AS TO THE ADMISSIBILITY OF
Application no. 60682/00
by Anna YOUNG
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 11 October 2005 as a Chamber composed of:
Mr J. Casadevall, President,
Sir Nicolas Bratza,
Mr G. Bonello,
Mr R. Maruste,
Mr S. Pavlovschi,
Mr L. Garlicki,
Mr J. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged on 4 July 2000,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
The applicant, Ms Anna Young, is a United Kingdom national, who was born in 1965 and lives in the London. She is represented before the Court by Christian Fisher Khan, a firm of solicitors practising in London. The respondent Government are represented by their Agent, Mr J. Grainger of the Foreign and Commonwealth Office.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
In or around late 1999 the applicant breached an earlier probation order (concerning a charge of deception) and was sentenced to six months’ imprisonment. It was her first time in prison.
Her term of imprisonment commenced on 19 November 1999. On arrival in prison she was accorded an unconditional release date of 23 January 2000, which date took account of the time she had already spent on remand.
1. The applicant’s disability
The applicant suffers from cerebral palsy, a disorder of the central nervous system which can inhibit voluntary muscle control. She uses a wheelchair and can only walk a few steps with assistance. She does not have voluntary control of her bladder. This means that on occasion she either cannot urinate for several hours or she urinates uncontrollably and requires medication to restrain this. In addition, cerebral palsy affects not her intelligence but her ability to process information, a condition requiring explanations in plain language and sufficient time for full comprehension.
A short medical report from a general practitioner dated 15 August 2000 notes that the applicant was a patient of the relevant practice and that her condition could have affected her ability to produce a urine sample on demand as voluntary control of the nervous system is always affected by cerebral palsy. While he suggested obtaining a neurologist’s report on these matters, the applicant stated that she could not afford to obtain one.
The prison psychotherapist’s report of 31 January 2000 noted that the applicant had been referred to her in December 1999 given her distress and difficulties in coping with her imprisonment. It noted as follows:
“Largely confined to a wheelchair, <the applicant> manifests obvious physical symptoms of cerebral palsy as well as somewhat less obvious mental ones. <The applicant> possesses an excellent vocabulary and a reasonably well-developed capacity to think logically that places her well in the highest range of mental functioning for those who have the condition from which she suffers. Thus is seems that she often strikes those who meet her as an individual with a normal range of mental functioning but a difficult personality.
In fact, <the applicant> experiences problems dealing with any sort of symbolism in language: she is openly vocal about her distaste for what she calls slang. Any explanation given to her needs to be couched in concrete terms devoid of metaphor or simile. Often it may be advisable or necessary to write down an explanation so that she may study it at her leisure in order to take it in fully and remember it. When this procedure is followed, she proves well able to make use of information or advice.
From <the applicant’s> standpoint, these features of her mental functioning often make it difficult for her to think things through completely and thus to envision what the consequences of her actions may be. From the view point of those who deal with her, it often may seem that she is being difficult or uncooperative when it is in reality the case that she simply has not fully grasped the nuances of the subject at hand.
<The applicant’s> life circumstances seem to have been troubled and unhappy. She has felt it necessary to fight ferociously to consolidate and maintain her independence. Thus the stay in <prison> appears to have been a sobering experience for her. It seems rather graphically to have brought home to her the consequences of some of her own actions – actions for which she previously had been unable to envisage consequences.
It is difficult for <the applicant> to trust anyone completely, as she feels herself to have been badly let down by key figures in her life (including her mother, foster carers et al). Yet, in a relationship which <the applicant> experiences as one of confidence and caring, she is able to show herself as a warm, even endearing individual.”
The applicant was detained in the medical wing of the prison since the normal prison cells were not wheelchair accessible.
2. Mandatory drug testing (“MDT”)
At about 11.20am on 6 January 2000 a female prison officer asked the applicant to leave her education classes. They were then met by two other female prison officers. One of them asked the applicant if she had heard about MDT. The applicant replied that she had not and she was informed that it was mandatory drug testing. One of the officers requested the applicant to provide a urine sample immediately. The applicant alleged that she said that she would not be able to produce a sample: the Government did not accept this.
