Written evidence submitted from Professor Phillip Leach (MHP0043)

The relevant human rights law framework

Introduction

1. This note is intended to provide an overview of the relevant human rights law framework for the JCHR Inquiry on Mental Health and Deaths in Prison (announced on 14 December 2016).

2. The UK has agreed to be bound by a number of international and regional human rights instruments and standards which include provisions relevant to the rights of prisoners. Some are general standards – others cater specifically for prisoners. The latter in particular have very detailed provisions relating to all aspects of prison life. These standards represent, in the main, internationally agreed minimum standards. As such they represent a floor – states remain free to attain higher standards, and indeed they are encouraged to do so.

3. After outlining the standards which are of particular relevance to this inquiry, the note focuses on the obligations imposed by the European Convention on Human Rights, which has been incorporated into the domestic law in the United Kingdom since October 2000, in accordance with the Human Rights Act 1998.

A. The international human rights framework

(i) International human rights treaties

4. The International Covenant on Civil and Political Rights (ICCPR) states that all detainees are to be treated with humanity and respect for their inherent dignity and that the essential aim of the prison system should be the ‘reformation and social rehabilitation of prisoners’ (Article 10). Furthermore, the Human Rights Committee has stated that ‘Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party’.[1]

5. The UN Human Rights Committee has underlined that prisoners should have all the rights set out in the ICCPR, subject to the ‘restrictions that are unavoidable in a closed environment’.[2] The ICCPR also stipulates that prisoners on remand should be segregated from convicted prisoners, and that juveniles should be segregated from adults (Article 10).

6. The UN Convention Against Torture requires states to ‘keep under systematic review … arrangements for the custody and treatment of persons subject to any form of arrest, detention, or imprisonment … with a view to preventing any cases of torture’ and preventing cruel, inhuman or degrading treatment (Article 11).

7. The UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) requires states to take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women (Article 2). It obliges states to repeal all national penal provisions which constitute discrimination against women (Article 2).

8. The UN Committee on the Elimination of Discrimination against Women has highlighted the fact that women suffer from discrimination in criminal cases owing to a lack of gender-sensitive, non-custodial alternatives to detention, a failure to meet the specific needs of women in detention and an absence of gender-sensitive monitoring and independent review mechanisms, and that

‘The secondary victimization of women by the criminal justice system has an impact on their access to justice, owing to their heightened vulnerability to mental and physical abuse and threats during arrest, questioning and detention’.[3]

9. The UN Convention on the Rights of Persons with Disabilities (CRPD) provides that ‘every person with disabilities has a right to respect for his or her physical and mental integrity on an equal basis with others’ (Article 17). It also requires states to ensure that if people with disabilities are deprived of their liberty, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and are treated in compliance with the objectives and principles of the CRPD, including the provision of reasonable accommodation[4] (Article 14).

10. The UN Committee on the Rights of Persons with Disabilities has stipulated that states must ensure that people with disabilities who are detained may live independently and participate fully in all aspects of daily life in their place of detention, including ensuring their access, on an equal basis with others, to the various areas and services, such as bathrooms, yards, libraries, study areas, workshops and medical, psychological, social and legal services.[5]

11. The UN Convention on the Rights of the Child (CRC) provides that the imprisonment of a child shall be used ‘only as a measure of last resort and for the shortest appropriate period of time’ (Article 37). Furthermore, ‘every child deprived of liberty shall be treated … in a manner which takes into account the needs of persons of his or her age’ (Article 37).

12. The UN Committee on the Rights of the Child has also stipulated that:

‘Every child deprived of liberty has the right to maintain contact with his/her family through correspondence and visits. In order to facilitate visits, the child should be placed in a facility that is as close as possible to the place of residence of his/her family. Exceptional circumstances that may limit this contact should be clearly described in the law and not be left to the discretion of the competent authorities’.[6]

13. The Committee on the Rights of the Child emphasises that the use of restraint or force should be under close and direct control of a medical and/or psychological professional, and must never be used as a means of punishment. It has also stated that:

‘Any disciplinary measure must be consistent with upholding the inherent dignity of the juvenile and the fundamental objectives of institutional care; disciplinary measures in violation of article 37 of CRC must be strictly forbidden, including corporal punishment, placement in a dark cell, closed or solitary confinement, or any other punishment that may compromise the physical or mental health or well-being of the child concerned’.[7]

