JUSTICE STUDENT HUMAN RIGHTS NETWORK

CONTENTS

• Welcome
• Introduction
• Briefings
• Case note
• People
• What you can do

Welcome to the second edition of the JUSTICE Student Human Rights Network bulletin. This edition follows the Autumn edition which we hope you enjoyed - if you have not read it click here to do so.

As before, this bulletin contains four briefings on human rights, this time focusing on:

• intercept evidence - a topic on which JUSTICE has recently published a report calling for the ban on such evidence to be lifted;
• deportation on grounds of national security - an issue on which JUSTICE is well placed to comment having intervened in the case of Chahal and currently intervening in the case of Ramzy before the European Court of Human Rights;
• DNA retention by police - an issue where JUSTICE's human rights and criminal justice work overlaps;
• youth justice - again an issue of long standing concern for JUSTICE.

The 'people' section again contains a wide range of people whose work has a human rights perspective:

• Anne Owers - former director of JUSTICE and now HM Chief Inspector of Prisons in England and Wales;
• Jemima Stratford - barrister at Brick Court Chambers and member of JUSTICE Council and Executive Board;
• Conor Gearty - Director of the Centre for the Study of Human Rights at the London School of Economics and member of JUSTICE Council.

The case note looks at two European Court of Human Rights cases about prisoners' rights.

We are holding two seminars for the network in February, again at the Guardian Newsroom. These will be on Saturday 17 February (for undergraduates) and on Saturday 24 February (for postgraduates, pupils and trainees). We have redesigned the day to build on the success of the first seminar and hope to see you there. As before places are limited and are being booked up fast - please return a booking form as soon as possible if you are interested in attending.

The bulletin concludes with ways in which you can help us develop the network. We are always grateful to hear your comments and feedback - please contact jshrn@justice.org.uk - we look forward to hearing from you.

Keep up to date with future events and developments of the network at the home page for the JUSTICE Student Human Rights Network: www.justice.org.uk/jshrn/home.htm

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From Suzanne Lambert
Barrister and Member of JUSTICE Council and Executive Board
Chair of JUSTICE Student Human Rights Network project

Early one crisp November morning last year there was a steady stream of students coming in to the Guardian Newsroom in London. It was Saturday 25 November 2006 and the first seminar of the Student Human Rights Network was about to start. Amazingly, most of those who had pre-registered had given up their Saturday to attend. The seminar room was packed with just under ninety students, ranging from an A-level student to BVC students. Most were university students (graduate and post-graduate). Many had heard about the seminar through this bulletin. Some had heard by word-of-mouth. A few had come from as far away as Leeds and Cardiff. All were bright-eyed and eager to take part in the experimental seminar and there was definitely a buzz and an air of anticipation.

Following my brief introduction to the seminar and to the network, Roger Smith, Director of JUSTICE, kicked off by setting out the nature and work of JUSTICE and by highlighting some of the recent projects undertaken by the organisation. Judging from the questions asked and the feedback forms, Roger's talk turned out to be useful - whereas all of those attending had an interest in human rights, several had vague or no knowledge about JUSTICE itself.

For most attending the highlight of the day was the impressive review of the Human Rights Act 1998 and recent case-law by Rabinder Singh QC. Not surprisingly, many attendees were star-struck to be in the presence of one of the pre-eminent practitioners in the human rights arena, particularly as he was able to infuse his talk with personal anecdotes and to field a wide range of questions including those dealing with the rule of law, terrorism, and the Police and Criminal Evidence Act 1984. Those attending had a further opportunity to ask questions of Rabinder during the lunchtime break, if they were not too busy mingling or sampling the excellent sandwiches and carrot cake provided by the Guardian.

There was no opportunity for postprandial lethargy as JUSTICE's Eric Metcalfe, Director of Human Rights Policy, and Sally Ireland, Senior Legal Officer (Criminal Justice), led a lively workshop on terrorism and human rights using two hypothetical but topical case-studies.

All too quickly the day was over and most of the students voiced enthusiasm for the network and many were eager to get involved and even to become full members of JUSTICE. There was much discussion as to precisely what direction the network should take and how to harness the energy of those who had expressed interest. The aim is to hold more seminars and already two are planned - for 17 and 24 February, again at the Guardian Newsroom. Ideally the seminars would culminate later this year in a major student conference with several speakers (practitioners and academic) to coincide with JUSTICE's 50th Anniversary celebrations. As Roger explained, the dream ultimately is to get an interactive network of students and trainees across the country, driven by its own members, mainly through the media of this bulletin and eventually through a blog and/or website. We hope that members of the network would also organise events such as inviting JUSTICE staff to speak on human rights topics or about careers or perhaps even held to co-ordinate break-out sessions within the seminars in order to address different interests and knowledge levels. As we stressed at the seminar in November, if you are interested in human rights and in being part of the network get in touch and register if you have not already done so, attend one or more of the upcoming seminars, and spread the word.

Email jshrn@justice.org.uk

JUSTICE: www.justice.org.uk

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BRIEFINGS

Intercept evidence

Deportation on grounds of national security: from Chahal to Ramzy

DNA retention by police

Youth justice

Briefing: Intercept Evidence

What is intercept evidence?

An 'intercept' is the technical term for the covert interception of private messages (whether via phone, post or email) by police and intelligence services. The most well-known form of interception is a telephone tap. However, with the rise of new technologies, increasing numbers of intercepts are made on electronic communications, such as mobile phones, emails, text messages and internet calls.

'Intercept evidence' is the use of recordings or transcripts from intercepted communications as evidence in criminal or civil proceedings. However, section 17 of the Regulation of Investigatory Powers Act 2000 prohibits the use of intercept evidence in UK courts.

Why is intercept evidence banned in the UK?

The government's refusal to allow intercept evidence is a very long-standing one, going back to the invention of the telephone.

Historically, the Home Secretary had the power to issue warrants authorising interceptions of post and there are numerous instances in the 17th and 18th centuries of intercepted mail being used as evidence in criminal trials.

However, with the development of the telephone, the government has preferred to keep secret the particular methods it uses to intercept telephone calls. Its primary concern is that using intercepted material as evidence might inadvertently reveal too much about the particular methods that it uses to intercept calls.

