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13. Prison/Conditions of Detention
The use of restraints against young people in Secure Training Centres The Children’s Rights Alliance for England v Secretary of State for Justice [2012] EWHC 8 (Admin) (11 January 2012) Summary This decision of the England and Wales High Court held that whilst certain measures had been unlawfully perpetrated against young people in secure training [...]
Journalistic access to prisons and the right to freedom of expression and information British Broadcasting Corporation (BBC) & Anor, R (on the application of) v Ahmad [2012] EWHC 13 (Admin) (11 January 2012) Summary In early 2012, the British Broadcasting Corporation applied for permission to conduct a face-to-face interview with Babar Ahmad who is currently [...]
What amounts to degrading treatment in prison? Grant v Ministry of Justice [2011] EWHC 3379 (QB) (19 December 2011) Summary In Grant v Ministry of Justice, the High Court of England and Wales dismissed claims by two prisoners that the prison sanitation regime at HMP Albany breached their right under article 3 of the European [...]
Court rules that UK must act to secure release of prisoner from notorious US prison Rahmatullah v Secretary of State for Foreign and Commonwealth Affairs & Anor [2011] EWCA Civ 1540 (14 December 2011) Summary On 14 December 2011, the England and Wles Court of Appeal overturned a decision of the High Court and issued [...]
Investigations of deaths implicating the state must be comprehensive and fully independent R, Mousa v Secretary of State for Defence & Anor [2011] EWCA Civ 1334 (22 November 2011) Summary The UK Court of Appeal recently considered the investigation obligation under articles 2 and 3 of the European Convention on Human Rights in the context [...]
Systemic overcrowding in prisons may amount to inhuman and degrading treatment Mandic and Jovic v Slovenia [2011] ECHR Application Nos. 5774/10 and 5985/10 (20 October 2011) Summary In this case, the European Court of Human Rights confirmed that inadequate physical conditions of detention in prison, in particular insufficient personal space for prisoners resulting from systemic [...]
Treatment and conditions of detention for women must be gender-sensitive, says CEDAW Inga Abramova v Belarus, Communication No. 23/2009, UN Doc. CEDAW/C/49/D/20/2008 (2011) Summary The Committee on the Elimination of Discrimination against Women has found that Belarus’ treatment of a woman detained under administrative arrest violated articles 2(a)-2(b), 2(e)-2(f), 3 and 5(a) of the Convention [...]
UK’s detention of individual suffering mental illness amounted to torture and ill-treatment The Queen (on the application of S) v The Secretary of State for the Home Department [2011] EWCH 2120 (Admin) (5 August 2011) Summary The Claimant, S, sought judicial review of the decision to detain him pending deportation. Owing to circumstances relating to [...]
State bears responsibility for deaths in custody Zhumbaeva v Kyrgyzstan, UN Doc CCPR/C/102/D/1756/2008 (19 July 2011) Summary In this case, the United Nations Human Rights Committee held that Kyrgyzstan was responsible for injuries to, and the death of, a man held in police custody. The Committee based its decision on the principles that a State [...]
State bears onus to explain injuries in custody Gubacsi v Hungary [2011] ECHR 1044 (28 June 2011) Summary In this case, the European Court of Human Rights (the Court) confirmed that ill-treatment of persons in custody by police, if sufficiently serious, may amount to inhuman and degrading treatment in breach of article 3 of the [...]
Supreme Court of the United States upholds ‘structural injunction’ requiring California to reduce its prison population Brown, Governor of California et al v Plata et al, 563 US _____ (2011) (23 May 2011) Summary On 23 May 2011 the Supreme Court of the United States upheld a lower court’s decision finding that the conditions in [...]
Mandatory Minimum Sentencing Amounts to Cruel, Inhuman and Degrading Treatment Daniel and Another v The Attorney General and Others (A 430/2009) [2011] NAHC 66 (10 March 2011) Summary The Namibian High Court recently considered whether mandatory minimum sentences for stock theft under the Stock Theft Act violated the prohibition of cruel, inhuman or degrading punishment [...]
