The applicant had been a discretionary life prisoner. His minimum period of detention had passed, but he continued to be detained under a transfer order for his treatment as mental health patient.
Held: The absence of any means for him to challenge his continued detention infringed his rights. Had the Mental Health Review Tribunal decided he was no longer to be detained, the Secretary of State had a discretion as to whether the case should then be referred to the Discretionary Lifers Panel. The claimant had a right to such a referral. The case of Benjamin now required the procedure to recognise that right. The legislation was not compatible with the Convention because a patient in respect of whom a Tribunal notified the Home Secretary that he should be conditionally discharged, but that if he were not discharged he should continue to be detained in hospital (see section 74(1)(a) and (b)), did not have a legal right to have his case considered by the Parole Board.

Judges:

Stanley Burton J

Citations:

Times 31-Dec-2002, [2002] EWHC 2805 (Admin), [2003] 1 WLR 1318

Statutes:

European Convention on Human Rights 5.4, Crime (Sentences) Act 1997, Mental Health Act 1983 74

Jurisdiction:

England and Wales

Citing:

Confirmed – Regina v Secretary of State for Home Department ex parte H and Others, Regina v Same ex parte Hickey CA 29-Jul-1994
A discretionary life prisoner who had been transferred to a mental hospital is not automatically eligible for a certificate under the section. The right conferred on a discretionary life prisoner by section 34 of the 1991 Act did not extend to those . .

Cited by:

Cited – P, Regina (on the Application of) v Secretary of State for the Home Department Admn 11-Dec-2003
The applicant was a discretionary life prisoner compulsorily detained in a mental hospital. His tariff had now expired. If not detained under the 1983 Act he would now be entitled to a review. He argued that there should be a joint hearing.
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 12 May 2022; Ref: scu.178702

The claimants said that the sanitation arrangements whilst incarcerated at HMP Albany had amounted to degrading treatment, in that the cells had not had in-cell sanitation.
Held: The claims were struck out as a repeat of claims made in the Grant case.

Judges:

Hickinbottom J

Citations:

[2014] EWHC 1624 (QB)

Links:

Bailii

Statutes:

European Convention on Human Rights 3 8

Jurisdiction:

England and Wales

Citing:

Applied – Grant and Another v The Ministry of Justice QBD 19-Dec-2011
To establish a breach of Article 3 the Claimant must show he has suffered the ill- treatment he alleges, and that it amounts to a violation of Article 3. The claimant prisoners complained that a lack of in-cell sanitation infringed their human . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 11 May 2022; Ref: scu.525794

To establish a breach of Article 3 the Claimant must show he has suffered the ill- treatment he alleges, and that it amounts to a violation of Article 3. The claimant prisoners complained that a lack of in-cell sanitation infringed their human rights, and particularly so when confined to their cells for 13 hours overnight.

Judges:

Hickinbottom J

Citations:

[2011] EWHC 3379 (QB)

Links:

Bailii

Statutes:

Prison Act 1952, European Convention on Human Rights 3 8

Jurisdiction:

England and Wales

Cited by:

Cited – Janner, Regina (on The Application of) v The Crown Prosecution Service Admn 13-Aug-2015
The claimant challenged the decision that he should face trial on charges of historic sexual abuse. He was now elderly and said to be unfit to attend court or instruct his lawyers, suffering Alzheimers. He sought interim relief against being . .
Applied – Ashton and Others v The Ministry of Justice QBD 16-May-2014
The claimants said that the sanitation arrangements whilst incarcerated at HMP Albany had amounted to degrading treatment, in that the cells had not had in-cell sanitation.
Held: The claims were struck out as a repeat of claims made in the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 11 May 2022; Ref: scu.450161