(ii) International standards focused on the treatment of prisoners

14. In addition to these legally binding treaty obligations, a number of other UN standards set out comprehensive rules for the treatment of prisoners. Although these are not legally binding they are legally relevant as the courts use them in interpreting legally binding obligations. These include:

• the Standard Minimum Rules for Administration of Juvenile Justice (1985) (the ‘Beijing Rules’);
• the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988);
• the UN Basic Principles for the Treatment of Prisoners (1990);
• the UN Basic Rules for the Protection of Juveniles deprived of their Liberty (1990);
• the UN Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (2010) (the ‘Bangkok Rules’); and
• the UN Standard Minimum Rules for the Treatment of Prisoners (2015) (the ‘Nelson Mandela Rules’).
• the UN Standard Minimum Rules for Non-custodial Measures (1990) (the ‘Tokyo Rules’) provide a set of basic principles to promote the use of non-custodial measures.

15. The UN Basic Principles for the Treatment of Prisoners (1990) state that all prisoners should be treated with the respect due to their inherent dignity and value as human beings (para. 1), that all prisoners should have the right to take part in cultural activities and education ‘aimed at the full development of the human personality’ (para. 6), and that prisoners should have access to the health services available in the country without discrimination on the grounds of their legal situation (para. 9).

16. The UN Standard Minimum Rules for the Treatment of Prisoners (the ‘Nelson Mandela Rules’) were revised in 2015. Rule 5 provides that prison regimes should ‘seek to minimize any differences between prison life and life at liberty that tend to lessen the responsibility of the prisoners or the respect due to their dignity as human beings’. The Nelson Mandela Rules also recognise the need to ensure the reintegration of prisoners into society, and to that end,

‘….prison administrations…should offer education, vocational training and work, as well as other forms of assistance that are appropriate and available, including those of a remedial, moral, spiritual, social and health- and sports-based nature’ (Rule 4).

17. The Nelson Mandela Rules further stipulate that prisoners should receive the same standards of health care that are available in the community (Rule 24). Every prison should have a health-care service tasked with evaluating, promoting, protecting and improving the physical and mental health of prisoners, paying particular attention to prisoners with special health-care needs or with health issues that hamper their rehabilitation; the service should consist of an interdisciplinary team with sufficient qualified personnel acting in full clinical independence and should include sufficient expertise in psychology and psychiatry (Rule 25). Prisoners should be allocated, to the extent possible, to prisons close to their homes (Rule 59) and they should be allowed to communicate with their family and friends at regular intervals (Rule 58). Rule 96 stipulates that sentenced prisoners should have the opportunity to work and/or to actively participate in their rehabilitation, and that ‘sufficient work of a useful nature shall be provided to keep prisoners actively employed for a normal working day’. There are also provisions regarding further education (Rule 104) and recreational and cultural activities (Rule 105). Every prisoner should have at least one hour of suitable exercise in the open air daily (Rule 23). Solitary confinement should only be used in exceptional cases as a last resort, for as short a time as possible and subject to independent review (Rule 45). Intrusive searches, including strip and body cavity searches, should be undertaken only if absolutely necessary (Rule 52).

18. The Bangkok Rules acknowledge the particular vulnerability of women on admission to prison and accordingly require that newly arrived women prisoners be provided with facilities to contact their relatives, and that prior to, or on, admission, women with caretaking responsibilities for children are permitted to make arrangements for their children (Rules 1 and 2). Other provisions require women prisoners to be allocated, to the extent possible, to prisons close to their home (Rule 4); stipulate that women’s specific hygiene needs should be met (Rule 5); require that there is health screening on entry to a prison in order to assess their mental health care needs, including post-traumatic stress disorder and risk of suicide and self-harm (Rule 6); require that gender-specific health-care services at least equivalent to those available in the community are provided to women prisoners (Rule 10); and require that women prisoners have access to a balanced and comprehensive programme of activities, which take account of gender appropriate needs (Rule 42). Rule 12 provides that ‘individualized, gender-sensitive, trauma-informed and comprehensive mental health care and rehabilitation programmes shall be made available for women prisoners with mental health care needs in prison or in non-custodial settings’. Further, there is a requirement for gender-specific and specialized support to those at risk of suicide and self-harm (Rule 16). Disciplinary sanctions for women prisoners shall not include a prohibition of family contact, especially with children (Rule 23).

