Joint Committee on Human Rights Inquiry – Human rights
judgments, September 2013
The Prison Reform Trust is an independent UK charity working to create a just, humane
and effective prison system. We do this by inquiring into the workings of the system;
informing prisoners, staff and the wider public; and by influencing Parliament,
government and officials towards reform. We welcome the opportunity to make a
submission to the Committee.
The right to a review for ‘whole life tariff’ (Vintner v UK)
The court found that the practice of detaining a prisoner without the possibility for review
was incompatible with Article 3. Prior to the Criminal Justice Act 2003, there was a
legislative provision allowing for the review of whole-life tariff prisoners’ detention every
25 years. This was omitted from the new legislation. Re-establishing the principle of right
to review helps to restore balance to a penal system distorted by the 2003 Criminal
Justice Act. The purpose of sentencing is both punishment and rehabilitation, reinstating
the possibility of review, albeit with little prospect of release, puts a degree of hope into
the lives of those very few people serving whole-life tariffs and affirms prison staff in their
work to enable prisoners to progress even the longest of sentences.
Previously, the review process took place at the 25 year point. The difficulty with a
review scheduled at the 25 year point is that this could result in a prisoner sentenced to
a whole life term having their detention reviewed (and therefore potentially being
recommended for release) before life sentenced prisoners’ with prescribed tariff’s which
exceed 25 years. This led to inconsistencies and we would therefore suggest that all
long tariff prisoners be entitled to review at the 25 year point.
Current sentencing principles that include the starting point for a life sentence tariff of 30
years has skewed the system, increasing tariff length and creating inconsistencies in
sentencing. The government needs to consider how it reviews whole life term prisoners’
in a way that differentiates from other life sentenced prisoners. The key is that a review
takes place both initially, and then when appropriate, at subsequent intervals.
In addition, rather than legislation setting mandatory minimum terms for life sentenced
prisoners, judges should have discretion to set tariffs (alongside good sentencing
guidelines). There has been an increase in mandatory and discretionary life sentences
and an up-scaling in tariff lengths. Proportionality and consistency need to be
reintroduced into the system.
The right of IPP prisoners to a speedy review of the lawfulness of their detention
and to access rehabilitative courses (Betteridge v UK; James, Wells and Lee v UK)
In James, Wells and Lee the court ruled that the rights of three prisoners serving
indeterminate sentence for pubic protection (IPPs) had been breached as reasonable
provision for their rehabilitation was not made. The lawfulness of indefinite detention
based on a risk to the public has to be balanced against whether the risk is addressed in
detention. The prison service has made efforts to address this situation but these have
not gone far enough. The government should now review all post tariff IPP cases
(around 3,500 people) and reassess risk, allocate additional offender management
resources and prioritise courses and offending behaviour work. The Secretary of State
should introduce new guidance and directions for the Parole Board to assess risk and for
the release test, as introduced in the Legal Aid, Sentencing and Punishment of
Offenders Act. A new release test should be introduced, that puts the obligation on the
state to prove that someone is still a risk if the state is opposing release.
The National Offender Management Service should extend the use of the open estate
and use of release on temporary licence for IPP prisoners to maximise their chances of
preparation for release. The Ministry of Justice should issue new guidance so that the
policy of needing a Parole Board decision to move IPP prisoners to open conditions is
removed. This decision could be made by prison staff, as it is with determinately
sentenced prisoners. This is policy not law and could be changed without legislation.
This would also lessen the Parole Board’s caseload and help to ensure the Parole Board
has the resources to regularly review IPP sentenced prisoners for release within a
reasonable period of time in line with Betteridge.
The state’s positive obligation to investigate allegations of slavery, servitude,
forced or compulsory labour (CN v UK)
The Committee is particularly concerned with the state’s positive obligation to investigate
allegations of slavery, servitude, forced or compulsory labour, as highlighted by the case
CN v UK. This is directly relevant to the treatment of people in prison who have been
coerced or trafficked into offending. We are concerned that that the government is in
breach of its obligations under existing international law.
Many people who have been coerced or trafficked into criminal behaviour are in prison
either on remand or serving a sentence. We welcome the recent announcement by the
Home Secretary Theresa May of the Government’s intention to introduce an anti-slavery
law which would make the organisation of slavery an aggravated criminal offence.1 Too
often it is the victims of human trafficking instead of the perpetrators who end up being
prosecuted and imprisoned for offences committed under the threat of violence and
intimidation.
