Human rights not a cash milchcow for groundless claims

21 December 2011 by Rosalind English

We posted previously on  Grant and Gleaves v MOD , giving a summary of the claims and the circumstances of the claimants. This case is interesting chiefly in the judge’s approach to the interpretative obligation of UK Courts under Section 2 of the Human Rights Act, which enjoins them to “take account” of Strasbourg rulings. Mr Justice Hickinbottom made it very clear at the outset that he did not consider this to be a command to follow slavishly every decision made by the European Court of Human Rights to the letter:

in considering an issue involving a Convention right, Section 2 of the Human Rights Act 1998 requires a domestic court to “take account of” the judgments of the European Court of Human Rights in Strasbourg (“the Strasbourg court”). On its face, that does not bind a domestic court to follow Strasbourg cases: it is simply an obligation to take them into account, so far as they are relevant.

That does not stop him from considering carefully all the Strasbourg jurisprudence canvassed before him. In general, however, most of the cases were ultimately unfavourable to the litigants in this case.

The high threshold for Article 3 is not flexible

So, for example, Mr Justice Hickinbottom resists the interpretation frequently put upon the prison case Kalashnikov v Russia [2003], that there is a lower threshold for treatment prohibited by Article 3 than there is outside the prison gates, because the prisoner is already a vulnerable subject in the state’s hands. On the contrary, in the judge’s view, the Strasbourg Court in that case

does no more than stress that conviction and punishment inevitably in themselves involve a substantial amount of humiliation and distress, and that has to be ignored in assessing humiliation and distress for Article 3 purposes – because it derives from a purpose legitimised by Article 5.

It does not suggest that any humiliation or distress over and above the inevitable level engendered by the prison regime is a necessary violation. Indeed, the Strasbourg Court goes on to talk about “Measures depriving a person of his liberty may often involve such an element”, which appears to mean that detention often does involve an element of suffering and humiliation beyond that inevitably connected with the particular punishment, but which is not, simply by virtue of that, a breach of Article 3. If it were otherwise, virtually every aspect of a prisoner’s life that might cause a prisoner distress would be a prima facie breach of Article 3, because few are inherent or unavoidable in prison life, and most are capable of causing distress; e.g. eating food in a locked cell because there is no canteen, or (as Mr Eadie posited) sharing (or for some prisoners, not sharing) a cell.

Furthermore, whilst it is tempting, with the notion of the Convention as a “living instrument”, to assume that the threshold for treatment contrary to Article 3 is a relative one, that does not reflect the true nature of the principles behind that provision. References may abound in Strasbourg case law to the minimum level of severity being “relative” , but that simply means that cases are fact specific: it does not mean that the threshold is variable, and the cases generally do not speak of higher or lower or variable thresholds.

Analytically, in the light of the fundamental nature of Article 3 rights and the state’s obligations under that provision, it is better, in my view, to consider the threshold to remain constant and high, with the relevant factors in the assessment (including the fact that the victim is in state detention) being accorded proper weight in assessing whether the threshold has been met.

Generally, the Strasbourg court looks for positive evidence of such suffering, e.g. evidence that a medical, psychiatric or psychological condition has resulted from the ill-treatment, or at least contemporaneous complaints about that treatment. So that there is a consistent approach to this and other Convention provisions in Council Member States, it is important that this evidential burden remains the same across jurisdictions.

Article 3: The Burden and Standard of Proof

There is an interesting discussion devoted the burden of proof to be discharged by a claimant when he is contending that a particular circumstance or treatment breached Article 3. In general, though it uses the terms “balance of probability” and “beyond reasonable doubt” interchangeably, not as they are in the UK, terms of art about the evidential burden, the Strasbourg court is reluctant to find “degrading treatment” in a case unless an applicant can furnish medical evidence that the ill-treatment in fact caused him serious suffering. In a domestic case, where a claimant is alleging a violation of Article 3  under section 7 of the Human Rights Act 1998 that action is framed as a statutory tort, and the claimant has to discharge the burden of proof by the balance of probabilities (rather than the burden on the prosecution in criminal case, to prove the case beyond “reasonable doubt”) Even though this is a lower threshold, it is important to remember that the burden is on the claimant to prove, not the state to disprove. In this case the claims fell far short of the requisite standard, even on the civil standard, the balance of probabilities, and in the judge’s view would have fallen “short of any standard of proof, however applied.”

When Article 3 cannot be proved…

“Article 8 cannot simply and automatically be invoked in circumstances in which an Article 3 claim fails.” These are different rights, not the same right with varying thresholds. As Hickinbottom J points out, each right might be  based upon human dignity, they each have a different focus and it is “instructive ” that, in the Strasbourg Article 3 cases involving prison conditions (including those where the sanitation regime is a major source of complaint), even where those cases have failed, Article 8 has not even invoked.   Consequently the judge did not consider that claim to have any merit.

In connection with their complaints about cell size, the judge pointed out that  in the Strasbourg cases, prison conditions involving personal space of less than five square metres have consistently been found not to violate Article 3 (the cases are listed at para 160).

Interference with religious observances

One of the prisoners, Desmond Grant, had converted to Islam before arriving at the prison, although he had not formally professed his faith until some years afterward. Nor did he take part in any of the Islam study sessions with the prison Imam, or any of the weekly communal prayers or other festivals in the prison (save for one Eid feast), or in any of the meetings held in the prison to discuss (e.g.) arrangements for Ramadan. In cross-examination, he was unable to refer to any of the central tenets of Islamic belief. However, he said that, privately, he took the faith very seriously. He claimed  that the sanitation regime at HMP Albany was such that he, as a Muslim, had been unable to carry out his pre-prayer ablutions or break his fast in a clean environment, with the result that he had had to give up his religion in 2008, which he considered discriminatory and found particularly degrading.

Not entirely surprisingly the defendant secretary of state maintained that Mr Duncan did not in fact take his faith very seriously and the judge agreed.

A Convention Claim is not an Inquiry

Both Article 3 and Article 8 claims by the prisoners were dismissed. The Convention should not be used as a basis for a wide-ranging inquiry into prison conditions. Hard evidence must be advanced to prove individual harm. If the claimant does not come up to proof, the burden does not pass to the state to discharge;  the claim simply fails. It is somewhat surprising that these claims were awarded public funding to go ahead, given the hatchet job the judge was able to do on their merits.

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Related reading:

• Slopping out prison regime not in breach of human rights – judge rules
• No human right to an hour’s minimum in the open air for a lifer
• Tiny cells, violence and language barriers – the life of a European prisoner