ianstone
08-09-2010, 04:43 PM
Series: Liberty Clinic (http://www.guardian.co.uk/commentisfree/series/liberty-clinic)
Is there a UK law against 'cruel and unusual punishment'?
http://static.guim.co.uk/sys-images/Guardian/Pix/pictures/2009/1/13/1231849425902/welch.jpg (http://www.guardian.co.uk/profile/james-welch)
James Welch (http://www.guardian.co.uk/profile/james-welch)
The Guardian (http://www.guardian.co.uk/theguardian), Saturday 7 August 2010
Article history (http://www.guardian.co.uk/commentisfree/libertycentral/2010/aug/09/cruel-unusual-punishment-uk-law#history-link-box)
Shadowfirebird asks (http://www.guardian.co.uk/commentisfree/libertycentral/2010/jul/27/liberty-clinic-open-thread?showallcomments=true#CommentKey:9d56c19d-e978-4b95-827f-581732d0c419):
"Do we have in this country a principle of disallowing cruel and unusual punishment, and if so, what constitutes "cruel and unusual"? For example, is it cruel or unusual to specify as a condition of your release that you must tell anyone you enter into a relationship with your true identity – when it seems almost certain that this will end the relationship, and threaten your life at the same time?"
The term "cruel and unusual punishment" comes from the eighth amendment to the US constitution (http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution ). We have no law that uses those exact terms. What we do have is article 3 of the European convention on human rights, now part of our law by virtue of the Human Rights Act (http://www.guardian.co.uk/commentisfree/libertycentral/2009/jan/14/human-rights-act), which states: "No one shall be subjected to torture or inhuman or degrading treatment or punishment."
Two things to note: first, the prohibition applies to "treatment" as well as "punishment", so article 3 is much broader in its application than the eighth amendment. Second, although I know little about US constitutional law and therefore stand to be corrected by those that do, it would seem that "inhuman or degrading" implies a lower threshold (or rather "thresholds", as the expression is disjunctive so covers both inhuman treatment or punishment and degrading treatment or punishment – more on that later) than "cruel and unusual".
An example of this difference, or at least an example of how differently the courts in the US and Europe have interpreted the two provisions, is the attitude to the death penalty. The US supreme court baulks at finding the death penalty a cruel and unusual punishment. By contrast the European court of human rights held in 1989 that subjecting someone to the "death row phenomenon (http://www.deathpenaltyinfo.org/time-death-row#drs)", ie leaving them in uncertainty for years as to whether they would be executed, violated article 3 – and now seems to be moving to the position that the imposition of the death penalty itself is a violation.
So when will treatment or punishment be "inhuman" or "degrading"?
The court of human rights in Strasbourg has not adopted any exhaustive definitions, frequently making the point that whether treatment is inhuman or degrading may in part turn on the personal characteristics of the victim, his/her age, sex and state of health. But, broadly speaking, treatment will be inhuman if it is premeditated, applied for hours at a stretch and causes either physical injury or intense physical or mental suffering. Treatment will be degrading if it is such as to arouse in the victim feelings of fear, anguish and inferiority capable of humiliating and debasing him/her. Acts done with the intention of humiliating or debasing the victim are very likely to be considered degrading but the absence of such an intention won't necessarily mean that the treatment is not degrading.
One can see from this that the threshold for treatment that will breach article 3 is quite high. The Strasbourg court often talks of a "minimum level of severity".
An example of a case where the court of human rights has made a finding of degrading treatment was Price v UK (http://www.minorityrights.org/2680/minority-rights-jurisprudence/price-v-uk.html). The applicant, who was disabled and wheelchair bound because of thalidomide, was committed to prison for seven days for contempt of court. It was too late to take her to a prison so she was placed in a police cell overnight. She was cold (and risked a recurring infection as a result) and had to sleep in her wheelchair. The next day she was transferred to a prison where only male officers were available to assist her to go to the toilet. The court held that, although there was no intention to humiliate or debase her, detaining a severely disabled person in these conditions amounted to degrading treatment.
Shadowfirebird asks whether it is "cruel and unusual" to require someone who is released from prison to reveal their true identity to a new partner where doing so will almost inevitably lead to the break up of the relationship. Let me say that I have never heard of a condition in those terms being imposed as a condition of a released prisoner's licence. It is, however, possible, I suppose, that a sex offender released on licence could be required to reveal the nature of their conviction to any new partner with children.
I cannot see that the imposition of these conditions comes anywhere near the degree of severity necessary for there to be a violation of article 3, not least as the treatment that Shadowfirebird seems to consider "cruel and unusual", the loss of the relationship, is not a necessary consequence of the disclosure.
That is not to say that the Human Rights Act couldn't come into play here. The forced disclosure of someone's previous convictions, or more likely their disclosure by the police, will be an interference with the person's right to respect for their private life protected by article 8 of the European convention on human rights. Unlike article 3, which is absolute – so no treatment severe enough to meet the article 3 threshold can ever be justified – article 8 is a qualified right. Interferences with a person's privacy can be justified if there is a good reason for them and they go no further than is necessary. What this means is that when the police are considering whether to disclose the fact that someone has a conviction for a sex offence to that person's new partner they need to engage in a balancing exercise, setting the right to privacy of the released offender against the need to protect any children from abuse.