She was taken to the MDT unit, given a container and asked to provide a specimen. While the applicant claimed that she said again that she could not provide a urine sample, the Government maintained that she simply refused to provide a sample.
The applicant claimed that she began to explain why she could not provide a sample but that her explanation was brushed aside. She was offered a cup of water, which she declined. She maintained that this was because she knew that the water would not assist because the problem was not whether her bladder was full or not but whether she had the motor control to provide a specimen on demand and because she was concerned as to whether the water was fresh.
The applicant was taken to her cell by the officers and she was told that she could provide her sample there. A female officer remained in the cell with her and the applicant felt distressed by this. She claimed that, at about midday, she reiterated that she could not urinate. She submitted that the prison officer appeared irritated and informed her that she was going to put that down as a refusal which could result in additional days’ detention. The Government alleged that she simply refused once again to provide a sample.
She claimed that the officers who dealt with her were brusque and business-like. None of the officers asked her about her condition or whether she would need assistance in providing the urine sample and she was not offered the possibility of speaking confidentially with a medical officer or a structured manner of providing the sample over several hours. She admitted, however, that she did not explain to them that she could not urinate as a result of her disability. She alleged that she did inform the officers that she was menstruating (the Government disputed this) but, in any event, she accepted that she did not use her menstruation as an excuse for not providing a urine sample.
3. The adjudication proceedings
On 7 January 2000, at approximately 7.00-7.30am, a male officer came into the applicant’s cell and read an “official-sounding” paper about “a refusal”. The applicant was asked to sign it but refused to do so. She maintained that this was because she had just woken up and did not understand what was happening. The paperwork was left in her cell. This paperwork appears to have been a notice of report, which informed the applicant that she had been placed on report for the alleged offence of disobeying an order to provide a urine sample.
Later that day, she was sent to see the Governor when it was explained to her that she was being “put on report”. There were two officers in the room at the same time. Her account was that, feeling intimidated and not understanding the jargon they were using, she asked if she could have someone with her. The Governor refused and informed her that this would only be allowed for someone with severe learning difficulties. The Governor did not ask her if there were any medical reasons why she should be assisted. The Government disputed the applicant’s account of this meeting.
The matter was adjourned to the following week, to allow the relevant prison officer to attend to give evidence. In the meantime, the applicant was seen by a medical officer who certified her as fit to take part in the hearing. She did not inform the medical officer either that her disability had prevented her from providing a urine sample, explaining that this was because the medical officer never asked.
On 11 January 2000 the applicant appeared again before the Governor: the adjudication took place in a large dining room to allow wheelchair access. Two prison officers stood behind her. The Government alleged that the applicant was asked whether she wished to have any legal representation but declined. They have produced in evidence a form, filled out by the Governor at the adjudication hearing. Question 7 on Part 2 of the form enquires: “Do you want any additional help at this hearing? (If yes, explain the possibilities of assistance by a legal friend or legal representative)”. The Governor ticked the box saying “No”. The applicant disputed this, arguing that she requested legal representation but that it was refused.
The applicant submitted that she was not asked any questions about her disability or whether she had problems urinating. The allegation of a refusal to give a sample was put to her. She claimed that she tried to explain as best she could and that the Governor indicated that most people could provide a sample when asked and he noted that she had refused water. She accepted that she did not inform the Governor during the adjudication hearing that her disability had prevented her from providing a urine sample. The Governor found the charge of disobeying a lawful order to have been proven and sentenced the applicant to 14 additional days’ detention. She was informed that she could appeal.
With the assistance of the prison chaplain, she obtained and completed on 12 January 2002 a complaint form. She noted in the form that she had not represented herself as well as she wished and would have benefited from a prepared statement. She indicated that she had bladder problems, exacerbated by the stress of her imprisonment and she disclosed that she had been menstruating. She indicated her willingness to provide a urine sample and requested to be allowed the time for which Rule 46A(7) of the Prison Rules 1964 had provided. In an attached statement, she made it clear that she had not refused to provide the sample but simply could not due to her disability. She indicated that she had recently gone more than 24 hours without urinating. She further requested some assistance in order to comply with the prison rules as they had been drafted with able-bodied persons in mind and did not make allowances for those with disabilities. She expressed extreme distress at having to discuss her bodily functions and requested that the 14 additional days’ be withdrawn.
