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You are here: BAILII >> Databases >> European Court of Human Rights >> Jeremy BAMBER v the United Kingdom [1997] ECHR 205 (11 September 1997)
URL: http://www.bailii.org/eu/cases/ECHR/1997/205.html
Cite as: [1997] ECHR 205

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                      AS TO THE ADMISSIBILITY OF


                      Application No. 33742/96
                      by Jeremy BAMBER
                      against the United Kingdom


     The European Commission of Human Rights (First Chamber) sitting
in private on 11 September 1997, the following members being present:

           Mrs.  J. LIDDY, President
           MM.   M.P. PELLONP──
                 E. BUSUTTIL
                 A. WEITZEL
                 C.L. ROZAKIS
                 L. LOUCAIDES
                 N. BRATZA
                 I. B╔K╔S
                 G. RESS
                 A. PERENIC
                 C. B╬RSAN
                 K. HERNDL
           Mrs.  M. HION
           Mr.   R. NICOLINI


           Mrs.  M.F. BUQUICCHIO, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 6 August 1996 by
Jeremy BAMBER against the United Kingdom and registered on
12 November 1996 under file No. 33742/96;

     Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a British citizen born in 1961 and currently
detained in HM Prison Woodhill, Buckinghamshire.  He is represented
before the Commission by Mr. R. Price, a solicitor practising in
Birmingham.

     The facts of the case, as submitted by the applicant, may be
summarised as follows.

a)   The particular circumstances of the case

     On 28 October 1986 the applicant, who has consistently maintained
his innocence, was convicted of murder and sentenced to life
imprisonment.  His appeal against conviction was dismissed on the
28 March 1989.  In 1992 the applicant petitioned the Home Secretary to
refer his case to the Court of Appeal.  The Home Secretary declined to
do so.  In November 1994 the applicant successfully challenged the
refusal by the Home Secretary to disclose his reasons for not referring
the case to the Court of Appeal.

     On 22 May 1995 the applicant participated in a programme on Talk
Radio by placing a telephone call from prison.  The applicant raised
issue with the assertion made by the programme's host that a convicted
person should serve the entirety of the sentence imposed by the trial
judge without remission, and thus by way of example a life sentence
should mean life imprisonment.  The applicant considered such an
approach ignored the fact that remission provided an incentive to good
behaviour, that it was unfair in the case of murder since life
imprisonment was mandatory irrespective of the circumstances of the
crime, and that in any event generalisations were inappropriate and
each case should be judged on its own facts.

     This exchange triggered a parliamentary question to the Home
Secretary concerning prison policy in relation to prisoners' contact
with the media.  The Home Secretary responded by written answer stating
that it was inappropriate for prisoners to participate in radio phone-
in programmes and that immediate steps would be taken to amend the
standing order governing prisoners' communications to reflect this
policy.

     On 21 June 1995 Standing Order 5 was amended.  The effect of the
amendment (see below) was to preclude prisoners from contacting the
media by telephone save with permission, which would only be granted
in exceptional circumstances.  Prisoners were notified of the amendment
as follows :

     "To minimise the risk of prisoners improperly using the
     card phone system to contact the media and the difficulties
     in curtailing such calls because of the immediacy of the
     transmission, Standing Order 5 has been amended to disallow
     prisoners from making any communication of this kind.  For
     the purpose of this Instruction "the media" should be
     construed as a person or place associated with broadcasting
     or publication of material.  Any breach of this instruction
     will be a disciplinary offence under Prison Rule 47(20) or
     Rule 50(20) of the YOI rules."

     On 20 September 1995 the applicant telephoned the News Editor of
the London News Agency in order to discuss his conviction.  The
telephone call was not made for the purposes of immediate or subsequent
transmission, but may have formed the basis of, or subsequently have
been incorporated within a newspaper article.  On 21 September 1995 the
applicant was disciplined for breaching Standing Order 5G rule 2B and
fined.  The fine was suspended for three months on the applicant
undertaking not to breach the standing order pending proceedings to
challenge its lawfulness.