The applicant had been sentenced to eight years imprisonment for supplying heroin and released on licence after serving two-thirds of this sentence. He was recalled for breach of the residence conditions of his bail. The Parole Board then considered whether he should be released again and concluded that he should not. He sought to attack this decision by judicial review, but was refused permission. He complained that his recall to detention violated article 5.1 because there was no link between the renewed detention and the original sentence for supplying drugs. He also contended that he was entitled to a court-like review of the justification for his continued detention pursuant to article 5.4.
Held: The comapiant was inadmissible. The recall of a licensee to prison did not to involve the determination of a criminal charge against him: ‘[W]here an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention is incorporated in the trial and appeal procedures . . No new issues of lawfulness concerning the basis of the present applicant’s detention arose on recall and no right to a fresh review of the lawfulness of his detention arose for the purposes of article 5(4) of the Convention.’
‘The court recalls that the applicant was sentenced to a determinate prison sentence of eight years after conviction by a competent criminal court and accordingly, his detention fell within sub-paragraph 1 (a) above. The applicant seeks to argue that after his release on licence he was lawfully at large and his situation was analogous to the situation applicable to the conditional liberty allowed to those on life licence (for example, Weeks v United Kingdom, judgment of 2 March 1987, Series A, no 114) and restricted patients on release from hospital (for example, X v United Kingdom, judgment of 5 November 1981, Series A, no 46) and therefore that his recall had to be properly linked to the basis of his original conviction and in conformity with the varying requirements of article 5.
The court considers however that there is a crucial distinction between the cases cited by the applicant and the circumstances of his own case. Discretionary and mandatory lifers, after the expiry of the punitive element of their sentence, are detained on the basis of risk – the justification for their continued detention is whether it is safe for the public for them to live in the community once more. Similarly the recall of restricted patients is based on factors arising from their mental health. The applicant however has been sentenced to a fixed prison term by a court as the punishment for his offence. The lawfulness of his detention does not depend, in Convention law terms, on whether or not he ceases to be at risk of re-offending. The fact that the applicant before the end of the sentence may expect to be released on licence does not affect this analysis. When such a prisoner is recalled his detention is again governed by the fixed term imposed by the judge conforming with the objectives of that sentence and thus within the scope of article 5 ss 1(a) of the Convention.
Article 5 ss 1 does provide that at all times detention must be ‘in accordance with the law’. The court notes that the basis for the applicant’s recall was considered by the Parole Board, which found that he was in breach of the terms of his licence, and that its decision was in turn subject to judicial review. In the judicial review proceedings the applicant’s arguments concerning the lawfulness of his recall and the Parole Board’s procedure were rejected by the High Court and the Court of Appeal. On the whole bound to respect domestic courts’ interpretation of domestic law (see for example, Benham v United Kingdom, judgment of 10 June 1996, BAILII: [1996] ECHR 22 , Reports 1996-III, ss 41), the court detects no arbitrariness or other feature that would justify it departing from their assessment.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to article 35 ssss 3 and 4 of the Convention.
The applicant complains of lack of a court review of the justification of his continued detention after recall, invoking article 5 ss 4 of the Convention which provides: ‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.
The court recalls that where an applicant is convicted and sentenced by a competent court to a determinate term of imprisonment for the purposes of punishment, the review of the lawfulness of detention is incorporated in the trial and appeal procedures (see, mutatis mutandis, V v United Kingdom, no 24888/94, ECHR 1999-IX, ss 119, BAILII: [1999] ECHR 171 ; Stafford v the United Kingdom, (2002) 35 EHRR 32, ss 87). No new issues of lawfulness concerning the basis of the present applicant’s detention arose on recall and no right to a fresh review of the lawfulness of his detention arose for the purposes of article 5 ss 4 of the Convention.
It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to article 35 ssss 3 and 4 of the Convention.’

Citations:

968/04, Unreported, 26 October 2004

Statutes:

European Convention on Human Rights 5.4

Jurisdiction:

Human Rights

Cited by:

Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – Black, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
Cited – Whiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 09 May 2022; Ref: scu.222100

The defendant had spina bifida from birth and hydrocephalus from shortly after birth with consequent severe disabilities and medical problems. The sentencing court had before it, in support of a contention by the defendant that his imprisonment would amount to a breach of Article 3, reports from medical practitioners and from an Area Manager from NOMS setting out the general principles of provision of care to prisoners, and saying that his medical needs could be dealt with in prison. The judge had sentenced him on the basis that he could be imprisoned in accordance with his Convention rights at a particular prison but passed a reduced sentence on the basis of the principles in Bernard.
Held: A careful review was taken of the way in which that appellant was being treated in prison. In the result the court concluded that his needs could be met at the specified prison.

Citations:

[2009] EWCA Crim 1186

Statutes:

European Convention on Human Rights 3

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Bernard CACD 2-Jul-1996
The court considered the general effect of serious medical condition on sentencing, and how it should allow for such a condition.
Held: A sentencing court is fully entitled to take account of a medical condition by way of mitigation as a . .

Cited by:

Cited – Hall v Regina CACD 8-Feb-2013
The defendant had been convicted of the importation of large volumes of cocaine. He was however at the time of sentencing, ‘a man who suffers from an extremely grave combination of rare long term medical conditions which interfere with virtually all . .
Lists of cited by and citing cases may be incomplete.

Prisons, Criminal Sentencing, Human Rights

Updated: 08 May 2022; Ref: scu.470869

The applicant was serving a long sentence for serious offences. He had submitted several requests for ‘prison leave’ in order to carry out tasks in preparation for his eventual release. These had been refused by the Attorney General. The domestic courts in turn rejected his applications for judicial review on the ground that they had no jurisdiction to intervene.
Held: The circumstances involved the determination of a civil right and that the absence of a judicial remedy involved a violation of Article 6: ‘Whilst it is true that the impact on his private life was indirect, it was nevertheless beyond doubt . . the Court considers that the restriction alleged by the applicant, in addition to its pecuniary implications, related to his personal rights, in view of the significance of the applicant’s interest in resettling in society. In that connection it is of the view that the applicant’s social rehabilitation was crucial to the protection of his right to lead ‘a private social life’ and develop his social identity.’
The violation of Article 6 derived from: ‘the lack of any decision on the merits [which] nullified the effect of the Administrative Court’s review of the Prison Board’s decisions’.
Judge Raimondi (dissenting with Judges Jociene and Sajo) said: ‘In my view, the respondent Government were correct in pointing to the discretionary nature of decisions by the domestic authorities concerning requests for prison leave and in concluding that, where the authorities have discretion as to whether or not to grant a particular concession, that concession does not amount to a ‘right’ and, accordingly, Article 6 . . does not apply to proceedings concerning its granting or otherwise.’ Furthermore, the European Prison Rules contained ‘recommendations’ which ‘by definition’ are not binding.

