The Garden Court Prison Law Team presents the fourth issue of its ‘Prison Law Bulletin’. The Bulletin is published in blog and newsletter format and contains a round-up of recent case law, both domestic & international. It sometimes features a comment and analysis section on a “hot topic”. This issue looks at the latest developments in domestic and Strasbourg case law and following on from our two previous features on prisoners’ voting rights in the UK and in other jurisdictions we consider the UK’s controversial position on votes for prisoners following the ECtHR judgments in Hirst (No. 2) and Scoppola.
Click here to read the last three bulletins
Round up of domestic case law
Parole Board
R (Foley) v Parole Board [2012] EWHC 2184 (Admin), 27 July 2012
Different tests for release on parole for determinate and indeterminate prisoners not justified, but did not breach Article 14.
The Claimant, Mrs Foley, challenged under Article 14 ECHR the fact that a different (and more stringent) test applied to parole decisions for prisoners serving long-term determinate sentences under the Criminal Justice Act 1991 (CJA 91) as compared to those serving indeterminate sentences. The Court held that applying a more stringent release test to determinate sentenced prisoners could not be objectively justified since such prisoners must be taken to represent a greater risk to the safety of others. However, the claim failed due to the binding House of Lords decision in R (Clift) v SSHD [2006] UKHL 54 that a distinction between prisoners based on determinate or indeterminate sentence type did not constitute ‘other status’ for the purpose of Article 14. Although the later decision of the ECHR in Clift v UK [2010] ECHR 1106 contradicted that ruling, the Court was bound by the decision of the House of Lords.
R (Weszka) v Parole Board [2012] EWHC 827 (Admin), 5 April 2012
Late admission of police dossier of unproven allegations was unfair.
The Claimant, Mr. Weszka, was recalled to prison following new charges of serious violence for which he was eventually acquitted but not re-released. He challenged the decision of the Parole Board to admit evidence including a dossier of police intelligence relating to unproven allegations of involvement in serious violent crime.
The Court held that the police intelligence contained allegations of serious wrongdoing, the provenance of the information was not provided and the material was disclosed on the day of the hearing. No directions had been sought in relation to its late admission and no assessment was made by the panel regarding its reliability. The procedure adopted was hence procedurally unfair and the Parole Board’s decision quashed.
R (McGetrick) v Parole Board [2012] EWHC 882 (Admin), 4 April 2012
(Appeal pending)
Parole Board had no discretion to exclude evidence given to it
Mr. McGetrick challenged the refusal of the Parole Board to direct his re-release following his recall on extended licence. At his Parole Board hearing the Secretary of State sought to introduce untried material relating to a CPS case summary of allegations that he had been involved in further offences for which he had never been charged.
The Court held that the evidence was admissible. Section 239(3) of the Criminal Justice Act 2003 (CJA 2003) requires the Parole Board ‘when dealing with cases’ to consider ‘any documents given to it’. This applies to both interlocutory and final hearings of the Parole Board. The Board cannot therefore exclude such documents under its inherent powers. The prohibition on pre-trial prosecution evidence in PSO 6000 relates only to offences for which the prisoner was convicted or pleaded guilty.
R (Rowe) v Parole Board [2012] EWHC 1272 (Admin), 2 April 2012
It was unfair not to provide a ‘gist’ of a non-disclosable victim impact statement.
It was conceded by the Parole Board that providing the panel chair with a non-disclosable victim impact statement on the day of the hearing and the failure to provide a ‘gist’ of the contents to the Claimant rendered the hearing unfair. This was not, however, an isolated incident and such production of statements ought to be timely. The fact that a prisoner did not request an adjournment of the Parole Board hearing did not mean that he had waived the right to challenge any defect in the hearing.
R (Sturnham) v Parole Board [2012] EWCA Civ 452, 23 February 2012
(this case has been appealed to the Supreme Court; judgment awaited)
Test for release for IPP prisoners was the same as for lifers; no damages for stress caused by delay in Parole process
Mr. Sturnham argued that the test for the release of an IPP prisoner should be read so as to mirror the test for the imposition of an IPP sentence and therefore be restricted to a risk ‘of further specified offences’. The Secretary of State cross-appealed an award of £300 damages made by the High Court for a six-month delay in his Parole Board hearing.
The Court of Appeal held that the test proposed by Mr Sturnham would distinguish IPP prisoners from life-sentenced prisoners when Parliament had not made any provisions for their differential treatment. There was no need for symmetry between the test for the imposition of an IPP and the test for release. Mr Sturnham’s appeal therefore failed.
The Court further held that in an Article 5(4) ECHR delay case, just satisfaction will normally be achieved by a declaration unless the claimant’s detention is extended by reason of the delay or the delay causes a diagnosable illness in the claimant. Cases where delay merely causes stress and anxiety will not generally attract compensation. The Secretary of State’s cross-appeal therefore succeeded.
R (NM) v Islington LBC [2012] EWHC 414 (Admin), 29 February 2012
Local authority not under duty to carry out s.47 NHSSA assessment for Parole Board hearing
NM is a post-tariff IPP prisoner with significant learning disabilities. He challenged the decision by the Social Services Department of Islington Council not to assess his needs under section 47 of the National Health Service and Community Care Act 1990 with a view to providing accommodation and support services should he be released from prison. The test in s. 47(1) is that a local authority shall assess the needs of any person ‘who may be in need of such [community care] services’. The words ‘may be in need’ are in the present tense and therefore cover cases of present need and a narrow penumbra of cases of reasonably predictable future need. Whilst a local authority should in appropriate cases make assessments under s.47 so as to assist the Parole Board, in the present case the prospects of the release of NM to Islington was too conditional and speculative to require a s.47 assessment.
