Prisoners and Human Rights: A Balanced Framework
Abstract: The human rights framework, found in international documents by which Aotearoa New Zealand has agreed to be bound and reflected in the New Zealand Bill of Rights Act 1990, is often viewed as something that protects mainly those accused or convicted of crime. This paper examines the key elements of the framework and the reasons why it is important, including as a basis for standing against the popular punitivism that prisoners have a civil death as a result of their criminal behaviour and have their rights removed because they are somehow lesser.
The Basis for and Importance of the Human Rights Framework
There is an important starting point, namely the core components of the human rights framework, which has two elements to it. The first is the aim of the framework to secure the universality of rights. This can be illustrated by the purposive language of the preambles and opening clauses to the main international human rights documents to the starting point of human dignity. As an example, Article 1 of the Universal Declaration of Human Rights 1948[1] states that “All human beings are born free and equal in dignity and rights”. The UDHR was issued, it is to be noted, by the UN General Assembly, the apex of the UN. The organisation exists by virtue of the Charter of the United Nations,[2] a binding international treaty, the preamble to which sets out the aims behind the Charter as including:
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person ...
Further, the specific purposes of the United Nations, set out in Article 1 include:
3. To achieve international cooperation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all ...
Reference can also be made to the purposes behind two important human rights treaties which were designed to put the statements of the UDHR into legal effect as parts of express international law. Binding on New Zealand since the government of Robert Muldoon signed it in 1978, the International Covenant on Civil and Political Rights 1966[3] contains a particularly clear statement of the origin of human rights in its preamble:
Considering that ... recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human person ...
Similarly, in Europe, the Council of Europe’s European Convention on Human Rights[4] rests on a preamble which amongst other things notes that the signatories are:
Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend...
As an aside, it should also be noted that this language as to the universality of rights is accompanied by a requirement of the obligations. The UDHR, for example, is express in its statement in Article 29.1 that
“Everyone has duties to the community in which alone the free and full development of his personality is possible”.
In the ICCPR and the ECHR, the various statements of rights are invariably qualified by reference to the restrictions that are permissible to protect the rights of others, and there is express language that rights cannot be used to defeat the rights of others. Article 5(1) of the ICCPR provides that:
1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
Similarly, Article 17 of the ECHR is headed “Prohibition of abuse of rights” and is in essentially the same language.
The first purpose behind the human rights framework, therefore, is that the rights identified in the various human rights documents have universal application to all humans. The second starting point for the framework complements the universality principle, and it is that the framework is designed to deal with the problems of discrimination by making express provision that this universality approach has to take effect without discrimination on any ground that counts as a human status.
The components of this come both from the documents already noted and also from additional parts of the human rights framework. For instance, Article 1(3) of the UN Charter, to which reference has already been made, notes that the promotion of respect for human rights as to be “for all without distinction as to race, sex, language, or religion”.[5] The ICCPR provides more comprehensive reference to the bases on which discrimination is impermissible. For instance, whilst Article 3 makes express reference to the need for gender equality, Article 2(1) is more comprehensive and notes that rights have to be ensured:
... without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 14 of the ECHR makes similar provision. The ICCPR goes further: whereas Article 2(1) (and Article 14 ECHR) apply to the other listed rights, Article 26 secures non-discrimination as a right in itself. It sets out that:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
In other words, if there is something that is protected by law, even if it is not something that is a fundamental right, the protection in law has to be guaranteed to all because that would otherwise breach the right to equality. (The ECHR has a Protocol to like effect, namely Protocol 12, Article 1, but it is not yet in force.)
In addition, various other treaties exist to overcome entrenched ideas of systematic discrimination, including the International Convention on the Elimination of Racial Discrimination 1965, the Convention on the Elimination of All Forms of Discrimination against Women 1979 and the Convention on the Rights of Persons with Disabilities 2006.
The non-discrimination rights both reinforce the concept of the equal dignity of humans but their existence as a separate express right, rather than something merely implicit, also makes the important point that it is necessary to take concrete steps to overcome prejudices by recognising that equal treatment and non-discrimination is a right in itself. These supplemental anti-discrimination treaties also make the key point that what amounts to discrimination is the effect of a situation: in other words, if a policy has a discriminatory consequence even if it is on its face neutral, that remains a problem. This is particularly clearly expressed by the CRPD, which requires in its Articles 4 and 5 that the state make all relevant arrangements to ensure that persons with disabilities have all their rights secured in full: this includes taking all relevant steps to remove discrimination on grounds of disability and to secure “reasonable accommodation”, which in turn is defined in Article 2 as making such “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden” as are needed to ensure equal access to rights. What this means, put briefly, is that if it doesn’t involve too much of a problem, the necessary extra steps have to be taken.
The reason why understanding the core of the human rights framework – the dignity of all humans and the centrality of non-discrimination - is important is that the whole purpose behind the focus on human rights was to re-boot societal attitudes that viewed people not as equal in rights but as open to classification and valuation as superior and lesser. That is why the preamble to the ECHR “reaffirms” the commitment to rights: because it had been forgotten. And when it was forgotten, things became horrendously problematic. The attitudes that were to be removed as the basis for organising society were those that had fuelled slavery, apartheid, colonialism and the extermination policies of the Third Reich: but they also supported the class system and views that gave rise to the eugenics movement and the suggestion behind it of inherently worthy people and inherently less worthy people.