(B) European regional standards on the treatment of prisoners

19. In addition to the international standards outlined above, there are also standards which have been developed specifically in the European context (within the Council of Europe). These include the standards established by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the ‘CPT Standards’)[8] and the European Prison Rules (2006),[9] both of which are taken into account by the European Court of Human Rights, for example, in interpreting the obligations established by the European Convention on Human Rights.

20. As regards the prison regime, the CPT Standards state, inter alia, that:

‘A satisfactory programme of activities (work, education, sport, etc.) is of crucial importance for the well-being of prisoners. This holds true for all establishments, whether for sentenced prisoners or those awaiting trial….The CPT considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of the day (8 hours or more) outside their cells, engaged in purposeful activity of a varied nature. Of course, regimes in establishments for sentenced prisoners should be even more favourable’ (p. 17).

‘The requirement that prisoners be allowed at least one hour of exercise in the open air every day is widely accepted as a basic safeguard (preferably it should form part of a broader programme of activities). The CPT wishes to emphasise that all prisoners without exception (including those undergoing cellular confinement as a punishment) should be offered the possibility to take outdoor exercise daily’ (p. 18).

‘It is also very important for prisoners to maintain reasonably good contact with the outside world. Above all, a prisoner must be given the means of safeguarding his relationships with his family and close friends. The guiding principle should be the promotion of contact with the outside world’ (p. 18).

‘Solitary confinement can, in certain circumstances, amount to inhuman and degrading treatment; in any event, all forms of solitary confinement should be as short as possible’ (p. 20).

‘The cornerstone of a humane prison system will always be properly recruited and trained prison staff who know how to adopt the appropriate attitude in their relations with prisoners and see their work more as a vocation than as a mere job. Building positive relations with prisoners should be recognised as a key feature of that vocation’ (p. 22).

‘The phenomenon of prison overcrowding continues to blight penitentiary systems across Europe and seriously undermines attempts to improve conditions of detention…In such circumstances, throwing increasing amounts of money at the prison estate will not offer a solution. Instead, current law and practice in relation to custody pending trial and sentencing as well as the range of non-custodial sentences available need to be reviewed’ (p. 24).

21. As regards the care of prisoners with mental health needs, the CPT Standards state, inter alia, as follows:

‘The CPT wishes to stress the role to be played by prison management in the early detection of prisoners suffering from a psychiatric ailment…..this activity can be encouraged by the provision of appropriate health training for certain members of the custodial staff’ (p. 41).

‘A mentally ill prisoner should be kept and cared for in a hospital facility which is adequately equipped and possesses appropriately trained staff. That facility could be a civil mental hospital or a specially equipped psychiatric facility within the prison system… too often there is a prolonged waiting period before a necessary transfer is effected. The transfer of the person concerned to a psychiatric facility should be treated as a matter of the highest priority’ (p. 41).

‘[A] prison's health care service…should ensure that there is an adequate awareness of [suicide prevention] throughout the establishment, and that appropriate procedures are in place…Medical screening on arrival, and the reception process as a whole, has an important role to play in this context; performed properly, it could identify at least certain of those at risk and relieve some of the anxiety experienced by all newly-arrived prisoners…Further, prison staff, whatever their particular job, should be made aware of (which implies being trained in recognising) indications of suicidal risk’ (p. 44).

22. In 2009 the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) noted that the authorities in the UK were ‘fully aware of the importance of offering a satisfactory programme of activities to all prisoners, remand and sentenced, both to provide meaningful activity in prison and to prepare inmates for life in the community’. Nonetheless, they concluded ‘…in all the prisons visited too many prisoners were either not involved in any sort of meaningful activity or were offered minimal opportunities’. The CPT also reiterated that ‘the basic requirement of at least one hour of outdoor exercise every day is a fundamental safeguard for prisoners’ and called upon the UK authorities to ensure that prisoners were ‘guaranteed this basic requirement’.[10]

23. The European Prison Rules (2006) start with a series of basic principles, which include the following:

1.         All persons deprived of their liberty shall be treated with respect for their human rights.

2.         Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody.

3          Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed. 

4.         Prison conditions that infringe prisoners’ human rights are not justified by lack of resources.

5.         Life in prison shall approximate as closely as possible the positive aspects of life in the community.

6.         All detention shall be managed so as to facilitate the reintegration into free society of persons who have been deprived of their liberty.

24. The Rules also provide that prisoners shall be allocated, as far as possible, to prisons close to their homes (Rule 17.1), and that accommodation provided for prisoners, and in particular all sleeping accommodation, shall respect human dignity and, as far as possible, privacy (Rule 18.1). They require that prisoners shall be allowed to communicate as often as possible by letter, telephone or other forms of communication with their families, other persons and representatives of outside organisations and to receive visits from these persons (Rule 24.1), and the arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible (Rule 24.4).

