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Cite as: 15 EHRR 137,  ECHR 41, (1993) 15 EHRR 137
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CASE OF CAMPBELL v. THE UNITED KINGDOM
(Application no. 13590/88)
25 March 1992
In the case of Campbell v. the United Kingdom*,
The European Court of Human Rights, sitting, in accordance with Article 43 (art. 43) of the Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention")** and the relevant provisions of the Rules of Court, as a Chamber composed of the following judges:
††††††††† Mr ††† J. Cremona, President,
††††††††† Mr ††† J. Pinheiro Farinha,
††††††††† Mr ††† R. Macdonald,
††††††††† Mr ††† A. Spielmann,
††††††††† Mr ††† S.K. Martens,
††††††††† Mr ††† I. Foighel,
††††††††† Mr ††† R. Pekkanen,
††††††††† Mr ††† J.M. Morenilla,
††††††††† Sir ††† John Freeland,
and also of Mr M.-A. Eissen, Registrar, and Mr H. Petzold, Deputy Registrar,
Having deliberated in private on 28 September 1991 and 28 February 1992,
Delivers the following judgment, which was adopted on the last-mentioned date:
The Commissionís 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), and the Governmentís application to Article 48 (art. 48). The object of the request and the application was to obtain a decision from the Court as to whether the facts of the case disclosed a breach by the respondent State of its obligations under Article 8 (art. 8) and also, in the case of the request, Article 25 (art. 25) of the Convention.
In accordance with the Presidentís orders and directions, the Registrar received, on 1 March 1991, the applicantís memorial, on 4 March 1991, the Governmentís, and, on 24 July and 16 August 1991, the applicantís claim under Article 50 (art. 50). By letter of 22 April 1991 the Secretary to the Commission informed him that the Delegate would submit his observations at the hearing.
There appeared before the Court:
- for the Government
†††††† Mrs A. Glover, Legal Counsellor,
††††††††††††††††††††††††††† Foreign and Commonwealth Office, †††††††††††††††††††††††† Agent,
†††††† Mr A.F. Rodger, Q.C., Solicitor General for Scotland,
†††††† Mr R.J. Reed, Advocate,
†††††† Mr J.L. Jamieson,
†††††† Mr C. Reeves, †††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Advisers;
- for the Commission
†††††† Mr. Rozakis, ††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††††† Delegate;
- for the applicant
†††††† Mr J. Carroll, Solicitor.
AS TO THE FACTS
I. THE PARTICULAR CIRCUMSTANCES OF THE CASE
Mr Campbell was initially classified as a Category B prisoner, the minimum classification for any prisoner either sentenced to three or more yearsí imprisonment or convicted of a crime involving serious violence. Following an incident at Peterhead Prison he was charged with a number of offences and was re-classified as a Category A prisoner, the classification pertaining to the group of inmates requiring the highest degree of security. These charges were later abandoned by the Crown but he remained a Category A prisoner from 4 November 1985 until 9 March 1988. Since then he has been a Category B prisoner again.
He has been detained in, inter alia, Perth and Peterhead Prisons which are situated at a considerable distance from the offices of his solicitor in Glasgow. He is now serving his sentence in the Special Unit in Barlinnie Prison, Glasgow.
In a petition dated 4 November 1986, the applicant again complained that all legal correspondence apart from letters relating to the Convention was being opened. The reply to this petition and others received by him on 24 July 1987 stated, inter alia, that his correspondence was being dealt with in accordance with Prison Standing Orders. However, he was advised that the terms of the existing Standing Orders were under review in this respect.
†In a further petition dated 30 December 1986 he complained that a letter from a firm of solicitors was opened and photocopied before he received it.
