Equality and Human Rights Commission Research report 81

Human Rights Measurement Framework: Prototype panels, indicator set and evidence base

Jean Candler, Holly Holder, Sanchita Hosali, Anne Maree Payne, Tiffany Tsang and Polly Vizard

Human Rights Measurement Framework: Prototype panels, indicator set and evidence base
Jean Candler, Holly Holder, Sanchita Hosali, Anne Maree Payne, Tiffany Tsang and Polly Vizard

© Equality and Human Rights Commission 2011 First published Winter 2011 ISBN 978 1 84206 430 6

Equality and Human Rights Commission Research Report series
The Equality and Human Rights Commission Research Report Series publishes research carried out for the Commission by commissioned researchers. The views expressed in this report are those of the authors and do not necessarily represent the views of the Commission. The Commission is publishing the report as a contribution to discussion and debate. Please contact the Research Team for further information about other Commission research reports, or visit our website: Research Team Equality and Human Rights Commission Arndale House The Arndale Centre Manchester M4 3AQ Email: Telephone: Website: research@equalityhumanrights.com 0845 604 6610 www.equalityhumanrights.com

If you require this publication in an alternative format, please contact the Communications Team to discuss your needs at: communications@equalityhumanrights.com

Contents

Contents
Acknowledgements Data sources acknowledgements Web sources acknowledgements List of acronyms Executive summary 1 Introduction and overview 1.1 Background to the HRMF 1.2 Building blocks of the HRMF 1.3 Conceptual overview of the HRMF 1.4 Next steps in the development of the HRMF 1.5 Overview of this report 2 Research framework and methodology 2.1 How has the HRMF been developed? 2.2 The OHCHR Indicators Framework 2.3 The HRMF Specialist Consultation 2.4 HRMF indicator selection criteria 3 The underlying legal framework: guidance and clarification 3.1 The Human Rights Act 1998 3.2 Overview of selected articles of the HRA 3.3 Other human rights treaties and instruments covered by the HRMF 4 Using and interpreting the Human Rights Measurement Framework: guidance and clarification 4.1 What is being measured/monitored? 4.2 Interpreting the qualitative information within the HRMF 4.3 Interpreting the quantitative information within the HRMF 4.4 Worked example: The right to life (HRA, Article 2) xxvii xxviii xxviii xxix xxxii 2 3 5 7 11 12 13 13 14 18 22 26 26 30 34 40 40 41 44 49

i

Contents

5

The Right to Life (Human Rights Act (HRA), Article 2) Panel and indicators Evidence base Structural indicators Process indicators Outcome indicators

62 62 64 64 69 76 158 158 161 161 170 182 272 272 275 275 280 281 342 342 345 345 349 350

6

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment (Human Rights Act, Article 3)
Panel and indicators Evidence base Structural indicators Process indicators Outcome indicators

7

The Right to Liberty and Security of the Person (Human Rights Act, Article 5) Panel and indicators Evidence base Structural indicators Process indicators Outcome indicators

8

The Right to The Right to a Fair Trial (Human Rights Act, Article 6) Panel and indicators Evidence base Structural indicators Process indicators Outcome indicators

ii

Contents

9

The Right to Respect for Private and Family Life (Human Rights Act, Article 8) Panel and indicators Evidence base Structural indicators Process indicators Outcome indicators

374 374 377 377 389 390

10 The Right to the Highest Attainable Standard of Physical and Mental Health (Universal Declaration of Human Rights, Article 25; International Covenant on Economic, Social and Cultural Rights, Article 12) Panel and indicators Evidence base Structural indicators Process indicators Outcome indicators 11 The Right to Education (Universal Declaration of Human Rights, Article 26; International Covenant on Economic, Social and Cultural Rights, Articles 13 and 14; Convention on the Rights of the Child, Articles 28 and 29; Human Rights Act, Protocol 1 Article 2) Panel and indicators Evidence base Structural indicators Process indicators Outcome indicators 12 The Right to an Adequate Standard of Living (Convention on the Rights of the Child, Article 27; International Covenant on Economic, Social and Cultural Rights, Article 11) Panel and indicators Evidence base Structural indicators Process indicators Outcome indicators iii

426 426 429 429 435 439

498 498 500 500 505 506

566 566 569 569 575 595

Contents

Appendix 1 Appendix 2 Appendix 3 Appendix 4 References Tables 1 2 3 4 5 6 7 8 9

Further details of the protection and promotion of human rights in England, Scotland and Wales Demographics of respondents to the HM Inspectorate of Prisons’ surveys Details of participation in the Human Rights Measurement Framework Specialist Consultation and Advisory Group Record of feedback, comments and recommendations from the Human Rights Measurement Framework Specialist Consultation

633 645 647

655 697

Protection of the right to life in domestic law (including constitutional/‘higher’ law) 64 Status of ratification of relevant international treaties Principles established in key cases (domestic and ECHR) Principles established in international standard-setting processes Gaps in legal protection The right to life – non-implementation of legal judgments and recommendations 64 64 68 68 69

The right to life – identification of key regulators, inspectorates, ombudsman and examples of relevant responsibilities, powers and standards 69 Spotlight responsibilities and powers of key regulators and inspectors Spotlight primary legislation 70 73 74 76 78 79

10 Use of lethal force/potentially lethal force – policy guidance and training guidelines 11 Violations of the right to life – case law outcomes

12 The right to life – key concerns raised by human rights monitoring bodies 13 The right to life – Commission case law interventions