R (Adetoro) v Secretary of State for Justice & The Parole Board [2012] EWHC 2576 (Admin), 26 September 2012
Secretary of State’s decision to rescind acceptance of Parole Board recommendation unlawful.
Mr. Adetoro, a Category A prisoner, challenged the Secretary of State’s decision not to accept the recommendation of the Parole Board that he be moved to open conditions. After 13 years in Category A conditions, the Parole Board recommended a direct transfer to open conditions. The Secretary of State initially accepted this decision, but staff at HMP Long Lartin expressed concern and the Secretary of State later attempted to rescind the initial acceptance of the Parole Board recommendation.
The Court held that the Secretary of State is not bound to follow the recommendation of the Parole Board, but a decision to depart from it must be reached via a fair process giving adequate reasons. In the present case, the initial acceptance reflected the outcome of the process of consideration of transfer. It was not lawful to issue a different decision within the same process without inviting submissions from those affected. Moreover, the decision to rescind the initial decision was both irrational and inadequately reasoned.
Recall
R (on the application of Stuart Whiston) v Secretary of State for Justice [2012] EWCA Civ 1374, 25 October 2012
Article 5(4) ECHR and recall from HDC
Article 5(4) ECHR does not apply to recall from Home Detention Curfew (HDC) in the same way as it would to recall after the custodial part of a sentence has expired. That is because recall during the custodial period does not constitute a fresh deprivation of liberty for the purposes of article 5(4) and thus does not trigger the right to a review by the Parole Board or any other judicial body. Detention on recall from HDC was justified simply by the original sentence, depending on the quality and nature of the licence conditions and the subsequent breach.
R (Boylan) v Parole Board [2012] EWHC 1233, 10 April 2012
Oral hearing for recall would not impact on decision reached.
Mr. Boylan challenged the decision of the Parole Board to refuse to hold an oral hearing following his recall on a 15-year determinate sentence. However, the thrust of the Parole Board decision was the need for further work to address cognitive deficits that should be undertaken in closed conditions. An oral hearing would have had no impact at all on that issue and the decision to refuse an oral hearing was therefore fair.
Haynes v Secretary of State for Justice Queen’s Bench Division, 25 July 2012 Unreported
Damages awarded for failure to give reasons for recall.
An award of £1,500 was appropriate for the breach of Article 5(2) ECHR – right to be informed of reasons for arrest – where a prisoner had not been informed of the reasons for his recall until 18 days after his return to prison.
Sentencing
Independent Safeguarding Authority v SB & Royal College of Nursing [2012] EWCA Civ 977, 18 July 2012
Upper Tribunal did not give proper weight to ISA decision to remove prisoner from Children’s Barred List.
SB was convicted of offences relating to internet child pornography. The Independent Safeguarding Authority appealed the decision of the Upper Tribunal (UT) to have his name removed from the Children’s Barred List, which prohibited him from carrying out regulated activities involving children. Under section 4(2) of the Safeguarding Vulnerable Groups Act 2006, an appeal to the UT against inclusion on the Children’s Barred List is permitted if the ISA has made an ‘error of law’ of ‘mistake of fact’; but, the UT may not consider ‘whether or not it is appropriate for an individual to be included in a barred list’. This does not, however, prevent the UT from determining the proportionality of placing an individual on the barred list, which may engage ECHR Article 8.Nonetheless the UT failed to accord appropriate weight to the ISA decision nor did it consider the factor of public confidence in the barred list procedure. The appeal was therefore allowed.
R (Woolley) v Ministry of Justice [2012] EWHC 293, 21 February 2012
Time spent in prison abroad awaiting extradition did not count towards default term for confiscation order.
Mr. Woolley was convicted of fraud and fled to Switzerland. In his absence a Confiscation Order for £9 million was made with a default term of four years. He argued that days served in prison in Switzerland pending his extradition should count towards the default term.
Section 49(2) of the Prison Act 1952 states that, unless the Secretary of State directs otherwise, no period during which a prisoner is unlawfully at large is to count towards his sentence. Whilst specific agreements in relation to extradition under a European Arrest Warrant (EAW) permit time served awaiting extradition to count towards sentence, this was irrelevant to non-EAW cases.
R v Mohammed Hanif Khan [2012] EWCA Crim 2361, 9 October 2012
IPP sentence replaced with extended licence where prisoner maintaining innocence was unlikely to be able to secure future release
Mr. K was convicted of child sex offences and given an IPP sentence with a minimum tariff of 8 years. He maintained his innocence and would therefore be ineligible for accredited interventions for sex offenders in custody and hence unlikely to be able to secure his release at a future Parole Board hearing. However, a pre-sentence report confirmed that he would be suitable for offending behaviour courses on licence some of which are compatible with a denial of guilt. He appealed against his sentence on the basis that IPP sentences are the last but one resort and that if an extended sentence will meet public protection then it ought to be the sentence of choice (Attorney General’s Reference No. 55 of 2008 (C and others) [2008] EWCA Crim 2790). The Court of Appeal replaced the IPP sentence with a 16 year determinate sentence with a 5 year extended licence.
The Appellant was represented by David Emanuel of Garden Court Chambers
R v David Oakes and Others [2012] EWCA Crim 2435, 21 November 2012
Whole life sentences were compatible with Article 3 ECHR, but only for exceptionally serious offences.