This is summed up eloquently by the Committee on the Rights of Persons with Disabilities. Considering the value of the requirement in Article 12 of the CRPD that there be recognition of the equal legal capacity of people with disabilities, the Committee noted various aspects of the non-discrimination framework and outlined the distinction between legal capacity and mental capacity: the latter is the ability to make decisions, and should not affect the former. Legal capacity is defined in the following terms:
Legal capacity is the ability to hold rights and duties (legal standing) and to exercise those rights and duties (legal agency). It is the key to accessing meaningful participation in society.[6]
It should be noted that the New Zealand legislature and judiciary has recognised the value of the value of the international framework. The New Zealand Bill of Rights Act 1990 contains the indication in its preamble that it is designed to give effect to the country’s obligations under the International Covenant on Civil and Political Rights 1966; and the Human Rights Act 1993 has purposes that include giving effect to international obligations. In addition, the New Zealand judiciary has developed a principle than in their core task of interpreting what statutes properly mean, they are to be construed to meet international treaty obligations so far as possible, and public officials are required to exercise their discretions accordingly. For example, William Young P in Huang v Minister of Immigration described this as an orthodoxy.[7]
Applying this Framework to Prisoners
This starting point of recognising that human rights standards have universal application and that there should be no discrimination on the basis of a matter of status involves the need to recognise the rights of prisoners and not discriminate on the basis of the status of being or having been a prisoner. Indeed, there is another aspect of this context: contrary to the common perception of prisoners as people who choose to be criminal, there is a good evidence of a significant over-representation of people with a mental disorder, namely a matter that will qualify for protection under the non-discrimination principles and the CRPD. A comprehensive study in the United Kingdom in 1998 put the proportion of prisoners having a recognisable psychiatric condition at over 90 per cent when account was taken of substance dependency.[8] In addition, the UK’s Department of Health has indicated that: ‘Between 5% and 13% of people living in the community, 40% and 50% of psychiatric in-patients and 50% and 78% of prisoners are diagnosable with a personality disorder’.[9] Summarising surveys that had been done prior to 2002, Fazel and Danesh, writing in The Lancet, concluded that:
Our results suggest that typically about one in seven prisoners in western countries have psychotic illnesses or major depression (disorders that might be risk factors for suicide), and about one in two male prisoners and about one in five female prisoners have antisocial personality disorders.[10]
In short, the prison population is overly affected by mental disorder and poor coping strategies. Indeed, the very nature of imprisonment is itself a reason for special protections. In Orchowski v Poland,[11] the European Court of Human Rights noted that “persons in custody are in a vulnerable position and the authorities are under a duty to protect them”.
This does not mean that there cannot be restrictions on the rights of prisoners: rather, it means that they have to be justified. Most obviously, prisoners lose the right to liberty. The question to which this article now turns is an analysis of the extent of those restrictions and, by corollary, the proper understanding of the rights that are retained.
The Substantive Rights of Prisoners
As has been noted, there is a framework for the protection of human rights. States which join the United Nations accept the need to participate in the protection of rights through its mechanisms. Most importantly, the UDHR has led to treaties that set out standards that have to be guaranteed in domestic law. The central obligation of states which agree to be bound by individual human rights treaties is to make sure that arrangements are put in place in domestic law that properly reflect those rights. This can be illustrated by the language of Article 2(2) of the ICCPR, which states that:
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps ... to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.[12]
This runs together with the core non-discrimination principles outlined above. It has led to numerous attempts to set out standards that reflect the rights of those in custody. For instance, the United Nations General Assembly in 1991 adopted “Basic Principles for the Treatment of Prisoners”,[13] which notes that “5. Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms” recognised in relevant documents.[14] There are also more detailed “Standard Minimum Rules for the Treatment of Prisoners”,[15] which are designed to ensure processes that protect rights. Importantly, these have status in New Zealand because the Corrections Act 2004 adopts in section 5 a commitment to have rules that comply with these Minimum Standards.
In addition, there have been numerous cases that reflect these rights and demonstrate how they operate in practice. These can be summarised against the rights affected as follows:
(i) Right to Life
The right is not just to life but is a right to have life protected: Article 6 ICCPR. The recognition of the duty to protect is important when it comes to understanding the implications of the right. It is not just that there have to be restrictions on the use of fatal force by state officials, it is that the state has to adopt policies that safeguard life. For example, in Burrell v Jamaica,[16] which related to a prisoner shot by guards during a riot, the Human Rights Committee of the UN found a breach of Article 6 because of the lack of “effective measures” to safeguard life in relation to a death that the government suggested occurred in the panic and confusion of the situation.[17] The need for protective planning of actions has been made clear in numerous cases from the European Court of Human Rights, applying the similar standard under the ECHR: see, for example, McCann v UK[18] and Finogenov and Others v Russia.[19] The principle applied is that the investigation is into both the use of force and also all the circumstances leading to the use of force, including the legal framework and the planning and control of the operation to determine whether there were steps taken to minimise the risk of life being lost.
