Chapter 21 Guidance on answering the exam questions

1. A significant number of prisoners are ‘transgender’ in the sense of their going through or having gone through a process of living in the gender different from that in which they were born.

The Ministry of Justice and Prison Service are perplexed at the correct policy to pursue in relation to many issues, including whether to send these prisoners to male or female prisons and whether special facilities are necessary.

Advise on what, if anything, is required to ensure compatibility with Convention rights (reference to Chapter 19, section 19.5, will be helpful).

• This question requires knowledge and understanding of the application of aspects of Article 8 (and perhaps Article 12) in this context.

• Establish the context as regards prisoners: they enjoy all Convention rights (lawful imprisonment is not a breach of Article 5) including Articles 8 and 12.

• Establish the context as regards the Convention: note that in respect both of Article 8 (the right to private life) and Article 12 (the right to marry) the Convention recognises that states have positive duties to prevent discrimination (under Article 14) and to give proper legal recognition to transgendered persons in their acquired gender.

• However, it does not follow that giving legal recognition means that the Convention requires a particular form of treatment (e.g. that persons who have acquired female gender should go to female prisons, etc.). Such an issue is subject to a wider margin of appreciation.

• However, on these difficult and controversial issues (and taking a lead from the ECtHR’s attitude towards same-sex marriage) the margin of appreciation will narrow if and when a general consensus on these issues emerges in Europe.

• Until then, the authorities are not bound by positive duties under the Convention. The Convention does not provide the answer, at the moment, to this issue. However, states must ensure that any policy they do adopt is consistent at least with the “essence” of Convention rights. Transgendered persons have rights to private life which includes a sense of sexual identity and also autonomy – the right to choose fundamental aspects of life. It follows that any interference with this right must be properly justified under Article 8(2) – have a proper legal basis, serve a legitimate purpose and, in individual cases, be capable of being proportionate actions. Automatic blanket policies might be difficult to justify and policies seemingly based on prejudice rather than, for instance, properly recognising the rights of others or policies which are disproportionate in the sense of imposing greater restraints than are necessary to achieve the purpose, might be difficult to justify.

2. Discuss, with reference to Convention and UK case law, whether the imposition of a ‘whole life tariff’ on a prisoner convicted of murder can be compatible with the Convention. Give, with reasons, your opinion on whether the law on this provides proper protection for human rights.

• This question requires knowledge of, in particular, the application of Article 3 and Article 5 to prison sentences.

• Define a “whole life tariff” – that a person convicted or murder must die in prison; he or she can never be considered for release on licence.

• The compatibility of a whole life tariff with Article 5 has been accepted by the Strasbourg institutions. The Article does not prescribe any particular length of sentence. The imposition of the sentence must be proportionate to the crime and follow a proper legal process.

• Attention has been on Article 3 and whether a “whole life tariff” necessarily violates it.

• In Vinter v UK the ECtHR addressed the issue by considering Council of Europe texts, international criminal law, EU law and life sentences in Contracting States and UN Minimum Standard Rules and the ICCPR.

• On this basis it held that there is nothing in Article 3 that necessarily prohibited a whole life sentence. But this would have to be for the most grievous offences. Imposing a whole life tariff when it was not proportionate to the crime could violate Article 3.

• However, the ECtHR found that the idea of rehabilitation was one of the central ideas inherent in European penology. Furthermore there must be a continuing relationship between the reasons for the punishment and changing times and circumstances which could mean that the justification for a whole life tariff was no longer strong.

• On this basis any punishment, including a whole life tariff, has to be consistent with basic European and international attitudes towards punishment. These attitudes include the possibility of rehabilitation as an aspect of human dignity.

• Therefore, the legal basis of a whole life tariff has to include the opportunity for review and the possibility of release if the prisoner and or the circumstances are so changed that the whole life tariff is no longer justified on legitimate penological grounds (“reduction”).
• In conclusion you could note that the law in the UK has been interpreted to be compatible with human rights. The Home Secretary can reduce even a whole life tariff in exceptional circumstances on compassionate grounds. These have been interpreted so as to give the Home Secretary the power she needs for compatibility with Article 3. Two comments might be made: that this interpretation (in McLochlin) requires a significant interpretative act. Secondly, that the whole life tariff is imposed because that is what punishment for the offence requires at the time of conviction; this needs to be distinguished from a different point – whether it is safe to release the prisoner once he has been punished. This must limit the kinds of circumstantial changes that can justify an early release and, possibly, exclude personality changes by the prisoner which now make him safe to release.