THE FACTS

The facts presented by the Parties and apparently not in dispute
between them may be summarised as follows:

The applicant is a citizen of the United Kingdom, a Welshman, born in
Cardiff in 1933. It appears from his correspondence that he is a member
of the Mudiad Amddiffyn Cymru, the so-called "Free Wales Army". He is
now held in H.M. Prison, Albany, on the Isle of Wight. In the
proceedings before the Commission he is now represented by B. & Co.,
Solicitors of London.

The applicant is serving a sentence of ten years' imprisonment imposed
at the Flint Assizes on .. April 1970 for a number of serious criminal
offenses involving the use of explosives. He originally complained to
the Commission about his prison sentence, about interference with his
correspondence and about his prison sentence, and about the fact that
he was classified as a "category A" prisoner and was, as such, unable
to earn parole. These complaints were declared inadmissible by a
Partial Decision of the Commission on 18 December 1972. (Not published)

The applicant's complaints about his sentence and about his
correspondence were held to be manifestly ill-founded, his complaint
about parole was held to be incompatible with the provisions of the
Convention. The Commission decided, however, to adjourn its examination
of the applicant's complaint that publications and newspapers had been
withheld from him on political grounds and this is the part of the
application which is now outstanding.

In August 1972 the applicant wrote to the Commission alleging that
certain publications and newspapers had been withheld from him on
political grounds. Between January and April 1972 he stated that he had
been refused "Le Peuple Breton" on .. January, "Irish Democrat" on ..
February, "Herald Cymraeg" on .. February, part of the "Sunday Express"
and "Tafod y Ddraig" on .. March and part of the "Sunday Express",
"Irish Democrat", "Tafod y Ddraig" and "Le Peuple Breton" on .. April.
He said that he had complained to the Board of Visitors who had stated
that the publications were "unsuitable". He stated that all the
periodicals in question "deal exclusively with politics."
Submissions of the Parties

Observations of the respondent Government (dated 30 April 1973)

Under the Prison Rules and prison practice a convicted prisoner may
receive personally in prison the following publications of his choice:

one daily newspaper every day; and one weekly newspaper every week
(e.g. a local paper); and two periodicals on current thought, or
hobbies, or the arts every week; and two religious periodicals every
week; and two technical or educational periodicals every week.

He may also have books he has bought or books from friends plus books
from the prison library and may read newspapers provided for the
general use of prisoners. Newspapers and periodicals may be ordered by
the prisoner of by his friends or relatives but publications must be
received direct from the publisher or a reputable newsagent. This
requirement is designed to prevent the smuggling of money, messages,
drugs, etc., and to avoid the necessity for inspecting each item.
Prisoners may receive newspapers or periodicals dealing with politics,
or publications in a language other than English, but foreign
publications must be received direct from a reputable newsagent in the
United Kingdom.

The above provisions are subject to Rule 33 (1) of the Prison Rules.
This enables the Home Secretary to impose restrictions with a view to
securing discipline and good order in the prison or the prevention of
crime. Hence a publication encouraging prisoners to use violence is
likely to be withheld from them. On the other hand a publication
advocating violence as part of a general system would not necessarily
be withheld; for example, Marxist publications have been permitted.

If a publication is sent to a prisoner by someone who is not a relative
or friend it is usually regarded as being sent for propaganda and the
Governor will refer the matter to the central prison department. He
will also refer to the central prison department the question whether
a particular issue of a newspaper or periodical would present a serious
threat to good order or discipline in the prison. There is no list of
named publications which are automatically withheld.

When someone sends a newspaper cutting to a prisoner, this is dealt
with as if it were a letter. Letters are normally permitted between a
prisoner and his relatives and friends but communications between
prisoners and persons whom he did not know before going to prison are
only permitted at the discretion of the Governor.

A prisoner may complain about his treatment to the Board of Prison
Visitors who are independent persons appointed by the Home Secretary.
After complaining to the Board of Visitors, it is open to the prisoner
to petition the Home Secretary.

A considerable amount of reading matter is addressed to prisoners. On
an average weekday Albany Prison receives about one hundred and fifty
newspapers, periodicals and books together with some two hundred
letters. These have to be checked to ensure that they comply with
prison rules and practice. From the records it has been possible to
ascertain that in the period January to April 1972, 147 copies of
newspapers and periodicals were received for the applicant of which ten
were withheld. But due to the lapse of time it has not always been
possible to identify the precise grounds on which a particular issue
may have been withheld or even dates given by the applicant do not
always correspond with the dates in the prison records.

