High Court Writ Large

High Court Writ Large

The approach being taken here is Prison Law Inside Out. The claimant is aware that the Court will not be familiar with this approach to the law, nevertheless, this case will provide an opportunity for the Court to learn something new. The law is a living instrument, moving forward, which means that dinosaurs no longer rule the earth. The traditional black letter of the law teaching needs to be shelved in the Natural History Museum. Law in context, or the ‘living law’, is not new because the claimant studied this and adapted it to the context of prison law. Instead of studying the narrow approach of the black letter of the law teaching, Prison Law Inside Out takes a broader view. An example of Prison Law Inside Out in practice is Hirst v UK(No2).

It needs to be emphasised that unlike Rv Hirst, whereby the State prosecutes the individual this is a case of the Individual v the State. This does not include the public within the State, but it does involve the three arms of the State, namely the Executive, Judiciary and Parliament. It is also a challenge to the status quo.

It is a good thing that a formally unqualified jailhouse lawyer could bring such a case as Hirst v UK(No2) and win it in the highest court in Europe against the State’s formally qualified lawyers. But, it is a bad thing that the State is such a sore loser. The claimant feels that the State should have accepted defeat gracefully. Because not to have done so just means that although they lost the legal battle fair and square, by taking it then into the political arena and seeking to keep the battle going only harms the whole of the UK before the 47 Member States in the Council of Europe and the 800,000,000 people represented in the Council of Europe. The claimant rejects being labelled as either British or English, because of the shame attached to the nation and instead is now European. The Union Jack and the National Anthem make way for the European flag and the hymne européen. Wrapped up within Hirst v UK(No2) is Europe v the UK.

If you look on Amazon you will find a book titled ‘If I ignore it, it will go away and other lies I thought were true’ by Marsha Marks, and on the front cover is a picture of a woman kneeling down and her head is buried in the sand. This could just as well be Jack Straw with his head buried in the sand, thinking to himself if I ignore it (Hirst v UK(No2)) will go away. This could not be further from the truth. Because the case exposes the Executive, Judiciary and Parliament in the same kind of bad light that is shone upon the MPs expenses scandal. Whilst the three arms of the State play political ping pong, or if you prefer, political football with the case the ECtHR and Council of Europe have made their position clear. That is, all three arms of the State are responsible for solving the problem. The claimant is aware that the UK has the option of leaving the Council of Europe and the European Union to escape implementing the Hirst v UK(No2) decision. However, this may be too drastic a step to take. There is another solution to the legal/political problem set by the claimant.

In Chester, Burton J, states: “With Counsel's help, I have myself been taken through the Court's judgment in Hirst in detail”. And still he is none the wiser, because at best a lawyer can only approach prison law from an outside in perspective. As stated, the problem originates from an inside out perspective. A totally different outlook to someone looking in. For example, prison security is designed to keep prisoners in whereas a prisoner is seeking to escape. The claimant has actually used the security measures employed to keep him in prison to make good his escape. Therefore, seeing things from a different perspective adds to knowledge and should not be lightly dismissed. Some more examples are when a Minister makes a statement in the House of Commons claiming that the prison food budget has not been cut but has merely been replaced with a dietary scale, the Kitchen Principal Officer’s reply to this is “Bollocks!”. Similarly, when the House of Lords decided Hague and Weldon one of the Lords stated “Given the realities of day to day prison life” to support his reasoning. However, the claimant knows as much about the House of Lords tearooms as the Lord claimed to know about prison life.

The claimant feels it will help the court to understand the case and the issues if it takes into account where the Prisoners Votes Case started, and the catalyst which set it on a course for Europe. The place was the Hull Prison Special Unit. Between 1989-1991, the claimant read a chapter called No Votes in Prisons in Vivien Stern’s Bricks of Shame – Britain’s Prisons. Quote: “There are supposed to be ‘no votes in prisons’ and no political prizes for doing something about them. Any politician brave enough either to tell the truth about them or grasp the nettle and try to change the way they are run is likely, so it is believed, to run into difficulties with public opinion”. The author then went onto explain why the politicians perceptions of public opinion did not stand up to closer examination. Reading this chapter the claimant asked himself ‘Why are there no votes in prison?’. Two different perspectives; politicians worrying about losing votes; and the claimant wondering how to get votes for prisoners. Twenty years on and the claimant has moved forward, whereas the politicians have stood marking time.

Meanwhile, there were the prison riots of April 1990. Prison Law began to develop into a field of law in its own right. The claimant frustrated by the delay of 50 years between the UK signing up to the Convention, and its eventual incorporation, save for Articles 1 and 13, into domestic law. The claimant recognised that these omissions had the effect of limiting human rights in the UK, compared to those enjoyed by our European neighbours. In effect, it means we are second class citizens. Only recently, a MP has complained that he was told to travel by second class on the train on his expenses and that if he wanted to travel first class he had to pay for the upgrade out of his own pocket. We are second class citizens in the eyes of the law, and all he can complain about is that he has lost a perk following the expenses scandal!

It is worth examining the RIGHTS BROUGHT HOME: THE HUMAN RIGHTS BILL. In particular, where it states: “The United Kingdom is bound in international law to observe the Convention, which it ratified in 1951, and is answerable for any violation… It will then be up to the Government and Parliament to put matters right. The Bill makes a "fast-track" procedure available for the purpose of amending the law so as to bring it into conformity with the Convention… For individuals, and for those advising them, the road to Strasbourg is long and hard. Even when they get there, the Convention enforcement machinery is subject to long delays. This might be convenient for a government which was half-hearted about the Convention and the right of individuals to apply under it, since it postpones the moment at which changes in domestic law or practice must be made. But it is not in keeping with the importance which this Government attaches to the observance of basic human rights.”.

Then why the inordinate delay for 5 years?