This duty to protect extends to situations where the risk of harm comes from private individuals. This clearly sounds in the context of a prison setting where abilities to escape will be limited. An example of this is Edwards v UK,[20] where prisoner was killed by another whose risk had not been fully appreciated because of various failures to pass on relevant information. This case also set out an extensive duty to investigate possible state fault, and also illustrates the point made above about the vulnerability of prisoners: both the deceased and his assailant had mental health problems and probably should have been in hospital. One would not then have died and the other would not have committed a homicide.
This duty to protect includes the victims of crime (as Mr Edwards was): that may mean that preventive measures may have to be taken, including detention if that is what is required: see the rights to liberty, noted below. It also covers the obligation to protect people from suicidal self-harm.
(ii) No torture etc
There is an absolute right not to be subject to treatment or punishment that might be considered to be torture or to be cruel, inhuman or degrading: Article 7 ICCPR. Since no-one can be subjected to it, everyone must be protected from it. In addition, Article 10 ICCPR requires treatment that respects the inherent dignity of the individual. In this context, there have been a host of cases, mainly from the European Court of Human Rights, dealing with such matters as ill-treatment by prison officers or other prisoners, poor conditions of detention and overcrowding, the unnecessary use of solitary confinement or of overly frequent transfers, and unjustifiable strip searches. There have also been instances involving the detention of people with disabilities in facilities not suited for their needs, as happened in Price v UK:[21] part of the problem identified here was that the judge who sentenced Ms Price to custody did not inquire whether her needs could be met. This reflects a more general point that the medical needs of prisoners have to be met: this may include such matters as ensuring that someone who needs to be treated in a hospital setting is transferred. Protecting prisoners from self-harm may also be necessary.
(iii) Liberty Rights
The basic standard set out in Article 9 is that arbitrary and/or unlawful detention is not permitted. This clearly means that detention, including a sentence of imprisonment, is permissible. However, that is not the end of the investigation, because a sentence that is clearly excessive might well meet the test of arbitrariness: this may be an arguable consequence of third strike sentences, or sentences imposed on juveniles that are more consistent with sentencing levels applicable to adults.
In addition, it is to be noted that there is also Article 9(4), which provides a right to review the ongoing lawfulness of detention. The obvious situation in which this applies is in relation to parole decisions for those serving indeterminate sentences, since they consist of a sentence for punishment purposes and once that minimum term has been served ongoing detention for preventive purposes. There is a right to have regular reviews of the ongoing lawfulness of detention, and standards developed under the ECHR raise concerns in relation to delays between hearings of more than 2 years. (It is more controversial as to whether this right applies in relation to fixed term sentences.)
Preventive detention at the end of a determinate sentence is more clearly problematic, because it is not detention imposed as punishment for a crime but is based on the risk of future offending. This will inevitably turn on expert evidence as to risk, but the reliability of such material as a basis for ordering detention is open to doubt: so, in Fardon v Australia,[22] the Human Rights Committee found such detention to be arbitrary when it had not been shown that management in the community was a failure.
It should also be noted that there is express provision in Article 10(3) of the ICCPR makes it clear that
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.
Any failure to do this is a simple breach of fundamental rights. In this context, it must be noted that there is a general principle that rights that are to be guaranteed under the ICCPR cannot be defeated by lack of fiscal resources.
(iv) Privacy and Autonomy Rights, Family Rights
The right to privacy and autonomy is protected by Article 17 ICCPR and also involves the arbitrariness standard. Imprisonment clearly has some impact on these rights. There are a vast range of situations that might be covered by this. Numerous cases have been raised, matters ranging from the censorship of correspondence (both general and in situations such as contact with an outside medical specialist) to the need for proper policies on such matters as the provision of artificial insemination facilities and of mother and baby units.
One general point should be made in this situation: those who are family members of prisoners also have rights that have to be taken into account (and if there are children, their rights under the UN Convention on the Rights of the Child 1989, and rights in domestic law, are also implicated). Hence, obvious questions can arise in relation to such matters as the placement of prisoners far distant from their families.
(v) Other civil and political rights
There are a significant number of other rights found in the ICCPR. In accordance with general principles, the question is the extent to which they are lost. For example, the right to freedom of association can be restricted, but the social nature of humans means that association cannot be excluded completely except in extreme circumstances (and the impact of any other approach might be inhuman and degrading). Similarly, freedom of expression might be subject to additional restrictions, but there is no reason why prisoners should be silenced: this may lead to questions of balance, such as whether there can be limits to serving prisoners writing about their crime or contributing to media interviews, whether on criminal or other topics. Absolute prohibitions are clearly problematic, as they are in relation to the linked political right to vote.
Fair trial rights are also to be enjoyed by prisoners, both in relation to matters such as disciplinary proceedings but also in relation to access to the courts (and to legal advice) on the same terms as other people.