14 The right to life – summary of the outcomes of key inspection, regulation and complaints procedures; independent investigations into deaths related to the use of unlawful/arbitrary force; and other official investigations, inquiries and reviews into deaths that result in serious criticism of actions of the state, its agents or bodies fulfilling a public function 80

iv

Contents

15 Outcomes of key investigations into deaths – concerns around police response and the failure to protect highlighted by the IPCC 16 Outcomes of key investigations into deaths – investigation of ‘excess deaths’ in Mid Staffordshire NHS Foundation Trust by the Healthcare Commission (now the Care Quality Commission) 17 Outcomes of key investigations into deaths – investigation into six deaths of people with learning difficulties by the PHSO 18 The right to life – key concerns and allegations raised by private individuals and civil society organisations/reports in the media 19 Deaths during or following police contact (type of death by gender, age group and by ethnicity), England and Wales, 2008-09 20 Number of fatal injuries incurred by members of the public as a result of a road traffic accident while in pursuit/emergency response, 1996-07 – 2008-09, Scotland 21 Number of fatal injuries incurred by members of the public as a result of a road traffic accident while not in pursuit/emergency response, 1996-07 – 2008-09, Scotland 22 Fatal incidents investigated by the Prisons and Probations Ombudsman, by type of death and location, England and Wales, 2009-10 23 Self-inflicted deaths in prison custody by time in custody and by gender, England and Wales, 2005-09 24 Self-inflicted death by sentenced/unsentenced prisoners 25 Child deaths in penal custody, 1990-date, England and Wales (including deaths in privately-run secure training centres)

87

88 89 90 93

95

96 97 98 99 100

26 Deaths of young people aged 21 and under in prison (England and Wales) 1990-date INQUEST monitoring 102 27 Hospital Standardised Mortality Ratios 28 Deaths where malnutrition was the underlying cause of death, by place of death, England and Wales, 1997-09 29 Deaths (persons) where malnutrition and effects of hunger were mentioned on the death certificate, by place of death, England and Wales, 1997-2009 30 Number of deaths and age-standardised rate per 1 million population, where the cause specified was the underlying cause of death, by place of death, England and Wales, 1997-09 103 105

106

107

v

Contents

31 Number of deaths and age-standardised rate per 1 million population, where the cause specified was mentioned on the death certificate, by place of death, England and Wales, 1997-2009 32 Deaths caused by malnutrition in Scotland 33 Offences currently recorded as homicide by age and sex of victim, 1999-2000 to 2009-10. England and Wales recorded crime 34 Relationship of currently recorded homicide victims1 to principal suspect by ethnic appearance of victim England and Wales, combined data for 2005-06 to 2007-08 35 Homicides currently recorded for all victims by relationship of victim to principal suspect, 1999-2000 to 2009-10. Recorded crime for England and Wales 36 Homicides currently1 recorded for victims under 16 years by relationship of victim to principal suspect, 1999-2000 – 2009-10. Recorded crime for England and Wales 37 Homicide by relationship of victim to principal suspect, all victims, Scotland, recorded crime in 1998-99, 2003-04 and 2008-09 38 Period life expectancy by age, country and gender, 2007-09 39 Life expectancy at birth and at age 65 (years) in Government Office Regions, by gender, 2007-09

112 117 118

120

121

125 129 129 130

40 Life expectancy at birth and at age 65 (years) in council areas in Scotland, by gender, 2007-09 130 41 Life expectancy at birth and at age 65 (years) in local authorities in Wales, by gender, 2007-09 131 42 Local areas with the highest and lowest male life expectancy at birth, United Kingdom, 2007-09 43 Period life expectancy by social class, England and Wales, 2002-05 44 Infant mortality rates, England, Government Office Regions, 2009 45 Infant mortality rates, Scotland, NHS Area Boards, 2009 46 Infant mortality rates, Wales, Welsh Local Health Boards, 2009 47 Infant mortality rate (IMR) ethnic group: babies born in 2005, England and Wales 48 Infant deaths by mother’s country of birth, England and Wales, 2009 49 Infant mortality rates by father’s Socio-economic Classification (NS-SEC), 2009 England and Wales vi 132 133 133 134 134 135 136 137

Contents

50 Age-specific mortality rates of all children (aged 0-15) from accidents, by NS-SEC, age group and selected causes, England and Wales 2001-03, rate per million 51 Deaths as a result of an unintentional injury, children aged under 15, by type of injury, Scotland, year ending 31 December 2009 52 Deaths as a result of an unintentional injury, children aged under 15, by deprivation quintile, number and standardised mortality ratios, Scotland, year ending 31 December, 2005-09 53 Age-standardised suicide rates (with 95 per cent confidence limits) by sex and age group, England, 1991-2009 54 Age-standardised suicide rates (with 95 per cent confidence limits) by sex and age group, Wales, 1991-2009 55 Age-standardised suicide rates (with 95 per cent confidence limits), Government Office Regions, 2009 56 Deaths for which the underlying cause was classified as ‘intentional self-harm’ or ‘event of undetermined intent’ by current local authority area: registered in Scotland, 2009 57 Deaths for which the underlying cause was classified as ‘intentional self-harm’ or ‘event of undetermined intent’ by sex and by type of cause: registered in Scotland, 2009 58 Age-standardised suicide rates by deprivation twentieth and sex, people aged 15 and over, England and Wales, 1999-2003 59 Deaths caused by intentional self harm and events of undetermined intent by gender and Scottish Index of Multiple Deprivation, Scotland, 2000-09 60 Estimated rates of maternal deaths by type and ethnic group, England, 2006-08 61 Estimated rates of maternal deaths by National Statistics Socio-Economic Classification (NS SEC), England and Wales,2006-08 62 Gypsies and Travellers: Evidence on premature mortality 63 Public attitudes towards ‘being protected if your life is under threat’ 64 Protection from torture, inhuman or degrading treatment or punishment in domestic law (including constitutional/‘higher’ law) 65 Status of ratification of relevant international treaties 66 Principles established in key cases (domestic and ECHR) 67 Principles established in international standard-setting processes vii