Two reports, one published by the Prison Reform Trust and Hibiscus,2 and the other by
the University of Cambridge, supported by the Economic and Social Research Council,3
Leppard, D (2013) ‘May plans ant-slavery law to fight traffickers’, The Sunday Times, 25 August
2013
2 Prison Reform Trust and Hibiscus (2012), No Way Out: A briefing paper on foreign national
women in prison in England and Wales, London: Prison Reform Trust. Available at
http://www.prisonreformtrust.org.uk/Portals/0/Documents/NoWayOut.pdf
1
have underlined the lack of support available to foreign national women in custody in
England and Wales who have been trafficked into offending. The latter by Professor
Loraine Gelsthorpe and Dr Liz Hales examines the case management of migrant women
in the criminal justice and immigration systems, including the identification of trafficked
women. It found violence, intimidation and rape were common experiences of the
women, but evidence of their suffering was often overlooked and they did not receive the
protection guaranteed to them as victims of human trafficking under international law. In
only one of the 43 cases of human trafficking identified by the researchers did victim
disclosures result in a full police investigation in relation to the actions of the
perpetrators.
Protection for victims of human trafficking from prosecution relating to offences
committed as a result of their being trafficked is enshrined in international agreements
and domestic case law. The EU Directive on Trafficking, now in force, specifies that
“Victims of trafficking in human beings should, in accordance with the basic principles of
the legal systems of the relevant Member States, be protected from prosecution or
punishment for criminal activities such as the use of false documents, or offences under
legislation on prostitution or immigration, that they have been compelled to commit as a
direct consequence of being subject to trafficking.”4 The UN Protocol to Prevent
Trafficking in Persons, Especially Women and Children, requires governments to ensure
that trafficked persons are not punished for any offences or activities related to their
having been trafficked (e.g. prostitution, immigration violations).5 In addition, the
UNOHCHR (2002) Recommended Principles and Guidelines on Human Rights and
Human Trafficking: Guideline 2 Paragraph 5, states: “Ensuring that trafficked persons
are not prosecuted for violations of immigration laws or for the activities they are
involved in as a direct consequence of their situation as trafficked persons.”
A recent Court of Appeal decision overturning the convictions of three children and one
adult woman accepted that that there is a heavy onus on police and prosecutors to
thoroughly investigate trafficking allegations so that unnecessary prosecutions do not
happen, and that courts should stay prosecutions where there is evidence that the
defendant may have been trafficked.6 We would like to see this decision reflected more
clearly in guidance and training for police, prosecution authorities and courts. The
Criminal Case Review Commission should be encouraged to review the convictions of
vulnerable women and children in custody who may have been trafficked into offending.
We also note and support the recent calls for improved care and support of children and
young people who have been trafficked into offending.7
3
Gelsthorpe, L. & Hales, L. (2012) The Criminalisation of Migrant Women, Cambridge: University
of Cambridge. Available at
http://www.crim.cam.ac.uk/people/academic_research/loraine_gelsthorpe/criminalreport29july12.
pdf
4 Directive 2011/36/EU Of The European Parliament And Of The Council of 5 April 2011 on
preventing and combating trafficking in human beings and protecting its victims, and replacing
Council Framework Decision 2002/629/JHA, paragraph 14
5 The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, Supplementing the United Nations Convention against Transnational Organized Crime,
United Nations, 2000
6 R v (1) L (2) HVN(3) THN(4) T-and-(1) The Children’s Commissioner for England (2) Equality
and Human Rights Commission (interveners) Criminal Court of Appeal 201201106B2,
2012004425C1, 201204763B3, 2012 04966B4
7 The Observer, 8 September 2013, p23
The Prison Reform Trust and Hibiscus report No Way Out8 made a number of
recommendations that are of relevance:
 To ensure accurate and timely identification of potential victims of trafficking –
improved guidance, protocols and training for police, Crown Prosecution Service,
defence solicitors, judges and magistrates, prison staff. Women must have
adequate opportunity to disclose their experiences and proper credence must be
given to their accounts.
 The management and decision making process in asylum claims must take
account of the multiple trauma, sexual abuse and disempowering effect of
trafficking on its victims. This will involve both procedural and cultural change in
the relevant division of the Home Office that is replacing UKBA.
 The Sentencing Council should revise Sentencing Guidelines to recognise
trafficking, coercion, and exploitation as mitigating factors for offences for which
foreign national women are most commonly charged – e.g. use of false
documentation and cannabis production - as they do for drug importation.
 Parliament should monitor compliance with UK’s obligations under international
law, including the EU Directive on Trafficking, now in force and requiring robust
protection for victims of trafficking and non-punishment of petty crimes9 and the
UN Rules for the Treatment of Women Prisoners and Non-custodial measures for
Women Offenders (Bangkok Rules), which requires screening of women entering
prison for prior experiences of sexual abuse and domestic violence.
 Expediting National Referral Mechanism (NRM) decisions where a woman in
custody has been identified as a potential victim of trafficking.
Deportation for foreign national prisoners and the right to family life (AA v UK)
and lawful detention (Abdi v UK)
Currently deportation decisions are not based on real, relevant risk assessments that
significantly take into account individual circumstances. In AA v UK the ECtHR
concluded that his risk of re-offending was low and “he had made commendable efforts
to rehabilitate himself into society over a period of 7 years.” There was also insufficient
evidence to show that AA could reasonably be expected to engage in further criminal
activity, to make his deportation necessary “for the prevention of disorder or crime”.