On 14 January 2000 the Governor replied that he had spoken to the prison chaplain, read the applicant’s submissions and discussed the case with the prison service area manager, the latter of whom had read the papers. The area manager agreed that the charge had been proven and that the award of additional days could be reduced to 3 additional days (with no association with other prisoners for 3 nights and 7 days’ stoppages in pay). She was also to provide a urine sample under the MDT arrangements.
The applicant sought legal advice. Her legal representatives could not contact her by telephone and were offered a visit after the applicant’s initial release date. Accordingly, they made written representations by letter dated 19 January 2000 to the Governor and to the prison service area manager outlining the applicant’s condition, how that prevented her providing the sample and her distress and embarrassment. They sought the withdrawal of the 14 additional days’ award, in default of which proceedings under the Disability Discrimination Act 1995 would be pursued.
The applicant was duly released on 26 January 2000. In his letter of 27 January 2000 to the applicant’s representatives (confirming a telephone conversation of 20 January 2000) the area manager stated that, while information was received by the Governor after the adjudication causing him to vary the sentence, that information did not cause the Governor or the writer to consider that the finding of guilt was flawed or should be quashed. He was further satisfied that the adjudication was conducted in a fair and proper manner. He noted that the applicant had not explained her difficulties to the officers involved in the test process, nor availed herself of the opportunity subsequently to talk through the issues with the Governor. That letter indicated that a medical officer had informed the Governor that the applicant had been fit to appear and had made no comment to indicate to the Governor that the applicant was unable to comply with an order to provide a sample.
On 11 July 2000 the applicant’s representatives complained to the Home Secretary about the prison adjudication matter. They received an acknowledgement dated 8 August 2000.
B. Relevant domestic law and practice
1. Forfeiture of remission and awards of additional days
The Court refers to its outline of the relevant domestic law and practice in its Ezeh and Connors v. the United Kingdom judgment ([GC], nos. 39665/98 and 40086/98, §§ 31-62). In particular, it recalls as follows.
The Criminal Justice Act 1991 (“the 1991 Act”) took away the disciplinary jurisdiction of the Visitors Boards, allocating it to prison Governors. It also introduced a new framework for determining the period of a sentence which would be served in custody. The concept of remission, which would result in early release of prisoners prior to the expiry of their sentence, was abolished. In its place, a new regime was created which distinguished between those prisoners sentenced to less and more than four years’ imprisonment (short and long-term prisoners, respectively).
Section 33(2) of the 1991 Act provides that, as soon as a long-term prisoner has served two-thirds of his sentence, it shall be the duty of the Secretary of State to release him on licence. Section 33(1) put the same obligation of release on the Secretary of State as regards short-term prisoners who had served half of their sentences: release of the latter category of prison was unconditional if the original sentence was for a term of less then 12 months and was on licence if the original sentence was for between 1 and 4 years’ imprisonment. In addition, section 42 of the 1991 Act provided as follows for the award of “additional days” to a prisoner found guilty by the Governor of disciplinary offences:
“(1) Prison rules, that is to say, rules made under section 47 of the 1952 Act, may include provision for the award of additional days -
(a) to short-term or long-term prisoners; or
(b) conditionally on their subsequently becoming such prisoners, to persons on remand.
who (in either case) are guilty of disciplinary offences.
(2) Where additional days are awarded to a short-term or long-term prisoner, or to a person on remand who subsequently becomes such a prisoner, and are not remitted in accordance with prison rules -
(a) any period which he must serve before becoming entitled to or eligible for release under this Part; and
(b) any period for which a licence granted to him under this Part remains in force,
shall be extended by the aggregate of those additional days.”
Rule 55 of The Prison Rules 1999 (statutory instrument No. 728/1999 – in force on 1 April 1999) provided that the maximum award of additional days should be 42 for each offence. However, the award of additional days could never extend beyond the length of the original sentence imposed by the trial court.