     On 6 November 1995, prisoners at HM Prison Full Sutton, where the
applicant was then detained, were given personalised identification
numbers in lieu of telephone cards.  Each prisoner was restricted to
telephoning 20 previously approved telephone numbers.  The applicant
sought approval for the telephone numbers of two journalists, Ms S. P.
and Mr. J. R., employed by the London News Agency.  The applicant was
informed that he would not be permitted to contact either journalist
without first making a written application to the prison governor, and
then only in the event that he undertook not to discuss anything for
use in the media.

     On 15 November 1995, the applicant sought leave from the High
Court to apply for judicial review in order to challenge the
restriction in his access to the media consequent on Standing Order 5G
rule 2B.  In his response to the application for leave, the Secretary
of State, through the officer responsible for prison policy relating
to prisoners' communications, outlined the basis for the restriction
in prisoners' communications with the media in the following terms :

           "The policy which lies behind 〈the〉 general
     prohibition 〈on contacting the media save where such
     communication consists of serious representations about
     conviction or sentence or forms part of a serious comment
     about crime, the process of justice or the penal system〉 is
     I believe clear.  Where an inmate has, like the
     〈applicant〉, been convicted of serious offences, it is
     likely that any public discussion by him about those
     offences may cause serious distress to his victims or their
     surviving relatives or may indeed attract general public
     outrage.  It is for this reason among others that written
     correspondence is subject to the severe restrictions
     imposed by paragraph 34 of Standing Order 5 section B.

           The provisions of Standing Order 5 Section B in
     relation to correspondence can be enforced by reason of the
     fact that the written correspondence of certain categories
     of prisoners, including category A prisoners like the
     applicant ... are required to be read before dispatch, and
     if they contravene Standing Order 5 Section B, prisoners
     will not be permitted to send them. ... The main point is
     that written correspondence is capable of being vetted for
     compliance with the Standing Order before despatch. ...

           ... The policy which lay behind the introduction of
     card-phones into prisons, despite their obvious risks, was
     primarily to enable prisoners to take responsibility for
     keeping more closely in touch with family and friends, so
     that they would more easily reintegrate into society on
     their release.  However the difficulty about allowing the
     use of the card-phone system for calls to the media ... is
     the immediacy of the form of communication: once a
     conversation has taken place, it cannot be recalled and
     although it can be monitored, it is impracticable
     effectively to control the conversation once it has
     commenced.  There is no opportunity for the Governor or
     other responsible official to take time to reflect on the
     propriety of the communication as with a letter, or seek
     advice.  It was found by the prison Service that telephone
     calls were being made to the media in breach of the rules.

           ... It was further noted that there was another aspect
     to "immediacy" in this context.  It was well known that the
     live voice heard on radio or television might well make a
     substantially greater impact on the audience than would the
     same message carried on print.  It was considered that the
     public and in particular the victims of crime and their
     immediate families who might already have sustained serious
     distress as a result of the crime, might experience further
     distress or outrage upon hearing the live voice of the
     convicted and imprisoned offender on the radio or
     television, offering a one-sided protestation of his
     innocence and alleging expressly or impliedly that the
     victim had been mistaken or untruthful.  The Secretary of
     State believed that it was necessary to protect the
     legitimate interests of persons likely to be affected by
     such broadcasts and that in doing so he would be reflecting
     the views of law-abiding citizens who would be outraged at
     the prospect of a live platform on television and radio
     made freely available to those convicted of serious crimes
     and serving prison sentences.

           The only effective remedy in order to avoid such
     distress was to prohibit telephone calls to the media being
     made without the prior approval of the Governor, but
     because effective control of a telephone call ... was
     impracticable such approval would normally be withheld.  It
     was considered that if such a prohibition was imposed, this
     would not impinge disproportionately on a prisoner's
     freedom of expression, because he would retain the right to
     communicate with the media ... by correspondence."