25. As regards daily exercise, the European Prison Rules state that ‘Every prisoner shall be provided with the opportunity of at least one hour of exercise every day in the open air…’ (Rule 27.1) and that properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities should form an integral part of prison regimes (Rule 27.3). Furthermore, the prison regime should ‘allow all prisoners to spend as many hours a day outside their cells as are necessary for an adequate level of human and social interaction’ (Rule 25(2)) and every prison is required to provide all prisoners with access to educational programmes which are as comprehensive as possible and which meet their individual needs (Rule 28.1). There are a series of Rules relating to health, including 47.2: the prison medical service shall provide for the psychiatric treatment of all prisoners who are in need of such treatment and pay special attention to suicide prevention.

26. As regards the selection of prison staff, the Rules state that staff shall be carefully selected, properly trained, both at the outset and on a continuing basis, paid as professional workers and have a status that civil society can respect (Rule 76).

C. The national human rights framework

(i) The Human Rights Act and European Convention on Human Rights

27. The Human Rights Act (HRA) incorporated the rights contained in the European Convention on Human Rights (ECHR) into domestic law. The HRA imposes a duty on public authorities to act compatibly with the ECHR (section 6 HRA).

28. Of the various substantive rights protected by the ECHR, the most relevant to this inquiry are the right to life (Article 2 ECHR), the prohibition of torture and inhuman or degrading treatment or punishment (Article 3 ECHR), the right to respect for private and family life (Article 8 ECHR), the right to an effective remedy (Article 13 ECHR), and the prohibition of discrimination (Article 14 ECHR). The meaning and scope of these rights have been clarified by the decisions of the European Court of Human Rights (the European Court) and of national courts.

29. In relation to people detained in custody (of any type) by the state, Articles 2,[11] 3,[12] 8[13] and 14[14] ECHR establish a range of ‘positive obligations’, alongside common law duties, to protect prisoners’ human rights, to prevent injury or death, and to prevent discrimination. Articles 2 and 3 also contain duties to conduct effective and timely investigations when prisoners die or are injured. It is recognised that the deprivation of liberty creates particular vulnerabilities for those detained by the state and accordingly the obligations on the state are increased in such circumstances.

(ii) The duty to protect life

30. In relation to the duty on the state to protect life, there will be a breach of Article 2 ECHR if the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual from the criminal acts of a third party, and they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk (this is known as the ‘Osman test’ after the case which established this principle).[15]

31. The positive duty to protect the right to life of detainees under Article 2 requires that they are adequately protected against attack from others held in custody,[16] and that there are sufficient safeguards to prevent self-inflicted deaths (which is discussed in the next section).

(iii) Self-inflicted deaths in state custody

32. The authorities have an obligation under Article 2 to take appropriate steps to safeguard the lives of detainees under their control, even where death or injury is self-inflicted or occurs as a result of suicide or attempted suicide. The ‘Osman test’ is applicable to the self-inflicted deaths of detainees – therefore, the relevant test is whether the authorities knew, or ought to have known, that there was a real and immediate risk to the detainee’s life, and, if so, whether they did all that could reasonably have been expected of them to prevent that risk.[17]

33. By way of example, Article 2 was violated in Renolde v France,[18] which concerned the suicide of a mentally disturbed prisoner in a disciplinary cell. The European Court found that the authorities had been aware that he was suffering from psychotic disorders capable of causing him to commit acts of self-harm, and therefore he required careful monitoring. Nevertheless, the authorities had failed to consider whether he should be admitted to a psychiatric hospital, they provided medication to him twice a week but without providing supervision to ensure that he actually took it, and he had been subjected to a disciplinary sanction of 45 days’ detention in a punishment cell, without consideration of his mental state.[19]

34. The detention of a young man with mental health problems in the ordinary section of a prison, rather than in the psychiatric wing, as had been stipulated, was found in De Donder and De Clippel v Belgium[20] to have contributed to his risk of committing suicide – he subsequently hanged himself. Other factors leading to a finding of a violation of Article 2 were his placement in a punishment cell and the authorities’ failure to treat him with sufficient regard for his mental condition.

