The Failure of UK Penal Policy
What has just happened?
The European Commission for Human Rights has issued a statement [1] requiring the Member States to “take urgent steps to protect the rights and health of prisoners” in response to the current pandemic.[2] Bringing to light the contentious issue of prisoners’ rights, the statement entrenches the importance of human dignity in the penal context. With the aim of protecting detainees from egregious wrongs and fostering realistic prospects of rehabilitation.
What does this mean?
The European Convention on Human Rights sought to entrench a number of minimum liberties, to which all humans should be afforded. Intended as ‘universal’ rights, these extend also to those incarcerated. Yet in reality, battling a reluctant legislature, unforgiving social policy, and popular scathing public opinions, the de facto application of these rights in the penal context has proven a burdensome task.[3]
Naturally, the right to liberty afforded under Article 5 is immediately restricted within any form of state detention.[4] Notwithstanding the physical restrictions associated with incarceration, the European Court has been in no way imprecise on the fact that the prison experience should deprive no more liberties but this. In effect, those in detention should “continue to enjoy all the fundamental rights and freedoms guaranteed under the Convention, save for the right to liberty.” [5]
This European Court has faced challenges at every level by innumerable Member States who view this as an overly tolerant, even “indulgent” penal framework. With modern penological discourses becoming increasingly punitive, the growing ‘fear’ of crime has catalysed an increasing emphasis on retribution.
Seen in the UK, considerable elements of the modern penal framework can be seen to flow from residual impacts of the Forfeiture Act. [6] Condemned as a “legislative relic”, the Act centers around the premise that those who break the social contract willingly forfeit their claim to civil liberties. [7]
Notwithstanding its censure, much of this attitude can be seen reflected in modern penal frameworks. Depicted through detainees’ limited contact with families; their continued disenfranchisement;[8] and the enduring, highly problematic practice of detainee isolation cells, the bounds of human rights are challenged, manipulated, and contorted each and every day by the principles and practices of modern incarceration. When considered together, the deprivation of privacy;[9] family and human connection; ‘home’, self-expression;[10], etc, all accumulate to establish a penal framework of loss, ultimately stripping detainees of their identities, and innate human dignity. Pursuing a questionable penal framework, one must question the efficacy of the European Convention in meaningfully protecting the human rights of those most vulnerable on the outskirts of society.
Written by Holly Crowder
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References:
[1] Council of Europe, ‘‘Covid-19 pandemic: Urgent Steps are Needed to Protect the Rights of Prisoners in Europe’ (6th April 2020) < https://www.coe.int/en/web/commissioner/-/covid-19-pandemic-urgent-steps-are-needed-to-protect-the-rights-of-prisoners-in-europe> Accessed 19th December 2020.
[2] ibid.
[3] Murphy & Brown Study (2000) found the majority of British attitudes toward prisoners were negative. Exacerbating this, popular media narratives presenting prisons to provide “televisions, play stations and gym facilities” have heightened public hostility.
[4] Inter alia arrest, detention, custodial sentence, etc. Even poses a matter of concern under police use of ‘kettling’ practices. See Austin & Others v. The United Kingdom [2012] ECHR 459.
[5] Hirst v UK (No.2) (2006) 42 EHRR 41 at [69].
[6] 1870.
[7] Prison Reform Trust, ‘Barred from Voting – Why Prisoners Need the Vote’ <http://www.prisonreformtrust.org.uk/WhatWeDo/Projectsresearch/Citizenship/BarredfromVoting/Whyprisonersneedthevote> Accessed 19th December.
[8] The UK currently places a universal ban upon prisoner suffrage, despite instruction from the European Court of Human Rights that this is contrary to Convention obligations. Per Hirst v United Kingdom (n 3).
[9] Dickinson v UK (2008) 46 EHRR 41
[10] For example, high-security prisons do not allow detainees to wear their own clothes.
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