     Leave to apply for judicial review was refused by a judge of the
High Court on 29 November 1995.  In the course of his reasoning the
judge stated :

           "The difficulty about the use of the telephone ... is
     that it is not possible for the authorities to know about
     or monitor what is being said until after is has been said.
     This is more particularly the case with communications of
     the sort that gave rise to this problem in the first place,
     that is to say live communications to broadcasting media.
     It is not possible to monitor or know the content until the
     actual statement has been made.  Prisoners' written
     correspondence, and certainly the correspondence of
     prisoners in the category that 〈the applicant〉 falls into,
     is read before it leaves the prison, for the precise reason
     of ensuring it complies with the rules.  Again, nobody to
     my knowledge has ever sought to say that that in itself is
     offensive.  It may be, of course, that issues arise of a
     different sort about what may be impeded from leaving, but
     that is not the present question.  In the case of telephone
     communications, in practical terms it is not possible for
     them to be monitored.  It would, of course, be possible for
     the prison authorities to spend a great deal of time
     listening in on the telephone and to interrupt, I suppose,
     if matters were said which they felt fell outside the
     rules.  I could not think that would be a reasonable use of
     scarce official time."

     The applicant renewed his application for leave before the Court
of Appeal.  The Court of Appeal refused the applicant leave on
15 February 1996.

b)   Relevant domestic law and practice

     Control over and responsibility for prisons and prisoners is
vested in the Home Secretary who, pursuant to s. 47 of the Prison Act
1952 :

     "may 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."

     The rules currently in place are the Prison Rules 1964.
Rule 33(1) states that the Secretary of State :

     "may, with a view to securing discipline and good order or
     the prevention of crime or the interests of any persons,
     impose restrictions, either generally or in a particular
     case, upon communications between a prisoner and other
     persons."

     The regulation of and restrictions on prisoners' communications
is governed by Standing Order 5.  As regards written correspondence,
Standing Order 5 provides under section B, in respect of contact with
the media, inter alia, that :

     "34.  General correspondence 〈excluding correspondence
     between an inmate and his or her lawyer〉 may not contain
     ...

     (9)   material which is intended for publication or use by
     radio or television (or which, if sent, would be likely to
     be published or broadcast) if it ...

           c.    is about the inmate's own crime or past offences
           or those of others except where it consists of serious
           representations about conviction or sentence or forms
           part of serious comment about crime, the process of
           justice or the penal system."

     In respect of prisoners' use of telephones, section G of Standing
Order 5 provided that :

     "2.   Inmates are not permitted to make calls to or via the
     operator or receive incoming calls, or to communicate by
     telephone matters which they would not be allowed to
     include in correspondence under the terms of 〈Standing
     Order〉 5B 34."

     Section G was amended on 21 June 1995 to include a further
paragraph which provides:

     "2B.  Inmates are not permitted to make calls to the media
     if it is intended, or likely, that the call itself or the
     information communicated will be used for publication or
     broadcast.  Any prisoner wishing to contact the media by
     telephone should make a written application for permission
     to do so, but such applications will only be approved in
     wholly exceptional circumstances.  Inmates should instead
     communicate such information in written correspondence,
     subject to the provisions of standing order 5B and in
     particular paragraph 34(9)."

     The contact of prisoners with the media is further governed by
section A of Standing Order 5 which provides :

     "37.  Visits to inmates by journalists or authors in their
     professional capacity should in general not be allowed ...

     38.   Where, exceptionally, a journalist or author is
     permitted to visit an inmate in his or her professional
     capacity ... he or she will be required to give a written
     undertaking that no inmate will be interviewed except with
     the express permission in each case of the governor and the
     inmate concerned, that the interviews will be conducted in
     accordance with such other conditions as the governor
     considers necessary, and that any material obtained at the
     interview will not be used for professional purposes except
     as permitted by the governor."


