Campbell and Fell v United Kingdom

• Date: 28 June 1984
• Court: European Court of Human Rights

Campbell and Fell Case

(Chamber composed of: Wiarda, President; Cremona, Thór Vilhjálmsson, Gölcüklü, Sir Vincent Evans, Macdonald and Russo, Judges)

European Court of Human Rights.

Human rights — Fair trial — Disciplinary proceedings against convicted prisoner — Penalty of loss of remission — Whether proceedings amounting to the determination of a criminal charge — Proceedings before prison board of visitors — Whether board an impartial and independent tribunal — Whether proceedings required to be held in public — Whether sentence required to be pronounced in public — Right to legal representation before board — Access to lawyer before hearings — Access to courts — Prisoners wishing to take civil proceedings against prison authorities — Requirement that complaint first be ventilated through internal prison procedures — Restrictions on access to lawyers — Respect for correspondence — Interference with prisoners' correspondence — Right to a remedy under domestic law — European Convention on Human Rights, 1950, Articles 6, 8 and 13

International tribunals — European Court of Human Rights — Procedure — Plea that applicant had failed to exhaust local remedies — Plea not raised before European Commission of Human Rights — Whether respondent State estopped from raising plea before Court — Existence of certain remedies only becoming apparent as a result of decision of English court while proceedings before European Court of Human Rights pending — Whether Court bound by Commission's decision regarding non-exhaustion of local remedies — Nature of proceedings before Court — Whether Court entitled to take account of changes in law of respondent State effected after events which are the substance of the complaint had occurred

Claims — Exhaustion of local remedies — Availability of remedy — Existence of remedy required to be sufficiently certain before it can be regarded as available — Doubts concerning effectiveness of remedy — European Convention on Human Rights, 1950, Article 26

Damages — Human rights violations — Pecuniary and non-pecuniary loss — Whether findings that violations had occurred constitute sufficient satisfaction — European Convention on Human Rights, 1950, Article 50

Summary: The facts:—While the applicants were serving prison sentences in the United Kingdom, they participated in a demonstration in the prison in which they were confined. In consequence, they were charged with various disciplinary offences under the Prison Rules. They were found guilty by the Prison Board of Visitors and were subjected to penalties including the loss of 570 days' remission and of certain privileges. Both applicants were refused access to legal advice and representation in relation to the proceedings before the Board of Visitors. These proceedings were held in private and the decision made was also pronounced privately. The applicants subsequently wished to enquire into the possibility of taking civil proceedings but were denied access to legal advice until the matters of which they complained were examined in an internal procedure. This delay was in accordance with a provision of the Prison Rules (‘the prior ventilation rule’) which was then in force but which had subsequently been changed. During the intervening period some of Mr Campbell's correspondence with his legal advisers was intercepted and read by the prison authorities. When Father Fell eventually obtained permission to see his legal adviser, after a delay of almost five months from the time of his request, such permission was qualified by a requirement that any consultation with his legal adviser was to take place within the sight of a prison officer. During his imprisonment Father Fell was prevented by the authorities from corresponding with friends of his.

Proceedings before the Commission: Mr Campbell and Father Fell applied to the Commission in 1977 alleging, inter alia, violations of Article 61 in relation to the disciplinary proceedings before the Board of Visitors and in relation to the denial of speedy access to legal advice on civil proceedings; Article 82 in relation to restrictions on Father Fell's correspondence and lack of opportunity to consult with legal advisers alone; and Article 133 in relation to the absence of effective remedies under domestic law for such alleged breaches. The Commission declared Mr Campbell's application admissible and expressed the opinion that Article 6 applied to the disciplinary proceedings and that there had been breaches of Article 6(1), 6(3)(b) and (c) and Article 8. The part of Father Fell's application which concerned the disciplinary proceedings was rejected as inadmissible because of a failure to exhaust domestic remedies. His other contentions were held admissible and the Commission expressed the opinion that there had been a breach of Articles 6(1), 8 and 13. The case was referred to the Court by the Commission.

