UNODC Training course for trial lawyers

1
UNODCTraining course for trial lawyers
International legal instruments, national
legislation and casework practice with regard to
prevention and suppression of torture and other
cruel, inhuman or degrading treatment of suspects
and accused Tashkent, Uzbekistan

• Professor Bill Bowring
• Birkbeck College, University of London
• Trustee since 1992 of the Redress Trust (working
  for reparation for torture survivors)
• Prevention of torture and other cruel, inhuman or
  degrading treatment of suspects and accused
• Overview of legislation and practice in the
  United Kingdom

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UK Prisons

• Prison population in England and Wales reached a
  record level of almost 87,002 in March 2012, an
  increase of more than 90 since 1993
• The prison estate has been overcrowded since 1994
• In 2008/09 it cost an average of 39,600 to keep
  a prisoner in prison for a year
• The UK has the second highest incarceration rate
  in Western Europe
• Approximately one-half of adult prisoners
  reoffend within one year of release
• Approximately three-quarters of juvenile
  prisoners reoffend within one year of release

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Prisons in England and Wales

• Prison population - 87,002
• Remand prisoners 14.2
• Female prisoners 4.8
• Juveniles (under 18) 1.7
• Official capacity of system 77,479
• Between 1996 and 2010, the prison population grew
  by 29,746 or 54.
• At the end of November 2011, 82 of the 132
  prisons were overcrowded
• At the end of September 2011 there were 2,061
  children (under-18s) in custody
• 513 children aged 12, 13 and 14 were sentenced to
  custody in 2007

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Comparative incarceration rates (prisoners per
100,000 population)

• England and Wales 155
• France 111
• Germany 86
• Netherlands 87
• Sweden - 70
• Russian Federation 525
• Uzbekistan - 153

5
Private prisons in the United Kingdom

• The UK was the first country in Europe to use
  private prisons to hold its prisoners.
• Wolds Prison opened as the first privately
  managed prison in the UK in 1992.
• Private prisons were established under the
  government's Private Finance Initiative where
  contracts are awarded for the entire design,
  construction, management and finance of a prison.
  
• Such prisons are run under contracts which set
  out the standards that must be met.
• Privately run prisons are subject to inspection
  by HM Chief Inspector of Prisons in the same way
  as publicly run ones.
• There are now 12 prisons in England and Wales
  operated under contract by private companies,
  with 2 more due to open in 2012.
• Between them they hold about 10 of the prison
  population.
• A further 9 prisons are currently being market
  tested by the Government, with the public and
  private sectors both bidding to run them.

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UN Convention Against Torture

• UK signed 5 Mar 1985, ratified 8 Dec 1988
• Torture was criminalised by section 134 (in Part
  XI, Miscallaneous) of the Criminal Justice Act
  1988, into force on 29 September 1988
• Torture.
• (1) A public official or person acting in an
  official capacity, whatever his nationality,
  commits the offence of torture if in the United
  Kingdom or elsewhere he intentionally inflicts
  severe pain or suffering on another in the
  performance or purported performance of his
  official duties.
• (2) A person not falling within subsection (1)
  above commits the offence of torture, whatever
  his nationality, if
• (a) in the United Kingdom or elsewhere he
  intentionally inflicts severe pain or suffering
  on another at the instigation or with the consent
  or acquiescence
• (i) of a public official or
• of a person acting in an official capacity and
• (b) the official or other person is performing
  or purporting to perform his official duties when
  he instigates the commission of the offence or
  consents to or acquiesces in it.
• (3) It is immaterial whether the pain or
  suffering is physical or mental and whether it is
  caused by an act or an omission.

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UN Convention Against Torture

• Article 134 continued
• (4) It shall be a defence for a person charged
  with an offence under this section in respect of
  any conduct of his to prove that he had lawful
  authority, justification or excuse for that
  conduct.
• (5) For the purposes of this section lawful
  authority, justification or excuse means
• (a) in relation to pain or suffering inflicted
  in the United Kingdom, lawful authority,
  justification or excuse under the law of the part
  of the United Kingdom where it was inflicted
• (b) in relation to pain or suffering inflicted
  outside the United Kingdom
• (i) if it was inflicted by a United Kingdom
  official acting under the law of the United
  Kingdom or by a person acting in an official
  capacity under that law, lawful authority,
  justification or excuse under that law
• (ii) if it was inflicted by a United Kingdom
  official acting under the law of any part of the
  United Kingdom or by a person acting in an
  official capacity under such law, lawful
  authority, justification or excuse under the law
  of the part of the United Kingdom under whose law
  he was acting and
• (iii) in any other case, lawful authority,
  justification or excuse under the law of the
  place where it was inflicted.
• (6) A person who commits the offence of
  torture shall be liable on conviction on
  indictment to imprisonment for life.