Because of publicity given to the applicant, he has been sent a
considerable volume of correspondence and a considerable number of
publications by persons who were not known to him before he entered
prison.

"Le Peuple Breton" is a monthly magazine. Two copies were withheld from
the applicant on .. January and .. April 1972 because they were not
delivered direct from a newsagent in the United Kingdom.

"The Irish Democrat" is also a monthly magazine, published in England.
It was withheld on .. February. This issue contained a reference to the
applicant and the prison referred the matter to the central prison
department. The department replied that X. could receive the copy if
it had been properly ordered and received direct from the publisher or
a reputable newsagent and provided that he had not already received his
full allowance of periodicals. In the event, this edition was not
issued and it is assumed that one or both of these provisions applied.

The March issue of the "Irish Democrat" was withheld but the prison
records do not indicate the reason. It was probably stopped for one or
more of the reasons indicated in the prison department's reply (see
previous paragraph).

It seems that the April issue of the "Irish Democrat" was issued to the
applicant. It was first referred to the central prison department (as
being a potential threat to good order and discipline) and the
department authorised it to be issued subject to the usual conditions
of origin and non-infringement of quota.

"Tafod y Ddraig" ("Tongue of the Dragon") was withheld from the
applicant in January, February and March (not the dates given by the
applicant who speaks of .. March, .. March and .. April). This is a
monthly periodical by the Welsh Language Society. The January issue
contained an article "Cofiwch y Carcharoriom" ("Remember the
Prisoners"). It mentioned the applicant and urged readers to write to
him. It was referred to the central department but it was decided to
withhold the issue for reasons which are not now absolutely clear. It
seems that it was withheld either because sent for the purposes of
propaganda (see above) or because it was sent by someone previously
unknown to the applicant. The same considerations seem to apply to the
February and March editions. The April issue was delivered. The
political opinions expressed were not a reason for withholding the
issues and the fact that the applicant was mentioned was not a reason
because he was mentioned in the April issue.

The "Herald Cymraeg" is a weekly paper mostly in Welsh. The issue of
.. February was withheld because it was sent to the applicant, together
with a letter, by someone who had not previously corresponded with him.
It did not come from the publisher or a reputable newsagent.

Parts of the Sunday Express were sent to the applicant as newspaper
cuttings together with letters from a person whom he had not known
before entering prison. They were withheld on .. March and .. April.

The applicant appeared before the Board of Visitors at Albany Prison
on .. May 1972. He complained, inter alia, about the withholding of
newspapers and periodicals. It was explained to him why the
publications were withheld. He did not petition the Secretary of State.

It is submitted that the restriction and control under the Prison Rules
is consistent with (Article 10 of) the Convention. There is inherent
in physical confinement a restriction on the ability of a person to
receive and impart information - see Application No. 2749/66, de Courcy
v. the United Kingdom, Yearbook, Vol. 10, p. 388. The Commission has
also recognised that the State has a margin of appreciation in
determining the limits that may be placed on the freedom of expression
(Application No. 1167/61, Yearbook, Vol. 6, p. 204).

The practice of the United Kingdom authorities relates to the method
of access to reading matter and to its volume and content. The method
of access must be controlled to prevent the smuggling of messages,
money or drugs. As to volume, this is a question both of checking and
of good order. Prisoners must also be treated equally and rich
prisoners could not be allowed to swamp themselves with unlimited
quantities of periodicals. As to content, the authorities do not
withhold publications on political grounds. They may be withheld only
if this presents a serious threat to good order or discipline or if
sent for the propaganda purposes of the sender.

In the alternative the Government suggest that the measures taken were
justified under Article 10 (2) as being in the interests of public
safety and for the prevention of disorder or crime. The application is
therefore manifestly ill-founded or alternatively incompatible with the
provisions of the Convention.

In the further alternative, it is submitted that, insofar as the
applicant complains of political censorship, it was open to him to
petition the Secretary of State. He has petitioned the Secretary of
State about a variety of matters but never about this. This omission
constitutes a failure to exhaust the remedies open to him under English
law as required by Article 26 - see the de Courcy case (above) and
Application No. 4471/70, Taylor v. the United Kingdom. It is always
possible that the prison authorities sometimes make a mistake in
applying the rules set out above. In these circumstances it is
particularly apt that the applicant should complain first to the Home
Secretary before submitting a petition to the Commission.