138 139

140 140 142 144

145

145 146

147 149 150 150 150 161 161 161 166

Contents

68 Inhuman and degrading treatment or punishment and prison conditions 69 Gaps in legal protection 70 The prohibition on torture and inhuman or degrading treatment or punishment – list of key regulators, inspectorates, ombudsman, etc. 71 The prohibition on torture and inhuman or degrading treatment or punishment – Spotlight responsibilities and powers of key regulators and inspectors 72 Number of prisons, immigration removal centres and short-term holding facilities inspected by HMIP that are evaluated as performing poorly or not sufficiently well, by Healthy Prison/Establishment Assessments and type of prison/establishment, England and Wales, 2008-09 73 Prisons: outcome of recommendations assessed in follow-up inspection reports published 2008-09, England and Wales 74 Immigration removal centres and short-term holding facilities: outcome of recommendations assessed in follow-up inspection reports published 2008-09, England and Wales 75 Eligible complaints made to the PPO, by service, England and Wales, 2008-09 and 2009-10 (%) 76 Detained people who self-report that they have made a complaint, and feel they are dealt with fairly, England and Wales 77 Investigation of deprivations of liberty and security of the person and outcomes of other investigations, inquiries and reviews 78 Outcome of completed investigations by allegation category (substantiated complaint cases only), England and Wales, 2008-09 79 Number of complaint allegations made against Scottish police officers that were substantiated, by region, Scotland, 2006-07 80 The prohibition on torture and inhuman or degrading treatment or punishment – policy guidance and training guidelines 81 Violence against women strategies 82 The prohibition on torture and inhuman or degrading treatment or punishment – case law outcomes 83 The prohibition on torture and inhuman or degrading treatment or punishment – key concerns raised by human rights monitoring bodies 84 The prohibition on torture and inhuman or degrading treatment – EHRC case law interventions

167 169 170

171

172 173

175 175 176 177 177 179 180 182 182 184 190

viii

Contents

85 The prohibition on torture and inhuman or degrading treatment or punishment – summary of the outcomes of key inspection, regulation and complaints procedures; independent investigations that engage Article 3; and other official investigations, inquiries and reviews engaging Article 3 that result in serious criticism of actions of the state, its agents or bodies fulfilling a public function 86 The prohibition on torture, inhuman or degrading treatment or punishment Key concerns and allegations raised by private individuals and civil society organisations/reports in the media 87 Overcrowding in prisons: definitions and national key performance indicator results, England and Wales, 2009 88 Overcrowding in prisons by function, England and Wales, 2009 89 Average rate of overcrowding in prisons, England and Wales, 1998-99 – 2008-09 90 Slopping out 91 Number of prison cells that do not have access to in-cell sanitation, England and Wales, 2011

191

197 201 201 202 202 203

92 In-cell sanitation recommendations made by HMIP since September 2009, England and Wales 204 93 Time out of cell recommendations made by HMIP since September 2009, England and Wales 94 Standardised ratio of proportion of patients who had recorded incidents – hands-on restraint, England and Wales, 2009 95 Use of hands-on restraints in mental health institutions in England and Wales, 2009 96 Detained people who self-report they have been physically restrained in the last six months, England and Wales 97 Detained children and young people who self-report that they have ever been physically restrained while in this establishment, England and Wales 98 Respondents who self-report that they were handcuffed or restrained whilst in the police custody suite, England and Wales 99 Standardised ratio of proportion of patients who had recorded incidents – physical assault on the patient, England and Wales, 2009 100 Incidences of physical assaults on inpatients within mental health and learning difficulties services, England and Wales, 2009 205 215 218 218

219 219 220 223

ix

Contents

101 Assault summary statistics, England and Wales, 2004-08 102 Assault incidents by role and age, England and Wales, 2004-08 103 Detained people who self-report that they have been victimised by a member of staff, England and Wales, 2009 104 Adult male prisoners who self-report that they have been victimised by a member of staff, by ethnicity, religion and disability, England and Wales, 2008-09 105 Detained people who self-report that they have experienced physical or sexual abuse or been victimised by a member of staff, England and Wales

223 224 225

226

227

106 Adult male prisoners who self-report that they have been victimised by a member of staff, by ethnicity, religion and disability, England and Wales, 2008-09 229 107 Detained people who self-report that they have been victimised by another prisoner/detainee, England and Wales 230

108 Detained people who self-report that they have experienced physical or sexual abuse or been victimised by another prisoner/detainee, England and Wales 231 109 Adult male prisoners who self-report that they have been victimised by another prisoner because of their ethnicity, religion or disability, England and Wales, 2008-09 233 110 People in police custody who self-report that they were victimised by another detainee or member of staff, England and Wales 234 111 People in police custody who self-report that they were victimised by another detainee or member of staff – by type of victimisation, England and Wales 234 112 Prevalence of intimate violence by category among adults aged 16 to 59, England and Wales, 2009-10 113 Estimated numbers of victims of intimate violence in the last year by category among adults aged 16 to 59, England and Wales, 2009-10 114 Percentage of adults who have had a partner since the age of 16 or who have had a partner or contact with an ex-partner in the last 12 months, who have experienced partner abuse by age and gender, Scotland, 2009-10 235 237

