#14823 - Prisoners' Rights - Criminal Justice, Security, & Human Rights

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 under-developed, 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 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:

• It rests on a strict notion of divisible liberty

• Dual conception of prisoner’s legal status the prisoner bears negative rights against state infringement as well as positive rights to state action

• 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...