Search Results for: prisoner voting/page/44/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
9 August 2010 by Adam Wagner
The Strasbourg court
A new Government report on the implementation of European Court of Human Rights judgments has highlighted the vexed issue of the rightful place of such rulings in domestic law. Many decisions, for example on prisoner voting rights, have languished unimplemented for years and it remains to be seen whether the Coalition Government will do any more to fulfil its legal obligations to the thousands affected.
The report sets out the Government’s position on the implementation of human rights judgments from the domestic and European courts. It is a response to the Joint Committee on Human Rights‘ March 2010 report, in which the committee criticised “inexcusable” delays in implementation.
The United Kingdom is obliged to implement judgments of the European Court of Human Rights under Article 46 of the European Convention on Human Rights. In 2009, the UK was found to have violated the European Convention 14 times, which represents 1% of the overall total of violations found by the Court. However, the UK has a high proportion of leading cases outstanding for more than 5 years.
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25 February 2015 by Rosalind English
CG v Facebook Ireland & Another [2015] NIQB 11 (20 February 2015) – read judgment
The plaintiff was a former sex offender who had been identified on a Facebook page run by the second defendant called “Keep Our Kids Safe From Predators 2”. He had been released on licence and he was apprehensive about his safety upon his return to the community.
He resides with his father, who is disabled, and with his adult children one of whom is also disabled. He was particularly fearful of the reactions of others to his conduct in the light of the fact that his name had been published on the internet. I have posted on an earlier case where another former sex offender won an injunction against Facebook Ireland Limited in respect of the original KOKSFP, which was subsequently taken down (XY v Facebook Ireland Ltd [2012] NIQB 96).
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21 November 2013 by Guest Contributor
Updated | The relationship between the UK and the European Court remains turbulent and fractious. The Court has been the subject of significant criticism, notably from some politicians and commentators in the UK, relating to its supposed interference in domestic, sovereign questions and the quality of its judges.
Some commentators say that the UK may have to withdraw from the jurisdiction of the court. Michael Pinto-Duschinsky argues that if (as is highly likely) the Council of Europe refuses to institute a “democratic override” for states of European Court of Human Rights decisions, withdrawal should be seriously considered. MP Nick Herbert argues that the UK should withdraw immediately.
Others have proposed withdrawing from the European Convention altogether. For example, in April, the Home Secretary, Theresa May, said that temporary withdrawal from the Convention was one option being considered by the UK government in its efforts to deport the Islamic cleric Omar Mohammed Othman (also known as Abu Qatada). Two members of the Commission tasked with investigating the creation of a UK Bill of Rights advocated withdrawal from the Convention unless the Court ceased its ‘judicially activist approach’ (p. 182).
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21 April 2011 by Adam Wagner
This has been an interesting week for the continuing “debate” over the future of the European Court of Human Rights. Stay tuned for an explanation of the quotation marks.
First, Dominic Raab MP has released a pamphlet with the think-tank CIVITAS entitled Strasbourg in the Dock. Raab, a former lawyer, has been a vocal opponent of the European Court of Human Right as well as the Human Rights Act. The pamphlet can be read here and the press release and summary can be found here. He finds some of the European judges are “woefully lacking in experience” and, as a consequence, “are undermining the credibility and value of the Court“.
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15 October 2015 by Fraser Simpson
Image: Guardian
Shahid v. Scottish Ministers (Scotland), [2015] UKSC 58 – read judgment.
The Supreme Court has held that the continuation of a prisoner’s solitary confinement for safety reasons was not authorised under domestic rules and incompatible with the right to private life under Article 8 of the European Convention on Human Rights (“ECHR”).
by Fraser Simpson
Facts
The appellant, Imran Shahid, was first placed in solitary confinement in October 2005. His confinement was continued following his conviction for the racially motivated murder of a 15-year-old boy. The decision was based on threats made against the appellant. This period of solitary confinement continued until his eventual reintegration into the general prison population in August 2010.
The appellant had originally challenged his continued segregation in both the Outer and Inner Houses of the Court of Session (see this previous post for a discussion of the Inner House’s opinion). The Scottish courts refused his complaints and held that his prolonged solitary confinement accorded with both domestic law and Articles 3 and 8, ECHR.
The Supreme Court, in a unanimous decision delivered by Lord Reed, held that not only was the continued segregation invalid according to domestic law, but it also amounted to a violation of Article 8.
Compliance with domestic law?
