Comment: Fatherhood for prisoners? Just another human rights libel
The idea that prisoners have more human rights than the rest of us is as false as it is widespread.
By Ian Dunt
As Amnesty International celebrated its 50th anniversary, the opponents of human rights were busy trying to emasculate it. Amnesty faces a challenge more powerful and pervasive than any despot: the libel against human rights. It’s a PR triumph, if you’re into that sort of thing. This phrase, which has enjoyed universal goodwill since the Second World War, is coming to represent something negative.
The latest chapter in the mission comes in the form of a Daily Mail-generated row on a prisoner who was granted the right to father a child from behind bars via artificial insemination, costing the taxpayer something around £2,000. As usual, it’s worth trying to establish the facts of the case before leaping to judgement.
Much anger has been directed at Ken Clarke who, as justice secretary, would presumably have authorised it. Jack Straw, who treated tabloids like scary monsters under the bed, always turned down this sort of request when he was in the job. It looks like Ken did too, given that he started an inquiry into it by mid-morning. The story came from a Freedom of Information request which found one anonymous man had been granted fertility treatment this year. We don’t know his sentence or his crime. Since 2007, when murderer Kirk Dickson was granted the right to have children by artificial insemination by the European court of human rights, all sixteen other applications have been rejected, while another five are being considered.
This week it’s insemination. Next week it’ll be video games in cells or the right to vote. Members of the ‘political correctness gone mad’ brigade have long used the application of the Human Rights Act in the criminal justice system to get their point across. Tory MP Douglas Carswell made the case succinctly: “It’s another step towards an insane world where criminals have more rights than the rest of us”.
The clue to dismantling this fallacy lies in the name: human rights. The rules apply to everyone. They do not grant anyone more rights than anyone else, but they do apply universally. Prisoners do not lose them by virtue of being prisoners. They lose only the rights required to jail them, such as freedom of movement and association.
The idea that the Human Rights Act offers disproportionate assistance to criminals wouldn’t have much weight with Verna Bryant. Her daughter Naomi was brutally murdered by Anthony Rice in 2004. Rice had been let out of prison after serving 16 years for rape, indecent assault and actual bodily harm. He killed Naomi after bumping into her in a pub, while staying on license at Elderfield probation hostel in Otterbourne, near Winchester.
With depressing predictability and a canny understanding of the British media, certain agencies involved in Rice’s release and monitoring in the community blamed the Human Rights Act for the release. Ironically, Liberty used article two of the Act – the right to life – to secure an inquest into Naomi’s death despite the coroner’s refusal. The jury found that she had been unlawfully killed and that errors by the prison services, probation and other agencies directly contributed to her death.
Also unlikely to agree with the tabloid line is Julia Mason, a rape victim who was found to have suffered inhuman and degrading treatment by the European court of human rights after being cross-examined for six days by her attacker. Or mum-of-three Jenny Paton, whose family was placed under surveillance for three weeks by Poole council so it could find out if they were living in a particular school catchment area. The Investigatory Powers Tribunal found the use of the powers “unnecessary and unjustified”. Without the Human Rights Act, there is no right to privacy in British law.
It’s perfectly obvious that prisoners receive no extra rights than the ordinary citizen. The widespread assumption to the contrary says more about tabloid irresponsibility than it does about the legal system. Some still argue, however, that prisoners should lose their human rights altogether. This argument derives from a fundamental misunderstanding of criminal justice policy. The penal system fulfils three distinct but overlapping functions: punishment, public safety and rehabilitation. While these concerns rule out certain human rights they do not rule them out altogether.
Actually, the maintaining of human rights for prisoners directly contributes to public safety. This is well outside acceptable discourse for tabloids, who greet such arguments with screams about the rights of victims, but the use of victims’ experience to justify a draconian criminal justice policy is as inaccurate as it is unedifying. If you really care about prisoners you’ll do your best to make sure there are less of them in future. The best way to do that, it transpires, is to be all wet and liberal.
Empirically, a tough-on-crime approach to criminal justice does nothing to cut reoffending, whereas a drippy, caring approach has the hard-headed benefit of actually working. Take article eight of the Human Rights Act, which guarantees the right to family life. It’s repeatedly used by prisoners to avoid deportation from the UK. Last year, over 200 prisoners used it to stay in the country, driving the tabloids into one of their daily furies. But it has another effect, namely that regular quality contact with family and friends is one of the most successful ways to stop prisoners reoffending upon release, because it reintegrates them into the community. Lose that clause and economies of scale encourage governments to set up massive prisons well away from the community the prisoner comes from, thereby reducing visitations and increasing reoffending.
That ultimate demon of the press, the soppy community sentence, which sidesteps jail altogether, reduced reconviction rates by 14% compared to those serving time in jail. In 2002, the number of adults who reoffended after two years of leaving prison was 67%. For those on community sentences it was 54%.
The idea that someone should get much-needed NHS money to artificially inseminate someone while in jail seems ludicrous and irritating. To my mind, it’s entirely debatable that the right to family life guarantees the right to have children at all – for prisoner or citizen. But that’s a separate matter. At the heart of it, this isn’t about public money or fertility treatment. It’s about whether prisoners lose all their human rights or if they remain entitled to them.
On the one hand you have the bitter, misguided anger of the tabloid press and the resultant indignation of MPs. On the other you have legal precedent, empirical data and reduced crime rates. Your call.
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