The government has said that the ability of police and security services covertly to intercept private communications is a significant tool in the fight against serious organised crime and terrorism. In particular, intercepts allow police and security services to gain valuable intelligence on the activities of suspects leading to their arrest and prosecution. However, the government claims that this material is valuable as intelligence, rather than actual evidence against suspects. It states that if it were to allow the use of intercept material as evidence, this may make suspected criminals and terrorists aware of the particular methods used by the police to intercept their communications. This would lead to a deterioration in the ability of police and security services to intercept calls, as suspects adopted counter-measures to avoid interception.

Why is the ban on intercept evidence controversial?

The UK's ban on intercept evidence is controversial for two reasons:

because the UK is the only country in the common law world to prohibit completely the use of intercept evidence in courts;

because, since 9/11, the government has cited the evidential problems in terrorism cases as justification for introducing a number of exceptional measures impinging on basic rights:

• indefinite detention under Part 4 of the Anti-Terrorism Crime and Security Act 2001;
• the use of control orders under the Prevention of Terrorism Act 2005;
• most recently, the extension of pre-charge detention in terrorism cases from 14 days to 28 days under the Terrorism Act 2006.

What kinds of evidential problems are there in terrorism cases?

A number of reports have referred to the difficulty of obtaining sufficient evidence to prosecute terrorism cases. In 1996, the then-reviewer of terrorism legislation, Lord Lloyd of Berwick, noted 'the difficulty of obtaining evidence on which to charge and convict terrorists, particularly those who plan and direct terrorist activities without taking part in their actual execution'.[1]

In December 2003, the Committee of Privy Counsellors appointed to review the Anti-Terrorism Crime and Security Act 2001 reported that the 'inhibiting factor' in prosecuting suspected terrorists was 'not a lack of available offences' but rather than 'the intelligence on which suspicion of involvement in … terrorism is based would be inadmissible in court or the authorities would not be prepared to make it available in open court for fear of compromising their sources or methods'.[2]

So, if intercept evidence were made admissible, the government could prosecute suspects rather than relying on such exceptional measures as control orders?

Many believe so. For instance, the Attorney General, Lord Goldsmith, the Director of Public Prosecutions, Ken Macdonald QC, and the Metropolitan Police Commissioner, Sir Ian Blair have all expressed their support for lifting the ban on intercept evidence to enable criminal prosecutions in terrorism cases.

But wouldn't using intercept evidence compromise the ability of the police and the security services to gather intelligence on suspects?

That seems unlikely. Intercept evidence is regularly used in virtually every other EU and common law country, including Australia, Canada, France, Germany, New Zealand, Israel, and the United States. If intercept evidence were as harmful to intelligence gathering as the government claimed, it would be readily apparent from these other jurisdictions.

The government's stance on intercept evidence is also deeply inconsistent. First, the ban on intercept material only applies to interceptions in the UK. Recordings and transcripts of intercepted calls made in other countries are frequently used as evidence in, for example, criminal prosecutions for drug trafficking offences. Secondly, the ban has certain exceptions - there is no bar to introducing evidence of telephone calls made from prisons, for example. Ian Huntley was convicted of the Soham murders partly on the basis of intercept evidence. Thirdly, the definition of 'intercept evidence' does not extend to the use of recordings made from bugs, even where the bug records a telephone call taking place. The police frequently use evidence of recordings of telephone calls recorded in this way.

Where can I get more information?

Intercept Evidence: Lifting the ban (JUSTICE, 2006)

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Briefing: Deportation on grounds of national security: from Chahal to Ramzy

What is deportation on grounds of national security?

Under section 15 of the Immigration Act 1971, the Home Secretary has a very broad power to deport any foreign national whose removal from the UK he or she believes would be 'conducive to the public good'. In Secretary of State for the Home Department v Rehman,[1] Lord Slynn said that 'there is no definition or limitation of what can be 'conducive to the public good' and the matter is plainly in the first instance and primarily one for the discretion of the Secretary of State'.

Although the Home Secretary enjoys a very broad ground to deport foreign nationals, this power is traditionally exercised in two kinds of cases:

• where a foreign national is engaged in criminal activity;
• where a foreign national is deemed to be a threat to the national security of the UK.

How is deportation on grounds of national security different from other kinds of deportation?

The primary difference is the way in which the appeal is handled. The individual still has a right of appeal, but it is to the Special Immigration Appeals Commission (SIAC) instead of the Asylum and Immigration Tribunal, which normally handles appeals against deportation orders.

Why is it in the news?

Because deportation is currently a major plank of the government's counter-terrorism policy. Following the 7/7 bombings, the government has made clear its intention to pursue deportation of suspected terrorists wherever possible.

In particular, the government has repeatedly expressed its frustration with the existing rules governing deportation to countries where torture is practised. To this end, it has intervened in a case before the European Court of Human Rights (ECtHR), Ramzy v Netherlands,[2] due to be heard sometime in 2007. The purpose of this intervention is to argue that the court's 1996 decision in the case of Chahal v United Kingdom[3] should be reversed.

What is the Chahal decision?

The 1996 decision of the ECtHR in Chahal v United Kingdom concerned the UK government's attempt to deport Mr Chahal, an Indian national of Sikh origin, to India on the grounds that his alleged involvement in Sikh separatist activities constituted a threat to the national security of the UK.

Mr Chahal complained to the court that, if he was sent back to India, he would face torture at the hands of the Indian authorities. Mr Chahal also argued that the procedures governing his appeal against deportation on national security grounds were unfair: in particular, he had no opportunity to view or challenge the evidence against him. Instead, his only avenue for appeal against deportation was to an internal Home Office review committee, known informally as the 'Three Wise Men'. The committee had the power to examine the secret evidence upon which the Home Secretary had based his decision. It could also make recommendations to the Home Secretary. However, the committee did not operate like a court and the Home Secretary was under no obligation to follow its recommendations.

The ECtHR upheld Mr Chahal's complaint on both grounds. First, it affirmed that the prohibition against torture under Article 3 of the European Convention on Human Rights (ECHR) prohibited returning any person to a country where they faced a real risk of torture, even if that person was deemed to pose a threat to national security.

Secondly, the court held that the lack of procedures allowing Mr Chahal to challenge the evidence breached his right to liberty under Article 5(4) ECHR (because he had been detained pending his deportation) and his right to an effective remedy under Article 13 ECHR. The court said, 'there are techniques which can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice'.[4]

How has the Chahal decision affected the government's counter-terrorism policy?