Judges:

Ireneu Cabral Barreto, P

Citations:

37575/04

Statutes:

European Convention on Human Rights 6

Jurisdiction:

Human Rights

Citing:

Cited – Ganci v Italie ECHR 30-Oct-2003
The applicant was serving two life sentences for Mafia related activities. He challenged nine decrees issued by the Minister of Justice under which he was held under a special prison regime for a period of four years. His case related to delays by . .
Cited – Gulmez v Turkey ECHR 20-May-2008
The applicant complained inter alia of successive decisions which had deprived him of visitation rights for about a year as punishment for disciplinary offences whilst in prison.
Held: ‘the restriction on the applicant’s visiting rights . .
Cited – Enea v Italy ECHR 17-Sep-2009
(Grand Chamber) The applicant, a prisoner serving a long sentence for Mafia-type criminal offences, was subjected to a special regime by ministerial decrees. The restrictions included not only very limited family visits but also a long period . .

Cited by:

See Also – Boulois v Luxembourg ECHR 3-Apr-2012
(Grand Chamber) The claimant complained that as a prisoner he had been deprived of his right to a fair hearing and his right of access to a court in connection with the decisions refusing his requests for prison leave.
Held: The complaint was . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 08 May 2022; Ref: scu.468877

The claimant sought damages after a delay in his parole board hearing was said to have delayed his release.
Held: The court identified four factors affecting the level of damages which might be awarded: The length of the delay, the effect of the delay, the impact on the Claimant and the seriousness of the original offence.

Judges:

Ian Dove QC

Citations:

[2008] EWHC 3198 (Admin)

Cited by:

Cited – Degainis, Regina (on The Application of) v Secretary of State for Justice Admn 3-Feb-2010
The claimant sought damages. He had been released from prison and recalled, but the review of his continued detention was not undertaken as it should have been. The defendant said that the acknowledgement and apology were sufficient just . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 07 May 2022; Ref: scu.396595

Once the punitive or tariff term of imprisonment on a convicted murderer, is completed, risk to life and limb provides the sole ground for continued detention. The Parole Board, being subject to directions from the Home Secretary, was not an independent tribunal which could satisfy the claimant’s right to a fair trial.

Judges:

Walker J

Citations:

[2005] EWHC 546 (Admin), [2006] 1 WLR 1917, [2006] 1 All ER 11

Links:

Bailii

Statutes:

Criminal Justice Act 1991 32(6)

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Appeal From – Girling v Secretary of State for the Home Department and Another CA 21-Dec-2006
The claimant had challenged the findings of the Parole Board in his case, saying that the Board was not an independent tribunal as required under human rights law, since it was subject to direction from the Home Secretary.
Held: The Home . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 06 May 2022; Ref: scu.224534

(Commission) An American citizen was detained in England, and eventually deported to France. He complained that there was discrimination against foreign nationals, who did not challenge orders for deportation but sought parole. That was disputed by the Secretary of State, and the complaint was found to be unsubstantiated, but the Commission did consider the jurisdictional issue. It noted that having been sentenced to serve 5 years imprisonment the applicant could have been expected to serve that sentence, but the Commission went on to say that: ‘If a prisoner pre-release scheme were operated in a discriminatory manner, an issue could arise under Article 5 of the Convention, read in conjunction with Article 14.’

Citations:

12118/86

Statutes:

European Convention on Human Rights 5 14

Cited by:

Cited – Secretary of State for the Home Department v Hindawi and Headley CA 13-Oct-2004
The applicant was a foreign national serving a long-term prison sentence. He complained that UK nationals would have had their case referred to the parole board before his.
Held: The right to be referred to the parole board was a statutory . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 06 May 2022; Ref: scu.220030

The Commission considered whether a prisoner whose rule 39 mail had been opened on 3 occasions in a 15 day period with a further letter having gone missing altogether claimed to be a victim of a violation of article 8.
Held: Inadmissible. The complainer was not a victim because he had failed to demonstrate any deliberate flouting of his rights. The Commission stated: ‘The Commission’s previous law indicates that the opening of a prisoner’s correspondence with his solicitor may raise issues under article 8 of the convention. In the case of McCombe v. The United Kingdom (no. 10621/83, December 11.3.85, to be published in DR) the Commission declared admissible the complaints of a prisoner regarding the censorship of his correspondence with his solicitors. The Commission also recalls that pursuant to a friendly settlement in that case, the United Kingdom government agreed to issue instructions that such correspondence would not be opened, save in the presence of the prisoner concerned.
The Commission notes that these instructions appear to have been implemented in the prisons in which the applicant was detained but that various incidents occurred in which letters from his solicitors were nonetheless opened. The Commission further notes that the applicant was able to complain to the governor and the secretary of state concerning these incidents and received various apologies and explanations, which the commission finds to be reasonable in the circumstances of this case. In the absence of any evidence of a deliberate flouting or disregard of the secretary of state’s instructions, the Commission finds that the applicant can no longer claim to be a victim of a violation of article 8 of the Convention.’