However, it is established that at least some of the correspondence from the Commission had been opened. The applicant referred to letters dated 20 June 1985, 17 July 1985, 9 October 1985, 20 November 1985, 22 April 1986, 22 May 1986, 7 January 1987, 4 June 1987, 18 August 1987, 2 October 1987, 7 October 1987 and 3 November 1987 from the Commission which allegedly show the prison censorís mark on the top right hand corner. The Government accepted that five of these letters (17 July 1985, 9 October 1985, 20 November 1985, 22 April 1986 and 18 August 1987) were opened. They considered that three other letters (20 June 1985, 22 May 1986 and 7 January 1987) may have been opened but that it was not possible to identify the markings. Of the remaining letters the Government stated that there were no identifiable marks and thus no opinion could be expressed as to whether they had been opened or not.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. General legal framework
Sections 1 and 3 of the 1952 Act vested general control and superintendence over prisons in Scotland in the Secretary of State for Scotland. He was empowered, by section 35 (1), to "make [by statutory instrument] rules for the regulation and management of prisons ... and for the classification, treatment, employment, discipline and control of persons required to be detained therein".
In exercise of his powers under section 35 (1), the Secretary of State made the Prison (Scotland) Rules 1952 ("the Prison Rules"), which have been amended from time to time and which are published. He also, in supplement of the Prison Rules and by virtue of his general jurisdiction over prisons and of various powers conferred by the Prison Rules themselves, issues instructions to the Governors of prisons in the form of Standing Orders and administrative circulars. The Standing Orders relevant to correspondence are also published. Every prisoner, on his admission to prison, is given or given access to a booklet summarising the Rules and Standing Orders.
B. Correspondence with legal advisers
The validity of Rule 74 (4) was judicially considered and upheld in the case of Leech v. Secretary of State for Scotland (judgment of the Outer House of the Court of Session of 26 October 1990) which concerned the reading of a prisonerís correspondence with a legal adviser relating to potential legal proceedings. The Court considered inter alia that Rule 74 (4) could not be described as irrational since "it cannot be supposed that there are no sound grounds for requiring control over correspondence involving a prisoner even when it takes place between him and his legal adviser".
"may not contain the following:
(a) Escape plans, or material which if allowed would jeopardise the security of a prison establishment.
(b) Plans or material which would tend to assist or encourage the commission of any disciplinary offence or criminal offence (including attempts to defeat the ends of justice by suggesting the concoction or suppression of evidence).
(c) Material which could jeopardise national security.
(d) Descriptions of the making of any weapon, explosive, poison or other destructive device.
(e) Obscure or coded messages which are not readily intelligible or decipherable.
(f) Threats of violence or of damage to property likely to induce fear in the recipient.
(g) Blackmail or extortion.
(h) Indecent or obscene material.
(i) Information which would create a clear threat or present danger of violence or physical harm to any person.
(j) Complaints about prison treatment which the inmate has not yet raised through the prescribed procedures ...
(k) Material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) ...
(l) Material constituting the conduct of business activity ...
(m) In the case of an inmate against whom a deportation order is in force, material constituting or arranging any financial transaction ...
(n) In the case of an inmate in respect of whom a receiving order has been made or who is an undischarged bankrupt, material constituting or arranging any financial transaction ..."
"Correspondence with a legal adviser about legal proceedings to which an inmate is already a party or, about a forthcoming adjudication, may not be read or stopped unless the Governor has reason to suppose it contains other material. Such a letter may be examined for illicit enclosures, but should only be opened for that purpose in the presence of the inmate by whom it is sent or to whom it is addressed.
Other correspondence with a legal adviser may be read and may not contain anything specified in Standing Order Ma7 (a) to (i) and (k) to (n). Such correspondence may not be stopped on the grounds that it contains material prohibited by Standing Order Ma7 (j) unless it is clear that the inmate is not seeking legal advice but is writing for some other purpose."
The procedure to be followed in respect of such correspondence was described in a Circular issued to Prison Governors on 26 February 1988. The solicitor is required to send such mail within a sealed envelope bearing the words "Legal Proceedings" and his signature. This envelope is placed within another envelope addressed to the Prison Governor. The inner envelope is passed unopened to the prisoner.