The Government, therefore, request the Commission to declare the
application inadmissible as being either manifestly ill-founded, in the
alternative, for non-exhaustion of domestic remedies.

Observations of the applicant - presented by B. & Co. on 22 March 1974

The applicant submits that the United Kingdom authorities have hidden
their actions behind vaguely described administrative discretion. They
have cited only outline general rules and quote, as authoritative,
practices which they will not produce in any published form and which
the applicant will show have been applied differently in his case from
that of others.

Article 10

The United Kingdom Government cite a large number of rules or practices
in respect of newspapers, periodicals and correspondence which derive
their authority from Rule 4 of the Prison Rules and which may be
further varied under Rule 33 (1) by the Secretary of State with a view
to securing discipline and good order in the prison and for the
prevention of crime. If applied with consistency and for the reasons
given, many of these might constitute a valid application by the
Government of their right under Article 10 (2) to derogate from the
basic freedom to receive and impart information. But the applicant
considers that the erratic and irrational application of the rules in
his case makes the enjoyment of any rights under Article 10 a fragile
and unpredictable mockery.

Thus in response to the applicant's original complaint concerning the
seizure of ten items, the United Kingdom are able to give at this
stage, reasons why five only were withheld. Of these five, two were
copies of "Le Peuple Breton" and ostensibly contravened the prison
practice that foreign publications must be received direct from a
reputable newsagent in this country. The applicant has, however, both
before and since, received copies of the same magazine from the same
source, and there is no newsagent or distributor in this country. As
to the "Herald Cymraeg" the applicant points out that he had until
recently been receiving another weekly newspaper regularly from his
parents.

The publications stopped were all political. In respect of each the
applicant was informed at the time of refusal that it was "unsuitable"
and in respect of the issues of the "Irish Democrat" in particular that
they were "subversive". These categorisations were repeated by the
Board of Visitors when the applicant complained before them.

Furthermore, the Government can now only surmise at the reasons for
stopping the "Irish Democrat" and "Tafod y Ddraig". In view of the
exactness of the wording of Article 10 (2) and in view of Article 18
of the Convention, this is not satisfactory.

The United Kingdom Government base one of their arguments, about
inherent restrictions, on the de Courcy case but this case concerns
correspondence and correspondence cannot be equated with publications.
Publications are designed for a wide audience and if there is anything
offensive about them they should be prosecuted or dealt with as such.
No suggestion is made in the present case that the publications were
offensive.

The applicant submits that the rules and practices are too restrictive
under Article 10, but anyway he thinks that the detailed regulations
should be put forward in some printed form.

As to the Government's comments on the number of periodicals received
by the applicant during the relevant period, the applicant points out
that the seemingly generous quota consisted almost entirely of
subscriptions to a daily and a weekly newspaper.

Article 26 of the Convention

The applicant denies that he has failed to exhaust domestic remedies.
He did petition the Board of Visitors and the Government now suggest
that he should have then pursued the alternative course of petitioning
the Home Secretary. He does not consider that this is a viable
alternative. In fact he did petition the Home Secretary about "Le
Peuple Breton" on .. September 1973. The Home Office rejected his
petition on the ground that "You may receive foreign newspapers,
periodicals and other publications providing they conform to the prison
regulations and are sent direct from a reputable newsagent in this
country". This rejection is dated .. October 1973.

The applicant also points out that it is for the respondent Government
to show that a remedy exists (Pfunders case Application No. 788/60) and
that such remedy should be "in principle capable of providing an
effective and sufficient means of redress". (Nielsen case Yearbook,
Vol. 2, p. 436). A "grace and favour" decision is not a remedy. The
applicant would also suggest that in view of the capricious application
of unpublished rules as to  his particular case, no satisfactory remedy
can exist and that he, as a prisoner with a strong political viewpoint
is permanently at risk from political censorship disguised as standard
practice.

Even since his application to the Commission the applicant has been the
victim of censorship - despite complaints to the Board of Visitors and
to the Secretary of State. At Christmas 1973 he was sent six books of
which one was stopped. This was stopped on the official ground that it
was sent by someone who had not known him before he entered prison.
Yet, in fact, this ground was applicable to the five others. The
stopped book was "Selected Writings of James Connelly" (sent by Padraic
O'Conchuir) and the real ground for stopping it was political. The
applicant maintains that there was no effective remedy. On the contrary
there was an administrative practice of censorship.

