27 November 2008

FOURTH SECTION
Application no. 36882/05
by Dennis Andrew NILSEN
against the United Kingdom
lodged on 5 October 2005

STATEMENT OF FACTS
THE FACTS
The applicant, Mr Dennis Andrew Nilsen, is a British national who was born in 1945. He is currently detained at Her Majesty’s Prison Full Sutton. He is represented before the Court by Mr N. Wells, a lawyer practising in Manchester with Tuckers Solicitors.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant was sentenced in 1983 to six life sentences for six murders. He is subject to a whole life tariff.
In 1985 a journalist published a book about the murders entitled “Killing for Company”. The book contained graphic descriptions of the murders provided to the author by the applicant. The applicant began to write his autobiography in 1992. By 1996 his work amounted to 400 closely typed pages. These he handed to the solicitor who was then acting for him with a view to publication. His solicitor took the manuscript with him when he left the prison. A number of copies were made of it which are still outside the confines of the prison.
In 2001, a different solicitor acting for the applicant wished to return the manuscript to him and the applicant wished to receive it in order to do further work on it in order to prepare it for publication.
The Secretary of State decided that the manuscript should be withheld from the applicant. The applicant’s solicitors were informed of this decision in a letter dated 23 October 2002 from the Governor of the prison where the applicant was detained. The letter stated:
“The Prison Service has now read the manuscript ... It has decided not to allow the manuscript to be passed to Mr Nilsen and because of this I am returning the manuscript to you.
The Prison Service considers that the manuscript is material intended for publication, that it is about Mr Nilsen’s offences and that it does not consist of serious representations about a conviction or sentence and does not form part of serious comment about crime, the processes of justice or the penal system. Mr Nilsen is not permitted to send such material out of prison: Standing Order 5 section B paragraph 34(9)(c); Standing Order 4, paragraph 40 [see relevant domestic law below]. Because the manuscript has been out of prison for a number of years, it is likely that copies have been made by third parties. However, to date Mr Nilsen has not caused the manuscript to be published and has indicated that he wishes to do further work on it. The Secretary of State has no reason to believe that any such further work would alter the character of the manuscript.
The only way in which the Secretary of State can in practice realistically seek to prevent Mr Nilsen from publishing such material is by withholding the manuscript from Mr Nilsen pursuant to rules 34 and/or 70 of the Prison Rules ...and/or paragraph 40 of Standing Order 5B [see relevant domestic law below].
The reasons why the Secretary of State has concluded that publication of the manuscript, or of a revised version of it, would be contrary to paragraph 34(9)(c) ...are as follows.
The manuscript is about Mr Nilsen. But it is also about his offences: the offences themselves, how Mr Nilsen came to commit them, and how he is now being punished for them. The offences are an integral part of the manuscript.
The manuscript does not consist of serious representations about conviction or sentence or form part of serious comment about crime, the processes of justice or the penal system. Rather it is a platform for Mr Nilsen to seek to justify his conduct and denigrate people he dislikes. The Secretary of State believes that his decision is in accordance with Article 10 of the European Convention on Human Rights. He accepts that withholding the manuscript is an interference with Mr Nilsen’s freedom of expression. But he considers that this is justified in the circumstances.
The withholding of the manuscript is prescribed by law, for the reasons set out above.
The withholding of the manuscript pursues a legitimate aim, namely the protection of morals, the protection of the reputation or the rights of others and the protection of information received in confidence. The manuscript contains several lurid and pornographic passages. It contains highly personal details of a number of Mr Nilsen’s offences. It seeks to portray Mr Nilsen as a morally and intellectually superior being who justifiably holds others in contempt. Its publication would be likely to cause great distress to Mr Nilsen’s surviving victims and to the families of all his victims, and would be likely to cause a justifiable sense of outrage among the general public.
The withholding of the manuscript is a proportionate response in the circumstances. There is a pressing social need to avoid the harm described above. No lesser measure will avoid that harm. Mr Nilsen is free to send out writings that comply with the terms of the Prison Rules and the Standing Orders.
In reaching his decision, the Secretary of State has borne in mind that Mr Nilsen is serving a whole life tariff. The Secretary of State’s present view is that for as long as Mr Nilsen remains in prison, preventing the publication of the material in the manuscript is justified, no matter how long that may be.”
The applicant challenged this decision by way of judicial review. He argued first that paragraph 34 of Standing Order 5 (“paragraph 34”) was unlawful because it fell outside the powers conferred on the Secretary of State by the Prison Act as that Act only concerned the control of prisoners within prison. It was not concerned with what happened outside prison, save insofar as this affected what happened within prison. Secondly, he argued that the same paragraph was contrary to his Article 10 rights. The High Court refused the application, holding that the restriction was lawful and did not breach Article 10. There was also no breach of Article 1 of Protocol No. 1.
The Court of Appeal considered the case under Article 10 only and dismissed the applicant’s appeal on 17 November 2004. On the lawfulness of paragraph 34 it found that the Prison Act was not restricted to what took place within a prison. Section 47 of the Prison Act (see relevant domestic law and practice below) spoke not only of the regulation and management of prisons but control of prisoners. The powers conferred on the Secretary of State by the Prison Act included the power to have regard, when regulating what a prisoner could and could not do, to the “natural incidents of penal imprisonment”. On this point, it concluded:
“29. We do not believe that any penal system could readily contemplate a regime in which a rapist or a murderer would be permitted to publish an article glorifying in the pleasure that his crime had caused him. English jurisprudence suggests that to restrict prisoners from publishing such matter is a legitimate exercise of the power conferred on the Secretary of State by the Prison Act. We have concluded that, from the viewpoint of that jurisprudence, the wording of Paragraph 34 (9)(c) draws the line appropriately between what is and what is not acceptable conduct on behalf of a prisoner and falls within the powers conferred on the Secretary of State by the Prison Act.”
It further found that the relevant jurisprudence of this Court did not establish that it was disproportionate for imprisonment to carry restrictions on freedom of expression. It was not relevant that the book “Killing for Company” had been published nineteen years previously since this would not diminish the public outrage which would be felt if the applicant’s own publication were allowed. There was also no evidence that the applicant intended to transform the manuscript into a work which made serious representations on the subjects contemplated by the standing order. The Court of Appeal also refused leave to appeal to the House of Lords.
The applicant applied for permission to appeal to the House of Lords. This was refused by the House of Lords on 18 April 2005.
B.  Relevant domestic law
1. The Prison Act 1952
Sections 1 and 3 of the Prison Act 1952 vest in the Secretary of State all existing powers exercisable in relation to prisoners, whether under statute, common law or charter and grant the Secretary of State power to do all acts necessary for the maintenance of prisons and prisoners. Section 47(1) of the Act provides:
“Rules for the management of prisons, remand centres, detention centres and Borstal institutions
(1) The Secretary of State may make rules for the regulation and management of prisons, remand centres, young offender institutions or secure training centres respectively, and for the classification, treatment, employment, discipline and control of persons required to be detained therein.”
2. The Prison Rules 1999
The Prison Rules 1999, as amended by the Prison (Amendment) (No. 2) Rules 2000, where relevant provide as follows:
“Privileges
8. (1) There shall be established at every prison systems of privileges approved by the Secretary of State and appropriate to the classes of prisoners there, which shall include arrangements under which money earned by prisoners in prison may be spent by them within the prison.
...
34. (1) Without prejudice to sections 6 and 19 of the Prison Act 1952 and except as provided by these Rules, a prisoner shall not be permitted to communicate with any person outside the prison, or such person with him, except with the leave of the Secretary of State or as a privilege under rule 8.
(2) Notwithstanding paragraph (1) above, and except as otherwise provided in these Rules, the Secretary of State may impose any restriction or condition either generally or in a particular case, upon the communications to be permitted between a prisoner and other persons if he considers that the restriction or condition to be imposed-
(a) does not interfere with the convention rights of any person; or
(b)
(i) is necessary on grounds specified in paragraph (3) below;
(ii) reliance on the grounds is compatible with the convention right to be interfered with; and;
(iii) the restriction or condition is proportionate to what is sought to be achieved.
(3) The grounds referred to in paragraph (2) above are-
(a) the interests of national security;
(b) the prevention, detection, investigation or prosecution of crime;
(c) the interests of public safety;
(d) securing or maintaining prison security or good order and discipline in prison;
(e) the protection of health or morals;
(f) the protection of the reputation of others;
(g) maintaining the authority and impartiality of the judiciary; or
(h) the protection of the rights and freedoms of any persons.”