Five prisoners convicted of a variety of grave crimes appealed against their sentences of life imprisonment with a whole life minimum term. Reviewing the domestic and European case law, the court concluded that in principle the imposition of a whole life term was compatible with ECHR Article 3.Nonetheless such sentences were to be reserved for the few exceptionally serious offences where, even taking into account any mitigating features, the elements of punishment and retribution required a whole life order.
Whole life terms were upheld for Mr Oakes, who tortured and killed his ex-partner before shooting his daughter, and for Mr Stapleton, who randomly shot dead a complete stranger on the street. The other appellants had their whole life terms replaced with life sentences with specified minimum terms. This included Mr Roberts who was convicted of a series of violent rapes against 4 elderly victims. It would be ‘a very rare event indeed’ for a whole life term to be justified without a conviction for murder and a minimum term of 25 years was appropriate in his case.
The appellant Roberts was represented by Ali Naseem Bajwa QC and Stephanie Ward, both of Garden Court Chambers.
HDC/ROTL/Discrimination
R (Francis) v Secretary of State for Justice [2012] EWCA Civ 1200, 14 September 2012
It was a breach of duty by the prison service not to consider early release on Home Detention Curfew (HDC) in a case where a foreign national prisoner had been served with an IS91, which authorised detention under the UK Borders Act 2007 whilst deportation was being considered. However, F was not successful in her claim for loss of a chance of bail because bail was highly unlikely in the circumstances. Further, there was no false imprisonment or breach of Article 8 ECHR and F was not allowed to amend her claim to include a breach of Article 14 ECHR in combination with Article 5 ECHR because a distinction between foreign and national prisoners was justified. Therefore, the only remedy was the grant of a declaration that the policy concerning HDC for prisoners subject to administrative detention under the UK Borders Act (PSO 4630) was wrong in law, as decided by the Divisional Court below.
Jama v Ministry of Justice [2012] EWHC 533 (QB) (Manchester County Court)
A young offender incorrectly identified himself as a Somalian national rather than a British citizen. When he was recommended for release on HDC he was refused because it was thought that he was liable to deportation. He spent an extra 3 months in prison. The prison service failed to refer him to the Immigration and Nationality Directorate to check his immigration status, in breach of PSO 4630. However, there was no breach of Article 5 ECHR in combination with Article 14 and no race discrimination or negligence.
Stephen Simblet of Garden Court Chambers represented the Claimant
R (MP) v Secretary of State for Justice [2012] EWHC 214 (Admin), 13 February 2012
Restrictions relating to childcare resettlement leave unlawful
The Court held that it was unlawful to restrict childcare resettlement leave (CLR) to female prisoners who were within two years of their release date and had been allocated to open conditions. The court held that maintenance of the mother/child bond was not something that could be picked up in the last two years of a long sentence. PSO 6300, which governed release on temporary licence including CRL, was capable of being applied at any stage of the sentence, yet the policy had been misinterpreted by the Secretary of State. It was wrong to create an inflexible rule that required a prisoner to be within 2 years of release to be eligible for CRL. The best interests of the child should also be considered as part of the application of Article 8 ECHR.
Prison Conditions/IEP
R (King, Bourgass & Hussain) v Secretary of State for Justice [2012] EWCA Civ 376, 27 March 2012
Prisoners do not have a civil right to association
Association with other prisoners was a normal privilege rather than a right and it was subject to withdrawal in accordance with the Prison Rules. Article 6 ECHR was not engaged at the stages of the governor’s decision or the review board’s due to the factual matrix of the prison environment, which required urgent decisions to be made in a combustible setting. The fact that Article 8 ECHR was arguably engaged did not mean that the administrative decision-making of the governors and review boards was the determination of a civil right within Article 6 ECHR. Even if Article 8 ECHR was engaged, the procedure as a whole was Article 6 ECHR compliant because of the availability of judicial review, despite there being a lack of independence and impartiality within the prison processes. The appeals were dismissed.
R (NM) v Secretary of State for Justice [2012] EWCA Civ 1182 Court of Appeal (Civil Division), 12 September 2012
Internal investigation of prisoner sexual assault allegation lawful and no breach Article 3 ECHR
N, who had learning difficulties, claimed that he had been sexually assaulted by another prisoner (F). A formal investigation within the meaning of Prison Service Order 1300 did not take place. Rather, the matter was investigated by prison officers under the prison’s violence reduction strategy. N’s solicitors requested a PSO 1300 formal investigation. The Secretary of State refused, asserting that a sufficient investigation had taken place. N issued proceedings for judicial review. The Court concluded that the investigation had not been flawed and that decision was upheld on appeal. While there were faults in the investigation, including the investigating officers lack of knowledge about N’s disability and that the prisons disability policy should have led to the appointment of an appropriate adult for N, N was at all times able to consult his father and the penal reform charity and he could have, if he wished, brought civil proceedings against the state or criminal proceedings against F. There had been no breach by the state pursuant to Article 3 ECHR arising out of N’s vulnerabilities or a need for a formal investigation pursuant to the provisions of the PSO 1300.
R (S) v Secretary of State for Justice Queen’s Bench Division [2012] EWHC 1810 (Admin); [2012] Eq. L.R. 796, 3 July 2012
Deduction from prisoners’ earnings not in breach of Protocol 1 Article 1 ECHR and no evidence of sex discrimination
S and K applied for judicial review of two Prison Service Instructions (PSI 48/2011 and PSI 76/2011) relating to deductions from prisoners’ earnings. The Court held that a wide margin of appreciation applied, such that the PSIs or the exercise of Governor’s discretion following the guidance in them would not violate Protocol 1 Article 1 ECHR unless manifestly without reasonable foundation. In this case there was no violation of Protocol 1 Article 1 ECHR. Further, although K had argued that the impact of wage deductions on female prisoners was greater due to their special needs, the court held that there was no evidence of sex discrimination in applying the policy. The application was refused.
