17
SILVER AND OTHERS v. THE UNITED KINGDOM JUGDMENT
With effect from 1 December 1981, the provisions of Order 5B 12(2)
have been relaxed by new Orders 5C9 and 5C10. A further petition may
now be submitted if a month has elapsed since the submission of the
previous petition. Moreover, even though an earlier petition be outstanding,
a prisoner may petition forthwith on certain specified matters, including
interference with his correspondence.
2. The Parliamentary Commissioner for Administration
54. Complaints concerning the control of correspondence may also be
raised with the Parliamentary Commissioner for Administration (the
Ombudsman). Under section 5 of the Parliamentary Commissioner Act
1967, this officer, who is appointed by the Crown, may, if so requested by a
member of the House of Commons, investigate any action taken in the
exercise of administrative functions by specified authorities (including the
Home Office) where a complaint has been made by a member of the public
who claims to have sustained injustice in consequence of
"maladministration". Such an investigation may generally not be conducted
where court proceedings are available. Section 12 of the Act expressly
provides that the Ombudsman may not question the merits of a discretionary
decision taken without maladministration; accordingly, his jurisdiction does
not extend to interferences with a prisoner’s correspondence effected
pursuant to a correct exercise of a discretion conferred by the Rules or the
Home Secretary’s directives. Moreover, he cannot grant direct relief for
maladministration since he is limited to reporting the results of his
investigation to the Member of Parliament who requested it, the authority
concerned and, in certain circumstances, each House of Parliament (section
10).
Until 23 August 1979, prisoners could communicate with the
Ombudsman only through a Member of Parliament who was willing to
assist. Although this remains the normal method of approach, they may now
write directly; however, their letters to the Ombudsman are subject to the
same restriction with regard to the simultaneous ventilation of complaints
about prison treatment as correspondence with Members of Parliament (see
paragraphs 48 and 49 above) and he still cannot proceed with an
investigation unless the prisoner’s constituency Member so requests.
3. Application to the domestic courts
55. The exercise by the prison authorities of their powers under the
Rules to control correspondence is subject to the supervisory control of the
English courts by way of proceedings for judicial review. In the exercise of
this jurisdiction the courts will intervene to secure compliance by the prison
authorities with the Rules in so far as they confer on prisoners an
entitlement to send or receive correspondence (for example, Rule 37(A)1;