(vi) Economic, Social and Cultural Rights
When it comes to economic, social and cultural rights, although included in the UDHR along with civil and political rights, their protection in a binding treaty was effected through the separate International Covenant on Economic Social and Cultural Rights 1966.[23] This also has the full range of non-discrimination principles, and the various other treaties that focus on equality also cover ESC rights. In relation to these rights, there is a good summary of the standards that apply in the UN Basic Principles document, which sets out the following:
6. All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.
...
8. Conditions shall be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the country's labour market and permit them to contribute to their own financial support and to that of their families.
9. Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
[1] Resolution 217(III) of 10 December 1948; the text is available at http://www.un.org/en/documents/udhr/.
[2] 26 June 1945 (available at http://www.un.org/en/documents/charter/).
[3] 16 December 1966, 999 UNTS 171, entered into force 23 March 1976.
[4] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, 1950: CETS No 5; all Council of Europe treaties are available via www.conventions.coe.int. The ECHR has been amended by various protocols, including significant amendments brought about by Protocol No 11, ETS No 155: references are to the ECHR as amended unless otherwise indicated. Note that Article 1 of the Statute of the Council of Europe (ETS No 001, 1949) sets the Council’s aims as including “common action ... in the maintenance and further realisation of human rights and fundamental freedoms” and also realising the principles that reflect their “common heritage”, which include the human rights principles.
[5] See also Article 13(1)(b), which sets the functions of the General Assembly as including initiating studies and making recommendations designed to assist “in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.
[6] Committee on the Rights of Persons with Disabilities, General comment No. 1 (2014) Article 12: Equal recognition before the law, CRPD/C/GC/1, para 13.
[7] See William Young P in Huang v Minister of Immigration [2009] 2 NZLR 700 at [34]. Ye v Minister of Immigration [2010] 1 NZLR 104 (SC), [24] (per Tipping J) provides another example. This is consistent with the view of international human rights bodies. Similar language is used by the Committee on Economic, Social and Cultural Rights in General Comment No 3, “The nature of States parties obligations”, UN document E/1991/23, 14 December 1990: “15. It is generally accepted that domestic law should be interpreted as far as possible in a way which conforms to a State's international legal obligations. Thus, when a domestic decision maker is faced with a choice between an interpretation of domestic law that would place the state in breach of the Covenant and one that would enable the State to comply with the Covenant, international law requires the choice of the latter. …”.
[8] Singleton et al, Psychiatric morbidity among prisoners in England and Wales, HMSO, 1998; a summary is available at www.ons.gov.uk/ons/rel/psychiatric-morbidity/psychiatric-morbidity-among-prisoners/psychiatric-morbidity-among-prisoners--summary-report/index.html. At p23 of the summary, the authors comment on the fact that many prisoners had several disorders, noting that: ‘Only one in ten or fewer showed no evidence of any of the five disorders considered in the survey (personality disorder, psychosis, neurosis, alcohol misuse and drug dependence) and no more than two out of ten in any sample group had only one disorder.’
[9] See www.dh.gov.uk/en/Healthcare/Mentalhealth/Personalitydisorder/index.htm.
[10] Seena Fazel, John Danesh, Serious mental disorder in 23 000 prisoners: a systematic review of 62 surveys, The Lancet Vol 359, page 545-550 (February 16, 2002).
[11] Application no 17885/04, 22 October 2009, at paragraph 120.
[12] Similar language can be found in the various non-discrimination conventions to which reference has been made. The details of these provisions are analysed in Kris Gledhill, Human Rights Acts: The Mechanisms Compared, Hart Publishing, Oxford 2015, ch 2.
[13] General Assembly resolution 45/111 of 14 December 1990.
[14] In Orchowski, already cited, the European Court of Human Rights also commented at [120] that “a detained person does not, by the mere fact of his incarceration, lose the protection of his rights guaranteed by the Convention”. This reflects an established common law position, set out in Raymond v Honey [1983] AC 1: “a convicted prisoner ... retains all civil rights which are not taken away expressly or by necessary implication”.
[15] These have been approved by the UN’s Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977
[16] Communication 546/1993.
[17] Communication 546/1993, paragraph 9.5.
[18] Appn no 18984/91, 27 Sep 1995, (1996) 21 EHRR 97.
[19] Appns 18299/03 and 27311/03, 20 December 2011.
[20] Appn no 46477/99, [2002] MHLR 220, (2002) 35 EHRR 487.
[21] (2002) 34 EHRR 53, [2001] Prison LR 359.
[22] Communication No 1629/2007, U.N. Doc. CCPR/C/98/D/1629/2007, 10 May 2010.
[23] 16 December 1966, 993 UNTS 3, entered into force 3 January 1976; New Zealand signed on 12 November 1968 and ratified on 28 December 1978.
Abstract: The human rights framework, found in international documents by which Aotearoa New Zealand has agreed to be bound and reflected in the New Zealand Bill of Rights Act 1990, is often viewed as something that protects mainly those accused or convicted of crime. This paper examines the key elements of the framework and the reasons why it is important, including as a basis for standing against the popular punitivism that prisoners have a civil death as a result of their criminal behaviour and have their rights removed because they are somehow lesser.