(iv) The duty to investigate

35. Article 2 (taken together with Article 13) establishes strict requirements in relation to the investigation of fatal incidents.[21] This will require in the context of a death in custody that there is a thorough and effective official investigation into the circumstances in which the death occurred,[22] and that those responsible are held accountable (whether by prosecution or otherwise).

36. An investigation into a fatality must meet each of the following criteria:[23]

• it is independent (the people responsible for carrying out the investigation should be independent from those implicated in the events);
• it is effective (that is, capable of ascertaining the circumstances in which the incident took place and capable of leading to the identification and punishment of those responsible);
• it is accessible to the victim’s family to the extent necessary to safeguard their legitimate interests;[24]
• there must be a sufficient element of public scrutiny of the investigation; and
• it is carried out promptly and with reasonable expedition.[25]

37. It is acknowledged that there is a wider public interest in carrying out an effective investigation into someone’s death in state custody: ‘the knowledge of the facts and of possible errors committed in the course of medical care are essential to enable the institutions and medical staff concerned to remedy potential deficiencies and prevent similar errors’.[26]

(v) Discrimination

38. Article 14 ECHR prohibits discrimination in relation to the enjoyment of the other Convention rights. It prohibits discrimination on any ground, including sex, race,[27] religion, sexual orientation,[28] disability[29] and health status.[30] A person is considered to have suffered discrimination if (a) they have been treated differently from people in a similar situation (on a prohibited ground); and (b) there is no reasonable and objective justification for the difference in treatment.[31]

39. Any difference in treatment as between remand prisoners and convicted prisoners would need to be objectively justifiable.[32]

40. The failure to protect the well-being of prisoners, for example, who may be the subject of ethnically-motivated violence, may also breach Article 3.[33]

(vi) Medical treatment of detainees

41. The failure to provide adequate medical treatment to people in custody may violate Article 3 in certain circumstances.[34] Where a prisoner’s life is known to be at risk because of poor health, the positive obligations imposed by Article 2 will require the authorities to do ‘everything reasonably possible in the circumstances, in good faith and in a timely manner’, to try to save the person’s life.[35]

42. Prisoners with serious mental disorders may require special measures to ensure that they receive humane treatment for their condition, regardless of the seriousness of the offence of which they had been convicted.[36] Article 3 may be breached because of the detention of prisoners in establishments which are not suitable for the incarceration of the mentally ill.[37] In McGlinchey and others v UK[38] for example, there were a number of failings in the treatment of the applicant’s mother, a heroin addict who died in prison after having been jailed for theft for four months. There were inadequate facilities to measure her weight loss (following uncontrolled vomiting), gaps in the monitoring of her condition over a weekend and the failure to take further steps such as admitting her to hospital or obtaining more expert assistance in controlling the vomiting.

43. Article 3 was also found to have been violated in Keenan v UK[39] because of the ‘significant defects in the medical care provided to a mentally ill person known to be a suicide risk’. In those circumstances, imposing seven days’ segregation in a punishment block and prescribing an additional 28 days on the sentence was held to amount to inhuman and degrading treatment and punishment. The European Court was also critical of the authorities’ failure to refer Mark Keenan to a psychiatrist and of the lack of medical notes, which undermined the effectiveness of any monitoring or supervision.

44. In Renolde v France[40] the imposition of a disciplinary sanction of 45 days’ detention in a punishment cell on a mentally disturbed prisoner (who later committed suicide) was found to constitute inhuman and degrading treatment in violation of Article 3. In Rivière v France[41] the applicant had been sentenced to life imprisonment for murder and developed a psychiatric condition in prison. The failure to transfer him to hospital or to provide adequate medical care caused him hardship and distress at a level that was found to breach Article 3.

(vii) Prison conditions and the treatment of prisoners

45. The conditions in which detainees are held (whether on remand or following conviction) may violate Article 3 ECHR, depending upon the particular circumstances:

‘. . . the state must ensure that a person is detained in conditions which are compatible with respect for his human dignity, that the manner and method of the execution of the measure do not subject him to distress or hardship of an intensity exceeding the unavoidable level of suffering inherent in detention and that, given the practical demands of imprisonment, his health and well-being are adequately secured by, among other things, providing him with the requisite medical assistance’.[42]

46. Solitary confinement should only be used as an exceptional and temporary measure.[43] Its use may breach Article 3; this will depend ‘on the particular conditions, the stringency of the measure, its duration, the objective pursued and its effects on the person concerned’.[44] The European Court draws a distinction between ‘complete sensory isolation’ and partial or relative isolation (for example through restrictions on contact with other prisoners or family members).[45] The effects of solitary confinement on mental health have been noted by the Court.[46] Whilst removal of a prisoner’s right of association with other prisoners may be justified, a more extreme regime of isolation is unlikely to be acceptable.