When a prisoner is not yet a party to legal proceedings, but is contemplating bringing them, all mail is liable to be opened and read. In practice, mail is not opened at low-security "open prisons" or at the very high-security "Special Units". In other prisons the letters of prisoners in high-risk categories are those most frequently opened.
C. Correspondence concerning proceedings under the European Convention on Human Rights
PROCEEDINGS BEFORE THE COMMISSION
In its report of 12 July 1990 (Article 31) (art. 31), the Commission expressed the opinion:
The full text of the Commissionís opinion and of the dissenting opinions contained in the report is reproduced as an annex to this judgment*.
FINAL SUBMISSIONS MADE TO THE COURT BY THE GOVERNMENT
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 8 (art. 8)
"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."
Article 3 of the Agreement provides:
"1. The Contracting Parties shall respect the right of the persons referred to in paragraph 1 of Article 1 of [the] Agreement to correspond freely with the Commission and the Court.
2. As regards persons under detention, the exercise of this right shall in particular imply that:
(a) if their correspondence is examined by the competent authorities, its despatch and delivery shall nevertheless take place without undue delay and without alteration;
(b) such persons shall not be subject to disciplinary measures in any form on account of any communication sent through the proper channels to the Commission or the Court;
(c) such persons shall have the right to correspond, and consult out of hearing of other persons, with a lawyer qualified to appear before the courts of the country where they are detained in regard to an application to the Commission, or any proceedings resulting therefrom.
3. In application of the preceding paragraphs, there shall be no interference by a public authority except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, for the detection or prosecution of a criminal offence or for the protection of health."
Article 6 of the Agreement states:
†"Nothing in [the] Agreement shall be construed as limiting or derogating from any of the obligations assumed by the Contracting Parties under the Convention."
A. Correspondence with his solicitor
2. "In accordance with the law"
3. Legitimate aim
4. "Necessary in a democratic society"
He further submitted that the rights, duties and privileges of lawyers were specifically developed to protect the liberty and privacy of the individual as well as the right to a fair trial and the proper administration of justice. He pointed out that the purpose of the principle of confidentiality between lawyer and client is to enable a person to consult his solicitor freely without the risk that information would be communicated to his opponent.
However, they argued that it was necessary inter alia in the interests of prison security to open letters to and from a solicitor concerning contemplated legal proceedings, as well as general correspondence, with a view to determining whether or not they contained prohibited material. In addition, it was contended that Contracting States enjoy a certain margin of appreciation in striking a balance between the protection of prison security and respect for the confidentiality of correspondence. How the balance was to be struck was a matter of judgment best made by those familiar with the Scottish prison system who had experience in dealing with both prisoners and solicitors in Scotland. The prison authorities were entitled to strike a different balance in relation to correspondence between prisoners and solicitors which concerned matters other than pending legal proceedings.
This means that the prison authorities may open a letter from a lawyer to a prisoner when they have reasonable cause to believe that it contains an illicit enclosure which the normal means of detection have failed to disclose. The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, e.g. opening the letter in the presence of the prisoner. The reading of a prisonerís mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature. What may be regarded as "reasonable cause" will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused (see, mutatis mutandis, the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, para. 32).
Further, correspondence is a different medium of communication which is afforded separate protection under Article 8 (art. 8). The right to respect for correspondence is of special importance in a prison context where it may be more difficult for a legal adviser to visit his client in person because, as in the present case, of the distant location of the prison (see paragraph 8 above). Finally, the objective of confidential communication with a lawyer could not be achieved if this means of communication were the subject of automatic control.
B. Correspondence with the Commission
2. "In accordance with the law"
3. Legitimate aim
4. "Necessary in a democratic society"
Moreover, there is no compelling reason why such letters from the Commission should be opened. The risk, adverted to by the Government, of Commission stationery being forged in order to smuggle prohibited material or messages into prison, is so negligible that it must be discounted.
