Issue 4 – 28 November 2012

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

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Issue 3 – 5 March 2012

The Garden Court Prison Law Team presents the third issue of its ‘Prison Law Bulletin’. The Bulletin is published in blog and newsletter format on a quarterly basis and contains a round-up of recent case law, domestic & international, and sometimes features a comment and analysis section on a “hot topic”. This edition focuses on case law alone.

Click here to read the last two bulletins

Round up of domestic case law

Sentencing

R (Elam) v Secretary of State for Justice [2012] EWCA Civ 29, 27 January 2012

Judicial review; how to calculate licence period in respect of consecutive sentences for offences committed before and after 4 April 2005.

In 2009 Mr Elam was given consecutive sentences for a number of crimes the commission of which straddled the 4 April 2005. The questions posed by his application for judicial review were which regime applied to these sentences and when did his licence expire?

The Criminal Justice Act (CJA) 1991 had the effect that where a person was given a sentence of more than 12 months but less than four years, they would be released at the half-way point and be on licence until the three quarter point. On the 4 April 2005 this regime was altered by Criminal Justice Act (CJA) 2003 in relation ot offences committed after that date. Broadly the regime under s. 264 of the 2003 Act is that consecutive sentences are aggregated and the individual is released at the half-way point but remains on licence until the sentence expiry date. The Court of Appeal, agreeing with the Secretary of State’s (SSJ) contention that the CJA 2003 apllied to all of the sentences,  upheld the decision of the High Court. It held that where a person has been sentenced to two or more consecutive terms of imprisonment, s.264 of the CJA 2003 must apply to all of them and that all of the terms of imprisonment should be aggregated and the licence will expire at the end of that period. The only circumstances in which the old regime will apply is where all of the offences were committed before the 4 April 2005.


Jackson, Re Setting of Minimum term an application under Criminal Justice Act 2003 [2011] EWHC 1628 (QB), 6 July 2011

An applicant’s progress in prison must be exceptional to allow for a reduction in tariff

Mr Jackson was convicted of murder in January 2000 and a tariff of 15 years was set. He applied to the High Court to set the minimum term, pursuant to the CJA 2003, Sch. 22, para. 3. Amongst other submissions, it was argued that he has shown exceptional progress in prison and this should be recognised by lowering the minimum term. Applying R v Caines [2007] 1 WLR 1109 the court held that Mr Jackson’s progress was ‘very good’ as compared with other lifers but not ‘exceptional’. Further he has continued to deny the offence and so has been assessed as posing a medium risk of re-offending which is not satisfactory.


Human Rights Act 1998 claims

Children’s Rights Alliance for England v Secretary of State for Justice [2012] EWHC 8 (Admin), 11 January 2012

Judicial review; use of restraint and distraction techniques on children in Secure Training Centres (STCs).

This claim arose from the use of force on children in STCs prior to July 2008. It was common ground that until July 2008 point there had been a widespread practice of restraining children unlawfully. The case forms part of the growing body of case law on restraint techniques (see for example R (Pounder) v HM Coroner [2009] EWHC 76 (Admin) and R (C) v Secretary of State for Justice [2008] EWCA Civ 882) which, notoriously, had played a part in the deaths of Adam Rickwood and Gareth Myatt.

The Children’s Rights Alliance for England (CRAE) applied for judicial review contending that the SSJ was under a positive obligation to all those children (and former children) who may have been unlawfully restrained, to inform them that this was the case and to provide them with advice on their legal rights. It was argued that this was a common law requirement as well as a requirement under the ECHR to ensure that the rights of the former detainees under Art. 3, 6 and 8 could be enjoyed fully and effectively. Although the application was refused, the judgment contains a damning critique of the widespread and unlawful use of restraint on children across the secure estate. Disappointingly, Fosket J took the view that CRAE was not a “victim” for the purpose of s.7 of the Human Rights Act (HRA) 1998 and thus lacked the standing to make the human rights arguments on behalf of the children in question.


R (BBC) v Secretary of State for Justice [2012] EWHC 13 (Admin), 11 January 2012

Judicial review of SSJ’s refusal to allow the BBC to interview a long-term prisoner awaiting extradition.

Babar Ahmad is a British Citizen wanted in the US in connection with alleged terrorism offences who gained some notoriety when it was discovered that his private conversations with his MP Sadiq Khan were covertly monitored by the prison in 2008. Currently at HMP Long Lartin, Mr Ahmad has been detained without charge or trial awaiting extradition for more than seven years. The BBC made a request to film a face to face interview with Mr Ahmad in Long Lartin, with a view to broadcasting the film which was refused. The High Court considered Mr Ahmad’s case to be “highly exceptional” and held that the refusal constituted a disproportionate interference with the right to freedom of expression under Art.10 of the ECHR.


R (Hester) v Secretary of State for Justice 20th December 2011 Unreported, 20 December 2011

Judicial review: delay; breach of Art. 5(4)

Damages of £6,000 awarded owing to the SSJ’s failure to refer the case to the Parole Board for a period of 12 weeks following his recall. Mr Hester had been a long-term prisoner and the detention caused no distress or medical problems.


Grant v Ministry of Justice [2011] EWHC 3379, 19 December 2011

 “Slopping-out” regime at HMP Albany. Not in breach of Art.3 or Art.8.

The Claimants, Mr Grant and Mr Gleaves were detained at HMP Albany. At times, generally at night, prisoners who wished to use the toilet were required to use a bucket in their cell. Where this became necessary they would have to empty and clean their bucket – slopping-out – the next time they were allowed out of their cell, using a sluice in the recess area. This could be the following morning.

On the facts the judge went on to hold that there was no violation of Arts. 3 or 8. The regime required prisoners to use the bucket to urinate “rarely” and to defecate “extremely rarely” and was no evidential basis upon which to find that either Mr Grant or Mr Gleaves had suffered any significant harm.


Malcolm v Ministry of Justice [2011] EWCA Civ 1538, 14 December 2011

Segregation; 30 minutes in open air per day not a breach of Art.8

Mr Malcolm, a life sentenced prisoner, was segregated between April and October 2007 and only allowed out into the open air for around 30 minutes per day. By PSO 4275 he should have been allowed at least one hour per day. Mr Malcolm issued a claim in the High Court alleging breach of Art.8 and misfeasance in public office. His claim was dismissed and he appealed on the Art.8 point alone. The Court of Appeal held that Mr Malcolm did not reach the first hurdle for an Art. 8 claim as the regime did not reach the necessary level of seriousness to amount to an interference with Art.8. However, if there had been an interference then it could not be justified under article 8(2), as the regime did not comply with PSO 4275 and was not “in accordance with the law”. The Court cited the reasoning in R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671 in which was held that a decision maker should adhere to stated policy unless good reasons existed not to.


R (on the application of NM) v Secretary of State for Justice [2011] EWHC 1816 (Admin), 12 July 2011

An investigation was not required for all allegations arising in detention. There had been no breach of Art.3 where the assault alleged only concerned one individual with no bodily injury

NM was an IPP prisoner with an IQ of 60. NM reported two sexual assaults in 2007 and 2010 respectively.  No investigation was conducted pursuant to the PSOs guidance instead an adjudication process was commenced. NM sought judicial review of the decision of the SSJ not to investigate the assaults on the basis that there was a breach of duty (in light of NM’s learning difficulties an appropriate adult should have been arranged), an unreasonable failure to follow PSOs and that there had been a breach of ECHR Art. 3. The court held that whether the presence of an appropriate would have altered the course followed was uncertain. Further the decision not to conduct an investigation as provided by PSO 130 was not unlawful. And the need for an Art. 3 investigation did not apply in this case involving one individual where there had been no bodily injury.


Security Categorisation

R. (on the application of Willoughby) v Category A review Team [2011]EWHC 3483 (Admin), 21 December 2011

Judicial review of refusal to hold oral hearing of Cat A Review

The Court held that there was sufficient material on the papers to justify CART’s decision and in the circumstances fairness and justice did not require an oral hearing. Importantly, referring to the fact that Mr Willoughby had served twice his minimum term without any progression through the secure estate, the Judge stated obiter that in such a case an oral hearing would be likely to become mandatory at some point.


Longmire v Secretary of State for Justice [2011] EWHC 1488 (Admin), 15 June 2011

An oral hearing for re-categorisation would not be required solely because of post tariff status, time spent in detention or previous positive comments from the Parole Board. However a factual dispute can give rise to the need for an oral hearing.


R (Downs) v Secretary of State for Justice [2011] EWCA 1422, 30 November 2011

Judicial review of refusal to hold oral hearing of Cat A Review

Mr Downs sought judicial review of the CART’s refusal to allow him an oral hearing. The application was refused in the High Court by Burton J. He appealed. The Court of Appeal (Pill, Moore-Bick and Aikens LJJ) dismissed his appeal and reiterated the basic principles approved by the Court of Appeal in McLuckie [2011] EWCA Civ 522 governing the grant of oral hearings ([6], [7] and [44]) and the role of the court. The Court took the view in Mr Downs’ case that procedural fairness did not require an oral hearing despite the fact that there was a dispute of fact to be resolved.


R v Shaffi v Secretary of State for Justice [2011] EWHC 3113 (Admin), 28 November 2011

Successful judicial review of refusal to hold oral hearing of Cat A Review

Eady J held that procedural fairness did require an oral hearing. The Prison Director had taken the view that Mr Shaffi could not progress without undertaking further courses. Yet, Mr Shaffi was keen to engage but no courses were available. Eady J found that an oral hearing was required to allow Mr Shaffi to address the specific concerns of the Director.


