Prisoners


Shortcomings found in Scottish police and prison establishments

30 October 2019 by

Report to the Government of the United Kingdom on the visit to the United Kingdom carried out by the CPT from 17 to 25 October 2018

The Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) recently published a report on police and prison facilities in Scotland after its visit in 2018. 

This was an ad hoc visit and it aimed to evaluate the developments made since the CPT’s last visit to Scotland in 2012. The CPT’s delegation visited five police custody facilities and five prisons across Scotland. The report covers several areas, including the treatment of detained persons in police facilities, the conditions of male prisons, inmates in segregation and those on remand. It also focused on female prisons in general, and healthcare. 

Police custody facilities

Overall, the CPT’s delegation was satisfied by the conditions and treatment in the police facilities that it visited. Every detained person that they interviewed reported that they had been correctly treated whilst in custody. However, an area of concern was the number of detainees who made allegations that they had suffered ill-treatment at the time of their arrest. Around one third of the detained persons alleged that they experienced excessively tight handcuffing and physical abuse by police officers. Several also claimed that they experienced this treatment despite not resisting arrest. The delegation reported that many of those making the allegations had visible signs of injury, such as bruises, scratches, and swelling.


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Court of Session: Partners in Crime Have no ‘Family Life’

29 October 2015 by

O’Neill and Lauchlan v Scottish Ministers [2015] CSOH 93, 28th October 2015 – read judgment

The Outer House of the Court of Session has dismissed challenges brought by two convicted paedophiles to the Scottish Prison Service’s refusal to allow them to visit each other in prison. The decisions were challenged under articles 8 and 14 ECHR, as it was claimed that the prisoners were in a homosexual relationship.
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Unauthorised solitary confinement incompatible with prisoner’s rights

15 October 2015 by

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.

The Round-Up: Lawyers lament UK’s refugee response

12 October 2015 by

imgres-7This week’s Round-up is brought to you by Hannah Lynes.

In the news

  • Call from legal community for urgent action on refugee crisis

More than 300 lawyers have signed a statement denouncing the Government’s response to the Syrian refugee crisis as “deeply inadequate”.

The document, whose signatories include former President of the Supreme Court, Lord Phillips, three former Law Lords and over 100 Queen’s Counsel, describes Prime Minister David Cameron’s offer to resettle 20,000 Syrian refugees over 5 years as “too low, too slow and too narrow.”
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‘Limbs in the Loch’ killer wins Article 8 claim

24 July 2015 by

Beggs v Scottish Ministers [2015] CSOH 98, 21st July 2015 – read judgment

The Court of Session’s first instance chamber – the Outer House – has held that the way in which the Scottish Prison Service (SPS) handled a prisoner’s correspondence breached Article 8 of the European Convention on Human Rights.

The petitioner, William Beggs, was a prisoner at HMP Glenochil until March 2013 and thereafter at HMP Edinburgh. In 2001 he was sentenced to life imprisonment for the 1999 murder of 18 year-old Barry Wallace, whose dismembered body parts Beggs disposed of in Loch Lomond.
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Human rights and public law challenge to prisoner’s release conditions fails

2 March 2014 by

Prisoners releaseR(Gul) v Secretary of State for Justice [2014] EWHC 373 (Admin) – read judgment

Mr Gul had been imprisoned for a period, on 24 February 2011, for disseminating terrorist publications. When he was released on 6 July 2012, this was under licence, as is common following the release of dangerous prisoners. Mr Gul challenged some of the conditions of his licence by judicial review. The court rejected his challenge.

The purposes of releasing offenders from prison on licence, allowing them liberty under conditions to be supervised by a probation officer, are clear enough – protecting the public, preventing reoffending, and securing the successful reintegration of the prisoner into the community, as set out in Section 250 (8) Criminal Justice Act 2003.

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Guidance from the Supreme Court on human rights damages

2 May 2013 by

prison2aFaulkner, R (on the application of ) v  Secretary of State for Justice and another [2013] UKSC 23 – read judgment

The Supreme Court has taken a fresh look at what is meant by the Human Rights Act exhortation to take Strasbourg jurisprudence “into account” when fashioning remedies for violations of Convention rights, in this case the right not to be arbitrarily detained under Article 5.