The Chahal decision has had a lasting impact on the use of deportation as a counter-terrorism measure in the UK. First, it led Parliament to pass legislation in 1997 replacing the internal Home Office review panel with an appeal in national security cases to an independent judicial trial, the Special Immigration Appeals Commission or 'SIAC'. Controversially, however, the 1997 Act also introduced the use of special advocates - a special, security-cleared lawyer appointed to represent an appellant in 'closed' hearings, involving intelligence material which the Home Secretary is unwilling to disclose to the appellant and his or her lawyers. Special advocates act on behalf of appellants in closed hearings but are forbidden from discussing the closed evidence with them, which means that they effectively act for the most part without proper instructions from their client.

In an unusual way, the Chahal decision also helped to shape the government's response to 9/11. Because Article 3 ECHR cannot be derogated from, even in times of emergency, the rule in Chahal prevented the government from deporting foreign nationals it suspected of involvement in Al-Qaeda-related terrorism back to countries where they faced a real risk of torture. Instead, the government derogated from the right to liberty under Article 5(1)(f) ECHR, in order to detain indefinitely the suspects in the UK under Part 4 of the Anti-Terrorism Crime and Security Act 2001. In December 2004, however, the House of Lords in A and others v Secretary of State for the Home Department[5] held that the government's derogation from Article 5 ECHR was unlawful, because there were less restrictive measures that could be taken in respect of foreign terrorist suspects, and because the use of indefinite detention against foreign nationals was discriminatory (because UK nationals who were suspects were not subject to any restriction). This judgment, in turn, led the government to introduce the use of control orders (which apply to UK nationals and foreign nationals alike) under the Prevention of Terrorism Act 2005.

Since the 7/7 bombings, the government has announced a renewed determination to use deportation as a counter-terrorism measure. It is intervening in Ramzy (see Why is it in the news? above) to argue, in effect, that the decision in Chahal should be overturned. It is also seeking to evade the rule in Chahal by negotiating memoranda of understanding with governments known to use torture against their citizens. By securing diplomatic assurances from these countries, the government hopes that it will be able to convince SIAC that suspects deported under such assurances will not face a real risk of torture or other ill-treatment contrary to Article 3 ECHR. So far, it has concluded memoranda of understanding with Jordan and Libya and has been in negotiations with Algeria and Morocco.

Are diplomatic assurances effective in minimising the risk of torture?

No. In the 2003 case of Agiza v Sweden, the UN Committee Against Torture found that the Swedish government was in breach of its obligations under the 1984 UN Convention against Torture when it returned two asylum seekers to Egypt on the basis of assurances that they would not be tortured and it subsequently emerged that those assurances were breached.

As the UN Special Rapporteur against Torture has noted, governments such as Algeria, Libya and Jordan have all signed the Convention against Torture and yet there is ample evidence to show that these governments continue to engage in torture. If such governments cannot honour their obligations under international conventions, what reason is there to believe that they will honour bilateral agreements with the UK? In any event, the memoranda of understanding offer no safeguards or mechanisms that protect the rights of individuals who are returned and then are subsequently tortured.

What other steps has the government taken?

The government has also taken various steps to broaden the category of people who may be subject to deportation. This includes consulting on the kinds of activities which the government considers to be 'non-conducive' to the public good (eg 'glorifying' terrorism). Under section 56 of the Immigration, Asylum and Nationality Act 2006, it has also greatly expanded the power of the Home Secretary to strip dual nationals of their UK citizenship, which would leave them open to being deported.

Is deportation an effective counter-terrorism measure?

The government maintains that deportation is an effective way of disrupting the activities of suspected terrorists in the UK. However, the committee of Privy Counsellors appointed to review the Anti-Terrorism Crime and Security Act 2001 noted that: 'Seeking to deport terrorist suspects does not seem to us to be a satisfactory response, given the risk of exporting terrorism. If people in the UK are contributing to the terrorist effort here or abroad, they should be dealt with here. While deporting such people might free up British police, intelligence, security and prison service resources, it would not necessarily reduce the threat to British interests abroad, or make the world a safer place more generally'.[6]

Where can I get more information?

Chahal v United Kingdom
Special Immigration Appeals Commission Act 1997
Anti-Terrorism Crime and Security Act 2001
Human Rights Watch - Q&A on Diplomatic Assurances
Ramzy v Netherlands

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Briefing: DNA retention by police

What is DNA?

DNA stands for deoxyribonucleic acid, the chemical that carries the genetic code for all human life.

The study of DNA is important not only for increasing medical knowledge, but also for forensic purposes:

• because each individual's DNA is both highly complex and unique to that person (or, at the very least, shared only by identical twins), DNA is the most powerful form of identification available,
• since DNA is found in every human cell, it is possible to gain a sample of someone's DNA by a wide range of means: a strand of hair, a flake of skin, a mouth swab containing saliva, or a blood sample, etc. Although it is relatively easy to avoid leaving fingerprints at a crime scene, for example by wearing gloves, it is often much harder to avoid leaving DNA evidence.

Since 1985, when Sir Alec Jeffreys at the University of Leicester pioneered the development of DNA profiling, it has been possible for forensic experts to use DNA to match suspects with genetic samples taken from crime scenes. Accordingly, DNA has become an immensely powerful forensic tool in the investigation of crime.

What powers do the police have to take a DNA sample?

It has always been open to a person to volunteer a sample of their DNA for identification purposes, eg to allow them to be eliminated as a suspect in police investigations.

The source of the police power to take DNA samples from individuals in custody originates in section 63A of the Police and Criminal Evidence Act 1984. However, until the Criminal Justice and Police Act 2001, it was unlawful for the police to retain those samples where an individual was subsequently acquitted or the charges discontinued. The 2001 Act allowed police to retain DNA samples of persons charged with offences, even after their acquittal. However, such samples could only be used subsequently by the police 'for purposes related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution'.

Under the Criminal Justice Act 2003, the police now have the power to take and retain a DNA sample of any person arrested for any recordable offence, regardless of whether they are even charged or, if charged, subsequently acquitted.