The Basis for and Importance of the Human Rights Framework
There is an important starting point, namely the core components of the human rights framework, which has two elements to it. The first is the aim of the framework to secure the universality of rights. This can be illustrated by the purposive language of the preambles and opening clauses to the main international human rights documents to the starting point of human dignity. As an example, Article 1 of the Universal Declaration of Human Rights 1948[1] states that “All human beings are born free and equal in dignity and rights”. The UDHR was issued, it is to be noted, by the UN General Assembly, the apex of the UN. The organisation exists by virtue of the Charter of the United Nations,[2] a binding international treaty, the preamble to which sets out the aims behind the Charter as including:
to reaffirm faith in fundamental human rights, in the dignity and worth of the human person ...
Further, the specific purposes of the United Nations, set out in Article 1 include:
3. To achieve international cooperation ... in promoting and encouraging respect for human rights and for fundamental freedoms for all ...
Reference can also be made to the purposes behind two important human rights treaties which were designed to put the statements of the UDHR into legal effect as parts of express international law. Binding on New Zealand since the government of Robert Muldoon signed it in 1978, the International Covenant on Civil and Political Rights 1966[3] contains a particularly clear statement of the origin of human rights in its preamble:
Considering that ... recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Recognizing that these rights derive from the inherent dignity of the human person ...
Similarly, in Europe, the Council of Europe’s European Convention on Human Rights[4] rests on a preamble which amongst other things notes that the signatories are:
Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend...
As an aside, it should also be noted that this language as to the universality of rights is accompanied by a requirement of the obligations. The UDHR, for example, is express in its statement in Article 29.1 that
“Everyone has duties to the community in which alone the free and full development of his personality is possible”.
In the ICCPR and the ECHR, the various statements of rights are invariably qualified by reference to the restrictions that are permissible to protect the rights of others, and there is express language that rights cannot be used to defeat the rights of others. Article 5(1) of the ICCPR provides that:
1. Nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein or at their limitation to a greater extent than is provided for in the present Covenant.
Similarly, Article 17 of the ECHR is headed “Prohibition of abuse of rights” and is in essentially the same language.
The first purpose behind the human rights framework, therefore, is that the rights identified in the various human rights documents have universal application to all humans. The second starting point for the framework complements the universality principle, and it is that the framework is designed to deal with the problems of discrimination by making express provision that this universality approach has to take effect without discrimination on any ground that counts as a human status.
The components of this come both from the documents already noted and also from additional parts of the human rights framework. For instance, Article 1(3) of the UN Charter, to which reference has already been made, notes that the promotion of respect for human rights as to be “for all without distinction as to race, sex, language, or religion”.[5] The ICCPR provides more comprehensive reference to the bases on which discrimination is impermissible. For instance, whilst Article 3 makes express reference to the need for gender equality, Article 2(1) is more comprehensive and notes that rights have to be ensured:
... without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Article 14 of the ECHR makes similar provision. The ICCPR goes further: whereas Article 2(1) (and Article 14 ECHR) apply to the other listed rights, Article 26 secures non-discrimination as a right in itself. It sets out that:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
In other words, if there is something that is protected by law, even if it is not something that is a fundamental right, the protection in law has to be guaranteed to all because that would otherwise breach the right to equality. (The ECHR has a Protocol to like effect, namely Protocol 12, Article 1, but it is not yet in force.)
In addition, various other treaties exist to overcome entrenched ideas of systematic discrimination, including the International Convention on the Elimination of Racial Discrimination 1965, the Convention on the Elimination of All Forms of Discrimination against Women 1979 and the Convention on the Rights of Persons with Disabilities 2006.
The non-discrimination rights both reinforce the concept of the equal dignity of humans but their existence as a separate express right, rather than something merely implicit, also makes the important point that it is necessary to take concrete steps to overcome prejudices by recognising that equal treatment and non-discrimination is a right in itself. These supplemental anti-discrimination treaties also make the key point that what amounts to discrimination is the effect of a situation: in other words, if a policy has a discriminatory consequence even if it is on its face neutral, that remains a problem. This is particularly clearly expressed by the CRPD, which requires in its Articles 4 and 5 that the state make all relevant arrangements to ensure that persons with disabilities have all their rights secured in full: this includes taking all relevant steps to remove discrimination on grounds of disability and to secure “reasonable accommodation”, which in turn is defined in Article 2 as making such “necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden” as are needed to ensure equal access to rights. What this means, put briefly, is that if it doesn’t involve too much of a problem, the necessary extra steps have to be taken.
The reason why understanding the core of the human rights framework – the dignity of all humans and the centrality of non-discrimination - is important is that the whole purpose behind the focus on human rights was to re-boot societal attitudes that viewed people not as equal in rights but as open to classification and valuation as superior and lesser. That is why the preamble to the ECHR “reaffirms” the commitment to rights: because it had been forgotten. And when it was forgotten, things became horrendously problematic. The attitudes that were to be removed as the basis for organising society were those that had fuelled slavery, apartheid, colonialism and the extermination policies of the Third Reich: but they also supported the class system and views that gave rise to the eugenics movement and the suggestion behind it of inherently worthy people and inherently less worthy people.
