from the Justiciary Office in order to institute proceedings for damages and a possible private criminal prosecution against his former agent and defence solicitor.   COMPLAINTS           The applicant complains that his correspondence to the High Court of Justiciary was unlawfully prohibited.   He originally invoked Articles 6 para. 1 and 8 of the Convention, but in subsequent submissions he has emphasised the Article 8 aspect of his complaint.   PROCEEDINGS BEFORE THE COMMISSION           The application was communicated to the Government on 10 May 1985 and, after an extension of the time limit for submission of observations, the Government, in a letter dated 12 September 1985, proposed amending Standing Order MA 4 (2) by the addition, at the end of the paragraph, of the following words:           "This paragraph does not apply to correspondence with a         court (including a named judge) or any public authority."           The amendment was circulated to the governors/wardens of all prisons in Scotland by the Scottish Home and Health Department.           The applicant replied, in a letter dated 9 October 1985, that he did not consider the amendment sufficient compensation, and that he was not prepared to agree to the withdrawal of his application until such time as the restrictions on his right to correspond with anyone he wishes are removed.           On 4 March 1986 the Commission decided that the parties' written observations on admissibility and merits were still required. The Government submitted such observations on 9 May 1986, to which the applicant replied on 26 June 1986.     SUBMISSIONS OF THE PARTIES             The Government           Part I - The facts           The Government points out that the applicant wrote to the Justiciary Office on numerous occasions between 1982 and 1984.   By August 1984 that Office considered that it had given all the information that could reasonably be given.   Hence the "informal request" to stop further correspondence in the Clerk's letter of 23 August 1984 to the Prison Governor.   It was the intention of that Office not to have stopped all correspondence, but only that concerning his conviction, sentence and appeal.   However the letter in question did not make this clear.   The Prison Governor instructed the prison censors to stop all the applicant's mail to the Justiciary Office, pursuant to Standing Order MA 4 (2).           The applicant has not had any proceedings before the High Court of Justiciary or Court of Criminal Appeal and he was not seeking to initiate such proceedings.   This would not be the competent jurisdiction for the applicant's intended proceedings against his defence solicitor.           The restriction on the applicant's writing to the High Court of Justiciary was lifted on 12 September 1985.   By a circular letter dated 16 October 1985, Standing Order MA 4 (2) was amended to exclude the stopping of correspondence with courts or other public authorities.           Part II - Relevant domestic law and practice           The Court Clerk's request to the Prison Governor was of an informal nature, not being based on any rule of law and it did not have any legal effect.   The Court's Office normally replies to reasonable requests for information, there being no written administrative practice regulating its correspondence.   Judges do not enter into correspondence with convicted persons.           Prison Governors have delegated censorship powers, deriving from the Prisons (Scotland) Act 1952 and the Prison (Scotland) Rules 1952.   These powers are exercised in accordance with administrative instructions contained in Prisons (Scotland) Standing Orders. Standing Order MA 4 (2) makes provision for the stopping of letters at the request of the recipient (see Rule 74 (1) and (4) Prison (Scotland) Rules 1952 and MA 4 (2) set out in THE FACTS p. 4 above). It was in pursuance of this Standing Order that the Prison Governor stopped the applicant's correspondence with the High Court of Justiciary, which order has now been amended to exclude correspondence with court or other public authorities.           Pursuant to the case of Raymond v.   Honey (1982) 1 All E.R. 756, it is clear that under English law Prison Governors have no authority to prevent prisoners' access to court in respect of the initiation or conduct of proceedings.   Scottish law would be similar in this respect, although there is little specifically about access to court in the Prison (Scotland) Rules.   The Scottish Standing Orders, however, make it clear that prisoners are to have all necessary access to court.             Part III - Admissibility and merits           In the Government's submission, in view of the lifting of the restriction of his correspondence and the amended Standing Order, the applicant can no longer claim to be a victim of a violation of the Convention within the meaning of Article 25 of the Convention.           It contends that the amended Standing Order is compatible with the right to respect for correspondence ensured by Article 8 of the Convention.           In so far as the applicant alleges denial of access to court the Government notes that this did not occur in the applicant's case. He was not seeking access to the civil courts and the criminal proceedings against him had been definitively terminated by the High Court of Justiciary, sitting as an appeal court, on 2 December 1982. The Convention does not guarantee a right to initiate private criminal proceedings.   No denial of access to court was intended by the Justiciary Office or the prison authorities.   