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In the case of Campbell and Fell,
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 [1], as a Chamber composed of the following judges :
Mr. G. Wiarda, President,
Mr. J. Cremona,
Mr. Tho ?r Vilhja ?lmsson,
Mr. F. Go ?lcu ?klu ?,
Sir Vincent Evans,
Mr. R. Macdonald,
Mr. C. Russo,
and also Mr. M.-A. Eissen, Registrar, and Mr. H. Petzold, Deputy
Registrar,
Having deliberated in private on 23 September and 8 and
9 December 1983 and on 2 and 3 May 1984,
Delivers the following judgment, which was adopted on the
last-mentioned date :
PROCEDURE
1. The present case was referred to the Court by the European
Commission of Human Rights ("the Commission") on 14 October 1982,
within the period of three months laid down by Articles 32 para. 1 and 47
(art. 32-1, art. 47) of the Convention. The case originated in two
applications (nos. 7819/77 and 7878/77) against the United Kingdom of
Great Britain and Northern Ireland lodged with the Commission in 1977
by Mr. John Joseph Campbell and Father Patrick Fell under Article 25
(art. 25). The Commission ordered the joinder of the applications on
14 and 19 March 1981.
2. The Commission’s 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 from
the Court as to the existence of violations of Articles 6 and 8
(art. 6, art. 8) in the case of Mr. Campbell and of Articles 6, 8
and 13 (art. 6, art. 8, art. 13) in the case of Father Fell.
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 para. 3 (b) of the
Rules of Court). On 28 October 1982, the President drew by lot, in
the presence of the Registrar, the names of the five other members,
namely Mr. J. Cremona, Mr. Tho ?r Vilhja ?lmsson, Mr. G. Lagergren,
Mr. R. Macdonald and Mr. C. Russo (Article 43 in fine of the
Convention and Rule 21 para. 4) (art. 43). Subsequently, Mr. F. Go ?lcu ?klu ?,
a substitute judge, took the place of Mr. Lagergren, who was prevented
from taking part in the consideration of the case (Rules 22 para. 1
and 24 para. 1).
4. Mr. Wiarda, who had assumed the office of President of the
Chamber (Rule 21 para. 5), ascertained, through the Registrar, the views
of the Agent of the Government of the United Kingdom ("the
Government") and the Delegate of the Commission regarding the
procedure to be followed. He decided on 17 November that the Agent
should have until 31 January 1983 to file a memorial and that the
Delegate should be entitled to reply in writing within two months from
the date of the transmission of the Government’s memorial to him by
the Registrar. The President agreed on 25 January to extend the first
of these time-limits until 14 March 1983.
The Government’s memorial was received at the registry on
17 March 1983. By letter of 18 May, the Secretary to the Commission
transmitted to the Court a memorial which had been submitted to the
Delegate by the applicants’ representatives ; that letter also set out
the Delegate’s views concerning the scope of the case before the Court
and indicated that he reserved the right to comment on both memorials
at the hearings.
5. After consulting, through the Registrar, the Agent of the
Government and the Delegate of the Commission, the President directed,
on 7 July 1983, that the hearings should open on 20 September 1983
and, on 27 July, that their scope should be limited in the manner set
out in his Order of the last-mentioned date.
6. The hearings were held in public at the Human Rights Building,
Strasbourg, on 20 September 1983. Immediately before they opened, the
Chamber had held a preparatory meeting.
There appeared before the Court :
- for the Government :
Mrs. A. Glover, Legal Adviser, Foreign and Commonwealth
Office, Agent,
Mr. M. Baker, Barrister-at-Law, Counsel,
Mr. C. Osborne,
Mr. P. Stevens,
Mr. J. Le Vay, Home Office, Advisers ;
- for the Commission :
Mr. T. Opsahl, Delegate,
Mr. C. Thornberry, Barrister-at-Law, and
Mr. A. Logan, Solicitor, the applicants’ lawyers before
the Commission, assisting the Delegate
(Rule 29 para. 1, second sentence, of the
Rules of Court).
The Court heard addresses by Mr. Baker for the Government and
by Mr. Opsahl and Mr. Thornberry for the Commission and also replies
to questions put by it and by two of its members.
7. At the hearings, Mr. Baker and Mr. Thornberry had made certain
submissions regarding the application of Article 50 (art. 50) of the
Convention in the event that the Court should find a violation to have
occurred. In accordance with the President’s Orders and directions,
the registry subsequently received the following documents on this
question :
- on 13 October 1983, through the Commission’s Delegate, observations
of the applicants ;
- on 2 December 1983, memorial of the Government ;
- on 13 January 1984, letter from the Secretary to the Commission,
indicating, inter alia, that the Delegate left the matter to the
decision of the Court.
AS TO THE FACTS
I. PARTICULAR FACTS OF THE CASE
A. General background and the incident on 16 September 1976
8. The first applicant, Mr. John Joseph Campbell, is a United
Kingdom citizen, born in Northern Ireland in 1944 and resident in
England since 1965.
In November 1973, he was convicted of various offences, including
conspiracy to rob and possession of a firearm with intent to commit
robbery, and sentenced to ten years’ imprisonment. He was
subsequently detained in a number of different prisons and,
on 16 September 1976, was in Albany Prison, Isle of Wight. He is now
at liberty.
9. The second applicant, Father Patrick Fell, is a United Kingdom
citizen, born in England in 1940. He is a Roman Catholic priest.
In November 1973, after being convicted of conspiracy to commit arson,
conspiracy to commit malicious damage, and taking part in the control
and management of an organisation using violent means to obtain a
political end, he was sentenced to twelve years’ imprisonment. He too
was subsequently detained in a number of different prisons and,
on 16 September 1976, was in Albany Prison. He is now at liberty.
10. At all relevant times, both applicants were classified as
"category A" prisoners (see paragraph 44 (a) below). The offences of
which they were convicted were believed by the authorities to form
part of, or to be connected with, Irish Republican Army terrorist
activities. According to the Commission’s report, both applicants
have consistently denied that they were members of that organisation.
11. On 16 September 1976, an incident occurred in Albany Prison.
Before the Commission, there was considerable dispute between the
Government and the applicants as to precisely what took place, notably
as to the weapons and amount of violence used, but the following
summary suffices for the present purposes.
Mr. Campbell, Father Fell and four other prisoners engaged in a
protest at the treatment of another prisoner, by sitting down in a
corridor of the prison and refusing to move. They were removed by
prison officers after a struggle and in the process injuries were
sustained by certain members of staff and by both applicants.
Mr. Campbell, who had been more seriously injured, was transferred to
Parkhurst Prison hospital for treatment and returned to Albany Prison
on 3O September 1976.
B. The disciplinary proceedings against Mr. Campbell
12. The six prisoners involved in the above-mentioned incident
were all charged with, and found guilty by the Prison Board of
Visitors of, disciplinary offences against the Prison Rules 1964, as
amended ("the Rules" ; see paragraphs 26-33 below). The Board heard
the cases on 24 September 1976, except that of Mr. Campbell who was
then still at Parkhurst.
13. On 1 October 1976, immediately after his return to Albany
Prison, Mr. Campbell was informed that he was charged with the
disciplinary offences of mutiny or incitement to mutiny and doing
gross personal violence to an officer, contrary to Rules 47 (1)
and (2) (see paragraph 27 below). The first charge concerned his
participation with the other prisoners in the incident ; the basis of
the second charge was an allegation that, on that occasion, he had
struck an officer with a broomhandle.
A preliminary hearing before the Prison Governor (see paragraph 31
below) took place on 1 October, when the charges were referred to the
Prison Board of Visitors. The latter heard the case, in private,
on 6 October. The applicant had received, before both hearings,
"notices of report" and, before the Board’s hearing, a copy of a form
outlining its procedure (see paragraph 36 below). The "notices of
report" in connection with the Board’s proceedings were issued
at 8 a.m. on 5 October. One notice began as follows :
"A report has been made against you by [a prison officer] that at
about 19.30 on 16 September 1976 at ’D’ hall you committed an offence
under paragraph 1 of Rule 47, i.e. mutiny."
The other notice began :
"A report has been made against you by [a prison officer] that at
about 22.05 on 16 September 1976 at ’D’ hall you committed an offence
under paragraph 2 of Rule 47, i.e. did strike an officer with a
broomhandle."
Both notices concluded as follows :
"Your case will be dealt with at adjudication tomorrow, when you will
be given every opportunity to make your defence.
If you wish to reply to the charge in writing you may do so on the
back of this form."
Mr. Campbell attended neither hearing. It is recorded that he
declared prior to the Governor’s hearing that he would be prepared to
attend only if he were legally represented. His request for legal
representation before the Board was also refused, in accordance with
the standard practice at the time (see paragraph 36 below). Before
the Board met, he had been visited by its chairman and warned that it
would proceed in his absence ; the records state that he understood
this warning and the charges against him. It appears that he did not
expressly seek either an adjournment of the Board’s hearing or a
consultation with a solicitor beforehand ; under the then practice, a
request of the latter kind would also have been unsuccessful (ibid.).
Before the Commission and the Court, Mr. Campbell gave additional
reasons for his non-attendance : firstly, having learned of the outcome
of the Board’s hearing on 24 September and having previous experience
of such proceedings himself, he did not believe that he would receive
a fair hearing and considered that his presence would be otiose ;
secondly, he was feeling very ill as a result of his injuries and, on
6 October, he was "in the punishment cell ; lying on the floor ; unable
to walk ; not being fed and in considerable pain". As regards the
latter allegations, which were disputed by the Government, the
applicant had been certified by the medical officer, before both
hearings, to be fit for punishment. The Commission concluded that it
was not established that Mr. Campbell was prevented from attending
rather than that he had decided, for his own reasons, not to attend ;
it proceeded on the assumption that his absence from the Board’s
hearing was a matter within his own responsibility.
14. Before the Board of Visitors, a plea of not guilty on each
charge was entered on behalf of the applicant, who did not submit any
written defence. According to the record of the proceedings - which
apparently in neither case lasted longer than fifteen minutes -, one
prison officer gave evidence on the mutiny charge, reading a statement
describing the part allegedly played by Mr. Campbell and the other
prisoners in the incident, and another gave evidence on the personal
violence charge, to the effect that he had been struck by
Mr. Campbell. The evidence of the first witness was accepted by
the Board and its chairman put certain questions to the second.
On 6 October 1976, the applicant was found guilty on both charges and
was awarded, for the mutiny and the violence offences respectively,
450 days’ and 120 days’ loss of remission, together, again
respectively, with 56 days’ and 35 days’ loss of certain privileges,
exclusion from associated work, stoppage of earnings and cellular
confinement, the sanctions for the two offences to run consecutively
(see paragraphs 28 and 29 below). On his reception into prison,
Mr. Campbell had been given an estimated date for release (see
paragraph 29 below) of May 1980 ; at the time of the Board’s award, he
had already forfeited 145 days of remission in ten separate
adjudications for offences against discipline and the balance of
potential remission available to him totalled 1,072 days.
15. Observations filed with the Commission on behalf of
Mr. Campbell on 1 September 1977 and on 17 April 1979 indicated,
respectively, that he was contemplating making and had made an
application to the English courts, by way of certiorari proceedings
(see paragraphs 39-41 below), for review of the October 1976
adjudication by the Board of Visitors in his case.
A memorandum filed on 23 July 1980 revealed, however, that on
counsel’s advice, given in November 1979 and June 1980, both
Mr. Campbell and Father Fell had decided not to make such an
application ; counsel considered, as regards the former, that
proceedings would be destined to fail on the ground that he had
"refused" to participate in the adjudication. At the hearings
of 20 September 1983 before the Court, the Government indicated that,
even in 1980, the Home Office would probably not have opposed a
request by Mr. Campbell for leave to apply for certiorari out of time
(see paragraph 41 below), but would do so now. He has, in fact, never
pursued the matter.
The question was subsequently reconsidered in the case of Father Fell
who had previously been advised, in November 1979, that an application
might be feasible. In February 1981, senior counsel advised him to
seek certiorari immediately on the ground of "substantial unfairness"
in the Board’s hearing of 24 September 1976 in his case, which he had
attended. Later in the year, he obtained the necessary leave from the
court, but his application failed, both at first instance and on
appeal.
16. Whilst in custody Mr. Campbell was the subject of fifteen
adjudications for disciplinary offences, as a result of which he lost
957 days of remission (including the 570 forfeited as a result of the
Board’s award of 6 October 1976). Following applications by him
pursuant to the procedure described in paragraph 38 below, 236 days of
remission were restored to him. He was released from prison on
31 March 1982, having served approximately eight years and eight
months of his ten years’ sentence, including time spent in custody on
remand.
C. The applicants’ access to legal advice in connection with their
personal-injuries claim
17. Father Fell petitioned the Home Secretary on or about
21 September 1976 in the following terms : "During the course of [an
incident at Albany Prison on 16 September], I sustained a number of
physical injuries. My request to yourself is that I be permitted to
see and to consult with my lawyer, pending further action that I may
deem necessary to take." About a week later, in a supplementary
petition, the applicant stated that he wanted to see his solicitor
regarding compensation for his injuries and any civil proceedings he
might be advised to take.
The Home Secretary replied on 1 October. He informed Father Fell
that, in accordance with the "prior ventilation rule" (see
paragraph 44 (c) below), he would be able to seek legal advice on the
substance of his complaints once they had been investigated through
the normal internal channels and he had been given the result of the
investigation.
18. Father Fell petitioned again on 4 October 1976. He gave
details of his allegations concerning the incident of 16 September and
its aftermath and asked for a thorough investigation ; he added further
information concerning his injuries in a supplementary petition of
27 October.
In his reply of 9 February 1977, the Home Secretary indicated that he
was satisfied, after investigation, that there was no substance in the
applicant’s allegations of assault and of inadequate or unnecessarily
delayed medical treatment ; he informed the applicant that he would be
granted facilities to seek legal advice on the matters referred to in
his petition, if he still wished to do so.
19. In a petition of 28 November 1976 to the Home Secretary,
Mr. Campbell stated, but without indicating the reasons, "I want to
see my lawyer". On 8 December, the request was refused, on the ground
that he had not supplied sufficient details for a proper internal
inquiry to commence. On 3 March 1977, the same ground was given for
refusing a further petition, dated 28 December 1976, in the following
terms : "As a result of injuries received at the hands of prison staff
at Albany Prison I intend to take legal action and therefore need to
see my solicitor. The incident happened in mid-September and I have
petitioned about it once before."
20. At this time, there was also a certain amount of
correspondence with Messrs. Woodford & Ackroyd, the solicitors then
acting for both applicants. After a letter of 17 January 1977 from
Mr. Campbell to them had been posted through the normal prison
channels, they wrote to the Home Office on 28 January stating that
they had been instructed to represent him in civil proceedings and
seeking authority to approach the Prison Governor to discuss their
client’s allegations. However, a letter of 24 January from them to
Mr. Campbell, referring, it seems, to legal aid, was stopped.
Instructions from the prisoners involved in the September 1976
incident also apparently reached the solicitors by other means.
On 10 February 1977, they wrote to the Albany Prison Governor stating
that both of the applicants and four other prisoners wished to see
them "concerning certain matters of a legal nature" and requesting
confirmation that this could be done in private. On 14 February
- that is five days after the Home Secretary had told Father Fell that
he could consult a lawyer (see paragraph 18 above) -, the Governor
replied that appointments to see, inter alios, that applicant could be
made, but that according to prison rules Mr. Campbell was not yet in a
position to seek legal advice, since the Prison Department’s
examination of his complaints had not yet been completed.