R (on the application of Geoffrey Austin) v Parole Board [2011] EWHC 2384(Admin) 12 August 2011

Denial of the offence for which a custodial sentence was imposed was not a bar to recommending open conditions but due weight can be given in assessing risk reduction

Mr Austin was sentenced to life imprisonment for murder after trial. Throughout his prison sentence he maintained his innocence. His minimum term expired in November 2010. The Parole Board, in applying the Parole Board Directions, refused to transfer Mr Austin to open conditions. Mr Austin sought judicial review, submitting that the Parole Board had not applied the correct legal test and had placed undue emphasis on his denial.

The court held that the Parole Board Directions had been correctly applied; whilst there had to be an evaluation of the risks of the transfer against the benefits, the emphasis was on risk reduction. Further the Parole Board had not placed undue weight on Mr Austin’s denial. The Board had acknowledged that this was not a bar to recommending open conditions, and in the index case proper weight had been given to this factor.


R (Leach) v Parole Board [2011] EWHC 2470 (Admin), 24 August 2011

Judicial review; risk outweighs the benefit to the prisoner in considering a transfer to open conditions.

Mr Leach, a life sentenced prisoner, applied for judicial review of the Parole Board’s decision not to transfer him to open conditions. Transfer to open is governed by the Secretary of State’s 2004 Directions, “Transfer of life sentenced prisoners to open conditions”. Paragraph 3 provides that:

“a move to open conditions should be based on a balanced assessment of risk and benefits. However, the Parole Boards emphasis should be on the risk reduction aspect…” [Emphasis added]

Mr Leach contended that the panel had not adopted the “balancing” exercise, weighing up risk against benefits, which paragraph 3 requires. HHJ Raynor QC refused Mr Leach’s application. He took the view that the 2004 Directions introduced a shift in emphasis from the old directions placing more weight on the risk posed by an applicant and less on the benefit which they might gain. The panel had adopted the correct approach and on the evidence they had been entitled to reach the decision that they did.


Discrimination

R (Dowsett) v Secretary of State for Justice [2011] EWHC 2877 (Admin), 26 October 2011

Judicial review; permission decision; rub-down searches; whether discriminatory; whether judicial review the appropriate forum for claims under Equality Act 2010.

Mr Dowsett was a serving prisoner who was subject on a number of occasions to rub-down searches by female prison guards. He complained that the policy governing rub-down searches was discriminatory and also that it was unlawful on classic public law grounds. The Secretary of State contended that ss113-114 Equality Act 2010 conferred jurisdiction on the County Court to hear direct discrimination claims and that judicial review was therefore precluded. Thirlwall J granted permission on all grounds with the jurisdictional point to be tried as a preliminary issue.


Faith Stewart v Secretary of State for Work and Pensions [2011] EWCA Civ 907, 29 July 2011

There had been no direct discrimination in refusing a funeral payment to a prisoner. It did constitute indirect discrimination, which in the circumstances was justified

Miss Stewart was serving a custodial sentence when her son died. An application for a funeral payment was refused by the Social Secretary Commissioners.

The court held that there had been no direct discrimination. Miss Stewart’s status did not exclude her from all benefits, thus the refusal to grant a funeral payment was not because she was a prisoner. It did constitute indirect discrimination as it was more difficult for a prisoner to qualify for the benefit in comparison to a non-prisoner. The discrimination, however, was justified as otherwise a new, separate means-testing approach would be required for prisoners.


Adjudications

R (Garland) v Secretary of State for Justice [2011] EWCA Civ 1335, 17 November 2011

Judicial review;  adjudications; nature of requirement to bring charges within 48 hours.

Mr Garland sought judicial review arguing that it appeared that the charge had not been laid in time. He was refused permission by Mitting J and appealed.  The Court of Appeal rejected the appeal. Hughes LJ (with whom the other Justices agreed) interpreted Rule 53 (Prison Rules 1999) to mean that:

“…the charge must be laid as soon as possible, which means within 48 hours unless there are exceptional circumstances making that impossible. In other words, the authorities have 48 hours in any event, and longer if there are exceptional circumstances making it impossible to lay the charge within that time.” [13]


European Court of Human Rights Cases

Vinter and Others v The United Kingdom (App Nos 66069/09, 130/10 and 3896/10), 17 January 2012

Whole-life sentence did not breach Article 3.

This was a challenge to the compatibility of whole-life tariffs with Article 3 and Article 5(4).  The three applicants, Mr Vinter (‘V’), Mr Bamber (‘B’) and Mr Moore (‘M’), are amongst the 41 prisoners (including those held in secure mental hospitals) who are serving whole-life tariffs in England and Wales.

Prior to the coming into force of the CJA 2003, the minimum term of a mandatory life sentence for murder was set by the Secretary of State.  If a whole-life term was imposed, it was practice for the Secretary of State to review the tariff after 25 years had been served to determine whether it remained justified. Since the coming into force of the CJA 2003, the minimum term for a mandatory life sentence is set by the trial judge. Transitional provisions allowed lifers sentenced under the old regime to have their tariff reviewed by the High Court. There is no mechanism to later review a whole-life tariff set under the CJA 2003. The Secretary of State does have power to release a prisoner on compassionate grounds; however, the criteria for such release require terminal illness where death is anticipated within 3 months or other serious incapacitation. Since 2000, no prisoner serving a whole-life sentence has been granted compassionate release.

The Court held that imprisonment for life without possibility of parole was not per se incompatible with Article 3. However, a whole-life sentence would violate Article 3 if (i) imprisonment was no longer justified on penological grounds and (ii) the sentence is irreducible both in fact and law (Kafkaris v Cyprus (App No. 21906/04)). The sentences under consideration in the instant case did not violate Article 3. The Court considered it to be of some relevance to the case that the system of a 25-year review had been omitted from the CJA 2003 regime and noted that the Rome Statute of the International Criminal Court did provide for such a review. Whilst the majority went no further than this, the dissenting opinion of four judges found that the absence of a specified mechanism for review of a whole-life tariff violated Article 3.


Harkins and Edwards v The United Kingdom (App Nos: 9146/07 and 32650/07), 17 January 2012

Extradition to state where faced possibility of sentence of life without parole did not breach Article 3.

The Government of theUnited States seeks the extradition of both applicants, H and E, from the United Kingdom to face charges of murder. Assurances had been given in relation to both that the death penalty would not be sought should they be convicted.  However, H faced a mandatory life sentence without possibility of parole (‘LWOP’) and E faced a discretionary LWOP sentence. Should such sentences be imposed the only possibility of release lay in the relevant state governor’s powers of clemency. H and E claimed their extradition would breach Article 3.

The court adopted much of the reasoning in Vintner v UK (above). Extradition would only breach Article 3 if the sentences which the applicants faced were either grossly disproportionate or when (i) imprisonment was no longer justified on penological grounds and (ii) the sentence is irreducible both in fact and law. The potential sentences were not grossly disproportionate and had not yet been imposed therefore it could not be shown that upon extradition H and E’s incarceration would not serve any legitimate penal purpose.


Stummer v Austria (App No 37452/02) (Grand Chamber), 7 July 2011

Failure to include prison work done in eligibility for state pension did not breach Article 14 in combination with Article 1 of Protocol 1.

The applicant, S, was a former prisoner who was past the legal retirement age. He had served a total of 28 years during several periods in custody during which he had worked in prison. However, these periods were not counted towards his pension eligibility. S claimed this discrimination against prisoners breached Article 14 in conjunction with Article 1 of Protocol 1. He also claimed a breach of Article 4.

The ECtHR found that it was not in dispute that Article 14 and Article 1 Protocol 1 were engaged. It was clear that prison work differed from regular employment in both its nature and aims; however, what was at issue was the need to provide for old age. In respect of this, S was in a relevantly similar position to ordinary employees: the issue was whether the differential treatment was justified. It was only gradually that member states were moving towards the affiliation of prisoners to their social security systems in general and their old-age pension systems in particular. On this basis the difference in treatment was therefore proportionate. However, Austria was required to keep the matter under review in light of the changing standards. Seven judges dissented.

The complaint under Article 4 was rejected by the majority on the basis that the work performed by S fell under the exception provided by Article 4(3), namely ‘work required to be done in the ordinary course of detention’.


Laduna v Slovakia (App No 31827/02), 13 December 2011

Breach of Article 14 in conjunction with Article 8 in different visiting conditions for remand and convicted prisoners.

The applicant, L, is a life sentenced prisoner who complained that treatment whilst held on remand violated Article 14 in conjunction with Article 8. Remand prisoners were only permitted one visit per month of 30 minutes duration. Convicted prisoners could have 2 hour visits every 2, 4 or 6 weeks depending on security categorization. Remand prisoners also prevented from direct contact with visitors and access to television.

The Court found that Article 8 was engaged. Being a remand prisoner fell within the notion of ‘other status’. Remand prisoners were in a relevantly similar situation to convicted prisoners regarding conditions of detention and visiting rights. There was no objective justification for the differential treatment and thus there was a violation of Article 14 in combination with Article 8.


Giszczak v Poland (App No 40195/08), 29 November 2011

Failure to allow prisoner compassionate leave to visit his dying daughter breached Article 8.

G’s application for compassionate leave to visit his 11 year old dying daughter was refused on the grounds that he was active in the prison subculture, was rude towards officers and he had been convicted of a serious offence.  G’s daughter died a short time later and G was given permission to attend her funeral.  However, G claimed he was told that he and the escorting officers would be required to wear prison clothes and joined shackles.  He declined to attend because he feared creating a disturbance at the ceremony.