Harbinson’s (Mark) Application for Judicial Review, Re [2012] NIQB 38 QBD (Northern Ireland), 30 May 2012
Requiring admission of guilt in sentence plan was unfair whilst criminal appeal on-going
H was convicted of sex offences and was required to admit his guilt as part of his sentence plan. H was appealing his convictions and refused to admit guilt which led to his demotion from the enhanced regime to standard regime for failure to comply with his sentence plan. The Court held that the decision to demote H and to include in his sentence plan a condition of admitting guilt was unfair and had to be quashed because the prison service had neglected to differentiate between appellant and non-appellant prisoners and to consider the prospect that the appellant prisoner might ultimately be acquitted. Therefore, requiring an admission of guilt whilst the appeal process was taking place was irrational and unfair. The application was granted.
Conway, Re [2012] NICA 11 QBD (Northern Ireland), 8 may 2012
Searching of prisoners: Prison Rules comply with Article 8 ECHR
Rule 16(2) of the Prison Rules provided a clear legal basis for the full-body searching of prisoners who left and returned to the prison during their incarceration and would satisfy the demands of proportionality if it admitted flexibility to cater for special circumstances. The appellant prisoner argued that such searching in his case breached Article 8 ECHR. The case would be remitted to the judge in the court below who made the decision under challenge. He would have to consider, among other things, whether there was in fact total inflexibility on the part of the Prison Service in the application of the policy. The appeal was allowed.
R (Shutt) v Secretary of State for Justice [2012] EWHC 851 (Admin) QBD, 11 April 2012
National policy relating to the prison incentives and earned privileges scheme (PSI 11/2011) meant that convicted sex offenders who continued to deny their guilt would not be automatically denied enhanced status. However, a local prison points-based system that effectively imposed a blanket ban on such prisoners attaining enhanced status was found to be unlawful and in breach of the national framework. In this case, the application for judicial review was granted, although the Court found that no injustice had been suffered from the application of the unlawful local policy.
FGP v Serco [2012] EWHC 1804, 5 July 2012
The Claimant (F) had been detained at an immigration removal centre staffed by S and was restrained in handcuffs/chain when he attended at hospital. The court held that Serco had breached Article 3 ECHR because it had applied restraints when unnecessary. It had failed to appreciate that restraints should only be applied during treatment, or more generally while the detainee was an in-patient if it was regarded as necessary since no alternative was reasonably practicable. Although the Secretary of State could be criticised for not identifying as clearly as she should that there should be a presumption against restraints during treatment and consultation, that did not render the general policy under the Detention Service Order 08/2008 unlawful. Application granted in part.
Krolik v Poland Divisional Court [2012] EWHC 2357 (Admin), 17 August 2012
In six extradition appeals from District Judges, heard together, it was held that Polish prisons do not breach Article 3 ECHR standards. This case established guidance for similar appeals brought in future including the requirement that anyone seeking to raise an issue under Art 3 relying on Polish prison conditions must identify any new factual issues not considered in the instant appeal or earlier cases, otherwise the appeal will be dealt with briefly.
Categorisation
R (Fox) v Secretary of State for Justice [2012] EWHC 2411 (Admin) QBD, 26 July 2012
Oral hearing required
F had served 18 years of a life term, with a tariff of 10 years. On review, it was decided he should remain Category A. The Category A team considered that “there were no exceptional circumstances which necessitated an oral hearing in the interest of fairness”. He applied for judicial review of the decision to refuse an oral hearing. The court held that that ‘exceptionality test’ was wrong. Although oral hearings should be rare, in the circumstances, taking into account the prisoners age (68), term served and recommendations, procedural fairness required an oral hearing and the application was granted.
R (Lynch) v Secretary of State for the Home Department [2012] EWHC 1597 (Admin) QBD
Decision to refusal of oral hearing will not be interfered with by Court unless it was wrong (not unreasonable or irrational)
L had served 6 years of a life term, with a tariff of 15 years. On review it was decided he should remain Category A and an oral hearing was refused. He applied for a judicial review of that decision. The Court held that it would not interfere with the Categorisation decision unless it could be shown to be Wednesbury unreasonable. On the other hand, it would not interfere with the decision to refuse an oral hearing unless that decision was wrong (the test was not whether it was unreasonable or irrational). In this instance, there was no basis for allowing the application.
R (Bourke) v Secretary of State for Justice, 1 June 2012 Unreported, (Admin) QBD
Denial of guilt - no automatic entitlement to oral hearing
B had served about 16 years of a life term, with a tariff of 25 years. On review it was decided he should remain Category A and an oral hearing was refused. The review team concluded that he had excluded himself from risk reduction courses because he continued to deny guilt. He applied for a judicial review of that decision. The Court held that the team could not go behind the jury verdict and the mere denial of guilt did not automatically entitle a prisoner to an oral hearing. It was also noted that, if there had been an oral hearing, B would not have added anything of substance to his written representations and he was not due for parole for a number of years. The application was refused.
R (Jeremy) v Governor of Prescoed Prison [2012] EWHC 1036 (Admin) QBD, 3 April 2012
Recategorisation challenge failed; claims for damages require evidence that D has acted capriciously
J applied for judicial review of a decision of a prison governor refusing to review his summary recategorisation and reallocation from category D to C. He also claimed damages for mental distress and economic loss. The court concluded he was not entitled to judicial review or damages. No prisoner had yet been successful in claiming damages out of recategorisation decisions. Unless there was evidence that the defendant acted capriciously, such claims were likely to fail. On the facts, this application was refused.
