PROCEDURE

The case was brought before the Court on 18 July 1986 by the European Commission of Human Rights (“the Commission“), within the period of three months laid down by Article 32 § 1 and Article 47 (art. 32-1, art. 47) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention“). The case originated in two applications (nos. 9659/82 and 9658/82) lodged with the Commission under Article 25 (art. 25) against the United Kingdom of Great Britain and Northern Ireland, the first in 1981 by James and Sarah Boyle and the second in 1982 by Brian and John Rice. All four applicants are British citizens. Brian and John Rice, who at the outset were designated by the initials X and Y, subsequently consented to the disclosure of their identities.

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 and the application was to obtain a decision as to whether or not the facts of the case disclosed a breach by the respondent State of its obligations under Articles 8 and 13 (art. 8, art. 13) of the Convention.

In response to the inquiry made in accordance with Rule 33 § 3 (d) of the Rules of Court, both sets of applicants stated that they wished to participate in the proceedings pending before the Court and designated the lawyers who would represent them (Rule 30).

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. R. Ryssdal, the President of the Court (Rule 21 § 3 (b)). On 26 September 1986, the President of the Court drew by lot, in the presence of the Registrar, the names of the five other members, namely Mr. F. Gölcüklü, Mr. J. Pinheiro Farinha, Mr. A.M. Donner, Mr. J. De Meyer and Mr. N. Valticos (Article 43 in fine of the Convention and Rule 21 § 4) (art. 43). Subsequently, Mr. J. Gersing, substitute judge, replaced Mr. Donner, who was prevented from taking part in the consideration of the case (Rules 22 § 1 and 24 § 1).

Mr. Ryssdal assumed the office of President of the Chamber (Rule 21 § 5). He ascertained, through the Registrar, the views of the Agent of the Government of the United Kingdom (“the Government“), the Delegate of the Commission and the lawyers for the applicants regarding the need for a written procedure (Rule 37 § 1). Thereafter, in accordance with the Orders and directions of the President of the Chamber, the following documents were lodged at the registry:

on 15 December 1986, the memorial of the applicants;

on 30 January 1987, the memorial of the Government;

on 4 May 1987, an account of costs and expenses rendered by the applicants’ solicitors;

on 25 June 1987, the further comments of the Government on the application of Article 50 (art. 50) of the Convention. On 3 March 1987, the Delegate of the Commission had notified the Registrar that he did not wish to present any comments in writing.

On 6 March 1987, after consulting, through the Registrar, the Agent of the Government, the Delegate of the Commission and the lawyers for the applicants, the President directed that the oral proceedings should open on 18 May 1987 (Rule 38). Shortly thereafter, Mr. Ryssdal, being prevented from taking further part in the consideration of the case, was replaced as President of the Chamber by Mr. Cremona, the Vice-President of the Court (Rule 21 § 5).

The hearing was held in public at the Human Rights Building, Strasbourg, on the appointed day. Immediately prior to its opening, the Court had held a preparatory meeting. There appeared before the Court:

for the Government Mr. M. Wood, Legal Counsellor, Foreign and Commonwealth Office, Agent, Mr. M. Baker, Barrister-at-Law, Mr. A. Grotrian, Advocate, Counsel, Mrs. M. Macdonald, Scottish Office, Mr. D. Dalgetty, Scottish Office, Advisers;

for the Commission Sir Basil Hall, Delegate;

for the applicants Mr. A. Lester, Q.C., Mr. D. Pannick, Barrister-at-Law, Counsel. The Court heard addresses by Mr. Baker for the Government, by Sir Basil Hall for the Commission and by Mr. Lester for the applicants, as well as their replies to its questions. The same day, the Government lodged at the registry various documents the production of which the Registrar had previously, on 7 May 1987, requested on the instructions of the President of the Chamber.

Following deliberations held on 20 May 1987, the Chamber, by unanimous decision, relinquished jurisdiction in favour of the plenary Court (Rule 50). Having taken note of the agreement of the Agent of the Government and the concurring opinion of the Delegate of the Commission and of the applicants, the Court decided on 23 September 1987, that the consideration of the case should continue without resumption of the oral proceedings (Rule 26).

AS TO THE FACTS

I. PARTICULAR CIRCUMSTANCES OF THE CASE

A. James and Sarah Boyle

The applicants, James and Sarah Boyle, are British citizens born in 1944 and 1950 respectively. In 1967, the first applicant was sentenced in Scotland to life imprisonment for murder. He received a number of subsequent prison sentences in 1968 and 1973 for prison breaking, attempted murder of a prison officer and assault on prison staff. The second applicant is the first applicant’s wife and a doctor by profession.