The ECtHR found that the refusal to allow G compassionate leave to visit his dying daughter was a disproportionate interference with Article 8 since reasons given were unpersuasive and could in any event be met with an escorted leave.  The failure to provide G with a timely, clear and adequate reply to his request to attend the funeral of his daughter was incompatible with Article 8.


Ananyev and others v Russia (App Nos: 42525/07 and 60800/08), 10 January 2012

Court finds structural problems within Russian prison system leading to violation of Article 3 with regard to conditions of detention for remand prisoners.

The applicants, Mr Ananyev (‘A’) and Mr Bashirov (‘B’), were prisoners held on remand in Russia between 2005 and 2008. A was held for two months in a cell shared with 20 other prisoners with only 13 sleeping places. He had less than 1.25 square metres of personal space. Conditions for B varied, but the cells he was kept in were clearly overcrowded and he had less than 2 square metres of personal space. B was held on remand for more than 3 years. Both prisoners were only given one hour of outdoor exercise each day and had to eat and use the toilet in their cells. The toilet was only 1.5 metres from the eating table and only separated by a 1.5 metre partition on one side which did not allow the toilet to be completely shielded from view

The court found that the cumulative effect of these conditions lead to a breach of Article 3 in the present case. More significantly, the Court also held that there were structural problems within the Russian prison system and adopted the pilot judgment procedure.  The Court has found a breach of Article 3 concerning conditions of detention in Russia in more than 80 cases. There are approximately 250 prima facie meritorious cases against Russia awaiting first examination concerning detention conditions. The origin of the problem was multi-faceted, but was due in part to aging prison buildings and also to overcrowding.

The specific measures to prevent the problems identified were left open. However, the Court ordered that Russia produce a binding time-frame in which to make available effective remedies to grant redress to victims of inhuman and degrading treatment in Russian remand prisons.


Arutyunyan v Russia (App No 48977/09), 10 January 2012

Breach of Article 3 in failing to provide adequate medical care to severely disabled remand prisoner.

The applicant, A, was a severely disabled remand prisoner held in a standard prison whilst awaiting trial for an organized gangland killing.

The Court found that at least four times a week for almost fifteen months, A, was required to descend and ascend four flights of stairs from his cell to the room in which he received dialysis. Although assisted by warders and an inmate nurse these forced walks undoubtedly inflicted unnecessary pain and subjected A to unreasonable risk.  The authorities were indifferent to A’s needs and persistently dismissed his pleas for a transfer to another prison. These conditions of detention amount to a breach of Article 3.

A similar breach of Article 3 for failing to provide adequate medical care for remand prisoners was found in the case of Vasilyev v Russia (App No 28370/05) for failing to provide orthopaedic footwear.  In Sakhvadze v Russia (App No 15492/09) a failure to allow for a scan and consultation with a neurosurgeon for a spinal injury gave rise to a breach.


Reiner v Germany (App No 28527/08), 19 January 2012

No breach of Article 5(1) in preventive detention 35 years after initial order made.

The appellant, R, was born in 1932 and had a long history of offending with convictions for theft, violence and fraud.  In 1972 he was sentenced to 13 years for robbery and his preventive detention was also ordered (‘the 1972 order’). Since 2000, R had been held in custody solely under the preventive detention order.

The Court held that R’s age and poor state of health entailed that there was minimal risk of him committing a violent offence similar to the robbery for which the 1972 order was imposed.  However, prior to the 1972 order, R had convictions for non-violent property offences and these were sufficiently similar to the ongoing risk of fraud offences to justify the imposition of the 1972 order.  There remained a sufficient causal connection between R’s conviction in 1972 and his continued preventive detention to prevent a breach of Article 5(1).

Posted in Issue 3 - 5 April 2012 | 1 Comment

Issue 2 – 7 July 2011

The Garden Court Prison Law Team presents the second issue of its ‘Prison Law Bulletin’. The Bulletin is published in a newsletter format on a quarterly basis and contains a round-up of recent case law, both domestic & international as well as a “comment & analysis” section on a current hot topic. Following on from our last feature on prisoners’ voting rights, we bring you part 2 of a comparative study of the position of prisoners’ voting rights in other jurisdictions. Our “hot topic” in this issue is prisoners and disability discrimination claims.

Round up of domestic case law

R (Paul Flinders) v Director of High Security & Ors [2011] EWHC 1630 (Admin) 30 June 2011

On 19 May 2003 the Claimant was sentenced to life imprisonment for manslaughter after the Prosecution accepted a plea to manslaughter on the basis of diminished responsibility. His minimum term expired in 2007. Mr. Flinders had remained a category A prisoner throughout his imprisonment.

Mr. Flinders applied for judicial review of  (i) the Director of High Security’s decision to maintain his Cat A  status, on the basis that he had erred in law in failing to hold an oral hearing to determine his re-categorisation; (ii) the SSJ’s unlawful failure to both provide the Parole Board with relevant and current material and to update reports which would have enabled it to conduct their hearing and (iii) the Parole Board’s delay in convening hearings from November 2007 to December 2009 which he argued constituted a breach of his Article 5(4) rights such that he was entitled to damages.

The application was granted in part. The decision not to re-categorise was quashed.  Wyn-Williams J held that the Director of High Security did err in law in failing to hold an oral hearing to determine Mr. Flinders re-categorisation on the basis that it could not be said that the failure to hold the hearing would have made no difference to the decision. While the question as to whether an oral hearing is required is fact specific, in this case there was a reasonable prospect that information would have come to light during the hearing which would have convinced the Director to re-categorise. The factors considered relevant in this regard appeared to be that (i) he had remained at Cat A for a very lengthy period (ii) he had served more than 3 years over his tariff (iii) his mental illness was controlled (iv) he was an exemplary prisoner (v) there was psychological evidence as to reduction in risk.  However, Wyn-Williams J rejected the argument that the SSJ had unlawfully failed to provide the Board with relevant material, noting that the Board itself made no complaint about the material nor did they request additional updated material and went on to say [para 93]

In any event, care should be taken when interpreting a word such as “current” in the context of the Parole Rules. In my judgment, the word should not be given an inflexible meaning. It does not mean, for example, that there must necessarily be a very close connection in time between the compilation of the reports required by paragraph 3 and the date of the oral hearing. A report can be a current report within the paragraph even if made some time before the hearing provided it still provides a proper and reasonable appraisal of the prisoner’s risk factors, reduction in risk and performance and behaviour in prison as at the time of the hearing.

In relation to the third limb of the JR, the Board conceded that the delay amounted to a breach of Article 5(4) but submitted that no relief should be granted. Wyn Williams J refused to grant damages finding that the Claimant could not establish that an earlier oral hearing would have led to his release and that there was no cogent evidence that suffered distress and frustration on account of the delay which was sufficient to reach a level of intensity so as to justify an award of damages.

 R (Jorgenson) v Secretary of State for Justice [2011] EWHC 977 (Admin) 15 April 2011

Secretary of State required to apply a two-stage test when considering whether he should recall a prisoner on licence.

Mr Jorgenson had been sentenced to eight years imprisonment for possession of an imitation firearm, kidnapping and false imprisonment. The court had found his acts to be closely related to his association with drugs and drug dealing. As a result, he had a condition not to use drugs attached to his release on licence. Mr Jorgenson was recalled for breaching his drug condition on the basis that any substance misuse by him would indicate he might be re-engaging in associated criminal activities. His explanation for the breach was that he had smoked some cannabis as he was emotional, having visited his mother’s grave. Otherwise, he had complied with all his other licence conditions. Mr Jorgenson argued that the decision to recall was disproportionate and there was a failure to consider alternatives to recall and his explanation for the breach.

The Court held that where the Secretary of State reasonably concludes that there has been a breach of a licence; s/he must then go on to separately consider the appropriate method of dealing with the breach. In doing so, s/he must take into account: (i) intention so far as the breach is concerned; and (ii) the fact that a recall impinges on the right to liberty, and therefore, any decision to do so must be proportionate. Since on the facts it was not in dispute that: (i) Mr Jorgenson committed the breach; and (ii) he did so deliberately the SSJ was entitled not to adopt an alternative to recall, particularly when taking into account Mr Jorgenson’s previous convictions.

R (Hindawi) v Secretary Of State for Justice [2011] EWHC 830 (QB) 1 April 2011

When putting evidence before the Secretary of State in relation to the proposed release of a prisoner, the Secretary of State must be furnished with all the relevant evidence both in favour and against release.

In 1986 Mr Hindawi had been sentenced to 45 years imprisonment for attempting to place a bomb on a plane. In 2009 the Parole Board recommended his release but this was rejected by the SSJ. It was found by the Court that the evidence presented to the SSJ was one-sided and did not contain evidence in support of the Board’s finding that Mr Hindawi should be released. The papers had been prepared by an official who had unsuccessfully opposed Mr Hindawi’s release before the Parole Board. In the circumstances, the procedure was unfair and the decision flawed and the decision not to release was quashed. The Court sent the case back to the SSJ for reconsideration.

R (Chester) v Parole Board [2011] EWHC 800 31 March 2011

There exists a rare category of case where, although there is no realistic prospect of success on the papers, it may be helpful to hold an oral hearing to determine an application for release or transfer to open conditions.

Mr Chester had been sentenced to life imprisonment for the murder of his 7 year old niece. He had spent 33 years in prison to-date. During his imprisonment there had been a number of reviews and on seventh review in May 2010, the Parole Board considered him unsuitable for release or transfer to open conditions. Mr Chester applied for an oral hearing to challenge the Board’s decision but it was refused.