238

115 Percentage of adults who had experienced each form of psychological or physical abuse since the age of 16 by age and gender, Scotland, 2009-10 240

x

Contents

116 Percentage who had experienced any stalking/harassment or sexual victimisation1 since the age of 16/in the last 12 months by demographic variables, Scotland, 2009-10 117 Incidents of domestic abuse recorded by the police, by type of crime/offence and financial year, Scotland, 2000-01 to 2009-10 118 Rapes recorded by the police between 2003 and 2008, Scotland 119 Sanction detection rates for rape, recorded crime, England and Wales, 2008-09 and 2009-10 120 Action taken by the police against identified perpetrators of crimes or offences of domestic abuse cleared up by the police, by financial year, Scotland, 2000-01 to 2009-10 121 Current levels of hate crime in England and Wales, 2008-09 122 Racially or religiously aggravated offences recorded by police forces by offence type, with clear up rates for England and Wales, 2007-08 123 Recorded hate crime from regional forces in England, Wales and Northern Ireland*, January to December 2009 124 Recorded crime statistics on racially and religiously aggravated crime, England and Wales, 2007-08, 2008-09, 2009-10 125 Number of rapes charges reported to the procurator fiscal, Scotland, April 2006 to 31 March 2007 126 The conviction rate of sexual offences, England and Wales, 2008 127 Reports, prosecutions and convictions for rape,Scotland, 1997-2006 128 Serious sexual offences brought to justice, England and Wales, 2009-10 129 Violence against the person and sexual offences brought to justice, offence type, England and Wales, 1998-99 – 2009-10 130 Pre-charge decisions: the percentage of defendants who were charged with domestic violence or rape, by crime type, England and Wales, 2007-08 – 2009-10 131 Reports and convictions for rape, Scotland, 1999-2000-2006-07 132 Number and outcomes in rape charges reported from 2006-07, Scotland 133 Completed prosecutions by outcomes: percentage convicted of domestic violence, sexual offences excluding rape, or rape, by crime type, England and Wales, 2007-08 – 2009-10

242 243 246 247

248 248 249 250 251 254 254 254 255 256

257 257 258

259

xi

Contents

134 Pre-charge decisions: the percentage of defendants charged with a hate crime, by hate crime type, England and Wales, 2007-08 – 2009-10 135 Completed prosecutions by outcomes: Percentage convicted of a hate crime, by hate crime type, England and Wales, 2007-08 – 2009-10 136 Race crime statistics, Scotland, 2003-04 –2008-09 137 Religiously aggravated crime statistics, Scotland, 2003-04 – 2008-09 138 Elder abuse and neglect in the private household population 139 Public attitudes toward the right not to be tortured or degraded: Liberty polling exercise 140 Protection of the right to liberty and security of the person (including constitutional/‘higher’ law) 141 Status of ratification of relevant international treaties 142 Principles established in key cases (domestic and ECHR) 143 Principles established in international standard setting processes 144 Gaps in legal protection 145 The right to right to liberty and security of the person – non-implementation of legal judgments and recommendations 146 List of key regulators, inspectors, complaint handling mechanisms, etc. 147 The right to the right to liberty and security of the person – policy guidance and training guidelines 148 Violations of the right to liberty and security of the person: case law outcomes 149 Key concerns raised by human rights monitoring bodies 150 Outcomes of inspection, regulation and complaints procedures that engage Article 5 151 Key concerns and allegations raised by private individuals and civil society organisations/reports in the media 152 Average waiting times in the crown court for cases committed for trial by remand status, weeks,England and Wales, 2005-09 153 Defendants proceeded against at magistrates’ courts – average time for criminal cases from offence to completion by offence type, England and Wales, 2005-09 154 Population in prison establishments, by type of custody, sentence length and gender: total for age group 15-17 year olds, England and Wales, 2002-2008 xii

259 259 260 260 261 263 275 275 275 279 279 279 280 280 281 283 285 286 287

287

288

Contents

155 Number of children accommodated in secure children’s homes 2002-2010 by gender, age, length of stay, and type of placement

289

156 Stop and search of people under Section 1 of PACE, and other legislation, (total numbers and per 1,000 population) by self-defined ethnicity, England and Wales, 2007-08 291 157 Percentage of stop and search under Section 1 of PACE and other legislation resulting in an arrest, ethnic appearance, England and Wales, 2006-07 – 2007-08 158 Percentage of stop and search under Section 1 of PACE and other legislation resulting in an arrest, by self-defined ethnicity, England and Wales, 2007-08 159 Stop and search of people under Section 60 of the Criminal Justice and Public Order Act 1994, by ethnic appearance, England and Wales, 2007-08 160 Stop and search of people under Section 60 of the Criminal Justice and Public Order Act 1994, by self-defined ethnicity, England and Wales, 2007-08 161 Stop and search of people under Section 44 (1) and (2) of the Terrorism Act 2000, by ethnic appearance, England and Wales, 2006-07 – 2007-08

