Category Archives: Prisons

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European Court got it right on mental health detention delay – Martha Spurrier

This piece is in response to Rosalind English’s post on this blog arguing that in M.S. v United Kingdom the European Court extended to far the ambit of Article 3 of the European Convention on Human Rights (ECHR), which protects against torture, and inhuman or degrading treatment. This post argues that the European Court’s ruling is both a logical step in the jurisprudence and a welcome one for the protection of those with mental health problems in state detention. 

M.S. v United Kingdom identifies a gap in the provision of crisis mental healthcare for those in state detention that has long been recognised by lawyers, campaigning organisations, carers, service users, the police and healthcare providers. The judgment is a welcome recognition of two things: first, that a prolonged and acute mental health crisis while in state detention can amount to degrading treatment for the purposes of Article 3 ECHR. And second, that the state is responsible when delays in the provision of psychiatric care to those in detention cause someone with mental health problems to descend into a crisis that is degrading and undignified.

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Irrational, inhuman and degrading: detention of a mentally ill asylum-seeker was unlawful

R (on the application of HA (Nigeria)) v Secretary of State for the Home Department [2012] EWHC 979 (Admin) – Read judgment

The detention of a mentally ill person in an Immigration Removal Centre (IRC) amounted to inhuman and degrading treatment and false imprisonment, and was irrational, the High Court has ruled.

Mr Justice Singh heard a judicial review application by a Nigerian National against decisions to continue to detain him under the UK Borders Act 2007 and the conditions of that detention. From August 2009, HA, an overstaying visitor and asylum seeker, was detained at various IRCs following his release from prison for a drug-related offence which triggered the automatic deportation provisions of the 2007 Act. His behaviour during detention became increasingly disturbed and strange. In January 2010, he was seen by a psychiatrist who recommended HA’s transfer to a mental hospital for assessment and treatment.

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Refusal of child care leave to female prisoners was unlawful, rules High Court

MP, R(on the application of) v the Secretary of State for Justice   [2012] EWHC 214 (Admin) – read judgment

The prison authorities had acted unlawfully in restricting childcare resettlement leave to prisoners who were within two years of their release date and had been allocated to “open” conditions.

Two female prisoners applied for judicial review of decisions of the defendant secretary of state and prison governors to refuse them childcare resettlement leave (CRL). CRL is a type of temporary licence available to prisoners who have sole caring responsibility for a child under 16. CRL enables prisoners to spend up to three days at home (including nights), provided certain conditions are met. The principal issue in the claim was whether the secretary of state was acting lawfully in restricting CRL to female prisoners who have less than 2 years until their earliest release date. Continue reading →

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Abu Hamza and Babar Ahmad can be extradited to USA, rules human rights court

BABAR AHMAD AND OTHERS v. THE UNITED KINGDOM – 24027/07 [2012] ECHR 609 – Read judgment / press release

The European Court of Human Rights (Fourth Section), sitting as a Chamber, has found that five men accused of serious terrorist activities can be extradited from the UK to the US to face trial.

They had argued that their article 3 rights (article 3 prohibits torture, inhuman and degrading treatment) would be violated if they were extradited and convicted. A sixth man’s case has been adjourned pending further submissions from the parties to the proceedings.

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No extradition for Shrien Dewani – for now

The Government of the Republic of South Africa v Shrien Dewani- Read decision

The extradition to South Africa of Shrien Dewani, the man accused of murdering his wife on honeymoon there in 2010, has been delayed pending an improvement in his mental health.

The case made headlines in 2010, when the story broke of a honeymooning couple who had been ambushed in the township of Gugulethu, South Africa. Mr Dewani told police he had been travelling in a taxi which was ambushed by two men. He described being forced from the car at gunpoint and the car driving away with his wife still inside. She was found dead shortly after.  However, evidence emerged which led the South African authorities to believe that Mr Dewani had initiated a conspiracy with the taxi driver and the men who ambushed the taxi to murder his new wife. Consequently, they sought his extradition from the UK, to which he had returned, to face a trial for murder.