All applications against deportation need to be considered on a case-by-case basis. The
presumption that decisions taken within the Immigration Rules comply with Article 8 has
led to a view that if proportionality has already been demonstrated at a general level, it
need not be re-determined in every individual case. However, many people convicted of
low-level offences are deported, breaching their rights to family and private life and
causing immeasurable distress to themselves and their families.
As AA shows, individual assessment is necessary to ensure that the Government is
complying with Article 8. Proportionality is not clearly defined and detailed guidance is
8
Prison Reform Trust and Hibiscus (2012) No Way Out, London: Prison Reform Trust
See House of Commons Library paper on UK’s responses to human trafficking
www.parliament.uk/briefing-papers/sn04324.pdf
9
needed. Under the new rules almost every foreign national prisoner is considered
suitable for deportation regardless of the crime, risk of further offending, age at time of
offence, time in the UK and family connections. Immigration service officers do not know
how to assess risk of harm or whether deportation is in the public good.
In order for people to exercise their rights, legal aid for family rights cases need to be
reinstated. Recent legal aid cuts severely limit access to justice for family law and
deportation cases. This means that even people who have a strong case cannot access
free legal advice to access their human rights. The Prison Reform Trust were recently
contacted by a man in prison who explained that UKBA had told him his deportation
complied with Article 8 because he was able to maintain contact with his baby in the UK
through Skype.
Following the decisions in Abdi, the Secretary of State should issue new guidance to the
immigration services relating to ongoing detention. Firstly, people detained for
immigration purposes should have a meaningful review monthly in accordance with the
regulations. Currently, this is a perfunctory tick box exercise. Secondly, people who are
detained pending deportation to countries that they cannot be deported to should be
immediately reviewed for assessment for bail or unconditional release. Thirdly, the
practice of detention in prison for people post sentence should be stopped. Prison is not
an appropriate environment for detainees.
Prisoner voting (Hirst v UK, Hirst (No.2), and Greens and M.T)
Following the judgment of the European Court of Human Rights in Hirst v UK in 2005, it
has been repeatedly highlighted that the automatic and indiscriminate ban on all
convicted offenders, barring those on remand or in custody on default, does not comply
with Article 3 Protocol 1 of the European Convention on Human Rights 1950. Despite
that judgment, which called for the UK to amend its position according to the convention,
successive governments have delayed taking action to implement reform, largely for
political reasons.
Highlighting his concerns with the current situation, Dean Spielmann, President of the
European Court of Human Rights, said “I observe with the deepest dismay the lack of
any significant progress in executing this judgment.”10
Successive UK Governments have justified the ban on the grounds that it prevents crime
and punishes offenders, whilst enhancing civic responsibility and respect for the law.
However, the ECtHR:
found no evidence to support the claim that disenfranchisement deterred crime
and considered that the imposition of a punishment on all prisoners regardless of
their crime or individual circumstances indicated no rational link between the
punishment and the offender.11
In fact, the ECtHR continues, removal of the right to vote:
10
11
http://echr.coe.int/Documents/Speech_20130920_Spielmann_Gottingen_ENG.pdf
Hirst v UK (No 1)
runs counter to the rehabilitation of the offender as a law abiding member of the
community and undermines the authority of the law as derived from a legislature
which the community as a whole votes into power.12
The current ban serves no purpose. It neither protects public safety, nor acts as an
effective deterrent. It does not function as a means to correct the behaviour of offenders
and does not assist in their rehabilitation. It is not articulated at the point of sentence and
bears no relation to the crime committed and so is an additional and arbitrary
punishment. Following the principle of “just deserts”, to make the punishment fit the
crime, it would be appropriate to strip offenders of their voting rights in cases of electoral
fraud.
Whilst the establishment of the Joint Select Committee on the Draft Voting Eligibility
(Prisoners) Bill marks a step forward, it is disappointing that the draft bill includes a
proposal to retain the current ban. The Committee of Ministers noted “the third option [in
the Bill] aimed at retaining the blanket restriction criticised by the European Court cannot
be considered compatible with the European Convention on Human Rights”.13 It is also
regrettable that all three options retain an automatic ban on some sentenced prisoners,
regardless of their particular offence.
We call for two further options to be considered:
1. Fully enfranchise everyone serving a prison sentence.
2. Give judges discretionary powers to decide upon disenfranchisement as a part of
a sentence proportionate to a crime.
This second option has been adopted in a number of Council of Europe countries,
including France, Germany and Belgium and has been mooted by MPs and peers in
parliamentary debates. The UK has been given a sufficiently wide margin of appreciation
for Parliament to decide on the best way to implement reform.
There would be few problems in extending the franchise to prisoners. The Electoral
Commission already has mechanisms in place for remand prisoners to vote and
identifies them as “hard to reach voters” with whom it is important to engage.
12
13
Ibid.
https://wcd.coe.int/ViewDoc.jsp?id=2013315