R (Sams) v Ministry of Justice Queen’s Bench Division [2012] EWHC 562 (Admin)
A mistake as to the date that alleged prison incidents were said to have occurred, including an alleged escape plot, meaning they appeared more recent than they were, was not enough in conjunction with other matters, to quash a recategorisation decision. The failure to have a prison or deputy governor on the review panel was not raised as part of the initial challenge and so was not considered as part of the judicial review application.
European Court of Human Rights Cases
James, Wells and Lee v the United Kingdom (App 25119/09; 57715/09 and 57877/09), 18 September 2012
Indeterminate Sentences and Access to Courses: violation of Article 5(1) ECHR
The Applicants alleged that their detention in prison pursuant to indeterminate sentences following the expiry of their tariff periods was unlawful under Article 5(1) and that there was no meaningful review of the legality of their post-tariff detention by a body with the power to order their release, in violation of Article 5(4). The Court found a violation in respect of Article 5(1) in the case of all three applicants following the expiry of their tariff periods and until steps were taken to progress them through the prison system with a view to providing them with access to appropriate rehabilitative courses and that their detention at that time was arbitrary and unlawful. The Court had regard to: (1) the causal link between the continuing detention and the original sentence; (2) whether the detention complied with domestic law; and (3) whether the detention was free from arbitrariness. While the first of the two requirements were satisfied the third was not. In respect of the concept of ‘arbitrariness’ the Court considered (see paras 191-202): (i) whether there is any element of bad faith or deception on the part of the authorities; (ii) whether the order to detain and the execution of the detention genuinely conform with the purpose of the restrictions permitted by the relevant sub paragraph of Article 5(1); (iii) whether there is some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention; and (iv) whether there is a relationship of proportionality between the ground of detention relied upon and the detention in question. The Court found it “significant that the failure of the Secretary of State to anticipate the demands which would be placed on the prison system by the introduction of the IPP sentence was the subject of universal criticism in the domestic courts and resulted in a finding that he was in breach of his public law duty.” No violation of Article 5(4) was found in the cases of Wells and Lee because they “failed to establish that the combination of the Parole Board and judicial review proceedings could not have resulted in an order for their release.” James also complained of a violation of Article 5(5) as he was not compensated for his post-tariff detention. This element of the application was found to be manifestly ill-founded and was declared inadmissible.
Pete Weatherby QC of Garden Court Chambers represented the lead Applicant, James
Scoppola v Italy No. 3 (App 126/05) Grand Chamber, 22 May 2012
Indiscriminate disenfranchisement of all serving prisoners, irrespective of the nature or gravity of their offences, is incompatible with Article 3 of Protocol No. 1 ECHR
The Applicant complained that the ban on public office imposed on him as a result of his life sentence for murder had amounted to a permanent disenfranchisement. The UK government exercised their right to intervene in the case (Article 36(2) and Rule 44(1)(b)) and the Court was addressed by Dominic Grieve, UK Attorney General. The UK argued that the Grand Chamber findings in Hirst No. 2 were wrong and invited the Court to revisit the judgment and pressed the importance of State margin of appreciation. The Court found there was no violation of Article 3 of Protocol No. 1. The Court considered comparative law in the contracting states and noted that 19 States place no restrictions on the right of convicted prisoners to vote and only 7 States automatically deprive all convicted prisoners serving prison sentences of the right to vote; the remaining 16 states adopt an intermediate approach which depends on type of offence and length of custodial sentence. The Court found that under Italian law only prisoners convicted of certain offences against the State or the judicial system, or sentenced to at least three years’ imprisonment were deprived of the right to vote. There was, therefore, no general, automatic, indiscriminate measure of the kind that led the Court to find a violation of Article 3 of Protocol No. 1 of the Convention in the Hirst No. 2 v. the UK (no. 74025/01) judgment of October 2005. Accordingly, the Court confirmed Hirst No. 2, again holding that general, automatic and indiscriminate disenfranchisement of all serving prisoners, irrespective of the nature or gravity of their offences, is incompatible with Article 3 of Protocol No. 1 (right to free elections). The Court noted that it did not appear that anything had changed since Hirst No. 2 that might lend support to the suggestion that the principles set forth in that case should be re-examined; on the contrary the European trend was towards fewer restrictions on prisoners voting rights. However, the Court did appear to accept that each State has a wide discretion as to how it regulates the ban, both as regards the types of offence that should result in the loss of the vote and as to whether disenfranchisement should be ordered by the courts in an individual case or should result from general application of a law created by the legislature (see para 102).
Mental Illness
Munjaz v United Kingdom (App 2913/06), 17 July 2012
Seclusion not in breach of Articles 5 and 8 ECHR
The Applicant had been admitted to Ashworth from prison and had undergone a number of periods of seclusion while detained there. He complained that Ashworth’s policy on seclusion (in departing from the Code of Practice) placed him at real risk of ill-treatment contrary to Article 3 ECHR. He also argued that seclusion amounted to a further deprivation of liberty under Article 5(1) and was not prescribed by law. He further alleged that there was no right of appeal or review by an independent body outside the hospital in violation of Article 5(4). Under Article 8 he argued that the policy was not foreseeable and lacked procedural safeguards and was therefore not “in accordance with the law”. Finally he complained that the UK government policy of permitting each hospital to seclude its patients in accordance with its own procedures depending on which hospital they were detained in breached Article 14. The Court found no violation of either Article 5 or 8, finding Article 5 to be inapplicable as seclusion did not amount to a further deprivation of liberty and in respect of Article 8 said that “during each of the Applicant’s periods of seclusion there was sufficient indication of the scope of discretion that Ashworth enjoyed and that the manner of this discretion was exercised with sufficient clarity to protect the applicant against arbitrary interference with his Article 8 rights”.
