2. THE BASIS FOR THE STANDARDS
Introduction
Prison is an unusual environment in that it is one of the few places where men and women who are of sound mind can legally be detained against their will. In Scotland, as in all other European countries, the use of prison is the ultimate expression of society's disapproval for someone's actions. Imprisonment and the conditions in which it is imposed must always have a sound basis in international, regional and domestic law.
International
There is a number of international standards relating to imprisonment. These have been agreed by the international community, usually through the United Nations. Some of them, since they are covenants and treaties, have the authority of legislation in those countries which have ratified them. It is important to note that the authority of these international laws is not imposed on any country against its will. Sovereign states have to accede to these international obligations by their own choice. In doing so, they accept an obligation to honour them.
The main binding international treaties are the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. There is also a treaty aimed at the prevention of different forms of discrimination, the International Convention on the Elimination of All Forms of Racial Discrimination, as well as one on the rights of women, the Convention on the Elimination of All Forms of Discrimination against Women and one defining the rights of children, the Convention on the Rights of the Child. Another treaty, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, prohibits any form of these activities. The United Kingdom has ratified all of these treaties and so is legally bound to observe all of their articles.
There is also a range of United Nations standards relating to the administration of justice. These do not have the force of law but since they have all been approved by the General Assembly of the United Nations they carry great authority and are generally accepted as standards towards which every country should strive. Those which have relevance to the treatment of prisoners include:
- The Standard Minimum Rules for the Treatment of Prisoners
- The Basic Principles for the Treatment of Prisoners
- The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
- The Rules for the Protection of Juveniles Deprived of their Liberty
- The Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- The Code of Conduct for Law Enforcement Officials
- The Basic Principles on the Use of Force and Firearms by Law Enforcement Officials
- The Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules")
Regional
The international standards are supplemented by a number of regional human rights standards for Europe. Those which have the force of treaty law in the United Kingdom include the Convention for the Protection of Human Rights and Fundamental Freedoms (known as the European Convention on Human Rights) and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment.
In addition, the Committee of Ministers of the Council of Europe has adopted a number of Recommendations on prison issues. This is the approved mechanism in the Council of Europe by which standards are recommended to member states for implementation. They include:
- Recommendation (89) 12 on education in prison
- Recommendation (92) 16 on the European Rules on community sanctions and measures
- Recommendation (93) 6 concerning prison and criminological aspects of the control of transmissible diseases including AIDS and related health problems in prisons
- Recommendation (97) 12 on staff concerned with the implementation of sanctions and measures
- Recommendation (98) 7 concerning the ethical and organisational aspects of health care in prison
- Recommendation (99) 22 concerning prison overcrowding and prison population inflation
- Recommendation (2000) 22 on improving the implementation of the European Rules on community sanctions and measures
- Recommendation (2003) 22 on conditional release (parole)
- Recommendation (2003) 23 on the management by prison administrations of life sentence and other long-term prisoners
- Recommendation (2006) 2 on the European Prison Rules
Within the member states of the Council of Europe the observance of human rights standards in places of detention is monitored by the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee, known as the CPT, consists of one member appointed by each of the 46 member states of the Council of Europe and has authority under the Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment to inspect every location in member states where people are deprived of their liberty. After each visit to a country the CPT submits a confidential report to the government concerned. It then invites the government to give the CPT approval to publish the report along with the government's response to it. Since 1990 the CPT has visited Scotland twice, once in May 1994 and again in May 2003. The reports on these two visits were published as CPT/Info (96) 12 and CPT/Info (2005) 1.
The European Court of Human Rights ( ECtHR) is a useful reference point for measuring the extent to which individual European states implement international standards. In terms of the European Convention on Human Rights the ECtHR can consider and issue judgements on complaints against member states brought to it by individuals. Over the years, the ECtHR has issued a number of significant judgements on prison issues. Until 1998 applicants in the United Kingdom had to pursue cases at the Court in Strasbourg. In 1998 the UK Parliament enacted the Human Rights Act, which incorporated the European Convention on Human Rights into domestic legislation. An immediate consequence of this Act was that UK citizens were able to take up cases under the Convention in domestic courts.
Before the Human Rights Act came into force, the Scotland Act 1998 placed both the Scottish Parliament and the Scottish Executive under a legal duty to comply with the terms of the Convention in the exercise of their powers and functions. This applied as soon as they assumed their powers, which for most purposes was 1 July 1999.
Domestic
Prisons and their use are governed in all countries by national legislation. In Scotland the primary legislation is the Prisons (Scotland) Act 1989, as amended by the Scotland Act 1998, while the secondary legislation is contained in the Prisons and Young Offenders Institutions (Scotland) Rules 2006.
Summary
The standards set out below derive from this large body of legislation, guidance and case law. References to the source of the standards in both international and domestic law are provided throughout .
In brief, the standards for the treatment of prisoners worldwide all derive from Article 10 of the United Nations International Covenant on Civil and Political Rights, which states:
"All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."