In March 1973, Mr. Boyle was removed from Peterhead Prison to a Special Unit in Barlinnie Prison. This Unit had been set up on an experimental basis to treat selected long-term prisoners and prisoners with violent propensities (see paragraph 32 below). The Unit had a maximum of eight prisoners and was characterised by a more liberal regime. Mr. Boyle played a prominent role in facilitating the success of the Special Unit. In particular, he discovered that he had special abilities in working with people and in sculpture, writing and other areas of artistic activity. While in the Special Unit, Mr. Boyle was allowed, amongst other things, to write and receive uncensored mail, to have daily access to visitors and to use a telephone. He was thereby able to meet his wife, talk to her on the telephone and correspond with her without being subject to the normal restrictions. He also had the opportunity to go out of the prison without escort.

In September 1980, Mr. Boyle was advised by the Parole Board that he was to be released on licence in November 1982 and that he was to be transferred to Saughton Prison, Edinburgh, to undergo a pre-release programme. He was informed that he would serve his time there on the same terms and conditions as other prisoners. It was considered that, although the regime there was on traditional lines, Saughton Prison would be more beneficial to Mr. Boyle during the period leading to his eventual release than other alternatives, for example Penninghame Open Prison (see paragraph 31 below). The factors governing the choice included the desirability of his occupying a single cell rather than being in a dormitory; the availability of suitable day-time work for him and of facilities for continuing his studies and his artistic work; and access to suitable educational and vocational opportunities for his pre-release training. Mr. Boyle himself had in fact stated in written submissions in December 1979 that, if he could not remain at Barlinnie for his pre-release programme, he would prefer training from Edinburgh rather than Penninghame. In November 1981, he was transferred to a Training for Freedom Hostel within the prison (see paragraph 33 below). He was released on 1 November 1982. As from October 1980 until his release, he was in the lowest security category (Category D).

The applicants’ complaints to the Commission in so far as relevant to the present proceedings all related to the period between September 1980 and November 1981 when Mr. Boyle was subject to the ordinary prison regime at Saughton Prison. The facts surrounding those grievances are briefly set out in the following paragraphs.

During the relevant period the normal rules regarding the sending and payment of correspondence were applied to Mr. Boyle (see paragraphs 22 and 23 below). The postage of only one three-page letter per week was paid for out of public funds. He was able to pay for other letters out of his prison earnings of £1.60 per week but not out of his general financial resources. In a letter of 31 July 1981 from his solicitors to the Secretary of State for Scotland, a complaint was made that because he found it necessary to spend 80 pence per week out of his earnings to supplement his (mainly) vegetarian diet by buying oatmeal cakes as the prison service provided only white bread, the number of letters he was able to send was restricted. A full vegetarian diet was available at Saughton Prison and no complaint was made by Mr. Boyle to the Governor or to the Secretary of State as to its adequacy.

Mr. Boyle’s incoming and outgoing mail was controlled by the prison authorities in accordance with the normal practice followed at the prison (see paragraph 24 below). The applicants also asserted before the Commission that on occasions the prison censorship officer read out aloud in front of other inmates letters from Mrs. Boyle, laughing or making comments about their contents. However, Mr. Boyle did not make any complaint to the Governor of the Prison or the Secretary of State regarding the manner in which his mail was read, in particular about its being read aloud, although the fact of his mail being screened was the subject of complaint in his solicitors’ letter of 31 July 1981.

In July 1981, a letter to a friend of his, Mr. Peter McDougall, was stopped by the Prison Governor on the ground that Mr. McDougall was a “media personality“. Mr. Boyle petitioned the Secretary of State regarding this matter, but his petition was rejected on the basis that there was a general prohibition of the passing on by a prisoner of material intended for publication or for use on wireless or television (see paragraph 25 below). The Government have subsequently acknowledged that in fact this rule was applied in error, since, although the letter in question was addressed to a person connected with the public media, it was a personal one which Mr. Boyle should have been allowed to send.

Mr. Boyle was entitled to receive visits in accordance with the normal rules applied in Saughton Prison (see paragraph 26 below). Consequently, as pointed out in his solicitors’ letter of 31 July 1981, he was permitted only one hour’s visiting time a month under close supervision in a crowded visiting hall. He used this time to meet his wife, with the result that he was not able to see the other members of his family. He was able to benefit from the special escorted leave scheme and visited his home on two occasions, albeit under the constant supervision of an officer in accordance with the scheme (see paragraph 28 below). As from November 1980, he was given a special licence to do unescorted community work outside the prison, initially for two days and subsequently for five days a week.

