Conceptions Of Liberty Deprivation
| Published date | 01 September 2006 |
| DOI | http://doi.org/10.1111/j.1468-2230.2006.00608.x |
| Author | Liora Lazarus |
| Date | 01 September 2006 |
Conceptions Of Liberty Deprivation
Liora Lazarus
n
This article adopts a theoretical and comparative perspectiveon the prisoner’s legalstatus in Eng-
land and Wales. Applying the principles of human rights, legality and proportionality, it argues
that the prisoner’s legal status must rest on a divisible conception of liberty. Such a conception
must distinguish clearly between the liberty lost, and the rights restricted, by the imposition of
the custodial se ntence as opposed to the administration of priso ns (the key distinction). In order
for this to be achieved,the conception of the prisoner’slegal status must also establish the purpose
or purposes of the custodial sanction as distinct from the purpose of prison administration.
Through comparison with Germany, the article demonstrates that the common lawco ncept of
the prisoner’slegal status i s unstable.Vacillating between a divisible and indivisible conception of
the prisoner’s liberty,the English conception of the prisoner’slegal status lacks a foundation ¢rm
enough to satisfy the principles of human rights,legality and proportionality.
‘To coerce a man is to deprive himof freedom ^ freedom fromwhat?’
1
Discussions about liberty andthe deprivationof liberty interact.They are distinct,
in the liberal tradition, in that liberty is considered a prima facie good, while its
deprivation is considered a prima facie wrong which requires moral justi¢cation.
But the quest to de¢ne both is fraught with political, social and moral contro-
versy. Does liberty consistonly in freedom from intervention?Or is intervention
a requisite of the exercise of liberty? Are all liberties equal? Or are we all equally
free? Conversely, there is disagreement within punishment theory on the moral
and political rationales for the imposition of sanctions in response to breaches of
criminal law,the punitive rationale for incarceration, and its administrative objec-
tive. Should the purpose of incarceration be to incapacitate, or should it serve
some other positive purpose? Does it serve rehabilitation, retribution, or public
order? So society does not agree on what constitutes liberty, what justi¢es taking
it away, nor on the objectives the admi nistration of its deprivation ought to serve.
Courts in Englandand Wales are at thecoalface of this social and political con-
troversy.
2
Without clear legislative guidance on the purpose of the criminal sen-
tence or prison administration, they are forced to confront the questions on
which few agree, and which politicians in this jurisdiction persistently duck or
exploit. Legislative guidance on the rationale of sentencing has been minimal at
best,
3
and contradictory at worst.
4
The position is no less problematic as regards
n
Fellow and Tutor in Law, St. Anne’s College, Oxford. I am grateful to Andrew Ashworth, Nigel
Bowles,Jonny Steinberg and Lucia Zedner for their comments.
1 I. Berlin,‘TwoConcepts of Liberty’i n H.Hardy (ed), Liberty(Oxford: OUP, 2002) 166,168.
2 Hereafter,England and Waleswil l be referredto as England.
3 Section 2(3) Criminal Justice Act 1991.
Human Rights and Public Protection’ (2004) Crim LR 516,528; A. von Hirsch and J. Roberts,
‘Legislating Sentencing Principles: the Provisions of the Criminal Justice Act 2003 Relating to
Sentencing Purposes and the Role of Previous Convictions’(2004) Crim LR 639.
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Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2006) 69(5)MLR 738^769
prison administration.The purpose stated in Prison Rule 3 of the Prison Rules
1999 is only one among the plethora of managerial‘roles’,‘tasks’,‘objectives’,‘aims’,
‘principles’,‘purposes’, ‘missions’,‘values’, and ‘expectations’ currently contained in
HM Prison Service’s Performance Management Framework,
5
the Prison
Ombudsman’s Mission Statement and Statementof Values,
6
and the HM Inspec-
torate of Prisons’‘Expectations’.
