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]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]

The Prison Reform Trust and Hibiscus report No Way Out[8] made a number of recommendations thatare 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 crimes[9]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 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 UKin 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:

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.

[1]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

[3] Gelsthorpe, L. & Hales, L. (2012) The Criminalisation of Migrant Women, Cambridge: University of Cambridge. Available at

[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

[8] Prison Reform Trust and Hibiscus (2012) No Way Out, London: Prison Reform Trust

[9]See House of Commons Library paper on UK’s responses to human trafficking

[10]

[11]Hirst v UK (No 1)

[12] Ibid.

[13]