This article will examine the treatment of prisoners held in Close Supervision Centres (“CSCs”) focusing on the interpretation of dignity within a Human Rights perspective. Dignity focuses on the specific practices of human rights abuse that should prohibited and is particularly associated with protecting individuals from severe physical or mental suffering inflicted by the state. It has helped to achieve this by enabling all to agree that human rights are founded on dignity. A basic minimum content of the meaning of human dignity can be discerned: every human being possesses an intrinsic worth, merely by being human. This intrinsic worth should be recognised and respect by others, and some forms of treatment by others are arguably inconsistent with, or require by, respect for this intrinsic worth and that the state exists for the individual not vice versa. The fault lines lie in disagreement on what that intrinsic worth consists in, what forms of treatment are inconsistent with that worth, and what the implications are for the role of the state.
The CSC system claims to have developed largely on the basis of English compromise and pragmatism. Historically, English pragmatism has not been a big hit with the treatment of those involved in the criminal justice system; hangings were a spectator sport, so much so they were de facto public holidays, before being replaced with orderly Victorian incarceration. Privately run dungeons relied on their prisoners to turn a profit established to be unfeasible and the state tried modification, emphasising prison’s corrective role by reforming bad characters through pious and respectable living. Drawing the criminal out of the prison did not work too well either, yet our love affair with incarceration endured. Convoluted policies on rehabilitation, and imposing segregation upon segregation is where we appear to are at, leading the way for establishment of CSC’s
The purpose of the CSCs can briefly be stated from a sentence taken from the CSC Referral manual:
“The role of the CSC is to remove the most seriously disruptive prisoners from main location prison and contain them instead in small, highly-supervised units”
The concept of segregation in CSCs can be broken down in to three main components; sensory deprivation, social isolation and confinement. Use of CSCs could be argued to respect a prisoners’ intrinsic worth if it is evidenced in policy document that one component, or a combination of components do not affect a prisoners’ mental health. Where such confirmation is lacking it question its legitimacy.
As a starting point in the management of these prisoners, a group of proper legitimate values on which to base the CSCs must be established. Everybody can see that implementing alternative and appropriate measures to deal with problematic situations and prisoners, and fostering a prison environment respectful of dignity, is perhaps, the prison services most promising initiative and the only legitimate management tool.
The three main bodies charged with the dignity of prisoners have limitations leaving a wide scope for abuse of prisoners subject to rule 46.
The ending of the IMB’s involvement in the disciplinary process gave them a real opportunity to develop a distinct role as fearless, independent, public critics of the numerous aspect of the prison system which deserves much attention. The IMB have an obligation to inquire into any report a prisoner’s health, mental or physical, is likely to be injuriously affected by any conditions of his imprisonment- rule 78. Hopeful, rhetoric would suggest their change of name reflected somewhat a change of culture.
It remains a fact that so long as IMBs have no statutory powers to change the decision of prison staff, still less to alter policy at a higher level, their role has limitation. Board are also aware that identifying an alternative location within the establishment for such prisoners is extremely difficult and that identifying a placement elsewhere at least at hard. It could therefore, be that , they are simply reluctant to criticise an establishment struggling to provide satisfactorily in this particular sensitive area of Prison service practice.
The work of HMCIP is commendable, a recent inspection by HMCIP of HMP Woodhill CSC criticised the “extreme levels of sensory deprivation” and in 2009 highlighted that there were concerns at an apparent change of criteria for the CSC, which appeared to have broadened the range of eligible prisoners. Recently there was public outrage over Lola the cat dumped in a bin for up to 15 hours, yet the human dumping ground for prisoners held in CSCs appears acceptable.
The suffering caused to human subject to CSC conditions is incommensurable, yet shockingly imperceptible. Notwithstanding, whether prisoners adapt and cope with condition in CSC units, it is not healthy for anyone to idle aimlessly in a cell for up to 23 out of 24 hours a day; it is simply not constructive way of serving a sentence; and it is likely to impede (if it has not already done so), attempts to rehabilitate and safely reintegrate prisoners into society.