Citations:

14176/88

Statutes:

European Convention on Human R

Jurisdiction:

Human Rights

Citing:

Cited – McCombe v The United Kingdom ECHR 12-Nov-1985
The Commission declared admissible the complaints of a prisoner regarding the censorship of his correspondence with his solicitors. (Settlement: the United Kingdom government agreed to issue instructions that such correspondence would not be opened, . .

Cited by:

Cited – Bruton v The Governor of HMP Swaleside and Another Admn 19-Apr-2017
The prisoner complained that his protected correspondence had been wrongfully opened by prison staff. Despite a finding in his favour by the Prisons Ombudsman, the service had repeatedly failed either to change its behaviour or to apologise.
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 06 May 2022; Ref: scu.582167

The Commission declared admissible the complaints of a prisoner regarding the censorship of his correspondence with his solicitors. (Settlement: the United Kingdom government agreed to issue instructions that such correspondence would not be opened, save in the presence of the prisoner concerned.)

Citations:

10621/83

Jurisdiction:

Human Rights

Cited by:

Cited – Ryder v United Kingdom ECHR 19-Jan-1989
The Commission considered whether a prisoner whose rule 39 mail had been opened on 3 occasions in a 15 day period with a further letter having gone missing altogether claimed to be a victim of a violation of article 8.
Held: Inadmissible. The . .
Cited – Bruton v The Governor of HMP Swaleside and Another Admn 19-Apr-2017
The prisoner complained that his protected correspondence had been wrongfully opened by prison staff. Despite a finding in his favour by the Prisons Ombudsman, the service had repeatedly failed either to change its behaviour or to apologise.
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 06 May 2022; Ref: scu.582166

A single letter to a prisoner had been wrongfully opened by mistake.
Held: A distinction was drawn from a case where, by reason of their repetition, incidents had revealed a malfunctioning of the mail service within the prison interfering with the right to respect for correspondence within article 8

Citations:

35502/97

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Cited – Bruton v The Governor of HMP Swaleside and Another Admn 19-Apr-2017
The prisoner complained that his protected correspondence had been wrongfully opened by prison staff. Despite a finding in his favour by the Prisons Ombudsman, the service had repeatedly failed either to change its behaviour or to apologise.
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 06 May 2022; Ref: scu.582170

Article 3 requires: ‘the state to ensure that prisoners are detained in conditions which are compatible with respect for human dignity, that the manner and method of the execution of the measure do not subject them to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, their health and well-being are adequately secured by, among other things, providing them with the requisite medical assistance.’

Citations:

(2006) 42 EHRR 4

Statutes:

European Convention on Human Rights 3

Cited by:

Cited – Regina v Qazi and Another CACD 4-Nov-2010
The defendant appealed against sentence, saying that given his serious medical condition, any imprisonment would threaten his human rights.
Held: The court set out the law. A court imposing a sentence should not concern itself with the . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 06 May 2022; Ref: scu.470868

The two applicants complained that they had been held in solitary confinement for seven months after receipt of intelligence about an escape plan.
Held: There had been a violation of the prisoners’ article 6 rights. They had been given no access to the courts: ‘the placement of the applicants in high-security cells led in particular, in addition to solitary confinement in itself . . the restriction of visits to one hour a week – with prisoner and visitor separated by a glass panel – the restriction of exercise to one hour a day and the impossibility, for the first applicant, of continuing with his studies and sitting exams . . these are restrictions on ‘individual civil rights’. Such restrictions on the prisoner’s rights, as well as the repercussions that they may have, must therefore be analysed in terms of ‘civil rights’ (see Enea).’

Citations:

46194/06

Links:

Hudaoc

Citing:

Cited – Ganci v Italie ECHR 30-Oct-2003
The applicant was serving two life sentences for Mafia related activities. He challenged nine decrees issued by the Minister of Justice under which he was held under a special prison regime for a period of four years. His case related to delays by . .
Cited – Gulmez v Turkey ECHR 20-May-2008
The applicant complained inter alia of successive decisions which had deprived him of visitation rights for about a year as punishment for disciplinary offences whilst in prison.
Held: ‘the restriction on the applicant’s visiting rights . .
Cited – Enea v Italy ECHR 17-Sep-2009
(Grand Chamber) The applicant, a prisoner serving a long sentence for Mafia-type criminal offences, was subjected to a special regime by ministerial decrees. The restrictions included not only very limited family visits but also a long period . .