The relevant rules concerning the power to place a prisoner in solitary confinement were, at the relevant time, contained in the Prisons and Young Offenders Institutions (Scotland) Rules 1994 and 2006. Despite the amendment of the Rules during the relevant period, the core provisions relating to the grounds for segregation and the time limits imposed remained the same. The purpose of Shahid’s segregation – to maintain good order and protect him – was not in question. Shahid instead contended that certain time limits contained within the Prison Rules relating to the continuation of a period of segregation had not been complied with. The relevant provision, Rule 94(5), states:
“A prisoner who has been removed from association … shall not be subject to such removal for a period in excess of 72 hours from the time of the order, except where the Scottish Ministers have granted written authority … prior to the expiry of the said period of 72 hours.”
Three of the orders made authorising prolongation of Shahid’s segregation were made by the Scottish Ministers after the expiration of this 72-hour limit.
The lower courts considered that such delays did not impact upon the validity of the orders that authorised continued segregation. Importance was placed upon the relatively limited extent to which the orders were late (17, 44 and 47 hours) and the fact that the purpose of the reviews, to ensure that segregation was maintained for only as long as necessary, was not frustrated by such limited delays.
Lord Reed, adopting an alternative construction of the Prison Rules, held that any order made after the expiration of the 72-hour period was automatically invalid (see paragraphs 15-18 of the judgment). His conclusion that the late orders authorising continued segregation of the appellant were invalid, and that a period of 14 months of segregation therefore had no legal basis, is important in the context of the Article 8 challenge.
Article 8
The Scottish Ministers accepted that the placement of the appellant in solitary confinement was an interference with his right to respect for private life under Article 8. Consequently, it was for them to show that the measure was in accordance with the law, in pursuance of a legitimate aim, and a proportionate interference in light of the pursued aim.
Lord Reed was quick to point out that his previous conclusion, that the late authorisations had rendered invalid the subsequent segregation, would result in certain periods of the segregation not being “in accordance with the law”. Accordingly, such periods of segregation could not be justified under Article 8(2).
Lord Reed went on to consider that the appropriate prison authorities had not always been independently making the decisions to continue the segregation of the appellant but instead, on some occasions, had been unduly influenced by the decisions and recommendations of a non-statutory advisory body. The need for a statutory decision making power to be exercised by the individual, or body, that has been conferred such a power had not been satisfied (see R v. Deputy Governor of Parkhurst Prison Ex p Hague, [1992] 1 AC 58). Accordingly, there was a failure to satisfy the lawfulness criterion within Article 8(2).
The Supreme Court moved on to consider the proportionality of Shahid’s continued segregation. The lower courts, in holding that the continued segregation was proportionate, opined that it was the only practicable way of dealing with the threats made against the appellant. The Supreme Court, on the other hand, listed a number of potential alternatives to solitary confinement that could have achieved the aim of protecting the appellant from attacks, including relocating the appellant to another UK prison. Irrespective of such alternatives, the Supreme Court decided that earlier steps could have been taken to promote Shahid’s reintegration. A plan to reintegrate the prisoner had only been developed after four and a half years of almost continuous segregation. Failure to take such steps resulted in the segregation being disproportionate and a violation of Article 8.
However, the Supreme Court considered that the appellant had not suffered any prejudice. If the Article 8 violations had not occurred then there was no evidence to show he would have been returned to the general population sooner.
Additionally, the extent to which his right to respect for his private life under Article 8 had been infringed was limited considering the negative attitudes other prisoners harboured towards him.
Accordingly, the Supreme Court considered that there was no need to make an award for damages despite the appellant seeking £6,000.
Article 3
The appellant also complained that the segregation was incompatible with his right not to be subjected to inhuman or degrading treatment under Article 3, ECHR. The European Court of Human Rights has recognised the potentially damaging effect that continued solitary confinement can have upon the mental and social facilities of an individual (see Ahmad v United Kingdom, (2013) 56 EHRR 1, paragraph 207).
However, the use of such measures for disciplinary, security, or protective reasons does not automatically contravene Article 3. In assessing whether the measure was compatible with Article 3, the Supreme Court considered the conditions and duration of the detention as well as the motivation for such a measure and its impact on the appellant.
The Court concluded that the measure did not attain the minimum level of severity to engage Article 3. The appellant was kept in suitable accommodation and the ability to exercise, receive visitors and associate with other prisoners pointed towards the treatment falling short of the Article 3 threshold. Despite the length of the segregation extending beyond four years, the fact it was imposed in the interests of the appellant’s safety were also of relevance.
