lecture 12 - prisoner's legal rights Flashcards
what principle links into prisoners retaining fundamental human rights
the minimum interference principle
prisoner rights stem from what?
the ECHR allows what level of judicial interpretation?
ECHR 1950
european court of human rights
potential for national level judicial interpretation
selected sources and arbiter of rights as signatory to ECHR
- european convention of human rights 1950
- european court of human rights
the european court of human rights allows margin of what for domestic courts in relation to sources and arbiter of rights
margin of appreciation
- the exact requirements may be a decision for domestic courts
4 selected sources and arbiters of rights for domestic law
- prison act 1952 and prison rules 1999
- human rights act 1998
- appellate courts
Prisoners personal liberty is restricted by what?
custodial sentence
however administrative rights are restricted by what?
restricted purely by the prison service,
not as an inevitable consequence of sentence per se
what does raymond v honey 1983 state
a convicted prisoner in spite of his imprisonment retains…
a convicted prisoner in spite of his imprisonment retains all civil rights which are not taken away expressly or by necessary implication
what is the minimum interference principle for convicted prisoners
doctrine of proportionality
-restrictions must be the minimum necessary for the interests of the regulations of prisons
- operational judgement for prisoner service, not judiciary
- decisions are made on a case-by-case basis
which rights are absolute
article 2
article 3
article 7
which rights are limited
article 5
article 6
which rights are qualified
article 8
article 12
what is protocol 6
prohibition of death penalty use
what does mcann and others uk 1995 say
must be reasonable force
mandatory lifers have what tariff?
right to know tariff, reasons for it, and any departure by home secretary
the tariff setting is what type of function?
judicial, NOT executive, function
whole life tariff is not retrospective under the terms of what act
murder act 1965 s 1(2)
is providing no grounds for hope of release humane or inhumane
it is not inhumane
what articles apply to lifers
3
5
6
7
imprisonment represents a justifiable interference with articles 8 and 12 regarding what with lifers
the conception of child
- lifer has no right to artificial insemination to conceive with partner
the inability to reproduce is not a what consequence
not an inevitable and neccesary consequence of imprisonment
public confidence in prison system or offence to public opinion is not more important than what?
but if falls within what margin?
not more important than goal of offender rehabilitation
but this falls within margin of appreciation so remains discretionary
what is there no article 8 duty for
to make provisions to provide private visits
what is the right to vote article 3 protocol 1 echr
the right to hold free elections at reasonable intervals by secret ballot,
under condition which ensure the free expression of opinion of the people in the choice of legislature
post tariff discretionary lifers are not permitted to do what
not permitted to vote
post tariff discretionary lifers can vote if what happens
if released on licence
or unconvicted
or if on remand
prisoners cannot stand for election as MP since when
since 1983
what is the government position on the prisoners not being allowed to vote for
necessary for
- punishment of offenders
- to enhance civic responsibility
- respect for the rule of law
hirst v uk 2005 argued there is no clear logical link between….
- no clear logical link between loss of vote and the imposition of a prison sentence
what did not fall within the margin of appreciation in hirst v uk 2005
- an absolute bar on voting by any serving prisoner in any circumstances did not flal within the margin of appreciation
stripping the right to vote from large numbers of people in a manner…
which was indiscriminate and timing is arbitrary
which prisoners does the administrative amendment for the right to vote apply to
for those released on temporary licence
what act allowed postal voting for home constituency
electoral amendment act 2006
why was there a low turnout for postal voting
- concerns about privacy and identification as postal voters
- requirement to have home address problematic
- prisoner lacks of political engagement
what % of prisoners in canada used postal voting
51%
theres a no blanket ban in how many western european countries
18
when was no blanket ban introduced in scotland
2019
how doesthe prisoners retainment of rights and the ECtHR help them?
prisoners rights and their protection through the ECtHR can IMPROVE PRISON conditions and penal legitimacy
what does the margin of appreciation mean for different european countries
- means different european countries may interpret generic principles differently
