Group D - Case Brief on RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE

JUR 5120 – SR / 24 November 2006 Page 1

Case: Silver and Others v. United Kingdom (25 March 1983) ECHR
Parties: Applicants: Reuben Silver, Clifford Noe, Judith Colne, James Tuttle, Gary Cooper,
Michael McMahon, Desmond Carne
Government: The United Kingdom of Great Britain and Northern Ireland (“U.K.”)
Facts:  The Applicants were all prison inmates in the U.K. during different times (early to mid
1970s), and each had correspondence that was controlled (reviewed, detained and in
some cases, stopped) by prison authorities on different grounds, alleging violations of
the Prison Rules concerning correspondence. Prisoners received, by means of cell
cards, information about certain aspects of the control of correspondence.
 In total, 62 letters written by the Applicants were stopped. The U.K. informed the
Court that the total number of letters sent and received by prisoners in England and
Wales in a year was of the order of 10 millon.
 Control and responsibility over inmates in England and Wales is vested by the Prison
Act of 1952 in the Home Secretary. The rules made by the Home Secretary that were
in force during the time of imprisonment of the Applicants were the Prison Rules 1964
(“the Rules”). In addition, the Home Secretary also issues to prison governors
management guides or directives in the form of Standing Orders and Circular
Instructions. However, with effect from 1 December 1981, the directives on prisoners’
correspondence were substantially revised.
 Mr. Silver also petitioned the Home Secretary (one of the four channels of complaint
available to prisoners) seeking permission to obtain legal advice but was refused. He
alleges that this violated his right of access to the courts.
Procedural  The case originated in 7 applications lodged with the European Commission of Human
Posture: Rights on various dates between 1972 and 1975. The Commission ordered the joinder
of the applications on 11 March 1977.
 The Commission then referred the case to the European Court of Human Rights on 18
March 1981.
Issues:  Was the withholding of the prisoners’ letters a violation of their right to correspondence
as part of their privacy and family life?
 Does the fact that the Rules regarding prisoner correspondence subsequently change
impact the Court’s verdict?
 Can the Court address the fact that in the area of prisoner correspondence, practices in
breach of the Covenant continue to exist?
 Is there also a violation of the prisoners’ freedom of expression?
Rights: Directly: ECHR Article 8 (Respect for Private and Family Life), Article 6(1) (Fair Trial),
Group D - Case Brief on RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE
JUR 5120 – SR / 24 November 2006 Page 2

and Article 13 (Effective Remedy)

Indirectly: ECHR Article 10 (Freedom of Expression); Article 41 (Just Satisfaction)
Holding &  (85 to 87) Given the Rules in force at the time, and the information given to prisoners
Reasoning: regarding rules for correspondence, the Court feels that interferences were in
conformity with English law, but that while the Prison Act and the Rules were
“adequately accessible”, the Orders and Instructions were not, though in some cases,
the consequences were “foreseeable” even though every eventuality was not explicitly
detailed. While the stopping of a small number of the letters was both “in accordance
with the law” and justifiable as “necessary in a democratic society”, the stopping of 57
of the remaining letters was not “necessary in a democratic society” (105)
 (79) The Court feels that it is not its role to rule on legislation in abstracto, and that
given that the new practices were not yet in place at the time of the events giving rise to
the case, the compatibility of the new practices with the Convention will not be
examined.
 (77) The Court does not have to examine whether areas of incompatibility with the
Convention continue to exist, since it is considering only the present case and its
specific merits.
Rule(s) of  Given that there is no disagreement by the Parties that there were interferences with
Law: correspondence, the Court has to examine whether the interferences were “in
accordance with the law”, whether they had legitimate aims, and whether these aims
were “necessary in a democratic society” in accordance with Article 8(2).
Decision: Unanimously holds that interference with certain letters resulted in violations of Article
8; that the refusal of a petition by one prisoner to the Home Secretary resulted in a
violation of Article 6(1); that it is not necessary to examine the case under Article 10,
since Article 8 is more specific as it relates to correspondence; and that there was a
violation of Article 13 every time there was a violation of Article 8, and also when there
was a violation of Article 6(1).
Validity: Legally binding upon the U.K.
Other: The Court holds that the question of the application of Article 41 (formerly Article 50)
regarding Just Satisfaction is not ready for decision and accordingly reserves the whole
of the said question; and delegates to the President of the Chamber power to fix the
further procedure.