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UK Human Rights Blog - 1 Crown Office Row
Search Results for: prisoners/page/28/ministers have been procrastinating on the issue, fearing that it will prove unpopular with the electorate.
The Parliamentary Joint Committee on the Draft Voting Eligibility (Prisoners) Bill today published its report – you can read it in full here (PDF/HTML/conclusions). I gave evidence to the committee a few weeks ago – you can watch again here.
The report strongly recommends enacting legislation so that ” all prisoners serving sentences of 12 months or less should be entitled to vote in all UK parliamentary, local and European elections”. The recommendation could not be more emphatic, with the committee concluding, amongst other things:
Beggs, Re Judicial Review, [2016] CSOH 153 – read judgment.
The refusal to allow a Scottish prisoner to purchase a laptop for use in prison has been successfully challenged in the Outer House of the Court of Session. However, the Outer House decision focused on the flawed decision making process as opposed to the substantive conclusion reached by prison authorities.
by Fraser Simpson
Background
In 2001, the petitioner was convicted of murder and sentenced to life imprisonment. Whilst in prison, the petitioner, Mr Beggs, made a number of requests to be allowed to purchase a laptop. Mr Beggs intended for this laptop to be used to prepare responses to his lawyers in connection to a number of civil and criminal court actions in which he was involved. Additionally, Mr Beggs intended for the laptop to be used for educational purposes. However, each request made by Mr Beggs was refused.
This issue had been raised as early as 2002. The Scottish Prison Complaints Commissioner had stated that Mr Beggs “is a highly educated, intelligent man whose literacy is excellent”. The formal recommendations stemming from the Commissioner’s consideration of the matter was that Mr Beggs should be provided with a word processor and a printer to assist with his legal casework. However, no such access was forthcoming. As a result, Mr Beggs raised a first set of judicial review proceedings. Such proceedings were halted prior to the first hearing after the authorities agreed to provide computer facilities and a printer. This arrangement between Mr Beggs and the authorities at HMP Peterhead did not operate smoothly. Mr Beggs was allowed to access a communal laptop provided by the prison. However, another prisoner was often using this laptop. As a result, Mr Beggs made a request for permissions to have his own personal laptop.
Scottish Policy on personal laptops
The Governors and Managers Action Notices 84A of 1998 and 15A of 1999 (“GMA 1998” and “GMA 1999”) are the relevant policy documents covering prisoner ownership of computers/word processors. Under GMA 1998 there was a prohibition on prisoners in closed establishments from owning such devices (which would include laptops). However, GMA 1999 relaxed this position and allowed a prisoner to own a laptop in “exceptional cases” if “compelling reasons” had been shown. Additionally, there was the need to demonstrate that any security concerns could be adequately addressed.
This scheme for ownership of laptops operated separately from the various schemes allowing prisoners to access prison-owned laptops. The relevant protocol was most recently updated in March 2013. It only afforded prisoners access for legal work and required completion of a written application form. Access would not be provided unless the individual could show “real prejudice to his case” if access were restricted. Additionally, resources were limited as prisons only owned a certain number of laptops (which cost £1,000 to purchase). All in all, the scheme for accessing prison owned laptops was very restrictive and of little practical use.
Requests for a laptop
Mr Beggs initial request to the governor of HMP Peterhead was refused. Whilst recognising that “compelling circumstances” under GMA 1999 existed to depart from the general ban of laptops contained in GMA 1998, the governor refused the request due to the fact that the protocol for accessing communal computer equipment adequately met Mr Beggs’ needs.
Mr Beggs made a number of similar requests following this initial refusal. All requests were unsuccessful and often referenced the fact that the ability to access a communal laptop was sufficient.
In March 2014, having been moved to HMP Edinburgh, the petitioner made another request to be allowed a laptop. Again, he emphasised that a laptop was necessary to allow him manage the vast amount of legal documents that had amassed from various legal actions and also to allow him to further his academic interests. The governor of HMP Edinburgh refused this request. This time, Mr Beggs’ request was refused due to a failure to show that “exceptional circumstances” justifying the provision of a laptop existed as required under GMA 1999. The governor also noted that there were other individuals in the prison who were able to manage their cases without utilising a laptop.
It is this decision of March 2014 that the petitioner sought to have judicially reviewed.