The conditions of the CSC unit have been judged as austere, but it is yet to be tested in the courts whether they amount to a breach of art.3 of the ECHR.
Art.3 provides an absolute prohibition on torture, and inhuman or degrading treatment, irrespective of the prisoner’s conduct. The protection afforded by art.3 is absolute and an argument based on balancing security measures against prisoners’ art.3 rights is a misconceived one. Security risk posed by the prisoner will be taken into account when determining whether any measures constitutes a breach. The principle of respect of the prisoners’ dignity is the standard for determining whether the treatment rose to the level of severity as required by art.3
Treatment causing mental suffering is sufficient to fall within the provision, provided a sufficient degree of intensity is reached. Provided it is sufficiently real and immediate, a mere threat of conduct prohibited by this provision may itself be in conflict with it.
Segregation upon segregation is used to provide an environment in which prisoners can reflect on their refusal to cooperate and there is no upper limit in which prisons may use this measure to force compliance. “Torture” has been used to describe inhuman treatment which has a purpose, such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of human treatment. Solitary confinement, in some circumstances, constitutes a breach. Complete sensory isolation coupled with complete social isolation can ultimately destroy the personality and constitute a form of inhuman treatment which cannot be justified by the requirement of security.
There is ample evidence to suggest that segregation has and will continue to have a negative impact on the prisoner’s health and is likely to lead to increasing symptoms such as depression, anxiety, hopelessness, suicide ideation and an increase in anger, frustration and hostile. A degrading punishment may not be justified by its deterrent effect, the fact that it has support of public opinion, or even if the law and order could not be maintained without it is irrelevant.
A prisoner may be escorted by up to 6 members of staff in full riot gear and a dog, while being double cuffed. This may create feelings of inferiority capable of humiliating and debasing his physical or moral resistance. Difficulties inherent in managing such prisoners cannot result in limits being placed on the protection to be afforded in respect of the physical integrity of individuals. The assessment of this minimum is in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects, and, in some cases the sex, age and state of the health of the prisoner.
Inhuman treatment covers at least such treatment as deliberately cause severe suffering, physical or mental deprivation of sleep has been held to constitute inhuman treatment as they caused intense physical and mental suffering and acute psychiatric disturbance. However, regular check at night, even when there is evidence that this sometimes wakes the prisoner, have been held to come “nowhere near” the threshold of severity to engage art.3 and to justified insofar as they engage art.8
The courts recognise that prisoners are vulnerable to human rights breaches, but would appear to use the concept of dignity merely to disguise, for example, the absence of a theory on how to resolve conflict between incommensurable values e.g. prisoners’ rights v security. This approach obscures the moral issue which gives rise to conflict of rights, pretending that the problem is the absence of a common metric, where the real disagreement is deeper. If this argument is accepted, it has taken on a rhetorical function in this context to give judges something to say when the confront the really hard issues, merely to provide a smokescreen behind which substantive judgement are being made, but unarticulated as such, and therefore uncontestable.
The techniques of “domesticating” human rights undermine the predictability necessary to create a functioning approach to human rights and in extreme forms allow for total derogation from human rights norms by tolerating all deviations which may explain the legitimacy of the CSC structure. Furthermore, the use of dignity as described appears anti-democratic. This article is not the place to consider whether these arguments are convincing.
Art.3 may be breached by the state due to the cumulative effect of a number of different measures or conditions within CSCs. As lawyers we can assist in practical ways, but the real test is for those labouring under illusions about CSC initiatives to recognise CSCs are more than just austere. After 12 years of attesting to balance incommensurable values, the time is ripe for a review of the new criteria for admission to the CSC, to ascertain whether they are (as claimed) consistent with the purpose and effective running system and whether reforms are warranted to safeguard the dignity of prisoners, is an attack on their dignity and is also an attack on the dignity of each and every one of us.
Shahida Begum- Solicitor-Cooper Rollason Solicitors, Shropshire