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Thursday, January 12, 2012

I don't mind taking part, but...

I don't mind taking part, but...

Hi John -

Thanks for agreeing to do an interview for our programme.

The programme is an hour long documentary for BBC Two provisionally entitled 'Human Rights Gone Wrong?'. As you know it is presented by Andrew Neil who will be doing the interview with you.

The idea of the programme is to look behind the headlines at the range of issues which arise from both the European Convention on Human Rights and the UK Human Rights Act.

One of those is votes for prisoners which is why we want to talk to you, as someone who has been pivotal in campaigning to use human rights law to overturn the British ban on votes for prisoners.

The format of the programme is that Andrew goes on a journey to talk to different people in different places about their take on the issue.

So Andrew will ask you why you think prisoners should be give the vote?; why you think human rights laws should enable this to happen; how you would respond to those uncomfortable with human rights laws being used on this issue etc.

As we discussed on the phone we are doing interviews in public locations to give the film a sense of energy so what we have in mind is to do your interview in a cafe in Hull.

If you can bear with me I will get back to you with exact details when we have secured a location. Just to remind you that we want to film this coming Tuesday 17th January 2012 and that we aim to film the interview late morning - again the exact time subject to the location.

I hope this explains what we want to do.

Thanks again for your help.

BBC Current Affairs

Hi Matthew

I have not yet agreed to be interviewed for the programme.

I don’t believe that human rights have gone wrong. The evidence is that some elements of the media and some politicians have been engaged in misinformation in relation to the issue of human rights.

You may be aware that on two previous occasions when Andrew Neil has interviewed me his style was to attack the player and not the ball. I seek an assurance that this will not happen on this occasion, and that Andrew Neil will play it straight and fair and not engage in fouling me?

The idea sounds good. For example, the day following my ECtHR victory The Sun comment advised the government to ignore the judgment. In effect, this is what the Labour government did for 5 years! I think Murdoch was wrong to give such advice, and if the Labour government acted upon this advice then it does not say much for our so-called liberal democracy. According to Laffin, in relation to democracy “The only safeguards are a free press, a vigorous parliamentary opposition and an alert public”. My case shows no free press, HMG in opposition (Tories) failed to challenge the Labour administration (nor did the LibDems very much, I suspect a conspiracy of silence), compared with the public in the Netherlands, for example, the British public are asleep! Professor Paul Mason, Cardiff University, did a very good study called Lies, Distortion and What Doesn’t Work: Monitoring Prison Stories in the British Media. He covers the Prisoners Votes Case under the heading Misrepresentation, Distortion And Silence. I agree with his conclusions. His criticisms of the media, in my view, will shortly have an impact if not on the level of hackgate then at least high up. Already the Council of Europe and the courts have sent out warnings to the media about its reporting. I am getting an injunction to ensure media coverage of my case in future reflects the judgment.

If you look behind the headlines on the ECHR and HRA and my case, it is worth understanding the basics otherwise you will miss the whole point. The obvious which appears to get missed is the difference between a criminal prosecution in our courts, and an application by an individual to the ECtHR at Strasbourg. In the former it is a case of R v Hirst (the State prosecuting the individual on behalf of the public) and applying English law. In the latter it is a case of the Individual v the State (that is, my challenge against the Executive, Parliament and Judiciary) at the highest court in Europe and applying European law. The UK was found guilty of a human rights violation. The UK is required to remedy the breach. This entails individual measures and general measures to prevent further breaches. Because the UK ignored the judgment in my case, it went from a single human rights violation to over 100,000 human rights violations. Because of this the UK is in big trouble in Europe. Strasbourg sees the UK as a failing State, that is, there is a systemic failure in relation to human rights, democracy and rule of law. Europe is demanding reform of the Executive, Parliament and Judiciary. This is why my case is so important. It is worth pointing out that the public are not part of the State. This is between myself and the State. In my case the UK had tried to shield behind public opinion but the Court dispatched that argument in 2 paragraphs. And yet, some politicians and media still harp on about the irrelevancy of public opinion. The UK is in big trouble because the political landscape in Europe has changed since the Labour administration. The Lisbon Treaty gave the Council of Europe, ECtHR and Committee of Ministers more powers, in particular, Protocol 14 of the ECHR. For the first time in the ECHR’s 60 years history an individual can take Rule 11 ‘infringement proceedings’ against a State, my case may be referred back to the ECtHR for a ruling that the UK has failed to provide a remedy following Hirst v UK (No2). Europe can apply sanctions against the UK to force compliance. The Interlaken process was dreamt up by the UN to force rogue or pariah States to toe the line or face sanctions. The Council of Europe adopted this model and all 47 Member States in February 2010 attended the Interlaken Conference. All 47 Member States were required to reaffirm their commitment to abide by the Convention and abide by the Court decisions. Baroness Scotland, the then Attorney General, signed for the UK. The Interlaken Declaration was adopted and agreed by all 47 Member States. Once laid before both Houses of Parliament it became part of English law. It was a ticking time bomb left for Dominic Grieve. The Interlaken Conference was concerned with reform of the ECtHR, but, in my view, more importantly reform of Member States. “Our legal system has been unable to protect people in the 50 cases in which the European Court has found a violation of the convention by the United Kingdom. That is more than any other country except Italy" (Vera Baird QC, MP, Solicitor General, 12 November 2008). The Interlaken Declaration agreed that the European law principle of subsidiarity must be applied in all Member States. This has implications for the English law doctrine of Supremacy of Parliament. Neither the media nor politicians have referred to this nor grasped the significance. European law does not recognise sovereignty/supremacy of Parliament, rather it recognises the doctrine of the sovereignty of the people. This will upset those MPs and Lords who think they are superior to the people. I started a democratic revolution. The changes, unless the UK leaves Europe, will mean the biggest thing since King Charles the First lost his head to Parliament.