II. AS REGARDS ARTICLE 25 PARA. 1 (art. 25-1)
"The Commission may receive petitions addressed to the Secretary General of the Council of Europe from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in [the] Convention, provided that the High Contracting Party against which the complaint has been lodged has declared that it recognises the competence of the Commission to receive such petitions. Those of the High Contracting Parties who have made such a declaration undertake not to hinder in any way the effective exercise of this right."
III. APPLICATION OF ARTICLE 50 (art. 50)
"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."
B. Costs and expenses
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one, that the interference with the applicantís correspondence with his solicitor gave rise to a violation of Article 8 (art. 8);
2. Holds by eight votes to one, that the interference with the applicantís correspondence with the Commission gave rise to a violation of Article 8 (art. 8);
3. Holds unanimously, that it is not necessary to examine whether or not there was a breach of Article 25 para. 1 (art. 25-1);
4. Holds unanimously, that the United Kingdom is to pay to the applicant within three months, in respect of costs and expenses, the sums resulting from the calculations to be made in accordance with paragraph 73 of the judgment;
5. Dismisses unanimously the remainder of the claim for just satisfaction.
Done in English and in French, and delivered at a public hearing in the Human Rights Building, Strasbourg, on 25 March 1992.
In accordance with Article 51 para. 2 (art. 51-2) of the Convention and Rule 53 para. 2 of the Rules of Court, the following separate opinions are annexed to this judgment:
(a) separate opinion of Mr Pinheiro Farinha;
(b) partly dissenting opinion of Mr Morenilla;
(c) partly dissenting opinion of Sir John Freeland.
SEPARATE OPINION OF JUDGE PINHEIRO FARINHA
I am unable to accept paragraph 48 of the judgment as it stands, for, in my opinion, it offers no guarantee that letters will not be read.
What is meant by "suitable guarantees"?
Will the presence of the prisoner suffice?
I could have accepted the following wording: "It is necessary to provide suitable guarantees: in principle the letter should be opened in the presence of the prisoner or, when that is not possible, in the presence of the Chairman of the Bar Council (b‚tonnier du barreau) or of a lawyer of his choice."
PARTLY DISSENTING OPINION OF JUDGE MORENILLA
1. The applicantís complaints in the present case relate only to the prison authoritiesí examination of his correspondence with his solicitor and with the European Commission of Human Rights during the period dating from January 1985 to 21 March 1988, while serving a term of life imprisonment for murder after his conviction on 10 October 1984. On 21 March 1988 the new Prison Standing Order came into force following the friendly settlement in the case of McComb v. the United Kingdom (application no. 10621/83, report of the Commission of 15 May 1986, DR 50, pp. 81-89).
2. I fully share the view of the majority that the opening of inmatesí correspondence by prison authorities constitutes an interference with their rights under Article 8 (art. 8) of the Convention unless justified under the requirements of legality (the law being adequately accessible and foreseeable), necessity ("pressing social need") and proportionality to the legitimate aim pursued by the national authorities, as set forth in the case-law of this Court. In this respect the Court has consistently recognised a certain but not unlimited margin of appreciation to the States Parties in the imposition of the restrictions (see, inter alia, the Silver and Others judgment of 25 March 1983, Series A no. 61, pp. 37-38, para. 97) under the supervision of this Court as to their compatibility with the Convention.
3. When assessing the necessity of the restrictions imposed on the applicantís mail by the prison authorities "a proper balance must be found between the interests of the prisoners and their lawyers on the one hand and those of the prison administration (and through them of society in general) on the other", as the member of the Commission Mr H.G. Schermers recalls in his dissenting opinion. For this evaluation the national authorities, within the margin of appreciation allowed to them, are certainly better equipped than international judges.
4. In the present case, the Government state that this interference pursued the aim of "the prevention of disorder or crime". The situation in Scottish prisons is described by the applicant himself during the period of his imprisonment as having "been rocked by the number of demonstrations, escape attempts, roof-top protests, hostage taking and other violent incidents" (memorial of the applicant, Cour (91) 69, p. 124).