Comment
The use of segregation in prisons should always be considered as a serious measure. Indeed, the Council of Europe’s Committee on the Prevention of Torture advises that for punitive purposes any stint should be limited to 14 days (see the CPT’s 21st General Report, (2011), page 40).
The strict interpretation of the 72-hour limitation within the Prison Rules by Lord Reed results in appropriate weight being attributed to the decision to segregate. As Lord Reed pointed out, this allows early consideration of the necessity of the segregation by officials external to the prison. This provides an important procedural safeguard, even at an early stage of segregation.
However, if the 72-hour limit were strictly applied in this instance, there could be negative practical repercussions. When continued segregation was without legal basis, would the prison officials be under a duty to return the appellant to general population even if this would endanger his safety? An analogous situation was raised by the Inner House in support of their interpretation of the Prison Rules (paragraph 24 of the Inner House Judgment). Lord Reed answered these concerns by outlining that the officials would also be subject to a duty under s.6(1) of the Human Rights Act to secure the safety of the prisoner in accordance with Article 2 and 3, ECHR. If there was a serious risk to life then the prisoner could remain in segregation in accordance with domestic law using such protections as justification.
Interestingly, such an argument was not substantively raised on behalf of the Scottish Ministers in order to justify the periods for which there was a lack of authorisation.
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20 January 2011 by Adam Wagner
The government has reportedly revised its plan to allow prisoners serving less than 4 years to vote in elections. Ministers now seek to limit the right to those sentenced to a year or less.
A looming presence in the debate has been the much-touted figure of £160m compensation which the prime minister has warned Parliament that the UK will have to pay if it does not comply with a 6-year-old judgment of the European Court of Human Rights (see my last post on the issue for the full background). But where did this figure arise from? And is it right?
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18 December 2015 by Fraser Simpson
Photo credit: Guardian
Ansari, Re Judicial Review, [2015] CSOH 168 – read judgment.
The Outer House of the Court of Session has held that the duty imposed under Article 5, ECHR to afford prisoners a reasonable opportunity to rehabilitate themselves, recognised by the Supreme Court in R (on the application Haney and Others) v. The Secretary of State for Justice, [2014] UKSC 66, does not extend to local authorities.
by Fraser Simpson
Background
The petitioner, Yousef Ansari, is currently serving a sentence of life imprisonment. The punitive part of his sentence, set at nine years, expired in March 2005. In his petition for judicial review, Mr Ansari claimed that the local authority, Aberdeen City Council, and the Scottish Government, had failed to afford him a reasonable opportunity to rehabilitate himself. A duty to offer opportunities for rehabilitation had been previously recognised as implicit in the scheme of Article 5 by the Supreme Court in Haney (see previous UKHRB post here). The hearing before Lord Glennie was restricted to the question whether the council owed such a duty.
Mr Ansari’s case
The starting point for the petitioner was the duty recognised in the Supreme Court decision in Haney. He argued that the duty required both the provision of opportunities for rehabilitation, which was the responsibility of the Scottish Ministers, and the provision of opportunities for the prisoner to demonstrate that they no longer posed an unacceptable risk to the public. This latter aspect of the Haney duty required the active cooperation of the local authority. Mr Ansari argued that Aberdeen City Council had failed to satisfy this duty. Whilst in the “Open Estate”, he was provided with the opportunity to return to the community – an important step in proving he no longer posed a threat. However, during this reintegration he was placed under extensive supervision by the local authority which, in his submission, undermined his ability to demonstrate he posed a reduced risk to the public.
Additionally, his ability to be temporarily released into the community was contingent upon the ability to provide the local authority with an appropriate “home leave” address. Mr Ansari claimed that during the vetting process the local authority had incorrectly considered his brother’s residence as inappropriate. Further, if no other address had been suitable, the local authority had a duty to provide him with accommodation under Part II, Housing (Scotland) Act 1987. On his case, these shortcomings had prevented Mr Ansari from temporarily returning to the community and therefore denied him the opportunity to demonstrate that he posed a reduced risk to the public.
In the alternative, Mr Ansari submitted that the duty would, in any event, extend to the local authority. The duty was imposed upon the “state” and, by virtue of s.6, Human Rights Act 1998, this would extend to public bodies such as Aberdeen City Council. As a result, they were bound by the requirements of Article 5, which included the duty recognised in Haney.
Imposing the Haney duty on the local authority, from the petitioner’s perspective, was a natural conclusion. Whilst the functions of the Scottish Ministers and the local authority differed, they both played an important role in the rehabilitation of Mr Ansari. A number of functions of the local authority, especially in the process relating to preparation for release, could not be carried out by the Scottish Ministers acting through the Scottish Prison Service. Extending the duty to provide reasonable opportunities for rehabilitation to the local authority would ensure that the Haney duty was “practical and effective” due to the important “real and practical sense” in which the local authority was involved in Mr Ansari’s rehabilitation.