The Court held that in rare cases, fairness might require an oral hearing even where there is no realistic prospect of success or facts in issue which might affect the outcome. In determining fairness the Court would do so in the context of circumstances identified and evaluated by the Parole Board. In this case it was relevant that Mr Chester had been detained for 33 years and he was at risk of being in prison for the rest of his life without ever having an oral hearing to determine his level of risk.

As a result of Mr Chester’s unwillingness to co-operate and/or his apathy with the training and educational courses, a deadlock had been reached as between himself and the Board and it was possible that an oral hearing would go some way to resolving this. Further, it was found that an oral hearing would have the added benefit of allowing the Board to assess the risk of harm in light of Mr Chester’s oral evidence and any other evidence which he might be able to rely on.

R (Andersson) v Parole Board [2011] EWHC 1049 (Admin) 31 March 2011

The Parole Board has a general power to adjourn making a decision on whether it should set a licence release date or refuse release altogether where references are made by prisoners serving determinate sentences.

Mr Andersson sought a declaration that the Parole Board could adjourn references under ss.256 and 256A Criminal Justice Act 2003 (recalled prisoners serving determinate sentences). The Court held that looking at the statutory framework it must have been Parliament’s intention that the Board would be able to adjourn matters. On a natural reading of the sections, a general power to adjourn was not excluded. Further, it was found that to allow the Board a general power to adjourn was in line in with principles of natural justice: it was obvious that the Board should be sufficiently informed if it was to make a properly informed decision.

R v Zejmowicz & Ruskinski [2011] EWCA Crim 1173 11 May 2011

The presence of a prison officer on a jury does not make a trial automatically unfair, even where the prison officer is from the prison where the defendant was being detained.

Mr Zejmowicz and Ruskinski were jointly convicted of murder after trial. At trial one of their jurors was a prison officer who worked at the prison where they were being detained before and during the trial. They argued that this fact made the trial unfair. The Court of Appeal held that the test for whether a jury was independent and impartial was an objective one. Although on the facts it was unfortunate that the fact of the juror’s employment was not picked up by the jury forms; there was no real possibility of bias in this case for the following reasons: (i) the juror had no recollection of ever coming across Mr Zejmowicz or Mr Ruskinski; (ii) the time spent by the men on the juror’s wing at the prison was short; and (ii) there had been no recording of any misbehaviour by them that would have brought them to the juror’s attention.

R (Young) v HMP Highdown & Secretary of State for Justice [2011] EWHC 867 (Admin) 6 April 2011

The unavailability of Home Detention Curfew for those convicted of possessing offensive weapons is not a breach of Article 14 ECHR.

Mr Young was convicted of robbery and possession of a bladed article. He received a 2 year sentence in light of substantial mitigation. In prison Mr Young had an exemplary record of behaviour. He applied for Home Detention Curfew (HDC) but his application was refused because PSI 31/2003 provided that those convicted of possession of offensive weapons were unsuitable for HDC. Mr Young argued that the decision was in breach of Articles 8 and 14 ECHR.

The Court found that Mr Young’s case of discrimination under Article 14 was unsustainable because it was highly unlikely that any significant comparator group existed. The principal aim of the policy in PS1 31/2003 was to maintain public confidence in the Home Detention Curfew Scheme. It was legitimate for the Secretary of State to take this into account in setting policies for the release of prisoners. In this case public confidence would suffer if those convicted of crimes were released early. Article 14 did not protect against all differences in treatment between individual or groups and the scheme fell far short of discriminating unlawfully. Further, the argument under Article 8 also failed because Mr Young had been lawfully sentenced to imprisonment and he had yet to reach the point where he was entitled to statutory release.

R (Francis) v Secretary Of State for Justice and the Secretary of State for the Home Department [2011] EWHC 1271 (Admin) 20 May 2011

The paragraph describing the service of an IS 91 as a statutory bar to release on Home Detention Curfew contained in paragraph 11 of PSO 4630 is wrong in law.

Miss Francis, a Jamaican citizen, was liable to deportation following a 2 year sentence for drugs offences. She argued that her eligibility for early release under the HDC scheme had not been properly considered because of an error in PSO 4630 which meant that the prison had proceeded under the mistaken belief that where a form IS 91 (a detention authority form) had been served on a foreign prisoner, that made the prisoner statutorily ineligible for Home Detention Curfew.

The Court held that although the prison had initially misinterpreted paragraph 11 of PSO 4630, by 5 October 2009 they had corrected their mistake, and from then on the reason for refusal was based on the service of an IS 91 form from the Home Office. Although service of an IS 91 was not a statutory bar for refusing release under the HDC scheme scheme, it was a proper reason for refusal. Therefore, the initial error of the prison authorities was immaterial.

In obiter comments, the Court held that a person serving a determinate sentence was required to serve the full period of their sentence, subject to any exercise of discretion by the SSJ to allow for earlier release. If the SSJ could be shown to have breached the exercise of his or her discretion to allow for early release, any further period of detention would not give rise to damages where the full prison term was yet to be completed. On the facts, there had been no false imprisonment or breach of Article 5 ECHR.

R (MA) v National Probation Service & Secretary of State for Justice [2011] EWHC 1332 (Admin) 27 May 2011

Judicial review is an Article 6 ECHR compliant mechanism for challenging licence conditions.

Mr Ahmed was sentenced to 9 years imprisonment for kidnapping, falsely imprisoning and raping his estranged wife. Although an indeterminate sentence for public protection was considered by the judge following his conviction, it was deemed inappropriate given Mr Ahmed’s previous good character. By the time of his release at the half way stage his wife had initiated divorce proceedings which Mr Ahmed was contesting. That detail, as well as the fact that he had never shown any remorse and he was considered to bear a significant degree of animosity towards her, were significant factors in assessing the risk of serious harm when an OASys report was completed shortly after his release on licence. As a result, in addition to the standard conditions, his licence conditions included Mr Ahmed staying away from areas where his wife or her family lived; not contacting her or her family and notifying his supervisor of “any developing personal relationships with women”. He also had to remain at a probation hostel and report to staff every two hours from 8am to 10pm in addition to a night time curfew from 10pm to 8am.

Mr Ahmed argued that the conditions imposed on his release on licence were so onerous as to amount to a deprivation of liberty under Article 5 ECHR and a disproportionate interference with his private life under Article 8. Finally, it was suggested that the unavailability of a dedicated mechanism for challenging licence conditions before the Parole Board infringed Article 6 ECHR. The Court held that the conditions fell some way short of amounting to a breach of Article 5 (both in terms of length of time and the practical effect of the conditions) in light of theUKand ECtHR jurisprudence. It held that if Mr Ahmed had been more forthcoming with the Probation Service, his reporting conditions may have been relaxed earlier than they were. Mr Ahmed was not prevented from working in the family business so as to breach Article 8: at most he was inconvenienced. The availability of judicial review meant that Article 6 ECHR did not require a dedicated mechanism. This was not a case where the reviewing court needed to conduct a fact-finding exercise, it was clear that some conditions needed to be imposed on Mr Ahmed and a challenge on any conditions imposed by judicial review was Article 6 compliant.

Hassan v Secretary of State for Justice [2011] EWHC 1359 (Admin) 27 May 201

Where segregation of a prisoner is justified, in deciding whether the period of segregation goes beyond that which is necessary, the Court will apply Wednesbury principles.

Mr Hassan, who suffered from moderate PTSD following the murder of his family inIraq, had been imprisoned for attempted murder. Whilst detained there had been a number of adjudications concerning threats and assaults on prison staff. In February 2010 it was alleged that he had assaulted a fellow prisoner and he was therefore segregated for “good order or discipline”. Mr Hassan argued that his segregation in prison was unlawful on the basis that it was unjustified under the Prison Rules and PSO 1700 (Segregation) because procedural safeguards to protect mental health contained within PSO 1700 had not been observed and these failures went to lawfulness. Mr Hassan suggested that the omissions gave rise to breaches of Articles 3 and 8. 

The suggested omissions were that in conducting the segregation health screen, the nurses noted in the relevant forms that there were no clinical reasons for why it might not be advisable to enforce segregation. Mr Hassan had attempted suicide twice before his imprisonment and had self-harmed prior to and during his imprisonment. Following a review, the Board authorised his continued segregation for the same reasons as the initial confinement. It was held by the Court that given his violent and disruptive behaviour in prison there was no doubt that the segregation was justified. The Prison Rules and PSO 1700 had been followed and applied.  The only issue in this case was whether segregation was for the shortest period possible given the evidence contained within the PSO of the effect of segregation on mental health.

The Court took the view that in deciding whether the period of segregation went beyond that which was necessary, the court would do so on Wednesbury principles. Considering all the evidence of his disruptive behaviour in segregation, assaults on staff and the incident in February 2010, it was in the interest of all prisoners, the safety of staff and good order and discipline that Mr Hassan continued to be segregated. The duration of the period of compliance and sufficient change in behaviour necessary by the prisoner was a matter of judgment for the Governor and the Board. On the facts before the Court there was no evidence at any time during and after, that the segregation was having any effect whatsoever on Mr Hassan’s mental health. There was nothing to suggest that the regime applied in segregation breached Articles 3 & 8 ECHR. He showered and exercised regularly, was fed and clothed and he could purchase goods weekly and take out books from the library. On the facts no procedural safeguards had been breached.

R (Bashir) v The Independent Adjudicator & Secretary of State for Justice [2011] EWHC 1108 (Admin) 3 May 2011

A prisoner failing to provide a sample in reliance on his Article 9 ECHR rights will not be guilty of a disciplinary offence if in all the circumstances the request was disproportionate.