5. The applicant, in the words of the trial judge, "a ruthless man of violence" (paragraph 8 of the present judgment), was classified following his conviction of assault and murder for security purposes as a Category B prisoner, which comprises "inmates who do not require maximum security but who ought to be kept in very secure conditions". Nevertheless, in November 1985, following an escape attempt by other prisoners, he was re-classified as a Category A prisoner and charged with a number of offences later abandoned by the Crown. Category A comprises "the group of inmates requiring the highest degree of security who ought to be kept in very secure conditions". He remained in this category until 9 March 1988 when he was re-classified as a Category B prisoner (see memorial of the Government, pp. 4-5, para. 1.3, and of the applicant, ibid., p. 123, and paragraph 8 of this judgment).
6. In the instant case, the restrictions imposed on Mr Campbellís correspondence arose from his behaviour in prison. Consequently, in order to examine the alleged violations of Article 8 (art. 8), like Mr Schermers, I also consider it necessary to depart from the methodological reasoning of the majority and to make a distinction between the applicantís "incoming" and "outgoing" mail. I think that this approach highlights the question at issue, namely as to the necessity of opening the applicantís correspondence in his presence in order to check whether it includes other material (as referred to in Standing Order Ma7) that could endanger the order of the prison or create the risk of crime.
7. Regarding the applicantís incoming mail, while sharing the views of the majority as expressed in paragraph 48 and the first sub-paragraph of paragraph 62, I think that given the situation in Scottish prisons and the circumstances of the prisoner, the opening of the correspondence addressed to him bearing the return address either of his solicitor or the Commission in order to verify the origin and content in accordance with Standing Order Ma7 (see paragraph 22 of this judgment) was justified under Article 8 para. 2 (art. 8-2) of the Convention. In view of the applicantís classification as a Category A prisoner and the exceptional situation to which I have already referred, it seems clear to me that, objectively, the prison authorities did have a reasonable suspicion which constituted sufficient justification for the measures taken by them and that accordingly the risk of forgery cannot be said to have been negligible. Furthermore, having regard to the prejudice that the applicant claims to have sustained, I do not feel that the fact that he was not present when his mail was opened constituted sufficient grounds for excluding the prison authoritiesí justification in acting as they did in this particular case. I cannot, therefore, agree with the majority that the interference with the applicantís correspondence with the Commission gave rise to a violation of Article 8 (art. 8).
8. As regards the applicantís outgoing correspondence, the risk of abuse was, obviously, less and the justification for the interference has to be more apparent. But the evidence before the Court in this case does not disclose any element supporting the applicantís claim - denied by the United Kingdom Government - that letters sent by him to the Commission have been opened.
9. However, with respect to the opening of mail addressed by him to his solicitor, I share the reasoning of the majority and their conclusion that there is a violation of his right to respect for such correspondence as enshrined in Article 8 (art. 8). Such a measure does not satisfy the above-mentioned requirements of necessity and proportionality to the legitimate aims pursued since the prison authorities were aware that the addressee was Mr Campbellís solicitor, and since the Government have failed to show any particular reason to justify the taking of measures which have impaired the applicantís rights of defence and the principle of respect for an uninhibited and confidential channel of communication between a lawyer and his client.
PARTLY DISSENTING OPINION OF JUDGE SIR JOHN FREELAND
1. I regret that I have found it necessary to part company with the majority of the Court on the question whether the interference with the applicantís correspondence with his solicitor gave rise to a violation of Article 8 (art. 8).
2. In the first place, I have felt unable to agree that there is no reason to distinguish between the different categories of correspondence with lawyers. In my view, the analytical approach of the Commission in treating as two separate categories (i) correspondence with a solicitor concerning contemplated or pending legal proceedings and (ii) general correspondence with a solicitor is both consistent with the earlier case-law and correct.
