Another talk in Moscow: judicial protection of prisoners’ rights

I delivered this paper on my second visit to Moscow, when an entire seminar was given over to an exposition of the British approach to prisoners’ rights (four years before the Human Rights Act 1998 came into effect).  The seminar was overshadowed by a concern that there might be a relapse to communism at the impending elections.  However, those who did attend participated fully.  I remember the interest they showed when I told them about the right of any senior judge to enter a British prison.  On the second day of the seminar, after Lord Slynn had left to attend another conference in Slovenia, his wife Odile stayed on to describe her role as Chair of the Visitors of Grendon Underwood Psychiatric Prison.  In my talk I gave a history of our system of punishment, and I then described the role of senior English judges in disputes concerning prisoner’s rights.

A curiosity of the paper is that while I explored the broad canvas of the English judge’s central role in the delivery of criminal justice, I made no mention of the way in which in recent years decisions of the court at Strasbourg had been giving prisoners rights not previously acknowledged by English law.  In this respect, it should be contrasted with a paper I gave four years later at a Howard League conference in Oxford at which this was a central feature of my presentation.


Judicial protection of prisoners’ rights in England and Wales

Address at a seminar in Moscow on Prisoners’ Rights in June 1996, organised by the Bar Human Rights Committee

“Imprisonment is no other thing but the restraint of a man’s liberty, whether it be in the open field, or in the stocks, or in the cage in the streets or in a man’s own house, as well as in the common gaols; and in all the places the person so restrained is said to be a prisoner so long as he hath not his liberty freely to go out all times to all places whither he will without bail or mainprise or otherwise.”

Termes de la Ley, Imprisonment, quoted with approval by Lord Jauncey in ex p Hague [1992] 1 AC 58, 173.

“Under English law a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication.”

Raymond v Honey [1983] 1 AC 1, 10, per Lord Wilberforce.

“Convenience and Justice are often not on speaking terms”.

General Medical Council v Spackman [1943] AC 627, 638 per Lord Atkin.

When I came to Moscow two years ago for the first of these seminars, I was invited to talk in general terms about the role played by English judges in the protection of human rights.  I explained how English judges are completely independent of the executive and the principles on which they exercise their powers of judicial review, and I gave a few recent examples of how these powers have been exercised in a human rights context.

The present seminar is concerned with the narrower topic of prisoners’ rights, and I have been invited to talk about “executive discretion and judicial intervention” from the standpoint of an English judge. After I have finished you will hear a talk on the same topic by Tim Owen, who has great specialist experience in this field as a barrister acting for prisoners.  I sometimes hear politicians complain that judges intervene too much.  Tim Owen may tell you that we do not intervene enough.  Perhaps we have got the balance about right.

I have divided what I have to say today into three parts.  The detention of prisoners is an executive function, and I will first tell you something of the history of English prisons and the framework within which the executive now exercises its powers in relation to detained prisoners.  Then I will say a little about the way the judges have developed English law so that nobody may be detained by the police or however short a time without knowing the reasons why they are detained.  I will also explain how the police may not hold anybody against their will without charging them with an offence for more than quite a short period without obtaining lawful authority from a court, and how there are strict rules which limit the time that people may be detained at different stages of the criminal process up to trial and conviction.  And finally I will describe the ways in which the judges have extended the rights of people in prison and the ways in which this is achieved.

First, a bit of history.  By the common law of England the prisons, or gaols, belonged to the king.  Many centuries ago the king might grant franchises to nobles or bishops or to certain corporations permitting them to keep private prisons, but a law passed in the early fifteenth century prescribed that the justices of the peace should commit prisoners charged with criminal offences to the common or county gaols.  Until 1877 it was the local justices of the peace who had the responsibility of providing gaols and of appointing keepers for them, and the only legal responsibility of the gaol keepers was to hold their prisoners.  The law made no express provision for the management of these gaols, and in practice the keepers managed them as they pleased.

