Dowd and Mckenna v. the United Kingdom



FIRST CHAMBER

AS TO THE ADMISSIBILITY OF

Application No. 21596/93

by Elizabeth DOWD and Bridget McKENNA

against the United Kingdom

The European Commission of Human Rights (First Chamber) sitting

in private on 1 September 1993, the following members being present:

MM. A. WEITZEL, President

C.L. ROZAKIS

F. ERMACORA

E. BUSUTTIL

Mrs. J. LIDDY

MM. M.P. PELLONPÄÄ

G.B. REFFI

N. BRATZA

Mrs. M.F. BUQUICCHIO, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 February 1993

by Elizabeth DOWD and Bridget McKENNA against the United Kingdom and

registered on 29 March 1993 under file No. 21596/93;

Having regard to the report provided for in Rule 47 of the Rules

of Procedure of the Commission;

Having deliberated;

Decides as follows:

THE FACTS

The first applicant is an Irish citizen born in 1914 and resident

in Kerry. The second applicant also an Irish citizen was born in 1952

and is resident in Kerry.

The applicants are represented before the Commission by Ms.

Mairin Higgins of the Irish Prisoners' Support Group.

The facts as submitted by the applicants, and as may be deduced

from the documents, may be summarised as follows.

The first applicant is the mother of and the second applicant the

sister of Brendan Dowd who was arrested in 1975 in England and

convicted of republican-associated offences for which he received 3

discretionary life sentences. He is detained as a Category A (High

Risk) prisoner.

By petition dated 19 February 1991, Brendan Dowd, who was born

in Ireland, requested that he serve his prison sentence in Northern

Ireland in order to be near his family and friends who all reside in

Ireland.

This request for transfer was refused by the Secretary of State

on 12 February 1992 on the ground that he fell outside the requisite

criteria for a transfer since he had no links with Northern Ireland and

did not intend to settle there on release.

Further petitions were made on 18 and 19 March 1992. By reply

dated 9 April 1992, the Secretary of State stated that he had fully

considered the appeal against the refusal of transfer but maintained

it considering that no compelling compassionate factors arose.

The first applicant is now 79 years old and suffers, inter alia,

from diabetes, arthritis and a leg ulcer which renders her unable to

walk without difficulty. She has received medical advice that the

journey to England to visit her son would adversely affect her health.

She continued nonetheless to visit until, after a visit in July 1991,

she was forced to accept that it was no longer possible. The first

applicant also received no financial assistance for visits which cost

approximately £500 each.

The second applicant has visited her brother in prison twice

since his arrest. She suffers from a severe form of travel sickness

which leaves her ill for days after an air or sea journey and therefore

renders her unable to visit save in the most compelling circumstances

as for example in 1981 after their father's death.

Problems with regard to visiting are exacerbated by the policy

transferring Republican prisoners regularly and without notice from

prison to prison throughout the British mainland. Brendan Dowd has been

transferred 13 times.

Relevant domestic law and practice

a) Visit entitlement

The Prison Rules 1964 (S.I. 1964/388), made by statutory

instrument under the Prison Act 1952, Sections 47 and 52, contain,

inter alia, the following provisions:

"31.(1) Special attention shall be paid to the maintenance of

such relations between a prisoner and his family as are desirable

in the best interests of both.

(2) A prisoner shall be encouraged and assisted to establish and

maintain such relations with persons and agencies outside prison

as may, in the opinion of the governor, best promote the

interests of his family and his own social rehabilitation."

"34(1) An unconvicted prisoner may ... receive as many visits as

he wishes within such limits and subject to such conditions as

the Secretary of State may direct, either generally or in a

particular case.

(2) A convicted prisoner shall be entitled -

...(b) To receive a visit once in four weeks ..."

From April 1992, the normal visit entitlement was increased to

two visits in every period of four weeks.

Accumulated Visits:

"Subject to the provisions of Orders 5A 12-18 ... convicted

inmates may be allowed to accumulate visits up to a maximum

of 12 and apply ... to be temporarily transferred to any

local prison to take their visits. Category A inmates ...

must petition for temporary transfer ... An inmate must

have accumulated at least 3 visits before he can be

transferred to take accumulated visits."

b) Temporary transfer

The Criminal Justice Act 1961 and Standing Order 5A provide that

a prisoner may apply for temporary transfer to another prison to

receive visits. These may be from a close relative or relatives who

may also be in custody. The material provision is Section 27(1) of the

Criminal Justice Act 1961 which provides that:

"The responsible minister may, on the application of a

person serving a sentence of imprisonment or detention in

any part of the United Kingdom, make an order for his

temporary transfer to another part of the United Kingdom...

and for his removal to an appropriate institution there."

c) Permanent transfer

Section 26 of the Criminal Justice Act 1961 provides inter alia:

"(1) The responsible Minister may, on the application of

a person serving a sentence of imprisonment or detention in

any part of the United Kingdom, make an order for his

transfer to another part of the United Kingdom, there to

serve the remainder of his sentence, and for his removal to

an appropriate institution [there]...