This is summed up eloquently by the Committee on the Rights of Persons with Disabilities. Considering the value of the requirement in Article 12 of the CRPD that there be recognition of the equal legal capacity of people with disabilities, the Committee noted various aspects of the non-discrimination framework and outlined the distinction between legal capacity and mental capacity: the latter is the ability to make decisions, and should not affect the former. Legal capacity is defined in the following terms:
Legal capacity is the ability to hold rights and duties (legal standing) and to exercise those rights and duties (legal agency). It is the key to accessing meaningful participation in society.[6]
It should be noted that the New Zealand legislature and judiciary has recognised the value of the value of the international framework. The New Zealand Bill of Rights Act 1990 contains the indication in its preamble that it is designed to give effect to the country’s obligations under the International Covenant on Civil and Political Rights 1966; and the Human Rights Act 1993 has purposes that include giving effect to international obligations. In addition, the New Zealand judiciary has developed a principle than in their core task of interpreting what statutes properly mean, they are to be construed to meet international treaty obligations so far as possible, and public officials are required to exercise their discretions accordingly. For example, William Young P in Huang v Minister of Immigration described this as an orthodoxy.[7]
Applying this Framework to Prisoners
This starting point of recognising that human rights standards have universal application and that there should be no discrimination on the basis of a matter of status involves the need to recognise the rights of prisoners and not discriminate on the basis of the status of being or having been a prisoner. Indeed, there is another aspect of this context: contrary to the common perception of prisoners as people who choose to be criminal, there is a good evidence of a significant over-representation of people with a mental disorder, namely a matter that will qualify for protection under the non-discrimination principles and the CRPD. A comprehensive study in the United Kingdom in 1998 put the proportion of prisoners having a recognisable psychiatric condition at over 90 per cent when account was taken of substance dependency.[8] In addition, the UK’s Department of Health has indicated that: ‘Between 5% and 13% of people living in the community, 40% and 50% of psychiatric in-patients and 50% and 78% of prisoners are diagnosable with a personality disorder’.[9] Summarising surveys that had been done prior to 2002, Fazel and Danesh, writing in The Lancet, concluded that:
Our results suggest that typically about one in seven prisoners in western countries have psychotic illnesses or major depression (disorders that might be risk factors for suicide), and about one in two male prisoners and about one in five female prisoners have antisocial personality disorders.[10]
In short, the prison population is overly affected by mental disorder and poor coping strategies. Indeed, the very nature of imprisonment is itself a reason for special protections. In Orchowski v Poland,[11] the European Court of Human Rights noted that “persons in custody are in a vulnerable position and the authorities are under a duty to protect them”.
This does not mean that there cannot be restrictions on the rights of prisoners: rather, it means that they have to be justified. Most obviously, prisoners lose the right to liberty. The question to which this article now turns is an analysis of the extent of those restrictions and, by corollary, the proper understanding of the rights that are retained.
The Substantive Rights of Prisoners
As has been noted, there is a framework for the protection of human rights. States which join the United Nations accept the need to participate in the protection of rights through its mechanisms. Most importantly, the UDHR has led to treaties that set out standards that have to be guaranteed in domestic law. The central obligation of states which agree to be bound by individual human rights treaties is to make sure that arrangements are put in place in domestic law that properly reflect those rights. This can be illustrated by the language of Article 2(2) of the ICCPR, which states that:
2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps ... to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.[12]
This runs together with the core non-discrimination principles outlined above. It has led to numerous attempts to set out standards that reflect the rights of those in custody. For instance, the United Nations General Assembly in 1991 adopted “Basic Principles for the Treatment of Prisoners”,[13] which notes that “5. Except for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms” recognised in relevant documents.[14] There are also more detailed “Standard Minimum Rules for the Treatment of Prisoners”,[15] which are designed to ensure processes that protect rights. Importantly, these have status in New Zealand because the Corrections Act 2004 adopts in section 5 a commitment to have rules that comply with these Minimum Standards.
In addition, there have been numerous cases that reflect these rights and demonstrate how they operate in practice. These can be summarised against the rights affected as follows:
(i) Right to Life
The right is not just to life but is a right to have life protected: Article 6 ICCPR. The recognition of the duty to protect is important when it comes to understanding the implications of the right. It is not just that there have to be restrictions on the use of fatal force by state officials, it is that the state has to adopt policies that safeguard life. For example, in Burrell v Jamaica,[16] which related to a prisoner shot by guards during a riot, the Human Rights Committee of the UN found a breach of Article 6 because of the lack of “effective measures” to safeguard life in relation to a death that the government suggested occurred in the panic and confusion of the situation.[17] The need for protective planning of actions has been made clear in numerous cases from the European Court of Human Rights, applying the similar standard under the ECHR: see, for example, McCann v UK[18] and Finogenov and Others v Russia.[19] The principle applied is that the investigation is into both the use of force and also all the circumstances leading to the use of force, including the legal framework and the planning and control of the operation to determine whether there were steps taken to minimise the risk of life being lost.