Article 14 of the Convention

Even if the Government were able to justify their actions under Article
10 (2) read alone, they have used the restrictions for a purpose for
which they are not justified. Apart from this, other prisoners are
allowed to have publications which do not conform to the rules invoked.
Thus the rule about foreign publications which is applied occasionally
against his "Le Peuple Breton" is never applied to the "National
Geographic Magazine" also sent from abroad.

The applicant would therefore submit that the United Kingdom Government
are by far exceeding any margin of appreciation allowed to them under
Article 10 and are also clearly violating Article 14.

THE LAW

The applicant states that, since he has been detained in prison, he has
been refused a number of magazines and periodicals. He claims that he
has been the victim of political censorship. The Commission has
examined this complaint in the light of Article 10 (Art. 10).

The respondent Government have submitted in their written observations
that every prisoner is allowed a number of publications of his choice,
provided he orders them and receives them regularly from a recognised
source. He is allowed one newspaper every day, and up to seven further
periodicals every week, if he uses his maximum allowance. The applicant
has never denied that this allowance is properly applied. The present
case does not concern the stopping of periodicals within the official
allowance but the stopping of periodicals which were outside the
allowance, either because they came from unauthorised sources or
because they were beyond the applicant's numerical entitlement. The
applicant is saying that sometimes he has been allowed periodicals
above and beyond the official allowance while sometimes they have been
stopped. He says that the other prisoners have been allowed periodicals
from other than recognised sources while his own periodicals from
unrecognised sources have often been stopped.

The Commission considers that the basic allowance is quite adequate and
not ungenerous. Furthermore, it is easy to see why the rules are
imposed and also reasonably easy to see why in some cases they are
relaxed. Although there is a general rule against prisoners receiving
magazines direct from sources outside the United Kingdom, this rule
seems not to be applied to well-known English Language publications
like the National Geographic Magazine. But the essence of the
applicant's case is that he wishes to receive periodicals, which are
generally in a language other than English, from sources that the
prison authorities cannot easily check. He has never really explained
why he cannot receive these periodicals from an authorised source;
there must be newsagents in the United Kingdom who distribute material
in Welsh and French.

What the applicant is really saying is that he does not want to use up
his ordinary entitlement with regular copies of these magazines. He
wants occasional copies sent to him from unrecognised sources. This
naturally places a considerable strain on the prison authorities for
possible messages, etc. Even assuming that X. can read Welsh and French
(and his background makes this doubtful), and even assuming that he is
not being "difficult", the Commission considers that he is asking for
more than his entitlement under Article 10.

Article 10 (2) (Art. 10-2) of the Convention allows restrictions on the
right to receive information if such restrictions are prescribed by law
(see Rule 33 of the Prison Rules) and are necessary in a democratic
society for the prevention of disorder or crime. The Commission
considers that the restrictions in the present case fall well within
this definition. They appear to be designed to prevent the passing of
messages (and other material) to prisoners and to make it possible to
check incoming material without putting any unnecessary burden on
prison staff.

The Commission attaches no particular importance to the fact that after
a considerable lapse of time the authorities cannot always account for
the exact reason for the stopping of a particular item. As explained
above, there is no suggestion in this case that the applicant was not
allowed to have all his magazines within the normal allowance. The
Commission does not consider that - having regard to the rules as set
out - there is any burden of proof on the authorities to keep detailed
records explaining why periodicals outside the quota were stopped.

The Commission has held in previous cases (see e.g. application no.
2749/66, Yearbook, Vol. 10, p. 388) that a numerical limitation on a
prisoner's correspondence (or entitlement to reading matter) does not
as such infringe the provisions of Article 8 (or Article 10)
(Art. 8, 10). The finding in the present case is in conformity with
this principle.

An examination of this complaint as it has been submitted including an
examination made ex officio, does not therefore disclose any appearance
of a violation of the rights and freedoms set out in the Convention and
in particular in the above Article.

It follows that the remaining part of the application is manifestly
ill-founded Article 27 (2) (Art. 27-2), of the Convention.

For these reasons, the Commission DECLARES THE REMAINING PART OF THIS
APPLICATION INADMISSIBLE