My Talk on Prisoners’ Rights and the HRA

Last week I posted a summary of the talk I gave at a Howard League conference 15 years ago, just before the Human Rights Act came into force.  I believe that it may be useful to publish the whole talk now, to combat any suggestions that the European Convention did not really make any difference, and that we can achieve the same outcomes simply by relying on the common law alone.  The common law was conspicuous in its failure to give appropriate protection to vulnerable groups.  Prisoners and mental patients were good examples of people whom the common law had failed to look after, where a rights-based law would help to save men and women from the arbitrary exercise of unfettered discretion by those who were placed in control of them.

An Address given at a Howard League Conference at Oxford on 5 September 2000

The relevant parts of the Convention can be divided up in three ways. First, there are Articles 8, 9, 10 and 11. These articles identify individual rights, but the second section of each of them gives a public authority power to interfere with the exercise of the right in question provided that it observes the law and can show that it is necessary in a democratic society to interfere with that right, or to limit it for one of a number of reasons which are set out in the relevant article. This part of the Convention is concerned with the right to respect for private and family life and so on, the right to freedom of thought, conscience and religion; the right to freedom of expression; and the right of freedom of assembly. Articles 8, and to a lesser extent, Article 10, are likely to be most in use in cases involving prisoners.

Articles 5 and 6 are rather different. They mainly reflect principles of the criminal law with which we are very familiar in this country, and English courts will not have all that much difficulty in interpreting them. Article 6 will be constantly relied on in criminal trials and appeals. It also embodies the right of access to a court for the determination of civil rights. As I will describe, it was the Strasbourg court’s interpretation of Article 6 in the English case of Golder 25 years ago which revolutionised the way in which we look on prisoners’ rights.[1]

Finally, Articles 2, 3, 4 and 7 set out more or less absolute rules. They proscribe unlawful killing, torture and inhuman and degrading treatment or punishment, slavery and forced labour, and conviction for something which was not a crime at the time it was done. If the Article in question has been violated, then the state or other public authority cannot defend itself on the basis that the violation was necessary in a democratic society or for any other reason like that. There can be no legitimate justification of torture or degrading treatment.

There are two features of all this to which I want to draw attention at the start. The first is that English judges have never been in the business of deciding whether acts done by public authorities were necessary in a democratic society. The Strasbourg court has given us some guidance about what these words mean, and one of the law lords has already said that we as judges should pay appropriate deference to decisions taken by ministers or by Parliament when we are engaged in balancing individual rights against community protection. The reason for this is that ministers and Parliament should be much more well-qualified and accustomed to conducting this kind of balancing exercise than judges will ever be.[2] But in the last resort the question whether the Convention has been violated in any particular case will have to be decided by a judge, and a decision of this kind in a controversial case will be a much more obviously political decision than most of the decisions we have been accustomed to make in the past.

The second feature is that when we come to the absolute rules, it will be an English judge who will be deciding, for instance, whether a prisoner’s treatment was degrading. Politicians are used to telling us that there are no votes in improving prison conditions, but there will now be certain minimum international standards of treatment which the English courts will be insisting must be observed by everyone.

I will start with Article 3. This says:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Strasbourg court said 20 years ago that whether bad treatment falls into one of these categories depends on the intensity of the victim’s suffering. Torture was said to involve deliberate inhuman treatment causing very serious and cruel suffering. Inhuman treatment was said to be treatment that causes intense physical and mental suffering. [3] Degrading treatment was said to be treatment that arouses in the victim a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim and possibly breaking his or her moral resistance.[4]

There has been a good deal of criticism of Strasbourg decisions under Article 3, and particularly decisions of the old European Commission on Human Rights, on the basis that they were willing to turn a blind eye to a lot of very unpleasant treatment. What seem to be fairly extreme forms of social isolation have often been tolerated, provided that they were not accompanied with complete sensory isolation.[5] Five years of solitary confinement in one case and segregation for six years in a special cage (for a prisoner who had murdered two other prisoners) in another have both been held not to give rise to Article 3 violations.[6]

In a 1993 case, an English prisoner complained that he was segregated for four months on a disciplinary charge in a cold cell infested with cockroaches, and allowed to exercise for only two 30-minute periods each day in an individual pen the size of a tennis court. He also complained about the racist attitude of the prison staff towards him. Although the conditions at that prison had been the subject of criticism by the Chief Inspector of Prisons and by the European Committee for the Prevention of Torture, the Strasbourg Commission did not consider that he had grounds for complaint under the Convention.[7] It remains to be seen how a complaint like this will be handled once it can be made directly to an English judge in an English court.

When we consider criticisms like those that have been made about Strasbourg decisions under Article 3, we need to remember that the European Convention has been described as a living instrument. Although we must take such decisions into account, we will not be bound to follow decisions taken in Strasbourg 20 years ago if we think that times have moved on. Attitudes to racism, like attitudes to certain types of sexual conduct, have changed over the years, and we will be bound to apply what we think are contemporary standards when we interpret the Convention. This will mean, of course, that our judgments will inevitably be seen to have a political content when they are considered by commentators who are not very happy about contemporary standards and would like to put the clock back a number of years. There are plenty of such people about.