Mr Bashir was serving a term of 15 years imprisonment. In January 2010 he was required to provide a urine sample for drugs testing under PSO 3601 (Mandatory Drug Testing). The test had been authorised on the basis of a reasonable suspicion that Mr Bashir had taken controlled substances. Mr Bashir attempted to but failed to provide a sufficiently large sample of urine at 10.05am, 11.05am, 12.05pm and 13.05pm. He was offered water after each attempt but he refused on the basis he was a devout Muslim who was on a fast prior to a Court of Appeal appearance and as a result, he was unable to provide a sufficiently large urine sample. He was told that if he did not provide the required sample he would commit an offence under the Prison Rules. Following the failures he was found guilty and penalty of 14 days additional detention was imposed on him. Mr Bashir argued that the finding of guilt breached Article 9 ECHR.

The Court found that on the evidence before the adjudicator, Mr Bashir had attended the prison’s mandatory drug testing suite as required; had tried to provide a sample on 3 occasions; had informed the prison officer of his fasting when summoned to provide a sample; he was a devout Muslim and there were many individual voluntary fasts outside of Ramadan. Further Mr Bashir’s subjective belief that he could not break a fast once it had started had not been challenged. To be convicted of the offence the Court held that the Adjudicator had to be satisfied to the criminal standard that Mr Bashir intended to commit the offence and also that the order he disobeyed was lawful. It was open to the Adjudicator to infer intent to the necessary standard from a refusal to drink water when it is offered to enable a sample to be taken. However, it was the requirement of lawfulness that allowed the Court to distinguish between cases where a prisoner is on hunger strike for reasons outside Article 9 and those within.

The right to manifest one’s religion was a qualified right and therefore the key issue was whether if there had been an interference on the facts, was it necessary and proportionate? The evidence was that Mr Bashir’s fast would have ended at 4.30pm and there was no evidence that a sample taken then would have been materially of less forensic value than one provided at the last attempt (13.05pm), or that to provide for this later opportunity would have been disproportionately expensive or inconvenient. Accordingly, the interference was disproportionate and the adjudication was to be quashed. The Court held that none of the findings in this particular case were intended to indicate that the Mandatory Drug Testing procedure was, of itself, unlawful in any way.

Hull v Regina [2011] EWCA Crim 1261 19 May 2011

A prisoner transferred to the UK under the Convention on Transfer of Sentenced Persons 1983 may appeal against the term of the imprisonment but not the sentence.

Mr Hull was a mandatory life prisoner convicted of murder in theRepublic of Ireland. He was later transferred to the United Kingdom to serve the remainder of his sentence. In the Republic of Ireland no minimum term to be served is set by the sentencing court where the term is life imprisonment. Mr Hull sought to challenge the minimum term of 18 years set by the High Court in September 2010 following his transfer. The term was based on what Mr Hull would have been sentenced to had he been convicted in theUKat the time of the offence. The issue for the Court was first, whether it had jurisdiction to hear appeals by transferred life prisoners against the setting of a minimum term by the High Court and secondly, the principles by which they could do so.

The Court held that although the UK was a signatory to the Convention on the Transfer of Sentenced Persons 1983, it had not signed up to Article 9(1)(b) of the Convention which provided that on a transfer, an administering State should convert the sentence through a judicial or administrative procedure into a sanction prescribed by the law of the administering State for the same offence. However, under s.3(1)(c) Repatriation of Prisoners Act 1984 it was provided that the detention of a prisoner in the UK would be in accordance with the provisions contained in the warrant of transfer. In this particular case, the warrant provision was that the prisoner was to serve a term of life imprisonment. Since the provision could have been made by the criminal jurisdiction of a court in England and Wales, the effect was that on a transfer, a life prisoner would be treated as if the term had in fact been imposed inEngland and Wales except that there would no appeal against sentence.

Had this particular term been made in England and Wales, a minimum term would have been set by the High Court from which there would have been a right of appeal under s.9 of the Criminal Appeal Act 1968 and the Court of Appeal could have exercised its power to substitute a minimum term under section 11. Accordingly, the Court had the power to quash any order made on a reference under s.273 of the 2003 Act (life prisoner transferred to England and Wales) and substitute its own order. On the basis that approach was correct, that meant that schedule 22 of the transitional provisions would also apply (minimum term to reflect the practice of the Secretary of State at the time the offence was committed). The High Court judge in this case had been unaware of the application of Articles 9(1)(a) and 10 of the Convention. The effect of those Articles was that the administering State could adapt the sanction to the nearest equivalent under its own laws as long as this did not result in a more severe punishment or longer detention than under the laws of the transferring state. Thus Article 9(1)(a) involved adapting a sentence whilst Article 9(1)(b), which did not apply, was focused on converting a sentence. The High Court judge had converted Mr Hull’s sentence as opposed to adapt it. However, because the Irish Ministry for Justice could not provide any detailed information on its sentencing principles, the judge was entitled to rely on s.269 CJA 2003 (determination of minimum sentence in relation to a mandatory life sentence) in arriving at a minimum term of 18 years. As a result, the appeal was dismissed.

R (PA) v Governor of Lewes Prison [2011] EWHC 704, 28 February 2011

Where a prisoner is presumed unsuitable for HDC and relies on exceptional circumstances to qualify, in deciding whether a prisoner is “infirm by nature of disability” under the guidance in PSI 31/2003, the decision-maker must take into account the fact exceptional circumstances will be rare and are likely to stand out.

The claimant had been sentenced to a term of 3 years imprisonment for inflicting grievous bodily harm and cruelty to his child. As a result of this, he was deemed unsuitable for early release under HDC. The claimant, who suffered from social phobia, had no previous convictions and had been assessed as a low risk of re-offending. He argued his condition made him infirm by nature of disability under the guidance contained in PSI 31/2003.

The Court held that ‘infirm’ was not a medical term and in determining the meaning of “infirm by nature of disability”, the decision-maker had to take account of the underlying context; the fact that the prisoner had committed an offence presumed unsuitable for release under HDC; as a result, he needed to prove exceptional circumstances; exceptional circumstances would be rare if public confidence was to be maintained; and finally, exceptional cases were likely to be stand out.

Although it was accepted that the claimant suffered from a mental illness which had a disabling effect on his ability to interact with others, this did not necessarily make him infirm. This was not a case where the decision-maker was bound to arrive at the conclusion that the claimant was infirm. Accordingly, the decision of the Governor to refuse early release on HDC was lawful.

Scotland, Northern Ireland and Eire

Sage v Minister for Justice & Ors, High Court, [2011] IEHC 84  1 March 2011

The Plaintiff (P) was originally detained in Mountjoy prison where he raised concerns with the prison authorities about his safety (he feared retribution from other inmates due to the nature of his conviction). The prison authorities at Mountjoy placed him in protective custody on the first day and advised him that the safest place for him to be would be Midland Prison. Later that evening, contrary to his expectations he was not transferred to Midland Prison but was taken to Fort Mitchell Prison. On his second day there, while in the courtyard, he was severely beaten by other inmates.

P argued that the prison had failed in its duty of care to provide security to prisoners from other inmates. It was argued there was inadequate security in the prison yard at the time of the assault and/or that the system of searching prisoners was defective, particularly given the nature of the weapon involved. Reliance was placed on Casey v. Governor of Midlands Prison & Ors [2009] I.E.H.C. 466, (Unreported, High Court, Irvine J., 27th October, 2009) (“Casey”) in which the duty of care owed by prison authorities to those in their custody was set out: (i) Prison authorities are required to take all reasonable steps and reasonable care not to expose prisoners to a risk of damage or injury, but the law does not expect the authorities to guarantee that prisoners do not suffer injury during the course of their imprisonment (Muldoon v. Ireland [1988] I.L.R.M. 367)  (ii) The duty of care owed by prison authorities to its prisoners must be tested in the context of the balance to be struck between the need to preserve security and safety on the one hand and their obligation to recognise the constitutional rights of prisoners and their dignity as human beings on the other hand (Bates v. Minister for Justice & Ors [1998] 2 I.R. 81)(iii) In determining what is an appropriate standard of care, regard should be had to the hardship that any proposed system might impose on prisoners and whether any such system would place an excessive burden upon the prison authorities (ibid) (iv) Cases of assault upon prisoners whilst in custody in general are likely to be decided upon by reference to what should have been anticipated by their custodians. Reliance was also placed on Creighton v.Irelandand Attorney General [2010] I.E.S.C. 50, (Unreported, Supreme Court, 27th October, 2010) (“Creighton”) which states that “prisons may, as an inevitable consequence of the character of persons detained, be dangerous places. Prisoners are entitled to expect that authorities would take reasonable care to protect them from attack by fellow prisoners”.

In Sage, Irvine J found there was no breach of the duty of care, being satisfied that P made known to the prison authorities his concerns at Mountjoy Prison and that he wanted to be transferred to Midlands Prison, but that there was no obligation on the prison service to transfer P to what they considered the safest prison. It was found that P had not sufficiently warned the prison authorities at Fort Mitchell prison of his concerns or that he specifically needed to be kept in protective custody there. It was found, as a matter of fact, that the necessary number of supervisory staff was present when P was attacked. It was held that the prison authorities ‘cannot be expected to be the insurers of the safety of their prisoners’. In relation to the use of a weapon, Irvine J rejected P’s submission that the nature of the weapon and the circumstances of the assault could allow, in the absence of expert evidence, a conclusion that the plaintiff’s injuries were due to a defective system of security in Fort Mitchell. Irvine J distinguished the case of Creighton in that the weapon was not one that had been brought in from outside of the prison.