These appeals concerned the circumstances in which a prisoner serving a life sentence or an indeterminate sentence of imprisonment for public protection (“IPP”), who has served the minimum period specified for the purposes of retribution and deterrence (the “tariff”), and whose further detention is justified only if it is necessary for the protection of the public, should be awarded damages for delay in reviewing the need for further detention following the expiry of the tariff.

Appellate courts do not ordinarily interfere with an award of damages simply because they would have awarded a different figure if they had tried the case. However, as the Supreme Court was being asked in this case to give guidance on quantum, the Court determined the level of the award that would adequately compensate the appellants.
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Courts should take note of Strasboug’s doctrine of deference

6 July 2012 by

R(on the application of S and KF) v Secretary of State for Justice [2012] EWHC 1810 (Admin)- read judgment

This case about prisoner’s pay provides an interesting up to date analysis of the role of the doctrine of “margin of appreciation” and its applicability in domestic courts.

Margin of appreciation is a doctrine of an international court: it recognises a certain distance of judgment between the Strasbourg court’s overall apprehension of the Convention principles and their application in practice by the national authorities. In theory it has no application in domestic disputes but ever since the Human Rights Act introduced Convention rights into domestic law there has been an ongoing debate about its applicability at a local level. This case demonstrates the importance of its role in the assessment, by the courts, of the compatibility of laws and rules with Convention rights.


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

16 April 2012 by

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.
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Strasbourg is not the Vatican…yet.

6 December 2011 by

Behind the Times paywall Anthony Lester today declares that “Sniping at Strasbourg will only hinder reform”. In his guest column, he says that Court is suffering unfair criticism from “sections of the British media” and “politicians who accuse it of over-reaching its power”. That may well be the case, but the most searing and authoritative criticism comes not from politicians or the press but from Lord Lester’s own profession – see Jonathan Sumption QC’s recent broadside (and our post) and Lord Hoffmann’s much-discussed analysis (posted here).  

If the Court is indeed hobbled by unfair squibs and arrows from a resentful sector of the British populace, as Lord Lester suggests, why is the prisoner votes example the only one he can come up with? That is an important fight, at least from a constitutional angle, but not the only flashpoint;  the Court’s tendency to act as fourth instance appeal tribunal particularly on deportation and terrorism cases is arguably far more “dangerous” and certainly of concern to more people than votes for prisoners.
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Challenge to intelligence services guidance succeeds in part – Shaheen Rahman

6 October 2011 by

Equality and Human Rights Commission v Prime Minister & Ors [2011] EWHC 2401 (Admin) – Read judgment

A challenge to published guidance for intelligence officers interviewing detainees overseas has been partially successful.

Mr Al Bazzouni and the EHRC argued that the guidance as to what officers should do if they suspect detainees might be subject to torture or to cruel, inhuman or degrading treatment or punishment (“CIDT”) was unlawful.

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

22 June 2011 by

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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Failed Binyam Mohamed privacy case highlights open justice trend

11 October 2010 by

Ex-Guantanamo Bay prisoner Binyam Mohamed failed this weekend to prevent the Daily Mail reporting that he had been granted permanent residency in Britain. The case highlights a growing trend for the courts to enforce open justice in two significant ways, both which rely heavily on protections guaranteed under human rights law.

Interestingly, two crucial aspects of open justice have been reinforced as a result of  a case involving Mohamed himself. In fact, the open justice aspects of Mohamed’s case against the security services will probably emerge as amongst the most important legal rulings arising from the ‘war on terror’ era. Unfortunately for him, this may have had the unintended consequence of destroying any chances of maintaining his privacy.

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Does Nick Clegg want prisoners to vote?

20 September 2010 by

Updated, Tue 21 Sep | It is being reported that Nick Clegg, the deputy prime minister, is looking to end the ban on prisoners voting in elections. If the law were to change, it would represent the end of a very long road for campaigners. However, they have been waiting since 2005 and may well be waiting for longer yet.

The Times apparently reported this morning (I haven’t confirmed this as it is behind a pay wall) that the deputy prime minister is backing plans for prisoner enfranchisement.

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