The case of R v. Governor of Brockhill Prison, ex parte Evans (No. 2) ( 2 WLR 103) concerned a short-term prisoner’s detention beyond the statutory release date because of an erroneous calculation of the release date. The Court of Appeal found detention beyond that statutory release date to be unlawful and awarded damages for false imprisonment. Lord Justice Roch noted that, pursuant to section 42 of the 1991 Act, additional days could be added onto the core period foreseen by section 33(1) so that the date therein envisaged was not absolute, but was a date that could be affected by decisions made by the Governor under section 42. Lord Justice Judge pointed out that:
“The discretionary aspects of earlier arrangements for remission and parole were altered by the [1991 Act]. As a “short-term” prisoner within Section 33(5) of the [1991 Act], subject to an award of additional days in custody for disciplinary offences, the appellant was entitled to be released on licence as soon as she had served one half of the sentence imposed by the court. Therefore authorities such as Morris and Winter  1 KB 243, based on the principle that there was no entitlement to remission, cease to be relevant...
The order of the court justifies the detention. Nevertheless, the prisoner is entitled to be released immediately the sentence has been completed.”
The House of Lords ( 3 WLR 843) later rejected the appeal and confirmed the finding of false imprisonment and the award of damages.
2. Mandatory Drugs’ Testing (“MDT”)
MDT is permitted by section 16A(1) of the Prison Act 1952 (as amended in 1994). Section 16A(2) allows the request for a sample of any other description specified in the authorisation, not being an intimate sample, instead of or in addition to a urine sample.
Rule 50 of the Prison Rules 1999 provides as follows:
(1) This rule applies where an officer, acting under the powers conferred by section 16A of the Prison Act 1952 (power to test prisoners for drugs), requires a prisoner to provide a sample for the purpose of ascertaining whether he has any controlled drug in his body.
(2) In this rule "sample" means a sample of urine or any other description of sample specified in the authorisation by the governor for the purposes of section 16A of the Prison Act 1952.
(3) When requiring a prisoner to provide a sample, an officer shall, so far as is reasonably practicable, inform the prisoner:
(a) that he is being required to provide a sample in accordance with section 16A of the Prison Act 1952; and
(b) that a refusal to provide a sample may lead to disciplinary proceedings being brought against him.
(4) An officer shall require a prisoner to provide a fresh sample, free from any adulteration.
(5) An officer requiring a sample shall make such arrangements and give the prisoner such instructions for its provision as may be reasonably necessary in order to prevent or detect its adulteration or falsification.
(6) A prisoner who is required to provide a sample may be kept apart from other prisoners for a period not exceeding one hour to enable arrangements to be made for the provision of the sample.
(7) A prisoner who is unable to provide a sample of urine when required to do so may be kept apart from other prisoners until he has provided the required sample, save that a prisoner may not be kept apart under this paragraph for a period of more than 5 hours.
(8) A prisoner required to provide a sample of urine shall be afforded such degree of privacy for the purposes of providing the sample as may be compatible with the need to prevent or detect any adulteration or falsification of the sample; in particular a prisoner shall not be required to provide such a sample in the sight of a person of the opposite sex.”
Rule 51(22) of the Prison Rules 1999 provides that it is an offence against prison discipline to disobey a lawful order.
A. The applicant complained under Article 3, alone and in conjunction with Article 14 of the Convention, that the urine sample test was degrading and discriminatory. In her letter of 20 May 2004 to this Court, she maintained that there had been no adequate enquiry into her complaints of ill-treatment.
B. She also complained under Article 8, alone and in conjunction with Article 14, that the requirement to provide a urine sample was a violation of her right to respect for her private life and discriminatory.
C. She complained under Article 6 §§ 1 and 3 alone and in conjunction with Article 14 that:
(a) she was not given access to a lawyer or other representation;
(b) the Governor did not constitute an independent and impartial tribunal;
(c) she was not informed in a language she understood and in detail of the nature and cause of the accusation against her;
(d) she did not have adequate facilities for the preparation and making of her defence; and
(e) these failures had a discriminatory effect given her disability.
