Human Rights – Longer Read


December 10, 2019

Chief Operating Officer

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Today is #humanrightsday. We hear a lot about human rights, and indeed human rights has come a long way in the last few decades to be an often-used term, but what does it actually mean? What is the Human Rights Act, and what does it mean for independent custody volunteers, custody staff and of course, for detainees?

The Human Rights Act, (HRA) in the UK came into force in 1998 and remains the over-arching legislation for human rights in the UK. You can see the full detail of the HRA here. It has 18 Articles in total, a schedule and description of which can be found here.

The eagled eyed amongst you will notice that Articles 1 and 13 of the European Court of Human Rights do not feature in the Act. This is because the Human Rights Act in itself fulfils these rights. For example, Article 13 ensures that if people’s rights are violated, they are able to access effective remedy – this means they can take their case to court to seek a judgment. The Human Rights Act is designed to ensure that this happens.

Not all of the Articles would necessarily have an impact in custody, but here I will aim to touch upon some that could or do have a direct impact from either their text or my interpretation of them as someone studying human rights and working in custody oversight, not as a legal professional.

Article 2 – Right to Life

This article directly refers to deprivation of life as a result of use of force, and introduces us to the language of necessity, something all of those working in or around custody will be familiar with. The act states that deprivation of life ‘shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than strictly necessary’ and goes on to state 3 occasions when this may occur:

  • in defence of any person from unlawful violence
  • in order to effect a lawful arrest or prevent escape and finally;
  • in action lawfully taken for the purpose of quelling a riot or insurrection.

Sadly, deaths in custody do occur, but what does that mean in terms of this Article? In my interpretation, a death in custody whereby force was used, and the detainee died of injuries sustained from that use of force could still be legal. It could be considered a breach of the act only if the force was not deployed for one of the reasons above, and/or was considered to be more than a ‘strictly necessary’ amount of force.

Article 3 – Prohibition of Torture

This article seems simple in its overview:

‘no one shall be subjected to torture or to inhuman or degrading treatment or punishment.’

A simple sentence I am sure you will agree, but what constitutes each of those levels of treatment, what is torture or inhuman treatment? What takes a form of treatment in custody from being ill-thought out or normalised, into the sphere of degrading treatment?

A definition of torture is reasonably clear, it is the use of severe pain in order to get a person to do something. Inhuman and degrading are less clear in terms of their definitions and so then we must consider what would meet the test of being ‘degrading’ rather than poor or inadequate treatment, (still not treatment we would want to see in custody of course).

There is no doubt that treating detainees with dignity during their time in custody would be an excellent place to start in terms of avoiding degrading treatment. Often those situations which might appear undignified are, I think, the same times that could be considered degrading given certain circumstances. A question for you to takeaway here – what are the times during the custody process where treatment could be considered undignified or degrading to a detainee? What can be done to either mitigate or eradicate the practice whatever it might be? Some things to think about and to reflect on.

Article 5 – Right to liberty and security

Article 5 has a good deal of information which interacts with PACE Codes G, C and H. These are the Codes that concern the arrest and detention of people. The full list of PACE Codes and links to the latest versions can be found here.

Article 5 makes note in particular the conditions under which liberty can be deprived by reason of arrest, and the right for an arrested person to know, in detail, and in a language that the person can understand, of the reason for their arrest and any charge against them.

Article 6 – Right to a fair trial

A short note on Article 6, which is that, at the point of charge, a detainee has the right to ‘be informed promptly’ in a language which he understands, and in detail, of the nature and the cause of the accusation against him’.

Article 9 – Freedom of thought, conscience and religion

This Article particularly comes into play in custody in terms of religion. All people under the HRA have the freedom to manifest their religion or beliefs subject only to limitations prescribed by law. Custody should have arrangements and religious materials in place to ensure that this right is not breached. Independent custody visitors will monitor custody suites provisions in terms of religious materials and that detainee religious needs are being met.

Article 8 – Right to respect for a private and family life

This Article might seem an odd one to consider when thinking about a detainee, but there are implications of this Article for detainees.

The Article notes that ‘everyone has the right to respect for his private and family life’. So, what could this mean in custody? The most pertinent point in this Article is, I think, that surrounding private life. For example, the legal opinion from Doughty St chambers[1] regarding menstrual care, contained the view that the lack of provision in this area for detainees, and the ability for detainees to use menstrual protection in private, pixelated areas could constitute a breach of Article 8.

Article 14 – Prohibition of discrimination

This Article outlines that all people, regardless of any characteristic or group of characteristics that define them, must be able to have ‘the enjoyment of the rights and freedoms set forth in this Convention’.

ICVA produces training to be delivered to the independent custody visitors, (ICVs) in the HRA. A full list of the Articles is included in their induction, meaning that the ICVs can monitor against PACE Code C and H, detainee entitlements and the HRA.

Human rights language and awareness of the HRA is now embedded in much of what we do. The HRA helps to ensure that people are treated according to their rights, with dignity and that detained persons are free from the threat of ill treatment.

[1] Advice received pro bono, with thanks.