From time to time Parliament was sufficiently troubled by particular problems relating to gaols to pass Acts relating to these problems, and from about the last quarter of the eighteenth century there was substantial public concern about the way the gaols were being managed.  Eventually a Gaols Act was passed in 1823, which imposed on the justices of the peace the duty to organise their prisons according to a prescribed plan and to furnish a report to the Home Secretary about every aspect of prison administration.  By this Act Parliament recognised for the first time that it was the Home Secretary who had the ultimate executive responsibility for the king’s gaols, and that the justices and the keepers were responsible to him for the management of his gaols.  The Act also recognised that the infliction of punishments on prisoners by the gaol; keepers represented an aspect of gaol management for which the justices were responsible.

Even as late as 1823 it was uncommon to incarcerate prisoners as a punishment following their trial and conviction.  The royal commission given to the judges when they travelled out of London to the assizes included a commission to conduct what was called “general gaol delivery”.  The justices secured that prisoners were detained until their trial, and the gaols were then largely empties before filling up again before the next assizes.  Capital punishment and corporal punishment were common penalties following conviction.  With the development of the British Empire, transportation to the colonies became a more humane alternative to capital punishment.

During the nineteenth century things changed, and it became more common now for judges to sentence convicted prisoners to imprisonment as a punishment for their crime.  Inevitably this meant that a more clearly defined legal regime needed to be introduced.  The Prison Act of 1877 vested the responsibility for all aspects of prison administration in the Home Secretary.  The Act also provided for the appointment of visiting committees of justices.  They were to report on abuses and want of repair.  They were also given special judicial functions in relation to some offences against discipline which they retained until fairly recently.

The latest Prison Act, passed in 1952, retains the same structure of responsibility in all essential respects.  All powers and jurisdictions in relation to prisons and prisoners were to be exercisable by the Home Secretary, who is accountable to Parliament.  In recent years he has created a prison Service Agency as an executive agency with its own Board of Directors to conduct the day to day administration of prisons pursuant to his guidance and directions.  In 1982 Parliament created a Prisons Inspectorate, which has the job of reporting to him on the treatment of prisoners and conditions in prison, and very recently the Home Secretary has appointed a Prison Ombudsman to inquire into complaints by individual prisoners about the way they have been treated.  The courts have no direct involvement in any of these arrangements by the executive.

I will turn now from the structures which define different aspects of executive responsibility for prisons and prisoners to the processes by which people come to be detained by the state as prisoners.  In England we do not have a Ministry of Justice.  Until changes made ten years ago, the police were the arm of the executive that was responsible not only for investigating crime and charging offenders but also for prosecuting most of them in the courts: for more serious offences they would pass the papers to the local prosecuting solicitor or, in rare cases, to the Director of Public Prosecutions to conduct the prosecution.  The Home Secretary is the minister with general overall responsibility for the police, although outside the London area the different police services are supervised by independent police authorities and in all cases the chief constable (or the Metropolitan Police Commissioner in London) has operational responsibility for the deployment of the police under his control: he cannot be told how to do his job by others.

The Attorney-General has always been the minister ultimately responsible for the conduct of prosecutions, and the courts have held that they will not interfere with his discretion whether or not to prosecute in any given case.  The leading case on this topic was one in which the Attorney-General had declined to give his authority to proceedings to enforce the criminal law against the leaders of a trade union which had resolved to call on its members not to handle mails to South Africa during a week of protest action against apartheid.  The House of Lords, overruling the Court of Appeal, held that the Attorney-General had an exclusive right to act in the public interest in relation to prosecutions.  His role was substantial and constitutional, and he was free to take account of any circumstances, political or otherwise, in deciding whether or not to prosecute; this was not an exercise of discretion with which the courts would interfere.

However, although the courts will not interfere, the Attorney-General is accountable to Parliament for the way he does his job.  It is often said that one of the reasons for the fall of the first Labour Government in 1924 was connected with the cabinet’s endorsement of a decision by the Attorney-General to drop a prosecution against a Communist charged under the Incitement to Mutiny Act 1875 with publishing an appeal to soldiers to

“let it be known that neither in the class war nor in a military war will you turn your guns on your fellow workers.”

Ever since then Attorney-Generals have been scrupulous to insist that although they are ministers belonging to the party in government, they take their decisions on prosecutions in a wholly independent capacity.  A former Attorney-General, Sir Hartley Shawcross, has said that in deciding whether or not to prosecute

“there is only one consideration which is altogether excluded, and that is the repercussion of a given decision upon my personal or my party’s or the government’s political fortunes.”