L.B. v Belgium (App 22831/08), 2 October 2012
Long detention in breach of Article 5 ECHR
This judgment is only available in French although the HUDOC press release is available in English. The virtually continuous detention of a man suffering from mental health problems in psychiatric wings of two Belgian prisons between 2004 and 2011 amounted to a violation of Article 5. The conditions of the detention had been incompatible with its purpose. The Court emphasised that the maintaining in a psychiatric wing was supposed to be temporary, while the authorities looked for an institution that was better adapted to the applicant’s condition and re-adaptation. An inpatient placement had in fact been suggested by the authorities as early as 2005. The Court found that the place of detention was inappropriate and noted in particular that his therapeutic care was very limited in the prison. The Court found that the conditions of the detention were incompatible with its purpose and that there had been a violation of Article 5(1).
Piechowicz v Poland (App 20071/07) and Horych v. Poland (App 13621/08), 17 April 2012
Conditions, Treatment and Overcrowding
Both of these cases concerned a regime in Polish prisons for detainees who are classified as dangerous. The Court found a violation of Articles 3 and 8 in both cases and a violation of Article 5(3) and 5(4) in the case of Piechowicz. The Court held in particular that keeping detainees under that regime for several years, in isolation, without sufficient mental and physical stimulation, and without examining if there were clear reasons for the prolonged application of that regime, was not necessary in order to ensure safety in prison.
X v Turkey (App 24626/09) 9 October 2012
This judgment is currently only available in French although the HUDOC press release is available in English. The case concerned a gay prisoner who, after complaining about acts of intimidation and bullying by his fellow inmates, was placed in solitary confinement for over 8 months in total. The Court took the view that these detention conditions had caused him mental and physical suffering, together with a feeling that he had been stripped of his dignity, thus representing “inhuman or degrading treatment” in breach of Article 3 ECHR. The Court further found that the main reason for the Applicant’s solitary confinement had not been his protection but rather his sexual orientation. It thus concluded that there had been discriminatory treatment in breach of Article 14.
Iacov Stanciu v Romania (App 35972/05) (Chamber) ,24 July 2012
This case concerned the conditions of Mr Stanciu’s detention in seven different Romanian prisons, in particular severe overcrowding (leading to bed-sharing), bad hygiene conditions (rats, lice and bedbugs) and inadequate medical treatment and proper nutrition, without enough out-of-cell time and appropriate activities. The Applicant was consistently living in a space of less than 3 square metres. The Court found, taking into account the cumulative effect of those shortcomings, that the prison conditions to which Mr Stanciu had been exposed had amounted to inhuman and degrading treatment and a violation of Article 3. More generally, the Court noted that it had regularly found violations of Article 3 in respect of the detention conditions which had existed in Romanian prisons over several years and the Court underlined that, in view of the recurrent problems, consistent and long-term efforts were necessary to comply with the Convention. In particular, in order to comply with the obligations stemming from the Court’s previous judgments in similar cases, Romania had to provide for an effective system of domestic remedies, allowing the authorities both to put an end to the situation found to be in violation of Article 3 and to grant appropriate compensation.
Deaths in Prison Custody
Ketreb v France (App 38447/09), 19 July 2012
This judgment is currently only available in French although the HUDOC press release is available in English. It concerned a suicide in prison, by hanging, of a drug addict convicted of armed assault after he had been ordered to stay in a disciplinary cell for two weeks. He had displayed agitated and violent behaviour and was found to be distressed and mentally unwell. He had a history of suicide attempts. He hung himself by a belt from the bars of his cell. The Court found that it must have been clear to both the prison authorities and the medical staff that Kamel Ketreb’s state was critical, and placing him in a disciplinary cell had only made matters worse. That should have led the authorities to anticipate a suicidal frame of mind, as had already been noted during a previous stay in the punishment block some months earlier, and to alert the psychiatric services. Nor had the authorities set in place any special measures, such as appropriate surveillance or regular searches, which might have found the belt he used to commit suicide. The Court considered that the authorities had failed in their positive obligation to protect Kamel Ketreb’s right to life. It followed that there had been a violation of Article 2. The State had failed in its duty to show particular vigilance to prevent a vulnerable prisoner from committing suicide. The Court considered that the prisoner’s placement in a disciplinary cell for two weeks was not compatible with the level of treatment required in respect of such a mentally disturbed person. Accordingly, there had been a violation of Article 3. The Applicants were awarded the unusually large sum of €40,000 jointly.
Ҫoᶊelav v Turkey (App 1413/07), 9 October 2012
The Applicants alleged both substantive and procedural breaches of Article 2; namely, that the Turkish authorities were responsible for the death of their 16-year-old son in an adult prison, alleging, either that he had been deliberately killed by the authorities or alternatively that the authorities failed to take the necessary precautions to protect his right to life. They also complained of a failure to conduct an effective investigation into his death. The Court found a violation of Article 2 on both the substantive and procedural ground. Two previous suicide attempts had been documented, he had made repeated requests for help and had self-harmed. The Court found that there was “ample indication” that he was at risk of suicide. The Turkish authorities had not only displayed indifference to the applicants’ son’s grave psychological problems, but had been responsible for a deterioration of his state of mind by detaining him in a prison with adults (in contravention of the applicable domestic regulations) and then manifestly failed to alleviate that situation by failing to provide any medical or specialist care, thus leading to his suicide (see para 69). Notably the Court found that the obligations of the authority did not only require them to keep a constant watch but also to provide adequate medical help for his psychological problems. A delay of 13 days in informing the family of the death of their son meant that the family were prevented from taking part in the investigation in its early and crucial stages and constituted a violation of Article 2 in its procedural limb. The Applicant parents were awarded the unusually large sum of €45,000 jointly.