This has led to the establishment and development of the National DNA Database (NDNAD, also known as the National Criminal Intelligence DNA Database), which now has DNA samples from more than 3.5 million people, including over half a million samples from children under the age of 16. There are also concerns that persons from ethnic minorities are disproportionately represented in the numbers of DNA samples held. Given the extensive powers that the police have to take and retain DNA samples from suspects (and former suspects), the NDNAD has become the largest forensic DNA database in the world.

Why is DNA retention a human rights issue?

Because each DNA sample contains massive amounts of personal information about an individual. Accordingly, the retention of DNA samples raises major implications for the protection of individual privacy, particularly the confidentiality of medical information.

With traditional forms of biometric identification, such as fingerprints, retention does not raise significant privacy concerns. This is because fingerprints are virtually useless for anything else besides identification.

By contrast, retaining a sample of a person's DNA means that the holder of the sample could use it to uncover a very broad range of potentially intimate medical and genetic information about that person, eg whether they carry the genetic marker for diseases such as Parkinson's, or their susceptibility to heart disease. Indeed, because medical knowledge of the human genetic code is constantly expanding, it is not yet known the full extent of information that may be obtained from a DNA sample.

The police, however, maintain that access to and use of DNA samples stored for the purposes of the database is strictly regulated and attended by stringent safeguards.

Has anyone challenged the police retention of DNA samples?

Yes. In R v Chief Constable of South Yorkshire Police ex parte S and Marper[1] the House of Lords heard a challenge from two individuals who had been arrested and had DNA samples taken. Following the 2001 Act, their samples were kept on the database even though they were never convicted of any criminal offence.

The appellants in Marper argued that, although retention of a DNA sample could be justified where a person had been convicted of a serious criminal offence (and could arguably be considered a suspect in the investigation of future offences), the policy of retaining DNA samples of those who had not been convicted was an unjustified and disproportionate interference with their right to respect for their private life under Article 8 ECHR.

Unfortunately, the Law Lords rejected the challenge on the basis that mere retention of a person's samples did not constitute an interference with the right to privacy under Article 8. This was an especially surprising conclusion, given the increasing potential for other government bodies and, indeed, other law enforcement agencies throughout the EU to gain access to the database. The very knowledge that someone else holds highly personal information about you - however strong the safeguards against its misuse - seems an obvious interference with privacy, even if the interference can ultimately be justified on other grounds. The matter is now on appeal to the European Court of Human Rights.

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Briefing: Youth Justice

Why is youth justice a human rights issue?

The trial and sentencing of children and young people for criminal offences engages a number of fundamental rights under the European Convention on Human Rights (ECHR). The rights most obviously engaged are Article 2 (right to life), Article 3 (prohibition of torture and inhuman or degrading treatment or punishment), Article 5 (liberty), Article 6 (fair trial) and Article 8 (private and family life).

Which human rights instruments are relevant?

As well as the Human Rights Act 1998 and the ECHR, there are several international instruments that deal specifically with the rights of children subject to criminal proceedings.

The UN Convention on the Rights of the Child (CRC), to which the UK is party, states at Article 3(1) that:

'[i]n all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration'.

Article 40(1) of the CRC provides that:

'States Parties recognize the right of every child alleged as, accused of, or recognized as having infringed the penal law to be treated in a manner consistent with the promotion of the child's sense of dignity and worth, which reinforces the child's respect for the human rights and fundamental freedoms of others and which takes into account the child's age and the desirability of promoting the child's reintegration and the child's assuming a constructive role in society'.

Article 37, inter alia, prohibits torture or other cruel, inhuman or degrading treatment or punishment, the use of capital punishment or life imprisonment without possibility of release for offences committed by persons below eighteen years of age, and provides that '[t]he arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time'.

The implementation of the CRC is monitored by the Committee on the Rights of the Child; its most recent set of 'Concluding Observations' on the UK, in 2002, voiced concerns regarding the juvenile justice system.

Other relevant international instruments include:

• the UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules),
• the UN Rules for the Protection of Juveniles Deprived of their Liberty,
• the UN Guidelines for the Prevention of Juvenile Delinquency (The Riyadh Guidelines).

What are the controversial aspects of the system in England and Wales?

The youth justice system in England and Wales is open to criticism on three main grounds:

• the low age of criminal responsibility,
• the application of laws and procedures to children that do not properly take into account their age and maturity,
• custodial sentencing - its overuse, and the conditions of custody for children and young people.

What is the age of criminal responsibility?

The age of criminal responsibility is the age at which a child or young person can be charged and prosecuted for a criminal offence. In England and Wales the age is 10. This is very low by European standards: in Italy, for example, the age is 15, while in Germany it is 14.

The presumption of doli incapax was designed to mitigate the low age of criminal responsibility. Unless the prosecution could prove that a child under 14 knew that their actions were seriously wrong (as opposed to merely naughty) they could not be held criminally responsible. But the Crime and Disorder Act 1998 abolished that presumption, and now the law has no mechanism for distinguishing between serious criminal offences and what could be described as 'playground' or bullying behaviour by 10-13 year olds - for example, the 'robbery' of dinner money from a classmate using minimal force.

The Crime and Disorder Act 1998 further encouraged prosecution by limiting the amount of times police could administer cautions to children and young people. It also widened the circumstances in which children could be sent to custody, by creating the detention and training order (DTO). These changes made it easier for children to find themselves in court or custody at a younger age.

What special provision does the system make for child defendants?

For many crimes, children and young people are tried in the youth court, which is staffed by magistrates or a district judge and which hears cases in private in order to protect the privacy of the child. The UN Convention on the Rights of the Child provides at Article 40(2)(b)(vii) that States Parties shall ensure that '[e]very child alleged as or accused of having infringed the penal law' shall have the guarantee '[t]o have his or her privacy fully respected at all stages of the proceedings'.

However, over recent years, children have been made subject to Crown Court trial in an increasing range of cases. Crown Court proceedings are not designed for children. JUSTICE's concerns centre on a child's ability to participate effectively in a trial in the Crown Court, as Article 6 ECHR requires. The landmark cases of T v UK; V v UK[1] and SC v UK[2] in the European Court of Human Rights have resulted in some modifications to practice and procedure. However, some argue that an alternative process is required.

Where are children in custody detained?

Children and young people sentenced to custody in England and Wales can currently be sent to three types of establishment:

• Young Offenders Institutions (YOIs) - these accommodate the vast majority of child prisoners, from age 15, as well as young adults. They are Prison Service establishments, although some are 'contracted out' and run by private companies.
  
