The Role that Prison Law Plays

“Good order in prison is maintained by a mixture of formal and informal mechanisms.”

In considering the proposition the “Good order in prison is maintained by a mixture of formal and informal mechanisms” and the role prison law can play in ensuring prison staff do not abuse their powers in the way they maintain order and discipline, it is necessary to evaluate case law decided by the courts regarding the way prison staff regulate inmates conduct along with the position internationally. This essay will consider within what limits strip searching should be conducted along with how the process of segregation of prisoners differs from a disciplinary sanction. Pointedly, however, in view of the consideration of these mechanisms use for maintaining order and discipline it is also important to show an understanding of by whom prison disciplinary cases should be heard along with what the procedural requirements are that a prison system. Finally, this essay will conclude with a summary of the key points derived from this discussion regarding how ‘good order’ is maintained in prisons along with the role prison law can play in ensuring staff do not abuse their powers in maintaining order and discipline amongst inmates.

Internationally, with a view to making sure prison staff do not abuse their powers, the European Convention on Human Rights (ECHR) 1950 has been enacted and since implemented into domestic law in the UK via the Human Rights Act 1998 with a view to regulating both formal and informal mechanisms. The provisions of the ECHR 1950 have, however, been founded upon the UN’s Universal Declaration on Human Rights (UDHR) 1948 and include Article 3 regarding the prohibition of torture recognising “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”. However, despite the pointed nature of this provision, the European Court of Human Rights (ECtHR) ruled in Ireland v. UK [1] the five techniques for ‘sensory deprivation’ described (i.e. hooding; wall-standing; deprivation of light; deprivation of food; constant noise) did not fall within the understanding of torture under Article 3 of the ECHR 1950 because they “amounted to a practice of inhuman and degrading treatment”. As a result the ECtHR’s decision has arguably had a bearing upon what torture has been recognised as ever since. [2] However, in Tyrer v. UK, [3] the ECtHR went on to hold “degrading punishment [fell] within the meaning of Article 3 of the Convention” so the UK was guilty of violating Article 3 of the ECHR 1950 because the practices referred to did not occasion suffering of the intensity or cruelty implied by ‘torture’. [4] The reason for this is ‘torture’ has been generally defined as deliberate inhuman treatment causing very serious and cruel suffering to obtain information so it may be an aggravated form. [5]

Such an understanding was then only further supported by The Greek Case [6] where practices including falanga (beating a victim’s feet) and the beating of political detainees to obtain information was held to be torture and inappropriate for maintaining order and discipline. Therefore, the European Convention for the Prevention of Torture & Inhuman or Degrading Treatment or Punishment (ECPT) 1987 that established the Committee for the Prevention of Torture was adopted to oversee compliance with the Convention. In addition, the European Committee for the Prevention of Torture (CPT) has recognised the European Committee may visit countries so as to then “examine the treatment of persons deprived of their liberty with a view to strengthening, . . . , the protection of such persons from torture and from inhuman or degrading treatment or punishment”. [7] However, in R (on the application of Al-Jedda) v. Secretary of State for Defence, [8] a man born in Iraq had been granted asylum and was later granted British nationality. He then went and travelled to Iraq in 2004 and was detained by British armed forces on suspicion of terrorist activities subject to periodic reviews and argued his detention breached his rights to liberty under Article 5(1) of the ECHR 1950 except “in accordance with a procedure prescribed by law”. In this case it was held refusing a claim for judicial review and the recognition of rights under the ECHR 1950 were capable of being overridden by a UN Security Council Resolution and that the UK’s authorisation under UN Resolution 1546 of the 10th of June 2004 to detain the man in this case could be considered an obligation under the UN Charter 1945 that overrode its obligation under the ECHR 1950. Therefore, the UK was entitled to not apply Article 5 of the Convention outlined above to the extent permitted by the aforementioned UN Resolution.