In a reply of 3 March to the solicitors’ above-mentioned letter
of 28 January, the Home Office stated that Mr. Campbell’s letter
of 17 January to them had been posted in error and that he could not
correspond with or receive visits from them until the "prior
ventilation rule" (see paragraph 44 (c) below) had been complied with
as regards any complaint he might wish to make.
On 23 March, Messrs. Woodford & Ackroyd were given permission to
consult with Mr. Campbell in connection with his application to the
Commission (see paragraph 44 (e) below). His account of the
September 1976 incident, contained in a memorandum of 1 September 1977
to the Commission, was subsequently accepted by the authorities as a
sufficient basis for an internal inquiry into his complaints to be
commenced. The inquiry - in which the applicant had not co-operated -
was completed on 29 November and, on or about 16 December 1977, he was
told that he could take legal advice concerning the complaints that
had been investigated.
21. Both applicants subsequently obtained various legal advice
and, by writs issued on 13 September 1979, instituted proceedings,
alleging assault, against individual prison officers, the Deputy
Governor and the Home Office. These actions, in which statements of
claim were served some fifteen months later, were still pending at the
time of the hearings before the Court (September 1983).
D. Conditions for visits to Father Fell by his solicitors
22. In a reply of 23 March 1977 to a letter of 21 March from
Messrs. Woodford & Ackroyd - who had already raised the matter in
their letter of 10 February (see paragraph 20 above) -, the Albany
Prison Governor stated that at that stage a visit by them to Father
Fell would be subject to Rule 37 (2) (see paragraph 44 (d) below) and
would therefore have to take place within sight and hearing of an
officer. They replied that they were unable to accept these
conditions and intended to refer the matter to "the European Court of
Human Rights".
On 11 May, the solicitors informed the Governor of the introduction,
on 31 March, of Father Fell’s application to the Commission ; on the
following day, the Governor informed them that they could interview
their client in connection with that application in sight but out of
hearing of an officer (see paragraph 44 (e) below).
E. The applicants’ access to medical advice
23. On or about 23 September 1976, Father Fell asked, in a
petition to the Home Secretary, for the opportunity for an independent
medical consultation. On 5 October, the Home Office stated that the
Secretary of State was not prepared to grant this request.
24. After Mr. Campbell’s return from Parkhurst to Albany Prison, a
request was made by him or his family, apparently on about 18 October
1976, for him to be examined by an independent doctor. According to
the Government, he was advised to pursue the matter by way of petition
to the Home Secretary, but did not do so. According to the applicant,
the request was categorically refused.
F. Restrictions on Father Fell’s personal correspondence
25. In October 1974, when in Hull Prison, Father Fell was
informed, in reply to his petition of the previous July, that the Home
Secretary was not prepared to allow him to correspond with a Sister
Monica Power, on the ground that although she had been known to him
before he came into custody, their relationship was not considered to
amount to a "close personal friendship". In a letter of 17 December
to a Member of Parliament, the Home Secretary maintained this
decision, which he explained by reference to the practice concerning
the permitted correspondents of "category A" prisoners (see
paragraph 44 (a) below) : there was no evidence of a friendship as
aforesaid between the applicant and Sister Power, although he had
known her for longer than some of his approved correspondents.
Father Fell also alleged that he had not been allowed to correspond
with other friends, including another nun, Sister Mary Benedict.
According to the Government, he corresponded with 200 persons prior to
his conviction, whilst detained on remand, and was allowed to
correspond with 40 persons thereafter.
II. DOMESTIC LAW AND PRACTICE
A. Prison discipline
1. Disciplinary offences and sanctions
26. 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 and currently in force are the
Prison Rules 1964, as amended.
27. Rule 47 creates a total of twenty-one disciplinary offences of
varying degrees of seriousness. So far as relevant to the present
case, it provides that "A prisoner shall be guilty of an offence
against discipline if he
(1) mutinies or incites another prisoner to mutiny ;
(2) does gross personal violence to an officer".
These acts are classified as "especially grave offences".
28. The Rules list the "awards" which may be made for an offence
against discipline ; they range from a caution upwards and include :
(a) forfeiture of certain privileges ;
(b) exclusion from associated work ;
(c) stoppage of earnings ;
(d) cellular confinement ;
(e) forfeiture of remission of sentence.
In the case of an "especially grave offence", the sanctions mentioned
at (b), (c) and (d) above may not be imposed for a period exceeding
56 days but there is no limit as regards those mentioned at (a) and
(e) (Rules 51 and 52).
Where more than one offence has been committed, the respective awards
may be ordered to run consecutively, although there is no provision in
the Rules on this point.
29. Section 25 (1) of the Prison Act 1952 provides :
"Rules made under section 47 of this Act may make provision whereby,
in such circumstances as may be prescribed by the rules, a person
serving a sentence of imprisonment for such a term as may be so
prescribed may be granted remission of such part of that sentence as
may be so prescribed on the ground of his industry and good conduct,
and on the discharge of a person from prison in pursuance of any such
remission as aforesaid his sentence shall expire."
Under Rule 5 (made pursuant to this section), a prisoner serving a
sentence of imprisonment other than for life "may ... be granted
remission" not exceeding one-third of his sentence. This therefore
represents the maximum period that may be forfeited under a
disciplinary award.
Under both the Prison Act and the Rules, remission - which is seen by
the authorities as part of the process for encouraging the reform of
prisoners - is a discretionary measure. In practice, at the outset of
his sentence every prisoner is given an estimated date for release,
calculated by reference to the maximum possible remission, and he will
be released on that date unless remission has been forfeited in
disciplinary proceedings. Forfeiture of remission - which is not
awarded solely for the most serious offences - does not have the
effect of increasing the original sentence and it is the latter which
continues to provide the legal basis for the detention.
2. Disciplinary proceedings
(a) Institution of proceedings
3O. Conduct constituting a disciplinary offence under the Rules
may also amount to an offence under the criminal law. Thus, doing
gross personal violence to an officer corresponds to the crime of
assault occasioning actual bodily harm. Mutiny and incitement to
mutiny, on the other hand, are not as such offences under the general
criminal law, although the underlying facts might found a charge of,
for instance, conspiracy.
According to the Government, where the conduct amounts to both a
disciplinary and a criminal offence, the Prison Department of the Home
Office decides on an ad hoc basis whether the matter should be
referred to the police with a view to prosecution in the courts.
Conduct so referred, they said, generally involved substantial
violence ; other relevant factors might be the prevalence of the
conduct in question within the prison, the feelings of staff and
inmates, the prisoner’s record and behaviour, the amount of any
remission he might previously have lost and of his sentence remaining
to be served, and the cost, inconvenience and security risks involved
in a criminal trial.
According to the applicants, however, an individual prison officer may
himself report the matter to the police, and the Government recognised
that, in any case where the police themselves decided not to
prosecute, a private prosecution remained a possibility. Moreover,
the same facts may, theoretically at least, give rise to both criminal
and disciplinary proceedings (see R. v. Hogan [1960] 3 All England Law
Reports 149).
31. Where a prisoner is to be charged with an offence against
discipline, the charge must be laid as soon as possible and must, in
the first instance, be inquired into by the prison governor, generally
not later than the day following the laying of the charge (Rule 48).
The prisoner must be informed of the charge as soon as possible and,
in any event, before the governor’s inquiry (Rule 49).
Certain less serious matters are dealt with by the governor alone. In
the case, however, of a charge of an "especially grave offence", he
has to inform the Home Secretary forthwith and, unless otherwise
directed by him, refer the charge to the prison’s Board of Visitors
(Rule 52).
(b) The Board of Visitors
32. A Board of Visitors is a body that has to be appointed, by the
Home Secretary, for each prison in England and Wales ; its members, at
least two of whom must be justices of the peace - who are not
necessarily lawyers -, hold office for three years or such less period
as the Home Secretary may appoint (section 6 of the Prison Act 1952,
as amended by the Courts Act 1971, and Rule 92). They may be
re-appointed.
There are l15 Boards in all and each has between 8 and 24 members, who
are unpaid but are reimbursed their expenses. Anyone may seek
appointment but in practice most candidates are persons suggested by
existing members. The main principles adopted in making appointments
are to achieve a roughly equal number of magistrates and
non-magistrates ; to provide members having the requisite personal
qualities, interest and time ; and to ensure that membership contains a
good cross-section of the population. A Board is normally appointed
for a three-year term ; there is no express statutory provision
enabling the Home Secretary to dismiss a member and resignation before
expiry of a term of office would, according to the Government, be
required only in the most exceptional circumstances.
33. A Board’s duties include, in addition to inquiring into
charges of disciplinary offences, satisfying itself as to the state of
the premises, the administration of the prison and the treatment of
inmates, hearing a prisoner’s complaints or requests, directing the
governor’s attention to matters calling for his attention and making
reports to the Home Secretary (Rules 94, 95 and 97). In case of
urgent necessity, it has power to suspend any prison officer until the
decision of the Home Secretary is known (Rule 94 (4)). Its members
are required to visit the prison frequently, have a right of access to
every part of the prison and to prison records and may interview any
prisoner out of the sight and hearing of officers (Rule 96). A
Board’s adjudicatory functions generally account for a small
proportion of its overall duties and, of the small percentage of
prison disciplinary proceedings which are conducted before Boards, few
concern "especially grave offences".
The various functions of Boards of Visitors were examined by an
independent committee set up by "Justice", the Howard League for Penal
Reform and the National Association for the Care and Resettlement of
Offenders. In its report of 1975 ("the Jellicoe report"), this
committee noted that "Boards take their duties of adjudication very
seriously", but that "in spite of the efforts made to do justice it is
doubtful whether it is seen to be done". It concluded that to be
involved in the adjudication of serious offences was incompatible with
the supervisory body’s need to establish conspicuous independence and
therefore recommended that "the body responsible for supervision
should not have a disciplinary function". Nevertheless, "after careful
consideration", the Home Secretary decided in 1976 that "the
independence of Boards of Visitors was compatible with their other
functions".
The status of Boards was also considered in the St. Germain case (see
paragraph 39 below). In the Court of Appeal, Lord Justice Waller
stated that "Boards of visitors hold the balance between the governor
and the internal discipline of the prison and the prisoner himself
and, when sitting [in an adjudicatory capacity], can be regarded as
’an impartial and independent authority’" ; for Lord Justice Megaw, a
Board’s adjudicatory function "was properly regarded as a separate and
independent function, different in character from [its] other
functions".
(c) Procedure before the Board of Visitors
34. When a charge of an "especially grave offence" is referred to
a Board, its chairman must summon a special meeting at which not more
than five nor fewer than three members - at least two being justices
of the peace - must be present (Rule 52). If, after inquiring into
the charge, the Board finds the offence proved, it has to make one of
the awards mentioned in paragraph 28 above, although the
implementation thereof may be suspended.
35. Neither the Prison Act 1952 nor the Rules lay down a detailed
code of procedure for disciplinary proceedings before Boards of
Visitors. However, Rule 49 (2) - a similar provision appears in
section 47 (2) of the Act - reads as follows : "At any inquiry into a
charge against a prisoner he shall be given a full opportunity of
hearing what is alleged against him and of presenting his own case."
The procedure used to be arranged as a matter of practice. Since 1977
Boards have been issued by the Prison Department of the Home Office
with a booklet entitled "Procedure for the Conduct of an Adjudication
by a Board of Visitors".
36. Proceedings before the Board are initiated by means of a
report by a prison officer to the governor containing details of the
alleged offence. The prisoner will receive a "notice of report",
stating the alleged offence and the time, date and place thereof, and
may reply to the charge in writing. He will also be given a form,
which has no statutory force, outlining the procedure which will be
followed when he appears before the Board : he will be asked to plead
to the charge and may question witnesses in support of the charge,
request that witnesses on his behalf be heard and himself give
evidence or make his defence. The hearing takes place in private
within the prison and the Board’s decision is pronounced under the
same conditions.
The Rules themselves contain no specific provision as regards legal
advice about, or legal representation at, an adjudication before a
Board. Under the practice followed prior to 1981, a prisoner would
not have been granted leave to seek legal advice before the hearing.
Furthermore, the Court of Appeal held in Fraser v. Mudge ([1975] 3 All
England Law Reports 78) that although a Board had to observe the
requirements of natural justice and act fairly in disciplinary
proceedings, a prisoner was not entitled to legal representation
thereat. However, in its judgment of 8 November 1983 in R. v. Albany
Prison Board of Visitors, ex parte Tarrant ([1984] 1 All England Law
Reports 799), the Divisional Court held that although there is no
absolute entitlement to such representation, a Board does have a
discretion to allow it. Furthermore, the prisoner has a right to
require that that discretion be exercised and that his request for
representation be properly considered on its merits ; if the Board
fails to exercise its discretion properly, its decision must be
quashed. Mr. Justice Webster added that in most, if not all, cases
involving a charge of mutiny no Board of Visitors, properly directing
itself, could reasonably decide not to allow legal representation.
37. In 1978, in the St. Germain case (see paragraph 39 below), the
Court of Appeal had to consider, for reasons of jurisdiction, whether
disciplinary proceedings before a Board of Visitors were a "criminal
cause or matter", within the meaning of the relevant legislation. It
answered this question in the negative.
Lord Justice Waller based his decision on the fact that the charges
heard by the Board were not "criminal", that is charges "of an offence
against public law", and that the Board was not a court of criminal
jurisdiction.
Lord Justice Shaw considered that the Board’s proceedings possessed
some of the attributes of a criminal cause or matter (for example,
accusation, inquiry, adjudication and possible punitive consequences)
but lacked the essential characteristic, namely a penal proceeding for
the infraction of a requirement relating to the enforcement and
preservation of public law and order. In determining the nature of
proceedings, account also had to be taken of their context and overall
objective. Although an offence under the Rules might coincide with a
crime under the general law and lead to a measure corresponding to a
penalty or punishment, this did not transform the Board’s adjudication
into a criminal cause or matter. It was essentially a domestic
disciplinary proceeding, which did not purport to deal with misconduct
in its relation to the public law or the public interest and was
designed and pursued with the limited objective of maintaining order
within the confines of a prison. It would also be illogical and
anomalous to regard as a criminal cause or matter proceedings arising
from an offence under the Rules which did not amount to a criminal
offence under the general law.
However, in R v. Highpoint Prison Board of Visitors, ex parte
McConkey, Mr. Justice McCullough, in his judgment of 2O September 1982
(Times Law Reports, 23 September 1982), referred to the "close
similarity" between an accusation of breach of the Rules and an
accusation of a criminal offence : each was followed by an adjudication
and might lead to consequences of a punitive character, for example,
in the former case, forfeiture of remission. Although prison
disciplinary offences were offences against a private code, they were
also "penal" ; in principle, the relevant Rules should be construed no
more harshly against a prisoner than would be appropriate were the
offences criminal. Again, in the Tarrant case (see paragraph 36 in
fine above) it was conceded on behalf of the Board of Visitors that
the standard of proof to be applied in disciplinary adjudications was
a criminal one.