  
• Secure Training Centres (STCs) - these are run by private companies. Concerns about the treatment of children in custody, including in STCs, were raised in the Report of the Carlile Inquiry, published by the Howard League for Penal Reform in 2006. The inquiry was set up following the death of 15-year old Gareth Myatt in an STC in 2004.
  
  
• Local authority secure children's homes (LASCHs) - these tend to be used for younger children and those assessed as particularly vulnerable. As well as children convicted of criminal offences, they also accommodate looked after children (those in care) who need secure accommodation (for example, because they run away from other children's homes repeatedly).

When a child is sentenced to custody, the court does not decide what kind of establishment they will go to. The Youth Justice Board for England and Wales (YJB), a government body, decides what types of custodial place to purchase and where to place the majority of children sentenced into custody.

What types of problems are there with youth custody at present?

Far too many children are being sentenced to custody, the numbers rising by almost 60 per cent between the early 1990s and 2004. While custody for children remains, officially, a 'last resort', the chair of the YJB was recently quoted in the Guardian as saying that 'a last resort today is substantially lower than 10 to 15 years ago'.[3]

Within the custodial population, too many children are being sent to YOIs, where the regime is not suitable for more vulnerable children. This was highlighted by the case of 16 year old Joseph Scholes, who committed suicide in 2002 after being placed in a YOI despite having a history of self harm.

There are also concerns about the use of practices such as strip-searching, segregation and restraint/'pain compliance' techniques against children in custody, as were raised in the Report of the Carlile Inquiry.

Like the rest of the prison estate, accommodation for children in custody is becoming overcrowded. Overcrowding can worsen conditions in custody, putting pressure on staff and meaning that access to purposeful activities such as education and sport becomes limited. In YOIs, 15-17 year olds only have an average of 8 hours of education per week.

29 children and young people under the age of 18 have died in custody since 1990.

Where can I get more information?

Still Waiting for Youth Justice, position paper of the Standing Committee for Youth Justice.

Child Rights Action for England

UN Committee on the Rights of the Child

National Association for Youth Justice

Youth Justice Board for England and Wales

Howard League for Penal Reform

INQUEST

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Briefings form an important part of JUSTICE's work. To see all our current work visit the In The News section of our website.

Nadezhda Dmitriyeva Tarariyeva v Russia (2006)
European Court of Human Rights (P Lorenzen P) 14/12/2006, Application No 00004353/03

Facts:

Mr Tarariyev was a Russian prisoner who had been in custody for almost two years. He suffered from various chronic and acute illnesses. It was not in dispute that he required constant medical supervision and treatment and that the prison authorities had been fully aware of his health problems. When his health deteriorated, he was not properly examined and did not receive any medical treatment but was promptly transferred to a civilian hospital. However, the surgery performed there was defective and Mr Tarariyev was heavily guarded and handcuffed to his hospital bed after the operation. The doctors at the civilian hospital discharged him to the prison hospital in spite of the post-operative complications requiring immediate further surgery. They also withheld crucial details of Mr Tarariyev's surgery and developing complications.

Mr Tarariyev was driven 120 kms in a prison van to a prison hospital. The prison hospital was not adequately equipped for dealing with massive blood loss and its staff treated Mr Tarariyev as an ordinary post-operative patient rather than an emergency case. Follow-up surgery was performed too late and he died. His mother complained that the prison authorities had violated Articles 2 and 3 of the ECHR.

Held:

The court found that both Article 2 (right to life) and Article 3 (right not to be subjected to inhuman or degrading treatment or punishment) had been violated. The applicant was awarded €25,000 for non-pecuniary damage and €100 for costs and expenses.

Throughout his imprisonment, Mr Tarariyev was under the control of the authorities. The prison was fully aware of his medical history, but still did not provide appropriate care in its hospital. The existence of a causal link between the defective medical assistance administered to Mr Tarariyev and his death was confirmed by the domestic medical experts and was not disputed by the respondent government. As a result the court held that there was a failure to protect Mr Tarariyev's right to life as guaranteed under Article 2.

Having regard to Mr Tarariyev's state of health, to the absence of any cause to fear that he represented a security risk, and to the constant supervision by armed police officers, the court held that the use of handcuffs in the civilian hospital in these conditions amounted to inhuman treatment. Furthermore, the court pointed to the earlier Russian case of Khudoyorov v Russia (2005), no 6847/02, §§ 116-20, in which there was a violation of Article 3 ECHR where the applicant was transported in an overcrowded prison van. Furthermore, having regard to Mr Tarariyev's serious condition, the duration of the transport and the detrimental impact of that treatment on his state of health, the court found that the transport of Mr Tarariyev in a standard-issue prison van must have considerably contributed to his suffering and therefore amounted to inhuman treatment.

The court applied Keenan v UK (2001), no 27229/95, and explained that persons in custody were vulnerable and the authorities had a duty to protect them and to account for any injuries suffered, particularly in cases when an individual died. The court reiterated that the assessment of the level of severity which ill-treatment must attain to fall within the scope of Article 3 is relative and depended on all the circumstances of the case, such as the duration of the treatment, its physical and mental effects and, in some cases, the sex, age and state of health of the victim. In that regard the court referred to several authorities such as Kudla v Poland (2001), no 30210/96, § 91, and Peers v Greece (2001), no 28524/95, § 67.

Victor Holomiov v Moldova (2006)
European Court of Human Rights (N Bratza P) 7/11/2006, Application No 00030649/05

Facts:

The applicant was a suspect remanded in custody for almost four years during which time his detention warrant expired. He suffered from a number of serious diseases including chronic hepatitis, inflammation of the kidney and pelvis, chronic renal failure, head trauma and generalised anxiety disorder. He made requests to be released from custody on the basis that it was impossible to obtain appropriate medical care as there were no doctors specialised in the treatment of his condition either in the prison or in the prison hospital. His requests were rejected by the prison. However, the domestic courts accepted that there had been a lack of appropriate medical care and consequently his remand in custody was changed to home arrest. The applicant complained that there had been a violation of Article 3 because of the inhuman and degrading conditions of detention in and in particular about the lack of adequate medical assistance. He also complained that there had been violations of Articles 5 (right to liberty) and 6 (right to a fair trial).