We have no written constitution. Ironically, Rabinda Singh QC, (Matrix Chambers) who lost Hirst v UK (No2) has since advocated we have a written constitution. Europe is demanding, as part of the UK’s reform, that the UK fully incorporates the Convention into domestic law. In effect, it will be a written constitution. Tony Blair left out Articles 1 and 13 of the ECHR when he brought rights home. Article 1 guarantees all the human rights under the ECHR to all citizens in Member States, and Article 13 provides for an effective remedy by a national authority for any breaches of the ECHR. According to Alex Bailin QC, (Matrix Chambers) if Hirst v UK (No2) is the measure then the HRA is toothless. Another reform being demanded by Europe is that our system of a fusion of powers must be replaced by a true Separation of Powers between the Executive, Parliament and Judiciary. My case exposes the structural failure. It will mean that the UKSC (or a new constitutional court) will have the jurisdiction to strike down primary legislation, for example, s.3 of ROPA 1983 which denies all convicted prisoners the vote. Kenneth Clarke, Dominic Grieve and David Cameron have all spoken out about the Interlaken Conference and the need to reform the ECtHR, but all remain mute about the reforms being forced upon the UK. They have talked about the need for reform in the UK, but they have not been truthful with the media and public over the issue. I studied English law, but at the same time I studied European law and recognised where the power is (for example, by the Council of Europe getting Russia to ratify Protocol 14, after about 10 years, it left the UK exposed to my assault). When Charles Falconer studied English law, European law did not exist therefore this gap in his knowledge led him to play into my hands. He failed to appreciate that it is the European law interpretation of my case and not an English law one which prevails. It was a big mistake for him to go on The World at One and tell the public what the judgment did not say when I know for a fact he had not read it first to see what it did say. Whilst I do not agree with much of what Jonathan Aitken has to say, he was right in this respect: "The Lord Chancellor on The World at One gave a dangerous hostage to fortune when he said yesterday, "Not every convicted prisoner is in the future going to get the right to vote … we need to look and see whether there are any categories that should be given the right". In effect, the Executive, Parliament and Judiciary are my hostages. To date, a prisoner convicted of manslaughter, murder, rape, and paedophilia have all won the human right to vote. That’s the 4 worst categories according to English criminal law, it does not leave the UK much room for movement. In fact, in my case the Court did give a couple of examples where, exceptionally, the principle of universal suffrage might be curtailed, for example, in the case of someone convicted of electoral fraud or abuse in a public office (MPs expenses fiddling?). In Frodl v Austria this was referred to as the Hirst test. The UK accused the ECtHR of moving the goalposts, but the reality is it was laid down in my case and the UK either ignored it or missed the point. I suspect that the UK has been trying to cover up the mistakes made by Charles Falconer and compounded by Jack Straw. The starting point is all convicted prisoners will get the vote because the leading case in Europe has so judged this will be the case. It is for the electorate to choose the elected and not for the elected to choose the electorate. Charles Falconer has much to answer for. Whilst we both studied law, I did so from a different approach to the traditional black letter of the law teaching. I found that to be too narrow. For example, Law in context or ‘living law’, according to Phil Harris, states “that law can be properly understood only by examining the ways in which it actually operates in society, and by studying the often extremely complex relationship between a social group and its legal code...The perspective taken in this present book is that an understanding of law cannot be acquired unless the subject-matter is examined in close relationship to the social, economic and political contexts in which it is created, maintained and implemented”. I would also add the historical context. Some call this the Sociology of law, its a long way from Eton, Harrow and Oxbridge. I adopted this approach when I formed my own school of thought called Prison Law Inside Out. At best a lawyer or academic can only approach the subject from an outside in perspective. I am the foremost expert on prison law in the country. The UK underestimated the monster it had created.