3. Subsequent review of Board of Visitors’ disciplinary proceedings
(a) Internal channels
38. Under Rule 56, disciplinary awards made by a Board of Visitors
may be remitted or mitigated by the Home Secretary or, subject to his
directions, by the Board itself. Procedures and criteria for the
restoration of forfeited remission of sentence are laid down in
Circular Instruction 58/1976 issued by the Minister : basically, the
prisoner must show a significant improvement indicative of a genuine
change of attitude, and the power to restore is not to be used merely
to modify an award which is subsequently thought excessive or open to
doubt.
Applications for remission or mitigation of awards are normally made
in the first instance to the Board itself. Its decision may be the
subject of a petition by the prisoner to the Home Secretary. Under
Rule 7, every prisoner has to be provided on or shortly after his
reception into prison with information in writing about, inter alia,
the proper method of making petitions.
In the St. Germain case (see paragraph 39 below), the members of the
Court of Appeal expressed the view that a petition under Rule 56 was
not to be regarded as a formal appeal ; it was noted, amongst other
things, that the Home Secretary was not empowered to quash the Board’s
finding of guilt.
(b) Application to the domestic courts
39. (a) The question whether the English courts have jurisdiction
to review disciplinary proceedings before Boards of Visitors was
considered in R. v. Hull Prison Board of Visitors, ex parte
St. Germain and others. In that case, application was made for orders
of certiorari to quash, on the ground of failure to observe the rules
of natural justice, certain decisions imposing disciplinary awards,
taken by a Board in 1976.
(b) In a judgment of 6 December 1977 ([1978] 2 All England Law Reports
198), the Divisional Court held that although a Board was in the
nature of a judicial body under a duty to act judicially, it was not
subject to control by way of certiorari, a remedy which did not extend
to private disciplinary proceedings in a closed body enjoying its own
form of discipline and rules. It was stressed that a Board had an
"intimate relationship" with the prison and, when adjudicating, was
part of the latter’s disciplinary machinery.
(c) Notice of appeal against this decision was served on
20 December 1977. The Court of Appeal allowed the appeal in its
judgment of 3 October 1978 ([1979] 1 All England Law Reports 701). It
held that there was no rule of law that the courts were to abdicate
jurisdiction merely because the proceedings under review were of an
internal disciplinary character. There was no binding authority as to
whether certiorari would lie against disciplinary decisions of a Board
of Visitors and the question had to be decided in the light of public
policy. A Board’s disciplinary functions were separate and
independent from its other functions. When hearing disciplinary
charges it was not imposing summary discipline as part of the day to
day administration of the prison but was instead an independent body
which could only punish a prisoner after a formalised inquiry and/or
hearing. In doing so it was exercising a judicial function and its
decisions were therefore subject to control by the courts by
certiorari in appropriate cases. However, the remedy was
discretionary and relief would be granted only where there had been a
failure to act fairly, having regard to all the circumstances, and
such unfairness had given rise to a substantial, as distinct from a
trivial or merely technical, injustice.
4O. The case was then remitted to the Divisional Court which, by
judgment of 15 June 1979 ([1979] 3 All England Law Reports 545),
quashed certain of the decisions taken by the Hull Prison Board of
Visitors. The Divisional Court observed that section 47 (2) of the
Prison Act 1952 and Rule 49 (2) (see paragraph 35 above) were
declaratory of the basic rule of natural justice that every party to a
controversy had a right to a fair hearing ; although, on the facts,
this rule had not been observed as regards the quashed decisions,
there was nothing in the Board’s procedure in general to which any
objection could properly be taken.
The Divisional Court pointed out that the right to a fair hearing
before a Board of Visitors included the right to call evidence ; the
chairman’s power to refuse to allow a prisoner to call witnesses had
to be exercised reasonably, in good faith and on proper grounds (which
would not include mere administrative convenience). Further, the
prisoner must also have a sufficient opportunity to deal with the
evidence given against him, which might necessitate giving him the
opportunity to cross-examine witnesses whose evidence was initially
before the Board in hearsay form.
41. Applications for certiorari must in principle be made within a
prescribed time-limit running from the date of the decision
challenged : in 1976, the time-limit was six months ; since
11 January 1978, it has been three months. Leave may be granted to
apply out of time ; this is a matter for the court’s discretion but
experience shows that if a late application is not opposed by the Home
Office, leave will not be refused.
Where decisions taken by a Board of Visitors in disciplinary
proceedings are quashed by a court, the charges in question may
subsequently be the subject of a fresh adjudication by a differently
constituted Board.
B. Prisoners’ correspondence and visits
42. The question of prisoners’ correspondence and visits is dealt
with in a number of the Rules.
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. As far as correspondence and visits are concerned, the
directives 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.
Prior to 1 December 1981, the directives in question 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 and visits.
1. Position at the time of the events giving rise to the present case
43. The basic Rules on correspondence and visits, which were in
force at the time of the events giving rise to the present case,
included the following :
"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.
(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.
(3) Except as provided by these Rules, every letter or communication
to or from a prisoner 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.
(4) Every visit to a prisoner shall take place within the sight of an
officer, unless the Secretary of State otherwise directs.
(5) Except as provided by these Rules, every visit to a prisoner
shall take place within the hearing of an officer, unless the
Secretary of State otherwise directs.
(6) The Secretary of State may give directions, generally or in
relation to any visit or class of visits, concerning the days and
times when prisoners may be visited."
"34 (8) A prisoner shall not be entitled under [Rule 34]" - which
regulates the quantity of correspondence and visits - "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."
44. The foregoing Rules were supplemented or modified, either by
Orders or Instructions or by further Rules, in a number of respects,
including the following.
(a) Under Rule 34 (8), as supplemented by Order 5A 23, prisoners had
to seek the Home Secretary’s leave to correspond with or be visited by
any person other than a close relation ; they were, however, also
normally allowed, without the necessity to seek such leave, to
correspond with or be visited by other relatives or existing friends,
but the governor could forbid such correspondence or visits on grounds
of security or good order and discipline or in the interests of the
prevention or discouragement of crime. Governors had a discretion to
allow communications with certain other persons not personally known
to the prisoner before he came into custody. However, it would have
been unlikely that such discretion would have been exercised in favour
of "category A" prisoners, such as Mr. Campbell and Father Fell ; this
is 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.
(b) With effect from 1 January 1973, the extent of the control of
correspondence relating to civil or criminal proceedings to which the
prisoner is already a party was limited by Rule 37A (1), which 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."
(c) 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
that were subsequently reflected in Rule 37A (4), which came into
operation on 26 April 1976 and 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."
Instruction 45/1975 - and subsequently Order 17A - further 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, which
could take the form of a letter or a visit ; they had to be granted
immediately, except that, in the case of prospective civil proceedings
against the Home Office (or any servant thereof) "arising out of or in
connexion with" the imprisonment, the "prior ventilation rule"
generally applied.
The effect of the last-mentioned rule was that the prisoner would not
be granted facilities to obtain legal advice, by correspondence or at
a visit, about such proceedings unless and until he had raised 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, whether favourable or not.
(d) Visits by legal advisers were subject to the following special
Rule :
"37 (1) The legal adviser of a prisoner in any legal proceedings,
civil or criminal, to which the prisoner is a party shall be afforded
reasonable facilities for interviewing him in connection with those
proceedings, and may do so out of hearing but in the sight of an
officer.
(2) A prisoner’s legal adviser may, with the leave of the Secretary
of State, interview the prisoner in connection with any other legal
business in the sight and hearing of an officer."
Disciplinary proceedings before a Board of Visitors were not
considered by the authorities to be "legal proceedings" for the
purposes of the Rules, notably Rule 37 (1) and Rule 37(A) 1.
(e) There were special, less strict, provisions concerning
applications to the Commission (Order 5B 22).
2. Position with effect from 1 December 1981
45. Prior to 1 December 1981, both Orders and Instructions
contained, in addition to directives on the control of prisoners’
correspondence and visits, internal rules and guidance of a general
nature concerning the day to day administration of the prison. With
effect from that date, the directives on correspondence and visits
were substantially revised. In addition, revised Orders on those
subjects have been published in their entirety, matters of a
management or administrative nature which do not concern a prisoner’s
entitlement to correspond or receive visits 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 have indicated that as soon as
practicable Rule 34 (8) (see paragraph 43 above) would be repealed in
so far as it affected correspondence.
46. So far as is material to the present case, the earlier
position is now modified in the following respects.
(a) The new Orders (nos. 5B23-5B30) state that, with certain
exceptions, a prisoner may correspond with any person or organisation,
provided always that the regulations on the contents of correspondence
and the "simultaneous ventilation rule" are observed.
(b) The "simultaneous ventilation rule", set out in Order 5B34 j, has
taken the place of the "prior ventilation rule" (see paragraph 44 (c)
in fine above). Legal advice concerning civil proceedings in respect
of prison treatment may now be obtained as soon as the prisoner has
raised his complaint through the prescribed procedures ; he no longer
has to await the outcome of the internal inquiry.
(c) Rule 37 (1) (see paragraph 44 (d) above) continues to apply to
visits by a legal adviser concerning legal proceedings to which the
prisoner is already a party. Under new Order 5A34, other visits by a
legal adviser acting in a professional capacity are also now allowed
out of the hearing of a prison officer, provided the subject to be
discussed is disclosed to the governor in advance and does not offend
against the restrictions on correspondence with legal advisers set out
in new Order 5B34 (including the "simultaneous ventilation rule"). If
the subject to be discussed is not disclosed, the visit will still be
allowed but will be in the hearing of an officer.
C. Obtaining of medical advice by prisoners
47. Under Rule 17, responsibility for the health of prisoners is
placed on the prison medical officer ; he has discretion to call in
another medical practitioner.
The prison authorities will not generally allow a convicted prisoner
to be examined by an outside doctor (other than one called in as
aforesaid) unless the prisoner is a party to legal proceedings, in
which event Rule 37A (3) applies. This Rule provides :
"Subject to any directions given in the particular case by the
Secretary of State, a registered medical practitioner selected by or
on behalf of [a prisoner who is party to any legal proceedings] shall
be afforded reasonable facilities for examining him in connection with
the proceedings, and may do so out of hearing but in the sight of an
officer."
D. Complaints concerning the control of correspondence and visits
1. Internal channels of complaint
48. An inmate who is aggrieved by a decision concerning his
correspondence or visits 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
49. 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
50. 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 concerning his correspondence or visits, 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.
Prior to 1 December 1981, directives concerning the submission of
petitions were contained in Orders 5B l-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 5ClO. 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 interferences with his correspondence but not
restrictions on his visits.
2. The Parliamentary Commissioner for Administration
51. Complaints concerning the control of correspondence or visits
may also, on certain conditions, be raised with the Parliamentary
Commissioner for Administration (the Ombudsman). However, his
jurisdiction does not extend to restrictions effected pursuant to a
correct exercise of a discretion conferred by the Rules or the Home
Secretary’s directives ; moreover, the Ombudsman cannot grant direct
relief since he is limited to reporting the results of his
investigation to a Member of Parliament, the authority concerned and,
in certain circumstances, each House of Parliament (sections 10 and 12
of the Parliamentary Commissioner Act 1967).
3. Application to the domestic courts
52. The exercise by the prison authorities of their powers under
the Rules to control correspondence and visits 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
correspond or receive visits (for example, Rules 37(A) 1 and 37 (1) ;
see paragraph 44, sub-paragraphs (b) and (d), above), and to ensure
that the discretion conferred on the authorities by the Rules is not
exercised arbitrarily or unreasonably, 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."
PROCEEDINGS BEFORE THE COMMISSION
53. Mr. Campbell and Father Fell applied to the Commission on
4 and 31 March 1977 respectively. In their applications or in
subsequent memoranda each of them :
(a) alleged that he had been convicted by the Board of Visitors of
disciplinary charges amounting in substance to "criminal" charges,
without having been afforded a hearing complying with the requirements
of Article 6 (art. 6) of the Convention ;
(b) contended that the delay in allowing him to obtain legal advice
following the incident of 16 September 1976 involved breaches of his
right of access to court, guaranteed by Article 6 (art. 6), and of his
right to respect for correspondence, guaranteed by Article 8 (art. 8) ;
(c) maintained that the refusal to allow independent medical
examination involved a further infringement of his rights under
Article 6 (art. 6) ;
(d) made a number of other complaints, notably concerning his
treatment during and after the aforementioned incident.
On 6 May 1978, the Commission declared Mr. Campbell’s application
admissible as regards items (a), (b) and (c) above and inadmissible as
regards the remainder.
By a partial decision of 9 October 1980 and a final decision of 14 and
19 March 1981, the Commission :
- declared Father Fell’s application admissible as regards items (b)
and (c) above and his additional allegations that the refusal to allow
him to consult with his lawyer in confidence constituted breaches of
Articles 6 and 8 (art. 6, art. 8), that the refusal to allow him to
correspond with certain individuals amounted to a violation of
Article 8 (art. 8) and that, in breach of Article 13 (art. 13), he had
no effective remedy for his complaints ;
- declared Father Fell’s application inadmissible as regards items (a)
and (d) above, on the ground, in the case of item (a), that at the
time of its March 1981 decision he had failed to exhaust the domestic
remedy of applying for certiorari (see paragraphs 15 and 39-41 above).
In the last-mentioned decision, the Commission also ordered the
joinder of the two applications in pursuance of Rule 29 of its Rules
of Procedure.
54. In its report of 12 May 1982 (Article 31 of the
Convention) (art. 31), the Commission expressed the opinion :
- that the proceedings before the Board of Visitors in
Mr. Campbell’s case had involved a breach of his rights under
Article 6 (art. 6) (nine votes, with three abstentions) ;
- that the delay in allowing both applicants to obtain legal
advice involved breaches of Article 6 para. 1 and Article 8 (art. 6-1,
art. 8) (unanimously) ;
- that no breach of Article 6 para. 1 (art. 6-1) arose from the
refusal to allow the applicants facilities for an independent medical
examination (unanimously) ;
- that the refusal to allow Father Fell to consult in private
with his lawyer was in breach of Article 6 para. 1 (art. 6-1) and that it
was not necessary to consider whether it also breached Article 8
(art. 8) (unanimously) ;
- that the refusal to allow Father Fell to correspond with
Sister Power and Sister Benedict constituted a violation of Article 8
(art. 8) (unanimously) ;
- that no effective remedy was available to Father Fell in
relation to his complaints under Article 8 (art. 8) and that in this
respect there was a breach of Article 13 (art. 13) (unanimously).
The full text of the Commission’s opinion and of the one dissenting
opinion contained in the report is reproduced as an annex to the
present judgment.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
55. At the hearings on 20 September 1983, the Government invited
the Court to decide the case - subject to such concessions as they had
made on that occasion - in the manner stated in their memorial of
17 March 1983, namely :
"With regard to Article 6 (art. 6)
(i) to decide and declare that Article 6 (art. 6) of the
Convention does not apply to a Board of Visitors’ inquiry into and
adjudication upon the offences against discipline specified in Rule 47
of the Prison Rules 1964 (as amended) or any of them ;
(ii) to decide and declare that the facts found disclose no
breaches arising out of the Prison Board of Visitors’ inquiry into and
adjudication upon the offences alleged against John Joseph Campbell ;
(iii) to decide and declare that John Joseph Campbell has failed to
exhaust all domestic remedies in relation to all or any breaches
arising out of the aforesaid inquiry and adjudication ;
(iv) to take express note in its judgment of the changes made to
the law and practice in the United Kingdom relating to the control of
communication between prisoners and their legal advisers since the
judgment of the Court in the Golder case, and
(a) in the light of such changes to decline to examine further the
claims of breaches of Article 6 (art. 6) of the Convention relating
thereto
or alternatively
(b) to decide and declare that the facts found disclose no breaches
by the United Kingdom of its obligations under Article 6 (art. 6) of
the Convention relating thereto other than as set forth in the report
of the Commission.