In the Petition of Robert Greens & Ors. Court of Session (Outer House) [2011] CSOH 79, 12 May 2011

The Petitioners were three prisoners (X, Y and Z) ofPeterhead Prison,Scotland, who lodged a petition for judicial review against the prison governor and Scottish Prison Service (S) based on the conditions within the prison. The complaint related to the toilet and sanitary conditions within the prison facility. It was argued that the conditions subjected the petitioners to inhuman or degrading treatment and were an unjustified interference with their right to respect for their private lives, contrary to the ECHR art. 3 and art. 8 respectively.

The Petitioners submitted inter alia that (1) requiring a prisoner to use any receptacle other than a screened and flushing toilet itself constituted a breach of art.3 (2) the conditions of detention as a whole constituted such a breach, including the practice of “bombing” by which prisoners defecated into newspapers or other items, or urinated into jars, before throwing the end product; (3) the conditions of their detention caused them to suffer feelings of low self esteem, inferiority, humiliation and mental anguish, which exposed them to distress and hardship of an intensity exceeding the unavoidable level of suffering inherent in a sentence of imprisonment. Reliance was placed on the cases of Malechkov v Bulgaria (Application No.57830/00) and Radkov v Bulgaria (Application No.18382/05) which established that single cell slopping was sufficient to constitute a breach of art.3; further, regard had to be had to Napier v Scottish Ministers 2005 1 S.C. 307, in which the court recognised a breach of a prisoner’s art.3 rights with reference to slopping out. The Petitioners sought (a) a declaration that the conditions were a breach of articles 3 and 8 of the ECHR and (b) damages as just satisfaction.

Lady Dorrian held that access to a screened and flushing lavatory was not a basic human right, and to require the use by prisoners of a chemical toilet in a single cell did not involve an interference with the respect for a prisoner’s private life under Article 8 ECHR. However, where individuals were forced to queue with their receptacles and to empty them in the presence of others, that constituted an infringement of Article 8. The court was not satisfied that there had been a violation of Article 3 and that requiring a prisoner to use any receptacle other than a screened and flushing toilet did not of itself amount to inhuman or degrading treatment. The court noted that difficulties might arise in differentiating those conditions which might fail under Article 3 yet succeed under Article 8, but a lower threshold applied in relation to the latter.

Reilly, Re Judicial Review [2011], Court Of Appeal (Northern Ireland), NICA 6, 6 April 2011

The Respondent (R), born inNorthern Ireland, was sentenced to life imprisonment in 2003 for robbery, attempted robbery and possession of an imitation firearm. He received a tariff of 6 years and 8 months due to expire on 20th September 2009. He was originally detained inEnglandbut on 12 December he was moved to HMP Maghaberry,Northern Ireland. Prior to removal in July 2006, the Parole Board conducted a review to determine if R was suitable for a move to open prison conditions. The decision was that R was not suitable. The next review was scheduled for September 2009.

In 2009, the Lifer Management Unit at HMP Maghaberry sent a dossier to the Parole Baord indicating that R wished to have an oral hearing before the Parole Board. In June 2009 the Parole Board wrote to R and decided, without an oral hearing, not to recommend his transfer to open conditions. Factors taken into account included the nature of R’s offence, his poor disciplinary record and his inability to remain drug free. The Parole Board concluded that R had still a significant amount of programmes to complete which would address his offending behaviour. R appealed against the refusal to grant him an oral hearing.  He claimed that he should have been afforded the opportunity to provide some explanation as to why his adjudication record was apt to create a false impression, an explanation as to why the record of drug testing might be misleading and a general submission that an oral hearing was necessary in order to achieve fairness.  The Parole Board refused the appeal on the grounds that R had not completed work on tackling his offending behaviour. The respondent brought a judicial review of the decision.  In April 2010 Mr Justice Treacy quashed the decision of the Parole Board on the ground that it violated Article 5(4) ECHR and Common Law.  The Parole Board and the Secretary of State for Justice appealed this decision.

It was submitted that prisoners serving indeterminate sentences were entitled as of right to an oral hearing before the Parole Board, reliance placed on Waite v UK (2003) 36 EHRR 54. Reliance was also placed on an affidavit sworn on 9 December 2009 by Mr O’ Prey of the Parole Board declaring a policy that a prisoner who has been given a life sentence will not be released or recommended for open conditions without an oral hearing. In the same affidavit it was asserted that an oral hearing will normally be granted in two circumstances (a) where there is a realistic prospect of release to open conditions (b) where live evidence is required. It was argued that R had never been put on notice of the ‘no realistic prospect of success’ test or that R’s failure to complete the behaviour programmes would be a crucial factor in determining his release.

Lord Justice Coghlin delivered the judgment of the Court allowing the appeal by the Parole Board. It was held that the question is whether the circumstances of a particular case require the Parole Board, as a matter of procedural fairness, to hold an oral hearing in the course of determining whether the continued detention of a prisoner is necessary for the protection of the public.  Lord Justice Coghlin said: 
 “Essentially, that is a judgment about risk involving a careful and complex balance between the right of the prisoner to his or her liberty and the right of the public to an acceptable degree of protection.   In exercising that judgment the Parole Board must have regard to the individual circumstances of the case. The Court of Appeal found that, in this case, the Parole Board’s decision not to hold an oral hearing was fair given the failure of the respondent to complete the requisite offending behaviour programmes.”

European Court of Human Rights Cases

Vasyukov v Russia (Application no. 2974/05, 5 April 2011) 

Failure to diagnose early and treat tuberculosis adequately is violation of Article 3

 As in the case of Gladkiy v Russia, reported in the last bulletin, the Court continues to find violations of Article 3 where there has been inadequate medical treatment for detainees suffering from tuberculosis in Russian prisons. In this case, a failure to diagnose the applicant’s tuberculosis at an early stage and to provide adequate treatment for his illness was held to violate the Article.

Rotaru v Moldova (Application no. 51216/06, 15 February 2011)

Conditions of detention violated the applicant’s rights under Article 3. 

 In Rotaru, the applicant had made several complaints to the Moldovan Ministry of Justice, the Prosecutor General’s Office and Parliament that the conditions of his detention were inhumane. In particular he complained that prisoners were not provided with enough beds or any bed linen, did not have enough food, suffered from overcrowding, that the cells were damp and insect-infested, and that medical care was inadequate. The applicant was in turn diagnosed with tuberculosis, piodermia, and scabies as a result of the conditions of his detention. Although the various governmental bodies involved promised to improve prison conditions, the Court held that detention conditions had remained substandard and the cumulative effect of those conditions over the duration of the detention must be taken into account. Although merely contracting tuberculosis was not on its own an indication that Article 3 had been violated, it added weight to the applicant’s claim. The Court also found the government’s admissions that prison conditions required improvement and the length of time that the applicant was detained (more than seven years) to be persuasive, and as such the conditions of detention violated Article 3. Further, a lack of effective remedies available to the applicant constituted an attendant violation of Article 13.

Iliev and Others v Bulgaria (Applications nos. 4473/02 and 34138/04, 10 February 2011)

Inhumane conditions of detention were held to be a violation of Article 3. Monitoring by the prison administration of correspondence between the first applicant and his lawyers (the second and third applicants) violated Article 8.

 The first applicant, Mr. Iliev, a detainee, was held in Varna Prison in a four by seven metre cell with seven other detainees. The cell was dirty, and badly lit. Sanitary facilities outside of the cell could only be accessed during the day and comprised two sinks and two cubicles for over eighty prisoners. The only available facility in the cell was a bucket that detainees had to use in the open. Hot water for bathing was provided to detainees at infrequent intervals. When held in custody at court, the applicant was held in similarly poor conditions – cells were small and overcrowded, there was no access to sanitary facilities, and temperatures were either very cold in winter or very hot in summer. The Court found that these conditions violated Article 3.

Additionally, the first applicant alleged that while at Varna Prison the correspondence he exchanged with his lawyers (the second and third applicants) was monitored by prison administration. The Court rejected the government’s explanation that this was done to check that incoming letters were sent by the person whose name appeared on the envelope. The Court was of the view that the prison authorities had not monitored the correspondence because of a ‘concrete suspicion’ that the prison held, but rather on a ‘general hypothetical possibility of abuse’. While prison authorities may open a letter from a lawyer to a prison when they have reasonable cause to believe that ‘it contains an illicit enclosure which the normal means of detection have failed to disclose’, this was not established in this case. Further, violating lawyer-client privilege should only be permitted in exceptional circumstances when there is reasonable cause to believe that the privilege is being abused. As such, the Court held that Article 8 had been violated.

Gladović v Croatia (Application no. 28847/08, 10 May 2011)

Recourse to physical force by prison guards violation of Article 3

 The applicant was a prisoner who suffered from various personality disorders and other psychological difficulties. He claimed that during his detention he had been beaten by six or seven prison guards who had hit him with rubber truncheons all over his body, and as such, his rights under Article 3 had been violated. Prison guards claimed that in an attempt to ‘ensure order and security’ after the applicant had shouted and hit the cell door, they had used force upon the applicant specifically, putting him in an elbow lock and hitting him only twice with a rubber truncheon to subdue him. The prison doctor saw the applicant after the incident and it was noted that he had a large haematoma on his arm. The applicant further claimed that there had been an inadequate investigation of the incident.

The court reiterated that prisoners are especially vulnerable and that authorities are under a duty to protect their well being, so that any recourse to physical force that is not strictly necessary is in principle a violation of Article 3. In the Court’s view, the haematoma on the applicant met the minimum level of severity required for a violation of Article 3. Additionally, the Court held that there had not been a proper investigation of the incident – there had been no forensic report, no attempt to talk to witnesses, and no assessment as to the necessity and severity of the force used against the applicant. Thus the Court held that there had been both substantive and procedural violations of Article 3. 