3. As to the substantive law applying to these categories, although my conclusions with regard to category (ii) are, for the reasons which I shall give below, at variance both with those of the Commission and with those of the majority of the Court, I would not dissent from the proposition that, because of the link with the principle of effective access to court under Article 6 (art. 6), correspondence in category (i) should not be opened by the prison authorities unless in any particular case they have reasonable cause to believe that the privileged channel is being abused. I accept that to include within this category contemplated proceedings, as well as pending proceedings, would be to require for the United Kingdom a further relaxation of the regime of control going beyond that introduced in the wake of the friendly settlement in the McComb case and would present the authorities with some difficulties of definition and identification; but I am not persuaded that such difficulties would be insuperable. I also accept that any such enlargement of the privileged channel of communication would involve some increase in the risk of abuse - but not, I consider, to an extent that should be intolerable.
4. If I were satisfied that it had been established that a particular item of correspondence between the applicant and his solicitor indeed concerned either contemplated or pending proceedings and had been opened by the prison authorities without their having had reasonable cause to suspect abuse, I would therefore have been prepared to vote for a finding of violation of Article 8 (art. 8) in this respect. That is, however, not the case. The applicant has relied on generalised assertions about interference with his correspondence with his solicitor and has neither produced nor identified any particular letter which could be established to have related to contemplated or pending legal proceedings and to have been opened by the prison authorities without reasonable cause for suspicion of abuse. Any privilege from disclosure attaching to such a letter would be his and could be waived by him; and his failure to be specific in this context contrasts with the particularity of at least part of his complaints in relation to correspondence with the Commission, where he submits copies of letters from the Commission which he says were opened (and the Government accept that some of them were). It also places the Government at a disadvantage in evaluating the allegations made against them and responding to the case which needs to be met; and it deprives the Court of the opportunity to consider in detail the situation with regard to individual letters, as it has done in the earlier cases concerning the application of Article 8 (art. 8) to interference with prisonersí correspondence. To my mind, more should be required before a State is found to be in violation of its obligations under the Article (art. 8) (the view of the majority that there is no reason to distinguish between the different categories of correspondence with lawyers of course enables it to be satisfied by the assertions made).
5. General correspondence with a solicitor, as distinct from correspondence relating to contemplated or pending proceedings, may include communications about any among an enormously varied and extensive range of personal or financial subjects - for example, property management - where the link with the principle of effective access to court is absent and the need for confidentiality is no more cogent, by the nature of the subject-matter, than in the case of correspondence with any other person of affairs who might be dealing with it. I accept, of course, that the relationship between lawyer and client is, for good reasons, normally to be regarded as privileged. I do not, however, find in Article 8 (art. 8) or in the previous case-law anything which seems to me to give that privilege so overriding a force as to limit the discretion of prison authorities, in relation to general correspondence between a convicted prisoner and his solicitor, to opening a letter only in an exceptional case where they have reasonable cause to believe it contains prohibited matter. Indeed, it seems quite clear from its judgment in the case of Silver and Others (Series A no. 61, in particular p. 39, para. 101) that the Court there considered that, making due allowance for their margin of appreciation, the authorities were entitled as a justifiable measure of control over prisonersí correspondence (and, by inference, irrespective of the extent to which they might have had prior cause for suspicion of abuse) to open and read - and in the circumstances of that case even to stop - a letter from a prisoner to his solicitor which did not relate to contemplated or pending proceedings.