With regard to Article 8 (art. 8)
(i) insofar as the Commission concluded that the facts found
disclosed no breach by the United Kingdom of its obligations under
Article 8 (art. 8) of the Convention, to confirm and uphold the
Commission’s conclusions ;
(ii) insofar as the Commission’s findings of breaches of the
Convention are not contested by the United Kingdom Government on the
grounds of the changes made by the revised Standing Orders to the
practice in the United Kingdom relating to prisoners’ correspondence :
(a) to decide and declare that the facts found disclose no breaches
otherwise than as set forth in the report of the Commission ;
(b) to take express note in its judgment of the changes made by the
revised Standing Orders as remedying the breaches so found by the
Commission.
With regard to Article 13 (art. 13)
To decide and declare that the facts found would not disclose a breach
by the United Kingdom of its obligations under Article 13 (art. 13) of
the Convention after the coming into effect of the revised Standing
Orders relating to prisoners’ correspondence and visits."
AS TO THE LAW
I. PRELIMINARY PLEAS
A. Mr. Campbell’s alleged failure to exhaust domestic remedies as
regards the Board of Visitors’ proceedings
56. In their memorial of 17 March 1983 to the Court, the
Government submitted that by failing to apply for judicial review,
seeking an order of certiorari (see paragraphs 15 and 39-41 above), of
the Board of Visitors’ adjudication in his case, Mr. Campbell had not
exhausted all his domestic remedies and that for that reason his
complaints concerning those proceedings ought not to be given
consideration.
57. The Court will take cognisance of preliminary pleas of this
kind if and in so far as the respondent State may already have raised
them before the Commission to the extent that their character and the
circumstances permitted ; this should normally be done at the stage of
the initial examination of admissibility. If this condition is not
fulfilled, the Government are estopped from raising the plea before
the Court (see, inter alia, the Artico judgment of 13 May 1980,
Series A no. 37, pp. 12 and 13, paras. 24 and 27).
1. Estoppel
58. The Government’s observations on the admissibility of
Mr. Campbell’s application were filed with the Commission on
20 December 1977 ; they contained no reference to the question of the
exhaustion of domestic remedies as regards the Board’s proceedings.
It was only in their observations on the merits (13 December 1978)
that the Government requested the Commission to reject, under
Articles 26 and 29 (art. 26, art. 29) of the Convention, the
complaints concerning those proceedings, on the ground that no
application for certiorari had been made. The Commission, which had
already, on 6 May 1978, declared these complaints admissible, found,
on 14 and 19 March 1981, that there was no basis for the application
of Article 29 (art. 29), that provision requiring unanimity.
59. The Court notes that on 6 December 1977 it had been held by
the Divisional Court in the St. Germain case that certiorari did not
lie in respect of Board of Visitors’ proceedings (see paragraph 39 (b)
above). It would therefore have been difficult for the Government, a
fortnight later, to plead before the Commission - contrary to the
argument put to the Divisional Court by counsel for the Hull Prison
Board of Visitors, who was instructed by the Treasury Solicitor - that
this remedy was available. In contrast to the view expressed by the
Commission’s Delegate, the Court also considers that since the
authorities had just succeeded in the domestic action, the Government
could scarcely have maintained that this was an uncertain or
unresolved issue in English law and that Mr. Campbell should therefore
test the matter in the courts.
Notice of appeal in the St. Germain case was served on
20 December 1977 but the matter was not finally resolved until
3 October 1978, when the Court of Appeal reversed the Divisional
Court’s decision (see paragraph 39 (c) above). It was clearly the
1978 judgment that prompted the Government to supplement their initial
arguments and, in the particular circumstances, the Court does not
consider that they could reasonably have been expected to raise the
plea of non-exhaustion at an earlier stage (see the above-mentioned
Artico judgment, ibid., p. 13, para. 27, third sub-paragraph). There is
accordingly no estoppel.
2. Whether the plea is well-founded
60. The only remedies which Article 26 (art. 26) of the Convention
requires to be exercised are those which relate to the breaches
alleged and are at the same time available and sufficient (see, inter
alia, the Van Oosterwijck judgment of 6 November 1980, Series A
no. 40, p. 13, para. 27).
As regards Mr. Campbell, the Commission expressed no opinion as to
whether the remedy of certiorari fell within this category.
61. The existence of a remedy must be sufficiently certain before
there can be an obligation to exhaust it (see the De Wilde, Ooms and
Versyp judgment of 18 June 1971, Series A no. 12, p. 34, para. 62, the
Deweer judgment of 27 February 1980, Series A no. 35, p. 18, para. 32,
and, mutatis mutandis, the Van Droogenbroeck judgment of 24 June 1982,
Series A no. 50, p. 30, para. 54). At the time of Mr. Campbell’s
application to the Commission (4 March 1977), there was nothing to
indicate that certiorari lay in respect of a Board of Visitors’
adjudication ; as the Court of Appeal observed in the St. Germain case,
there was no binding authority on this point (see paragraph 39 (c)
above). The position changed, however, with the Court of Appeal’s
judgment of 3 October 1978 in that case, which established that
prisoners could seek judicial review of such disciplinary proceedings.
It has nevertheless to be remembered that in Mr. Campbell’s case the
prescribed time-limit within which certiorari must in principle be
applied for had long expired (see paragraph 41 above and the
above-mentioned De Wilde, Ooms and Versyp judgment, Series A no. 12,
pp. 34-35, para. 62). It is true that leave may be granted to apply out
of time and, indeed, the Government submitted that if Mr. Campbell had
applied for leave soon after the Divisional Court’s second judgment in
the St. Germain case (15 June 1979), this would not have been refused ;
however, they conceded that it was predictable that he would not now
obtain leave because his delay would be regarded as inordinate and
inexcusable (see paragraphs 15, 40 and 41 above). The availability of
the remedy has to be seen in the light of these considerations.
62. As to whether the remedy would have been effective, the
Government conceded at the hearings before the Court that it would not
have been in respect of a substantial number of the applicant’s
complaints, namely his inability to obtain legal assistance before the
Board’s hearing, the fact that the Board neither conducted its
proceedings in public nor pronounced its decision publicly and the
allegation that the Board was not "independent". They took the same
view as regards the question of legal representation at the Board’s
hearing, subject, however, to the outcome of the Tarrant case. The
Court notes that in that case it was established, contrary to the
Government’s opinion, that an application for judicial review seeking
an order of certiorari could provide an effective remedy against an
unreasonable decision not to allow legal representation (see
paragraph 36 in fine above). Nevertheless, although the law has now
been clarified in that sense, the fact remains, as was admitted by the
Government, that Mr. Campbell could no longer expect to obtain leave
to pursue this remedy in his case.
63. It is true that there are Mr. Campbell’s other complaints,
namely his allegations that the Board was not "impartial" and had not
afforded him a "fair" hearing, that the presumption of innocence had
been infringed, that he had not been sufficiently informed of the
accusations against him nor had adequate time to prepare his defence,
and that he had been deprived of rights concerning witnesses.
In respect of these complaints, the Government submitted that they
could and should have been made the subject of proceedings for
judicial review after 3 October 1978. However, when the existence of
a remedy by way of an application for judicial review had been
established by the Court of Appeal’s judgment in the St. Germain case
and when in the Government’s submission it was still available to
Mr. Campbell, the Commission decided not to reject his application on
this ground. In this situation Mr. Campbell was, in the opinion of
the Court, justified in relying on the Commission’s decision for the
purpose of pursuing his case under the Convention and in not applying
to the domestic courts for judicial review of the Board of Visitors’
proceedings. Furthermore, the Government concede that recourse to
that remedy is predictably no longer available to him. Consequently,
the Court considers that it would be unjust now to find these
complaints inadmissible for failure to exhaust domestic remedies.
B. The admissibility of Father Fell’s complaints as regards the Board
of Visitors’ proceedings
64. Father Fell’s complaints regarding the Board of Visitors’
adjudication in his case were declared inadmissible by the Commission
on the ground that, at the time of its decision (14 and 19 March
1981), he had failed to exhaust the domestic remedy of applying for
certiorari (see paragraph 53 above).
In his memorial to the Court, Father Fell, after pointing out that he
had since made such an application, albeit unsuccessfully (see
paragraph 15 above), submitted that the aforesaid complaints were now
admissible.
65. According to the settled case-law of the Court, decisions by
the Commission to reject applications which it considers to be
inadmissible are without appeal and the Court’s jurisdiction in
contentious matters is limited to applications which have been
accepted by the Commission (see, inter alia, the above-mentioned
De Wilde, Ooms and Versyp judgment, Series A no. 12, p. 30, para. 51, the
Ireland v. the United Kingdom judgment of 18 January 1978, Series A
no. 25, p. 63, para. 157, and the Foti and Others judgment of
10 December 1982, Series A no. 56, p. 14, paras. 40-41).
It follows that the Court has no jurisdiction to examine Father Fell’s
submission.
II. THE BOARD OF VISITORS’ PROCEEDINGS IN THE CASE OF MR. CAMPBELL
66. Mr. Campbell alleged that he had been convicted by the Board
of Visitors of disciplinary charges amounting in substance to
"criminal" charges, without having been afforded a hearing complying
with the requirements of Article 6 (art. 6) of the Convention, which
provides certain guarantees "in the determination of ... civil rights
and obligations or of any criminal charge".
A. The applicability of Article 6 (art. 6)
1. The existence of a "criminal charge"
67. The Commission came to the conclusion that the adjudication by
the Board of Visitors in Mr. Campbell’s case did involve the
determination of "criminal charges" and that Article 6 (art. 6) was
therefore applicable.
As their principal submission, the Government contested this view.
68. The Court was confronted with a similar issue in the case of
Engel and Others, which was cited in argument by those appearing
before it in the present proceedings. In its judgment of 8 June 1976
in that case (Series A no. 22, pp. 33-35, paras. 80-82), the Court, after
drawing attention to the "autonomy" of the notion of "criminal charge"
as conceived of under Article 6 (art. 6), set forth the following
principles which it re-affirmed in its O ?ztu ?rk judgment of
21 February 1984 (Series A no. 73, pp. 17-18, paras. 48-50).
(a) The Convention is not opposed to the Contracting States creating
or maintaining a distinction between criminal law and disciplinary law
and drawing the dividing line, but it does not follow that the
classification thus made is decisive for the purposes of the
Convention.
(b) If the Contracting States were able at their discretion, by
classifying an offence as disciplinary instead of criminal, to exclude
the operation of the fundamental clauses of Articles 6 and 7 (art. 6,
art. 7), the application of these provisions would be subordinated to
their sovereign will. A latitude extending thus far might lead to
results incompatible with the object and purpose of the Convention.
69. The Court was careful in the Engel and Others judgment to
state that, as regards the dividing line between the "criminal" and
the "disciplinary", it was confining its attention to the sphere with
which the case was concerned, namely military service. It is well
aware that in the prison context there are practical reasons and
reasons of policy for establishing a special disciplinary regime, for
example security considerations and the interests of public order, the
need to deal with misconduct by inmates as expeditiously as possible,
the availability of tailor-made sanctions which may not be at the
disposal of the ordinary courts and the desire of the prison
authorities to retain ultimate responsibility for discipline within
their establishments.
However, the guarantee of a fair hearing, which is the aim of
Article 6 (art. 6), is one of the fundamental principles of any
democratic society, within the meaning of the Convention (see the
Golder judgment of 21 February 1975, Series A no. 18, p. 18, para. 36).
As the Golder judgment shows, justice cannot stop at the prison gate
and there is, in appropriate cases, no warrant for depriving inmates
of the safeguards of Article 6 (art. 6).
It follows that the principles set forth in the Engel and Others
judgment are also relevant, mutatis mutandis, in a custodial setting
and that the reasons mentioned above cannot override the necessity of
maintaining, there too, a dividing line between the "criminal" and the
"disciplinary" that is consistent with the object and purpose of
Article 6 (art. 6). It therefore has to be determined whether the
proceedings against Mr. Campbell have to be regarded as coming within
the "criminal" sphere for Convention purposes. To this end, the Court
considers it right to apply, making due allowance for the different
context, the criteria stated in that judgment.
70. The first matter to be ascertained is whether or not the text
defining the offences in issue belongs, according to the domestic
legal system, to criminal law, disciplinary law or both concurrently
(see the above-mentioned Engel and Others judgment, Series A no. 22,
pp. 34-35, para. 82).
It is clear that, in English law, the offences with which Mr. Campbell
was charged belong to disciplinary law : Rule 47 states that conduct of
this kind on the part of a prisoner shall be "an offence against
discipline" and the Rules go on to provide how it shall be dealt with
under the special prison disciplinary regime (see paragraphs 27-31
above). Confirmation that domestic law regards Board of Visitors’
adjudications as falling outside the criminal sphere is to be found in
the Court of Appeal’s decision in the St. Germain case that they are
not a "criminal cause or matter" (see paragraph 37 above).
Lord Justice Shaw there expressed the view that such an adjudication
was essentially a domestic disciplinary proceeding, which did not
purport to deal with misconduct in its relation to the public law or
the public interest and was designed and pursued with the limited
objective of maintaining order within the confines of the prison.
Indeed, the Court notes that it is for this precise purpose, amongst
others, that the Home Secretary is empowered by section 47 (1) of the
Prison Act 1952 to make rules (see paragraph 26 above). Nevertheless,
the Court also notes that certain parallels between Board of Visitors’
proceedings and criminal proceedings were drawn in the McConkey and
the Tarrant cases (see paragraph 37 in fine above).
71. In any event, the indications so afforded by the national law
have only a relative value ; the very nature of the offence is a
factor of greater import (see the above-mentioned Engel and Others
judgment, ibid., p. 35, para. 82).
In this respect, it has to be borne in mind that misconduct by a
prisoner may take different forms ; certain acts are clearly no more
than a question of internal discipline, whereas others cannot be seen
in the same light. Firstly, some matters may be more serious than
others ; in fact, the Rules grade offences, classifying those committed
by Mr. Campbell as "especially grave" (see paragraph 27 above).
Secondly, the illegality of some acts may not turn on the fact that
they were committed in prison : certain conduct which constitutes an
offence under the Rules may also amount to an offence under the
criminal law. Thus, doing gross personal violence to a prison officer
may correspond to the crime of "assault occasioning actual bodily
harm" and, although mutiny and incitement to mutiny are not as such
offences under the general criminal law, the underlying facts may
found a criminal charge of conspiracy (see paragraph 30 above). It
also has to be remembered that, theoretically at least, there is
nothing to prevent conduct of this kind being the subject of both
criminal and disciplinary proceedings (ibid.).
The Court considers that these factors, whilst not of themselves
sufficient to lead to the conclusion that the offences with which the
applicant was charged have to be regarded as "criminal" for Convention
purposes, do give them a certain colouring which does not entirely
coincide with that of a purely disciplinary matter.