Comment and Analysis
Prisoners’ voting rights: which way now for the Government?
The issue was summarised recently in a House of Commons standard note SN/PC/01764 published on the 26 September 2012 (and updated on 22 November 2012). It provides a useful narrative of events following the judgment of the ECtHR on the 6 October 2005 in the case of Hirst v UK (No 2) in which it was decided that the blanket ban in the UK on voting for prisoners serving a custodial sentence contravened Article 3 Protocol 1 of the ECHR. This ban does not apply to prisoners held on remand (see Representation of the People Act 2000).
On 20 December 2010 the Government announced it would bring forward legislation to provide that offenders who were sentenced to a custodial sentence of less than four years would have the right to vote in UK Parliamentary elections and European Parliament elections unless the sentencing judge considered it inappropriate.
In the backbench debate in the House of Commons on 10 February 2011 the motion to continue the ban was passed 234 to 22. The Government, on 1 March 2011, referred the ruling of the ECtHR in Greens and MT v UK to the Grand Chamber to appeal the decision that the UK had six months in which to introduce legislation to end the blanket ban. On the 11 April 2011 the appeal was refused and the court in Greens and MT v UK gave the UK Government a deadline of six months to introduce legislation. However, on 6 September 2011 the Government announced that it had requested an extension of the deadline given that Scoppola v Italy (No 3) had been referred to the Grand Chamber and it was granted an extension pending the Scoppola judgment.
The decision in Scoppola v Italy (No 3) was announced on the 22 May 2012. The Grand Chamber decision, although confirming the judgment in Hirst v UK (No 2) that the blanket ban was incompatible with the ECHR, appears on its face to represent a small but significant victory for the UK Government by accepting the Government’s argument that member states should have a wide discretion in how they regulate a ban on prisoner voting rights. The Court appears to have rowed back considerably from the previous reasoning which found Italy’s automatic ban on voting for prisoners in breach of Article 3 Protocol 1, and would appear to give more flexibility to the UK as to how it brings in prisoners’ votes. The UK was given 6 months from the 22 May 2012 to bring in legislation.
Scoppola does not solve the UK Government’s dilemma on prisoners’ votes and the question remains whether the UK will still try and bid for further time given the pending case of Gladkov v Russia (no 15162/0) communicated on the 19 October 2009. The UK must still allow at least some prisoners the vote, as required by the judgments in Hirst v UK (no 2), and Greens & MT v UK but Scoppola does vindicate, to some extent, the strategy of “dialogue” pursued by the Attorney-General, Dominic Grieve, in which the UK Government has sought to persuade the European Court to recognise a greater margin of appreciation for national policymakers and Parliament.
What was decided in Scoppola?
It is useful to look at the decision in Scoppola to consider whether the UK Government can learn more in the development of its policy and consequent legislation. The Chamber’s judgment in Scoppola in January 2011 amounted to a serious limitation of a state’s room to develop its own policy by applying the earlier case of Frodl v Austria. The big question was whether the Grand Chamber would affirm the Frodl approach adopted in the Chamber, or whether it would ease the problems of the UK Government by returning to the more flexible approach of the Court in Greens and MT v UK, in which it stressed the room for policy choice available to the UK Government in removing the “blanket” ban on prisoner voting. The Scoppola judgment appears to be a return to the approach in Greens and MT v UK.
The Grand Chamber at paragraphs 93-110 challenged the reasoning in Frodl (at para. 99):
“That reasoning takes a broad view of the principles set out in Hirst, which the Grand Chamber does not fully share. The Grand Chamber points out that the Hirst judgment makes no explicit mention of the intervention of a judge among the essential criteria for determining the proportionality of a disenfranchisement measure. The relevant criteria relate solely to whether the measure is applicable generally, automatically and indiscriminately within the meaning indicated by the Court (see paragraphs 85, 86 and 96 above). While the intervention of a judge is in principle likely to guarantee the proportionality of restrictions on prisoners’ voting rights, such restrictions will not necessarily be automatic, general and indiscriminate simply because they were not ordered by a judge. Indeed, the circumstances in which the right to vote is forfeited may be detailed in the law, making its application conditional on such factors as the nature or the gravity of the offence committed.”
The Grand Chamber went on to stress at paragraph 102 the need for room to be given to national policymaking:
“…the Contracting States may decide either to leave it to the courts to determine the proportionality of a measure restricting convicted prisoners’ voting rights, or to incorporate provisions into their laws defining the circumstances in which such a measure should be applied. In this latter case, it will be for the legislature itself to balance the competing interests in order to avoid any general, automatic and indiscriminate restriction. It will then be the role of the Court to examine whether, in a given case, this result was achieved and whether the wording of the law, or the judicial decision, was in compliance with Article 3 of Protocol No. 1.”