The solicitors for Mr. and Mrs. Boyle also raised with the Secretary of State a general objection that Mr. Boyle’s treatment at Saughton Prison was markedly less favourable than his treatment at Barlinnie Special Unit and also in comparison with other Category D prisoners elsewhere under the penal system. By reply dated 28 August 1981, the Secretary of State rejected this and the other complaints made in the solicitors’ letter of 31 July 1981. Mr. Boyle also complained through his Member of Parliament to the Parliamentary Commissioner for Administration (the Ombudsman - see paragraph 39 below) about various aspects of his treatment at Saughton Prison. In a letter of 17 September 1981, the Ombudsman stated that he could not uphold Mr. Boyle’s complaints. He stated, inter alia: “From the details that Mr. Boyle has given, his correspondence, special escorted leave, and visits appear to have been dealt with correctly in accordance with current rules, however dissatisfied he may be with those rules. I think it is fair to say that much of Mr. Boyle’s complaint reflects his disagreement with those rules and with their application to him at this stage of his sentence. The rules are of course a matter for Parliament and in the absence of evidence of maladministration I am precluded by the Parliamentary Commissioner Act from questioning the Department’s discretion in applying them.“

B. Brian and John Rice

The applicants, Brian and John Rice, are British citizens born in 1947 and 1920 respectively. Brian Rice was sentenced to life imprisonment for murder in 1967. He served his sentence in Peterhead and Perth Prisons until August 1979. From August 1979 onwards, he was detained as a Category D prisoner (that is, the lowest security category) at Saughton Prison. He was moved to the Training for Freedom Hostel within the prison (see paragraph 33 below) on 11 September 1981 and was released on licence on 1 June 1982. He had requested to serve the latter part of his sentence in Edinburgh rather than, for example, in Penninghame Open Prison (see paragraph 31 below) because he wanted, prior to his release, to have the benefit of further education courses which were not available from Penninghame. John Rice is the first-named applicant’s father and lives at Dundee, some sixty miles from Edinburgh. At the relevant time he was seriously ill - having been in bad health for some years - and unable to walk or travel.

During his period in Saughton Prison, Brian Rice enjoyed the normal entitlement to visits applicable at the prison. He petitioned the Secretary of State for Scotland on 8 May 1981 requesting a home visit to his father. The petition indicated that his father had been “ill for a considerable period“, but not that he was dangerously ill, which would have made him eligible for compassionate leave (see paragraph 27 below). His request was therefore refused on 27 May 1981. The decision recommended him to make the effort to get a member of staff to take him out of prison under the special escorted leave scheme (see paragraph 28 below). It appears, however, that he experienced difficulty in finding a prison officer to accompany him on special escorted leave. Although Brian Rice was not able to visit his father during the relevant period, he was permitted to attend, without an escort, a college to follow an educational course two days a week and also a centre where he was doing community work. He had previously been granted a home visit in August 1980 and prior to the commencement of the Training for Freedom programme he spent five days on home leave in September 1981. In a letter dated 23 July 1981 in reply to a letter of 18 June from Mr. Rice’s Member of Parliament, the Under Secretary of State at the Scottish Office explained the reasons for the refusal of compassionate leave: “... Each application is considered on its merits and on the basis of medical and social work reports. Mr. Rice’s application for a special visit was considered in the usual way but it was decided that it did not meet the required conditions. Mr. Rice was advised that if his father’s condition deteriorated he should make a further request. It is necessary, to prevent abuse of the arrangements, to maintain a strict and entirely consistent approach to applications for compassionate visits from all prisoners and the fact that a prisoner is being released for educational or other purposes does not affect consideration of the merits of his application or remove the need for the normal criteria to be met. ... Mr. Rice is expected to transfer to the formal Training for Freedom (TFF) in September. Prior to that he will have a five-day home leave and while on TFF he will have weekends which he may spend at home. I feel that it would be quite wrong, before that stage is reached, to make a special exception in Mr. Rice’s case and circumvent the rules in relation to either a compassionate visit or a special escorted leave.“

On 28 July 1981, the solicitors acting for Brian Rice wrote to the Secretary of State complaining about

the alleged stopping by the prison authorities of a number of letters addressed to themselves, his Member of Parliament, his former counsel and his family;

his limited prison visiting entitlement, which, as regards maintenance of family contacts, was said to discriminate against him in comparison with other prisoners who were in Category D but detained in open conditions; and

the refusal to grant compassionate leave. The reply of 2 September 1981 sent on behalf of the Secretary of State rejected all the various complaints raised. In particular, it was pointed out that all his mail had been posted.