72. It is therefore necessary to turn to the last criterion stated
in the above-mentioned Engel and Others judgment (ibid., p. 35, para. 82)
and in the above-mentioned O ?ztu ?rk judgment (Series A no. 73, p. 18,
para. 50), namely the nature and degree of severity of the penalty that
Mr. Campbell risked incurring. The maximum penalties which could have
been imposed on him included forfeiture of all of the remission of
sentence available to him at the time of the Board’s award (slightly
less than three years), forfeiture of certain privileges for an
unlimited time and, for each offence, exclusion from associated work,
stoppage of earnings and cellular confinement for a maximum of
56 days ; he was in fact awarded a total of 570 days’ loss of remission
and subjected to the other penalties mentioned for a total of 91 days
(see paragraphs 14 and 28 above).
There was considerable discussion, both in the St. Germain case and
before the Convention institutions, as to the nature of remission of
sentence and its forfeiture. Under English law, remission is a
discretionary measure (see paragraph 29 above). It is regarded by the
English courts as being technically a privilege rather than a right,
but the Court of Appeal did observe in the St. Germain case that
"although in form remission of sentence may have been the grant of a
privilege, loss of remission was in fact a punishment or deprivation
affecting the rights of the subject".
The Court, for its part, does not find that the distinction between
privilege and right is of great assistance to it for the present
purposes ; what is more important is that the practice of granting
remission - whereby a prisoner will be set free on the estimated date
for release given to him at the outset of his sentence, unless
remission has been forfeited in disciplinary proceedings (see
paragraph 29 above) - creates in him a legitimate expectation that he
will recover his liberty before the end of his term of imprisonment.
Forfeiture of remission thus has the effect of causing the detention
to continue beyond the period corresponding to that expectation.
Confirmation of the foregoing is found in the following passage from
the judgment of Lord Justice Waller in the St. Germain case :
"... it was common ground ... that a prisoner is credited with his
full remission when he arrives in prison after sentence and he is told
then his earliest date of release. Whether it is a right or a
privilege a prisoner can expect to be released on that date unless he
is ordered to forfeit some remission. Lord Reid quoted deprivation
’of rights or privileges’ as being of equal importance, and I
respectfully agree with him. Whether remission is a right or a
privilege is in my opinion immaterial. It is only necessary to
consider the case of [X], who was ordered to forfeit 720 days. As a
result he would have to serve nearly two years beyond his earliest
date of release. It was a very substantial privilege which he had
lost." ([1979] 1 All England Law Reports, pp. 723j-724b)
In its above-mentioned Engel and Others judgment (ibid., p. 35, para. 82),
the Court stated that deprivation of liberty liable to be imposed as a
punishment was, in general, a penalty that belonged to the "criminal"
sphere. It is true that in the present case the legal basis for the
detention remained, even after the Board’s award, the original
sentence of imprisonment and that nothing was added thereto (see
paragraph 29 above). However, the Court is of the opinion that the
forfeiture of remission which Mr. Campbell risked incurring and the
forfeiture actually awarded involved such serious consequences as
regards the length of his detention that these penalties have to be
regarded, for Convention purposes, as "criminal". By causing
detention to continue for substantially longer than would otherwise
have been the case, the sanction came close to, even if it did not
technically constitute, deprivation of liberty and the object and
purpose of the Convention require that the imposition of a measure of
such gravity should be accompanied by the guarantees of Article 6
(art. 6). This conclusion is not altered by the fact that a
considerable number of days of remission were subsequently restored to
the applicant (see paragraph 16 above).
73. Taking into account, therefore, both the "especially grave"
character of the offences with which Mr. Campbell was charged (see
paragraph 27 above) and the nature and severity of the penalty that he
risked incurring - and did in fact incur -, the Court finds that
Article 6 (art. 6) is applicable to the Board of Visitors’
adjudication in his case. It is accordingly not necessary to consider
the sanctions, other than forfeiture of remission, which could have
been or were imposed on him.
2. The existence of a "determination" of "civil rights"
74. Having regard to the finding in the preceding paragraph, there
is also no need to examine whether the aforesaid adjudication involved
a "determination" of "civil rights". Like the Commission, the Court
considers this question to be devoid of interest for the decision in
the particular case (see the above-mentioned Deweer judgment, Series A
no. 35, p. 24, para. 47).
B. Compliance with Article 6 (art. 6)
75. Mr. Campbell submitted that before the Board of Visitors he
did not receive a "fair hearing" complying with paragraphs 1
(art. 6-1) and 3 (a) to (d) of Article 6 (art. 6-3-a, art. 6-3-b,
art. 6-3-c, art. 6-3-d). He also contended that the presumption of
innocence (Article 6 para. 2) (art. 6-2) had been infringed.
1. Article 6 para. 1 (art. 6-1)
76. Article 6 para. 1 (art. 6-1) of the Convention reads as follows :
"In the determination of his civil rights and obligations or of any
criminal charge against him, everyone is entitled to a fair and public
hearing within a reasonable time by an independent and impartial
tribunal established by law. Judgment shall be pronounced publicly
but the press and public may be excluded from all or part of the trial
in the interests of morals, public order or national security in a
democratic society, where the interests of juveniles or the protection
of the private life of the parties so require, or to the extent
strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of
justice."
It was not disputed in the present case that a Board of Visitors, when
carrying out its adjudicatory tasks, is a "tribunal established by
law". It is, in fact, clear that the relevant English legislation
confers on Boards a power of binding decision in the area in question
and the dicta in the St. Germain case show that this is a judicial
function (see paragraphs 38 and 39 above). Again, the word "tribunal"
in Article 6 para. 1 (art. 6-1) is not necessarily to be understood as
signifying a court of law of the classic kind, integrated within the
standard judicial machinery of the country (see, mutatis mutandis, the
X v. the United Kingdom judgment of 5 November 1981, Series A no. 46,
p. 23, para. 53).
(a) "Independent" tribunal
77. Mr. Campbell alleged that the Board of Visitors which heard
his case was not an "independent" tribunal, within the meaning of
Article 6 para. 1 (art. 6-1). He contended that Boards were mere
"cyphers", were not seen by prisoners to be independent and were, in
practice, an arm of the executive : as regards many of their functions,
they were under the control of the prison authorities and had to
accept the Home Secretary’s directions. In particular, it was
submitted that they were not independent in exercising their
adjudicatory role.
The Commission, whilst recognising that Boards were under a legal
obligation to act independently and impartially, stated that this was
not of itself sufficient : to be truly "independent" the body concerned
must be independent of the executive in its functions and as an
institution, such independence ensuring, notably, that justice is seen
to be done. In the Commission’s view, a Board did not possess the
necessary institutional independence : firstly, its members were
appointed for limited periods by the Home Secretary and did not appear
to be irremovable ; secondly, although a Board was not part of the
administration, its other functions were such as to bring it into day
to day contact with the officials of the prison in such a way as to
identify it with the management of the prison.
This conclusion was contested by the Government. They maintained,
inter alia, that a Board was not part of the management structure of
the prison : it was independent of the prison administration locally
and nationally and, in discharging its administrative role, did not
act on behalf of the executive.
78. In determining whether a body can be considered to be
"independent" - notably of the executive and of the parties to the
case (see, inter alia, the Le Compte, Van Leuven and De Meyere
judgment of 23 June 1981, Series A no. 43, p. 24, para. 55) -, the Court
has had regard to the manner of appointment of its members and the
duration of their term of office (ibid., pp. 24-25, para. 57), the
existence of guarantees against outside pressures (see the Piersack
judgment of 1 October 1982, Series A no. 53, p. 13, para. 27) and the
question whether the body presents an appearance of independence (see
the Delcourt judgment of 17 January 1970, Series A no. 11, p. 17,
para. 31).
The factors which were relied on in the present case as indicative of
the Board’s lack of "independence" will be considered in turn.
79. Members of Boards are appointed by the Home Secretary, who is
himself responsible for the administration of prisons in England and
Wales (see paragraphs 26 and 32 above).
The Court does not consider that this establishes that the members are
not independent of the executive : to hold otherwise would mean that
judges appointed by or on the advice of a Minister having
responsibilities in the field of the administration of the courts were
also not "independent". Moreover, although it is true that the Home
Office may issue Boards with guidelines as to the performance of their
functions (see paragraph 35 above), they are not subject to its
instructions in their adjudicatory role.
80. Members of Boards hold office for a term of three years or
such less period as the Home Secretary may appoint (see paragraph 32
above).
The term of office is admittedly relatively short but the Court notes
that there is a very understandable reason : the members are unpaid
(ibid.) and it might well prove difficult to find individuals willing
and suitable to undertake the onerous and important tasks involved if
the period were longer.
The Court notes that the Rules contain neither any regulation
governing the removal of members of a Board nor any guarantee for
their irremovability.
Although it appears that the Home Secretary could require the
resignation of a member, this would be done only in the most
exceptional circumstances and the existence of this possibility cannot
be regarded as threatening in any respect the independence of the
members of a Board in the performance of their judicial function.
It is true that the irremovability of judges by the executive during
their term of office must in general be considered as a corollary of
their independence and thus included in the guarantees of
Article 6 para. 1 (art. 6-1). However, the absence of a formal
recognition of this irremovability in the law does not in itself imply
lack of independence provided that it is recognised in fact and that
the other necessary guarantees are present (see the above-mentioned
Engel and Others judgment, Series A no. 22, pp. 27-28, para. 68).
81. There remains the question of the Board’s independence having
regard to the fact that it has both adjudicatory and supervisory roles
(see paragraph 33 above).
In that latter role, a Board is, as the Government pointed out,
intended to exercise an independent oversight of the administration of
the prison. In the nature of things, supervision must involve a Board
in frequent contacts with the prison officials and just as much with
the inmates themselves ; yet this in no way alters the fact that its
function, even when discharging its administrative duties, is to "hold
the ring" between the parties concerned, independently of both of
them. The impression which prisoners may have that Boards are closely
associated with the executive and the prison administration is a
factor of greater weight, particularly bearing in mind the importance
in the context of Article 6 (art. 6) of the maxim "justice must not
only be done : it must also be seen to be done". However, the
existence of such sentiments on the part of inmates, which is probably
unavoidable in a custodial setting, is not sufficient to establish a
lack of "independence". This requirement of Article 6 (art. 6) would
not be satisfied if prisoners were reasonably entitled, on account of
the frequent contacts between a Board and the authorities, to think
that the former was dependent on the latter (see, mutatis mutandis,
the above-mentioned Piersack judgment, Series A no. 53, p. 15, para. 30 in
fine) ; however, the Court does not consider that the mere fact of
these contacts, which exist also with the prisoners themselves, could
justify such an impression.
82. In the light of the foregoing, the Court sees no reason to
conclude that the Board in question was not "independent", within the
meaning of Article 6 (art. 6).
(b) "Impartial" tribunal
83. Mr. Campbell further contended that the Board of Visitors
which heard his case was not an "impartial" tribunal.
The Government contested this allegation. The Commission expressed no
specific opinion thereon, although it took care to point out that the
conclusions in its report were not to be taken as implying a finding
of bias or anything similar on the part of the Board.
84. The personal impartiality of members of a body covered by
Article 6 (art. 6) is to be presumed until there is proof to the
contrary (see the above-mentioned Le Compte, Van Leuven and De Meyere
judgment, Series A no. 43, p. 25, para. 58). In the present case, the
applicant has adduced no evidence to give the Court any cause for
doubt on this score.
85. However, it is not possible to confine oneself to a purely
subjective test : in this area, appearances may be of a certain
importance and account must be taken of questions of internal
organisation (see the above-mentioned Piersack judgment, Series A
no. 53, pp. 14-15, para. 30).
Prior to 6 October 1976, the Albany Prison Board of Visitors played no
role whatsoever in the disciplinary proceedings against the applicant ;
when it sat on that date, it came fresh to his case (see
paragraphs 12-14 above). The Court, therefore, perceives nothing in
the actual organisation of the adjudication that would reflect
adversely on the Board’s objective "impartiality".
There remains the fact that Mr. Campbell might not have seen the Board
as being totally free from bias. However, for reasons similar to
those given in paragraph 81 above, the Court does not consider that,
in the particular context, this suffices to establish that this
requirement of Article 6 (art. 6) was not satisfied.
(c) "Public hearing"
86. The applicant complained of the fact that the adjudication by
the Board of Visitors in his case had not been conducted in public,
although he admitted that for him this was a marginal point.
The Commission considered that there had been a failure to comply with
Article 6 (art. 6) in this respect. The Government submitted that the
practice whereby a Board’s proceedings were always held in private
(see paragraph 36 above) was legitimate : they relied on the
entitlement under Article 6 (art. 6) to exclude press and public from
a trial "in the interests of ... public order or national security in
a democratic society", "where ... the protection of the private life
of the parties so require[s]" or, alternatively, because there were
"special circumstances where publicity would prejudice the interests
of justice". Security problems, the possible propagation of malicious
allegations by a prisoner and the latter’s own wishes for privacy were
cited in support of this submission.
87. It is true that ordinary criminal proceedings - which may well
concern dangerous individuals or necessitate the production of a
prisoner before the court - nearly always take place in public,
notwithstanding the attendant security problems, the possible
propagation of malicious allegations and the wishes of the accused.
However, the Court cannot disregard the factors cited by the
Government, notably the considerations of public order and the
security problems that would be involved if prison disciplinary
proceedings were conducted in public. Such a course would undoubtedly
occasion difficulties of greater magnitude than those that arise in
ordinary criminal proceedings. A Board’s adjudications are, as befits
the character of disciplinary proceedings of this kind, habitually
held within the prison precincts and the difficulties over admitting
the public to those precincts are obvious. If they were held outside,
similar problems would arise as regards the prisoner’s transportation
to and attendance at the hearing. To require that disciplinary
proceedings concerning convicted prisoners should be held in public
would impose a disproportionate burden on the authorities of the
State.
88. The Court therefore accepts that there were sufficient reasons
of public order and security justifying the exclusion of the press and
public from the proceedings against Mr. Campbell. There was
accordingly no violation of Article 6 para. 1 (art. 6-1) in this respect.
(d) Public pronouncement of the decision
89. Again as no more than a marginal point, the applicant
complained of the fact that the Board of Visitors had not pronounced
publicly its decision in his case.
The Commission considered that this also constituted a failure to
comply with Article 6 (art. 6). The Government relied in this context
too on problems of security and public order ; they further submitted
that, if it was considered that the power to exclude the public
applied only to the trial as distinct from pronouncement of the
judgment, this particular requirement of Article 6 (art. 6) should be
read as subject to the implied limitation that members of the public
could legitimately be excluded in those cases in which disciplinary
offences by prisoners were adjudicated upon.
90. It is true that the Court has recognised that to a certain
extent the right of access to the courts secured by Article 6 (art. 6)
may be subject to limitations permitted by implication (see the
above-mentioned Golder judgment, Series A no. 18, pp. 18-19, para. 38).
However, that recognition resulted from the fact that the right in
question was inherent in the first sentence of Article 6 para. 1
(art. 6-1) but was not defined therein. Again, unlike the first
sentence, the second sentence does already contain a detailed list of
express exceptions. Bearing in mind the terms of Article 17 (art. 17)
and the importance of the principle of publication (see, inter alia,
the Sutter judgment of 22 February 1984, Series A no. 74, p. 12,
para. 26), the Court does not consider that that principle may be regarded
as subject to an implied limitation as suggested by the Government.