In 1986 the Crown Prosecution Service (“CPS”) was created as a national prosecuting agency, and the police’s role is now limited to investigating crime and charging offenders.  If the CPS believes that the evidence is not likely to secure a conviction it the power to drop a prosecution against someone charged by the police: the exercise of this power tends to lead in some cases to friction between the police and the COPS.  The Director of Public Prosecutions is now the head of the CPS, and the Attorney-General is still the minister ultimately responsible for the conduct of prosecutions.  There are other, smaller, prosecuting agencies such as the Serious Fraud Office and the Customs and Excise (in relation to drug importations, for instance) and one of the recommendations of the recent Scott Inquiry, which followed the collapse of a Customs and excise prosecution of defendants charged with illegally importing arms to Iraq, was that the Attorney-General’s role in relation to the conduct of all criminal prosecutions should be strengthened and made more explicit.

All this work of investigating, charging and prosecuting crime is the responsibility of the executive; the trial and sentencing of offenders is the responsibility of the judiciary, which may also have a supervisory role in relation to other parts of the criminal process, particularly where the liberty of the subject is at stake.  In recent years the courts have been developing the principles by which they exercise their inherent jurisdiction to prevent the executive (and others) from abusing the process of the courts, most notably in cases where there has been a very long and inexcusable delay in bringing a man or woman to trial.

[Statistics are now given for the total number of full-time and part-time judges and magistrates, professional and lay].

Although we do not have the doctrine of separation of powers entrenched in a written constitution, the history of the later Stuart period is still remembered by everyone who is concerned with issues of liberty in our constitutional democracy. King Charles II (1660-1685), in his later years, and his brother King James II (1685-1689) both tried to rule without Parliament and sacked their judges when they ruled that they were acting unlawfully.  In those days there were only 12 common law judges, and Charles II sacked 11 between 1674 and 1685.  Not to be outdone, James II sacked 12 between 1685 and 1688.

The Act of Settlement of 1701 provided that judges would in future hold their office not “at the king’s pleasure” but “so long as they behaved themselves” and that they could not be dismissed except on an address passed to the monarch by both Houses of Parliament. Nor could their salaries be reduced while they held office.  No English judge has ever lost office in this way, although no doubt the threat of this ultimate sanction has induced a few to retire early when they were clearly not up to the job. The Lord Chancellor does have power to remove judges below the level of the High Court, and also magistrates, in the event of misconduct – a circuit judge was dismissed after being convicted of smuggling whisky a few years ago – but this is a power which he seldom exercises and never for party political reasons.

Not only are judges and magistrates free from the fear of arbitrary removal, and free from the fear of being sued or prosecuted for acts performed in their judicial capacity: they are also completely free from any suspicion of corruption,  although in the distant past there have been corruption scandals – a chief justice was sentenced to death for corruption in 1350, and Lord Chancellor Bacon was impeached and imprisoned in the Tower of London for corruption in 1621 – there has been no hint that any English judge or magistrate has been willing to accept bribes for many years.  Indeed, in a recent controversial case involving Mr Asil Nadir, the rumour that the trial judge might have been susceptible to bribery was universally regarded as ludicrous by a Press not generally sympathetic to the judiciary.

Equally ludicrous would be the idea that any English judge or magistrate might be affected by party political considerations in anything they did in a judicial capacity.  Those who heard me speak at the earlier seminar in Moscow will remember that I brought to life the total independence of the English judiciary by saying this:

“I am an English High Court judge, assigned to the Queen’s Bench Division.  I was appointed a judge in 1988.  I am now 58.  If I wished to, health permitting, I could remain a judge until I am 75.  I cannot be removed from my office as a judge against my will in the absence of resolutions to that effect passed by each House of Parliament.  Nobody can tell me, let alone order me, how I should decide any case.  And although my father and elder brother were both senior government ministers, nobody has ever suggested that I might be influenced by political considerations in performing my duties as a judge.”