Cited by:

Cited – King v Secretary of State for Justice Admn 13-Oct-2010
The claimant sought judicial review of decisions that the claimant had committed a disciplinary offence whilst in custody at a Young Offenders Institute.
Held: The claim failed.
Pitchford LJ considered the ECHR jurisprudence, and said: . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 06 May 2022; Ref: scu.468876

(Commission – Plenary) – Inadmissible – article 6 inapplicable. The categorisation of a prisoner is ‘administrative’ rather than a determination of disputes about civil rights.

Citations:

8575/79

Statutes:

European Convention on Human Rights 6

Cited by:

Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 06 May 2022; Ref: scu.468878

Appeal from a decision that article 5(4) of the Convention did not apply to the recall from parole licence of determinate sentence prisoners. The judge also found that there was no breach of the common law duty of the Parole Board to make decisions concerning the liberty of offenders without undue delay.

Judges:

Lady Justice Nicola Davies DBE

Citations:

[2019] EWCA Civ 229

Links:

Bailii

Statutes:

European Convention on Human Rights 5(4)

Jurisdiction:

England and Wales

Human Rights, Prisons

Updated: 04 May 2022; Ref: scu.634078

fereot_franceECHR062007

ECHR A former member of the extreme left armed movement ‘Action directe’, the applicant, convicted in 1995 to 30 years’ imprisonment for – among other offences – terrorism, complained about strip searches in prison. Violation of Articles 3 (prohibition of inhuman and degrading treatment), 8 (right to respect for private and family life), 13 (right to an effective remedy) and 6-1 (right to a fair trial)

Citations:

70204/01

Links:

ECHR

Human Rights, Prisons

Updated: 04 May 2022; Ref: scu.511155

The Commission considered a complaint by a prisoner as to a refusal to allow him conjugal relations with his wife while he was in prison.

Citations:

(1997) 91 A-DR 61

Statutes:

European Convention on Human Rights 12

Jurisdiction:

Human Rights

Cited by:

Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 01 May 2022; Ref: scu.272205

The court considered the denial to a husband and wife of the opportunity to enjoy sexual relations while they were both in prison.

Citations:

(1978) 13 DR 241

Statutes:

European Convention on Human Rights 12

Cited by:

Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 01 May 2022; Ref: scu.272204

(Commission) The Commission looked to the admissibiliity of a complaint by Rudoph Hess who was incarcerated by the respondent state in Spandau prison. The prison was in the British sector in Berlin under the control of the four WWII Allied powers.
Held: If the agreement had been concluded after the UK acceded to the Convention, the incarceration might have been subject to Articles 3 and 8 under the SAA doctrine.
The United Kingdom acts only as a partner in the joint quadrapartite organisation of the Spandau prison and of R Hess’s detention. It does not follow from that United Kingdom participation that the admininstration and supervision of the prison are a matter ‘within the jurisdiction’ of the United Kingdom. An issue could have arisen only if an agreement concerning Spandau Prison had been entered into when the Convention was already in force for the United Kingdom Government.

Citations:

DC 138, 6231/73

Statutes:

Eueopean Convention on Human Rights 3 8

Cited by:

Cited – Regina (on the Application of Mazin Mumaa Galteh Al-Skeini and Others) v The Secretary of State for Defence CA 21-Dec-2005
The claimants were dependants of Iraqi nationals killed in Iraq.
Held: The Military Police were operating when Britain was an occupying power. The question in each case was whether the Human Rights Act applied to the acts of the defendant. The . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 01 May 2022; Ref: scu.238297

The Commission declared inadmissible a complaint that Standing Order 5 G 2B infringed Article 10. The Order precluded prisoners from contacting the media by telephone except in exceptional circumstances. The Standing Order satisfied the requirement that the interference with the applicant’s Article 10 rights should be ‘prescribed by law’. ‘the assessment of whether the interference was necessary must be made having regard to the ordinary and reasonable requirements of imprisonment, and that some measure of control over the content of prisoners’ communications – the scope of which is not in issue in the present case – is not in itself incompatible with the Convention.’

Citations:

33742/96

Citing:

See Also – Regina v Secretary of State for Home Department Ex Parte Hickey and Others, Same Ex Parte Bamber; Same Ex Parte Malone (No 2) QBD 29-Nov-1994
The Home Secretary is obliged to disclose new evidence to a defendant before rejecting his application for a reference to Court of Appeal. The Home Secretary’s powers to refer a case back to the Court of Appeal (Criminal Division) was an integral . .
See Also – Regina v Secretary of State for the Home Department, Ex Parte Bamber CA 15-Feb-1996
The right of a prisoner to provide a recorded message for a radio station could properly be curtailed. . .