7
Little in the caselaw suggests that Prison Rule3
has more legal signi¢cance in the determination of prison administrative action
than anyof the multifarious purposes articulated in its managerial andassessment
frameworks.
8
With the entry into force of the Human Rights Act 1998, the judicial role
became even more central. Judges are under a legislative duty to determine the
extent of Convention rights protections within the custodial sphere. They have
the crucial task of developing the human rights frameworks in which liberty
deprivation and its administration are de¢ned. In short, the judicial conception
of the prisoner’s legal status, and the extent towhich this discharges judicial obli-
gationsunder the Human Rights Act 1998, are worthy ofclose critical inspection.
This article will focus on the judicial determination of the prisoner’s legal and
human rights status post-sentence. Relative to the literature on sentencing and
o¡ender rights,
9
this area of English law remains under-developed.
10
The article
will ¢rst set out a roadmap for assessing conceptions of the prisoner’s legal status
within a human rights regime. Following this, the legal conceptions of two jur-
isdictions, Germanyand England, will be explored. Germany allows us to exam-
ine a conception of the prisoner’s legal status developed,since the1970s, within a
5 HM Prison Service, Corporatea nd BusinessPlan (HMSO March 20 03).
6 Prisons and Probations Ombudsman forEngland and Wales,Annual Report2004^2005 (Cm 6612)
3.
7 HM Inspectorate of Prisons, Expectations: Criteria forAssessingthe Conditions in Prisons and theTreat-
ment of Prisoners at http://www.homeo⁄ce.gov.uk/docs3/expectations.pdf (last visited 16 Sept
2005).
8 See L. Lazarus ContrastingPrisoners’Rights(Oxford: OUP, 2004) 155^156.
9 There is no shortage of theoretical discussion on the principles of sentencing and its relation to
human rights: R. Henham,‘Human Rights,Due Process and Sentencing’ (1998)Br itishJournal of
Criminology 38(4) 592;A. von Hirsch and A. Ashworth (eds),Principled Sentencing (Oxford: Hart,
1998); A. Ashworth and M.Wasik (eds), Fundamentals of Sentencing Theory (Oxford: OUP,1998);
K. Starmer,M. Strange and Q.Whitaker,CriminalJustice,Police Powersand Human Rights (Oxford:
OUP, 2001) ch. 18; B.Emmerson, A. Ashworth and J.Knowles, Human Rightsand CriminalJustice
(London: Sweet & Maxwell,20 04) ch16; D. van Zyl Smit and A. Ashworth,‘Disproportionate
Sentences as Human Rights Violations’ (2004) MLR 67(4) 541; A. Ashworth,‘Criminal Justice
Reform:Pri nciples, Human Rights and Public Protection’ [2004] Crim LR 516; A. von Hirsch
and J.Roberts, (2004),n 4 above.
10 Aside from Richardson and Lardy, the literature in this area has focused on speci¢c aspects of
prisoners’rights protection,while s hyingaway fromthe overarching legal and human rightspri n-
ciples de¢ning the prisoner’s legal status. G. Richardson, ‘The Case for Prisoners’ Rights’ in
M. Maguire, R.Morgan and J.Vagg (eds), Accountability and Prisons (London: Tavistock, 1985) 19;
G.Richardson ‘Prisoners and the Law:Beyond Rights’in C. McCrudden and G.C hambers,(eds),
IndividualRightsand the Law in the UK (Oxford: Clarendon,1993)179;S. Foster,‘Legitimate Expec-
tations and Prisoners’ Rights: the right to get what you are given’ (1997) 60 MLR 60^727;
J. Schone,‘The ShortLife and Painful Death of Prisoners’ Rights’(2001) 40 HowardJournal 70; H.
Lardy,‘Prisoner Disenfranchisement: Constitutional Rights andWrongs’(2002) Public Law 524; S.