At paragraph 105 the court noted that the Italian system in question is harsher in one respect than the UK system found incompatible in Hirst (No 2). The Italian ban only affects those sentenced to three years, but it lasts even beyond the term of their sentence. The Grand Chamber recognised that the Italian system does not apply automatically to all prisoners, and that the length of the ban is related to the length of imprisonment, and, therefore to the seriousness of the offence for which the prisoner is sentenced. This is an important point for the UK (para. 106):
“In the Court’s opinion the legal provisions in Italy defining the circumstances in which individuals may be deprived of the right to vote show the legislature’s concern to adjust the application of the measure to the particular circumstances of the case in hand, taking into account such factors as the gravity of the offence committed and the conduct of the offender. It is applied only in connection with certain offences against the State or the judicial system, or with offences which the courts consider to warrant a particularly harsh sentence, regard being had to the criteria listed in Articles 132 and 133 of the Criminal Code (see paragraph 37 above), including the offender’s personal situation, and also to the mitigating and aggravating circumstances. The measure is not applied, therefore, to all individuals sentenced to a term of imprisonment but only to those sentenced to a prison term of three years or more. Italian law also adjusts the duration of the measure to the sentence imposed and thus, by the same token, to the gravity of the offence: the disenfranchisement is for five years for sentences of three to five years and permanent for sentences of five years or more.”
These factors lead the court to distinguish the case from Hirst (No 2) (para. 108) and the court could not conclude that the Italian system has the general, automatic and indiscriminate character that led it to find a violation of Article 3 of Protocol No. 1 in Hirst (No 2). In Italy there is no disenfranchisement in connection with minor offences or those which, although more serious in principle, do not attract sentences of three years’ imprisonment or more. Further the ultimate possibility of restoration of the right to vote also makes a difference, in the court’s view (para. 109). This may be another important point for the UK Government as UK prisoners automatically get back the right to vote not just at the expiry of their sentence, but on release, whichever is earlier. So in respect of this latter point the Prime Minister’s publicly declared “sickness” as to the right of serving prisoners to vote would appear false or poorly informed.
The Grand Chamber’s conclusion is at para. 110:
“Taking the above considerations into account, the Court finds that, in the circumstances of the present case, the restrictions imposed on the applicant’s right to vote did not “thwart the free expression of the people in the choice of the legislature”, and maintained “the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage” (see Hirst (no. 2) [GC], cited above, § 62). The margin of appreciation afforded to the respondent Government in this sphere has therefore not been overstepped”.
The dissenting judgment of Judge Björgvinsson is based on a criticism of the majority judgment’s inconsistency with Hirst (No 2) and points out that Italian law is in some ways harsher than UK law:
“The main difference between the two is that the Italian legislation deprives of voting rights only those who are sentenced to three years or more in prison, while the United Kingdom’s legislation deprives all persons sentenced to imprisonment, for the duration of their time in prison. While the Italian legislation may seem for this reason to be more lenient in comparison with that of the United Kingdom, it is stricter in the sense that it deprives prisoners of their right to vote beyond the duration of their prison sentence and, for a large group of prisoners, for life. Therefore, unlike the majority, I find that these differences are not sufficient to reach a different conclusion …
… I find the distinction made in this judgment between these two cases as a ground for justifying different conclusions to be unsatisfactory. The present judgment offers a very narrow interpretation of the Hirst judgment and in fact a retreat from the main arguments advanced therein. Regrettably the judgment in the present case has now stripped the Hirst judgment of all its bite as a landmark precedent for the protection of prisoners’ voting rights in Europe.”
The basis on which Italian law seems more liberal in its treatment of prisoners is that it does not take away the vote from most prisoners serving less than three years. It seems that all that remains of Hirst is that the automatic ban on voting breaches the ECHR if prisoners are sentenced to under three years imprisonment.
Will our Government uphold the rule of law?
Although Gladkov v Russiais stillpending it seems unlikely there will be any significant movement from the Strasbourg Court. The Scottish government has indicated that it opposes votes for prisoners even after the Scoppola judgment. The Northern Ireland Human Rights Commission, on July 2012, called for the UK Parliament to introduce prisoner voting rights but there appears no clear view expressed by the assembly. On 19 October 2012 an article in the Daily Telegraph reported that the new chair of the Equality and Human Rights Commission, Baroness O’Neill of Bengarve, has indicated that she would support the Strasbourg Court ruling where more than 22,000 prisoners would be allowed to vote. Speaking to a parliamentary committee, at a pre-appointment hearing, Baroness O’Neill was apparently asked for her views on whether prisoners should be able to cast a vote and replied “It is very important for those who serve minor sentences to be reintegrated into society, that may mean that one of the things one encourages them to do is to register to vote”.
The Government had until 23 November 2012to bring forward legislative proposals to amend the law. Despite the decision in Hirst (no 2)and despite the legal and political ramifications, on 22 November 2012 Chris Grayling controversially announced that MPs will be able to choose whether to keep Britain‘s ban on prisoner voting. The Government published a draft Bill, the Voting Eligibility (Prisoners) Draft Bill, for pre-legislative scrutiny by a joint Committee of both Houses. The “Bill” contains three options:
Option 1: ban for prisoners sentenced to 4 years or more Schedule 1 replaces the current ban on prisoner voting with a ban on voting for prisoners sentenced to 4 years or more.
Option 2: ban for prisoners sentenced to more than 6 months Schedule 2 replaces the current ban on prisoner voting with a ban on voting for prisoners sentenced to more than 6 months.
Option 3: ban for all prisoners Schedule 3 re-enacts the current general ban on prisoner voting, but with a few minor changes.
Watch this space…..
Contributors to this edition of the Garden Court Prison Law Bulletin
Maya Sikand
Tim Baldwin
Sarah Hemingway
Deirdre Malone
Kirsten Heaven
Owen Greenhall