The arrival of the Convention also means that if a prisoner can show that he must have been beaten up by those who were responsible for his care in police custody or in prison, he will no longer have to identify the people who actually inflicted the injuries. There has also been a decision to the effect that if a prisoner is seriously injured in the course of his arrest and is then denied immediate access to medical treatment, Article 3 requires the State authorities to adopt measures to safeguard his physical well-being.[8] In that sense the Convention imposes positive obligations on the state to do something about his condition.

I turn now to Article 5. This provides, so far as is relevant:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law….

(e) the lawful detention … of persons of unsound mind….

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

There are a few aspects of this Article I want to mention. The Convention insists on fair process. This idea includes concepts like equality of arms, and the duty to give reasoned decisions.   Equality of arms imposes an obligation on the prosecution a duty to disclose relevant information to the defence at an appropriate stage of criminal proceedings in order to ensure a fair trial. Magistrates will now be expected to give reasons for their decisions in relation to bail, and very careful attention will have to be paid to the observance of proper procedures before anyone can be imprisoned for fine default or for breach of a court order.

We will also have to look very carefully at Article 5(1)(e) if the Government proceeds with its plans to allow the detention of people said to be suffering from serious dangerous personality disorders even though they have committed no offence. The purpose of that provision appears to be that such people may be deprived of their liberty in order that they may receive the treatment they need for their mental state, but whether people who have committed no offence can be detained if no treatment at all is to be provided, or if no treatment is possible, clearly leaves room for a Convention argument.

It was Strasbourg’s interpretation of Article 5(4)[9] which led to the major changes in English law in relation to release decisions for discretionary lifers who have served their tariff sentence, and the similar decisions concerned with murderers under the age of 18 who have been detained indefinitely, once they have served the period of their sentence judges necessary for retribution and deterrence. The process of moving all these decisions on dangerousness away from the executive and into the hands of a court – and the Parole Board is treated as a court for this purpose – is now nearly complete. There is little more that I can usefully say about this topic today.

Next, Article 6 and Article 8.   I want to quote the first part of Article 6, and the whole of Article 8:

“Article 6 (1):

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law….

Article 8

Everyone has the right to respect for his private and family life, his home and his correspondence.

There shall be no interference by a public authority with the exercise of this right except such as is 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.”

I am grouping Articles 6 and 8 together because they were both at the centre of the important case of Golder[10] in 1975. As I have said, this case revolutionised the way in which we have come to look on prisoners’ rights throughout the countries in the Council of Europe. Before Golder, there was a very strong feeling that the European Convention wasn’t concerned with prisoners. Rather like Magna Carta through the eyes of the authors of 1066 and All That, the European Convention was believed to contain a lot of implied reservations (“these Convention rights belong to everyone except convicted prisoners”).   This belief was based on the idea, which is still quite common in some circles today, that it is an inherent part of a prisoner’s punishment that the authorities should be able to take coercive decisions without acknowledging that he or she might have any rights in the matter. The English case of De Courcy, decided in 1967 about a prisoner’s right to conduct correspondence, was just one example of this kind of thinking in the minds of the European Commission for Human Rights in those days.[11] There were plenty of other decisions to the same effect in relation to complaints from other countries.

Golder changed all that. On the issue of a prisoner’s right of access to a court, the Strasbourg court rejected our Government’s Ritz Hotel argument to the effect that Article 6(1) only conferred a right to a fair hearing to those who succeeded in getting to a court. It also rejected an argument based on the implied limitation I have mentioned. It had been suggested in argument in that case that the imposing of a reasonable restraint on prisoners’ recourse to the courts was permissible in the interest of prison order and discipline. The Court held that Article 6(1) guaranteed the right of access to a court, and that no limitations to that right could be created by executive diktat.

So far as Article 8 was concerned, Mr Golder wanted to write to a solicitor to help him to issue libel proceedings against a prison officer. He complained to Strasbourg because he had been told that he couldn’t. The English courts had not been able to help him, because the Prison Rules undoubtedly gave the Governor power to do what he had done. In its defence at Strasbourg the Government unsuccessfully repeated the implied limitation argument. It also relied on Article 8(2). It said that the restriction on a prisoner’s correspondence in a case like this was in accordance with the law, and that it was within what was called their margin of appreciation to judge that it was necessary in a democratic society to maintain this restriction on correspondence for the prevention of disorder and crime.

The court was unimpressed by these arguments. It said that to prevent someone from even initiating correspondence constituted the most far-reaching form of interference with his Article 8 right to respect for his correspondence. It accepted that in certain circumstances the ordinary and reasonable requirements of imprisonment might justify wider measures of interference with correspondence. On the facts of that particular case, however, there was no justification for the authorities preventing Mr Golder from consulting a lawyer with a view to exculpating himself in relation to the damaging allegation which had been made against him.