(4) Subject to the following provisions of this section, a

person transferred under this section to any part of the United

Kingdom there to serve his sentence or the remainder of his

sentence shall be treated for purposes of detention, release,

supervision, recall and otherwise as if that sentence (and any

other sentence to which he may be subject) had been an equivalent

sentence passed by a court in the place to which he is

transferred."

Revised criteria governing the transfer of prisoners to another

jurisdiction in the United Kingdom were announced, in reply to a

Parliamentary question on 23 June 1989. These provide that an inmate's

request to be transferred will, normally, be granted provided that all

the following conditions are met:

"(i) the inmate would have at least six months left to

serve in the receiving jurisdiction before his or her date

of release;

(ii) the inmate was ordinarily resident in the receiving

jurisdiction prior to the current sentence or his or her

close family currently reside there and there are

reasonable grounds for believing that it is the inmate's

firm intention to take up residence there on release; and

(iii) both departments concerned are reasonably satisfied

that the inmate will not, if transferred, disrupt or

attempt to disrupt any prison establishment or otherwise

pose an unacceptable risk to security.

It was also stated, however, that even if these criteria

were met, transfer may be refused if it is considered that

the inmate's crimes were so serious as to render him or her

undeserving of any degree of public sympathy or to make it

inappropriate that the inmate should benefit from a

substantial reduction in the time left to serve if that

would be a consequence of transfer.

Similarly, transfers may be refused if there are reasonable

grounds for believing that the inmate's primary intention

in making the application is to secure a reduction in the

time left to serve. On the other hand, an application that

does not meet these conditions may, nevertheless, be

granted where there are strong compassionate or other

compelling grounds for transfer".

d) Categorisation of prisoners

Category A prisoners are defined as those whose escape would be

highly dangerous to the public, or to the police, or to the security

of the state, no matter how unlikely that escape might be. Category

A prisoners are further classified as presenting either a standard,

high, or an exceptional escape risk. Prisoners assessed as Category

A (exceptional risk) are located in Special Security Units within

prisons. In deciding on a prisoner's categorisation, account is taken

of the nature and circumstances of the offence, details of any previous

convictions, where appropriate, the prisoner's mental state, and

reports from police, prison and other sources. The need to continue

to hold a confirmed Category A inmate in the highest security category

is reviewed at least once every 12 months on the basis of up to date

reports.

Category A prisoners are subject to certain restrictions. Their

movements within the prison are escorted and are closely monitored and

recorded. Their visitors have to be approved and their photographs

verified by the police under special arrangements known as the Approved

Visitors Scheme. They are subject to frequent cell changes. They are

not permitted to work in the prison kitchen. In addition, prisoners

in Special Security Units do not have access to prison workshops.

COMPLAINTS

The applicants complain that the refusal of a transfer is in

violation of their right to respect for their private and family life

as guaranteed by Article 8 of the Convention. They submit that

alternative prison accommodation is available in Northern Ireland and

that there is no valid reason for refusing the transfer on security

grounds.

The applicants also complain that they are discriminated against

since they and Brendan Dowd are treated differently on the basis of

political opinion contrary to Article 14 of the Convention. In this

regard, they refer to the automatic categorisation of republican

prisoners as Category A.

The applicants further submit that they have no effective remedy

as required by Article 13 of the Convention.

THE LAW

1 The applicants complain that the refusal to transfer Brendan Dowd

to a prison in Northern Ireland to facilitate visits from his family

is a violation of Article 8 (Art. 8) of the Convention.

Article 8 (Art. 8) of the Convention provides:

"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 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."

The Commission has considered whether the relationship between

the applicants and Brendan Dowd constitutes family life within the

meaning of Article 8 (Art. 8) of the Convention. It notes that the

first applicant is the mother of Brendan Dowd and that the second

applicant is his sister. The Commission recalls that it has held that

in the context of prisoners or other persons who are detained the

concept of "family life" must be given a wider scope than in other

situations:

"Prisoners generally have limited means of contact with the

outside community and of maintaining relationships with family

members. "Family life" for prisoners is inevitably restricted

to visits, correspondence and possibly other forms of

communication such as telephone calls. Emotional dependency

between, for example, parents and adult children, or siblings is

even enhanced in these circumstances. The Commission recalls in

this context that the European Prison Rules emphasise the need

to encourage these links:

'65. Every effort shall be made to ensure that the regimes of

the institutions are designed and managed so as:

(c) to sustain and strengthen those links with relatives and

the outside community that will promote the best interests of

prisoners and their families.' "

(See Nos. 18632/91, Dec. 9.12.92, and 19085/91, Dec. 9.12.92, to

be published in D.R.)

The Commission has also stated its opinion that Article 8

(Art. 8) requires the State to assist prisoners as far as possible to

create and sustain ties with people outside prison in order to

facilitate prisoners' social rehabilitation (e.g. No. 9054/80, Dec.

8.10.82, D.R. 30 p. 113 and No. 15817/89, Dec. 1.10.90, to be

published).

In light of these factors, the Commission finds that the

applicants' complaints must also be held as falling within the scope

of Article 8 para. 1 (Art. 8-1) of the Convention.