292

293

294

294 295

162 Stop and search of people under Section 44 (1) and (2) of the Terrorism Act 2000, by self-defined ethnicity, England and Wales, 2007-08 296 163 Stop and search of vehicle occupants under Section 44 of the Terrorism Act 2000 and resultant arrests, by ethnic appearance, England and Wales, 2007-08 297 164 Stop and search of vehicle and occupants under Section 44 of the Terrorism Act 2000 and resultant arrests, by self-defined ethnicity, England and Wales, 2007-08 165 Stop and search of pedestrians under Section 442 of the Terrorism Act 2000 and resultant arrests by ethnic appearance, England and Wales, 2007-08 166 Stop and search of pedestrians under Section 44 of the Terrorism Act 2000 and resultant arrests, by self-defined ethnicity, England and Wales, 2007-08 167 Stop and accounts, total numbers and per 1,000 population aged 10 and over, by ethnic appearance, England and Wales, 2006-07 and 2007-08 168 Stop and search of people under Section 1 of the PACE, and other legislation, by ethnic appearance, England and Wales, 2007-08 xiii

297

299

299

301 302

Contents

169 Stop and search of people under Section 1 of PACE and other legislation per 1000 population, by ethnic appearance, 2006-07 – 2007-08 170 Percentage of the population that self-report being stopped on foot or in vehicles, and are stopped and searched, in the last year, by age, gender, ethnicity, disability, religion and social class 171 ASBOs issued at all courts, as reported to the Ministry of Justice by the Court Service, by age at date of issue, England and Wales, 1 April 1999 to 31 December 2009 172 ISOs1 issued at all magistrates’ courts, in addition to an ASBO, as reported to the Ministry of Justice2 by the Court Service, England and Wales, 1 April 1999 to 31 December 2009 173 ASBOs issued at all courts, as reported to the Ministry of Justice by the Court Service, by duration of order, England and Wales, 2009 174 ASBOs proven at all courts to have been breached, by type of sentence received, age group and sex, England and Wales, 1 June 2000 to 31 December 2009 175 Number of authorisations granted or not granted under the deprivation of liberty safeguards assessments, by age, gender, ethnicity, religion, sexual orientation, disability, length of authorisation, England,2010 176 Numbers of cases where authorisation is not granted by a Deprivation of Liberty Safeguards Assessment but the best interests assessor advises that deprivation of liberty is actually occurring, England, 2010 177 Number of cases where authorisation is granted and not granted by a Deprivation of Liberty Safeguards Assessment, total applications by local authority, England, 2010 178 Number of cases where authorisation is granted and not granted by a Deprivation of Liberty Safeguards Assessment, total applications by Primary Care Trust (PCT), England, 2010 179 Restricted patients detained in hospital by legal category, England and Wales, 2004-08 180 Restricted patients detained in hospital by sex, England and Wales, 2004-08 181 Standardised ratio of proportion of informally admitted patients deemed incapable of consenting, England and Wales, 2009 182 Standardised ratio of proportion of formally detained patients who are capable but refusing consent, England and Wales, 2009

302

303

305

306 308

309

311

315

315

315 316 318 319 322

xiv

Contents

183 Standardised ratio of proportion of formally detained patients deemed incapable of consenting, England and Wales, 2009 184 Standardised ratio of proportion of patients referred by criminal justice routes, England and Wales, 2009 185 Persons entering detention held solely under Immigration Act powers, by age and sex, UK, 2009 186 Persons removed from the United Kingdom on leaving detention, held solely under Immigration Act powers, by age, 2009 187 Number of children entering and leaving immigration and asylum detention centres 188 Persons in detention in the United Kingdom solely under Immigration Act powers, by length of detention as at 31 December 2009 189 Public attitudes towards ‘only being arrested if there are reasonable grounds of suspicion’ 190 Public attitudes towards the ‘right not to be detained without reason’: Liberty polling exercise 191 Protection of the right to a fair trial in domestic law (including constitutional/‘higher’ law) 192 Status of ratification of relevant international treaties 193 Principles established in key cases (domestic and ECHR) 194 Principles established in international standard setting processes 195 Gaps in legal protection 196 List of key regulators, inspectorates and ombudsmen 197 Public expenditure on legal aid, 198 Violations of the right to a fair trial: case law outcomes 199 Key concerns raised by human rights monitoring bodies 200 Outcomes of inspection, regulation and complaints procedures that engage Article 6 201 Key concerns and allegations raised by private individuals and civil society organisations/reports in the media 202 Provision of interpreters and information in alternative languages for those detained in an immigration removal centre, as self-reported by detainees, England and Wales, 2008-09

325 328 331 332 332 333 334 335 345 345 345 348 348 349 349 350 351 354 355

355

xv

Contents

203 Detained people who self-report that they find it easy or very easy to communicate with their solicitor or legal representative, England and Wales, 2008-09 204 Adult male prisoners who self-report that they find it easy or very easy to communicate with their solicitor or legal representative, by ethnicity, religion and disability, England and Wales, 2008-09 205 Percentage of those who are very satisfied with their experience of visiting court by ethnicity, age, disability, gender and religion, England and Wales, 2008-10 206 Percentage of civil justice problems where respondents obtained advice, England and Wales, January 2006 – January 2009 207 Percentage of civil justice problems where respondents gave up or did nothing as opposed to other outcomes, England and Wales, January 2006 – January 2009 208 Number of over 10 and under 18 year old defendants appearing at the Crown Court for trial or sentence, by sex, England and Wales, 2008

356

357

358 359

361 363

209 Percentage of victims and witnesses satisfied with their treatment with the criminal justice system, measured by the Witness and Victim Experience Survey, England and Wales (2008-09 – 2009-10) 364 210 Percentage of victims and witnesses satisfied with their overall contact with the criminal justice system by ethnicity, measured by the Witness and Victim Experience Survey, England and Wales, cases closed in the 12 months to June 2010 211 Public attitudes towards ‘being entitled to a fair trial’ 212 Public attitudes toward the right to a fair trial: Liberty polling exercise 213 Percentage of people that are very or fairly confident that the criminal justice system respects the rights of individuals accused of committing a crime and treats them fairly, by age, gender, ethnicity, disability, religion and social class, England and Wales, 2007-08 214 Proportion of those questioned in the British Crime Survey expressing confidence that the criminal justice system as a whole is fair, England and Wales (2008-09 – 2009-10) 215 Public confidence in the fairness of the criminal justice system, England and Wales (2008-09 – 2009-10) 216 Protection of the right to respect for private and family life in domestic law (including constitutional/‘higher’ law) 217 Status of ratification of relevant international treaties xvi