The later Strasbourg cases of Silver and Campbell[12] have built on the foundations laid by the court’s decision in Golder. As many of you will know, the relevant parts of the Prison Rules have been radically changed as a result of all these decisions. This means that the Human Rights Act may not have a dramatic effect after October 2nd, because our national law has already been changed to comply with the Convention, and English judges have always been able to apply English law.

Because imprisonment has such a drastic impact on a prisoner’s private and family life, there are bound to be a lot of complaints to our courts under Article 8. It is quite likely that the English courts will be imaginative in the way they deal with Article 8(2) justifications when a prisoner complains that the disruption to his family life goes further than is really necessary to satisfy the basic requirements of his imprisonment.

The last Article I want to mention is Article 10. This provides:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority…

The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

There have been a number of Strasbourg decisions affecting prisoners under Article 10.   It has been held that a prisoner cannot rely on this Article to enable him to find out the identity of the members of the Category A committee responsible for reviewing his security category. It has also been held that a restriction on the right to receive information in the form of access to a radio or periodicals may be justified as a disciplinary penalty.[13]

However, it is not enough that the penalty was lawfully imposed, and that the disciplinary measures were taken in pursuit of a permissible purpose recognised by Article 10(2). The restriction itself must serve the purpose that is relied on. If a prisoner uses writing materials as an offensive weapon, they can be taken away from him. They cannot be taken away simply because it is an available punishment for what he has done. In one case, a prisoner had used the writing materials that had been given to him in order to start fires and to send secret messages, and it was held in Strasbourg that to deprive him of writing materials in those circumstances did not constitute an Article 10 violation.[14]

The general effect of this and other similar decisions has been to limit the occasions on which prisoners can legitimately be denied access to books or radios or writing materials. Blanket bans are not allowed. Each restrictive decision has to be justified on its own merits. Again, there have already been a number of changes to Prison Service standing orders to accommodate Strasbourg rulings, so that again the Act may not have a dramatic effect here.

Quite recently, the Commission dismissed a complaint by a mandatory lifer who was complaining about a ban on telephone communications with the media. It held that it was legitimate for effective controls to be exercised on communications with the media in the interests of order, for the protection of morals, and for the protection of the rights or freedoms of others. It felt that the applicant had other means of communicating with the media, and that effective control could not be exercised over this particular medium of communication by less restrictive means.[15]

It did say, however, that it did not underestimate the role that the media may play in cases where there has been a miscarriage of justice. This was also recognised in the recent decision of the House of Lords in the Simms case.[16] The Commission also rejected one of the arguments the Government put forward to justify the ban, which was that it would prevent the distress which might be caused to victims or their families if a prisoner was allowed to communicate to the media matters relating to his conviction. It said that this consideration could not justify such a broad restriction, which would prevent a prisoner from even making serious representations to the media about his conviction, and irrespective of whether the call might be transmitted.

I am not one of those judges who believe that the Convention is not going to make very much difference to our law. It is bound to make a difference, because it will enable us in a great many cases to look very carefully at the justifications that are put forward to justify the violation of a person’s Convention rights. Public authorities are bound to be much more careful in future to ensure that any restrictions of any of those rights do not go further than is necessary to satisfy the community interest that is being relied on in any particular case.

Finally, a decision has now been made by our politicians that we should move from a freedom-based law to a rights-based law, because our freedom-based laws haven’t always proved very successful in protecting the rights of unpopular minorities. It is a fairly momentous step, and I think that every senior English judge will be very conscious that the outside world will be watching carefully the way we undertake the new responsibilities Parliament has given us. I only hope that the process will not lead to English judges being appointed or promoted for their perceived political biases and not for the quality of their judgment. If the Human Rights Act does have that effect, the cure may prove to have been worse than the disease, and that would be a very great pity.

[1]             Golder v UK (1979-80) 1 EHRR 524.

[2]             R v Director of Public Prosecutions ex p Kebilene [2000] 2 AC 326.

[3]             Ireland v UK (1979-80) 2 EHRR 25.

[4]             Costello-Roberts v UK (1993) 19 EHRR 112.

[5]             Ensslin Baader and Raspe v Germany 14 DR 64.

[6]             M v UK 35 DR 130 (1984); and Dhoest v Belgium 55 D & R 5 (1987).

[7]             Delazarus v UK No 17525/90 (unreported, 1993).

[8]             Hurtado v Switzerland, Series A No 280-A.

[9]             See Thynne, Wilson and Gunnell v UK (1991) 13 EHRR 666.

[10]            See above.

[11]            De Courcy v UK App No 3457/68 (1969) 12 Yearbook 284.

[12]            Silver v UK (1983) 5 EHRR 347; and Campbell v UK (1993) 15 EHRR 137.

[13]            McFeeley v UK 20 D & R 44 (1980).

[14]            Ibid.

[15]            Bamber v UK [1997] ECHR 205.

[16]            R v Home Secretary ex p Simms [2000] 2 AC 115.

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