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OPCAT

• UK signed 26 Jun 2003, ratified on 10 Dec 2003
• The UK National Preventive Mechanism was
  established in March 2009 when the government
  decided that the functions of the mechanism would
  be fulfilled by the collective action of 18
  existing bodies which visit or inspect places of
  detention.
• HM Inspectorate of Prisons was asked to
  coordinate the NPM.
• The NPM for England and Wales is made up of the
  following bodies
• Her Majestys Inspectorate of Prisons,
  Independent Monitoring Boards, Independent
  Custody Visiting Association, Her Majestys
  Inspectorate of Constabulary, Care Quality
  Commission, Healthcare Inspectorate Wales,
  Childrens Commissioner for England, Care and
  Social Services Inspectorate Wales, Office for
  Standards in Education

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NPM

• In the UK the visiting of most places of
  detention was well established prior to the
  ratification of OPCAT.
• Following designation, the members of the NPM
  were able to continue their work, albeit under a
  new international framework.
• In the UK, the ratification of OPCAT and the
  designation of the NPM did not result in visiting
  bodies being given the necessary powers to fulfil
  the functions of an NPM the members had
  pre-existing mandates that were deemed by the
  government to be sufficiently compliant with
  OPCAT to merit designation.
• The most significant compliance issue is whether
  all places of detention are covered by the NPM in
  the UK, as required by OPCAT. Gaps in coverage -
  military detention facilities and court custody
  in England and Wales
• Many of the members who visit prisons have
  expressed concerns about the rising prison
  population and the overcrowding of prisons. This
  has an adverse affect on all aspects of a
  prisoners life, including safety, the prison
  regime, their ability to maintain sufficient
  contact with their family and their preparation
  for release. Prisons may find themselves
  increasingly unable to deal with problems caused
  by overcrowding because of decreasing resources.

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Her Majestys Inspectorate of Prisons

• HMIPs mandate is set out in the Prison Act 1952
  as amended by the Criminal Justice Act 1982, the
  Immigration and Asylum Act 1999, the Immigration,
  Asylum and Nationality Act 2006 and the Police
  and Justice Act 2006.
• HMIP is responsible for inspecting all prisons in
  England and Wales, including young offender
  institutions all removal centres, short-term
  holding facilities and escort arrangements for
  immigration detainees and all police custody
  facilities,
• In 200910, HMIP carried out 70 inspections of
  prisons and young offender institutions involving
  a mixture of announced and unannounced, full and
  follow-up inspections. It also carried out 21
  inspections of immigration removal centres,
  short-term holding facilities and escorting
  arrangements, and 14 police custody inspections.
• In 200910, HMIP published thematic reports on
  race relations in prison, alcohol services in
  prison, the experiences of 15 to 18-year-olds in
  custody and detainee escorts and removals

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Independent Monitoring Boards

• The boards are made up of unpaid public
  appointees from the community and they fulfil
  their duties by carrying out regular visits to
  the establishments concerned.
• There is a board for every prison in England and
  Wales and every immigration removal centre in
  England, Wales and Scotland, as well as boards
  for short-term holding facilities for immigration
  detainees.
• Depending on the size of the establishment
  visited, boards are made up of between 10 and 20
  members.
• Board members may access the prison or
  immigration detention facility at any time and
  may have access to any prisoner or detainee and
  any records. They may interview any prisoner or
  detainee out of the sight and hearing of staff.
• The board is obliged to meet at the establishment
  at least once a month.

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Independent Custody Visiting Association

• Independent custody visitors are volunteers from
  the community who visit all police stations where
  detainees are held to check on their welfare.
• Custody visiting is statutory by virtue of the
  Police Reform Act 2002 which places a duty on
  each police authority in England and Wales to
  organise and oversee the delivery of custody
  visiting in its area.
• The 2002 Act grants custody visitors the power to
  access police stations, examine records relating
  to detention, meet detainees for the purpose of a
  discussion about their treatment and conditions,
  and inspect facilities, including cell
  accommodation, washing and toilet facilities and
  the facilities for the provision of food.
• Each police authority is responsible for
  recruiting visitors in its area and must ensure
  there is an adequate number of trained visitors
  available at all times.

