SILVER AND OTHERS v. THE UNITED KINGDOM JUGDMENT
28
Article 1 of Protocol No. 1 (P1-1) and Article 2 of Protocol No. 4 (P4-2)
(ibid., p. 30, § 48).
The Government accepted that the principles enounced in the said
judgment concerning the expression "prescribed by law/prévues par la loi"
in Article 10 (art. 10) were also applicable to the expression "in accordance
with the law/ prévue par la loi" in Article 8 (art. 8). Indeed, this must be so,
particularly because the two provisions overlap as regards freedom of
expression through correspondence and not to give them an identical
interpretation could lead to different conclusions in respect of the same
interference.
86. A first principle that emerges from the Sunday Times judgment is
that the interference in question must have some basis in domestic law
(ibid., p. 30, § 47). In the present case, it was common ground between
Government, Commission and applicants that a basis for the interferences
was to be found in the Prison Act and the Rules, but not in the Orders and
Instructions which lacked the force of law (see paragraph 26 above). There
was also no dispute that the measures complained of were in conformity
with English law.
87. A second principle is that "the law must be adequately accessible: the
citizen must be able to have an indication that is adequate, in the
circumstances, of the legal rules applicable to a given case" (ibid., p. 31, §
49). Clearly, the Prison Act and the Rules met this criterion, but the Orders
and Instructions were not published.
88. A third principle is that "a norm cannot be regarded as a ‘law’ unless
it is formulated with sufficient precision to enable the citizen to regulate his
conduct: he must be able - if need be with appropriate advice - to foresee, to
a degree that is reasonable in the circumstances, the consequences which a
given action may entail" (ibid.).
A law which confers a discretion must indicate the scope of that
discretion. However, the Court has already recognised the impossibility of
attaining absolute certainty in the framing of laws and the risk that the
search for certainty may entail excessive rigidity (ibid.). These observations
are of particular weight in the "circumstances" of the present case, involving
as it does, in the special context of imprisonment, the screening of
approximately ten million items of correspondence in a year (see paragraph
57 above). It would scarcely be possible to formulate a law to cover every
eventuality. Indeed, the applicants themselves did not deny that some
discretion should be left to the authorities.
In view of these considerations, the Court points out once more that
"many laws are inevitably couched in terms which, to a greater or lesser
extent, are vague and whose interpretation and application are questions of
practice" (ibid.). And in the present case the operation of the
correspondence control system was not merely a question of practice that
varied in each individual instance: the Orders and Instructions established a