82 / 462
g a z e t t e
april
1991
Their Lordships concluded that
the proceedings in the judge's room
and everything said and indicated
by the judge there amounted to a
material irregularity. They put the
appellant and his advisers in
obvious difficulty. They placed
pressure, improper pressure, albeit
indirectly on the appellant to
change his plea to one of guilty in
the fear that what the judge had
said meant, first, that his chances
of acquittal were thin and that, if he
was convicted by the verdict of the
jury, he would almost certainly go
to prison.
The Court of Appeal held that the
conviction for causing death by
reckless driving was both unsafe
and unsatisfactory. Accordingly the
conviction on a plea of guilty of
causing death by reckless driving
was quashed.
THE RIGHT OF COMMUNICATE:
BREACH OVER PRISONER'S
LETTERS
The European 'Court of Human
Rights has held in
McCullum United
Kingdom
(Case No. 20/1989/180/
238) that restrictions imposed
upon Mr. McCullum's correspon-
dence while he was in prison con-
stituted violations of Article 8 of
t he
European
Convention
on
Human Rights.
The Court delivered
judgment on August 30, 1990.
A r t i c le 8 of t he European
Convention on Human Rights
provides:
"1. Everyone has the right to
respect for his private and family
life, his home and his corres-
pondence.
2. There shall be no inter-
ference by a public authority
wi th the exercise of this right
except such as is in accordance
w i th 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."
While the applicant was detained
in prison, the prison authorities
stopped five letters written by him,
delayed t wo others and also
withheld from him copies of t wo
letters written on his behalf. In
addition, a disciplinary award
imposed on him i nc l uded a
28-day restriction on his corres-
pondence.
I. Alleged violetions of Article 8.
Neither t he Un i t ed K i ngdom
Government nor the applicant
c on t e s t ed t he Comm i s s i on 's
opinion on this point. The Court
saw no reason to disagree and held
unan imous ly t ha t, w i t h t he
exception of the delaying of the
t w o letters in ques t i on, t he
measures affecting the applicant's
correspondence which were at
issue cons t i t ued violations of
Article 8.
II.
Alleged violetions of Article 10.
The applicant had not pursued his
claim of breach of Article 10, which
guaranteed freedom of expression.
The Court held unanimously that it
was not necessary for it to examine
the case of its own motion under
this provision.
III.
Alleged violetions of Article 13.
The applicant had initially sub-
mitted that, contrary to Article 13,
he had no effective domestic
remedy in respect of his claim, that
the conditions of his detention in
the Inverness segregation unit and
the measures affecting his cor-
respondence had given rise to
violations of Article 3 and Article 8
respectively. However, at t he
Co u r t 's hearing his counsel
conceded that the judicial remedies
available through the national
courts would have been effective
and that there had therefore been
no breach of Article 13.
In those circumstances the Court
held unanimously that it was not
necessary to examine the case
under Article 13.
IV.
Application of Article 50
The Court dismissed unanimously
a claim by the applicant for £3,000
as compensation for the distress
and sense of isolation occasioned
by t he i n t e r f e r ence w i t h his
correspondence, considering that
its finding of violations of Article 8
constituted sufficient just satis-
faction. On the other hand, it
unanimously awarded him £3,000
out of a total claimed of £14,889,
in respect of costs and expenses
referable to the proceedings in
Strasbourg.
Kearney's Case
It is appropriate to refer to the
decision of
Kearney-v- Minister for
Justice
[1987] ILRM 52. There, the
plaintiff was a convicted prisoner.
Every letter by or to him, including
to or from his legal adviser, was
read by the prison governor or other
person depu t ed by h im in
accordance w i th rule 63 of the
Rules for the Government
of
Prisons, 1947,
which provided that
in the event of any letter's contents
being objectionable it shall not be
forwarded, or the objectionable
part shall be erased, according to
discretion. The plaintiff had claimed
that rule 63 was in breach of his
constitutional right to communi-
cate. In addition, the plaintiff
claimed damages for breach of his
constitutional rights in circum-
stances where he discovered that
certain items of correspondence
had not been forwarded to him. The
defence claimed that while the
items in question had been inter-
fered w i th in the context of an
industrial dispute this had not been
authorised and the State was not
liable for such actions since they
were outside the course of the duty
of the persons concerned.
In
Kearney,
Costello J held that
the right to communicate under
Article 40.3 of the Constitution
which had been considered in
some detail in
Attorney
General-v-
Paper/ink Ltd.
[1984] ILRM 373 was
not a right to communicate freely,
but had to be considered in the light
of the security and other require-
ments of the prison environment in
relation to convicted prisoners and
the real risk of, for example, legal
advisers abusing the confidentiality
of the solicitor-client relationship. In
the light of the practice under
which rule 63 was operated, where
only material relating to the
security of the prison and privacy
of other prisoners was treated as
"objectionable" for the purpose of
the rule and where staff must treat
i n f o rma t i on in legal advisers'
communications as confidential,
the rule did not infringe the
plaintiff's right.
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