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Prisoners' Rights Notes

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6: PRISONER'S RIGHTS (i) THE KEY DISTINCTION - PERSONAL LIBERTY V RESIDUAL LIBERTY Lazarus: conception of liberty deprivation Summary: article concerns the legal status of a prisoner in the UK and argues that applying human rights, legality and proportionality principles, the legal status of a prisoner needs to rest on a DIVISIBLE conception of liberty which clearly articulates the KEY DISTINCTION; it is important that any conception of a prisoner's legal status clearly distinguishes between the liberty lost/rights restricted as a consequence of the sentence being imposed as opposed to the rights restricted as a result of the administration of prison; for this to be achieved, the PURPOSE of a custodial sanction needs to be distinguished from the PURPOSE of prison administration; this article makes a comparison with Germany in order to demonstrate that the conception of the prisoner's legal status in the UK is currently UNSTABLE as it often fails to recognise that liberty is divisible and there is no recognition of the purpose behind the administration of prison, causing the legal status of English prisoner's to lack a foundation which is firm enough to satisfy the principles of human rights, legality and proportionality Introduction:
 In the liberal tradition, liberty is considered a prima facie good and liberty deprivation is considered a prima facie wrong, requiring moral justification
 The quest to define liberty and it's deprivation is fraught and there is also disagreement within punishment theory about the moral/political rationales for the imposition of sanctions, the punitive rationale for incarceration and its administrative objective (eg. Should the purpose of incarceration be to incapacitate or should it serve another positive purpose such as rehabilitation?)
 Courts are at the coalface of these disagreements and without clear legislative guidance on the purpose of criminal punishment or prison administration courts are forced to confront these questions on which few people agree and many avoid
 After the HRA came into force, the role of the courts became even more central and at present the judicial conception of the prisoner's legal status in the UK remains underdeveloped, particularly in comparison to Germany where the prisoner's legal status is firmly articulated within a highly articulated rights culture A road map for determining the legal status of a prisoner
 Lazarus presents a modest framework for determining what the conception of a prisoner's legal status should address on the basis of three principles:

1. The human rights principle

2. The principle of legality

3. Proportionality
 The human rights principle establishes a presumption that the branches of government will respect human rights, with the onus of justifying infringements in the language of legality and proportionality
 To satisfy the HR's principle, a conception of a prisoner's legal status must make explicit the line between the limitation of the offender's personal liberty and human rights consequent upon the imposition of the custodial sanction and the limitation on the offender's residual liberty and human rights, occurring as a consequence of the administration of prisons  it is important to determine what is contained in the custodial sanction as a sentence as distinct from what is entailed in the administration of that sentence
 We would only be able to dispense with the need to make the key distinction if we were to accept the view that the offender's liberty was indivisible and accept that liberty is removed in its entirely along with other human rights when the sentence is handed down
 BUT this view of the indivisibility of liberty and the forfeiture of HR's has been rejected and instead it is accepted that offenders retain residual liberty and their human rights post-sentence and this is why it is important to distinguish between the 1

liberty and rights lost in the two contexts This key distinction is also a requirement of the legality and proportionality principles as justifying limitations of rights relative to the purpose of prison administration will be different from justifying rights infringements as a consequence of imposing the sentence
 Guidance as to the purpose/rationale of both the penal sanction and the purpose of prison administration is required; if this is not done, how are we to know whether a particular rights infringement is proportionate to the purpose, if we don't know what the purpose is?  determining the purpose will determine the extent of human rights protections for the prisoner (eg. Whether it is punishment or rehabilitation will affect whether an infringement is justified) BUT this purpose needs to be applied in a stable and consistent manner MAINTAINED IN LAW Germany: divisible and dual conceptions of liberty deprivation
 As a consequence of the strength of German constitutionalism and its codified legal culture, the German conception of the legal status of the prisoner is highly theorised and articulated clearly
 It is made up of 3 basic elements: o It rests on a strict notion of divisible liberty o Dual conception of prisoner's legal status  the prisoner bears negative rights against state infringement as well as positive rights to state action o The resocialisation purpose of imprisonment is constitutionally defined as a consequence of the positive rights of the prisoner and this frames the limitation of the prisoner's negative rights within the prison context
Division is between status liberty/rights and administrative liberty/rights
 Criminal law:
 Prison law in Germany is conceived of as part of the criminal law reflecting the three pillar theory that criminal law consists in three stages: the material criminal law which threatens punishment, the criminal sentence which imposes punishment and the execution/administration of punishment and that there is a different purpose of punishment which predominates each stage of the criminal law (deterrence; retribution; resocialisation)
 A strict distinction is made between decisions concerning sentencing and those concerning administration
 Constitutional law:
 This distinction is also reflected in the constitution
 The German Basic Law expressly regulates the legality of status decisions and a separate constitutional justification for the restriction of rights at the administrative level has been founded by the German Federal Constitutional Court (FCC) in the constitutional resocialisation principle as the purpose of prison administration, whilst the sentencing framework is based on punishment/retribution
 This retributive element is to play no part in the legal justification of prison administrative decisions, which should be based on the resocialisation of the prisoner
 The prisoner's administrative status:
 Negative rights: restricts the extent to which prison administrators can restrict fundamental rights of the prisoner; the FCC held that all basic rights apply to prisoners and this is justified by reference to the protection of freedom and dignity and limitations can only be constitutionally legitimate if they are made pursuant to a primary statute which fulfilled a constitutional purpose
 Positive rights (social integration status): FCC developed the constitutional resocialisation principle in the Lebach decision (fundamental right to resocialisation as a positive right); based on fundamental right of human dignity and freedom of personality and held that a socially isolated existence is opposed to the notion of human dignity and the chance to start afresh should be guaranteed by one's


