Michael, James and Carmel McKenny V. UK

AS TO THE ADMISSIBILITY OF

Application No. 20485/92
by Michael, James and Carmel McKENNY
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 3 July 1992 by
Michael, James and Carmel McKenny against the United Kingdom and
registered on 12 August 1992 under file No. 20485/92;

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 1927, and
currently serving a prison sentence in Full Sutton Prison, England.

The second applicant is the brother of the first applicant.  He
is an Irish citizen, born in 1931, and resides in Dublin, Ireland.

The third applicant is the sister-in-law of the first applicant.
She is an Irish citizen, born in 1936, and resides in Dublin, Ireland.

The applicants are represented by Peter Madden, a solicitor
practising in Belfast.

The facts of the present case, as submitted by the applicants,
may be summarised as follows:

The first applicant was arrested on 6 May 1986.  He was charged
with conspiracy to cause explosions.  He was sentenced to 17
years’imprisonment.  The first applicant has been classified as a
Category A prisoner.

The first applicant has requested that he serve his sentence of
imprisonment in a prison in Northern Ireland in order to be near to his
family and friends, who all, with the exception of one nephew, reside
in Ireland.  His request for transfer has been refused by the British
Home Office on 10 September 1990 and 12 February 1992.  The refusals
were based on the fact that the first applicant has no relatives in
Northern Ireland, and on the possibility that if transferred he would
stand to benefit from the more generous remission rate that applies in
Northern Ireland.  He is detained as a category A prisoner.

The second applicant is retired.  The third applicant is a
housewife.  An estimated cost of a visit to an English prison is
between £250 and £300.  As no financial assistance is available from
the Irish Government for prison visits to England, all travel,
accommodation and subsistence expenses must be paid for personally.
This poses a heavy financial strain on the second and third applicants.

The third applicant visits the first applicant approximately
twice a year, although she suffers from travel sickness, high blood
pressure, and a high cholesterol level.  She has been advised to avoid
stress.

It is alleged that the general position for all visitors
travelling to England from Ireland to visit prisoners is dominated by
the fear of arrest, detention, strip-searching, general harassment and
hostility demonstrated by the security forces at airports and ports.
The family members of some prisoners over the years have been detained
under the Prevention of Terrorism Act without reasonable suspicion and
held for varying periods of time, being released without charge and
sometimes missing travel connections for prison visits.  Such fears are
very real as, for example, the third applicant has been already
detained and questioned on a few occasions when travelling to England.
Other visitors have been excluded from visiting England at all under
the Prevention of Terrorism Act.  Exclusion from England is an
executive decision which is not open to judicial review.

The first applicant submits that the conditions of detention for
Irish Republican prisoners in England are considerably worse than those
for their counterparts in Northern Ireland.  Unlike the position in
Northern Ireland, the applicant and other Irish Republican prisoners
are completely segregated from each other unless one or two prisoners
are in the same establishment due to the fact that there are no other
prisons available.  Irish Republican prisoners are generally held in
solitary confinement, in isolation, and dispersed throughout as many
available prison establishments as are in existence throughout England.
There is a policy of regular transfer from prison to prison, resulting
in the prisoners being unable to settle into familiar surroundings,
which has an adverse effect on health for prisoners serving lengthy
prison sentences.  During his imprisonment so far the first applicant
has been transferred several times to different prisons in England.

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 (Standing Order):

“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.  “Close relative” is defined so as to include
“brother” and “sister”.  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.”

In a written decision relating to a request by a prisoner for
permanent transfer from the United Kingdom to Northern Ireland the
Secretary of State indicated the criteria he would apply in exercising
his discretion to transfer prisoners.  That decision reads, in part,
as follows:

“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) Differences in release policies and procedures

The law and practice relating to the proportion of a sentence
which must be served before release differs between the three United
Kingdom jurisdictions.  Prisoners serving determinate sentences in
England and Wales are entitled to one-third remission of their
sentence.  Prisoners in Northern Ireland are generally entitled to
remission of one half of their sentence.  There are also differences
in the administration of life sentences so that those serving sentences
for comparable offences are generally released earlier in Northern
Ireland than they would be if they were sentenced in England and Wales.

e) 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.  The denial
of a transfer is deliberately and unnecessarily punitive.

The applicants also complain that they are discriminated against
on the grounds of political or other opinion, national origin and
association with a national minority, contrary to Article 14 of the
Convention.  In particular, they submit that Irish Republican prisoners
are discriminated against as a class in that they are treated less
favourably than other prisoners in relation to questions of transfer.

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 the first
applicant permanently 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 as follows:

“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 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 constitutes family life within the meaning of Article 8
(Art. 8) of the Convention.  It notes that the second applicant is the
brother, and that the third applicant is the sister-in-law of the first
applicant.  It 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.'”

(No. 19085/91, Dec. 9.12.92, to be published in D.R.).

The Commission has also stated the 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 D.R.).

In light of these factors, the Commission finds that the
applicants’ complaints must 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 a 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 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. 14 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 para. 67,
and the B. v. France judgment of 25 March 1992, to be published in
Series A no. 232-C, para. 44).

The Commission recalls that in the present case the first
applicant is detained in a prison in England and that he has requested
a transfer to facilitate visits from his family, including the second
and third applicants.  The Commission notes that the first applicant
is serving a long term of imprisonment and that the considerable
distance involved imposes difficulties in utilising visit entitlements
which cannot be said to be negligible.

The Commission notes, however, that the first applicant is
lawfully detained for serious offences committed against the background
of a terrorist campaign.  The applicant is detained as a Category A
prisoner.  Any transfer would be arguably highly dangerous, increasing
greatly the risk of escape.

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 Commission finds that no exceptional circumstances arise in
this case.  It notes that the first applicant is detained in England
since he was tried there in respect of offences committed as part of
an alleged terrorist campaign.  As a prisoner, the applicant is subject
to the normal regime applicable to his category as regards
correspondence and visits.  The second and third applicants are
entitled to visit the first applicant.  The second applicant visits him
twice a year.

Having regard to the above circumstances, the Commission finds
that the decision of the United Kingdom Government to refuse permanent
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 in conjunction with Article 8 (Art. 14+8) of the
Convention, 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 as follows:

“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.  In the present case, the Commission
notes that the first applicant was refused transfer.  Insofar as this
refusal can be said to be motivated by the first applicant’s status as
an Irish Republican prisoner, the Commission considers that different
considerations concerning security apply to different prisoners.  It
recalls that the first applicant is a Category A (high security or
exceptional risk) 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 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 rejected the applicants’
complaints under Articles 8 and 14 (Art. 8, 14) of the Convention, no
lack of respect for family life and no unlawful discrimination having
been disclosed. In these circumstances, the Commission also finds that
the applicants cannot be said to have an “arguable claim” of a
violation of the Convention necessitating an Article 13 (Art. 13)
remedy.

It follows that this part of the application must also be
rejected as being 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)