Lack of Adequate Healthcare in Prison is Inhumane and Degrading Kupczak v Poland [2011] ECHR 127 (25 January 2011) Summary Mr Edward Kupczak (the ‘applicant’) was held in detention in Poland awaiting trial for offences related to organised crime. The Applicant was severely disabled in a car accident six years prior to his detention, and [...]
Shamrocks and Poppies Allowed, but Easter Lilies Likely to Aggravate Donaldson v the United Kingdom – 56975/09 [2011] ECHR 210 (25 January 2011) Summary A majority of the European Court of Human Rights declared that an application concerning a ban on all prisoners in Northern Ireland wearing emblems with a political or sectarian connotation outside [...]
Mental Health and the Right to Liberty – Unlawful Detention in Mental Health Facility and the Right to Compensation TTM v London Borough of Hackney & Ors [2011] EWCA Civ 4 (14 January 2011) Summary The UK Court of Appeal recently considered the legality of detention of a mental health patient where the patient’s “nearest [...]
Right to Liberty and Review of Detention Faulkner, R (on the application of) v Secretary of State for Justice the Parole Board [2010] EWCA Civ 1434 (14 December 2010) The recent decision in Faulkner v Secretary of State for Justice provides guidance concerning the parole board system. In Faulkner, the Court concluded that where a [...]
Enforcing the Right to Vote: UK Government Given Deadline to Reinstate Prisoners’ Right to Vote Greens and MT v United Kingdom [2010] ECHR 1826 (23 November 2010) The European Court of Human Rights recently considered the United Kingdom’s continued failure to amend legislation imposing a blanket ban on voting in national and European elections for [...]
Ill-Treatment in Custody: Human Rights Committee Considers Prisoners’ Rights in Detention McCallum v South Africa, UN Doc CCPR/C/100/D/1818/2008 (2 November 2010) The Human Rights Committee has found that South Africa violated a prisoner’s rights not to be tortured or treated in a cruel, inhuman or degrading manner and to be treated with humanity and respected [...]
Right to a Fair Hearing and Disciplinary Proceedings in Prison King v Secretary of State for Justice [2010] EWHC 2522 (Admin) (13 October 2010) The High Court of Justice has held that disciplinary proceedings may constitute the determination of civil rights, invoking the rights under art 6(1) of the European Convention on Human Rights. The [...]
Indian Supreme Court Considers Right to Liberty and Safeguards against Arbitrary Detention Pebam Ningol Mikoi Devi v State of Manipur & Ors [2010] INSC 782 (27 September 2010) The Indian Supreme Court has consider the right to liberty and safeguards against arbitrary detention, including the need for sufficient justification for any deprivation of liberty and [...]
Prisoners’ Right to Privacy: Claim for Access to Family Photographs Rejected Broom v Secretary of State for Justice [2010] EWHC 2695 (Admin) (03 September 2010) The England and Wales High Court has held that the decision of a prison authority to deny a prisoner access to photographs of his children did not engage that prisoner’s [...]
Supreme Court Considers Right to Liberty and Security of Person Subject to Involuntary Mental Health Treatment Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010) On an application for a writ of habeas corpus, Bell J of the Supreme Court of Victoria held that the provision in the Mental Health Act 1986 (Vic) [...]
Adrakhim Usaev v Russian Federation, UN Doc CCPR/C/99/D/1577/2007 (20 August 2010) The Human Rights Committee, in consideration of a communication submitted under the Optional Protocol to the International Covenant on Civil and Political Rights, ruled that a man currently imprisoned in Russia had been subjected by the law enforcement authorities to torture or cruel, inhuman [...]
Human Rights Committee Considers Necessity for Independent, Impartial Investigations in Cases of Alleged Breaches of the ICCPR Olimzhin Eshonov v Uzbekistan, UN Doc CCPR/C/99/D/1225/2003 A father of a man who died in custody submitted a complaint to the Human Rights Committee (Committee), alleging violations of his son’s rights and his own rights under arts 2, [...]
Right to Humane Treatment in Detention and Prisoner Access to Health Care Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010) On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment. [...]
Torture and the Transfer of Prisoners Evans, R (on the application of) v Secretary of State for Defence [2010] EWHC 1445 (Admin) (25 June 2010) Ms Evans, a peace activist, sought to stop the practice of British personnel transferring detainees to the Afghan authorities by arguing the practice exposed such transferees to a real risk [...]