Held:—(1)(a) (unanimously) The respondent's plea that Mr Campbell had failed to exhaust domestic remedies was rejected. The normal practice of the Court was to take cognizance of preliminary objections of a respondent State only in so far as they had already been raised before the Commission. Failure to raise the plea of non-exhaustion of domestic remedies at that stage generally estopped the respondent from relying upon that plea at a later date. However, the Court would take into account whether, in view of the character of such preliminary objections and the prevailing circumstances, the failure to raise them at the initial stage had been justified. In the present case, the failure to raise the plea at an earlier stage was reasonable since the existence of certain remedies had been recognized only following a recent decision of the English courts. In relation to Mr Campbell it would be unjust, however, to declare his application inadmissible for failure to exhaust domestic remedies, because the availability and effectiveness of those remedies were questionable (pp. 321–3).

(b) (unanimously) The Court was bound by the decision of the Commission that that part of Father Fell's application which concerned the disciplinary proceedings was inadmissible because Father Fell had failed to exhaust domestic remedies (pp. 323–4).

(2) There had been a violation of Article 6(1) and 6(3)(b) and (c) in relation to Mr Campbell.

(a) (by four votes to three) Although Article 6 was expressly applicable only to the determination of civil and criminal charges, proceedings of a

disciplinary nature were within the purview of that provision if they were sufficiently analogous to the types of proceedings envisaged therein. The grave nature of the charges and the substantial loss of remission and other rights were consequences of sufficient gravity to bring the proceedings within the criminal category (pp. 324–8).

(b) (unanimously) Having examined the process of selection of members of the Board of Visitors and the likelihood of their removal by the Home Secretary, the Board's independence could not be impugned. Furthermore, the impartiality of members of a tribunal was to be presumed in the absence of evidence to the contrary. No such evidence was available here (pp. 330–2).

(c) (by four votes to three) There had been no violation of the guarantee that proceedings should be held in public. The nature of internal prison discipline, with implications for public order and security in the event of requiring public hearings, absolved the authorities from the requirement of publicity (p. 333).

(d) (by five votes to two) The absence of any form of public pronouncement of the decision of the Board amounted to a denial of the provision for public pronouncement of judgments (p. 334).

(e) (by five votes to two) The fact that Mr Campbell had been denied legal representation at the Board's hearing was contrary to Article 6(3)(c). The fact that he had been unable to consult a lawyer beforehand also deprived him of ‘adequate facilities’ to prepare his defence, contrary to Article 6(3)(b). No account could be taken of subsequent modifications in domestic law introduced to ensure that defendants appearing before a board of visitors were represented (p. 336).

(3) (unanimously) The delay in allowing both applicants access to legal advice in relation to civil proceedings was a violation of their right to access to a court under Article 6(1) (pp. 338–9).

(4) (unanimously) The interception of Mr Campbell's correspondence with his legal advisers during the period of delay in granting access was a violation of Article 8 of the Convention (p. 340).

(5) (unanimously) The failure to permit Father Fell to consult his legal adviser in the absence of a prison officer amounted to a breach of Article 6(1). There was no need to examine this claim under Article 8 (pp. 340–1).

(6) (unanimously) Father Fell's rights under Article 8 were violated by the interference with his right to correspond with his friends (p. 342).

(7) (unanimously) Father Fell's claim of a violation of Article 13 read in conjunction with Article 6 was not examined, because the requirement of legal access under Article 6 was narrower than that under Article 13 and a violation of the former Article had already been established. There was however a breach of Article 13 read in conjunction with Article 8; in so far as impeded access to legal advice and an interference with correspondence constituted breaches under Article 8 they were violations for which no effective remedy existed at domestic level (pp. 342–4).

(8) (unanimously) Both applicants' claims for monetary compensation under Article 50 were rejected. The applicants had failed to prove a sufficient causal link between the proven violations and the alleged damage. Consequently, the findings as to breaches of the Convention were sufficient and just satisfaction. Furthermore, the costs and expenses were to be recoverable in part only, having regard to the extent to which the applications were unsuccessful (pp. 345–8).

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