Guest post by @Super__Cyan
On May 4th (be with you), the Independent reported that sources suggest that Chris Grayling, the Secretary of State for Justice, is blocking the work of the first ever independent inquiry into the extent of rape and sexual assault in Britain’s prisons.
The Commission on Sex in Prison (the Commission) was set up by the Howard League for Penal Reform and is made up of academics, former prison governors and health experts. Their aim is to focus on three broad themes: consensual sex in prison, coercive sex in prison, and healthy sexual development among young people in prison.
Apparently this inquiry was fine by Ken Clarke (the former Justice Secretary) but not so welcomed by Chris Grayling. It may not come as a surprise that this may well be incompatible with certain rights under the European Convention on Human Rights (ECHR).
Rights of the academics
The most obvious relevant ECHR provision is Article 10, which states that:
- Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
This is taken to encompass an academic freedom standpoint. Therefore Article 10 protects academic freedom. Receiving information with regards to the function of the Commission would be information gathered from research, and imparting would be the publication of findings and conclusions. The Parliamentary Assembly of the Council of Europe, in its Recommendation 1762 (2006), adopted the following declaration for the protection of academic freedom of expression:
4. In accordance with the Magna Charta Universitatum, the Assembly reaffirms the right to academic freedom and university autonomy which comprises the following principles:
4.1. academic freedom in research and in training should guarantee freedom of expression and of action, freedom to disseminate information and freedom to conduct research and distribute knowledge and truth without restriction;…
4.3. history has proven that violations of academic freedom and university autonomy have always resulted in intellectual relapse, and consequently in social and economic stagnation;…
This sentiment was further reiterated by the European Court of Human Rights (ECtHR) in Sorguç v Turkey  ECHR 979, underlining ‘the importance of academic freedom of expression, which comprises the academics’ freedom to express freely their opinion about the institution or system in which they work and freedom to distribute knowledge and truth without restriction’(para 35).
So any restriction on the freedom of members of the Commission must be prescribed by law, which is essentially the same (para 116) as ‘in accordance with the law.’ Chris Grayling’s blocking has to have a lawful basis. It is alleged that he has claimed that ‘[p]risoners aren’t going to have sex on [his] watch’ and he has been accused of taking it personally, even politicising his role, with other suggestions that the Ministry of Justice is doing ‘everything in its power to block the commission’s work.’ If Grayling is indeed taking a personal political standpoint on the Commission’s research, then this may call into question the legality of his decision, as it would seem to imply that he is taking irrelevant (personal view) considerations into account, failing to take relevant considerations into account (the possible benefits of this research), having his opinion influenced by the Howard Leagues opposition to policies (improper purpose), and applying the possible irrational/Wednesbury unreasonable belief that sex will not happen on his watch. In terms of public law, if this was indeed the process of decision making, it would be illegal, and therefore would fail the first hurdle of restricting the Article 10 rights.
There is also an important point regarding Article 8, which states that:
- Everyone has the right to respect for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
The ECtHR in Niemietz v Germany  ECHR 80 believed that there was ‘no reason of principle why this understanding of the notion of “private life” should be taken to exclude activities of a professional…nature since it is, after all, in the course of their working lives that the majority of people have a significant, if not the greatest, opportunity of developing relationships with the outside world. This view is supported by the fact that…it is not always possible to distinguish clearly which of an individual’s activities form part of his professional or business life and which do not. Thus, especially in the case of a person exercising a liberal profession, his work in that context may form part and parcel of his life to such a degree that it becomes impossible to know in what capacity he is acting at a given moment of time’ (para 29).
This would suggest that the Article 8 rights of the Commission are also interfered with and would therefore require a justification under Article 8(2); but as seen above, with the lack of justifications in relation to Article 10, Article 8 would also be violated.
Prisoners have rights too
Sadiq Khan made an important point where he noted that:
Not only are there public health issues [with sex in prison], but some of what goes on might even be criminal. Standing in the way of research which will help us find out more about what’s happening in prisons seems like a petty response from Chris Grayling.
This may have implications for Article 3 of the ECHR, which states that:
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
This rule is said to be absolute (para 137) and therefore there can never be justification for its breach. Additionally, as Article 1 suggests, the state has the duty of securing the rights that are contained in the ECHR for everyone under its jurisdiction. The ECtHR in Đorđević v Croatia  ECHR 1640 further maintained that this required states ‘to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals. These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge’ (para 138). Having an inquiry into sex in prisons may go some way in bringing knowledge to the authorities, which is why it does not make sense to prevent this.
If there were indeed sexual offences committed, not only would this engage Article 3 but also Article 8, as ‘private life’ covers the physical and moral integrity of the person, including his or her sexual life (X and Y v Netherlands  ECHR 4 para 22). In M.C. v Bulgaria  ECHR 651, a case involving rape, Articles 3 and 8 were read together (para 166).
There is a problem however, in Osman v United Kingdom  ECHR 101,as the ‘[s]tate’s obligation… extends…to…putting in place effective criminal-law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions’ (para 115). These are already in place and, in referring to a state’s procedural obligations, Grand Chamber in Janowiec v Russia  ECHR 1003 noted that:
[T]he reference to “procedural acts” must be understood in the sense inherent in the procedural obligation under Article 2 or, as the case may be, Article 3 of the Convention, namely acts undertaken in the framework of criminal, civil, administrative or disciplinary proceedings which are capable of leading to the identification and punishment of those responsible or to an award of compensation to the injured party… This definition operates to the exclusion of other types of inquiries that may be carried out for other purposes, such as establishing a historical truth. (para 143)
However, in the same judgment, the joint partly dissenting opinion of Judges Ziemele, De Gaetano, Laffranque and Keller vehemently disagrees, stating that ‘[s]ometimes, one procedural step is a precondition for another…[and] in international law there is a clear trend towards recognising a right to the truth in cases of gross human rights violations’ (para 9).
Research by the Commission could initiate some of the proceedings mentioned by the majority of the Grand Chamber, i.e. sexual offences between inmates, sexual offences between inmates and staff or staff having sexual relationships with inmates which would involve misconduct in public office (which are all criminal) which can also lead to disciplinary proceedings (for staff members if relationships have been uncovered between them and inmates, this may also lead to civil action depending on the circumstances). So what the minority are suggesting is that even the ECtHR’s own case law betrays the reasoning of the majority; historical truth can lead to civil action. If one only looks Ndiki Mutua and Others v Foreign and Commonwealth Office  EWHC 2678 (QB) (the Mau Mau case), this was set in motion by academic research conducted by Professor Caroline Elkins, Professor David Andersonand Dr Huw Bennett. This ultimately led to William Hague announcing that the Government will provide £19.9m in compensation. This demonstrates how valuable research can be even if it was not intended to provide legal avenues.
So it would seem that blocking this inquiry may not have any implications for the state’s positive obligations, because there are no allegations of any sexual offences/inappropriate relationships; and if there were, it would be the duty of the police to act upon this. It seems Grayling does not want human rights to apply to those in prisons, nor to those who want to help them.
And as Yoda would say:
Thanks to @RichGreenhill for reading initial draft.