In an appeal to the High Court from a decision by a Senior District Judge that Mr Dewani could be extradited, Mr Dewani made two arguments:
1.    Prison conditions in South Africa were such that his Articles 2 (right to life) and 3 (prohibition on torture, inhuman and degrading treatment) Convention rights would be violated if he were extradited;

2.    His mental health and risk of suicide were such that his should not be extradited. Continue reading →

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All by myself: segregation, prisons and Article 6

Bourgass and others v Secretary of State for Justice [2012] EWCA Civ 376 Read decision

The ability to interact with other prisoners is a major part of prison life, and not one many prisoners would give up willingly. But there are circumstances where prisoners have to be segregated from the rest of the prison population, such as where they are posing a violent threat to another prisoner or planning an escape. The Court of Appeal has recently looked into the question of how decisions to segregate are made, including the initial decision, the review of the decision and ultimately judicial review, in a human rights context.

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Indefinite detention: not very British

Angus McCullough QC appeared for Abu Qatada as his Special Advocate in the domestic proceedings before SIAC, the Court of Appeal and the House of Lords. He is not the author of this post.

‘Human Rights Act to blame!’ is a frequent refrain in the media, as well reported on this blog.  Often, though, the outcome that has attracted media ire is not one that has much to do with the Human Rights Act at all. The decision to release Abu Qatada on bail is one such example.

The decision of the European Court of Human Rights that Abu Qatada cannot, for now, be deported to Jordan because of the risk of a trial using evidence obtained by torture has nothing to do with the Human Rights Act. Unless the UK were to withdraw entirely from the European Convention on Human Rights, that decision would always have been reached with or without our own Human Rights Act.

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Extradition of murder accused to US not breach of human rights

HARKINS AND EDWARDS v. THE UNITED KINGDOM – 9146/07 [2012] ECHR 45 – Read judgment

The European Court of Human Rights has found that there would be no breach of Article 3 ECHR (prohibition of inhuman and degrading treatment) in extraditing two men accused of murder to the US.

The men argued that they face the death penalty or life imprisonment without parole if found guilty. The US had given assurances to the UK government that the death penalty would not be sought. The following summary is based on the Court’s press release (my abridgement):

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Youth restraint challenge rejected by High Court

The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice and G4S Care and Justice Services (UK) Ltd  and Serco plc [2012] EWHC 8 (Admin) – read judgment

Although certain restraining measures had been taken unlawfully against young people in secure training centres for a number of years, the court had no jurisdiction to grant an order that the victims of this activity be identified and advised of their rights.

The claimant charity alleged that children and young persons held in one or other of the four Secure Training Centres in the UK had been unlawfully restrained under rules which approved certain techniques of discipline. It sought an order requiring the defendant to provide information, to the victims or their carers on the unlawful nature of restraint techniques used in Secure Training Centres (“STCs”) and their consequential legal rights.

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No human right to an hour’s minimum in the open air for “lifer” – Court of Appeal

Malcolm v Secretary of State for Justice [2011] EWCA Civ 1538 - Read Judgment

The Court of Appeal has decided that a failure to provide a life sentence prisoner with a minimum of one hour in the open air each day did not constitute a breach of his human rights under Article 8 of the European Convention of Human Rights (“ECHR”).

Oliver Sanders of 1 Crown Office Row represented the Secretary of State in this case. He is not the author of this post.

Between 26 April and 2 October 2007, a period of 159 days, Mr Leslie Malcolm was detained in the Segregation Unit at HMP Frankland. During that time, he was provided with an average of 30 minutes in the open air each day. However, paragraph 2(ii) of Prison Service Order 4275 (“PSO 4275″), which contained policy guidance for prison officers operating under the Prison Rules 1999, stated that he should have had the opportunity to have at least one hour each day in the open air.

When Mr Malcolm first brought his claim, he complained that not only had his human rights under the ECHR been infringed, but also that the prison officers at HMP Frankland were liable for misfeasance in a public office. Both aspects of the claim were rejected by Sweeney J at first instance, and it was only the human rights question that was considered on appeal.