D. She further complained under Article 5 §§ 1 and 5 that:
(a) the additional days’ detention imposed was not based on a law that was sufficiently clear, precise or in a form that she could understand;
(b) the Governor did not constitute a “competent court”; and
(c) her sentence was disproportionate.
E. She contended (Article 13) that she had no effective domestic remedy in respect of the above violations.
A. Article 3 alone and in conjunction with Article 14 of the Convention
Although the applicant invoked Article 3 both alone and in conjunction with Article 14, the Court considers that these complaints (about her difficulties in participating in the mandatory drugs tests given her disability) are more appropriately examined under Article 3 of the Convention alone, which Article provides (in so far as relevant):
"No one shall be subjected to ... inhuman or degrading treatment or punishment."
1. The parties’ submissions
The applicant complained that the manner in which she was required to provide a sample was degrading, that the measures involved had a discriminatory and humiliating effect and that the State failed to fulfil its positive obligation to put in place sufficient legal safeguards preventing such degrading treatment.
She argued that there should have been reasonable adjustments to the sampling procedure for disabled prisoners and/or that there should have been other means of obtaining samples (by blood or breath sample) for disabled prisoners who lacked the necessary motor control to urinate voluntarily on demand and/or for female prisoners who were menstruating.
She submitted that being required to provide a urine sample in the circumstances, when she was unable to do so and embarrassed to do so, because she was menstruating, constituted inhuman and degrading treatment (“the substantive complaint”).
In addition, in her letter of 20 May 2004 to this Court, the applicant complained for the first time that the Government had failed to carry out an adequate enquiry into her complaints about mistreatment (“the procedural complaint”). She argued that this complaint was not out of time because “it was not until receipt of the Government’s observations that the applicant was aware of this aspect of the Government’s failure.”
The Government argued that the applicant’s substantive complaint did not attain the minimum level of severity to fall within the scope of Article 3. They relied on the cases of Galloway v. United Kingdom (no. 34199/96, Commission decision of 9 September 1998 and Peters v. the Netherlands (no. 21132/93, Commission decision of 6 April 1994, Decisions and Reports (DR) 77A, p. 75), in which the Commission had held that mandatory drug testing did not violate Article 3.
They disputed that she had told the prison officers that she was menstruating. In addition, they pointed out that the prison officers in attendance were female, that there is no suggestion of unnecessary observation on the part of those officers, and that no physical force was ever used.
The Government further maintained that the procedural complaint was out of time as she would have been aware of and/or could reasonably have inferred the extent of the enquiry at the time. In any case, they argued that there was no obligation to conduct an investigation because there was no arguable claim of serious ill-treatment.
2. The Court’s assessment
The Court recalls that the Commission held in the above-cited cases of Peters v. Netherlands and Galloway v. the United Kingdom that, of itself, a prison requirement, imposed in the context of drugs’ testing, to produce urine samples in the presence of a supervisor did not attain the minimum level of severity required in order to fall within the scope of Article 3 of the Convention.
As to whether the requirement amounted to such treatment by the manner of its application in the present case, the Court notes that the prison officers in attendance were female. There was no suggestion of unnecessary observation on the part of those officers. No physical force was ever used. The severest remarks the applicant had to make about the attitude of the prison officers was that they were “brusque”, “business-like” and “irritated”. Even if the applicant was menstruating at the time, the Court does not consider that the applicant’s substantive complaint attained such a level of severity as to fall within the scope of Article 3 of the Convention. Accordingly, that complaint under Article 3 must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
As regards her later “procedural complaint”, the Court recalls that the obligation under Article 3 to conduct an investigation only arises when an individual raises an arguable claim that he or she has been seriously ill-treated by agents of the State unlawfully and in breach of Article 3 (see the above-cited Assenov judgment § 102). In this case, for the reasons given above, the applicant did not have any such arguable claim. Hence, even assuming that it is not out of time, the applicant’s procedural complaint under Article 3 must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
B. Article 8 alone and in conjunction with Article 14
While the applicant invoked Article 14 with Article 8, the Court considers that her complaints about her difficulties in participating in the mandatory drugs tests given her disability are more appropriately examined under Article 8 of the Convention alone, which Article provides (in so far as relevant):
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime...”