91. The Court has said in other cases that it does not feel bound
to adopt a literal interpretation of the words "pronounced publicly" :
in each case the form of publication given to the "judgment" under the
domestic law of the respondent State must be assessed in the light of
the special features of the proceedings in question and by reference
to the object pursued by Article 6 para. 1 (art. 6-1) in this context,
namely to ensure scrutiny of the judiciary by the public with a view
to safeguarding the right to a fair trial (see the Pretto and Others
judgment of 8 December 1983, Series A no. 71, pp. 11-13, paras. 21 and
26-27, and the above-mentioned Sutter judgment, Series A no. 74,
pp. 12 and 14, paras. 26 and 33).
92. However, in the present case it does not appear that any steps
were taken to make public the Board of Visitors’ decision. There has
accordingly been a violation of Article 6 para. 1 (art. 6-1) on this
point.
2. Article 6 para. 2 (art. 6-2)
93. Mr. Campbell claimed that during the course of the Board’s
adjudication there had been a violation of paragraph 2 of Article 6
(art. 6-2), which reads as follows :
"Everyone charged with a criminal offence shall be presumed innocent
until proved guilty according to law."
The Government contested this allegation. The Commission expressed no
specific conclusion thereon.
94. The Court notes that when Mr. Campbell failed to attend the
Board’s hearing, pleas of "not guilty" to both charges were entered on
his behalf (see paragraph 14 above). He has adduced no evidence
whatsoever to establish that the Board proceeded otherwise than on the
basis of those pleas. His claim must therefore be rejected.
3. Article 6 para. 3 (a) (art. 6-3-a)
95. Mr. Campbell maintained that he had not been adequately
informed of the nature of the accusation against him and that there
had accordingly been a breach of sub-paragraph (a) of Article 6 para. 3
(art. 6-3-a), which entitles everyone charged with a criminal offence
"to be informed promptly, in a language which he understands and in
detail, of the nature and cause of the accusation against him".
The Government contested this allegation. The Commission expressed no
specific conclusion thereon.
96. The Court notes that, prior to both the Governor’s and the
Board’s hearing, the applicant had received "notices of report"
setting out the charges against him ; he had also been visited by the
chairman of the Board before it sat (see paragraph 13 above).
The main thrust of Mr. Campbell’s argument appears to be that the
offence of "mutiny" is a complex concept, especially in a prison
context, and that he had not been sufficiently informed, or was not in
a position to understand, precisely what was meant by this term or
what defences might be available to him. He could, however, very well
have obtained further information had he appeared at the Governor’s or
the Board’s hearing ; and it has to be remembered that his failure to
attend on the latter occasion was, so the Commission found (see
paragraph 13 in fine above), a matter within his own responsibility.
In all the circumstances, the Court does not consider that a breach of
Article 6 para. 3 (a) (art. 6-3-a) occurred.
4. Article 6 para. 3, sub-paragraphs (b) and (c) (art. 6-3-b, art. 6-3-c)
97. The applicant submitted that in connection with the Board’s
adjudication he had been the victim of a violation of
sub-paragraphs (b) and (c) of Article 6 para. 3 (art. 6-3-b, art. 6-3-c),
which entitle everyone charged with a criminal offence "to have
adequate time and facilities for the preparation of his defence" and
"to defend himself in person or through legal assistance of his own
choosing or, if he has not sufficient means to pay for legal
assistance, to be given it free when the interests of justice so
require". He stressed that, in view of the nature of the charges
against him, he should have been able to obtain legal advice and
assistance.
In its report, the Commission considered that there had been a failure
to comply with the Convention’s requirements, in that Mr. Campbell was
not afforded the opportunity to obtain legal advice and assistance
before, or legal representation at, the Board’s proceedings ; at the
hearings before the Court, the Delegate added that, in view of the
Commission’s opinion that the absence of a right to any legal
assistance involved a breach of sub-paragraph (c) (art. 6-3-c), it was
unnecessary to consider that aspect of the case further under
sub-paragraph (b) (art. 6-3-b). The Government accepted that, under
the law in force at the time (see paragraphs 13 and 36 above), the
applicant had no right to legal representation at the Board’s hearing ;
they also conceded that had he requested legal assistance beforehand,
this too would have been refused under the practice then followed
(ibid.).
98. Mr. Campbell was informed of the charges against him on
1 October 1976, five days before the Board sat (see paragraph 13
above). He also received "notices of report", those relative to the
Board’s adjudication having been given to him on the day before it
met ; the notices drew attention to the fact that he could reply to the
charges in writing (ibid.).
The Court considers that in all the circumstances the applicant was
left with "adequate time" to prepare his defence ; it notes that he
apparently did not seek an adjournment of the hearing (ibid.).
99. As regards sub-paragraph (c) of Article 6 para. 3 (art. 6-3-c), it
is true that Mr. Campbell elected not to attend the Board’s hearing,
but the Convention requires that a "person charged with a criminal
offence who does not wish to defend himself in person must be able to
have recourse to legal assistance of his own choosing" (see the
Pakelli judgment of 25 April 1983, Series A no. 64, p. 15, para. 31).
Moreover, a lawyer could scarcely "assist" his client - in terms of
sub-paragraph (c) (art. 6-3-c) - unless there had been some previous
consultation between them. This latter consideration leads the Court
to the conclusion that the "facilities" contemplated by
sub-paragraph (b) (art. 6-3-b) were not afforded.
Accordingly, there was a breach of sub-paragraphs (b) and (c) of
Article 6 para. 3 (art. 6-3-b, art. 6-3-c).
5. Article 6 para. 3 (d) (art. 6-3-d)
100. The applicant also contended that as regards the Board’s
adjudication he had been the victim of a violation of
sub-paragraph (d) of Article 6 para. 3 (art. 6-3-d), which entitles
everyone charged with a criminal offence "to examine or have examined
witnesses against him and to obtain the attendance and examination of
witnesses on his behalf under the same conditions as witnesses against
him".
The Government contested this allegation. The Commission expressed no
specific conclusion thereon.
101. Mr. Campbell has furnished no details in support of this
claim. In addition, it can be seen from the Divisional Court’s second
judgment in the St. Germain case (see paragraph 40 above) that English
law recognises that a prisoner appearing before a Board of Visitors
does have definite rights in the matter of witnesses. Moreover and
above all, this complaint has to be seen in the light of the fact that
the applicant declined to attend the adjudication : what might have
transpired had he been present is a matter of pure conjecture on which
the Court cannot embark.
In these circumstances, no violation of sub-paragraph (d) of
Article 6 para. 3 (art. 6-3-d) has been established.
6. Conclusions
102. To sum up, the Court has found that there was a failure to
comply with the requirements of Article 6 (art. 6), in that :
- the Board of Visitors did not pronounce its decision publicly ;
- Mr. Campbell was not entitled to obtain legal assistance prior to
the Board’s hearing or legal representation thereat.
There remains a more general allegation made by the applicant, namely
that he did not receive a "fair" hearing by the Board. His submission
that Boards do not make serious attempts to investigate charges
referred to them can be rejected at the outset, for he has furnished
no data to contradict the Jellicoe committee’s finding that Boards
take their duties of adjudication very seriously (see paragraph 33
above). Secondly, leaving aside the specific complaints with which
the Court has dealt above, Mr. Campbell has adduced no evidence to
establish any unfairness or miscarriage of justice, whether as regards
the actual conduct of the proceedings, the assessment of the evidence,
the finding of guilt, the selection of the penalties or otherwise.
Having particular regard to the fact that he was entitled but declined
to attend the hearing, the Court finds that this allegation is not
substantiated.
In reaching its conclusions on this part of the case, the Court has
not been unmindful of the developments in English law in the matter of
certiorari, as evidenced by the decisions in the St. Germain case
(see paragraphs 39-40 above), and the recent changes as regards the
possibility for a prisoner appearing before a Board of Visitors to
obtain legal representation or assistance (see paragraphs 36 and 46
above). Neither has it overlooked the fact that, under the current
practice (see paragraph 30 above), a criminal court rather than a
Board of Visitors may be called upon to deal with misconduct which
involves substantial violence or is committed by a prisoner having
only a small part of his sentence remaining to be served.
III. THE APPLICANTS’ ACCESS TO LEGAL ADVICE IN CONNECTION WITH
THEIR PERSONAL-INJURIES CLAIM
A. Preliminary
103. It is convenient to deal first of all with certain pleas which
the Government based on the modifications made to English law and
practice since the time of the events giving rise to the present
proceedings (see paragraphs 42-52 above). These pleas related not
only to the applicants’ access to legal advice in connection with
their personal-injuries claim but also to the conditions for visits by
a lawyer to Father Fell, to the restrictions on the latter’s personal
correspondence and to the alleged violation of Article 13 (art. 13) of
the Convention (see sections IV, VI and VII below). The Government
requested the Court :
- in the context of Article 6 (art. 6), to take express note in its
judgment of the changes made as regards the control of communication
between prisoners and their legal advisers ;
- to take note of the changes made by the revised Standing Orders as
"remedying the breaches" of Article 8 (art. 8) found by the
Commission ; and
- to declare that the facts of the case would not disclose a breach of
Article 13 (art. 13) after the coming into effect of the revised
Orders.
104. The Court examined analogous pleas by the United Kingdom
Government in its Silver and Others judgment of 25 March 1983
(Series A no. 61, p. 31, para. 79) ; it sees no cause on the present
occasion to depart from the ruling which it then gave. The Court
therefore holds that it cannot examine the compatibility of the
modified law and practice with the Convention ; however, it notes that,
in particular with effect from December 1981, substantial changes have
been made in this area by the United Kingdom with a view to ensuring
the observance of the engagements undertaken by it in the Convention.
B. Article 6 para. 1 (art. 6-1)
105. The applicants submitted that the delay in granting them
permission to seek legal advice in connection with a civil action
claiming compensation for the injuries sustained during the incident
of 16 September 1976 (see paragraphs 17-20 above) constituted a denial
of access to the courts, in violation of Article 6 para. 1 (art. 6-1) of
the Convention, as interpreted by the Court in its above-mentioned
Golder judgment (Series A no. 18).
The Commission expressed the opinion that there had been a violation
in this respect. The Government’s principal plea was that the Court
should decline to rule on the matter in the light of the changes made
to the law and practice since the Golder judgment.
106. The Court is unable to accept this plea. The delay in
allowing the applicants access to legal advice was occasioned in
1976-1977 by the "prior ventilation rule" but the latter was not
replaced by the "simultaneous ventilation rule" until December 1981
(see paragraph 46 (b) above). Dating as it does from that time, this
modification clearly could not have restored the right claimed by the
applicants under Article 6 para. 1 (art. 6-1) ; it is therefore not
possible to speak of a "solution", even partial, "of the matter"
(see, mutatis mutandis, Rule 47 para. 2 of the Rules of Court and the
above-mentioned Silver and Others judgment, Series A no. 61,
pp. 31-32, para. 81). In addition, the applicants’ observations of
13 October 1983 on the application of Article 50 (art. 50) (see
paragraph 7 above) contain a claim for just satisfaction in respect,
inter alia, of this alleged violation and a determination by the Court
of the issue may be of relevance in this connection (see the same
judgment, ibid.).
107. The Government, in the alternative, stated that, in the light
of the subsequent change to domestic practice, they did not contest
the Commission’s finding that there had been a violation of
Article 6 para. 1 (art. 6-1).
It is true that the applicants were eventually granted the permission
which they sought and that, in Mr. Campbell’s case, he may have
contributed to the delay by not furnishing promptly sufficient details
of his allegations for an internal inquiry to commence (see
paragraphs 17-20 above). However, for evidentiary and other reasons
speedy access to legal advice is important in personal-injury cases.
Moreover, as the Court pointed out in its above-mentioned Golder
judgment (Series A no. 18, p. 13, para. 26), hindrance, even of a
temporary character, may contravene the Convention.
The principles stated in that judgment being applicable in the instant
case, the Court shares the Commission’s opinion that a violation has
occurred.
C. Article 8 (art. 8)
108. The applicants contended that their inability, on account of
the "prior ventilation rule", to correspond with their solicitors in
connection with the aforesaid civil claim constituted a violation of
Article 8 (art. 8) of the Convention, which reads as follows :
"1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law
and is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or
morals, or for the protection of the rights and freedoms of others."
The Commission concluded that there had been a breach in this respect.
The Government stated that, in the light of the subsequent change to
domestic practice, they did not contest this opinion.
109. According to the evidence before the Court, one letter was
stopped, namely that of 24 January 1977 from Messrs. Woodford
& Ackroyd to Mr. Campbell (see paragraph 20 above). Furthermore, as
the Commission rightly pointed out, it is clear that the effect of the
"prior ventilation rule" was to prevent all correspondence between the
applicants and their advisers concerning the proposed litigation until
the internal inquiry had been completed.
There was, therefore, an interference with the applicants’ right to
respect for correspondence, as guaranteed by Article 8 (art. 8).
110. The Court has already had the occasion, in its above-mentioned
Silver and Others judgment, to consider under Article 8 (art. 8) the
"prior ventilation rule" and its prohibition on the inclusion in
letters to legal advisers of unventilated complaints about prison
treatment. It there saw no reason to disagree with the Commission’s
finding that this ground for stopping or restricting mail did not
correspond to a necessity, within the meaning of Article 8 para. 2
(art. 8-2) (Series A no. 61, pp. 38-39, para. 99).
The Court perceives no cause to depart from this conclusion on the
present occasion. There has, therefore, been a violation of Article 8
(art. 8).
IV. CONDITIONS FOR VISITS TO FATHER FELL BY HIS SOLICITORS
A. Article 6 para. 1 (art. 6-1)
111. After being given leave to contact his solicitors,
Father Fell was, for about two months, refused permission to consult
them out of the hearing of a prison officer (see paragraph 22 above).
He alleged that this constituted a breach of Article 6 para. 1 (art. 6-1),
as interpreted by the Court in its above-mentioned Golder judgment.
The Commission considered that this absence of privileged contact
between lawyer and client amounted to an interference with the right
of access to court that was incompatible with Article 6 para. 1
(art. 6-1).
112. The Government’s principal plea was that, in the light of the
subsequent change to domestic practice, the Court should decline to
rule on this claim.
The reasons given in paragraph 106 above lead the Court to reject this
plea. It notes, in this connection, that the rules on confidential
consultation between a prisoner and his legal adviser were also not
relaxed until December 1981 (see paragraph 46 (c) above).
113. As was pointed out by the Commission, there may well be
security considerations which would justify some restriction on the
conditions for visits by a lawyer to a prisoner. However, even though
Father Fell was a "category A" prisoner (see paragraph 44 (a) above),
the Government have not argued before the Court that, as regards
out-of-hearing consultation, such considerations obtained in his case ;
indeed, they stated, in the alternative, that they did not contest the
Commission’s finding on this issue.
The Court sees no reason to disagree with that finding and therefore
holds that there has been a violation of Article 6 para. 1 (art. 6-1) on
this point.
B. Article 8 (art. 8)
114. Father Fell also maintained that the aforesaid restriction on
confidential consultation with his solicitors was in breach of his
right to respect for his private life, as guaranteed by Article 8
(art. 8).
115. The Commission, in view of its conclusion under Article 6 para. 1
(art. 6-1), considered that it was not necessary to examine this
claim. The Court is of the same opinion.