Held:

There had been a violation of Article 3 where the applicant had been remanded in custody for almost four years without appropriate medical care.

The court emphasised that the core issue was not the lack of medical care in general but rather the lack of adequate medical care for the applicant's particular conditions. The applicant was prescribed treatment and even urgent surgery on one of his kidneys. Although the court requested that the government provide information on the treatment received by the applicant in respect of all his health problems, no such information was presented. Rather, the government focused mainly on proving the applicant's bad faith in refusing to be seen by the prison doctors, the high number of consultations which he had had with doctors and the many occasions on which he had been hospitalised in the medical section of the prison or in the prison hospital.

The court explained that having the applicant seen by doctors without later following up their recommendations was not enough. Moreover, the court noted that the domestic courts had accepted that there had been a lack of appropriate medical care. The court found that the applicant's suffering went beyond the threshold of severity under Article 3 ECHR and constituted inhuman and degrading treatment. Therefore the court held that the denial of adequate medical care was contrary to Article 3. Although the court noted that the applicant was partly responsible for the length of proceedings and consequently for the length of his remand in custody, the state still had a duty to ensure that he was detained in conditions which did not breach Article 3.

The court also held that the applicant's detention after the expiry of his detention warrant had not been based on any legal provision. Consequently there had been a violation of Article 5(1).

Finally, the court held that there had also been a violation of Article 6(1) because the criminal proceedings against the applicant were found to be excessively long and failed to satisfy the "reasonable time" requirement. The applicant's ill-health and his being kept in custody without appropriate medical care necessitated particular diligence on the part of the courts dealing with the criminal case to administer justice expeditiously.

The court awarded the applicant €25,000 in respect of non-pecuniary damage having considered that he must have been caused a certain amount of suffering in view of the violations found. The claim for pecuniary damages (including the cost of medication and of food provided by the Applicant's family while he was in custody) was rejected on the basis that there was a lack of evidence that the losses claimed had been incurred and/or had any causal link with the violations found.

Comment

In both cases summarised above, the European Court of Human Rights found that there had been violations of the Article 3 guarantee against inhuman and degrading treatment. These cases highlight the level of medical care which prison authorities are required to provide to prisoners and those in custody. However, whilst the case of Tarariyeva v Russia is fairly straightforward, Holomiov v Moldova (2006) is likely to be of greater concern to prison authorities.

Article 3 provides that 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'. As explained in Keenan v UK (2001), lack of medical treatment may amount to a violation of Article 3, particularly as those in custody were vulnerable. However, as discussed in Salih Tekin v Turkey (1998), no 22496/93, in cases of alleged violation of Article 3, the question is whether the ill-treatment has attained a minimum level of severity to be considered within the remit of Article 3.

In Salih Tekin, it was held that holding the applicant blindfolded in a cold, dark cell and inflicting treatment that left wounds and bruises on his body violated the prohibition of torture, inhuman or degrading treatment or punishment. In Keenan, it was held that monitoring of the applicant's condition was inadequate given that he was a mentally ill person who was known to be a suicide risk and the punishment resulting from his assault on the hospital officers was incompatible with the standard of care owed to mentally ill people. Similarly, it is likely to be uncontroversial that the use of handcuffs, the constant supervision, the mode of transport from the civilian hospital to the prison hospital, and the negligent medical treatment at the prison hospital resulting in Mr Tarariyev's death constituted ill-treatment that attained the minimum level of severity to be within the remit of Article 3.

However, the finding that the treatment in Holomiov attained the necessary minimum level of severity is likely to make cash-strapped prison authorities concerned about the extent of the duty owed to prisoners and those in custody. The respondent government had argued that the conditions of detention could not be considered inhuman and degrading. They showed that public expenditure on the prison system had increased in the years 2005-2006 and argued that much had been done to improve the conditions of detention in that particular prison. According to the respondent, the applicant had received all necessary medical care while in custody - he had been seen by the prison medical personnel on approximately seventy occasions.

According to the government, the medical personnel from the prison were well qualified and licensed to practice by the Ministry of Health. Furthermore, the government submitted that the applicant had acted in bad faith. On almost thirty occasions he had refused to see prison medical personnel and had twice claimed to be suffering from high blood pressure, which showed that he was capable of exaggerating his health problems. Nevertheless, the court was not convinced that any of those submissions were relevant in the absence of specialist medical care, which it was not disputed that the applicant needed.

Interestingly, in these cases the court appears to place great emphasis on the failure to keep or provide full medical records. In Keenan, the court held that there was inadequate concern to maintain full and detailed records of the prisoner's mental state. The failure to keep full records was also highly relevant in the court's findings in Tarariyeva that there had been a violation. The court found that there was no consistency in his medical records, most of which were either mislaid or incomplete. This appeared to be the case in Holomiov as well: the government's inability to demonstrate to the court the actual treatment provided and the steps taken to follow up the recommendations made by doctors contributed to the finding that there had been inhuman and degrading treatment.

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Anne Owers CBE

Jemima Stratford

Professor Conor Gearty

Anne Owers CBE
HM Chief Inspector of Prisons

You were the director at JUSTICE when the Human Rights Act was passed. How did you respond to the Act?

One of the approaches JUSTICE took was to respond to the need for a wide range of training, not just for lawyers, but on how the Act should affect public authorities. We took on the task of seeing the Act through and did a lot of work with government departments, public authorities like the police in order to begin to get people to think about how the Act would affect their work.

You were previously at the Joint Council for the Welfare of Immigrants. Had you previous experience of human rights principles at work in asylum and immigration cases?

The concept of asylum is part of the post-war development of human rights instruments which included the Refugee Convention. Rights had always been evident in the European Convention on Human Rights but the Human Rights Act made clearer that even those people who might not qualify under the Refugee Convention had a claim if there was a likelihood of torture or ill-treatment if sent back to their countries.

And, jumping forward to your current job as chief inspector of prisons, do you see your work as based on human rights principles?

We have our own criteria for inspection which are referenced against human rights standards - not just as 'hard law' and the Human Rights Act - but also 'soft law', as in various instruments coming out of the UN and other bodies. Inspection itself is sometimes mandated, for example under the new Optional Protocol to the UN Convention against Torture. This requires that there to be in place a national preventative mechanism to report independently on all places of detention.

Have you reviewed the criteria for inspection during your period of office?