Raducki v Poland (Application no. 10274/08)

State “structural” problem in length of detention

The accused was arrested on suspicion of murder and attempted murder as part of a criminal gang. He was detained for 5 years, 3 months and 17 days before being convicted. Allegations about his treatment and conditions of detention were dismissed for lack of evidence or non-exhaustion of domestic remedies. The Court found that the detention was in breach of Article 5(3) because the gravity of the charges could not justify long periods of detention and the period in this case was egregiously extenuated. The Court went on to examine the application of Article 46 of the convention, observing that Poland was habitually detaining those accused of involvement in organised crime for very long periods without determining a charge. The Court reiterated “its findings in Kauczor as to the existence of a structural problem and the need for the Polish State to adopt measures to remedy the situation.”

Lesiak v Poland (Application no. 1921/07)

Lengthy pre-trial detention not a breach of Article 5; censored letters a breach of Article 8

The Court held that detention of the applicant for 1 year and 7 months before release on bail without having been tried was not in breach of Article 5(3). The case involved considerable complexity and risks of disruption due to the allegations of criminal gang involvement. The investigation proceeded with due expedition while the applicant was detained and she was released as soon as possible. However, there was a breach of Article 8 because the applicant’s post to the Court appeared to have been censored. This limb of the case was raised by the Court’s own motion as the Court has seen many such apparently censored letters fromPoland. The detainee should enjoy such protection of her private communication as that afforded to convicted people – who are themselves entitled to uncensored communication under domestic law.

Tsarenko v Russia (Application no. 5235/09)

 Conditions of detention a breach of Article 3 and pre trial detention of more than 3 years a breach of Article 5

The applicant was a suspect in a multi-handed multiple murder and GBH investigation. At the beginning of his detention he was a minor. He was first detained in March 2007, a preliminary hearing in the trial was held in May 2009 and in April 2010 he was convicted of various violent crimes, sentenced to imprisonment for a period already served and immediately released. During his lengthy detention he had been held in cells with minimal privacy and in very crowded conditions, with less than 3sqm per detainee. He had complained about both the length and condition of his detention both through judicial routes and extra-judicial routes. His complaints about the length of detention had been refused and those about the conditions led to his being moved only some time after his complaint.

Without finding any deliberate attempt to breach Article 3, the Court found it had been violated because the aggregate discomfort of the conditions were “sufficient to cause distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention, and to arose in him feelings of anguish and inferiority capable of humiliating and debasing him.”

Article 5(1) was breached because when the City Court extended pre-trial detention it did so on a basis that was opaque in reasoning and capricious; extensions to allow the defendant to study the prosecution papers were not reasoned so to “comply with the requirements of clarity, foreseeability and protection from arbitrariness”. The court stressed that “where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied.” Pre-trial detention of more than three years violated Article 5(3) because the gravity of the offence was not enough to justify such detention without specific evidence of a risk. The Court observed that this Article is often violated, with desultory, formulaic rulings extending detention without reference to substantial evidence of a specific risk.

Article 5(4) was violated because the Supreme Court’s heavy workload was not sufficient grounds to have failed to hear the detainee’s appeals against the extension of his detention. Periods of more than 40 days were too long to examine such appeals. The Court also held that the detainee did not have an effective remedy in respect of his Article 3 complaint about the conditions of his detention. The ineffectiveness of the complaint mechanism and the unavailability of a route to establish State liability had already been determined to be a breach in another Russian case, Benediktov. The Court had also already indicated thatRussia must improve conditions of detention or provide adequate compensation for those so detained.

Comment and Analysis: Disability Discrimination

General Issues

Until October 2010 disability discrimination was prohibited by the Disability Discrimination Act 1995  as amended by  the DDA 2005 (now repealed by the Equality Act 2010 (EA)) – only complaints about treatment after October 2010 will fall under the EA. Under the EA 2010 disability is recognised as one of the nine ‘protected characteristics’. There are four types of disability discrimination under the Act (direct (s13), discrimination arising from disability (s15), indirect (s19), and failure to comply with duty to make adjustments (s21)).

Because the introduction of the EA is relatively recent the majority of cases currently being heard in the courts are still referring to the 1995 Act, specifically sections 19 (discrimination in relation to goods, facilities and services), 21 (duty of providers of service to make adjustments), 21B (discrimination by public authorities), and 49A (general duty of a public authority to have due regard to the need to eliminate unlawful discrimination/ harassment and encourage participation etc)[1].

Some defendants (via the Treasury Solicitor) in prison disability discrimination claims have sought to deny that they are a provider of a service for the purpose of s19 Disability Discrimination Act 1995 (DDA). However, such a “defence” is misconceived. There are very few situations where the prison will not be a service provider in relation to a disabled prisoner claiming discrimination. Any claim relating to adequacy of facilities, access to health care or education or treatment, etc, will fall within s.19 DDA.

In Gichura v SSHD  [2008] EWCA Civ 697 a permanent wheelchair user claimed he was discriminated against under s19 DDA because he was unable to properly access facilities in an immigration detention centre. The district judge had struck out the claim on the basis that the facilities in an immigration detention centre did not amount to a provision of a service for the purposes of s19 of that Act and that some functions were ‘government-like’ such as the administrative handling of a detainee on arrival and therefore did not fall within the Act. However, the Court of Appeal found that the judge was wrong to do so, because the fact that facilities were incidental to detention did not exclude it from the Act and it was a ‘provision of a service’ for the purpose of s.19. Indeed, the prison service’s own PSO 2855 ‘Prisoners with disabilities’ requires that all managers and staff understand and comply with the law as set out in the Disability Discrimination Act 1995 and the Disability Discrimination Act 2005,and reads:

The DDA 1995 applies to service providers (including the Prison Service for example in its provision of offending behaviour, skills and employment, drug treatment programmes etc and requires access (both physical and in the broadest sense) to services to be ensured and for reasonable adjustments to be made).

In any event, even if the act or omission complained of does not amount to provision of a service, the defendant is still likely to be caught under s.21B which relates to the discharge of a public function. In R (Gill) v SSHD [2010] EWHC 364 (Admin) the claimant was effectively excluded from Offender Behaviour Programmes due to his learning difficulties and was thus unable to demonstrate a reduction in risk in order to promote his case for release before the Parole Board. He successfully pleaded both the services and public function provisions- namely that the Secretary of State had breached s21 DDA (failure to make adjustments) and s49(A)1(failure to comply with the General Equality Duty), specifically that the defendant had not complied with, inter alia: (i) Prison Service Order 2855, which stated that it was ‘vital’ that prisoners with disabilities could access any offending programmes as identified in their sentence plan, with adjustments made as necessary; and (ii) Prison Service Instruction 31/2008, which stated that prisoners with disabilities had to be able to follow their sentence plans and satisfy the conditions for parole. The Court found that the claimant was entitled to a declaration that the Secretary of State had breached his duties towards him by failing to take steps to enable him to undertake some type of offending behaviour work.

So, in general, it is prudent to plead both ss19 and 21B (or s29 of the Equality Act 2010) because the defendant will fall under one or both as a provider of services and/or as a public authority.

The key point to emphasise is that the MOJ and prisons are duty bound to consider disability issues.  It is of note that a breach of the general duty on public bodies to eliminate discrimination and promote equality (s49 DDA or s149 EA) may result in detention becoming unlawful. In the case of R (on the application of BE) v Secretary of State for the Home Department  [2011] EWHC 690 (Admin) a disabled man held in immigration detention without adequate facilities for his disability was found to have been unlawfully detained when the escalation of failures in relation to his disability issues, in breach of s49 DDA, tipped the balance to unlawfulness (on Hardial Singh principles).

Mental Health and Learning Disabilities

The most common types of disability affecting prisoners relate to mental health and learning difficulties. In April 2009, Lord Bradley’s independent review of the criminal justice system was commissioned to examine the extent to which offenders with mental health problems or learning disabilities could, in appropriate cases, be diverted from prison to other services and the barriers to such diversion. The report concluded that:

“Evidence suggests that there are now more people with mental health problems in prison than ever before. While public protection remains the priority, there is a growing consensus that prison may not always be the right environment for those with severe mental illness. Custody can exacerbate mental ill health, heighten vulnerability and increase the risk of self-harm and suicide.”

Figures quoted by the Mental Health Foundation [2] show that more than 70% of the prison population has two or more mental health disorders; male prisoners are 14 times more likely to have two or more disorders than men in general, and female prisoners are 35 times more likely than women in general. And, according to the organisation Care Principles [3], government statistics indicate that of the 83,000 prisoners inEngland in 2008, there were more than 19,000 people with an identifiable learning difficulty. However, only an estimated 5,800 prisoners received formal diagnosis of learning disability. They suggest that prison is often a desperately inappropriate environment for vulnerable people with a learning disability and more prisoners require assessment urgently.

It is sometimes difficult to persuade prisons to recognise disability related to mental health and learning or IQ. In the case of R (on the application of PA) v Governor of Lewes Prison [2011] EWHC 704 (Admin) a prisoner convicted of GBH was denied early release on Home Detention Curfew because, according to PSI 31/2006, HDC was only available in exceptional circumstances for his type of offending and, although he suffered from moderate to marked social phobia, he was not recognised as “infirm” for the purposes of the ‘exceptionality’ requirement. A judicial review of that decision found that the term ‘infirm’ was not medical but instead a value judgment and the Governor was entitled to conclude that the prisoner was not infirm.