freedom to develop their personality; positive duty on the state to assist socially vulnerable groups in their social and personal development; this means the German prisoners bears a general positive right to a particular form of prison regime, giving the courts a substantive basis upon which to scrutinise the nature of a prison regime with prisoners being able to assert an economic and social right to the direction of state resources towards the realisation of their resocialisation
 The German conception applied:
 German Prison Act 1976 gave expression to these principles and also details the rights of prisoners in line with the resocialisation purpose and also provides access to a special prison court t assert rights, alongside informal complaint procedures
 Critics were critical of the Act and the FCC was receptive and consistently reiterated its conception of the legal status of the prisoner (eg. In areas of right to prison leave and remuneration) ENGLAND: indivisible and unitary liberty?
 English CL expresses the key distinction requirement by distinguishing between the deprivation of the personal and residual liberty of the offender but unlike Germany, this distinction is less systemic or explicitly central to the conception of prison or criminal law and the legal principles surrounding the ambit of prisoner's residual liberty remain opaque and unstable
 The prisoner's legal status BEFORE the HRA:
 Golder: the ECtHR departed from its prior doctrine that rights restrictions would be an inherent feature of imprisonment and instead the Golder test started out from the position of the prisoner of the prisoner as the bearer of Convention rights and then requires that restrictions of these rights be they express parliamentary words or delegated legislation be assessed in the context of the ordinary requirements of imprisonment and against the proportionality doctrine
 Although the ECtHR asserted the divisibility of the prisoner's liberty and established its own version of the key distinction, this was a more modest expression of it and what is lacking is reference to an overarching administrative purpose
 Raymond v Honey: Lord Wilberforce states that 'under English law, a convicted prisoner in spite of his imprisonment, retains all the civil rights which are not taken away expressly or by necessary implication'
= articulates the key distinction but provides no guidance for defining what shape the prisoner's residual liberty should take
 Leech: Raymond dictum extended aligning it more closely with the thrust of European prisoner's rights jurisprudence
 The more fund. The right interfered with, the more difficult the implication that residual liberty could be limited by prison administration and even where restrictions were permitted by necessary implication, they had to be the minimum necessary  this is a stronger statement that negative aspects of prisoner's fundamental rights would be protected in line with proportionality and minimum interference principles
 BUT still no consensus on the purpose of prison administration generally and so the Leech test remains limited to assessing proportionality relative to the narrow purpose of the actual prison administrative measure in question
 RETREAT: where prison security or public protection was at stake, courts quickly retreated from the ambit/rigour of Leech and instead employed an indivisible conception of liberty
 The prisoner's legal status under the HRA:
 Pearson (voting rights): the reasoning of the first instance decision 3