Outer House Decision
Lord Malcolm began his decision by considering the relevant policy documents. As discussed above, GMA 1998 and 1999 established a system that required the individual to show “compelling circumstances” to justify departing from the general ban on prisoners in closed establishments owning laptops and that the relevant security concerns could be addressed. Lord Malcolm noted that only one individual had previously applied for a personal laptop, namely the man convicted of the Lockerbie bombings, Abdelbaset Ali Mohmed al-Megrahi. he had been allowed a laptop. Accordingly, it was clear that the relevant security concerns could be addressed.
Further, the existence of prison-owned laptops was irrelevant. The protocol allowing access to communal laptops existed independently of the scheme for personal laptops under GMA 1998 and 1999. The “very restrictive” prison laptop protocol could not be relied upon as a justification for refusing a personal laptop (despite the fact that such reasoning had been adopted by numerous decision makers in response to Mr Beggs’ previous requests prior to March 2014).
In considering the specific refusal reviewed by Mr Beggs, that of March 2014, Lord Malcolm noted that the governor of HMP Edinburgh merely stated that the petitioner’s circumstances were not “exceptional” and therefore there was no need to provide a personal laptop. But Lord Malcolm, whilst not explicitly disagreeing with the conclusion, empathised with Mr Beggs. Due to a number of factors, including the early positive response of the Scottish Prisons Complaints Commissioner, the undertaking agreed in the context of the first judicial review proceedings, and the initial decision of the governor of HMP Peterhead that “compelling circumstances” existed, Mr Beggs could reasonably expect his position to be considered “exceptional”. A decision that all of the above, amongst other considerations, did not amount to “compelling circumstances” should be be afforded “a more considered, detailed, and reasoned response than anything provided [to Mr Beggs] so far”.
As a result, Lord Malcolm reduced the decision of March 2014 and all subsequent decisions.
Comment
Ultimately, this decision of the Outer House relates purely to the decision making process adopted by the prison authorities. It’s easy to have sympathy with Mr Beggs. Despite previous assurances and, at first glance, clear “exceptional circumstances” he was repeatedly refused permission to buy his own personal laptop. These refusals included no reasons which effectively prevented Mr Beggs from being able to assess the height of the hurdle he had to clear in order to be successful.
The result of this judgment is that the governor of HMP Edinburgh will have to consider Mr Begg’s request afresh. In considering the substantive question of whether Mr Begg’s should be allowed a laptop there appears a number of factors in favour of granting permission. First, Mr Beggs has always offered to pay for the laptop himself. Instead of costing the authorities money, this would actually result in less reliance being placed on the limited number of communal laptops provided by the prison. Secondly, there is clearly no insurmountable issues regarding security; Mr al-Megrahi was provided a laptop, and numerous prisoners use communal laptops under the relevant protocol whilst in closed establishments. Finally, it may appear inconsistent to allow prisoners to enjoy Xboxes and PlayStations, which can also potentially access wifi and are explicitly permitted, whilst refusing to allow Mr Beggs to purchase a laptop for legal and educational purposes.
The issues relating to imprisonment of individuals with mental health problems in the UK has attracted considerable attention, as the number of self-inflicted deaths has risen to the highest number since records began in 1978. With a rate of one prison suicide every three days, the director of the Howard League described the current rate as having reached “epidemic proportions”. The steady rise of deaths in custody has prompted a seriesofinquiries in recent years, and has drawn scrutiny from UN bodies and Special Procedures, and more recently, UN Member States as part of a periodic review of its human rights performance. However, despite this, little progress has been made.
In view of this reality, the Joint Committee on Human Rights launched an inquiry into mental health and deaths in prison in 2016 in order to determine whether a human rights based approach can help to prevent deaths in prison of individuals with mental health conditions i.e. one that satisfies acceptable standards as laid down by national and international human rights law, and recognises the particular position of vulnerability in which detainees are placed. The inquiry specifically looked at why previous recommendations had not been implemented. To this end, the Committee received both oral and written evidence from authors of the various domestic inquiry reports and individuals whose lives have been directly affected by the issue, including relatives of individuals who had committed suicide in prisons.
However, the inquiry was unexpectedly cut short as a result of the decision to call a snap election.
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 →
David Gale and his ex-wife Teresa were accused of drug trafficking, money laundering and tax evasion in the UK, Spain, Portugal and elsewhere. They were never convicted. The Serious Organised Crime Agency (SOCA), whose job it is to identify and recover the fruits of criminal activity, nonetheless sought to recover these fruits from David Gale and Teresa (‘the appellants’) by recovering property worth about £2 million. SOCA obtained an order to do so under Part 5 of the Proceeds of Crime Act 2002 (POCA).