This duty to protect extends to situations where the risk of harm comes from private individuals. This clearly sounds in the context of a prison setting where abilities to escape will be limited. An example of this is Edwards v UK,[20] where prisoner was killed by another whose risk had not been fully appreciated because of various failures to pass on relevant information. This case also set out an extensive duty to investigate possible state fault, and also illustrates the point made above about the vulnerability of prisoners: both the deceased and his assailant had mental health problems and probably should have been in hospital. One would not then have died and the other would not have committed a homicide.
This duty to protect includes the victims of crime (as Mr Edwards was): that may mean that preventive measures may have to be taken, including detention if that is what is required: see the rights to liberty, noted below. It also covers the obligation to protect people from suicidal self-harm.
(ii) No torture etc
There is an absolute right not to be subject to treatment or punishment that might be considered to be torture or to be cruel, inhuman or degrading: Article 7 ICCPR. Since no-one can be subjected to it, everyone must be protected from it. In addition, Article 10 ICCPR requires treatment that respects the inherent dignity of the individual. In this context, there have been a host of cases, mainly from the European Court of Human Rights, dealing with such matters as ill-treatment by prison officers or other prisoners, poor conditions of detention and overcrowding, the unnecessary use of solitary confinement or of overly frequent transfers, and unjustifiable strip searches. There have also been instances involving the detention of people with disabilities in facilities not suited for their needs, as happened in Price v UK:[21] part of the problem identified here was that the judge who sentenced Ms Price to custody did not inquire whether her needs could be met. This reflects a more general point that the medical needs of prisoners have to be met: this may include such matters as ensuring that someone who needs to be treated in a hospital setting is transferred. Protecting prisoners from self-harm may also be necessary.
(iii) Liberty Rights
The basic standard set out in Article 9 is that arbitrary and/or unlawful detention is not permitted. This clearly means that detention, including a sentence of imprisonment, is permissible. However, that is not the end of the investigation, because a sentence that is clearly excessive might well meet the test of arbitrariness: this may be an arguable consequence of third strike sentences, or sentences imposed on juveniles that are more consistent with sentencing levels applicable to adults.
In addition, it is to be noted that there is also Article 9(4), which provides a right to review the ongoing lawfulness of detention. The obvious situation in which this applies is in relation to parole decisions for those serving indeterminate sentences, since they consist of a sentence for punishment purposes and once that minimum term has been served ongoing detention for preventive purposes. There is a right to have regular reviews of the ongoing lawfulness of detention, and standards developed under the ECHR raise concerns in relation to delays between hearings of more than 2 years. (It is more controversial as to whether this right applies in relation to fixed term sentences.)
Preventive detention at the end of a determinate sentence is more clearly problematic, because it is not detention imposed as punishment for a crime but is based on the risk of future offending. This will inevitably turn on expert evidence as to risk, but the reliability of such material as a basis for ordering detention is open to doubt: so, in Fardon v Australia,[22] the Human Rights Committee found such detention to be arbitrary when it had not been shown that management in the community was a failure.
It should also be noted that there is express provision in Article 10(3) of the ICCPR makes it clear that
3. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation. Juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status.
Any failure to do this is a simple breach of fundamental rights. In this context, it must be noted that there is a general principle that rights that are to be guaranteed under the ICCPR cannot be defeated by lack of fiscal resources.
(iv) Privacy and Autonomy Rights, Family Rights
The right to privacy and autonomy is protected by Article 17 ICCPR and also involves the arbitrariness standard. Imprisonment clearly has some impact on these rights. There are a vast range of situations that might be covered by this. Numerous cases have been raised, matters ranging from the censorship of correspondence (both general and in situations such as contact with an outside medical specialist) to the need for proper policies on such matters as the provision of artificial insemination facilities and of mother and baby units.
One general point should be made in this situation: those who are family members of prisoners also have rights that have to be taken into account (and if there are children, their rights under the UN Convention on the Rights of the Child 1989, and rights in domestic law, are also implicated). Hence, obvious questions can arise in relation to such matters as the placement of prisoners far distant from their families.
(v) Other civil and political rights
There are a significant number of other rights found in the ICCPR. In accordance with general principles, the question is the extent to which they are lost. For example, the right to freedom of association can be restricted, but the social nature of humans means that association cannot be excluded completely except in extreme circumstances (and the impact of any other approach might be inhuman and degrading). Similarly, freedom of expression might be subject to additional restrictions, but there is no reason why prisoners should be silenced: this may lead to questions of balance, such as whether there can be limits to serving prisoners writing about their crime or contributing to media interviews, whether on criminal or other topics. Absolute prohibitions are clearly problematic, as they are in relation to the linked political right to vote.
Fair trial rights are also to be enjoyed by prisoners, both in relation to matters such as disciplinary proceedings but also in relation to access to the courts (and to legal advice) on the same terms as other people.