In addition, specifically with regards to strip searching, this procedure is to be read not only in keeping with Article 3 of the ECHR 1950’s prohibition on torture but also in relation to Article 8 regarding the right to privacy and a private life subject to “no interference by a public authority . . . except . . . in accordance with the law . . . in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. By way of illustration, the ECtHR in Lorsé v. the Netherlands [9] accepted that the CPT’s detailed factual description of the conditions of detention in the ‘Extra Security Institution’ (EBI) at the Nieuw Vosseveld Prison Complex in Vught ‘adequately reflect[ed] the situation’ in that establishment amounting to ‘inhuman treatment’. Then, having conducted its own review of the evidence regarding Mr Lorsé’s treatment in the EBI, the ECtHR concluded the combination of routine strip searching allied to the other stringent security measures in the EBI amounted to inhuman or degrading treatment contrary to Articles 3 and 8 of the ECHR 1950. As a result, such a decision taken by the ECtHR was considered to be indicative of the success of the CPT’s monitoring work regarding the increasingly high standard being required by the ECtHR in cases relating to Article 3 of the ECHR 1950 specifically regarding conditions of detention even where the CPT has not visited the specific establishment in respect of which a complaint is raised. [10]

With regards to the matter of segregation, in the case of R v. Deputy Governor of Parkhurst Prison, ex parte Hague [11] the plaintiff claimed damages for being removed from association with other prisoners for a period contrary to Rule 43 of the Prison Rules 1964. Then, in the associated action (Weldon v. Home Office), [12] the plaintiff claimed damages from the Home Office for false imprisonment, based upon a claim he was subjected to an unlawful assault and battery by prison officers whilst in prison. The House of Lords held in R v. Deputy Governor of Parkhurst Prison, ex parte Hague [13] his claim for judicial review was allowed but his claim for an award of damages was rejected, whilst in Weldon v. Home Office [14] the House of Lords ordered his claim for damages to be struck out. Such a view arose because, specifically in R v. Deputy Governor of Parkhurst Prison, ex parte Hague, [15] it was recognised that the primary question is as to whether Parliament actually intended to confer a private law right of action in damages. The reason for this is that it has come to be recognised that it is simply not enough for a claimant to show the relevant provision was designed in general terms to protect a class of individuals to which he belongs, a proposition upon which the plaintiffs had relied upon in R v. Deputy Governor of Parkhurst Prison, ex parte Hague [16] to found their claim. Such a view is reflected in the fact that Lord Bridge concluded in his judgement he could find nothing in Rule 43 of Prison Rules 1964 (or in any context relevant to its construction) that would support the conclusion it was intended to confer a right of action on an individual prisoner. Instead the purpose of Rule 43 is to give an obviously necessary power to segregate prisoners liable to disturb the orderly conduct of the prison generally since the rule is a purely preventive measure. However, it is arguable that such segregation could be considered contrary to Article 3 of the ECHR 1950 on the basis of the case in Mathew v. Netherlands.17 This is the applicant was detained in solitary confinement for an excessive and unnecessary amount of time since he was detained for at least seven months in a cell which failed to provide adequate protection against the weather and he had to endure unnecessary and avoidable physical suffering to gain access to outdoor exercise and fresh air.

Where decisions are to be made within the particular prison itself regarding as to whom should hear prison disciplinary cases, it is necessary to consider the decision in R v. Board of Visitors Hull Prison, Ex Parte St Germain. [17] In this case it was ostensibly decided by the House of Lords that adjudications by Boards of Visitors could be judicially reviewed. The cases themselves arose as a result of the Hull prison riot of 1976 and the subsequent adjudications in view of the fact that, in the riot’s aftermath, 235 prisoners were transferred to 13 different prisons with at least 500 disciplinary charges brought against 185 of these prisoners. Matters were not helped, however, by the fact that itinerant adjudicators heard these cases so that their logistics were somewhat complex. Nevertheless, the Divisional Court held that there had been a substantial breach of the rules of natural justice regarding how certain adjudications were conducted and also established several principles to guide adjudicators in fairly hearing charges internally within prisons in the future – (a) adjudicators must reach decisions on the basis of the evidence provided alone and come de novo to the hearing; (b) the accused has a right to a fair hearing with the courts intervening where a breach of a procedural rule could be said to amount to a a failure to act fairly; (c) hearsay evidence may be accounted for so long as the accused does not dispute it otherwise they need to be allowed to cross examine the witness or else the hearsay evidence would need to be dismissed; and (d) an accused needs to be able to call witnesses if this is necessary to establish a defence/mitigation – although an adjudicator can refuse to hear a witness where this is reasonable, in good faith on proper grounds.