shows how little the CL had settled about what is entailed in depriving a person of their liberty and how little guidance had been given (*court refused to articulate the legitimate aim of disenfranchisement)
 Mellor: rested on an indivisible view of liberty and instead the proportionality assessment was to be carried out against the broader social aim of punishing an offender and public perceptions able to be taken into account
 DIVISIBLE LIBERTY: o Daly: robust assertion of the key distinction; Bingham restates the Raymond and Leech tests and recognises that some rights require more vigilant protection precisely bc of the restrictions inherent in imprisonment which forms the basis for additional positive rights to be vested in prisoners due to their vulnerability/dependence (more like Germany) o Hirst: Elias J  nec. To decide whether the restriction corresponded to the sentence or administration; BUT danger in reasoning bc questions central to the evaluation of residual rights may be subverted by an ongoing fixation with whether the restriction constitutes part of the sentence of imprisonment or whether it can be characterised as a prison administrative measure which is not satisfactory given the lack of consensus as to the purpose Comparing the German and English conceptions:
 German conception:
 Explicit and clearly articulated legislative and judicial distinction between status and administrative liberty
 Clear division between retributive purpose of imprisonment and the rehabilitative purpose of prison administration
 Legal status of prisoner has negative and positive rights
 English conception: o The key distinction is expressed as between personal and residual liberty but the CL framework on the legal status of the prisoner is opaque in comparison o We know little about the purpose of the sentence and not enough to offer guidance on when restrictions are justified o There is also no fixed way of determining the contours of residual liberty o Negative view of rights protections and no clearly articulated positive or purposive conception of the legal status of the prisoner o The English courts have not developed guidelines for determining what the acceptable limitations of negative rights should be and there is no foundation for the development of special positive rights which apply at the administrative level and instead the approach is piecemeal and focuses on individual negative rights protections at particular times by reference to a shifting conception of purpose
 ECtHR: o Absence of purposive approach to prisoner's rights - no grounded guidance and no particular view of imprisonment purposes
 Explaining the difference: o Reflects a deeper divergence between each countries legal, constitutional and criminal justice cultures o In Germany, prisoner's rights were formed in a post-war political and legal culture shaped by constitutional rights and dominated by rights rhetoric o Germans have sought refuge in an idealist and rationalist constitutional project, where the state is re-legitimised by its capacity to safeguard fundamental rights o The symbolic and institutional power of the FCC is immense and it is in a unique position to enact penal reform o There is also an active and critical penal academy in Germany, whose opinions have fed into the judgments of the FCC o In contrast, the UK experiences an ambivalent cultural relp to fundamental rights, grounded in the confidence gained from the longevity of England's socalled culture of liberty o Constitutional rights don't hold the same symbolic significance and the legal 4

o o

culture is generally insulated from and distrustful of academic opinion and theoretical argument The HR's project in the UK remains a matter of deep controversy and judges remain tentative in their role as guardians of rights Their hesitance is compounded by the absence of statutory authority for judicial intervention within prisons and English courts have been left to carve out their own role, conscious in their intruder status

 A new Prison Act clearly articulating prisoner's legal status would be a crucial advance in this area but statutory reform alone won't solve the problem  the CL has failed in producing a stable conception of the purpose of prison administration and the CL has been unclear in producing a stable conception of the purpose of prison administration and in how the proportionality doctrine applies
 The cases of Raymond, Leech, Daly and Hirst found a conception of the prisoner's legal status which could be built upon, especially as Hirst establishes a basis on which positive rights could be founded
 But without clearer guidance on the purpose of prison administration, these cases won't suffice in anchoring the legal status of the prisoner



 S applied to the ECtHR with a complaint that his continued detention was in breach of A5
 He had committed murder and subject to mandatory life sentence but was released on life licence after he served his tariff
 He was then convicted of cheque fraud and received a six year sentence and his life licence was revoked by the secretary of state
 After he served this sentence and became eligible for release from the fraud sentence, the secretary of state refused to follow the recommendation of the parole board that he should be released and S' detention was continued on the ground that he presented a risk to the community of committing further non-violent offences
 The HoL found that the secretary of state had acted within the discretion conferred by legislation and S argued the actions of the secretary of state which led to his continued detention constituted a breach of his A5(1) and 5



A5(4) rights because the continued detention was not justified by his original sentence for murder and he argued he had been deprived of the opportunity to review the lawfulness of this decision in court Was there a breach of A5(1) and A5(4) by S' continued detention?
After the tariff expired for the fraud offence, did the continued detention of S under the original mandatory life sentence imposed for murder comply with A5?