(vi) Economic, Social and Cultural Rights
When it comes to economic, social and cultural rights, although included in the UDHR along with civil and political rights, their protection in a binding treaty was effected through the separate International Covenant on Economic Social and Cultural Rights 1966.[23] This also has the full range of non-discrimination principles, and the various other treaties that focus on equality also cover ESC rights. In relation to these rights, there is a good summary of the standards that apply in the UN Basic Principles document, which sets out the following:
6. All prisoners shall have the right to take part in cultural activities and education aimed at the full development of the human personality.
...
8. Conditions shall be created enabling prisoners to undertake meaningful remunerated employment which will facilitate their reintegration into the country's labour market and permit them to contribute to their own financial support and to that of their families.
9. Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.
[1] Resolution 217(III) of 10 December 1948; the text is available at http://www.un.org/en/documents/udhr/.
[2] 26 June 1945 (available at http://www.un.org/en/documents/charter/).
[3] 16 December 1966, 999 UNTS 171, entered into force 23 March 1976.
[4] Council of Europe, Convention for the Protection of Human Rights and Fundamental Freedoms, 1950: CETS No 5; all Council of Europe treaties are available via www.conventions.coe.int. The ECHR has been amended by various protocols, including significant amendments brought about by Protocol No 11, ETS No 155: references are to the ECHR as amended unless otherwise indicated. Note that Article 1 of the Statute of the Council of Europe (ETS No 001, 1949) sets the Council’s aims as including “common action ... in the maintenance and further realisation of human rights and fundamental freedoms” and also realising the principles that reflect their “common heritage”, which include the human rights principles.
[5] See also Article 13(1)(b), which sets the functions of the General Assembly as including initiating studies and making recommendations designed to assist “in the economic, social, cultural, educational, and health fields, and assisting in the realization of human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion”.
[6] Committee on the Rights of Persons with Disabilities, General comment No. 1 (2014) Article 12: Equal recognition before the law, CRPD/C/GC/1, para 13.
[7] See William Young P in Huang v Minister of Immigration [2009] 2 NZLR 700 at [34]. Ye v Minister of Immigration [2010] 1 NZLR 104 (SC), [24] (per Tipping J) provides another example. This is consistent with the view of international human rights bodies. Similar language is used by the Committee on Economic, Social and Cultural Rights in General Comment No 3, “The nature of States parties obligations”, UN document E/1991/23, 14 December 1990: “15. It is generally accepted that domestic law should be interpreted as far as possible in a way which conforms to a State's international legal obligations. Thus, when a domestic decision maker is faced with a choice between an interpretation of domestic law that would place the state in breach of the Covenant and one that would enable the State to comply with the Covenant, international law requires the choice of the latter. …”.
[8] Singleton et al, Psychiatric morbidity among prisoners in England and Wales, HMSO, 1998; a summary is available at www.ons.gov.uk/ons/rel/psychiatric-morbidity/psychiatric-morbidity-among-prisoners/psychiatric-morbidity-among-prisoners--summary-report/index.html. At p23 of the summary, the authors comment on the fact that many prisoners had several disorders, noting that: ‘Only one in ten or fewer showed no evidence of any of the five disorders considered in the survey (personality disorder, psychosis, neurosis, alcohol misuse and drug dependence) and no more than two out of ten in any sample group had only one disorder.’
[9] See www.dh.gov.uk/en/Healthcare/Mentalhealth/Personalitydisorder/index.htm.
[10] Seena Fazel, John Danesh, Serious mental disorder in 23 000 prisoners: a systematic review of 62 surveys, The Lancet Vol 359, page 545-550 (February 16, 2002).
[11] Application no 17885/04, 22 October 2009, at paragraph 120.
[12] Similar language can be found in the various non-discrimination conventions to which reference has been made. The details of these provisions are analysed in Kris Gledhill, Human Rights Acts: The Mechanisms Compared, Hart Publishing, Oxford 2015, ch 2.
[13] General Assembly resolution 45/111 of 14 December 1990.
[14] In Orchowski, already cited, the European Court of Human Rights also commented at [120] that “a detained person does not, by the mere fact of his incarceration, lose the protection of his rights guaranteed by the Convention”. This reflects an established common law position, set out in Raymond v Honey [1983] AC 1: “a convicted prisoner ... retains all civil rights which are not taken away expressly or by necessary implication”.
[15] These have been approved by the UN’s Economic and Social Council by its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII) of 13 May 1977
[16] Communication 546/1993.
[17] Communication 546/1993, paragraph 9.5.
[18] Appn no 18984/91, 27 Sep 1995, (1996) 21 EHRR 97.
[19] Appns 18299/03 and 27311/03, 20 December 2011.
[20] Appn no 46477/99, [2002] MHLR 220, (2002) 35 EHRR 487.
[21] (2002) 34 EHRR 53, [2001] Prison LR 359.
[22] Communication No 1629/2007, U.N. Doc. CCPR/C/98/D/1629/2007, 10 May 2010.
[23] 16 December 1966, 993 UNTS 3, entered into force 3 January 1976; New Zealand signed on 12 November 1968 and ratified on 28 December 1978.