V. THE APPLICANTS’ ACCESS TO INDEPENDENT MEDICAL ADVICE
116. Before the Commission, the applicants alleged that the refusal
to allow them access to independent medical advice (see paragraphs
23-24 above) also constituted a breach of Article 6 para. 1 (art. 6-1).
This contention was not accepted by the Commission.
117. Since the applicants have not pursued this claim before the
Court, there is no necessity to examine it (see, mutatis mutandis, the
Sunday Times judgment of 26 April 1979, Series A no. 30, pp. 43-44,
paras. 74-75).
VI. RESTRICTIONS ON FATHER FELL’S PERSONAL CORRESPONDENCE
118. Father Fell complained of a restriction on his correspondence
arising from the application of the rule prohibiting correspondence
with persons other than relatives or existing friends (see
paragraph 44 (a) above) ; he referred in particular to the fact that he
was not allowed to correspond with Sister Power and Sister Benedict
(see paragraph 25 above) and alleged that there had been a breach of
Article 8 (art. 8) in this respect.
The Commission concluded that the refusal to allow the applicant to
correspond with these two nuns constituted a violation of Article 8
(art. 8). The Government stated that, in the light of the subsequent
change to domestic practice (see paragraph 46 (a) above), they did not
contest this opinion.
119. The only specific example of restriction on correspondence
cited by the applicant dated back to 1974, well before his application
to the Commission (see paragraphs 25 and 53 above). However, the
Commission observed that the restrictions complained of appeared to
have lasted until the relevant rules were changed in December 1981,
and this was not disputed by the Government.
120. The Court has already had the occasion, in its above-mentioned
Silver and Others judgment, to consider under Article 8 (art. 8) the
restriction on prisoners’ correspondence with persons other than a
relative or friend. In the absence of special considerations relevant
to the particular case in issue, it saw no reason, even as regards a
"category A" prisoner (see paragraph 44 (a) above), to disagree with
the Commission’s finding that this ground for restricting mail did not
correspond to a necessity, within the meaning of Article 8 para. 2
(art. 8-2) (Series A no. 61, pp. 38-39, para. 99).
The Court perceives no cause to depart from this conclusion on the
present occasion. There has, therefore, been a violation of Article 8
(art. 8).
VII. THE ALLEGED VIOLATION OF ARTICLE 13 (art. 13)
121. Father Fell alleged that there existed in the United Kingdom
no effective remedy in respect of his claims under Articles 6 para. 1
and 8 (art. 6-1, art. 8) and that he was therefore the victim of a
violation of Article 13 (art. 13), which reads as follows :
"Everyone whose rights and freedoms as set forth in this Convention
are violated shall have an effective remedy before a national
authority notwithstanding that the violation has been committed by
persons acting in an official capacity."
A. Article 13 taken in conjunction with Article 6 para. 1 (art. 13+6-1)
122. According to the Commission, Father Fell’s complaints under
Article 6 para. 1 (art. 6-1), concerning access to legal advice, refusal
to allow independent medical examination and refusal to allow
confidential consultation with his lawyer, raised no separate issue
under Article 13 (art. 13).
123. The Court agrees with this opinion, which was also urged by
the Government. It has found that it is not necessary to examine the
complaint concerning medical examination (see paragraph 117 above).
The two other complaints relate to the question of access to court
and, having regard to the Court’s conclusions under Article 6 para. 1
(art. 6-1) (see paragraphs 107 and 113 above), there is no need to
examine them under Article 13 (art. 13) ; this is because the
requirements of the latter Article (art. 13) are less strict than, and
are here absorbed by, those of the former (see, as the most recent
authority, the above-mentioned Silver and Others judgment, Series A
no. 61, p. 41, para. 110).
B. Article 13 taken in conjunction with Article 8 (art. 13+8)
124. There remain Father Fell’s complaints under Article 8
(art. 8), concerning access to legal advice, refusal to allow
confidential consultation with his lawyer and the restrictions on his
personal correspondence. These complaints were considered under
Article 13 (art. 13) by the Commission, which concluded that there had
been a violation by reason of the absence of an "effective remedy".
125. Having found that it is not necessary to consider under
Article 8 (art. 8) the complaint relating to confidential consultation
with a lawyer (see paragraph 115 above), the Court sees no call to
examine this issue under Article 13 (art. 13). However, the same does
not apply to the other two complaints.
126. It was not alleged that the restrictions at issue were
unlawful under domestic law or resulted from a misapplication of the
relevant directives. Again, it was not suggested that any remedies
were available to the applicant other than the four channels of
complaint examined by the Commission, namely an application to the
Board of Visitors, an application to the Parliamentary Commissioner
for Administration, the institution of proceedings before the English
courts and a petition to the Home Secretary.
The Government accepted, in their memorial to the Court, that prior to
December 1981 the first three channels of complaint would not have
provided Father Fell with an "effective remedy", within the meaning of
Article 13 (art. 13), in respect of the complaints in question. For
the reasons given in its above-mentioned Silver and Others judgment
(Series A no. 61, pp. 42-44, paras. 114-118), the Court finds that this
must be so.
127. At the hearings before the Court, the Government stated that
they did not seek to argue that a petition to the Home Secretary would
have provided an "effective remedy" as regards the delay in allowing
contact with a lawyer. However, they suggested that the position
might have been otherwise as regards the refusal to allow
correspondence with Sister Power and Sister Benedict, had Father Fell
established that the authorities had incorrectly applied the relevant
directives in treating these two nuns as not being "close personal
friends" (see paragraphs 25 and 44 (a) above).
The Court has found (see paragraphs 110 and 120 above) that the
restrictions on Father Fell’s access to legal advice and on his
personal correspondence were the result of the application of norms
that were incompatible with the Convention. In such circumstances, as
the Court held in its above-mentioned Silver and Others judgment
(ibid., p. 44, para. 118), there could be no "effective remedy" as
required by Article 13 (art. 13). In particular, a petition to the
Home Secretary could only have been effective if the complainant
alleged that a measure of control over correspondence resulted from a
misapplication of one of the relevant directives (ibid., p. 43,
para. 116). And in the present case, Father Fell made no such allegation
nor do the circumstances suggest that he would have been in a position
to do so.
128. As regards the applicant’s complaints concerning the two
restrictions in question, there has accordingly been a violation of
Article 13 (art. 13).
VIII. THE APPLICATION OF ARTICLE 50 (art. 50)
A. Introduction
129. Article 50 (art. 50) of the Convention, the applicability of
which was not contested in the present case, reads as follows :
"If the Court finds that a decision or a measure taken by a legal
authority or any other authority of a High Contracting Party is
completely or partially in conflict with the obligations arising from
the ... Convention, and if the internal law of the said Party allows
only partial reparation to be made for the consequences of this
decision or measure, the decision of the Court shall, if necessary,
afford just satisfaction to the injured party."
130. The Court, which has received the Government’s observations on
the applicants’ claims under this Article (art. 50) and noted that the
Commission leaves the matter to the Court (see paragraph 7 above),
considers that the question is ready for decision (Rule 50 para. 3, first
sentence, of the Rules of Court).
B. "General" and "special" damages
1. Mr. Campbell
(a) The Board of Visitors’ disciplinary proceedings
131. Mr. Campbell maintained that because of the defects in the
procedure followed by the Board of Visitors in its adjudication in his
case, the proceedings were "null and void" and the penalties awarded
could not be regarded as legitimately imposed ; this was said to apply,
in particular, to an additional period of imprisonment which he
calculated at 427 days. Referring, inter alia, to loss of society and
alleged deterioration in his health, he claimed in this respect
"substantial" but unquantified "general" damages ; he also sought, by
way of "special" damages, £12,400 and £3,745, respectively, for loss
of earnings and for expenses relating to family visits to him in
prison during that period.
The Government resisted the argument that the Board’s proceedings were
a nullity. Their principal submission was that Mr. Campbell had not
shown that he had suffered any prejudice.
132. The only violations of Article 6 (art. 6) found by the Court
relate to Mr. Campbell’s inability to obtain legal assistance or legal
representation and to the failure of the Board of Visitors to
pronounce its decision publicly (see paragraph 102 above). The
Court’s only task is to examine what consequences these violations had
for Mr. Campbell.
133. Bearing in mind the Court’s finding on Mr. Campbell’s general
allegation of unfairness (see paragraph 102 above), there is nothing to
suggest, nor can it be assumed, that the Board of Visitors would have
reached any different conclusions if he had been legally assisted or
represented. It also has to be remembered that the applicant did not
avail himself of the possibility of replying in writing to the charges
against him and, above all, declined to attend the hearing, thereby
depriving himself of the opportunity of making a defence or raising a
plea in mitigation (see paragraphs 13 and 14 above).
Again, it goes without saying that the consequences for Mr. Campbell
of the Board’s decision would have been the same even if it had been
pronounced publicly.
134. Accordingly, no causal link has been shown to exist between
these particular violations and the alleged damage, with the result
that no just satisfaction falls to be awarded in this respect (see,
mutatis mutandis, the Albert and Le Compte judgment of
24 October 1983, Series A no. 68, p. 7, para. 11).
(b) Access to legal advice in connection with the
personal-injuries claim
135. Mr. Campbell claimed "substantial" but unquantified "general"
damages in respect of the delay in allowing him access to legal advice
in connection with his intended civil action for damages for personal
injuries (see paragraphs 17-20 above).
The Government contested this claim, inter alia, on the ground that
the delay had occasioned no prejudice.
136. The Court has found that the delay in question gave rise to
breaches of Articles 6 para. 1 and 8 (art. 6-1, art. 8) (see paragraphs 107
and 110 above). However, Mr. Campbell was eventually able to
obtain the advice which he sought and he has not shown in what way, if
at all, his inability to do so at an earlier date adversely affected
the institution or prospects of his civil action. The Court notes, in
particular, that even after consulting his lawyers, the applicant
appears to have been far from diligent in pursuing the matter (see
paragraph 21 above).
This claim therefore has to be rejected.
2. Father Fell
(a) Access to legal advice in connection with the
personal-injuries claim
137. The reasons given by the Court in the preceding paragraph for
rejecting Mr. Campbell’s claim apply equally to a claim by Father Fell
for "general" damages, which in his case related not only to delay in
obtaining access to legal advice but also to the absence of an
effective domestic remedy in this regard (see paragraphs 17-20 and
124-128 above).
(b) Conditions for lawyers’ visits
138. Father Fell sought "substantial" but unquantified "general"
damages in respect of the refusal to allow him to consult his
solicitors out of the hearing of a prison officer (see paragraph 22
above).
The Government contested this claim, inter alia, on the ground that
this restriction had occasioned no prejudice.
139. The Court has found that there was a breach of Article 6 para. 1
(art. 6-1) as a result of the restriction in question (see
paragraph 113 above). However, the applicant has not shown in what
way, if at all, it adversely affected his intended civil action for
damages. The Court notes, in particular, that the restriction was in
any event of short duration.
This claim must therefore be rejected.
(c) Restrictions on personal correspondence
140. Father Fell claimed "general" damages, again "substantial" but
unquantified, in respect both of the restrictions on his personal
correspondence and of the absence of an effective domestic remedy in
this regard (see paragraphs 25 and 124-128 above).
The Government contested this claim on various grounds.
141. It is true that the applicant may have experienced some
annoyance and sense of frustration as a result of the matters in
question. It does not appear, however, that this was of such
intensity that it would in itself justify an award of compensation for
non-pecuniary damage. Father Fell was, in fact, apparently allowed to
correspond fairly extensively (see paragraph 25 above) and he did not
seek to establish that the prohibition on corresponding with
Sister Power and Sister Benedict arose from a misapplication of the
relevant directives (see paragraph 127 above). Furthermore, although
the Court has held that it cannot examine the compatibility with the
Convention of the correspondence control regime in force since 1981
(see paragraph 104 above), substantial changes have been introduced
and do appear in principle to have led to a significant improvement.
In these circumstances, the Court considers that in relation to this
head of claim its findings of violation of Article 8 (art. 8) and of
Article 13 in conjunction with Article 8 (art. 13+8) (see
paragraphs 120 and 128 above) constitute in themselves adequate just
satisfaction, without it being necessary to afford financial
compensation (see, amongst other authorities, the Silver and Others
judgment of 24 October 1983, Series A no. 67, pp. 6-7, para. 10).
C. Mr. Campbell’s and Father Fell’s costs and expenses
142. The applicants claimed in respect of costs and expenses
referable to their representation in the proceedings before the
Commission and the Court the following sums :
(a) £13,860 for the fees and expenses of Mr. Thornberry,
barrister-at-law ;
(b) £10,923.90 (together with value added tax of £1,641.59) for the
fees and disbursements of Messrs. George E. Baker & Co., solicitors.
143. The Court will apply the various criteria which emerge from
its case-law on the subject, as regards both the purpose for which the
costs in question were incurred and the requirements that they be
actually incurred, necessarily incurred and reasonable as to quantum
(see, inter alia, the Zimmermann and Steiner judgment of 13 July 1983,
Series A no. 66, p. 14, para. 36).
It notes, in this connection, that Mr. Campbell, but not Father Fell,
had the benefit of legal aid before the Commission and then, after
reference of the case to the Court, in his relations with the Delegate
(addendum to the Commission’s Rules of Procedure).
144. The Government indicated that they were prepared to pay such
costs and expenses of the applicants as the Court might find to have
been actually incurred, necessarily incurred and reasonable as to
quantum and which were not covered by the Commission’s legal aid.
With the exception of the points mentioned in paragraph 145 below, the
Government did not assert that the applicants’ claim failed to satisfy
the Court’s criteria ; in particular, they did not contest that
Mr. Campbell had incurred liability for costs additional to those
covered by his legal aid (cf., inter alia, the Airey judgment
of 6 February 1981, Series A no. 41, p. 9, para. 13). Subject to an
examination of those points, the Court therefore retains the whole of
the claim.
145. At the hearings before the Court, the Government submitted
that a proportion of the Strasbourg costs should be disallowed to
reflect the fact that a substantial proportion of the applicants’
complaints had been found to be inadmissible or rejected. However, in
their memorial of 2 December 1983, they stated that they left this
matter to the Court’s discretion.
The Government also contended that, as regards his fees,
Mr. Thornberry had charged at an excessive hourly rate, for an
excessive number of hours and too much for the preparation of the
case ; they suggested a figure of £5,456 (in lieu of £12,820). They
also questioned certain of the amounts claimed for his expenses.
146. Having regard to the extent to which the applicants’ complaints
were unsuccessful, the Court considers that their costs and expenses
should be reimbursed to them only in part (see the Le Compte,
Van Leuven and De Meyere judgment of 18 October 1982, Series A no. 54,
p. 10, para. 21). It also finds that the Government’s objections
concerning the amounts claimed for Mr. Thornberry’s fees are
warranted.
In these circumstances, the Court, deciding on an equitable basis as
is required by Article 50 (art. 50) and making due allowance for the
sum received by Mr. Campbell from the Commission by way of legal aid,
fixes the costs and expenses to be reimbursed at £5,000 for
Mr. Thornberry and £8,000 for Messrs. George E. Baker & Co. These
figures are to be increased by any value added tax that may be due.