• If you'd like to ask a question for next week's Liberty Clinic, post it her (http://www.guardian.co.uk/commentisfree/libertycentral/2010/aug/09/uk-civil-liberties)e
Is there a UK law against 'cruel and unusual punishment'?
http://static.guim.co.uk/sys-images/Guardian/Pix/pictures/2009/1/13/1231849425902/welch.jpg (http://www.guardian.co.uk/profile/james-welch)
James Welch (http://www.guardian.co.uk/profile/james-welch)
The Guardian (http://www.guardian.co.uk/theguardian), Saturday 7 August 2010
Article history (http://www.guardian.co.uk/commentisfree/libertycentral/2010/aug/09/cruel-unusual-punishment-uk-law#history-link-box)
Shadowfirebird asks (http://www.guardian.co.uk/commentisfree/libertycentral/2010/jul/27/liberty-clinic-open-thread?showallcomments=true#CommentKey:9d56c19d-e978-4b95-827f-581732d0c419):
"Do we have in this country a principle of disallowing cruel and unusual punishment, and if so, what constitutes "cruel and unusual"? For example, is it cruel or unusual to specify as a condition of your release that you must tell anyone you enter into a relationship with your true identity – when it seems almost certain that this will end the relationship, and threaten your life at the same time?"
The term "cruel and unusual punishment" comes from the eighth amendment to the US constitution (http://en.wikipedia.org/wiki/Eighth_Amendment_to_the_United_States_Constitution ). We have no law that uses those exact terms. What we do have is article 3 of the European convention on human rights, now part of our law by virtue of the Human Rights Act (http://www.guardian.co.uk/commentisfree/libertycentral/2009/jan/14/human-rights-act), which states: "No one shall be subjected to torture or inhuman or degrading treatment or punishment."
Two things to note: first, the prohibition applies to "treatment" as well as "punishment", so article 3 is much broader in its application than the eighth amendment. Second, although I know little about US constitutional law and therefore stand to be corrected by those that do, it would seem that "inhuman or degrading" implies a lower threshold (or rather "thresholds", as the expression is disjunctive so covers both inhuman treatment or punishment and degrading treatment or punishment – more on that later) than "cruel and unusual".
An example of this difference, or at least an example of how differently the courts in the US and Europe have interpreted the two provisions, is the attitude to the death penalty. The US supreme court baulks at finding the death penalty a cruel and unusual punishment. By contrast the European court of human rights held in 1989 that subjecting someone to the "death row phenomenon (http://www.deathpenaltyinfo.org/time-death-row#drs)", ie leaving them in uncertainty for years as to whether they would be executed, violated article 3 – and now seems to be moving to the position that the imposition of the death penalty itself is a violation.
So when will treatment or punishment be "inhuman" or "degrading"?
The court of human rights in Strasbourg has not adopted any exhaustive definitions, frequently making the point that whether treatment is inhuman or degrading may in part turn on the personal characteristics of the victim, his/her age, sex and state of health. But, broadly speaking, treatment will be inhuman if it is premeditated, applied for hours at a stretch and causes either physical injury or intense physical or mental suffering. Treatment will be degrading if it is such as to arouse in the victim feelings of fear, anguish and inferiority capable of humiliating and debasing him/her. Acts done with the intention of humiliating or debasing the victim are very likely to be considered degrading but the absence of such an intention won't necessarily mean that the treatment is not degrading.
One can see from this that the threshold for treatment that will breach article 3 is quite high. The Strasbourg court often talks of a "minimum level of severity".
An example of a case where the court of human rights has made a finding of degrading treatment was Price v UK (http://www.minorityrights.org/2680/minority-rights-jurisprudence/price-v-uk.html). The applicant, who was disabled and wheelchair bound because of thalidomide, was committed to prison for seven days for contempt of court. It was too late to take her to a prison so she was placed in a police cell overnight. She was cold (and risked a recurring infection as a result) and had to sleep in her wheelchair. The next day she was transferred to a prison where only male officers were available to assist her to go to the toilet. The court held that, although there was no intention to humiliate or debase her, detaining a severely disabled person in these conditions amounted to degrading treatment.
Shadowfirebird asks whether it is "cruel and unusual" to require someone who is released from prison to reveal their true identity to a new partner where doing so will almost inevitably lead to the break up of the relationship. Let me say that I have never heard of a condition in those terms being imposed as a condition of a released prisoner's licence. It is, however, possible, I suppose, that a sex offender released on licence could be required to reveal the nature of their conviction to any new partner with children.
I cannot see that the imposition of these conditions comes anywhere near the degree of severity necessary for there to be a violation of article 3, not least as the treatment that Shadowfirebird seems to consider "cruel and unusual", the loss of the relationship, is not a necessary consequence of the disclosure.
That is not to say that the Human Rights Act couldn't come into play here. The forced disclosure of someone's previous convictions, or more likely their disclosure by the police, will be an interference with the person's right to respect for their private life protected by article 8 of the European convention on human rights. Unlike article 3, which is absolute – so no treatment severe enough to meet the article 3 threshold can ever be justified – article 8 is a qualified right. Interferences with a person's privacy can be justified if there is a good reason for them and they go no further than is necessary. What this means is that when the police are considering whether to disclose the fact that someone has a conviction for a sex offence to that person's new partner they need to engage in a balancing exercise, setting the right to privacy of the released offender against the need to protect any children from abuse.
• If you'd like to ask a question for next week's Liberty Clinic, post it her (http://www.guardian.co.uk/commentisfree/libertycentral/2010/aug/09/uk-civil-liberties)e