What Constitutes a Deprivation of Liberty? Secretary of State for the Home Department v AP [2010] UKSC 24 (16 June 2010) A recent decision of the UK Supreme Court has confirmed that certain control order restrictions may constitute a deprivation of liberty sufficient to engage the operation of art 5 of the European Convention on [...]
Supreme Court Orders Speedy Trial to Determine Prisoner’s Eligibility to Access IVF Treatment under Victorian Charter Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010) The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of [...]
Post-Sentence Detention Incompatible with Prohibition against Arbitrary Detention Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (12 April 2010) Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (12 April 2010) The UN Human Rights Committee has held that the post-sentence detention of two men convicted of sexual offences, Kenneth Tillman in New South Wales and Robert Fardon in Queensland, [...]
Post-Sentence Detention Incompatible with Prohibition against Arbitrary Detention Fardon v Australia, UN Doc CCPR/C/98/D/1629/2007 (12 April 2010) Tillman v Australia, UN Doc CCPR/C/98/D/1635/2007 (12 April 2010) The UN Human Rights Committee has held that the post-sentence detention of two men convicted of sexual offences, Kenneth Tillman in New South Wales and Robert Fardon in Queensland, [...]
Statutory Interpretation and Limitations on Rights In the matter of a Major Review of Derek Ernest Percy [2010] VSC 179 (31 March 2010) Derek Percy, the only remaining prisoner in Victoria who was found not guilty of murder on the grounds of insanity, sought to have his custodial supervision order varied pursuant to the Crimes [...]
Protection from Cruel Treatment and the Death Penalty: UK Breaches Convention Obligations by Transferring Prisoners to Iraqi Custody Al-Sadoom and Mufdhi v United Kingdom [2010] ECHR 282 (2 March 2010) The European Court of Human Rights has held that the United Kingdom breached a number of its obligations under the European Convention on Human Rights [...]
Right to Liberty and Security and the Police Use of Force: Excessive Use of Force Results in Reduction of Sentence R v Nasogaluak, 2010 SCC 6 (19 February 2010) The Canadian Supreme Court has held that the excessive use of force by police officers in conducting an arrest was a breach of the accused’s right [...]
Canadian Court Declares that Prison Conditions Violate Fundamental Human Rights Trang v Alberta (Edmonton Remand Centre), 2010 ABQB 6 (11 January 2010) The Court of Queen’s Bench of Alberta has declared that conditions under which untried prisoners were held in Edmonton Remand Centre (‘ERC’) pending trial for conspiracy to traffic illicit drugs resulted in a [...]
Freedom of Information and Security of Prisons Rogers v Chief Commissioner of Police [2009] VCAT 2526 (26 November 2009) In Rogers v Chief Commissioner of Police, VCAT held that CCTV footage and audio tape used for the investigation of an incident that occurred in the Banksia Unit of HM Barwon Prison were exempt from disclosure [...]
Supreme Court Considers Relevance of Conditions of Detention to Bail Dale v DPP [2009] VSCA 212 (21 September 2009) In considering whether a former police officer should be granted bail, the Court of Appeal accepted that the circumstances of his custody constituted ‘exceptional circumstances’ as defined by the Bail Act 1977 (Vic). Unless the appellant [...]
Right to Liberty and Redress for Unlawful Detention Morro & Ahadizad v Australian Capital Territory [2009] ACTSC 118 (10 September 2009) Gray J of the Supreme Court of the Australian Capital Territory found that s 18(7) of the Human Rights Act 2004 (ACT) (‘ACT Act’) creates an independent statutory right to compensation for unlawful arrest [...]
Right to Respect for Private Life and Equality in Prison AB, R (on the application of) v Secretary of State for Justice & Anor [2009] EWHC 2220 (4 September 2009) In this case, the Administrative Court of the High Court of Justice held that the continued detention of a pre-operative transgender woman in a male [...]