1. The parties’ submissions
The applicant argued that the taking of a compulsory urine test constituted an interference with her rights under Article 8. She did not dispute that this interference was prescribed by law, or that it pursued a legitimate aim. Nor did she dispute that, in general terms, an MDT scheme can be said to be necessary in a democratic society. However, she submitted that in her particular case the interference was not proportionate.
She cited the fact that she was not given the full 5 hours allowed under Rule 50 (7) of the Prison Rules 1999. She argued that there should have been other means of obtaining samples (by blood or breath sample) for disabled prisoners who lacked the necessary motor control to urinate voluntarily on demand and/or for female prisoners who were menstruating. Lastly, she argued that the authorities should have taken positive steps to enquire as to whether she needed extra help.
The Government did not dispute that the urine test was capable of constituting an interference with the applicant’s private life. However, they submitted that the interference was prescribed by law and necessary in a democratic society in pursuit of the legitimate aim of the prevention of disorder and crime. They relied on the above-cited Galloway decision: like the applicant in Galloway, the applicant had not informed the prison officers that her failure to provide a sample was due to her disability.
2. The Court’s assessment
The Commission found in the above-cited Galloway and Peters cases that even a minor medical intervention, such as a urine test, might constitute an interference with a person’s right to respect for private life. The mandatory drug test requiring the applicant to provide a urine sample constituted such an interference and must be examined under the second paragraph of Article 8 of the Convention.
It was not disputed, and the Court sees no reason to find otherwise, that the interference with the applicant’s right to respect for her private life was “in accordance with the law” in that Section 16A of the Prison Act 1952 clearly provided for samples of urine to be taken for the purposes of drugs testing. Section 16A was complemented by Rule 50 of the Prison Rules 1999. The Court further finds that the interference pursued the legitimate aim of the prevention of disorder and crime, a point also not disputed by the parties.
The Court recalls that in the above-mentioned Peters case, the Commission found that the necessity for an interference with the rights of a convicted prisoner had to be appreciated “with reference to the ordinary and reasonable requirements of imprisonment.” It accepted that the interference in that case was necessary for the prevention of disorder or crime. In the Galloway case, the Commission came to the same conclusion, noting that the availability of drugs in prison was a considerable problem for the authorities and that random drugs’ testing was a valid way of combating it.
In addition, the Court has outlined above, in the context of Article 3, the manner in which the applicant was treated when requested to provide the sample, which it considers reasonable and measured in the circumstances.
Moreover, while the applicant submitted that her case was different because she had cerebral palsy which prevented her being able to provide urine samples on demand, she did not (as the Government pointed out) inform the prison officers that her medical condition would prevent her from being able to provide urine samples at any time on the day in question. It was not therefore possible for the officers to make any allowance for it.
Furthermore, Rule 50 of the Prison Rules 1999 provided for a number of relevant safeguards for prisoners such as maximum time-limits for the separation of prisoners from other prisoners and an express reference to the prisoner’s privacy in Rule 50 (8) of those Rules.
For these reasons, the Court is satisfied that the impugned interference can reasonably be considered as necessary in a democratic society for the prevention of disorder or crime within the meaning of Article 8 § 2 of the Convention. It follows that this complaint must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
C. Article 6 §§ 1 and 3 alone and in conjunction with Article 14
Although the applicant again invoked Article 14 in conjunction with Article 6, the Court considers that her complaints about the prison adjudication proceedings are more appropriately examined under Article 6 of the Convention alone. Article 6 provides (in so far as relevant):
“1. In the determination of ... of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law...
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language he understands and in detail, of the nature and cause of the accusation against him;
(b) have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require...”
1. The parties’ submissions
The applicant argued that, in the light of the judgment in Ezeh and Connors v. the United Kingdom ([GC], nos. 39665/98 and 40086/98, ECHR 2003-X), Article 6 applied to her adjudication proceedings. She contended that Article 6 § 1 had been violated since the Governor was not independent and she had no lawyer or other representative. She also complained that she had not been informed in a language she understood and in detail of the nature of the charge against her (Article 6 § 3(a)); that she had not had adequate time or facilities for the preparation of her defence (Article 6 § 3(b)); and that she had not been given legal assistance (Article 6 § 3 (c)).