Except that I am now a year older, and have just been promoted, this is still true today, and I make no apologies for repeating it, because the underlying principles are of central importance to a proper understanding of the relationship between the executive and the judiciary in England.  I added, of course, that if I made errors of law in the way I decided cases these could and would be corrected in the higher courts above me.

I turn now to the ways in which the judiciary (by which I include the magistracy) control the activities of the executive in relation to the arrest and detention of prisoners and their treatment in custody.

For the reasons I gave when I was last in Moscow, the spirit of liberty and the importance of individual freedom have formed an integral part of English national culture since long before the barons compelled King John to sign Magna Carta in 1215.  [Here I quoted William Pitt’s story about the poorest man in his cottage bidding defiance to all the forces of the Crown].

I remember watching on live television some of the proceedings in the United States Senate at the time of the Watergate scandal.  Senator Sam Ervin, the veteran senator from one of the southern states, quoted this passage to Mr John Ehrlichmann, one of President Nixon’s senior aides, after the executive had sanctioned a burglary of a psychologist’s private papers in search of incriminating evidence without any legal warrant.  When Mr Ehrlichmann suggested that William Pitt was a bit out of date in the America of the 1970s, Senator Ervin gave a withering reply.

In everything they do in relation to the liberty of the citizen the officers of the executive must have a legal authority which they can justify, if called upon to do so, in a court of law.  For centuries it was the English judges who developed the principles that govern the power of arrest.  These were crystallized in the famous case of Christie v Leachinsky, decided in the House of Lords in 1947.

The police had decided it was more convenient to arrest Mr Leachinsky, who was well known to them, under a municipal bye-law which only applied when a suspect’s name was unknown, instead of telling him the true reasons for his arrest, which was that they had reasonable grounds for suspecting him of theft.  The House of Lords ruled that his arrest was unlawful.  They ruled that if a policeman arrested a citizen without a warrant on reasonable suspicion of a crime of a sort which does not require an arrest warrant issued by a court, he must in ordinary circumstances inform the person arrested of the true grounds of arrest.  The policeman is not entitled to keep the reason to himself, or to give a reason which is not the true reason.  In other words, a citizen is entitled to know on what charge or suspicion of what crime he is seized.  Needless to say, if he resists or attempts to run away, this duty will be satisfied if he is told that he is under arrest and has the reasons for the arrest explained to him “as soon as possible”.  In his famous speech in that case Lord Simonds said;

“Blind unquestioning obedience is the law of tyrants and of slaves: it does not yet flourish in English soil … Arrested with or without a warrant, the subject us entitled to know why he is deprived of his freedom if only in order that he may, without a moment’s delay, take such steps as will enable him to regain it.”

It will be remembered that this case was decided in England at a time when the full horror of the Nazi regime was gradually being understood, and when English common lawyers were starting to work alongside European lawyers to draft the European Convention on Human Rights to ensure that in states that adhered to the Council of Europe nothing like that could ever be permitted to happen again.

If someone is arrested unlawfully then he has the right to apply to the High Court for the ancient remedy of habeas corpus by which the court can summon those responsible for the detention and demand that they justify the arrest, or else the citizen must be let free.  In practice this remedy is seldom if ever used today because of the police’s duty, which I will come to in a moment, to bring the detained prisoner before a court within a very short period.

Another remedy which is available to the citizen who is wrongfully arrested is to sue the police for damages in the civil courts for false imprisonment.  Because of the importance that English law attaches to personal liberty, this is one of the very rare occasions in which a plaintiff is still entitled to have his civil claim decided by a jury, and I have often sat with a jury to hear claims of this kind against the police.  I remember trying one case where the jury was quite sure that two police officers had invented a story that they had seen the plaintiff by the headlights of their police car soon after a robbery had taken place as an excuse for arresting him later that day for a robbery when he was in fact in bed with his wife at the time.  Although he had a bad criminal record the jury awarded him not only damages by way of compensation but also what we call exemplary, or punitive, damages, a rare form of award available against officers of the state, such as the police, who are found guilty in a civil court of oppressive arbitrary or unconstitutional abuse of power.  It is by mechanisms like this that the judiciary is empowered to control the use, or stop abuse, of executive powers of arrest and detention.