The judgment of Richards LJ, in leading a unanimous Court of Appeal, is an elucidating one insofar as it breaks down and draws attention to the various questions which need to be addressed when a human rights claim under Article 8 is brought. Continue reading →

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Prisoner votes and the democratic deficit

I posted recently on the ongoing saga surrounding the UK’s implementation of the Hirst No. 2 case, in which the European Court of Human Rights found that the UK’s blanket ban on prisoners voting was a breach of the European Convention on Human Rights. The correspondence between the court and the UK Government is now available and I have reproduced it below.

In short, the UK previously had until 11 October 2011 to “introduce legislative proposals” to end the ban. But it has now been given a reprieve as a result of seeking to intervene in another case, Scoppola v Italy (No. 3) (available in French, English press release here), which is going to the court’s Grand Chamber  This is another prisoner voting case.

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Religious freedom does not stop at the prison gates – Part 2

Jakobski v Poland (December 2010) – read judgment

Mahayana Buddhists have profound moral objections to eating meat. According to the rules, a Mahayana Buddhist should avoid eating meat to cultivate compassion for all living beings.

Even peaceable Buddhists commit crimes sometimes and go to prison. Meat free diets however are not available in all European penitentiaries. Should committed vegetarians be made to forfeit their beliefs once their offences against society have committed them to penal servitude?

In Poland, apparently, the answer is yes. The refusal to provide a Buddhist prisoner with a meat-free diet was not unlawful under local law which provided only that prisoners should receive meals taking into consideration their employment, age and where possible religious and cultural beliefs. That let-out clause allowed the Polish government to issue an ordinance requiring the provision of special meals for diabetics and a “light diet”. Both contain meat products. Continue reading →

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Prison’s decision not to investigate sexual assault was lawful

R (NM) Secretary v of State for Justice [2011] EWHC 1816  - Read judgment

This case concerned whether the prison authorities were in breach of the Disability Discrimination Act 1995 and the Equality Act 2010 when they failed to conduct a form investigation into a sexual assault against a prisoner with learning disabilities, NM.

It was further considered whether the failure to conduct a formal investigation was in breach of NM’s Article 3 rights. The claimant was assisted in bringing his case by the Howard League for Penal Reform. The court found in relation to all points that the defendant had acted lawfully.

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Tiny cells, violence and language barriers: the life of a European prisoner?

The European Commission has begun a consultation process to explore the impact of pre-trial detention in the European Union (EU). The particular focus, summarised in its Green Paper, is how pre-trial detention issues affect judicial co-operation generally within the EU.

The issue is being debated at the moment in the UK, with a group of MPs urging an overhaul to international extradition rules. The Joint Committee on Human Rights has published its report on The Human Rights implications of UK extradition policy (read summary here), in which it concludes that the current statutory framework does not provide effective protection for human rights.

The EU has an interest in these questions, given the fundamental rights which is seeks to uphold. Article 4 of the EU Charter mirrors Article 3 of the European Convention on Human Rights, prohibiting torture and inhuman and degrading treatment.

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Religious freedom doesn’t stop at the prison gate

R (Imran Bashir) v. The Independent Adjudicator, HMP Ryehill and the Secretary of State for Justice [2011] EWHC 1108 – read judgment here.

1 Crown Office Row’s John Joliffe appeared for the Secretary of State for Justice in this case. He is not the writer of this post.

The High Court held last week that disciplining a Muslim prisoner for failing to give a urine sample in a drugs test when he was in the midst of a voluntary fast was a breach of his right to manifest his religious beliefs. 

Recent claims or defences on the basis of Article 9, the right to freedom of thought, conscience and religion, have mostly been unsuccessful – see our comments on the Catholic adoption agencies, fostering and Cornish hotel cases, as well as Aidan O’Neill’s feature article. However, in this case His Honour Judge (HHJ) Pelling QC held that the failure to even consider a prisoner’s Article 9 rights meant that the decision to discipline him was fatally flawed.

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