The Outer House of the Court of Session has ruled that the right to privacy and medical confidentiality under Article 8 of the Convention entitles complainers to be heard and have legal representation before any orders are made for recovery of their medical records.
Factual circumstances and legal background
The petitioner, (‘WF’) was a complainer in domestic abuse proceedings against the accused. The accused sought to recover all medical, psychiatric and psychological records relating to WF from 2007 to 2014. WF sought legal aid to allow her to be represented at the hearing concerning the recovery of these documents, arguing that her rights under Article 8 of the Convention entitled her to participate. The application to the Scottish Legal Aid Board was refused as there was no provision in the relevant legislation or regulations for legal aid to be granted for such proceedings. A further application was then made to the Scottish Ministers, under s.4(2)(c) of the Legal Aid (Scotland) Act 1986, which allows legal aid to be granted in circumstances not covered by the rules. This application was also refused on the grounds that WF did not have the right to appear or be represented at the relevant hearing. The key issue which came before the Sheriff was therefore whether Article 8 gave the complainer the right to appear and be represented at the hearing concerning disclosure of her medical records. Continue reading →
On 17 February 2017, Bindmans LLP published an Opinion solicited from several leading authorities on EU law concerning Article 50 TEU. The so-dubbed ‘Three Knights Opinion’ put forward compelling legal arguments in support of why an Act of Parliament at the end of the Article 50 negotiation process is necessary in order to ensure that Brexit occurs in accordance with domestic and, by extension, EU law. These contentions, and Professor Elliot’s rebuttal, warrant careful consideration.
Welcome back to the UK Human Rights Roundup, your regular legal melting pot 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.
Not the right to life, but the right to die dominates the human rights headlines this week, with separate litigation in Strasbourg and the Strand. Commentary abounds on not just the ECHR’s role in domestic law, but how proposed reforms comply with EU law, particularly on the immigration front. Finally, a wide range of human rights approaches to much of the coalition’s plans for this Parliament.
This was a busy week. It saw the beginning of a nationwide vaccine roll-out and protracted negotiations in Brussels to stave off a no-deal Brexit (which remains a ‘high probability’ according to the Prime Minister). It also saw the Government announce the appointment of retired Court of Appeal judge Sir Peter Gross to lead the review of the application of the Human Rights Act 1998 in the UK Courts. This review will look at the relationship between UK courts and the European Court of Human Rights in Strasbourg; the impact of the Human Rights Act on the relationship between judiciary, executive, and Parliament; and the application of the Human Rights Act to actions taken outside the UK.
Moving to Brexit, the House of Lords voted on Monday to approve a Labour amendment to the Government’s Trade Bill. The amendment requires that Ministers undertake a human rights impact assessment for any trade deal, and must revoke an agreement in any case where potential genocide is found in a UK High Court ruling. The measure has been proposed in response to allegations that China is committing genocide against the Uighur Muslims in Xinjiang province.
Welcome back to the UK Human Rights Roundup, your regular assortment 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.
Not a particularly noisy week on the human rights front, but some interesting summaries and analyses. The House of Commons Library has compiled a summary of UK cases before Strasbourg since 1975, as well as on the prisoner voting issue. Some commentary on the issue of secret justice, in particular the role of the independent reviewer of terrorism legislation, and the powers of the court of protection in contempt proceedings.
by Daniel Isenberg
In the News
Legal Aid
The Legal Aid cuts are set to continue – see Adam Wagner’s post on the latest consultation, which closes on 4 June 2013. As with previous consultations, we will be collating responses so please send us yours (to email click here).
Brick Court Chambers Public Law Event 2014: Is it time for the common law to break free from Europe?
Last night’s discussion at Gray’s Inn Hall featured a panel with Dominic Grieve QC MP (formerly Attorney General), Lord Judge (formerly Lord Chief Justice), Bella Sankey (Policy Director, Liberty), Martin Howe QC (member of the Commission on a British Bill of Rights), David Anderson QC (Independent Reviewer of Terrorism Legislation), all chaired by Shaun Ley of the BBC.
The Conservative Party’s proposal which sparked off the debate was that the UK will withdraw from the European Convention on Human Rights after the 2015 election unless the European Council of Ministers accepts our proposal that our own common law and statute fulfils the UK’s international obligations.