Twice. Before I came there was not such a well-developed, clear, public document which drove inspection in the way that we now have. The most recent review was two months ago in which we continued to revise our criteria. For example, we took into account domestic legislation on equality and the findings of our thematic reviews - eg on age, court cells, escorts and so on.

Can the criteria be consulted?

Yes. On our website. We set out the evidence base that we seek and give the reference to any relevant international instrument.

Which are the most important international instruments for you?

There are quite a lot. International instruments, however, tend to be couched in general terms. We are trying to make them operational in the context of a country which has, relative to others, substantial resources. We use the Convention against Torture, the Convention on the Child, the Beijing Rules [on juvenile justice] a lot. We are not a human rights enforcement body in the sense that the courts are. What we do is to provide evidence based on human rights expertise which can be used in cases taken to court. A classic example of this would be the case that found children in custody subject to the Children Act. That judgement relied extensively upon our reports on how children were being treated in prison and how that fell short. We have a conversation with courts and human rights lawyers. Our focus is operational in a complementary way to that of lawyers.

You are encouraging human rights in practice rather than in courts?

Yes. This is very evident in our work on immigration detention centres. We were able to draw on information from detainees as well as our own findings. This provides an important basis for human rights protection. Our reports could assist litigation but more often result in changes to how a place is run. Last year, we made over 3,000 recommendations for change. We have gone back to see if those recommendations have been implemented. We found that something like 70% were, in whole or in part. This is very important. Not all change is achieved by courts.

So you are working within the system?

We are working within the Human Rights Act in the sense that the Act places obligations on public authorities - ourselves included. Not all of our recommendations by any means could found a human rights case in a court. If you work within a broad definition of human rights as human dignity then even small things are important, such as access to showers and phone calls for those for whom everything is decided by someone else, as happens in a prison. In the unequal power relations in a prison, it is important that human dignity is respected.

You have had to battle for the continued existence of your office. You have won and the government has accepted that the prison inspectorate should continue. Was that difficult?

The idea of creating a single criminal justice inspectorate did not come from the Home Office. It emerged from the centre of government as the concept that all public service inspectorates could be merged into four, one of which covered criminal justice. The difficulty always was to explain that the prison inspectorate was very different from the task of overseeing other elements of the criminal justice system. First, we have a specifically human rights remit: the condition and treatment of prisoners. Second, issues like health care and education are important to us but outside the criminal justice system as a whole. The merger was an idea that looked good from a distance but was more problematic the nearer that you were. As I say, it was not a Home Office initiative. We argued against it with ministers and the inspectorate was very strongly supported in the Lords. It is welcome that the continuation of the inspectorate in its present form was finally accepted.

What are you most proud of having done as chief inspector?

I am getting together the current annual report on the theme of the last five years. It is very encouraging and slightly surprising. If you look at great swathes of prison life and put together statements from our reports on what should be put right, I am surprised how much has been done. For example, prison health care is infinitely better than it was. So too are detoxification programmes. Suicides have currently dropped from a dreadful peak a few years ago. In relation to individual establishments, Dartmoor was my first unannounced inspection. It was really a dreadful place. I went back for a second time last year. It is a really effective training establishment.

But. But. But. The annual report covers only inspections carried out to last April. Since then numbers in prison have risen to 80,000, and prisons are more fragile places than they were. They are subject to a law of gravity. They go down more easily than they come up. They face enormous pressures. A prisoner may now spend their first day in custody not in any well organised centre with health and detoxification support but in a police cell; and may go to a prison even further from home, with fewer resources to provide the activities and support needed. Battles are never entirely won.

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You are a public lawyer in a commercial set of chambers?

Brick Court also has a strong public law team. It originally became well-known as a commercial set, but about 25 years ago it began to develop expertise in EU law. In fact, many people would say that it is now the leading EU set. About 15 years ago, the public law side of chambers began to develop, including work before the European Court of Human Rights. We are now recognised as one of the leading public law and human rights sets at the Bar.

How did you get interested in public law?

At school, I had considered law as a possible career, but I really didn't know what I wanted to do. I spoke to a barrister who was the mother of a friend, and she explained to me that you do not have to study law as an undergraduate to be a lawyer. In fact, she suggested that it might be a good idea to read something different if you were going to spend the rest of your working life as a lawyer. So I studied history at university. While at university I began to get interested in human rights.

From what perspective?

Principally from an international and a current affairs point of view. In the summer of my second year, I was lucky enough to be able to work for about three weeks with Rakiya Omar. At that time, she was the executive director of the Africa Division of Human Rights Watch, which was based in London. Through that work experience I decided that I was genuinely interested in human rights, and wanted to make it part of my work. I applied for a scholarship from the Wingate Foundation, and that gave me enough money to go to New York for a year.

After your degree?

Yes. I went to work for Human Rights Watch at its headquarters in New York - in the Helsinki Division. That division monitors the countries that are signatories to the Helsinki Accords - Europe, the US and Canada. It was a particularly interesting time to be involved in human rights issues in those countries as the Cold War had ended very recently. During my year at Human Rights Watch I worked mainly on Albania and Romania. I was particularly interested in the latter as I had travelled in Romania when Ceaucescu was still in power. Albania was also a fascinating country to study. I helped to set up the first independent NGO mission to Albania.

Did you get there yourself?

No, but I did go on a mission to Romania to investigate the treatment of people arrested following protests in the centre of Bucharest.

It must have been a pretty wonderful year?

It was great. At the end of the year I had to decide what to do next. I could have stayed on at Human Rights Watch, gone to another NGO, or done something outside the NGO sector. I went to a lot of people in the field for advice. With their help, I decided that generally the most useful and effective people working at places like Human Rights Watch had a background either as a trained lawyer or experienced journalist. I also worked out that I would prefer to work at a more grass roots level and take up individual cases, rather than as a campaigner where the task was more like that of being an investigative journalist. So, I decided that I should train to become a lawyer.

Did you hesitate about the choice between barrister and solicitor?

I decided - again with lots of advice - that if I wanted to do human rights work, there was more scope at the Bar to pursue my own interests alongside whatever work became my mainstream area of practice. And I think I was right.

Did you manage to keep your interest in human rights up while you were training?