47. Depending on the context, forms of restraint may breach Article 3 ECHR. For example, the handcuffing of a detainee with a serious mental health illness for a period of seven days, without any psychiatric justification, was found to amount to inhuman and degrading treatment in Kucheruk v Ukraine.[47] In Kashavelov v Bulgaria[48] the systematic handcuffing of a life prisoner whenever he left his cell (over a period of 13 years) constituted degrading treatment. The prolonged use of a restraint bed has also been found to violate Article 3.[49]
48. An intimate body search may amount to degrading treatment, if the particular circumstances are such that the Article 3 threshold has been reached. The Court has accepted that strip-searches may be necessary to ensure prison security or prevent disorder or crime, but they must be carried out in an appropriate way. For example, Article 3 was found to have been violated in Wiktorko v Poland[50] where the applicant, a woman, was forcibly stripped naked at a sobering-up centre by a woman and two men, and was then placed in restraining belts for ten hours overnight. In El Shennawy v France,[51] repeated, filmed strip searches were held to breach Article 3. A systematic regime of weekly strip-searches, which included anal inspections, over a period of years, was found to amount to inhuman or degrading treatment in both Van der Ven v Netherlands[52] and Lorsé v Netherlands.[53] In Wainwright v UK,[54] the strip-searching of the applicants who were visiting their close relative in prison was not found to violate Article 3, but it was nevertheless found to be disproportionate, and in violation of Article 8.

49. In Khider v France,[55] the applicant was found to have been subjected to inhuman and degrading treatment because of the cumulative effects of repeated transfers between prisons, his lengthy detention in solitary confinement and frequent full body searches. To leave an inmate in a security cell without his clothes for seven days was held to be inhuman and degrading treatment in Hellig v Germany.[56] There was a violation of Article 3 in Piechowicz v Poland,[57] because of the applicant’s treatment as a ‘dangerous detainee’ over a period of 2 years and nine months, which involved his confinement in a solitary cell in a high-security prison ward, constant monitoring of his cell by CCTV, the wearing of ‘joined shackles’ when he was moved, his segregation from the prison community, limitations on family contact and routine strip-searching.

50. Article 8 will protect the right of detainees to maintain contact with their family[58] – it may be violated where detainees are held in locations far away from their families.[59] The refusal to allow a prison inmate to visit a dying relative[60] or attend a close relative’s funeral may violate Article 8.[61] In Dickson v UK[62] the European Court found that a refusal to allow a convicted prisoner access to artificial insemination facilities violated Article 8.

(viii) Detention conditions of people with disabilities

51. Special care must be taken to ensure that detention conditions correspond to a person’s individual needs resulting from disability.[63] In Price v UK,[64] the disabled applicant (who was four-limb deficient due to Thalidomide) was committed by a court to immediate imprisonment for contempt of court, but the prison authorities were clearly unable to cope. The Court found that ‘to detain a severely disabled person in conditions where she is dangerously cold, risks developing sores because her bed is too hard or unreachable, and is unable to go to the toilet or keep clean without the greatest of difficulty’ amounted to degrading treatment.[65] There was a breach of Article 3 in Amirov v Russia[66] as a result of the inadequate medical treatment of the applicant in prison, a paraplegic who used a wheelchair and who suffered from a range of illnesses affecting his nervous, urinary, muscular and endocrine systems. As a result he had been exposed to prolonged mental and physical suffering which diminished his human dignity.

52. Detention conditions must also take into account an individual’s needs arising from mental as well as physical disability. The case of Z.H. v Hungary[67] concerned the arrest of a young man who was innately deaf and dumb, had medium-grade intellectual disability and was illiterate. He could communicate with a type of sign language which was only intelligible to his mother. He was detained on remand for nearly three months on a charge of mugging and complained of the conditions of his detention. The Court found that his treatment was inhuman and degrading due to his inevitable feelings of isolation and helplessness, his inability to understand his situation, and because he had been separated from his mother, who was the only person with whom he could effectively communicate. The authorities’ failure to provide adequate medical treatment to a juvenile who was suffering from ADHD led to a finding of a breach of Article 3 in Blokhin v Russia.[68]

April 2017

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