Martin Howe, a QC most closely involved with this move, simply didn’t understand why it has caused such a “furore”. Other countries, like Canada and New Zealand, have statutes setting out human rights without having to belong to a regional system. What is so inadequate about the UK’s protection of rights that it should be shackled to Strasbourg, particularly with that court’s history of spending the past sixty years
inventing entirely new doctrines, not based on the wording of the Convention – in many respects contrary to its express wording
This is an intolerable situation, Howe believes, and it has to be resolved. Continue reading →
Lord Neuberger has published his long-awaited report on super-injunctions. His committee was set up in April 2010 in order to “examine the issues around the use of injunctions which bind the press and so-called ‘super-injunctions“.
In summary, the report emphasises the principles of open justice and the right to freedom of speech, and that courts should “ensure that any derogation from open justice is the minimum necessary to secure the proper administration of justice”. It recommends that Civil Procedure Rule 39.2 (concerning public hearings) should be amended to make reference to the strict necessity test.
The National DNA database has become another key human rights issue in the 2010 Election. It is by far the largest such database in the world, with over 1 in 10 people now on the database. The issue of whether innocent people will have their DNA retained has now become highly politicised.
The Tories have now dropped their opposition to the Crime and Security Bill 2010, which has since become law. They had initially opposed provisions which allowed the police to retain the DNA samples of innocent people for up to 6 years. However, they have pledged if elected to bring in early legislation to ensure the DNA profiles of innocent people accused by minor crimes would not be retained.
The Prime Minister and the Home Secretary recently accused the Tories of not being tough enough on crime, whilst appearing at a press conference with Linda Bowman, whose daughter was raped and murdered at age 18. Her killer was convicted in 2008 with the help of DNA evidence. Liberty, the civil liberties organisation, commented that Labour had deliberately confused the issue.
The Conservatives pledge in their manifesto to “Reform Labour’s DNA system with the slimmer and more efficient Scottish system as our model” and “Change the rules on the DNA database to allow a large number of innocent people to reclaim their DNA immediately”.
The Liberal Democrats agree they will “Remove innocent people from the police DNA database and stop storing DNA from innocent people and children in the future, too.”
For their part, Labour say they will “ensure that the most serious offenders are added to the database no matter where or when they were convicted – and retain for six years the DNA profiles of those arrested but not convicted.”
It is probably no coincidence that the criticism of the Tory policy coincides with the Government’s recent concession to strong criticism from the European Court of Human Rights (ECtHR).
Bancoult v. Foreign & Commonwealth Office, Divisional Court, Richards LJ and Mitting J, 11 June 2013 read judgment
The Divisional Court has now dismissed the claim by Mr Bancoult on behalf of the Chagossian islanders. He had challenged the designation of the waters around the islands as a “no take” Marine Protected Area, i.e. one which could not be fished.
Mr Bancoult said that the decision was flawed (i) by having an improper purpose (it would put paid to the Chagossians’ claims for resettlement); (ii) by inadequate consultation and (iii) by amounting to a breach of an EU obligation to promote the economic and social development of the islands. The Court ruled against all these claims.
The case has, to say the least, quite a back-story. It started with the Chagossians’ eviction from their islands in the Indian Ocean in the late 1960s and early 1970s, on which I have posted here, here, and, in Strasbourg, here. After a judgment from the courts in 2000, the Foreign Office accepted that the original law underlying their departure was unlawful, and agreed to investigate their possible resettlement on some of their islands.
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 government was on the defensive this week on a number of fronts. It suffered significant defeats in the House of Lords over its proposals for secret civil trials under the Justice and Security Bill. Prime Minister David Cameron has also received a barrage of criticism over his calls for tightening the criteria for judicial review applications. Meanwhile, the prisoner voting saga continues, with Justice Secretary Chris Grayling (on the eve of the deadline) giving Parliament (or, more accurately, a Parliamentary committee) three options on the issue. Meanwhile, a new criminal offence of stalking has been introduced.
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The Parliamentary Joint Committee on the Draft Voting Eligibility (Prisoners) Bill today published its report – you can read it in full here (PDF/HTML/conclusions). I gave evidence to the committee a few weeks ago – you can watch again here.
Gale & Anor v Serious Organised Crime Agency [2011] UKSC 49 – 
Welcome back to the UK Human Rights Roundup, your regular legal melting pot of human rights news. The full list of links can be found 
Welcome back to the UK Human Rights Roundup, your regular assortment of human rights news. The full list of links can be found 
Lord Neuberger has 
Welcome back to the UK Human Rights Roundup, your weekly bulletin of human rights news. The full list of links can be found 
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