FOR THESE REASONS, THE COURT
I. PRELIMINARY
1. rejects unanimously the Government’s plea that Mr. Campbell failed
to exhaust domestic remedies ;
2. holds unanimously that it has no jurisdiction to examine Father
Fell’s submission that his complaints concerning the Board of
Visitors’ proceedings are now admissible ;
II. AS REGARDS THE BOARD OF VISITORS’ PROCEEDINGS IN THE CASE OF
MR. CAMPBELL
3. holds by four votes to three that Article 6 (art. 6) of the
Convention was applicable thereto ;
4. holds by four votes to three that there has not been a breach of
Article 6 para. 1 (art. 6-1) by reason of the fact that the Board did not
conduct its adjudication in public ;
5. holds by five votes to two that there has been a breach of
Article 6 para. 1 (art. 6-1) in that the Board did not make public its
decision ;
6. holds by five votes to two that Mr. Campbell’s inability to obtain
legal assistance or legal representation constituted a violation of
paragraphs (b) and (c), respectively, of Article 6 para. 3 (art. 6-3-b,
art. 6-3-c) ;
7. holds unanimously that on the other points at issue there has been
no violation of Article 6 (art. 6) ;
III. AS REGARDS THE APPLICANTS’ ACCESS TO LEGAL ADVICE IN
CONNECTION WITH THEIR PERSONAL-INJURIES CLAIM
8. holds unanimously that there have been breaches of Article 6 para. 1
and Article 8 (art. 6-1, art. 8) ;
IV. AS REGARDS THE CONDITIONS FOR VISITS TO FATHER FELL BY HIS
SOLICITORS
9. holds unanimously that there has been a violation of Article 6 para. 1
(art. 6-1) and that it is not necessary also to examine this matter
under Article 8 (art. 8) ;
V. AS REGARDS THE RESTRICTIONS ON FATHER FELL’S PERSONAL
CORRESPONDENCE
10. holds unanimously that there has been a violation of Article 8
(art. 8) ;
VI. AS REGARDS ARTICLE 13 (art. 13)
11. holds unanimously that there has been a breach of this Article
(art. 13) to the extent specified in paragraph 128 of the judgment ;
VII. AS REGARDS THE APPLICATION OF ARTICLE 50 (art. 50)
12. holds unanimously that the United Kingdom is to pay to the
applicants, in respect of legal costs and expenses, the sum of
thirteen thousand pounds sterling (£13,000), together with any value
added tax that may be due.
Done in English and in French, the English text being authentic, at
the Human Rights Building, Strasbourg, this twenty-eighth day of June,
one thousand nine hundred and eighty-four.
Signed : Ge ?rard WIARDA
President
Signed : Marc-Andre ? EISSEN
Registrar
A declaration by Mr. Tho ?r Vilhja ?lmsson and, in accordance with
Article 51 para. 2 (art. 51-2) of the Convention and Rule 50 para. 2 of the
Rules of Court, the following separate opinions are annexed to the
present judgment :
- joint partly dissenting opinion of Mr. Cremona, Mr. Macdonald and
Mr. Russo ;
- joint dissenting opinion of Mr. Tho ?r Vilhja ?lmsson and Mr. Go ?lcu ?klu ? ;
- partly dissenting opinion of Sir Vincent Evans.
Initialled : G. W.
Initialled : M.-A. E.
DECLARATION OF JUDGE THO ?R VILHJA ?LMSSON
The majority of the Court is not of the same opinion as I am on the
applicability of Article 6 (art. 6). After having found the Article
(art. 6) applicable, the Court therefore proceeded to examine whether
certain of its provisions had been violated. I took part in this
examination and voted on the various questions that were put to the
Court for decision. This participation was not objected to by the
President of the Court or my other brethren. The Convention itself
does not contain any rule on whether or not this was the right course
to take. Neither is anything said about this in the Rules of Court.
My position is comparable to that taken by judges who were in a
minority in the Ko ?nig and the Guzzardi cases and by the minorities who
in several cases have been faced with the question of whether or not
to take part in decisions on the award of just satisfaction under
Article 50 (art. 50) of the Convention.
JOINT PARTLY DISSENTING OPINION OF JUDGES CREMONA, MACDONALD
AND RUSSO
We agree with the conclusion reached in paragraph 73 of the judgment
that Article 6 (art. 6) of the Convention is applicable to the Board
of Visitors’ adjudication in Mr. Campbell’s case. Indeed, applying
(due allowance being made for the different context) the criteria set
out in the Engel and Others judgment to the present case, the
proceedings against Mr. Campbell have, in the circumstances of the
case and for the reasons stated in the judgment, to be regarded as
coming within the "criminal" sphere for the purposes of Article 6
(art. 6). This being so, it logically follows, as is in fact accepted
in the judgment, that the requirements referred to in that Article
(art. 6) had of course to be observed, save in the case that
non-observance could be shown to come within any of the exceptions
permitted by that Article (art. 6) itself.
Where we disagree with the judgment is in regard to whether, on the
basis of the evidence adduced, failure to observe the Article 6
(art. 6) requirement of publicity of proceedings did in the present
case come within the permitted exceptions to that requirement.
It was of course for the Government to show that the circumstances
were such as to justify recourse to one of those exceptions. However,
the Government (followed in this by the majority of the Chamber in
paragraph 87 of the judgment) relied on the general nature of Board of
Visitors’ proceedings and on the general practice and, although
Mr. Campbell was stated to be a "category A" prisoner, the Government
adduced no evidence to show that the absence of publicity of
proceedings was in his specific case warranted by Article 6 (art. 6)
as coming within the permitted exceptions.
In the absence of such evidence we, like the Commission, conclude that
there was a violation of Article 6 para. 1 (art. 6-1) also in this
respect.
JOINT DISSENTING OPINION OF JUDGES THO ?R VILHJA ?LMSSON AND GO ?LCU ?KLU ?
The central question in this case is whether the events in Albany
Prison on 16 September 1976 gave rise to proceedings to which
Article 6 (art. 6) of the Convention is applicable. The majority of
the Court has come to the conclusion that Mr. Campbell was faced with
"criminal charges" and that, consequently, Article 6 (art. 6) is
applicable. We are unable to share this view.
In its Engel and Others judgment of 8 June 1976, this Court laid down
three criteria on which it based its decision in that case on the
applicability of Article 6 (art. 6) under the "criminal" head.
There the problem was whether, in the context of military justice,
proceedings against the applicants had been criminal or disciplinary.
It seems to us - and in this we are in agreement with the majority of
the Court - that the same criteria should be applied in the present
case.
On the first criterion - the position under domestic law - there is no
doubt. Mr. Campbell was charged with offences against English
disciplinary rules and these charges were dealt with according to
English disciplinary procedure. There was a possibility of bringing
criminal charges also, but that was not in fact done.
The second criterion set out in the Engel judgment is the nature of
the offence. We take this to mean that a typical breach of
disciplinary rules is outside Article 6 (art. 6). For us, the
sit-down in which the applicant took part was just such a typical
violation of prison discipline. It is, of course, possible to stage
such incidents outside prisons but in a prison setting they take on a
special and grave character. Forceful resistance to orders to move
from certain premises is also an act that, although it can happen in
many places, has its own characteristics when it occurs in prisons.
It seems to us, therefore, that in this case the incident that led to
the proceedings against the applicant was a typical example of a
prison disturbance that is and should as a rule be met with
disciplinary measures.
The third criterion set out in the Engel judgment is the severity of
the sanctions risked. These are described in paragraph 28 of the
present judgment. The sanctions can be divided into two groups. In
the first group are sanctions that consist of excluding prisoners from
associated work, of stopping their earnings and of sending them into
cellular confinement, in each case for a period not exceeding 56 days.
Of these, we find only the last to raise any problem. Cellular
confinement can have a serious impact on the person who is subject to
it. However, it should be taken into account in this connection that
this sanction is one of the traditional methods of prison discipline
and that prisoners have already been deprived of their liberty. For
these reasons we do not find it possible to interpret the words of
Article 6 (art. 6) of the Convention in such a way that they oblige
States not to use this sanction as a non-criminal, disciplinary
measure in prisons. The second group of sanctions risked by
Mr. Campbell consisted of forfeiture of certain privileges and of
forfeiture of remission of his sentence. According to the relevant
rules these forfeitures were not limited in time except that they
could not exceed the original sentence. These rules are set out in
more detail in paragraphs 28 and 29 of the judgment of the Court to
which we refer. It is clear that "forfeiture of certain privileges"
does not bring a case automatically from the disciplinary into the
criminal sphere. We have more doubts concerning the forfeiture of
remission of sentence. Obviously, the applicant had been sentenced to
a specific period of imprisonment and this had been decided by the
court which sentenced him. On the other hand, it is the general
practice in England that, upon starting to serve a prison sentence,
the prisoner is given an estimated date for release which is
calculated by taking one-third of the sentence off the time stated in
the sentence itself. In fact, the rules on remission are applied in
such a way that a prisoner is released after serving two-thirds of his
sentence unless a forfeiture has been awarded in disciplinary
proceedings. Prisoners can thus expect to receive the benefit of the
system of remission if they are of good behaviour : the rules governing
the time involved are well-established and it is also rather clear
what can change the prospects of being given remission. Thus,
disciplinary proceedings can result in a considerable prolongation of
the time actually served in prison. In spite of that, we have come to
the conclusion that this cannot deprive the proceedings against the
applicant of their disciplinary character. This is because the time
spent in prison could not exceed the period fixed by the original
sentence and because remission is an integral part of a system that is
upheld by disciplinary measures.
We cannot see that any points other than those already mentioned can
be relevant for the question of the applicability of Article 6
(art. 6) under the "criminal" head in this case. Our conclusion is
therefore that the applicant was not faced with "criminal charges".
The rules set out in Article 6 para. 1 (art. 6-1) of the Convention - in
contrast to those in Article 6 paras. 2 and 3 (art. 6-2, art. 6-3) - apply
not only to "criminal charges" but also to the determination of "civil
rights and obligations". The applicant has argued that Article 6
(art. 6) is applicable under the latter head. We find that this issue
has to be examined only in connection with a possible right to
remission of sentence. Even if it were assumed that remission is a
right rather than a privilege, we do not think it possible to call it
a "civil right" in the context of Article 6 (art. 6) of the
Convention. Remission and forfeiture of remission are typical
disciplinary matters. Consequently, we find that we are here on the
disciplinary side of the line between disciplinary proceedings and
proceedings concerning civil rights and obligations.
For the reasons set out above, we are of the opinion that Article 6
(art. 6) is not applicable in the present case.
PARTLY DISSENTING OPINION OF JUDGE SIR VINCENT EVANS
1. I regret that I am unable to agree with the opinion of the
majority of the Court that Article 6 (art. 6) of the Convention has
been violated as regards the Board of Visitors’ proceedings in the
case of Mr. Campbell. In my view, Article 6 (art. 6) was not
applicable to these proceedings because they were not concerned with
the determination of any criminal charge against Mr. Campbell, or of
his civil rights or obligations, within the meaning of that Article
(art. 6).
2. In its judgment of 8 June 1976 in the case of Engel and
Others, the Court recognised that the Convention allows the
Contracting States to make a distinction between disciplinary
proceedings and criminal proceedings and to draw the dividing line,
provided that "the disciplinary does not improperly encroach on the
criminal" and "lead to results incompatible with the purpose and
object of the Convention" (Series A no. 22, pp. 33-34, paras. 80-81).
3. In determining whether the "charges" in the Engel and Others
case, though vested by the State with a disciplinary character,
nonetheless counted as "criminal" within the meaning of Article 6
(art. 6), the Court expressly limited itself to the sphere of military
service (ibid., pp. 34-35, para. 82), and in paragraph 69 of its judgment
in the present case it acknowledges that there are practical reasons
and reasons of policy for establishing a special disciplinary regime
in the prison context. Nevertheless, applying the criteria stated in
its Engel and Others judgment and in its judgment of 21 February 1984
in the Oztu ?rk case (Series A no. 73, pp. 17-18, paras. 48-50), the Court
has reached the conclusion that Article 6 (art. 6) was applicable to
the disciplinary proceedings against Mr. Campbell. Even applying
these criteria, the Court is wrong, in my opinion, in characterizing
as "criminal" for the purposes of Article 6 (art. 6) charges which, as
regards both the offences and the sanctions concerned, were
essentially of a disciplinary nature. As a result, the Court has
extended the requirements of Article 6 (art. 6) to proceedings to
which I do not consider they were intended to be applicable.
4. No doubt, as the Government indeed admitted, criminal charges
under English law might have been brought against Mr. Campbell on the
basis of the same facts. It does not, however, follow, even in
accordance with the criteria stated in the Engel and Others judgment,
that if disciplinary charges are brought in such circumstances they
should be treated as criminal for the purposes of Article 6 (art. 6).
There might be conduct which, although theoretically it could
constitute both criminal and disciplinary offences, should properly be
dealt with as criminal, as for example the murder of a prison officer.
But the acts of which Mr. Campbell was accused, consisting of
collective insubordination and defiance of prison authorities albeit
with the use of violence on his part, were, though serious, clearly of
a disciplinary character and appropriately charged as such.
5. The sanctions involved were also peculiarly disciplinary.
Their aim was the maintenance of good order and behaviour within the
prison. In particular, remission of part of a sentence of
imprisonment is granted to a prisoner under section 25 (1) of the
Prison Act 1952 on the ground of industry and good conduct. Forfeiture
of remission has a correspondingly disciplinary function. Like the
other awards which may be made under the Prison Rules 1964 for
disciplinary offences, it is not a sanction of a kind which belongs to
the "criminal" sphere. The loss of remission awarded by the Board of
Visitors in Mr. Campbell’s case was severe, but it did not and could
not cause his term of imprisonment to exceed that to which he had been
sentenced and thus it remained within the disciplinary sphere.
6. For these reasons I consider that the Government were
justified in not regarding the charges against Mr. Campbell which gave
rise to the Board of Visitors’ proceedings as "criminal" within the
meaning of Article 6 (art. 6).
7. Having found that Article 6 (art. 6) was applicable by reason
of the "especially grave" character of the offence with which
Mr. Campbell was charged and the nature and severity of the penalty
that he risked incurring and did in fact incur, the Court did not
consider it necessary to examine whether the Board of Visitors’
adjudication involved a "determination" of "civil rights". In my
opinion it did not. The object of the proceedings before the Board
was clearly disciplinary and not the determination of "civil rights
and obligations" within the meaning of Article 6 (art. 6) (see in this
connection my dissenting opinion in the case of Le Compte, Van Leuven
and De Meyere, Series A no. 43, pages 43-44).
8. I wish to add, however, that even on the assumption that
Article 6 (art. 6) was applicable for the reasons stated by the Court,
I share the view reached in the judgment that there were no reasons to
conclude that the Board of Visitors which heard Mr. Campbell’s case
was not "independent" or "impartial" within the meaning of Article 6
(art. 6) or that any violation of paragraphs 2 or 3 (a) or (d) of
Article 6 (art. 6-2, art. 6-3-a, art. 6-3-d) had been established or
that he was denied a "fair" hearing by the Board. I also agree that
there were sufficient reasons of public order and security justifying
the exclusion of the press and public from the proceedings against
Mr. Campbell.
9. On all issues other than those concerned with the application
of Article 6 (art. 6) to the Board of Visitors’ proceedings in
Mr. Campbell’s case, I am in agreement with the Court’s judgment.