 The continuing role of the secretary of state in fixing the tariff and deciding on a prisoner's release following the expiry of a tariff had become increasingly difficult to reconcile with the notion of SoP which had assumed growing importance in the case law o Between Strasbourg and the domestic courts, a steady erosion on the scope of the SoS DM power in this field can be identified o The case law demonstrates wider recognition of the need to develop and apply in relation to mandatory life prisoners judicial procedures
 This tariff represented the individual circ's of the offence/offender and represents the element of punishment
 The tariff approach - involves breaking down a life sentence into component parts (retribution, deterrence and protection of the public) and the tariff represents the minimum period to serve to satisfy retribution and deterrence requirements
 Discretionary life sentences vs. mandatory life sentences: o Tariff fixed in open court by TJ after conviction and after the tariff has expired, the prisoner may require the SoS to refer the case to the parole board with the power to order release o Cf. Mandatory life sentences: where the SoS imposed the tariff and can depart from judicial views and then the SoS has the power to release o The court held that domestic law has established there is no distinction between the two in regards to the nature of tarifffixing = a sentencing exercise in both and imprisonment for life is not imposed but instead the tariff reflects individual circumstances and represents the punishment element o The finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic CJS of the mandatory life prisoner o CAVEAT: a whole life tariff can in exceptional circumstances be imposed where it is justified by the gravity of the particular offence
 S had exhausted the punishment element of his offence of murder and after he served his sentence for fraud, his continued detention was not justified by reference to being punished for having committed murder
 The Secretary of state didn't rely on evidence of mental instability/risk to the public of further violence but expressly relied on the risk of further non-violent offending and therefore breached S' A5(1) rights because there was no connection between the commission of further non-violent offences in the future and the original mandatory life sentence imposed for murder
 A DM power held by the executive to detain on the basis of perceived fears of future non-violent criminal conduct unrelated to the original offence does not accord with the spirit of the Convention, which emphasis RoL and protection from arbitrariness A5(4):
 Fixing of a tariff in any life sentence case (mandatory or discretionary) was a sentencing exercise and on the expiry of this tariff, any continued detention needed to depend upon an assessment of risks associated with 6


the original offence committed These elements would be liable to change over time and therefore new issues of lawfulness requiring determination by a body satisfying A5(4) requirements had arisen The original trial/appeal couldn't satisfy the issues pertaining to the continued detention and its compatibility with A5(1) rights and the lawfulness of this continued detention wasn't reviewed by any body with the power to release S or by any procedure which contained judicial safeguards Breach of A5(1) and A5(4) Case stands for the proposition that allowing the executive to set the tariff in life sentence cases/order release = in breach of SoP doctrine Also makes clear that both mandatory and discretionary life sentences are conceptualised as involving retribution (tariff) and prevention (possible further detention) but that prevention must be based on elements of risk associated with the offence associated with the life sentence

 K sentenced to mandatory life imprisonment for premeditated murder
 In 2004, he lodged an application with the court, alleging that A3, A5, A7 and A14 of the Convention were violated as a result of his life sentence/continuing detention
 In a 2008 judgment, the Grand Chamber held there was a violation of A7 only with respect to the quality of the law applicable at the time K committed the offence but there was no violation insofar as K complained about the retrospective imposition of a heavier penalty with regard to his sentence and the changes in the prison law o There was an issue with the quality of the law because at the time mandatory life imprisonment corresponded to a provision in the Criminal Code but at the time of committing the offence, it was clear that executive and administrative authorities understood the regulations as imposing a maximum period of 20 years o The GC held the law was not formulated with sufficient precision to enable the applicant to discern even with advice to a reasonable degree the scope of the penalty of life imprisonment and the manner of its execution
The GC in 2008 found no violation of A3 holding that although the prospect of release for prisoners serving life sentences in Cyprus was limited because an adjustment of a life sentence could only be brought about at the time by the exercise of discretion by the President, subject to the AG's agreement  it could still not be said that the life sentences were irreducible (ie. No prospect of release) and it was clear that although there were shortcomings in the procedure, these life sentences were both de jure and de facto reducible and therefore K could not claim he had been deprived of any prospect of release or that his continued detention was in violation of A3 o K placed great weight on the fact that there was no parole board system in operation in Cyprus but the GC reiterated that matters relating to release policies fall within the power of MS's within the sphere of criminal justice and penal policy (*in any event - changes in the law and parole system coming into play and there was also a new provision which allowed prisoners sentenced to life imprisonment who had served 12 years to apply to the release board for conditional release)
 In 2008, K applied under A53(4) of the Constitution to the President for pardon/conditional release but the AG refused his request
 He submitted new proceedings claiming violation of A3, A5(4), A7 and A14 of the Convention, basing his arguments on the fact that the AG had not 7

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