The applicants have submitted that the refusal of transfer

constitutes an interference with their right to respect for their

family life. The Commission considers however that the applicants are

arguing in effect not that the State should refrain from acting but

rather that it should take steps to implement a particular policy.

Although the essential object of Article 8 (Art. 8) is to protect the

individual against arbitrary interference by public authorities, there

may in addition be positive obligations inherent in an effective

"respect" for

family life (see e.g. Eur. Court H.R., Marckx judgment of 13 June 1979,

Series A no. 31, p. 15, para. 31). In this context, the notion of

"respect" is not clear-cut and its requirements will vary considerably

from case to case according to the practices followed and the

situations obtaining in Contracting States. In determining whether or

not such an obligation exists, regard must be had to the fair balance

which has to be struck between the general interest and the interests

of the individual (see e.g. Eur. Court H.R. Abdulaziz, Cabales and

Balkandali judgment of 28 May 1985, Series A no. 94, p. 33-34, para.

67 and the B. v France judgment of 25 March 1992, Series A no. 232-C

p. 47, para 44).

The Commission recalls that in the present case Brendan Dowd who

is from Ireland, is detained in a prison in England and that he has

requested a transfer to Northern Ireland to facilitate visits from his

family, including the first and second applicants. The Commission

notes that Brendan Dowd is serving a long term of imprisonment and that

the considerable distance involved imposes difficulties, which cannot

be said to be negligible, in utilising visit entitlements.

The Commission notes however that Brendan Dowd is lawfully

detained for serious offences committed against the background of a

terrorist campaign. He is detained as a Category A prisoner and there

is no indication that in his case this classification is arbitrary.

Any transfer therefore would arguably be highly dangerous, increasing

the risk of escape (see also Nos. 18632/91 and 19085/91, Dec. 9.12.92).

The Commission also refers to its constant case-law according to

which a prisoner has no right as such under the Convention to choose

the place of his confinement and that a separation of a detained person

from his family and the hardship resulting from it are the inevitable

consequences of detention (see e.g. No. 5229/71, Dec. 5.10.72,

Collection 42 p. 14, and No. 5712/72, Dec. 18.7.74, Collection 46 p.

112). The Commission considers that only in exceptional circumstances

will the detention of a prisoner a long way from his home or family

infringe the requirements of Article 8 (Art. 8) of the Convention (see

e.g. No. 5712/72, Dec. 18.7.74, loc. cit. and No. 7819/77, Dec. 6.5.78,

published in part, D.R. 14 p. 186).

The applicants submit that there are exceptional circumstances

in that secure alternative accommodation exists in Northern Ireland and

that there is no convincing reason which outweighs the humane

considerations in favour of transfer. The Commission finds however

that these arguments are insufficient in themselves to constitute

exceptional circumstances. It notes that Brendan Dowd is detained in

mainland United Kingdom since he was arrested and tried there in

respect of offences committed as part of an alleged terrorist campaign

there. As a prisoner, he is subject to the normal regime applicable

to his category as regards correspondence and visits.

Having regard to these circumstances, the Commission finds that

the failure on the part of the United Kingdom Government to provide

transfer arrangements to Northern Ireland discloses no lack of respect

for the applicants' family life within the meaning of Article 8

(Art. 8) of the Convention.

It follows that the complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

2 The applicants also complain that they are discriminated against

contrary to Article 14 (Art. 14) of the Convention on the ground of

political opinion since Irish Republican prisoners in the United

Kingdom are treated less favourably than other prisoners as regards

transfer.

Article 14 (Art. 14) of the Convention provides:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

The Commission notes that the applicants do not contend that

there is a blanket prohibition on transfer of Irish Republican

prisoners to Northern Ireland. Insofar as the refusal of transfer in

this case can be said to be motivated by Brendan Dowd's status as an

Irish Republican prisoner, the Commission considers that different

considerations concerning security apply to different prisoners. It

recalls that he is a Category A prisoner convicted in relation to

terrorist offences. In these circumstances, his position cannot be

considered as analogous to that of other prisoners for the purposes of

Article 14 (Art. 14) of the Convention.

It follows that this complaint is manifestly ill-founded within

the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3 The applicants also complain under Article 13 (Art. 13) of the

Convention that they have no effective remedy before a national

authority in respect of their complaints.

Article 13 (Art. 13), however, does not require a remedy under

domestic law in respect of any alleged violation of the Convention.

It only applies if the individual can be said to have an "arguable

claim" of a violation of the Convention (Eur. Court H.R., Boyle and

Rice judgment of 27 April 1988, Series A no. 131, p. 23, para. 52).

The Commission recalls that it has found the applicants'

complaint under Article 8 (Art. 8) of the Convention manifestly ill-

founded. In these circumstances, the Commission also finds that the

applicants cannot be said to have an "arguable claim" of a violation

of the Convention.

It follows that this part of the application must also be

rejected as manifestly ill-founded within the meaning of Article 27

para. 2 (Art. 27-2) of the Convention.

For these reasons, the Commission by a majority

DECLARES THE APPLICATION INADMISSIBLE.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (A. WEITZEL)