Supreme Court Considers Relevance of Conditions of Detention to Sentencing R v Kent [2009] VSC 375 (2 September 2009) On 2 September 2009, Bongiorno J of the Victorian Supreme Court handed down a decision which considered the application of the Charter to sentences of imprisonment imposed on individuals with mental health conditions. Facts Shane Kent [...]
Smoking Ban in High-Security Psychiatric Hospitals does not Contravene Right to Privacy N, R (on the application of) v Secretary of State for Health [2009] EWCA Civ 795 (24 July 2009) The House of Lords held that a policy of banning smoking at a psychiatric hospital did not contravene the patients’ human rights and was [...]
Proportionality and Limitations on Human Rights: Indefinite and Unreviewable Reporting Obligations Breach the Right to Privacy JF & Anor, R (on the application of) v Secretary of State for the Home Department [2009] EWCA Civ 792 (23 July 2009) The UK Court of Appeal has found that a regime providing for automatic and indefinite reporting [...]
Monitoring and Confidentiality of Prisoner Correspondence Szuluk v United Kingdom [2009] ECHR 36936/05 (2 June 2009) The European Court of Human Rights has held that it is a disproportionate interference with an individual’s right to privacy to monitor their confidential medical correspondence with their specialist. The prison governor had directed that the applicant’s correspondence with [...]
Detailed and Individualised Risk Assessment Required Prior to any Handcuffing of Prisoner During Hospital Visits Faizovas, R (on the application of) v Secretary of State for Justice [2009] EWCA Civ 373 (13 May 2009) This case sets out a requirement for prisons to undertake detailed risk assessments if they deem it necessary for handcuffs to [...]
Meaningful Review Necessary to Justify Continued Detention Secretary of State for Justice v James [2009] UKHL 22 (6 May 2009) The House of Lords has confirmed that a breach of arts 5(1)(a) and 5(4) of the European Convention on Human Rights may occur in circumstances where a prisoner is detained for longer than is necessary [...]
UN Human Rights Committee Rules on Family Contact with Prisoners Tornel v Spain, UN Doc CCPR/C/95/D/1473/2006 (24 April 2009) The UN Human Rights Committee has held that the rights of a prisoner’s relatives to protection from arbitrary interference with their family life, protected under art 17 of the International Covenant on Civil and Political Rights, [...]
Detention and Treatment in Government-Run ‘Sobering Up’ Centre may Amount to Ill-Treatment Wiktorko v Poland [2009] ECHR 14612/02 (31 March 2009) The European Court of Human Rights has held that the treatment of a Polish national, whilst detained at a government-run ‘sobering-up centre’, constituted degrading treatment in violation of the substantive protection of art 3 [...]
State Obligation to Conduct Public Investigation into Potential Violations of the Right to Life and Prohibition against Ill-Treatment AM & Ors, R (on the application of) v Secretary of State for the Home Department & Ors [2009] EWCA Civ 219 (17 March 2009) The UK Court of Appeal has affirmed that the government has an [...]
Right to Liberty and Judicial Review of Lawfulness of Detention Black v Secretary of State for Justice [2009] UKHL 1 (21 January 2009) The House of Lords has held that the Justice Secretary’s power to determine whether certain long-term prisoners should be released on parole does not constitute a breach of art 5 of the [...]
Is Refusal to Attend a Funeral a Breach of the Right to a Private and Family Life for Prisoners? Czarnowski v Poland [2009] ECHR 28586/035 (20 January 2009) The Applicant, Mr Edward Czarnowski, lodged an application with the European Court of Human Rights against Poland for breach of art 8 of the European Convention on [...]
In this case, Nettle J of the Victorian Court of Appeal considered the scope and operation of s 32(1) of the Victorian Charter of Human Rights, which provides that ‘so far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with [...]
The House of Lords has held that a mandatory sentence of life imprisonment without parole does not necessarily constitute inhuman or degrading treatment or punishment under art 3 of the European Convention on Human Rights. Detailed case note.
The case concerns the applicant’s complaint about the excessive length of his pre-trial detention and inadequacy of the medical care he had received during that time. After the applicant’s death, the applicant’s wife alleged that the authorities contributed to her husband’s death by failing to take the appropriate measures to protect his health and life. [...]