Livingstone, T. Owen and A. MacDonald, Prison Law (Oxford: OUP, 3
rd
ed, 2003) ch 16;
S. Foster,‘Prison Conditions,Human Rights and Article 3 ECHR’[2005] PL 35.
Liora Lazarus
739
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(2006) 69(5)MLR 738^769
highly articulated rights cul ture and long-standing system of constitu tional rights
protection. Comparison with Germany also allows us to extend our conceptual
framework beyond the principles provided by the Strasbourg Court, by which
domestic courts are not strictly limited.
11
This article, therefore, takes both a the-
oretical and comparative approach. In identifying the legal principles which
ought to apply in determini ng the prisoner’s legal and human rights status, and
in setting Englandagainst the German example, it seeks tohighlight the di⁄cul-
ties underpinning the unfolding English jurisprudence, and thereby to contri-
bute to the development of the prisoner’s legal status inthis jurisdiction.
A ROAD MAP FOR DETERMININGTHE PRISONER’S LEGAL STATUS
This roadmap does not provide a moral account of individual liberty, human
rights, the purpose of the custodial sentence or prison administration. Nor is it, a
moral ‘theory of prisone rs’rights’.
12
It is a more modest framework for determin-
ing what a conception of the prisoner’s legal status should address in a system
committed to the constitutional or statutory protection of human rights.
In this setting, three broad principles apply: the human rights principle, the
principle of legality, and the principle of proportionality.The human rights pri n-
ciple establishes the presumption that the legislature, the executive, and, impor-
tantly for our purposes here, the judiciary, respect human rights.
13
The human
rightsprinciple places the onuson the judiciaryand all public authorities to justify
limitations of human rights ^ what we shall call the associated onus of justi¢ca-
tion.
14
The principles of legality and proportionality apply in establishing the
legitimacyof human rightsl imitations,or, put another way, theyare the language
in whichwe justify rights limitations.They are in this sense a consequence of the
onus of justi¢cation.
11 Section 2 HRA 1998 states that courts ‘must take into account’ the decisions of Strasbourg institu-
tions, but speci¢cally does not say theyare bound by them.
12 For recent attempts to do this see: R. Lippke,‘Toward aTheory of Priso ners’ Rights (2002) 15 ’
RatioJuris122; L ardy, n10 abov e.
13 In Germany, the obligation to respect human rights derives from Article 1(3) Basic Law which
states:‘basic rights shall bind the legislature, the executiveand the judiciary as directly enforceable
law’. In England, the weakerobligation, while existing as a presumption atcommon law for some
time, is now derived from statute. Section 3(1) HRA 1998 states: ‘so far as is possible to do so,
primary legislation and subordinate legislation must be read and given e¡ect in a way which is
the provision is incompatiblewith a Convention right, it may make a declarationof that incom-
patibility’.Section 6(1)HRA 1998 states‘it is unlawful for a publicauthority to act in a way which
is incompatible with a Convention r ight’where ‘public authority’ expressly includes ‘a court or
14 Many would argue that the central shift in English legal culture with the introduction of the
HRA 1998 lies in the move from a culture of authority to a culture of justi¢cation, where the
authority of public decision making lies in the ‘cogencyof the case o¡ered in defence of its deci-
sions’ E. Mureinik,‘A Bridge toWhere?: Introducing the Interim Bill of Rights’ (1994) 10 South
AfricanJournal of Human Rights31, 32; M. Hunt,‘Sovereignty’s Blight: WhyContemporary Public
law Needs the Concept of ‘Due Deference’ in N. Bamforth and P. Leyland (eds), Public Law in a
Multi-Layered Constitution (Oxford: Hart, 2003) 337; D. Dyzenhaus,‘Law as Justi¢cation: Etienne
Mureinik’s Conception of Legal Culture’(1998) 14 SouthAfricanJournalof Human Rights11 .
Conceptions Of Liberty Deprivation
740 rThe Modern Law Review Limited 2006
(2006) 69(5)MLR 738^769
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