[A description of the rules governing arrests and bringing arrested people before a court, as set out in the Police and Criminal Evidence Act, together with the role of the Police Complaints Authority, then followed.]

There is now an Act of Parliament, accompanied by very detailed Codes of Practice, which govern the conduct of the police when arresting, questioning and detaining those suspected of crime.  The reason for this is that in the 1970s there was mounting public concern over certain incidents of police malpractice which received wide publicity.  The Government appointed a Royal Commission to advise it, and the scheme of the 1984 Act is based for the most part on that Commission’s recommendations.  The need for reform can be illustrated by a case in 1980, when the Court of Appeal quashed the conviction of a local government planning officer.

At 6.30 am on a Sunday morning Mr Hudson was arrested at his home and taken to a London police station, where he spent the next five days.  At the end of that period he broke down and confessed to many things which simply could not have happened.  “Why should a man make an incriminating statement when the evidence was to the contrary?” the court asked itself. It continued:

“The feeling of captivity starting with the police officers arriving at 6.30 am at his house and arresting him; the fact that he was taken from his hone [in the country] to [a London] police station; the experience of being in a police cell; the twenty-five hours of questioning; and the fact that he was always accompanied by a police officer except when he was in his cell and was in custody out of his cell for fifty hours.  All of that for a man of 59 who had never been in trouble before would inevitably provide a strong inference of oppression.”

Under the present law his detention for more than 24 hours would have to be authorised by a police superintendent, and for more than 36 hours by a court: he would have to be released after four days.  He would be entitled to have a solicitor present during any questioning, which would have to be recorded on tape, and he would be entitled to have a copy of the tape.  In a recent case the Court of Appeal quashed the conviction of men convicted of murder after a 5-month trial in South Wales because the appeal judges listened to the tapes (which had merely been transcribed for the purposes of the Crown Court trial) and came to the conclusion that a confession had been obtained as a result of oppressive police questioning ad that it could not be safely relied upon.

The notorious “miscarriages of justice” cases were almost all connected with allegations of police misconduct towards prisoners in police custody, and the rules I have described represent Parliament’s efforts to bring their conduct under effective control.  There are certainly police officers who believe that some of the new rules place unjustified hurdles in the way of their efforts to investigate serious crime: most people, however, believe that a balance has now been struck in just about the right place and there are certainly far fewer complaints of police malpractice and forced confessions than there used to be.

Once a suspect has been charged with an offence and not released on bail he must be brought before a magistrates’ court as soon as practicable, and it will then be for the court to decide whether he should be remanded in custody or released on bail.  If he is remanded in custody, he will be remanded into the custody of the prison service, which is wholly independent of the police although the same minister, the Home Secretary, is ultimately accountable for its conduct.

When I was last in Moscow I described how as a High Court judge I had the right to enter any prison service establishment.  When I was trying cases in the Midlands this year I visited a large young offenders institution which received young men who had been remanded in custody by a number of different courts in the locality.  A prison officer in the reception section told me that the first thing he does when a new prisoner arrives is to check the warrant for his detention which has been signed by an officer of the relevant court.  If he has any doubt about its validity, he rings up the court, and if he cannot contact anybody that night he will usually decide to detain the offender overnight, although he is conscious that he and the prison service may be sued for damages for false imprisonment if it should turn out that the offender was not lawfully detained.

[There is then a description of the Prison Rules, and the system of custody time limits.]

A court has power to extend these time limits if certain conditions are fulfilled, but a prisoner has a right of appeal against such an extension to a higher court.  At a Crown Court recently I allowed such an appeal and directed that a prisoner should be released on bail pending committal for trial because I considered there was no good reason to extend the custody time limit.  Even more recently I have allowed a remand prisoner leave to apply to the High Court for a judicial review of a decision by a judge to postpone the date of his trial until next autumn after he had already been in custody as an untried, unconvicted prisoner for a year.   By these means judicial control is exercised to ensure that prisoners do not remain in custody without good reason for far too long awaiting trial, as the “pre-trials” do in countries like India: when I was in Delhi two years ago, I heard about unconvicted prisoners who were released by the executive after seven or eight years when it was thought they had been “punished enough” for offences for which they had never been tried.

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