 This area of law is a growing one and we wait with interest to see if the introduction of the Equality Act 2010 does in fact, as was intended, make it easier to establish discrimination on grounds of disability.

Those provisions under the DDA 1995 are now contained in a similar way under the 2010 Act at sections 29, 20, 29(6) and 149 respectively.

  1. http://www.mentalhealth.org.uk/help-information/mental-health-statistics/prisons
  2. http://www.careprinciples.com/news-and-media/care-principles-in-the-press/prison-is-not-always-an-appropriate-environment-for-those-with-learning-disabilities

A Comparative View: Prisoners Voting Rights, Part 2 – An European Perspective

The comparative law section in the last bulletin looked at prisoner voting rights in the United States, Canada and Australia. This article focuses the rights of prisoners to vote in other European countries and the impact that this could have on any Government proposal to reform prisoner voting laws in theUnited Kingdom.

The UK is one of only a limited number of Member States of the Council of Europe where prisoners are unable to vote.  Armenia,[4] Bulgaria, Estonia, Georgia, Hungary, Liechtenstein[5] and Russia[6] all have an outright ban on prisoners voting.

In Hirst (No.2) v UK,[7] the Grand Chamber recognised that State Parties to the Convention may want to legitimately prevent some prisoners from voting. A wide margin of appreciation should be afforded to a state when deciding on which prisoners should have the right to vote. A blanket ban on prisoners’ right to vote however exceeded any margin of appreciation afforded to Member States and amounted to a violation of Article 3 Protocol 1.[8]

The Grand Chamber declined to give any specific guidance on what how the United Kingdom should change the law in order to make it compatible with Article 3 of Protocol 1.[9] However, it gave some indication of what elements of the law should be changed. It stated that the fact that the ban applied automatically, irrespective of the length of sentence, the nature or gravity of the offence committed and the individual circumstances of the offender, rendered the ban incompatible with the Convention.[10] By holding that the prisoner’s individual circumstances should be taken into account, the Grand Chamber indicated that a judge or court should decide whether the right to vote should be taken from an individual prisoner. 

On 20 December 2010, Mark Harper MP, Minister for Political and Constitutional Reform, announced that prisoners serving custodial sentences of less than four years would be given the right to vote.[11] This proposal has proved to be extremely controversial and has sparked considerable public debate. It is worth assessing the systems in place in other Member States of the Council of Europe to see whether this would be a viable option.

Of the 47 Member States of the Council of Europe, at least 14 countries allow prisoners to vote without any restrictions including: Albania, Croatia, Denmark, Finland, Macedonia, Iceland, Ireland, Lithuania, Moldova, Serbia, Montenegro, Serbia, Slovenia, Spain, Swedenand Switzerland.[12]

In some states the restriction is only imposed on prisoners who are detained for the most serious of crimes. In Bosnia and Herzegovina, for example, only those prisoners accused serious violations of international law or indicted before the International Criminal Tribunal for the Former Yugoslavia lose the right to vote.[13] In Greece, restrictions apply to prisoners who are sentenced to over ten years imprisonment and the right to vote is permanently withdrawn from those who have been sentenced to life imprisonment.[14]

Luxembourg leaves the decision on disenfranchisement to the sentencing court.[15] Similarly, the courts in Norway have the power to revoke the right to vote in cases concerning treason or nationality security. However, this power is rarely used and in recent times has only been invoked in cases relating to the Second World War. [16]

In the Czech Republicand Latvia, prisoners are able to vote in national elections but are not allowed to vote in municipal and regional elections.[17]

Since the Hirst judgment in October 2005, a number of countries have amended their laws on prisoner voting rights. Ireland had a blanket ban on prisoners voting prior the enactment of the Electoral Amendment Act 2006. The new law means that prisoners are able request a postal vote in the constituency where they would have ordinarily lived.[18] Cyprus had a similar ban to Ireland and the UK. However, since 2006, all prisoners are able to vote and prisons have been set up with polling booths to facilitate prisoners exercising their right to vote.[19]

The European Court of Human Rights has handed down two recent judgments, which may impact upon any decision that the government takes on how to end the blanket ban. In Frodl v Austria [20], the European Court of Human Rights considered the compatibility of Austrian laws on prisoners voting with Article 3 of Protocol 1. The right to vote is removed from all prisoners who are serving a prison sentence of one or more years for a crime committed with intent in Austria.[21] The Austrian Government argued that as the Criminal Code allowed people serving suspended sentences to vote, it was not a blanket ban like the one that exists in the UK. The Court held however, that the law amounted to a violation of Article 3 Protocol 1. It held that any decision on disenfranchisement should be taken by a judge.[22] Furthermore, there must be a sufficient link between the sanction, the conduct of the offender and the circumstances of the individual concerned.[23] It made it clear that disenfranchisement should only be used in exceptional circumstances.

In Italy, prisoners who are sentenced to five or more years imprisonment or who are given a life sentence are barred for life from holding public office. Those who are given a term of imprisonment of between three and five years are barred for five years.[24] This means that they are automatically stripped of their right to vote.[25]

The Court considered Italian prisoner voting laws in Scoppola v Italy.[26] The Applicant had been sentenced to life imprisonment for murdering his wife. This sentenced was reduced to 30 years imprisonment in 2010. 

The Court held that depriving prisoners of the right to vote should only be used as a measure of the last resort.[27] The general measure permanently preventing the applicant from voting had been applied indiscriminately. It was done not on the basis of the offence committed, but rather on the duration of the punishment. No consideration had been given to the seriousness of the offence that had been committed or to the possibility that the applicant may one day be rehabilitated.[28] The Court found that this amounted to a violation of Article 3 of the Protocol 1.

What do these judgments mean for reform of the law in the United Kingdom? Disenfranchisement of all prisoners serving a sentence of four or more years imprisonment could still be incompatible with Article 3 of Protocol 1. Frodl and Scoppola make it clear that any ban on voting should not be applied universally. Some consideration must be paid to the facts of the offence and the individual offender’s circumstances. According to the Frodl judgment, judges should be given the power to determine whether an individual sentenced to a term of imprisonment should have the right to vote taken away from him or her.

Many countries acrossEuropeallow all prisoners to vote regardless of the crime committed. In recent years bothCyprusandIrelandhave decided that giving prisoners the vote is not harmful. TheUKstands with a small number of countries includingRussia, which continue to deprive all prisoners of the right to vote. The judgments of the European Court of Human Rights suggest a halfway house. Nevertheless, in the current environment, it is unlikely that the Government would propose such measures.

[1] From Hirst (No.2) v UK Application No. 74025/01. Judgment of 6th October 2005, paragraph 33

[2] Appendix A, House of Commons Library, Prisoner’s Voting Rights,  SN/PC 01764, 27th April 2011,

[3] See FN 2, page 12

[4] Application No. 74025/01, judgment of 6th October 2005

[5] See paragraphs 82 of the judgment

[6] Paragraph 83

[7] Paragraph 82

[8] See Hansard,  20 Dec 2010: Column 151WS

[9] See FN 2.

[10] See FN 4 of Hirst (No.2)

[11] See FN 6 of Hirst (No.2)

[12] See FN 7 of Hirst (No.2)

[13] See FN 10 of Hirst (No.2) and FN 2 above

[14] See FN 2 above, p.44

[15] p. 26, Joint Committee on Human Rights, Monitoring the Government’s Response to Human Rights Judgments: Annual Report 2008, HL Paper173

[16] See FN 2 above, p.44

[17] Application No. 20201/04, judgment of 8th April 2010

[18] Section 22 of the National Assembly Act, see paragraph 14 of the judgment

[19] Paragraph 34

[20] Paragraph 35

[21] Article 29 of the Penal Code

[22] Article 2 of the D.P.R. 20 marzo 1967, n. 223. See paragraph 25 of Scoppola v Italy, Application No.

[26] 1/05, judgment date, 18th January 2011,

[23] Application No. 126/05, judgment of 18th January 2011

[24] Paragraph 40 of the judgment.

[25] Paragraph 49 of the judgment


Posted in Issue 2 - 7 July 2011 | Leave a comment

Prison Law Team Launches New Bulletin Update

Garden Court Chambers’ Prison Law Team is proud to launch its first update on the law in this area to keep practitioners up to speed.  The bulletin will be published on a quarterly basis. This issue contains a special focus on the right of prisoners to vote including a comparative study of the position in Australia, Canada and the USA.

Issue 1 – March 2011
(Published 30 March, 2011)

Round-up of domestic case law

BREACH OF ARTICLE 5 (4) AND DAMAGES 

R (Faulkner) v Secretary of State for Justice and another [2010] EWCA Civ 1434

14th December 2010

Prisoner entitled to award of damages for ten months he spent in prison when he ought not to have done, in breach of Article 5(4). 

The Secretary of State twice rejected a Parole Board’s recommendation that F, a prisoner eligible for parole, should be transferred to an open prison. He therefore remained in closed conditions. Under prison guidance he should have had an oral hearing to review that decision within 26 weeks (i.e. at the beginning of 2008). However, due to various delays caused by the SSJ, F did not have his review until January 2009. The decision to release him was not reached until March 2009. A claim for judicial review failed and F appealed.

Although the SSJ contended that F would not have been released in any event in January 2008, the Court of Appeal held that the delays were unjustified and breached Article 5(4). F was entitled to compensation for the 10 month delay. He also showed that on the balance of probabilities he would have been released if the review had taken place in March 2008.

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Posted in Issue 1 - 31 March 2011 | 1 Comment