COMPLAINTS

     The applicant complains that the restriction in his contact with
the media by telephone amounts to an interference with his right to
freedom of expression under Article 10 para. 1 which is not justified
under the terms of para. 2 thereof.  Specifically, the applicant
complains that the restriction prevents him from communicating
effectively with the media.  The applicant submits that since the
restriction precludes him from making serious representations about his
wrongful conviction, it cannot be justified as having as its object one
of the legitimate aims identified in Article 10 para. 2; alternatively,
that the restriction is too wide since it prevents the applicant from
contacting the media by telephone irrespective of whether the call is
for transmission.


THE LAW

     The applicant complains that the restriction in his contact with
the media by telephone constitutes an interference with his right to
freedom of expression in breach of Article 10 (Art. 10) which, so far
as relevant, provides :

     "1.   Everyone has the right to freedom of expression.  This
     right shall include freedom to hold opinions and to receive
     and impart information and ideas without interference by
     public authority ...

     2.    The exercise of these freedoms, since it carries with
     it duties and responsibilities, may be subject to such
     formalities, conditions, restrictions or penalties as are
     prescribed by law and are necessary in a democratic
     society, in the interests of ... public safety, for the
     prevention of disorder or crime, for the protection of
     health or morals, for the protection of the reputation or
     rights of others ..."

     The applicant, whilst not identifying the grounds upon which he
challenges his conviction, states that the restriction on his right to
telephone the media prevents him from communicating effectively with
the media about his wrongful conviction.  The applicant submits that
the restriction cannot be justified as having one of the legitimate
aims identified in Article 10 para. 2 (Art. 10-2); alternatively that
the restriction is excessive since it applies irrespective of whether
the call is to be transmitted.

     The means of communication apart, the applicant does not complain
that the restriction in the scope of his communications with the media
- which in any case is limited to "serious representations about
conviction or sentence or forms serious comment about crime, the
process of justice or the penal system" - is such as to raise any issue
under Article 10 (Art. 10).  Accordingly, the Commission's examination
in the present case are limited to a determination of whether the
restriction on the applicant's access to the media by telephone is such
as to constitute an interference with his right to freedom of
expression in breach of Article 10 (Art. 10).

     The Commission recalls that the right to freedom of expression
does not require a State to secure to an individual a general and
unfettered right of access to a particular medium or means of
communication (see, inter alia, No. 9297/81, Dec. 1.3.82, D.R. 28,
p. 204; and No. 25060/94, Dec. 18.10.95, D.R. 83, p. 66).  Nonetheless,
where, as in the present case, the State imposes restrictions on an
individual's access to a particular means of communication which, but
for the restriction, he would have enjoyed, the Commission considers
that such a restriction may constitute an interference with the
individual's right to freedom of expression.

     In this regard the Commission recalls that freedom of expression
constitutes one of the essential foundations of a democratic society
(see, inter alia, Eur. Court HR, Handyside v. the United Kingdom
judgment of 7 December 1976, Series A no. 24, p. 23, para. 49), and
notes that any restriction in the means available to an individual for
communicating the relevant information may be such as to inhibit its
effective communication.  The Commission also does not underestimate
the role which the media may play in cases where there has been a
miscarriage of justice.

     In the present case the effect of the restriction is to prevent
the applicant from communicating with the media by telephone, whether
for the purposes of direct transmission or subsequent publication, any
grievance concerning his conviction or sentence.  Whilst the applicant
has not been denied access to the media in that he is not precluded
from contacting the media by letter (see Standing Order 5 section B
rule 34(9)) and may, in more limited circumstances, be interviewed by
the media (see Standing Order 5 section A rules 37 and 38) the
Commission considers that in the circumstances the restriction on the
applicant's right to communicate with the media by telephone
nonetheless amounts to an interference with the his right to freedom
of expression under Article 10 para. 1 (Art. 10-1).

     The Commission must therefore go on to consider whether the
interference was prescribed by law and necessary in a democratic
society in accordance with one or more of the aims identified in
Article 10 para. 2 (Art. 10-2).