The Government accepted that Article 6 applied to the adjudication and, further, that the complaint about the lack of independence and impartiality of the Governor was admissible. However, they submitted that her complaint about legal representation was manifestly ill-founded since she had waived her rights in that regard.
2. The Court’s assessment
The Court considers that these complaints raise complex and serious issues under Article 6 §§ 1 and 3 of the Convention which require determination on the merits. It follows that they cannot be dismissed as manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.
D. Article 5 of the Convention
This Article provides, in so far as relevant, as follows:
“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person following conviction by a competent court...”
1. The applicant’s submissions
She argued that the provision of the law under which she had been imprisoned for the additional days were not sufficiently clear, precise or available. She also maintained that those additional days, awarded as they were by the Governor, had not been imposed by a “competent court”. She further argued that the penalty was disproportionate.
2. The Court’s assessment
In its Ezeh and Connors’ judgment, the Court held (op. cit., §§ 122-3):
“The Court ... considers, as did the Chamber, that the effect of the 1991 Act was to introduce more transparency into what was already inherent in the system of grants of remission. While it abandoned the term “loss of remission” in favour of “awards of additional days”, the 1991 Act embodied in law what had already been the reality in practice. Accordingly, any right to release did not arise until the expiry of any additional days awarded under section 42 of the 1991 Act. The legal basis for detention during those additional days continued therefore to be the original conviction and sentence.
As noted by Lord Chief Justice Woolf in R. v. the Secretary of State for the Home Department, ex parte Carroll, Al-Hasan and Greenfield (see paragraph 52 above), the award of additional days did not increase a prisoner’s sentence as a matter of domestic law. The applicants’ custody during the additional days awarded was thus clearly lawful under domestic law...”
Accordingly, the Court does not accept the applicant’s submission that there was no clear and accessible legal basis for her detention during those three additional days: the detention was “clearly lawful in domestic law”. Nor does the Court accept that the basis of the detention was the decision of the Governor: the basis for detention during the additional days continued to be the original conviction and sentence of the trial court whose competence was not disputed. The Court does not find any evidence to support the applicant’s suggestion that the award of three additional days was disproportionate or gave rise to any issue of arbitrariness under Article 5.
Accordingly, these complaints must be rejected as manifestly ill-founded within the meaning of Article 35 § 3 and inadmissible within the meaning of Article 35 § 4 of the Convention.
E. Article 13 of the Convention
Article 13 provides, in so far as relevant, as follows:
“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority...”
1. The parties’ submissions
The applicant complained that there were no effective domestic remedies available to her in respect of the above complaints. The Government argued that she could have sought judicial review of the lawfulness of the Governor’s decision that she “disobeyed” a lawful order and that, in any event, she did not have any arguable claim of a violation of any Convention Article so that her right to an effective remedy did not arise.
2. The Court’s assessment
For the reasons given above, the Court does not consider that the applicant had an arguable claim of a violation of Articles 3, 8 or 5 of the Convention. Accordingly, her complaint under Article 13 that she had no effective remedy in relation to these complaints must be rejected as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention (Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A no. 131, § 52).
Her complaint under Article 6 concerned prison adjudication proceedings which she alleged were determinative of a “criminal charge” against her. In such a case, Article 6 is the lex specialis in relation to Article 13, the latter of which has less stringent requirements (Yankov v. Bulgaria, no. 39084/97, § 150, ECHR 2003-XII (extracts)). As a result, this complaint must also be rejected as manifestly ill-founded within the meaning of Article 35 § 3 and inadmissible within the meaning of Article 35 § 4 of the Convention.
For these reasons, the Court
Declares admissible, unanimously, the applicant’s complaints under Article 6 §§ 1 and 3 (c) of the Convention;
Declares inadmissible, by a majority, the applicant’s complaint under Article 8;
Declares inadmissible, unanimously, the remainder of the application.
Michael O’Boyle Josep Casadevall
YOUNG v. THE UNITED KINGDOM DECISION
YOUNG v. THE UNITED KINGDOM DECISION