The conversion year was hard work, and it was important to do as well as possible because chambers look at the results when you are applying for pupillage. I didn't have much spare time, but I did work for half a day a week at Amnesty during that year, and carried on when I was at Bar School. I also helped with a pro bono death row case from the Caribbean and did some writing for the human rights organisation Interights.

Did you find it hard to get started?

You have to be prepared, particularly at the beginning of practice, to get involved in any human rights case that comes along, wherever and whenever you find it - even if you don't get paid. So, for example, the first case that I did was one for Liberty where I was junior counsel in a case before the European Court of Human Rights. We won the case many years later so I did get paid for some of the work, but you need to be prepared to do human rights cases pro bono.

I think of you now as a specialist in public and human rights law. Is that right?

Most of my cases have an element of human rights or public law to them. I also do a lot of work that involves EU law.

Do you think that it was easier then than now to get work in human rights at the Bar?

If anything, I think it is easier now. There is a lot more human rights work about. It is much more of a mainstream area of work in its own right than it was even 10 years ago.

Do you ever wish you were still working in an NGO?

I certainly don't regret leaving the NGO sector to train as a barrister. With the knowledge and the experience that I now have I think that I can be more useful when advising NGOs.

So your judgement was right at the time?

I think so.

And you enjoy being a barrister?

I do. You get the thrill and adrenalin of appearing in cases and arguing interesting points in court.

And winning?

And winning some of the time!

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Have you always been a supporter of human rights?

I have actually spent a long time being strongly opposed to any laws that entrench human rights in the constitution or in any other way here in the United Kingdom.

On democratic grounds?

Initially because I couldn't stand the English judges and, as an Irish person in England in the 1980s, my views were greatly influenced by cases that arose from what we used to refer to as 'the troubles'. My opposition then broadened to other grounds. Even so, it doesn't follow that I am opposed to human rights as such. It is true to say that, having build the case against human rights laws on anti-judicial and anti-democratic grounds, I found myself also very puzzled by the concept of rights.

About where they come from?

Exactly. So there are three layers to my concerns: one relating to judges (they have been lousy on civil liberties' issues); democracy (the people should decide); and philosophical.

Do you now have a different view of the judiciary than you did then?

The Cold War is over. What was nearly at times a civil war in Ireland is over. Quite a lot of pressure relating to national security is off the British judiciary. Even so, the judiciary's record on terrorism is mixed. On the one side, there is the Belmarsh decision, the findings on control orders and some part of the decision on admission of evidence obtained by torture. On the other, there have been restrictive decisions on police powers and national security. It is a mixed record - even since the Human Rights Act.

So, you see the change in the judiciary as essentially a political one?

I just don't think the judges see a threat to the state from international terrorism in the same way as their predecessors saw, for example, from Irish terrorism. I think there has been a change of perception. I don't know if it dates from the scandals of arms to Iraq, Matrix Churchill or the Iraq war and the dodgy dossier. Senior judicial figures are much more inclined now to challenge executive assertions in the field of national security. It's a kind of sociological fact. It is to do with what we are today. Certain figures among the judiciary have engaged in a liberal perspective in a way that senior figures in the past would not have done. The judges that founded my opinion of the judiciary were people like Lords Widgery, Diplock, Lane and Denning. You only have to name them to see how different the atmosphere is now.

You don't see the judges as less deferential to the executive?

I don't go so far. I am nervous about extending the notion of the rule of law to increase the power of the judiciary relative to Parliament.

Did you approve of the Human Rights Act when it was first proposed?

My line at the time was that I was very much opposed to the option for a human rights bill that would give the judges power to strike down Acts of Parliament. I was pretty relaxed about judicial review of executive acts on the basis of convention criteria. I was interested in, and not hostile to, the idea of declarations of incompatibility, hoping that this would lead to a situation of dialogue and not command from on high. So, the Human Rights Act met my democratic objective. Practice has reflected the changes that we discussed. That leaves the philosophical issue.

If there is a conflict between democracy and values, where do you stand?

If the democratic system remains in place and I have lost a battle over the civil liberties that I prefer or an economic, social or cultural right then I want to be left with the option of a democratic fight.

So, if Parliament brought forward legislation that was blatantly incompatible with the ECHR and subject to a declaration of incompatibility?

I would fight the political battle and I would accept that it is going to be dangerous to impose my views on the populace. I accept the outcome that my values might lose. I said previously that this is subject to a condition - 'if the democratic system remains in place'. If the democratic system starts to destroy the level playing field of discussion - for example by restricting access to the media for certain categories of people or views - then this would become a very difficult challenge for us all. Things would then be so serious that judicial protest might not be enough. In an extreme position, we need more than judges. Take as an example a difference between ourselves and the United States. The President or Prime Minister refuses to call an election. In the US, the judges should uphold the constitution and require one. In this country, resistance to elections would have to be stopped by democratic action. I would hope that there would be mass demonstrations. I would prefer to keep the judges out of it.

What about if Parliament passed legislation to return people to countries where there was a reasonable prospect that they would be tortured?

This is an ethical position. I don't think we should leave it to the law. I am optimistic that the legislation might be overruled by lively political debate. A bad result would be to rely on court decisions that might include a negative one in Ramzy [a referral to the European Court of Human Rights which would reverse the current position]. Those who live by the courts die by them. The European Court would, in such circumstances, be wrong but there are fewer arguments to fall back on.

What would you say generally about the health of civil liberties and human rights?

The recent British social attitudes survey is interesting. It shows two things. First, support for civil liberties declined during the mid 1980s, after which it has flattened out a bit. There has definitely and distinctly been an erosion of support. Second, when you put the fear of terrorism into the pot, the willingness to give up civil liberties is marked. The situation is very vulnerable. People are forgetting why they were in favour of civil liberties. If we don't engage the British public with really good examples as to why civil liberties are good for us all, it will just take very few terrorist criminal calamities to do enormous damage. Things are very brittle. I am not alarmed but I am concerned.

Finally, let us move to the centre here in LSE. You came about four and a half years ago as director. What objectives did you have? Have you met them?

The objectives were clear to me:

• to bring some of the ambiguities and uncertainties of my approach to human rights to the academic arena;
• to form a base of support for the values of human rights;
• to subject human rights to critical analysis and intellectual rigour

And to do this through public events, research projects and working with students. We have worked on all three fronts. It's really for others to say if we have succeeded.

And what of your general sense of where we are at the cu