     Although it does not appear that Standing Order 5 section G rule
2B has the force of law in domestic terms, recalling the decision of
the Court in Silver and others v. the United Kingdom (judgment of
25 March 1983, Series A no. 61, pp. 33-36, paras. 86-90 and 94; see
also No. 18714/91, Dec. 9.5.94, D.R. 77, p. 42) and having regard to
the notice given to prisoners of the restriction in their contact with
the media, the Commission finds that the interference in question was
a sufficiently clear and foreseeable application of section 33(1) of
the Prison Rules 1964 as to have been prescribed by law within the
meaning of Article 10 para. 2 (Art. 10-2).

     The Commission also considers that the restriction in question
pursued proportionately a legitimate aim under the terms of Article 10
para. 2 (Art. 10-2) in that it sought to control communications with
the media with a view to the prevention of disorder, and the protection
of morals and/or the rights and freedoms of others.

     As to whether the interference was necessary in a democratic
society, the Commission recalls that the interference must correspond
to a pressing social need and be proportionate to the legitimate aim
pursued (see Eur. Court HR, Handyside v. the United Kingdom, loc. cit.,
pp. 22-23, paras. 48-49; and Eur. Court HR, Silver and others v. the
United Kingdom judgment, loc. cit., pp. 37-38, para. 97).  In the
result, the Commission must be satisfied, allowing for a State's margin
of appreciation, that the interference was necessary having regard to
the facts and circumstances prevailing in the specific case before it
(see inter alia Eur. Court HR, The Sunday Times v. the United Kingdom
judgment of 26 April 1979, Series A no. 30, pp. 40-41, para. 65).

     The Commission recalls that in the present case the State
withdrew the right of prisoners to contact the media by telephone as
it was considered impracticable effectively to control telephone calls
to the media; and that where the call was transmitted this might cause
distress to the victims or their families.

     The Commission does not consider that the distress which victims
or their families might experience necessarily justifies the scope of
the restriction which goes so far as to prevent the applicant from
making even serious representations to the media by telephone about his
conviction, and irrespective of whether the call would be transmitted.

     Accordingly, the Commission considers the issue in the present
case to be whether the restriction was justified as a necessary
interference with the applicant's right to freedom of expression having
regard to the State's assessment that it was impracticable effectively
to control communication with the media by telephone.

     In this respect, the Commission recalls that the assessment of
whether the interference was necessary must be made having regard to
the ordinary and reasonable requirements of imprisonment, and that some
measure of control over the content of prisoners' communications  - the
scope of which is not in issue in the present case - is not in itself
incompatible with the Convention (see Eur. Court HR, Golder v. the
United Kingdom judgment of 21 February 1975, Series A no. 18, p. 21,
para. 45; and Silver and others v. the United Kingdom judgment, loc.
cit.).

     The Commission accepts that for any control to be meaningful it
must be capable of being exercised effectively, and in the present case
the Commission does not find any sufficient grounds to dispute the
assessment of the prison authorities that it was impracticable to
exercise effective control over communications with the media by
telephone.

     The applicant in the present case is, moreover, not precluded
from any direct contact with the media for the purposes of making
serious representations about his conviction and any perceived
miscarriage of justice in his case; nor is it contended on his behalf
that there is any restriction in his lawyers effective access to and
use of the media in this regard.

     In these circumstances the Commission finds that the interference
with the applicant's right to freedom of expression can be regarded as
necessary and pursued a legitimate aim within the terms of Article 10
para. 2 (Art. 10-2).  Accordingly, the Commission concludes that there
has been no appearance of a violation of Article 10 (Art. 10).

     It follows, therefore, that the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.

     For these reasons, the Commission, unanimously,

     DECLARES THE APPLICATION INADMISSIBLE.

  M.F. BUQUICCHIO                                 J. LIDDY
     Secretary                                    President
to the First Chamber                         of the First Chamber


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