Cited by:

Cited – Nilsen v HM Prison Full Sutton and Another CA 17-Nov-2004
The prisoner, a notorious murderer had begun to write his autobiography. His solicitor wished to return a part manuscript to him in prison to be finished. The prison did not allow it, and the prisoner claimed infringement of his article 10 rights. . .
See Also – Regina v Secretary of State for Home Department (ex parte Bamber) Admn 24-Apr-1998
The applicant was refused leave to apply for judicial review of a decision as to his release made on the basis of his refusal to accept his guilt. . .
See Also – Bamber v Regina CACD 12-Dec-2002
. .
See Also – Bamber, Regina v CACD 14-May-2009
The defendant had been convicted in 1986 of the murder of five members of his adoptive family. The judge had initially recommended a minimum term of 25 years. A later judge had suggested a whole life term. The convictions had been upheld in 2002. . .
Cited – British Broadcasting Corporation (BBC) and Another, Regina (on The Application of) v Ahmad Admn 11-Jan-2012
The BBC wished to interview the prisoner who had been detained pending extradition to the US since 2004, and now challenged decision to refuse the interview.
Held: The claim succeeded. The decision was quashed and must be retaken. If ever any . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 30 April 2022; Ref: scu.219481

(Canada) One of the limitations on a prisoner’s rights arising out of his conviction and imprisonment was his subjection to searches necessary for the security and good order of the prison: ‘Nevertheless, such searches should be subject to some control to ensure that they are truly used for the purposes which justify this infringement of normal human rights. I have concluded that while there is a place for routine skin searches without the need for prior authorization specific to that search, and without the need for showing reasonable and probable cause to suspect the particular inmate searched to be concealing some forbidden item, the circumstances in which such routine searches are authorized should be laid down by Regulation. Such rules will have to be, in themselves, reasonable in identifying situations in which, by reason of probability of, or opportunity for, concealment of contraband, or the need for deterrence of smuggling, a routine strip search is justified in the public interest. As for non-routine searches, I can see no reason why there should not also be some legal rules providing for such situations. There might be, for example, a rule providing that, in case of an immediate and specific security or enforcement problem, a general skin search could be conducted of all or a certain group of inmates. This could arise, for example, where an inmate has been stabbed in a cell block and it is thought necessary to skin search all inmates there for the weapon. But where, apart from such routine or general skin searches, individual inmates are to be skin searched, there should be a rule requiring those conducting the search to have reasonable and probable cause for believing that the inmate in question is concealing some prohibited matter on his person. Where time or circumstances do not permit those conducting non-routine searches to obtain authority from a superior officer, there should be some meaningful requirement of review by such superior officer after the event.’

Judges:

Strayer J

Citations:

1988 1 FC 369

Jurisdiction:

Canada

Cited by:

Cited – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 30 April 2022; Ref: scu.211430

The applicant challenged the refusal to move him to open conditions within the prison system.
Held: ‘Article 5(4) does not . . preclude the Secretary of State from taking a different view than the Discretionary Life Panel of the Parole Board as to whether or not the applicant should be moved to open conditions.’

Judges:

Rose LJ

Citations:

[2000] Prison Law Reports 257

Statutes:

European Convention on Human Rights 5.4

Citing:

Cited – Ashingdane v The United Kingdom ECHR 28-May-1985
The right of access to the courts is not absolute but may be subject to limitations. These are permitted by implication since the right of access ‘by its very nature calls for regulation by the State, regulation which may vary in time and place . .

Cited by:

Approved – Williams v The Secretary of State for the Home Office CA 17-Apr-2002
The applicant was a post-tariff discretionary life prisoner, applying for a change in his security classification. He sought disclosure of his security report which was denied by the respondent. He alleged a breach of his human rights.
Held: . .
Cited – Regina (on the Application of Cawser) v Secretary of State for the Home Department CA 5-Nov-2003
The claimant was serving a prison sentence for serious sexual offences. He would not be released until he had completed a sex offenders programme, but one was not made available, delaying his release.
Held: ‘The Secretary of State is not under . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 29 April 2022; Ref: scu.187526

Hudoc Judgment (Merits and just satisfaction) Violation of Art. 8; Violation of Art. 13; Non-pecuniary damage – finding of violation sufficient
Four Rule 39 letters had been opened over a 5 month period.
Held: The prisoner could not claim to be a victim of a violation of article 8.

Citations:

48521/99

Statutes:

European Convention on Human Rights 8

Jurisdiction:

Human Rights

Cited by:

Cited – Bruton v The Governor of HMP Swaleside and Another Admn 19-Apr-2017
The prisoner complained that his protected correspondence had been wrongfully opened by prison staff. Despite a finding in his favour by the Prisons Ombudsman, the service had repeatedly failed either to change its behaviour or to apologise.
Lists of cited by and citing cases may be incomplete.

Human Rights, Prisons

Updated: 28 April 2022; Ref: scu.174784

It is lawful for a prison to deny any physical contact between a prisoner categorised as high risk, and any visitors.

Citations:

Times 26-Oct-1995, Independent 24-Oct-1995

Jurisdiction:

England and Wales

Human Rights, Prisons

Updated: 28 April 2022; Ref: scu.87887

The non-referral of lifers to the Parole Board till the minimum tariff had expired was unreasonable. A decision of the Parole Board, which is chaired by a High Court judge, can be the subject of judicial review.