364 365 366

368

369 370 377 377

Contents

218 Principles established in key cases (domestic and ECHR) 219 Principles established in international standard setting processes 220 Gaps in legal protection 221 Non-implementation of legal judgements and recommendations 222 The right to respect for private and family life – identification of key regulators, ombudsmen, etc. 223 Right to respect for family and private life – policy guidance and training guidelines 224 Violations of the right to respect for private and family life: case law outcomes 225 Key concerns raised by human rights monitoring bodies 226 Outcomes of inspection, regulation and complaints procedures that engage Article 8 227 Key concerns and allegations raised by private individuals and civil society organisations/reports in the media 228 Interference in private life and surveillance 229 Gender identity and human rights 230 Self-reported access and problems with the use of telephones and sending/receiving mail in detention, England and Wales 231 Adult male prisoners who self-report that they have problems with access and use of telephones and sending/receiving mail, by ethnicity, religion and disability, England and Wales, 2008-09 232 Detained people who self-report that they are able to have a shower, England and Wales

377 387 387 389 389 389 390 394 395 398 399 400 401

402 403

233 Percentage of adult male prisoners who self-report that they are normally able to have a shower every day, by ethnicity, religion and disability, England and Wales, 2008-09 404 234 Detained people who self-report that they are treated with respect by most staff, England and Wales 235 Adult male prisoners who self-report that they are treated with respect by most staff, by ethnicity, religion and disability, England and Wales 236 Detained people who self-report that they have ever felt unsafe in their establishment, England and Wales 405 406 407

xvii

Contents

237 Adult male prisoners who self-report that they have ever felt unsafe in their establishment, by ethnicity, religion and disability, England and Wales, 2008-09 238 Detained people who self-report that their religious beliefs are respected, England and Wales 239 Adult male prisoners who self-report that their religious beliefs are respected, by ethnicity, religion and disability, England and Wales, 2008-09 240 Experiences of bullying 241 Experiences of harassment because of skin colour, ethnic origin or religion, by religion, percentage, England, 2008-09 242 Reasons given for discrimination in recruitment and promotion, England and Wales, 2008-09 243 Awareness of information rights legislation – access to information, England and Wales, 2010 244 Awareness of information rights legislation – holding of personal information, England and Wales, 2010 245 Public attitudes towards ‘respect for private and family life’ 246 Attitudes towards being treated with dignity and respect 247 Attitudes towards ‘being treated fairly regardless of gender, race, disability, etc.’ 248 Public attitudes towards the right to be treated fairly and equally by population subgroup 249 Attitudes towards respect for private and family life and the home: Liberty polling exercise 250 Protection of the right to the highest attainable standard of physical and mental health in domestic law (including constitutional/‘higher’ law) 251 Status of ratification of relevant international treaties 252 Principles established in key cases (domestic, ECHR and international) 253 Principles established in international standard setting processes 254 Gaps in legal protection 255 List of key regulators, inspectorates, ombudsmen, etc. 256 Spotlight responsibilities and powers of key regulators, inspectorates, ombudsmen xviii

408 409

410 410 411 412 413 414 414 415 415 416 418 429 429 430 434 435 435 436

Contents

257 Right to the highest attainable standard of physical and mental health – spotlight primary legislation and regulatory mechanisms 258 Right to the highest attainable standard of physical and mental health – policy guidance and training guidelines 259 Identifiable expenditure on health services in England, Scotland and Wales, 2004-05 – 2009-10, £ million 260 Identifiable expenditure on health services in England, Scotland and Wales, 2004-05 – 2009-10, per head 261 The right to the highest attainable standard of physical and mental health: case law outcomes 262 Key concerns raised by human rights monitoring bodies 263 Outcomes of inspection, regulation and complaints procedures that engage the right to the highest attainable standard of physical and mental health 264 Outcomes of independent reviews that are relevant to the right to the highest attainable standard of physical and mental health 265 Health complaints accepted by the PSHO, by type of body, England, 2009-10 266 Issues raised in complaints to the Healthcare Commission (now the Care Quality Commission) 267 Recommendations made by the Healthcare Commission (now the Care Quality Commission) where a complaint has been upheld 268 NHS Performance performance ratings 2008-09: Core standards compliance by trust type (acute and specialist, and primary care trusts) and nationally (England only) 269 The independent healthcare sector: Rates of non-compliance with core national minimum standards 2007-08 (all providers) 270 Quality ratings of adult social care services, England, 2008-09 271 Average of national minimum standards met by social care services as at 31 March each year, England, 2009 272 Services meeting or exceeding individual National Minimum Standards – all care homes for younger adults, England, 2008-09 273 Services meeting or exceeding individual National Minimum Standards – residential care homes for younger adults*, England, 2008-09 274 Services meeting or exceeding individual National Minimum Standards – nursing homes for younger adults, England, 2008-09 xix