The House of Lords has recently unanimously held that the right to life established by art 2 of the European Convention on Human Rights requires the state to carry out an independent investigation whenever a person is left incapacitated by a suicide attempt in custody. Detailed case note.
On 16 October 2008, the European Court of Human Rights held that the suicide of a mentally ill prisoner in France was attributable to the authorities’ failure to provide adequate medical care. This failure was a breach of the deceased’s right to life and right to be free from inhuman or degrading treatment. Detailed case [...]
The England and Wales High Court (Administrative Court) has held that the Secretary of State’s decision that the applicant’s next Parole Board review should take place approximately 18 months after the last one, amounted to a violation of art 5(4) of the European Convention on Human Rights which entitles a person to challenge the lawfulness [...]
The European Court of Human Rights held that there had been a violation of art 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights because the applicant’s conditions of detention were not appropriate to his state of health. In the Court’s view, in circumstances such as these, the State should [...]
The European Court of Human Rights has held that a Polish prisoner’s right to respect for his family life was violated by onerous visitation restrictions, which substantially prevented him from seeing his wife and son. The applicant was awaiting a final determination on a serious assault charge. Although his wife had previously made a statement [...]
The applicants had been charged with terrorism-related offences under the Commonwealth Criminal Code. They applied to have the trial stayed on grounds of unfairness, arguing the conditions of their incarceration and of their transport to and from Court each trial day were increasingly affecting their capacity to properly defend the charges against them. Detailed case [...]
In this decision, the UK Court of Appeal found that there may be a breach of arts 5(4) and 5(1)(a) of the European Convention on Human Rights where a prisoner is detained for longer than is necessary for the protection of the public. These provisions may also be infringed where a prisoner is detained for [...]
On 4 December 2007, the Grand Chamber of the European Court of Human Rights handed down it’s decision in Dickson v The United Kingdom, a case concerning prisoners’ access to artificial insemination facilities. The applicants complained that the refusal by the Secretary of State to allow the first applicant access to artificial insemination facilities whilst [...]
The Queen’s Bench Division of the UK High Court has considered whether handcuffing two sick prisoners during treatment violated their right to freedom from cruel, inhuman or degrading treatment under art 3 of the European Convention on Human Rights. Detailed case note.
In this case, the applicant, a man with chronic schizophrenia, was subjected to the practices of restraint and seclusion while detained. The applicant successfully complained to the European Court of Human Rights of violations of art 3 (prohibition on cruel, inhuman or degrading treatment or punishment) and art 5 (right to liberty and security of [...]
The European Court of Human Rights has held that the medical treatment of a prisoner within a remand centre and prison hospital was inadequate and that failure to treat him as an inpatient at a hospital where he could receive the necessary neurological and hyperbaric oxygen treatment amounted to a violation of the prohibition on [...]
This case concerned the investigative duties imposed upon authorities by art 2 of the European Convention on Human Rights (the right to life) following the injury or death of an individual whilst in custody. In particular, the case turned on whether an obligation to carry out an ‘enhanced investigation’ was subject to a threshold test [...]
In a judgment handed down on 12 June 2007, the European Court of Human Rights held that particular strip searches conducted on the applicant violated the prohibition on degrading treatment in art 3 of the European Convention on Human Rights (‘ECHR’). Further, certain restrictions placed on the applicant’s correspondence violated the right to privacy protected [...]
In a series of recent cases, the European Court of Human Rights has found conditions of detention in prisons to be incompatible with the prohibition of torture and other cruel, inhuman or degrading treatment or punishment enshrined in art 3 of the European Convention on Human Rights. Detailed case note on the cases of Andrey [...]
The European Court of Human Rights has found a violation of art 3 (prohibition of inhuman or degrading treatment) of the European Convention on Human Rights on account of the authorities’ failure to provide a prisoner with medical care appropriate to his conditions. Detailed case note.
In March 2006, the UN Human Rights Committee (‘HRC’) published a landmark finding concerning alleged breaches of articles 2(3) (right to an effective remedy), 7 (right to freedom from cruel, inhuman or degrading treatment or punishment), 10 (rights of persons deprived of their liberty) and 24 (right to adequate protection for children) of the International [...]
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