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Her Majestys Inspectorate of Constabulary

• The role of HM Inspectorate of Constabulary
  (HMIC), set out in the Police Act 1996, is to
  inspect and report on the efficiency and
  effectiveness of policing.
• This involves inspecting individual local police
  forces and police authorities as well as national
  police forces and policing agencies.
• Following the UKs ratification of OPCAT, HMICs
  role has included carrying out inspections of
  police custody facilities in England and Wales in
  partnership with HM Inspectorate of Prisons.
• HMIC and HMIP have devised detailed inspection
  criteria, known as expectations, against which
  the treatment and conditions for detainees in
  police custody are assessed. The expectations
  also act as a guide to senior police officers and
  police authorities on the standards that the two
  inspectorates expect to find in police custody
  and the sources of information and evidence upon
  which they will rely
• In 200910, HMIC and HMIP carried out 14 police
  custody inspections.

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Care Quality Commission

• The Care Quality Commission (CQC) is an
  independent, statutory organisation responsible
  for the registration, review and inspection of
  health and adult social care services in England.
• A key part of this role involves monitoring the
  operation of the Mental Health Act 1983,
  including visiting those who are detained under
  mental health law.
• In 200910, CQC carried out visits to 1,733 wards
  in 701 hospitals where patients were detained
  under the MHA. On these visits, it met in private
  with 4,943 patients, checked 5,673 detention
  documents, and met 113 patients in groups.

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The Prisons and Probation Ombudsman

• PPO deals with individual prisoners complaints,
  after a prisoner has exhausted the various tiers
  of prisons internal complaints procedure.
• He investigates the complaint, and makes a
  finding. Though he cannot enforce his findings,
  they are implemented in the great majority of
  cases.
• The PPO has acquired another important duty that
  of investigating all deaths in prisons or
  probation hostels whether they occur from
  natural causes, homicide or are self inflicted.
• This is to meet the requirements of Article 2 of
  the ECHRwhere case law has held that the State
  has a procedural duty to investigate deaths in
  circumstances where it has acquired a positive
  duty of care to protect life.
• The PPOs office therefore investigates all such
  deaths, and publishes reports with
  recommendations for changes in practice and policy

16
CommentElina Steinerte and Rachel Murray (2009)

• the OPCAT contains few prescriptions as to how
  NPMs are to be constituted Article 17 only
  obliges States Parties to maintain, designate or
  establish an NPM. This rather flexible approach
  was adopted in order to accommodate the different
  situations in States Parties. Thus, States
  Parties that already have established bodies that
  effectively carry out the work of an NPM need
  only to maintain such bodies in order to comply
  with the OPCAT, whereas States Parties that do
  not have any entities of the kind must
  establish one or more of them. States that have
  bodies with similar powers to those required of
  an NPM may only need to amend the mandates of
  these bodies to make them OPCAT-compliant. (p.57)
  
• in Denmark, it is the Ombudsman who has been
  designated as an NPM, despite the fact that the
  Danish Institute for Human Rights achieved A
  status, while, in the UK, the Equality and Human
  Rights Commission, also an A status NHRI, is
  not part of the UKs NPM at all. (p.71)

17
CommentAnne Owers (2010)Was the Chief
Inspector of Prisons for England and Wales from
2001 to 2010. Previously the Director of JUSTICE
(the British section of the International
Commission of Jurists). She sat on the Task Force
that oversaw the implementation of the Human
Rights Act 1998 in the UK.

• at present in our local prisons (where
  remanded, unsentenced and short-sentenced
  prisoners are held) it is common to find two men
  sharing a cramped cell meant for one, with an
  unscreened toilet, sometimes spending twenty or
  more hours there, including time spent eating
  their meals. In other prisons, there is no
  in-cell sanitation, and prisoners have to resort
  to using buckets, or throwing faeces out of cell
  windows. That may be unavoidable in practice,
  given current population pressures and a shortage
  of resources. However, it is not right, and it is
  an important function of the Inspectorate to
  continue to say so.
• Inspection can and does improve outcomes for
  prisoners in individual prisons. One example is
  Portland prison holding young offenders, aged
  eighteen to twenty-one. Inspections around 2000
  established that there was a punitive,
  over-controlled and potentially abusive and
  racist regime in the prison, with little positive
  efforts being made to change the attitudes or the
  life chances of the young men in it. By the time
  of its most recent inspection, it was a
  transformed institution, with some good
  relationships between staff and young men, and
  some excellent training opportunities