After 10 years of trying to control me and failing, the Home Office approached me and said it was prepared to negotiate. I was asked what I wanted. I replied “ further education”, I already knew it is high on the IRA wish list. “And, a transfer” I added. Grey suit asked where I had in mind? I replied “Hull Prison Special Unit”. Grey suit said, “The Governor here states that no other Governor will take you because of your reputation”. I replied, “the Governor of Hull Prison, Phil Wheatley, (former DG of NOMS) will take me. He left me to walk around the cage whilst he made some phone calls. The prison Governor then approached me with relief all over his face, Phil Wheatley has agreed to take you. I simply said, “I knew he would”. I knew Phil from previously (he drank in the same pub I worked as a waiter back in the 1960s, The Skyrackrack in Leeds). I wrote to Phil and asked him what his terms were? He replied simply “No unwarranted violence”. We entered into a contract. I thought it was good of him to leave it to my discretion as to the interpretation of warranted, especially as the inmates of Special Units were officially described as “the mad and the bad, the difficult and dangerous”. When he was Deputy Governor of Gartree Prison we got on well together and he said he found a nugget of gold in me. I saved his life once. During the IRA ceasefire a top IRA man (The Brighton bomber) unofficially approached me with a contract to kill Phil Wheatley whom the IRA prisoners were in a running battle. I was a sympathiser, but he had underestimated me and was not aware of my loyalty to Phil. Without going into too much detail, I tipped off Phil to the contract I had been offered. Unfortunately, when I knocked unconscious 3 prison officers the screws union the POA demanded that I be transferred so Phil was unable to work with me. Hull gave him a second bite at the cherry. Section 47 of the Prison Act 1952 states that all prisoners 24/7 are in the control of the Secretary of State. A flaw in this is that it requires the good will of the prisoner to be controlled, the majority the majority of the time go along with this. I challenged it simply by saying “No”. Shades of Gandhi. This put the onus upon the prison authorities to control me. Prison is all about security and control. I had my price and held out for it. Originally the Special Units were called Control Units but the Guardian exposed them and their regimes and the Home Office closed them. Special Units reopened but with different regimes in different prisons and safeguards added and academic scrutiny. Hull Prison Special Unit was education based. The educationalist Ron Cooper was a firm Leftie and very committed to improving education in prison. I asked for a social skills tutor and Phil told him to find me someone appropriate. He brought his friend Lucy who is a feminist, and she helped me with empowerment. She also introduced her partner to me who is a LLM and a Adult Education specialist. Not long after he put 10 questions too me and I shot him down on all 10. He said “Some people will resent your knowledge”. When I had a legal problem and 6 solicitors proved fruitless, Lucy introduced me to her friend Humphrey a solicitor at the Humberside Law Centre. He admitted his ignorance of prison law and simply said “Teach me”. The Home Office settled on the court steps. We took another case and the barrister Tim Owen was ignorant of prison law. He later wrote in Prison Law: Text and Materials (which I helped him write) “most lawyers, even those whose work in criminal practice frequently involves them in decisions about who should go to prison, know comparatively little about the law relating to prisons”. I then had to educate the judges. Politicians and the public are proving more difficult. Lord Justice Sedley wrote: “It should not be forgotten that it takes not only awareness but a degree of courage on a prisoner’s part to take his or her custodians or their departmental superiors to court”. When we entered into the contract the authorities did not say to me “Don’t use these law books to sue us”. The catalyst was meeting Stephen Shaw (the former Director of the Prison Reform Trust), who advised me that violence only begets force and that the authorities know how to deal with this. He gave me a copy of the Prison Rules: A Working Guide published by the PRT. He said, “They don’t understand the law”. I thought, all I had to do was learn the law and I could beat the system. We were taught nobody beats the system. No? I did. The irony is that the system gave me the weapons, that is, the law books. Originally subjects such as sociology, psychology, criminology and the law were banned in prison. I studied all of these in the Special Unit. I could read up to 6 books a day. I was like a sponge soaking up knowledge. I knew that knowledge is power. The law is a double-edged sword, it serves both to punish and to protect. I simply grabbed it and turned it around. Whilst most students will start off with a ‘O Level’ text and progress to ‘A Level’ text, my first text book on law was a degree level text book. It fell open at page 168 a chapter called Power and its use. The author used s.47 of the Prison Act 1952 as an example. I was gripped. The next chapter was called Abuse of power. I thought, this is what prisons is all about. Politics is about power. When an offender kills or rapes, for example, its about power or to be more precise abuse of power. I specialised in prison law first rather than studied law and then decide which area to specialise in. It’s a Topsy-Turvy world, I dived in at the deep end and then learnt to swim. Or, to put it another way, I started from the centre of a maze and took the one way out.

