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FOURTH
SECTION
CASE OF
BLACK v. THE UNITED KINGDOM
(Application
no. 56745/00)
JUDGMENT
STRASBOURG
16
January 2007
This judgment will
become final in the circumstances set out in Article 44 § 2
of the Convention. It may be subject to editorial revision.
In the case of Black v. the United Kingdom,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Mr J. Casadevall,
President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr M.
Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Mr S.
Pavlovschi, judges,
and Mr T.L. Early, Section
Registrar,
Having
deliberated in private on 12 December 2006,
Delivers
the following judgment, which was adopted on the last mentioned
date:
PROCEDURE
- The
case originated in an application (no. 56745/00) against the United
Kingdom of Great Britain and Northern Ireland lodged with the Court
under Article 34 of the Convention for the Protection of Human Rights
and Fundamental Freedoms (“the Convention”) by a British
national, Mr Wayne Thomas Black (“the applicant”), on 1
December 1999.
- The
applicant, who had been granted legal aid, was represented by Mr S.
Creighton, a lawyer practising in London. The United Kingdom
Government (“the Government”) were represented by their
Agents, Mr C.A. Whomersley and, subsequently, Mr J.
Grainger, both of the Foreign and Commonwealth Office.
- The
applicant complained under Article 6 § 1 about his adjudication
proceedings pointing to the role of the Governor and the lack of a
public pronouncement of the decision. He also invoked Article 6 §
3(c) as regards the lack of legal representation.
- By
a decision of 27 September 2005, a Chamber of the Fourth Section of
the Court declared the application partly admissible.
- The
applicant and the Government each filed further written observations
(Rule 59 § 1). The Chamber decided, after consulting the
parties, that no hearing on the merits was required (Rule 59 § 3
in fine).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1967 and is currently in
prison in HMP Longmartin.
- On
26 July 1995 the applicant was sentenced to 20 years’
imprisonment for armed robbery. On 8 January 1996 he was sentenced to
consecutive sentences of 3 years’ imprisonment for escaping
lawful custody and of one year for assault. He was eligible for
consideration for release on parole on licence on 5 September 2006
and qualifies for automatic release on licence on 5 September 2010.
- On
29 May 1997 he was escorted to the searching area for high risk
prisoners following a prison visit. Two officers conducted the strip
search. During that search an item fell from the applicant’s
anus. The applicant immediately picked it up and re-inserted it into
his anus. The officers then ordered the applicant to hand over the
object. The applicant refused, stating “I cannot do that”.
He was charged with disobeying a lawful order contrary to Rule 47(19)
of the Prison Rules 1964 (applicable at the relevant time).
- On
31 May 1997 the hearing of the charge before the prison Governor
commenced and the applicant was granted an adjournment to obtain
legal advice. On 10 June 1997 he applied to the Governor for legal
representation at the hearing. The hearing re-commenced on 12 June
1997. The request for legal representation was refused by the
Governor.
- The
applicant’s defence was that the item was a suppository.
Evidence was adduced that no suppositories had been prescribed to the
applicant in the 2 years prior to the incident and that the applicant
had not complied with the officers’ order. He was found guilty
as charged. He was awarded 5 additional days’ detention
together with exclusion from work and forfeiture of privileges for 10
days.
- The
applicant applied to the Home Office to have the Governor’s
ruling quashed on the basis that he could not have handed over the
item as it had already been re-inserted in his anal area. His
application was rejected on 1 August 1997. He then complained to the
Prisons Ombudsman who gave his opinion and recommendation on 9 August
1997. He was not persuaded that the adjudication had properly
investigated the sequence of events during the search: if it was the
case that the applicant had already re-inserted the item when he was
asked for it, the prison officer’s request to retrieve it may
not have been lawful. He recommended that the Governor’s
finding be quashed. By letter dated 5 January 1998 the prison service
confirmed that the Prisons Ombudsman’s recommendation had not
been accepted.
- On
17 April 1998 the applicant applied for leave to apply for judicial
review of the decision of the Governor. A hearing took place in the
High Court on 21 June 1999. The prison service submitted that
effective drugs’ control in prison required that they had to
have the power to conduct strip searches including making a request
to remove items suspected of being secreted internally. The applicant
provided medical evidence to the effect that such removal risked
causing harm to him. The High Court rejected the application finding,
inter alia, that, depending as it does on the circumstances of
the case, an order to a prisoner to remove an item from his anus
would not necessarily be unlawful. The applicant did not appeal.
II. RELEVANT DOMESTIC LAW AND PRACTICE
- The
Court refers to its outline of domestic law and practice in Ezeh
and Connors v. the United Kingdom ([GC], nos. 39665/98 and
40086/98, §§ 31-62, ECHR 2003 X).
- Rule
39 of the Prison Rules 1964 (applicable at the relevant time)
provided that prisoners could be searched as often as a Governor
deemed necessary and that such searches were to be conducted in as
seemly a manner as was consistent with discovering anything
concealed. Prison guidelines added that a physical search could only
be conducted by a medical officer with the consent of a prisoner.
- Rule
47(19) of those Prison Rules provided that it was an offence against
prison discipline to disobey a lawful order.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
- The
applicant argued that, in the light of the above-cited Ezeh and
Connors judgment, Article 6 applied to his adjudication
proceedings. The Government had no comment to make in this respect.
- The
Court has had regard to the reasoning and conclusion in the Court’s
judgment of even date herewith in the case of Young v. the
United Kingdom in which case it found that the same charge
(disobeying a lawful order), although disciplinary in domestic law
and in nature, was criminal within the meaning of Article 6 § 1
having regard to the nature and severity of the penalty of detention
liable to be (42 days), and actually (3 days), imposed.