6. I confess that I am not persuaded of the existence of any compelling reason for going further now. The responsibility on prison authorities to maintain security and order in prisons, and to prevent the instigation by prisoners of activities outside prison such as threats or violence against witnesses or the unlawful disposal of proceeds of crime, is a very heavy one. In the present case, the judge at the applicantís trial recommended that he "be kept in prison for at least twenty years in order to safeguard members of the public for at least that period of time"; and the applicant was for most of the relevant period held as a Category A prisoner (that is, as one of "the group of inmates requiring the highest degree of security which will consist of those who must in no circumstances be allowed to get out, whether because of national security considerations or their violent behaviour is such that members of the public or the police would be in danger of their lives if they were to get out"). To require that the measures of control applicable in a prison where the inmates include prisoners such as the applicant must treat general correspondence with a solicitor no differently, so far as justification for opening is concerned, from correspondence relating to contemplated or pending proceedings seems to me to strike the balance between the protection of prison security, on the one hand, and the respect due to confidentiality, on the other, too much in favour of the latter. To do so would in my view be to underestimate the practical risks, to which the Government have drawn attention, of creating a privileged channel of communication so wide in scope as virtually to invite abuse.
7. Nor do I think it a sufficient answer to say, on the question of possible abuse, that solicitors are officers of the court and are subject to disciplinary sanctions for professional misconduct. Quite apart from the fact that disciplinary sanctions on a solicitor after the escape of a ruthless and violent prisoner might well come nowhere near to offsetting the harmful consequences to the public of such an escape, it is unnecessary even to go to the extent of postulating a failure of professional competence or integrity on the part of a solicitor. As Sir Basil Hall and Mrs Liddy pointed out in their partial dissent from the opinion of the Commission, use may be made of solicitors to convey information without their being aware of its significance. There is also the possibility of abuse, without the knowledge of a solicitor, as the result of, for example, pressure on a junior non-professional employee in the firmís office who has access to its stationery.
8. I also differ from the majority as to the weight to be attached to the fact that the applicant was entitled to have visits in prison from his solicitor, which would take place out of the hearing of a prison officer. The essential element of the right of access to legal advice - the opportunity to consult in confidence with a lawyer - was therefore available to him in an effective and practical manner. Certainly there would be some inconvenience and additional expense if the lawyer had to travel a substantial distance to the prison for a consultation, as Mr Carroll had to do on his visits to the applicant in Peterhead. But the degree of burden which this imposes does not seem excessive in relation to the effects of other restrictions on freedom of movement which flow from the need to constrain a prisoner who is in a high-security risk category. If the applicant wished, visits could in any event be arranged from a solicitor practising locally (I should perhaps add here that I do not think it could reasonably be argued that the right of access to legal advice extends to an entitlement to receive advice from a particular lawyer of the clientís own choosing and only from him or her, whatever the physical situation of the client and that lawyer may be).
9. In sum, although the case here differs from that of category (i) in that there is ample ground for proceeding on the footing that there has been interference, under the restrictions in force, with general correspondence between the applicant and his solicitor, I have concluded that such interference was justifiable as "necessary in a democratic society" within the meaning of Article 8 para. 2 (art. 8-2), just as it was (and here I agree with the majority) "in accordance with the law" and legitimate in its aim. It therefore did not give rise to a violation of the Article.
10. As for correspondence with the Commission, I agree that the applicant has not substantiated his complaint of interference with his outgoing letters. In the case of incoming mail, I have after some initial hesitation concurred in the conclusion that the opening of letters from the Commission to him gave rise to a violation of Article 8 (art. 8). There must admittedly be some additional risk arising from the existence of a further channel of communication in which letters will not be liable to be opened unless in any particular instance there is reasonable cause to believe that the privilege is being abused. The view which I have reached, however, is that in the case of correspondence with the Commission the extent of that additional risk would be so slight that the routine opening of letters from it cannot be adequately justified as "necessary in a democratic society".
* The case is numbered 52/1990/243/314.† The first number is the case's position on the list of cases referred to the Court in the relevant year (second number).† The last two numbers indicate the case's position on the list of cases referred to the Court since its creation and on the list of the corresponding originating applications to the Commission.
** As amended by Article 11 of Protocol No. 8 (P8-11), which came into force on 1 January 1990.
* Note by the Registrar: For practical reasons this annex will appear only with the printed version of the judgment (volume 233) of Series A of the Publications of the Court), but a copy of the Commission's report is obtainable from the registry.