Citations:

Times 06-Oct-1995, Independent 04-Oct-1995, [1995] 7 Admin LR 861

Statutes:

Criminal Justice Act 1991, European Convention on Human Rights

Jurisdiction:

England and Wales

Cited by:

Cited – Hussain, Regina (on the Application of) v Crown Prosecution Service Admn 29-Aug-2006
The claimant challenged the decision to extend his detention for questioning to 21 days. . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 28 April 2022; Ref: scu.87818

Whether the Court of Appeal erred (i) in its approach to international materials and (ii) by failing to apply a ‘strict necessity’ test when determining whether the Respondent’s treatment of the Appellant during the first 55 days of his detention at Feltham Young Offenders’ Institution breached Article 3 of the European Convention on Human Rights?
‘it is not the function of our domestic courts to establish new principles of Convention law. But that is not to say that they are unable to develop the law in relation to Convention rights beyond the limits of the Strasbourg case law. In situations which have not yet come before the European court, they can and should aim to anticipate, where possible, how the European court might be expected to decide the case, on the basis of the principles established in its case law. Indeed, that is the exercise which the High Court and the Court of Appeal undertook in the present case. The application of the Convention by our domestic courts, in such circumstances, will be based on the principles established by the European court, even if some incremental development may be involved. ‘

Judges:

Lord Reed, President, Lord Lloyd-Jones, Lord Sales, Lord Hamblen, Lord Stephens

Citations:

[2021] UKSC 28

Links:

Bailii, Bailii Press Summary, Bailii Issues and Facts

Jurisdiction:

England and Wales

Prisons, Human Rights

Updated: 28 April 2022; Ref: scu.665999

The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced investigation as exists after a suicide, though: ‘The initial investigation should be prompt, so that the facts are investigated while the evidence is still fresh and the material witnesses are readily available to be questioned. If all such witnesses give their evidence readily, the course of events appears clear and the circumstances in which the attempted suicide took place are shown to involve neither a possible defect in the system for preventing suicide nor a possible shortcoming on the part of any one in operating that system, the initial investigation may satisfy the requirement of efficacy without the need for further inquiry.’ In this case a further investigation had already been conducted and the appeal failed.
Lord Rodger of Earlsferry said: ‘Whenever a prisoner kills himself, it is at least possible, that the prison authorities, who are responsible for the prisoner, have failed, either in their obligation to take general measures to diminish the opportunities for prisoners to harm themselves, or in their operational obligation to try to prevent the particular prisoner from committing suicide. Given the closed nature of the prison world, without an independent investigation you might never know. So there must be an investigation of that kind to find out whether something did indeed go wrong. In this respect a suicide is like any other violent death in custody. In affirming the need for an effective form of investigation in a case involving the suicide of a man in police custody, the European court held that such an investigation should be held ‘when a resort to force has resulted in a person’s death’: Akdogdu v Turkey, para 52 ‘

Judges:

Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance

Citations:

[2008] UKHL 68, Times 02-Dec-2008, [2009] UKHRR 415, [2009] 2 All ER 521, [2009] 1 AC 588, [2009] HRLR 9, [2008] 3 WLR 1325

Links:

Bailii, HL

Jurisdiction:

England and Wales

Citing:

