REVIEWS
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01979.x |
| Date | 01 September 1994 |
| Published date | 01 September 1994 |
September
19941
REVIEWS
Reviews
Stephen Livingstone and
Tim
Owen,
Prison
Law: Text and Materials,
Oxford:
Oxford University Press, 1993, xxvi
+
226
pp, pb
f25.00.
Twenty, even ten, years ago it would have been difficult to envisage a corpus of
law relating to imprisonment. In 1774, Lord Mansfield proclaimed the authority of
the courts over prisons
(Re
Rioters,
Lofft
436),
yet two centuries of judicial
abstention confirmed that the protection they offered a prisoner remained crude.
Fox explained the policy that informed administrators over many decades: Prison
Commissioners held themselves ‘free to decide on the merits of each case whether
or not a prisoner should be allowed to initiate legal proceedings or seek legal
advice.’ He concluded that ‘a sentence of imprisonment does not,
of
itself, impose
on an offender any loss of civil rights but his position as a prisoner may disable him
from exercising them.
’I
This reviewer’s prison career was already well
underway as Lord Denning (in
Becker
[1972] 2
QB
407) denied relief to
‘disgruntled prisoners,’ since to do
so
would be to make a governor’s life
intolerable and a colleague could say, with some justification, that a prisoner’s
only right was to be released at the end of a sentence. Times change. A glimpse of
this scholarly text would surely convince the most reactionary penal administrator
that the era of ‘hands off is ending.
The book opens with the briefest of prison histories as a foundation for an
exposition of the statutory and non-statutory basis of prison administration. A
consideration of avenues of redress prefaces an account
of
the law relating to
everyday life within prisons. The question of access to outsiders is followed by
sections on prison discipline. The authors explore the theory and practice of formal
disciplinary processes and the administrative procedures devised to maintain
order. They leave virtually unmentioned the application of oblique discipline that
has long concerned both managers and groups with such disparate views as the
Prison Officers’ Association and PROP (the National Prisoners’ Movement).
Early release schemes are examined from historical and legal perspectives. The
writers conclude with an analysis of the relationship between law and prisons post-
‘hands off.’ They recognise that law cannot answer all prison problems but
indicate the lack of analysis, within this jurisdiction, of the effect on conditions and
relationships within prisons
of
the extension of the rule of law to them. This is a
key question. Few prisoners will contemplate a resort
to
law if, by doing
so,
they
come to be seen as barrack-room lawyers or troublemakers, thereby risking a
further diminution in their quality of life. Despite this, developments in prison law
over recent years, described here with clarity, have served to empower prisoners
where once they were disempowered. The writers note the decision in
Campbell
([1992] EHRR 137, series A,
No
233A), which ‘completes the journey domestic
and European courts have taken towards ensuring a prisoner’s unrestricted
access.’ It is this empowerment which may yet prove to be the prisoner’s greatest
insurance that he or she will be treated with the justice and fairness
so
valued by
Lord Woolf in the report of his inquiry into prison riots.
1
Fox,
The
English
Prison
and
Borstal
System
(London:
Routledge
and
Kegan
Paul,
1952)
p
220.
833
0
The Modem Law Review Limited
1994
(MLR
57:s.
September). Published by Blackwell Publishers,
108 Cowley Road,
Oxford
OX4
IJF
and 238 Main Street, Cambridge, MA 02142.
USA.
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