The Gazette 1991

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

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.

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

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