Appeal from – JL, Regina (on the Application of) v Secretary of State for the Home Department CA 24-Jul-2007
The court was asked to order a public enquiry into an attempted suicide in prison. Waller LJ was anxious about the task of defining suicide and near suicide: ‘I am clear that the simple fact of a death or serious injury of a person in custody gives . .
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department Admn 28-Apr-2005
D was undergoing trial for offences and was held in prison. He self-harmed repeatedly, and was recorded to require extra vigilance. He attempted to hang himself. Prison staff saved his life, but he was left paraplegic, and was then detained under . .
Cited – D, Regina (on the Application of) v Secretary of State for the Home Department (Inquest Intervening) CA 28-Feb-2006
The respondent appealed from orders made as to the conduct of an investigation into an attempted suicide in prison. The judge had severely criticised the appellant’s treatment of the case.
Held: The appeal failed. The court recited the . .
Cited – McCann and Others v The United Kingdom ECHR 6-Oct-1995
Wrong assumptions made by police officers in the killing of terrorists amounted to a human rights breach, despite the existence of danger to the public of an imminent attack. Article 2(1) is ‘one of the most fundamental provisions in the . .
Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .
Cited – Sacker, Regina (on the Application of) v Coroner for the County of West Yorkshire HL 11-Mar-2004
The deceased committed suicide in prison. Her family sought to have added to the verdict the words ‘contributed by neglect’ and complained that the inquest had not provided a full and proper investigation of the death.
Held: The Act needed to . .
Cited – Jordan v United Kingdom; McKerr v United Kingdom; similar ECHR 4-May-2001
Proper Investigation of Deaths with Army or Police
Claims were made as regards deaths of alleged terrorists in clashes with the UK armed forces and police. In some cases the investigations necessary to justify the taking of life had been inadequate. Statements made to the inquiry as to the . .
Cited – Salman v Turkey ECHR 27-Jun-2000
Where someone dies or is injured whilst in custody the burden is on the state to provide a ‘satisfactory and convincing explanation’ of what has happened: ‘Persons in custody are in a vulnerable position and the authorities are under a duty to . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Renolde v France ECHR 16-Oct-2008
A prisoner with mental health problems committed suicide during pre-trial detention. It was said that the state had infringed his article 2 right.
Held: The court noted the vulnerability of persons in custody, especially those who were . .
Cited – Tanribilir -c- Turquie ECHR 16-Nov-2000
The Court observed that, by its very nature, any deprivation of physical liberty carries with it a risk of suicide, against which the authorities must take general precautions. . .
Cited – Banks v United Kingdom ECHR 6-Feb-2007
The applicants complained of maltreatment by prison officers in breach of article 3. The matter had been investigated by the Crown Prosecution Service which had decided not to prosecute. Civil proceedings had been raised and settled. The applicants . .
Cited – Bazorkina v Russia ECHR 27-Jul-2006
Whoever is to carry out an investigation into a death in the custody of the state must be independent of the Ministry of Justice and in a position to set to work and complete the investigation reasonably quickly. . .
Cited – Keenan v The United Kingdom ECHR 3-Apr-2001
A young prisoner was known to be at risk of suicide, but nevertheless was not provided with adequate specialist medical supervision. He was punished for an offence, by way of segregation which further put him at risk.
Held: Inhuman and . .
Cited – Edwards v The United Kingdom ECHR 14-Mar-2002
The deceased, a young man of mixed race, had been placed in a cell with another prisoner who was known to be violent, racist, and mentally unstable. The staff knew that the panic button was defective. The deceased was murdered by his cell-mate. His . .
Cited – Ramsahai and Others v The Netherlands ECHR 10-Nov-2005
(Grand Chamber) The police had shot someone suspected of stealing a scooter. The family complained that they had not been given full access to the documents seen by the enquiry into his death.
Held: In order to be ‘effective’ as this . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – Anguelova v Bulgaria ECHR 13-Jun-2002
A youth had died in police custody a few hours after being arrested for attempted theft.
Held: The court considered the investigation required: ‘There must be a sufficient element of public scrutiny of the investigation or its results to . .
Cited – Younger v The United Kingdom ECHR 7-Jan-2003
Prison authorities are not obliged to regard all prisoners as potential suicide risks. It was not shown that the police should have known that their prisoner was a suicide risk. . .
Cited – Akdogdu v Turkey ECHR 18-Oct-2005
ECHR Judgment (Merits and Just Satisfaction) – No violation of Art. 2; Violation of Art. 3; Non-pecuniary damage – financial award; Costs and expenses partial award – domestic proceedings; Costs and expenses . .
Cited – Makaratzis v Greece ECHR 20-Dec-2004
Police had shot at the applicant’s car being driven through road blocks. The claimant was injured. After an administrative investigation seven police officers were prosecuted but acquitted.
Held: There had been striking omissions in the . .
Cited – Barbara Francis v The United Kingdom ECHR 8-Apr-2003
. .
Cited – Tomlinson v Congleton Borough Council and others HL 31-Jul-2003
The claimant dived into a lake, severely injuring himself. The council appealed liability, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s . .
Cited – Amin, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Oct-2003
Prisoner’s death – need for full public enquiry
The deceased had been a young Asian prisoner. He was placed in a cell overnight with a prisoner known to be racist, extremely violent and mentally unstable. He was killed. The family sought an inquiry into the death.
Held: There had been a . .

Cited by:

Cited – Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) HL 10-Dec-2008
The deceased had committed suicide on escaping from a mental hospital. The Trust appealed against a refusal to strike out the claim that that they had been negligent in having inadequate security.
Held: The Trust’s appeal failed. The fact that . .
Cited – Morrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .
Cited – Tyrrell v HM Senior Coroner County Durham and Darlington and Another Admn 26-Jul-2016
The court was aked what article 2 of the European Convention on Human Rights requires of a coroner when a serving prisoner dies of natural causes.
Held: The reuest for judicial review failed. Mr Tyrrell’s death was, from the outset, one which . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 24 April 2022; Ref: scu.278296

The applicant was serving life imprisonment for murder. He had been released on licence subject to a condition excluding him from the area of his former home. He claimed this condition was unlawful. The applicant’s own family connections were within that area. He claimed the condition was imposed for questions of public acceptability, and infringed his right to family life. An interference with those rights required justification. The interference was according to law. The need to respect the feelings of victims is appropriate. The original exclusion zone was not thought out properly, but the second was. The exclusion zone condition was proportionate and valid.

Judges:

The Honourable Mr Justice Stanley Burnton

Citations:

[2001] EWHC Admin 850

Links:

Bailii

Statutes:

Criminal Justice Act 1991 Part II, Criminal Justice and Court Services Act 2000 69

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Secretary of State For The Home Department Ex Parte Stafford HL 12-Mar-1998
The Home Secretary had the right not to follow a Parole Board’s recommendation to release a prisoner after the service of the tariff part of his sentence, where he was satisfied that the offender would commit further offences, even if those offences . .
Lists of cited by and citing cases may be incomplete.

Prisons, Human Rights

Updated: 12 April 2022; Ref: scu.166551