The City Council’s submissions
The first respondent submitted that they did not owe the petitioner any duty under Article 5 as interpreted in Haney. The duty to provide opportunities for rehabilitation is not a freestanding duty, but instead stems from the decision of the state to detain an individual following conviction by a competent court. In James, Wells, and Lee v. the United Kingdom, [2012] ECHR 1706, the European Court of Human Rights recognised that part of the purpose of an indeterminate sentence was to rehabilitate the prisoner. Consequently, the Supreme Court in Haney recognised the need to provide reasonable opportunities to rehabilitate in the event that the state attempts to justify continued detention under Article 5(1)(a). The first respondent submitted that as they had no power to detain the prisoner, or order his release, it would be inappropriate to impose such a duty upon them.
Decision
Lord Glennie held that the duty recognised in Haney could not be extended to Aberdeen City Council. In line with submissions made by counsel for the first respondent, Lord Glennie held that the Haney duty is only imposed on states in the event that they have detained a prisoner and rely upon Article 5(1)(a) as justification. However, the local authority is in an entirely different position and has no powers to detain or release the prisoner. The first respondent was not required to justify the detention of the prisoner and, therefore, there was no reason to impose the Haney duty upon them.
In the petitioner’s submissions, reference was made to Lord Glennie’s decision in Reid, Re Judicial Review, [2015] CSOH 84 (read previous UKHRB post here). In Reid, Lord Glennie held that as part of the duty recognised in Haney, the Scottish Ministers had a duty to take “reasonable steps to procure” the cooperation of the local authority during the rehabilitation process (see paragraph 30). Lord Glennie clarified that in providing various services to the Scottish Ministers that aid the rehabilitation process, the local authority could only be considered to owe a duty to the Scottish Ministers, not the individual prisoner. As a result, Reid provided no support for the submission that the Haney duty should be extended to the local authority.
Lord Glennie also noted that certain statutes may impose specific duties upon a local authority. For example, s.27, Social Work (Scotland) Act 1968 (detailing the functions relating to the supervision and care of those released from prison) and the Housing (Scotland) Act 1987 outlined relevant functions and duties of the local authority. However, these did not assist the argument that the general Haney duty arising from the operation of Article 5 could extend to the local authority. These duties existed independently from any duty to afford opportunities for rehabilitation. Any failures relating to these duties could be challenged by Mr Ansari in separate proceedings.
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16 October 2013 by Adam Wagner
R (on the application of Chester) (Appellant) v Secretary of State for Justice (Respondent), McGeoch (AP) (Appellant) v The Lord President of the Council and another (Respondents) (Scotland) [2013] UKSC 63 – read judgment / press summary
The Lord Chancellor Chris Grayling recently told The Spectator that he wants “to see our Supreme Court being supreme again“. In light of his respect for the court, he should read today’s judgment on prisoner votes very carefully indeed, as should David Cameron who has already endorsed the decision as a “great victory for common sense”.
The Supreme Court dismissed two claims by prisoners who argued their European Convention (Chester) and European Union (McGeogh) rights were being breached because they weren’t allowed to vote in various elections. I won’t summarise the detail of their arguments, which can be found in our previous posts on the Court of Appeal and Scottish Outer House Court of Session decisions.
We will aim to cover the substance of the decisions in due course. But what I find really interesting was the Justices’ views on the European Court’s various decisions on prisoner votes, which the Government argued were poorly reasoned.
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25 October 2012 by Rosalind English
Whiston, R (on the application of) v Secretary of State for Justice – read judgment
When a prisoner is recalled from home detention curfew he does not suffer a fresh deprivation of liberty so as to engage Article 5(4)of the Convention.
Since this part of Article 5 confers a right on any person who is detained to challenge the legality of the detention determined by a body sufficiently judicial in character, the lack of review would render the decision unlawful. As Lord Elias says in his opening remarks,
This is one of a growing number of cases which have bedevilled the appellate courts on the question whether and when decisions affecting prison detention engage that Article. Problems arise because of the combination of general and imprecise Strasbourg principles and the complexity of English sentencing practices.
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27 May 2012 by Wessen Jazrawi
“I believe that it should be a matter for parliament to decide, not a foreign court.”
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found here. You can also find our table of human rights cases here and previous roundups here.