If the applicant had intended to institute legal proceedings and his correspondence thereon censored, he would have had a domestic remedy by way of an application to commit the Prison Governor for contempt of court (cf. aforementioned Raymond and Honey case).           Part IV - Conclusions           The Government concludes that the application is           (a) inadmissible on the ground that the applicant is not a victim of a breach of the Convention or, alternatively,           (b)   inadmissible under Articles 6 and 8 as being manifestly ill-founded.           As a further alternative, it is submitted that there has been no breach of the Convention.             The applicant           The applicant claims to have needed information from the Justiciary Office about his former solicitor or agent, in order to prosecute an action for damages and a possible private criminal prosecution against him.           The applicant does not accept that the restriction on his correspondence has been lifted by Standing Order MA 4 (2) amended, because the copy of the order which was supplied to him in May 1986 remains unchanged.   In any event Standing Orders are mere guidelines which are not binding upon the prison authorities.   He thereby claims to remain a victim of a breach of the Convention.           The applicant contends that MA 4 (2) is unnecessary as it short circuits the recipient's right to have a court order or injunction forbidding further correspondence.   There is no appeal against an arbitrary decision by a Prison Governor to stop correspondence.           The applicant accepts that he was not denied access to court, except in so far as he was requesting information to enable him to take action against his previous agent.   He contests the jurisdiction and availability of contempt proceedings for a denial of access to court.           Conclusion           The applicant concludes that he is a victim of a violation of the Convention, that the Government's submissions are unfounded, that Standing Order MA 4 (2), in its original or amended form, is unnecessary and unjustifiable, and that the only restrictions on his correspondence should be those relating to general correspondence, as laid down in Standing Order MA 7.       THE LAW   1.       The applicant complains of the prohibition on his correspondence to the High Court of Justiciary from August 1984 until 12 September 1985.   His principal complaint is that he is a victim of a violation of Article 8 (Art. 8) of the Convention, the relevant part of which provides as follows:           "1.   Everyone has the right to respect for .... his         correspondence.           2.   There shall be no interference by a public authority         with the exercise of this right except such as is in         accordance with the law and is necessary in a democratic         society in the interests of national security, public         safety or the economic well-being of the country, for the         prevention of disorder or crime, for the protection of health         or morals, or for the protection of the rights and freedoms         of others."           He originally complained of a breach of Article 6 para. 1 (Art. 6-1) of the Convention which provides, inter alia, for a fair hearing in the determination of a person's civil rights and obligations or any criminal charge against him.   An inherent aspect of this right is that of access to court (Eur.   Court H.R. Golder judgment of 21 February 1975 Series A Vol. 18 para. 36).   However, the applicant accepted in his written observations on admissibility and merits that he was not actually denied access to court, although he had wished to seek certain information from the High Court of Justiciary which might have been of assistance in a possible action against his former solicitor or agent.   2.       The Government has submitted that, in view of the lifting of the contested restriction on 12 September 1985 and the amendment to Standing Order MA 4 (2) preventing the recurrence of such censorship, the applicant may no longer claim to be a victim of a breach of the Convention within the meaning of Article 25 (Art. 25).   3.       The Commission recalls previous case-law in which it has held that where there is a change in legislation or an effective resolution of the factual basis of an application during the course of proceedings before the Commission, the applicant may, in certain circumstances, no longer claim to be a victim of a violation of the Convention (No. 7658/76, Dec. 5.12.78, D.R. 15 p. 128 and No. 9435/81, Dec. 11.5.82 unpublished).           The Commission notes that the applicant was able to write several letters to the High Court of Justiciary prior to the prohibition in August 1984.   Between August 1984 and June 1985 the prohibition was under review before the Secretary of State for Scotland and the Scottish Courts Administration.   Throughout the prohibition the applicant was not actually denied access to court in respect of civil proceedings, or any criminal proceedings against him, and his solicitor could have obtained any information the applicant required from the High Court of Justiciary on his behalf.   The contested restriction was lifted on 12 September 1985 and the offending Standing Order amended soon after.   In these circumstances, the Commission finds that the applicant can no longer claim to be a victim of a violation of the Convention, within the meaning of Article 25 (Art. 25) of the Convention.           It follows that the application is now manifestly ill-founded, within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.             For these reasons, the Commission           DECLARES THE APPLICATION INADMISSIBLE,       Secretary to the Commission            President of the Commission               (H.C. KRÜGER)                             (C.A. NØRGAARD)