436 436 437 438 439 441

443 444 445 446 446

447 450 451 451 452 453 455

Contents

275 Services meeting or exceeding individual National Minimum Standards – all care homes for older people, England, 2008-09 276 Services meeting or exceeding individual National Minimum Standards – residential care homes for older people, England, 2008-09 277 Services meeting or exceeding individual National Minimum Standards – Nursing homes for older people, England, 2008-09 278 Services meeting or exceeding individual National Minimum Standards – home care agencies, England, 2008-09 279 Services meeting or exceeding individual National Minimum Standards – nursing agencies, England, 2008-09 280 Services meeting or exceeding individual National Minimum Standards – Shared Lives schemes, England, 2008-09 281 Outcomes judgements adult social services by council, England and Wales, 2009 282 Performance of councils for adult social services, England, 2009 283 Key concerns and allegations raised by private individuals and civil society organisations/reports in the media 284 Healthy life expectancy (HLE) at birth in years, by deprivation decile by gender, Scotland, 1999-2003 285 Disability-Free Life Expectancy (DFLE) at birth by area deprivation quintile and gender, England,2001-04 and 2005-08 286 Coronary heart disease mortality under 75 years by deprivation, rate per 100,000 and age-standardised to the European population, Scotland, 2000-08 287 Cancer mortality under 75 years by deprivation, rate per 100,000 and age-standardised to the European population, Scotland, 2000-08 288 Percentage reporting poor self-reported health(self-reported health bad or very bad) by age, sex, ethnicity, LLID and occupational group, Health Survey for England 2009 289 Limiting longstanding illness or disability by age, sex, ethnicity, LLID and occupational group, Health Survey for England 2009 290 Percentage reporting poor mental and psychosocial health (GHQ12 score greater than 4) by age, sex, ethnicity, LLID and occupational group, Health Survey for England 2009 291 Number of people self harming in prison, England and Wales, 2004-08

457 458 460 461 462 462 463 463 463 464 465

466 466

467 467

467 468

xx

Contents

292 Standardised ratio of proportion of patients who had recorded incidents: Self harm, England and Wales, 2009 293 Recorded incidences of self harm by patients in mental health or learning difficulties services, per patient, England and Wales, 2009 294 People who have used the health service in their establishment, and who rate the overall quality of the service as good or very good, England and Wales 295 People who have drug or alcohol problems, and who self-report that they have received help or intervention whilst in this establishment, England and Wales, 2008-09 296 Children and young people who self-report that they have received help with an alcohol problem whilst detained, England and Wales, 2008-09 297 Children and young people who self-report that they have received help with a drugs problem whilst detained, England and Wales 298 People in custody who self-report that they were offered support for their drug or alcohol problem, England and Wales 299 Healthcare of children who had been looked after continuously for at least 12 months, 12 months ending 30 September, England, 2008-09 300 Substance misuse of children who had been looked after continuously for at least 12 months, 12 months ending 30 September, England, 2008-09 301 Comparisons between Gypsies and Travellers and age-sex matched comparators on standardised general health status measures, England 302 Percentage reporting that they were treated with dignity and respect during their stay in hospital 303 Percentage reporting that they were not always treated with dignity and respect during their stay in hospital by age, gender and disability 304 Percentage of those that need help who report receiving the help they need with eating from staff during their stay in hospital 305 Percentage reporting that did not always receive the help they needed with eating during their stay in hospital by age, gender and disability 306 Perceptions of the level of respect respondents are treated with when using health services, by age, sex, gender, religion, sexual orientation, social class, percentage, England, 2008-09 307 Perceptions of treatment with dignity and respect in healthcare services, Wales, 2006

469 472

472

473 473 474 474 475

476 477 478 479 480 480

482 487

xxi

Contents

308 Percentage that did not feel that they were involved as much as they wanted to be in decisions about their care and treatment 309 Numbersp of fatal injuries by main industry for 2010-11 310 Rate of fatal injuries by main industry for 2010-11 311 Average prevalence of work-related illness and non-fatal work related injury 312 Variations in support for the right to free healthcare if needed, by population subgroup, England, 2005 313 Protection of the right to education in domestic law (including constitutional/‘higher’ law) 314 Status of ratification of relevant international treaties 315 Principles established in key cases (domestic, ECHR and international) 316 Principles established in international standard setting processes 317 Gaps in legal protection 318 Primary legislation protecting the right to education 319 Violations of the right to education: case law outcomes 320 Key concerns raised by human rights monitoring bodies 321 Investigation of deprivations of the right to education and outcomes of other investigations, inquiries and reviews 322 Key concerns and allegations raised by private individuals and civil society organisations/reports in the media 323 Identifiable expenditure on education in England, Scotland and Wales, 2004-05 – 2009-10, £ million 324 Identifiable expenditure on education in England, Scotland and Wales, 2004-05 – 2009-10, per head 325 People of working age achieving functional literacy and numeracy skills, England 326 Key Stage 1 attainment by pupil characteristics, England, 2009-10 327 Attainment at Key Stage 4 by gender, ethnicity, deprivation and free school meals, England, 2008 328 Attainment at Key Stage 4 by gender, ethnicity, deprivation and free school meals, Wales, 2008