The biggest news of the week this week was the decision of the European Court of Human Rights in the Scoppola v Italy case; the latest in the long-running prisoner voting saga. The Court refused to overrule its 2005 decision in Hirst No. 2 but also found that proportionality does not require individual determination by a judge on a case by case basis. There was predictable anger from the tabloid press plus some more cogent articles, some of which have been set out below.
by Wessen Jazrawi
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20 September 2011 by Graeme Hall
As we recently posted, the UK Commission on a Bill of Rights has published its interim advice to Government on reform of the European Court of Human Rights. The Commission made recommendations to achieve the “effective functioning of the Court over the long term”, following which Joshua Rozenberg stated that “everybody now agrees on the need for fundamental reform. It has to happen. And it will.”
But if there is such agreement, can the Commission’s recommendations produce any meaningful reform? Or do the proposals simply rehash old ideas?
by Graeme Hall
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1 August 2014 by Guest Contributor
Angela Patrick, Director of Human Rights Policy at JUSTICE provides a summary of the House of Lords debate on Government proposals to reform judicial review in Part 4 of the Criminal Justice and Courts Bill.
As the House of Lords closes its gilded doors for the long recess, the Westminster village enters its equivalent of the school holidays. Yet, as Ministers pack their red boxes and MPs head diligently back to their constituency business, the House of Lords – debating the Committee Stage of controversial judicial review proposals in Part 4 of the Criminal Justice and Courts Bill – may have suggested that officials and Ministers yet have some homework to do.
Summing up the debate – and thanking Lord Faulks, the Minister responding to a barrage of criticism from all benches, for his efforts – Lord Pannick acknowledged that many of the Government’s proposals on judicial review had been driven by the Secretary of State for Justice and Lord Chancellor, Chris Grayling. He suggested that both Ministers would do well to get together over the summer to digest the Peers’ concerns – perhaps on a convenient beach. There were so many flaws in the Bill that Lord Faulks should pack a red pen with his sunscreen (HL Deb, 30 July 2014, Col 1650).
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3 October 2013 by David Hart KC
Mousa and others, R (on the application of) v Secretary of State for Defence [2013] EWHC 2941 (Admin) – read judgment
A postscript to Rosalind English’s post of today. In the substantive judgment (see Adam Wagner’s post on the order), the Divisional Court decided two main issues, one relating to the independence of the Iraq Historic Allegations Team, and one relating to the extent to which an inquiry conducted through IHAT complied with Article 2 of the ECHR. The Secretary of State succeeded on the first issue, whereas the claimant succeeded substantially on the second issue relating to the need for a different form of inquiry. Hence there was no overall winner; the Secretary of State won on the first issue and the claimant succeeded substantially on the second issue. But more time was spent on the first issue.
What then to do about costs? And why is that interesting – promise you, it is important.
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22 March 2017 by Guest Contributor
In the almost three years since the Supreme Court delivered its reasons in Nicklinson (in which a majority refused to issue a declaration that the blanket ban on assisted suicide in s 2(1) of the Suicide Act 1961 was incompatible with Article 8 of the European Convention on Human Rights (‘ECHR’)), similar questions of compatibility concerning analogous bans have been considered by courts in Canada, South Africa and New Zealand. Additionally, California and Colorado have introduced legislation permitting physician-assisted suicide (taking the total to six States in the US which permit physician-assisted suicide), France has introduced legislation enabling patients to request terminal sedation, and Germany’s Federal Administrative Court this month handed down judgment confirming that the right to self-determination encompasses a right of the ‘seriously and incurably ill’ to, in ‘exceptional circumstances’, access narcotics so as to suicide.
Given news of a new challenge by Noel Conway to the compatibility of s 2(1) of the Suicide Act with Article 8 (the application for permission to review was heard by the Divisional Court yesterday with judgment reserved), it is, then, a propitious time to re-examine a particularly dubious aspect of the majority’s reasoning in Nicklinson namely, its characterisation of the declaratory power, not least given the potential for such reasoning to deleteriously affect the new challenge.
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18 November 2012 by Adam Wagner
It is being reported that Parliament will, after all, get the opportunity to decide whether the blanket ban on convicted prisoners being able to vote will be lifted. MPs could get three options to choose from, including removing the ban for prisoners serving six months or less and those serving four years or less. A third option will be to maintain the status quo, with no convicted prisoners being able to vote.
The crucial question is: will this be enough to satisfy the Council of Europe, which monitors compliance with judgments of the European Court of Human Rights? The Government appears to think so. For my part, I am not so sure. To explain why, it is important to get a few of the facts right first.
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