Human rights and civil liberties in prisons. Should a prisoner have rights?

• Article 2                                    a right to legal protection for life;
• Article 3                                a right to be free from torture and inhuman or degrading treatment;    
• Article 4                                   a right to be free of slavery, servitude and forced labour;
• Article 6                                   a right to a fair and public hearing within a reasonable time;
• Article 7                                   a right not to be punished without law;
• Article 9                                   a right to freedom of thought, conscious and religion;
• Article 12                                       a right to marry and found a family;
• Protocol 1, Article 1                a right to peaceful enjoyment of possessions;
• Protocol 6, Articles 1 & 2                    a right not to be sentenced to death.

However prisoners also retain rights regarded as conditional.  These rights can be restricted or violated, but only in certain circumstances.  These conditional rights are:

• Article 8                        a right to respect for private and family life, home and correspondence;        
• Article 10                           a right to freedom of expression;
• Article 11                            a right to freedom of peaceful assembly and association;
• Article 14                            a right to have other rights secured without discrimination;        
• Protocol 1, Article 2        a right to education.

        Now it has been established which rights prisoners retain and which they lose, the next question to answer is whether or not prisoners should retain these absolute rights, have all rights limited or lose their rights altogether.  

Many people may ask why prisoners should have any rights at all, many even believe they already have too many.  There are also people who, yes, believe prisoners deserve their basic rights but at the same time also believe that these rights should be restricted and limited. However there are some people who believe that prisoners are susceptible to human rights abuses and require their basic rights in order to protect them.  

The first argument against granting prisoners rights is that when someone violates another human beings right, they themselves should forfeit their right to equal and fair treatment and thus lose their basic human rights.  In addition to this is can be said that by granting prisoners rights it will not teach them what they have done wrong and allow them to learn from their mistakes.  This would then encourage prisoners not to re-offend as they are not treated fairly.  Also when someone has shown little regard for the rights of their victim(s), imprisonment is their punishment and they should not be allowed to benefit from luxuries such as televisions or have access to a gym which many law abiding citizens cannot have.  A further argument against prisoners’ rights is that these people have gone against the law and have committed an offence so why should the law then protect these people?  After all a prison sentence is, by definition, a serious punishment, which should involve the loss of human rights including the right to free movement and the right to vote in elections.  Finally denying prisoners rights is a legitimate punishment which is designed to enhance civil responsibility and respect for the rule of law.  However due to the Human Rights Act 1998 it may not be possible to remove all human rights from a prisoner, instead it may be more feasible to simply restrict their rights.  Many people believe that when a person is sentenced to a term of imprisonment, then, yes they should retain their human rights but only so far as they will assist them in rehabilitating themselves.  This argument can be enforced by the fact that prisoners should be made to pay for their crimes but prison should also be a chance to change and in order for them to change they should be granted human rights to aid them to lead law abiding lives upon release.  Finally giving prisoners restricted rights allows them to benefit in certain ways but at the same time shows that they are not being treated equally to law abiding citizens and that they will enjoy their human rights more outside of prison which will hopefully encourage them not to re-offend.  

        On the other hand there are many reasons as to why prisoners should retain their rights while in prison.  Firstly it can be argued that even though these people have committed an offence, they still remain human beings and therefore should continue to enjoy the basic human rights guaranteed under the European Convention on Human rights.  Furthermore giving prisoners rights will encourage them to in effect ‘pay back’ for what they have done, take responsibility for their lives and gain qualifications which would encourage these people not to re-offend.  This argument can be supported by the opinion that protecting prisoners’ rights may result in further benefits for society.  For example by giving a prisoner access to education materials and contact with family an friends this would assist prisoners to integrate into society more effectively upon release which would reduce the possibility of re-offending as they will feel like part of society instead of an outcast.  An additional argument put forward by many people is that it should not matter what anyone has done, they should not be deprived of their basic rights under any circumstances, and also by going to prison you are being punished for your offence by means of being removed from society for a certain period of time, and through removing a prisoners rights in addition to this they are in effect being punished twice for the same offence as well as being left open to human rights abuses.  Another argument in favour of prisoners’ rights is that they need to retain their human rights in order to uphold basic principles and rules of law.  If a prisoners is treated equally to those outside of prison and are shown how they should behave then this will assist in rehabilitating themselves which again will lead to a reduction in the rate of re-offending.  Finally, giving prisoners rights removes the view of those imprisoned as being outsiders of society which will aid these people to integrate into society more effectively upon release.

        There has however been a recent development in the area of prisoners’ rights.  Under section 3 of the Representation of the People Act 2000 a convicted prisoner is barred from voting in parliamentary or local elections.  However it was held in the case of Hirst v United Kingdom (No. 2) 2004 that a ban on voting rights for all prisoners was a violation of Protocol 1, Article 3 of the European Convention on Human Rights.  This decision was upheld on appeal which will now give convicted prisoners, once implemented into the UK, the right to vote in local and national elections.  This right will now be categorised as a conditional right as it excludes those on remand for contempt of court or default in payment of fines which means that the only right which a prisoner will now forfeit is the right not to be deprived of liberty contained under Article 5 of the Human Rights Act 1998  So should prisoners have been granted the right to vote?  One argument in favour of prisoners being granted the right to vote is that ‘by denying sentenced prisoners the vote undermines the Governments Civil Renewed and active citizenship agenda by legitimising the civic death of 95,000 people a year who are sentenced to prison’. It can also be argued that prisoners have gone against the law so why should they then be allowed a say in how the law should function.  On the other hand granting prisoners the right to vote moves away from the idea that prisoners are ‘civically dead’ which would encourage them to become law abiding citizens if they were to have a say in how the law operates.

        As a final point ‘Because of their incarceration, and the lack of public and political sympathy, prisoners can be classified as a ‘vulnerable’ group, particularly susceptible to human rights abuses.  On the other hand, there will be a number of reasons why prisoners should not have rights, or, more feasibly, why their rights should be restricted’.  So should a prisoner have rights?  Well to answer this question I have looked at which rights prisoners lose and which they retain upon imprisonment.  I have then looked at the arguments both for and against prisoners retaining their rights.  There are many arguments on both sides however I personally believe that prisoners should have rights so far as they go in order to assist the convicted prisoner to rehabilitate themselves and to lead a law abiding life upon release.  I therefore do not agree that prisoners should be receiving benefits such as opportunities to study for a degree when so many people who have not committed any offence cannot afford to take part in, after all these prisoners have broken the law so why should the law then protect these people?  However the European Convention on Human Rights has guaranteed to every human being the 16 basic rights stated in the Human Rights Act 1998 and only removes the right to liberty contained in Article 5 from prisoners.  This debate on whether or not a prisoner should forfeit his rights still remains open but only to personal opinion.

Bibliography

Texts

• Feldman. D. (2002), Civil Liberties and Human Rights in England and Wales, 2nd Edition, (New York, Oxford University Press)
• Foster, S. (2003), Human Rights and Civil Liberties, (Longman, Harlow)

Websites

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