There is also a need to consider the procedural requirements that a system of discipline needs to meet on the basis of the decision in Leech v. Deputy Governor of Parkhurst Prison. [18] This is because, prior to the decision in this case, there had been some significant difficulty in drawing a logical distinction between governors and Boards of Visitors disciplinary functions. [19] However, as has already been alluded to, the distinction was abolished by the decision of the House of Lords in Leech v. Deputy Governor of Parkhurst Prison. [20] As a result, it is clear the functions of a governor adjudicating upon disciplinary charges are separate from those involved with running the prison since they are subject to court supervision under the rules of natural justice. Such recognition of this distinction then arguably became even more important from 1992 when all prison discipline was for the prison Governor to regulate. [21] In addition, the system of prison discipline must be administered by those responsible for prison management so that it has not always proved possible to maintain the distinction between the two functions. [22] However, in the ECtHR decision in Gulmez v. Turkey [23] the applicant was placed in detention on remand on suspicion of murder, armed robbery and membership of an illegal organisation. During his detention six disciplinary sanctions were imposed for damaging prison property, chanting and refusing to be searched leading to the applicant’s complaint about the unfairness of the disciplinary proceedings and the ensuing restriction on his visiting rights for approximately one year contrary to the rights to a fair trial and to privacy and a private life under Articles 6 and 8 of the ECHR 1950.

With this in mind, it is also necessary to consider the punishments for further disciplinary infringements that may legitimately be imposed on prisoners that have already been sentenced. By way of illustration, in Campbell & Fell v. United Kingdom [24] the ECtHR decided that a Roman Catholic priest convicted of being a commander of a IRA active service terrorist unit should succeed in his action to find the government guilty of violating the right to a fair trial under Article 6 of the ECHR 1950 The reason for this is that the UK government had denied the right of legal representation to prisoners facing internal prison disciplinary charges. Problems also arose in the case of R (Al-Hasan & Carroll) v. Home Secretary [25] the House of Lords held there was an appearance of bias when disciplinary proceedings were chaired by the particular prison’s Deputy Governor who had been present when the governor had given instructions the prisoner be subject to a squat search. As a result, the House of Lords in this case quashed the disciplinary award because they believed the deputy governor should have disclosed this fact and either asked for the party’s permission to proceed or stood down from proceedings.

On a more global scale, the United Nations Convention Against Torture (UNCAT) 1984 has been ratified by around 150 countries in seeking to guarantee a universal application derived from the view both the torture and ill-treatment of detainees and prisoners is immoral “without prejudice to any international instrument or national legislation which does or may contain provisions of wider application” [26] At the same time, however, Article 2(1) recognises “Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. In addition, those countries that have ratified the UNCAT 1984 also have a treaty obligation to include the provisions in municipal law under Article 2 so many then formally prohibit acts of torture in their territory. [27] However, ratification of the UNCAT 1984 by a particular country does not prove torture is not used there. Therefore, to provide an additional safeguard, numerous countries also include a right against self-incrimination or explicitly prohibit undue force when dealing with suspects as well as potentially having chosen to abolish the practice of torture officially. [28] Moreover, Article 2(2) of the UNCAT 1984 also recognised a state of affairs whereby no exceptional circumstances may be invoked to justify torture. [29]

Under the UNCAT 1984 it is also important for all State parties to “undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article I, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity”. [30] Article 3 of the Convention also recognised “No State Party shall expel, return (‘refouler’) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”. Then, “For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, . . . , the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights” to determine whether a country should be responsible for failing to prevent acts of torture on its behalf. At the same time, however, the UN Optional Protocol to the Convention Against Torture (OPCAT) 2002 that came into operation on 22nd June 2006 served as an important addition to the UNCAT 1984 because it established “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment”. [31] This was effectively a Subcommittee to the Committee against Torture as a type of international prison inspectorate intended as a complement to national preventive mechanisms to be established by all States. Moreover, each State that ratifies the OPCAT 2006 is also responsible for the establishment or maintenance of at least one independent national preventive mechanism for tortures prohibition [32] – although details of how this part of the OPCAT 2002 will be implemented are still being developed as a means of practice internationally.

To conclude, it is clear that prison law can play an important role in ensuring prison staff do not abuse their powers in the way they maintain order and discipline through a mixture of formal and informal mechanisms. The reason for this is largely founded upon the recognition of international human rights norms that serve to safeguard prisoners rights against abuse from prison staff within the facilities that they are working in. This is because the recognition of international human rights norms also serves to support and regulate all mechanisms that are put into place with a view to then regulating prison staffs activities. Such a view is founded not only upon the ECHR 1950 and its broad application within the EU, but also more broadly around the world through the work of the UN in relation to the specific guarantees made against torture through the UNCAT 1984. However, in view of the fact that the ECHR 1950 is so broad in scope, it also seeks to provide for recognition of the rights to a fair trial and privacy and a private life under Articles 6 and 8 respectively because of the fact also disciplinary procedures implemented internally within prisons must still effectively conform with the scope of such rights.