- The
present applicant risked the same period of 42 days’ additional
detention and his actual sentence (5 days) was longer than that of
Ms Young. The Court finds, for the reasons detailed in the
above-cited Ezeh and Connors judgment, that the applicant was
charged with a “criminal offence” within the meaning of
Article 6, which provision applies.
19. The
applicant complained under Article 6 § 1 that the Governor was
not independent or impartial and about the absence of a public
pronouncement of the adjudication decision. The Government did not
make any comment on the role of the Governor, but contested the
necessity for a public pronuncement of the adjudication ruling.
- The Court sees no reason to reach a different
conclusion in the present case from that in the above-cited Young
case. For the reasons given in the above-cited Ezeh and Connors
judgment and in the Whitfield and Others v. the United Kingdom
judgment (nos. 46387/99, 48906/99, 57410/00 and 57419/00, 12 April
2005), the Court finds that there has been a violation of Article 6 §
1 of the Convention as regards the lack of independence and
impartiality of the tribunal and, consequently, fairness of the
proceedings and that there has been an additional violation of
Article 6 § 3(c) of the Convention as regards the lack of legal
representation at the adjudication hearings.
- The
Court does not consider it necessary separately to examine the
applicant’s complaint concerning the “public”
elements of Article 6 § 1 of the Convention (Findlay v. the
United Kingdom, judgment of 25 February 1997, Reports of
Judgments and Decisions 1997 I, § 80).
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 2,500 pounds sterling (GBP) in non-pecuniary damage
given the additional days’ detention awarded, the seriousness
of the violation and the lack of any remedy. The Government
disagreed, arguing that the finding of a violation would constitute
sufficient just satisfaction.
- As
in the above-cited judgments in the case of Findlay (at §§
85 and 88), Ezeh and Connors (at §§ 141-143) and
Whitfield and Others (at §§ 58 59), the
Court considers it impossible to speculate as to the outcome of the
proceedings against the applicant had the violations of Article 6 §§
1 and 3(c) of the Convention not occurred.
- Accordingly,
it finds that the present judgment in itself constitutes sufficient
just satisfaction for any pecuniary and/or non-pecuniary damage
arising from the violations of Article 6 of the Convention
established.
B. Costs and expenses
- The
applicant claimed for approximately 18 hours of legal work at a
charge out hourly rate of GBP 250, amounting to a total sum of GBP
5,346.25 (inclusive of VAT). The Government considered the charge out
rate to be excessive, noted that certain complaints had been declared
inadmissible and proposed an award of GBP 1,500.
- The
Court recalls that only legal costs and expenses found to have been
actually and necessarily incurred and which are reasonable as to
quantum are recoverable under Article 41 of the Convention (see, for
example, Smith and Grady v. the United Kingdom (just
satisfaction), nos. 33985/96 and 33986/96, § 28, ECHR
2000-IX).
- The
Court notes that all of the legal work in the present case was
completed after the adoption of the judgment in the above-cited
Findlay case and a significant portion was completed following
the Ezeh and Connors judgment, the central relevance of which
judgments is evident from the reasoning at paragraphs 17-21 above. In
addition, certain of the complaints (under Articles 3, 5, 8 and 13)
were declared inadmissible de plano.
- Having
regard to all the circumstances of the case, the Court awards the sum
of 2,500 euros (“EUR”) in respect of costs and expenses
inclusive of any VAT which may be chargeable, less EUR 701 paid by
the Council of Europe in legal aid, the final sum of EUR 1,799 is to
be converted into pounds sterling at the rate applicable on the date
of settlement.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT
- Holds by six votes to one that there has been a
violation of Article 6 § 1 of the Convention in that the
applicant did not have a fair trial by an independent and impartial
tribunal;
- Holds by six votes to one that there has been a
violation of Article 6 § 3(c) of the Convention;
- Holds unanimously that it is not necessary to
examine separately the remaining complaints under Article 6 §
1 of the Convention;
- Holds unanimously that the findings of a
violation of Article 6 constitute in themselves sufficient just
satisfaction for any non-pecuniary damage sustained by the applicant;
- Holds unanimously
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,799 (one
thousand seven hundred and ninety nine euros) which is inclusive of
any VAT chargeable and which is to be converted into pounds sterling
at the rate applicable at the date of settlement;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses unanimously the remainder of the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 16 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early J. Casadevall
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the dissenting opinion of Mr Maruste is
annexed to this judgment
J.C.M.
T.L.E
DISSENTING OPINION OF JUDGE MARUSTE
I have expressed my detailed view on prison disciplinary proceedings
in my joint dissenting opinion in the case of Ezeh and Connors v.
the United Kingdom ([GC], nos. 39665/98 and 40086/98, ECHR
2003 X) and I remain of that opinion.
The relevant proceedings in the present case took place within the
original, fully legal and still standing sentence period and were
directly linked to the context of the original penal conviction
(otherwise the problem would not have arisen).
It was not a fresh sentence of imprisonment: neither did it extend
beyond the actual sentence. The prospect of early release was
conditional, linked to the prisoner’s behaviour. The prisoner
is expected to behave well and to justify a munificent expectation as
to his future conduct. If he or she is not well behaved, he or she
has to serve more time – legally until the last day of
mandatory (namely, the original) imprisonment. The judiciary has
spoken and delivered judgment: its execution is delegated to the
executive.
It must be admitted that prisoners have a legitimate interest in
early release but there are conditions to be followed before that
interest becomes a “right” requiring the application of
Article 6. These conditions were not fulfilled.
It is my understanding that there is no need or justification for
arranging two full scale trials within one sentence period. This is
especially the case where the disciplinary “mini trial”
could be examined on judicial review before High Court as indeed
happened in present case.