In addition to the above rules, Rule 35 confers on prisoners express rights in relation to sending and receiving letters. Rule 43 places restrictions on the right of a prisoner to enjoy the use of his property while in prison. Rule 44 deals with money and articles received by post and in particular, it provides:
“Any other article to which this rule applies shall, at the discretion of the governor, be -
(a) delivered to the prisoner or placed with his property at the prison;
(b) returned to the sender; ...”
Rule 70 provides:
“No person shall, without authority, convey into or throw into or deposit in a prison, or convey or throw out of a prison, or convey to a prisoner, or deposit in any place with intent that it shall come into the possession of a prisoner, any money, clothing, food, drink, tobacco, letter, paper, book, tool, controlled drug, firearm, explosive, weapon or other article whatever. Anything so conveyed, thrown or deposited may be confiscated by the governor.”
3. Standing Order 5
Standing Orders are published, not under any express statutory authority, but by way of administrative direction or guidance under powers conferred on the Secretary of State. Paragraph 34 of section B of the above Standing Order provides is headed “restrictions on general correspondence” and where relevant provides:
“General correspondence ... may not contain the following:
...
(9) Material which is intended for publication or for use by radio or television (or which, if sent, would be likely to be published or broadcast) if it ...
(c) is about the inmate’s crime or past offences or those of others, except where it consists of serious representations about conviction or sentence or forms part of serious comment about crime, the processes of justice or the penal system...”
Paragraph 40 of the same Standing Order states that letters containing prohibited material are liable to be stopped and makes provision for the disposal of such material.
COMPLAINTS
The applicant complains under Article 10 of the Convention that preventing the return of his manuscript to him was an interference with his rights under that Article. He also complains that it was not prescribed by law, pursued no legitimate aim and, even if both those requirements were met, was disproportionate. The applicant complains that circumstances of the case also amount to an interference with his rights as guaranteed by Article 8 of the Convention. That interference was also not prescribed by law, pursued no legitimate aim and was, in any event, disproportionate.

QUESTIONS TO THE PARTIES

1.  Has there been a violation of the applicant’s right to freedom of expression contrary to Article 10 of the Convention? What weight, if any, is to be attached to the fact that a book had already been published on the murders in question with which the applicant himself collaborated (andGuardian v. the United Kingdom, 26 November 1991, § 68, Series A no. 216)?

2.  Does a separate issue arise under Article 8 of the Convention? If so, has there been a violation of the applicant’s rights under that Article?