I was a guinea pig in a government experiment in behaviour modification. The files are secret save for those with Home Office and MoJ approval to study them. The regime played down the negatives and played up the positives. The Barlinnie Special Unit was a success witness Jimmy Boyle. I regularly had talks with Dr Peter Bennett the Governor of the Special Unit (and Phil’s protégé) and Phil himself. Pete would run off to seek Phil’s advice when I got him in a bind. Phil said, “would you rather he made the wrong decision?” I replied “No”. Phil was the first to recognise what they had unleashed. It was a bit like The Six Million Dollar Man “We can rebuild him”. Unlike a robot I retained control. Phil’s law degree taught him that he knew I knew what I was talking and writing about, and in such a short period of time. My autism in this instance was not a disability but an ability, my Aspergers Syndrome meant I am good at details and the devil is in the detail. Sometimes I would study for 3 days and nights without sleep. I was a man on a mission. First I had to reform myself, then reform the system. I could not get the key to the door, but I could put my hand on the hand with the key to the door and turn it. The law changes from Strasbourg helped. As did the Strangeways Prison riot of April 1990, and subsequently meeting Lord Justice Woolf as he conducted his inquiry. He concluded that there was a lack of justice in prisons which led to the riot. He recommended an inmate grievance procedure. Hull Prison was one of those chosen to pilot the study. I tested the system, when it failed to deliver I took the case to court. I challenged the absence of power points in the cells. When I won, it destroyed the argument for not having in-cell TVs. I challenged the practice of removing the bed and bedding of prisoners undergoing punishment and won. Success followed success, and I just waited for the HRA to come into force. I had read the Home Office lawyers views on the impact the Act would have, but they had not taken into account prisoners. I won prisoners right of access to phone the media, but wrapped up in the case was the right to form a trade union or association if you like under Article 11 of the ECHR. This caught the Prison Service with its pants down. The judge, Elias J, gave me both points and his judgment was so tight it did not allow for any appeal. It was panic stations. I formed a prison union along with 9 other inmates, they elected me General Secretary and we drafted a constitution. It was decided that obtaining the vote had to be a priority because politicians are only interested if you have a vote, and it would mean we could lobby Parliament for reforms. I became famous not for my crime but because of the case in Strasbourg, and I made history. I transformed from a law breaker to a law-maker, and the State went from law-maker to law breaker. The UK has been in denial, not accepting it was wrong and that I was right.

In a nut shell, that’s my take on the issue.

I am bored with this approach “So Andrew will ask you why you think prisoners should be give the vote?; why you think human rights laws should enable this to happen; how you would respond to those uncomfortable with human rights laws being used on this issue etc”. like I said on the phone, in relation to the first part, simply because the highest court in Europe has ruled prisoners are entitled to the human rights to the vote. Secondly, because all humans are entitled to human rights and this includes prisoners. I don’t respond to those uncomfortable with human beings having human rights, that’s their problem and perhaps they should seek psychiatric help? Might I suggest a rethink on the line of questions, particularly if you do not want to waste time and footage asking irrelevant questions? The BBC should inform and start with an open mind and not have a hidden agenda. Leave it to politicians to go for the populist vote.

Best wishes


1 comment:

Jim Brown said...

Absolutely fascinating! I saw your last interview with Andrew Neil and it was most unedifying. I think you are very wise in being extremely cautious of a 'rematch' with Andrew as I'm fairly sure you are being 'setup' - and I speak as someone not at all sympathetic with the cause of giving prisoners the right to vote. In my view if you take part in the proposed interview it will only serve to strengthen public opinion against prisoner voting rights. But I can fully understand that the offer of further media exposure is extremely tempting indeed.....