488 488 489 489 491 500 500 501 504 505 506 506 507 508 509 513 516 519 521 527 530

xxii

Contents

329 Attainment by the end of Secondary 4, by gender, urban/rural, ethnicity, and deprivation, Scotland, 2008 330 Permanent exclusions, by ethnicity and gender 331 Fixed period exclusions, by ethnicity and gender 332 Permanent exclusions by SEN status 333 Fixed period exclusions by SEN status 334 Permanent exclusions by SEN and primary need category 335 Self-reported participation in education and training of those in prison, England and Wales 336 Adult male prisoners who self-report that they are participating in education and training, by ethnicity, religion and disability, England and Wales, 2008-09 337 Self-reported participation and activities of detainees in an Immigration Removal Centre, England and Wales 338 Eligibility and performance of children who had been looked after continuously for at least 12 months, in Key Stages 1 and 2, compared with all children, 12 months ending 30 September, England, 2007-09 339 GCSE and GNVQ equivalent performance of children who had been looked after continuously for at least 12 months, in Year 11, compared with all children, 12 months ending 30 September, England, 2007-09 340 Numbers of children with SEN in England and Wales 341 ‘Looked after children’: Prevalence of SEN 342 Children’s self-reported experiences of school related bullying, England 2009 343 Perceptions of treatment with respect in education by personal characteristics 344 Support for right to access to free education for children by population subgroup, England, 2005 345 Protection of the right to education in domestic law (including constitutional/‘higher’ law) 346 Status of ratification of relevant international treaties 347 Principles established in key cases (domestic, ECHR and international) 348 Principles established in international standard setting processes xxiii

532 534 536 538 541 542 545

546 546

547

548 549 552 554 556 561 569 569 570 573

Contents

349 Gaps in legal protection 350 Child Poverty Act/child poverty targets 351 Fuel Poverty Duty 352 Identifiable expenditure on social protection in England, Scotland and Wales, 2004-05 – 2009-10, £ million 353 Identifiable expenditure on social protection per head in England, Scotland and Wales, 2004-05 – 2009-10 354 Identifiable expenditure on housing in England, Scotland and Wales, 2004-05 – 2009-10, £ million 355 Identifiable expenditure on housing per head in England, Scotland and Wales, 2004-05 – 2009-10 356 Violations of the right to an adequate standard of living case law outcomes 357 Key concerns raised by human rights monitoring bodies 358 Key concerns and allegations raised by private individuals and civil society organisations/reports in the media 359 Percentage of individuals in low-income groups by various family and household characteristics, UK, 2009-10

574 575 578 579 585 591 593 595 596 597 597

360 Percentage of individuals living in households with less than 60 per cent of contemporary median household income, by gender and adulthood, UK, 2009-10 600 361 Percentage of individuals living in households with less than 60 per cent of 1998-99 median household income held constant in real terms, by gender and adulthood, UK, 2009-10 601 362 Percentage of pensioners in low-income groups by various family and household characteristics, UK, 2009-10 363 Percentage of pensioners aged 65 or over in material deprivation by various family and household characteristics, United Kingdom 602 604

363 Percentage of pensioners aged 65 or over in material deprivation by various family and household characteristics, United Kingdom (continued) 605 364 Percentage of children falling below various thresholds of contemporary median income, UK1, 2, 1998-99 – 2009-10 365 Number of children falling below various thresholds of contemporary median income, UK1, 2, 1998-99-2009-10 606 607

xxiv

Contents

366 Number of children falling below various thresholds of 1998-99 median income held constant in real terms, UK, 1998-99 – 2009-10 367 Percentage of children in low-income groups by various family and household characteristics, UK, 2009-10 368 Percentage of children falling below various thresholds of 1998/99 median income held constant in real terms, United Kingdom, 1998-99 –2009-10 369 Percentage and number of children falling below thresholds of low income and material deprivation, UK, 2004-05 –2009-10 370 Percentage of children experiencing persistent low income, Great Britain, 1991-2008 371 Statutory homelessness: Households accepted by local authorities as owed a main homelessness duty, by ethnicity, England, 1998-2010 372 Statutory homelessness: Households accepted by local authorities as owed a main homelessness duty, by Government Office Region, England, 1998-2010 373 Number and estimates of rough sleepers, England, 2010 374 Total number of households in fuel poverty,England, 2003-09 375 Percentage of households in fuel poverty by ethnicity, disability, vulnerability and Government Office Region, England, 2003-08 376 ‘Children in need’ whose primary need category is low income 377 ‘Children looked after’ whose primary need category is low income, by category of need1, 2, 3, England, years ending 31 March 2006 to 31 March 2010 378 ‘Children in need’ at 31 March 2010 whose primary need category at initial assessment is low income, by age and asylum seeking status, England, 2010 379 ‘Looked after children’ at 31 March whose primary need category is low income, by age, England, 2010 380 Supported asylum seekers, 2007-09 381 Section 4 support for destitute asylum seekers 382 Support for the right to be looked after by the State if you can not look after yourself by population subgroup, England, 2005

608 609

611 612 613 614

615 616 616 617 621

622

623 624 624 625 626

xxv

Contents

Figures 1 2 3 4 5 6 7 8 9 HRMF building blocks HRMF Panels, Indicator Dashboards and Evidence Base OHCHR panels: Example of the right to life Model of human rights regulation and inspection Details of the HRMF Specialist Consultation questions The Human Rights Act 1998 Core international human rights treaties UN human rights treaties to which the UK is a party The need for careful analysis and interpretation of quantitative evidence using standard statistical methods: Illustration drawing on Office for National Statistics (ONS) deaths by place data 6 8 15 17 19 27 35 36

47 50 633 638 642 648

10 Illustrative HRMF panel: the right to life 11 Human rights treaties signed and ratified or having been the subject of an accession as of 26 February 2010

12 Current status of UK ratification of UN human rights treaties 13 Summary of UK ratifications of core UN human rights treaties 14 Screenshot of the web consultation

xxvi

Acknowledgements

Acknowledgments
We are grateful to countless individuals and groups for their input into this project. LSE Human Rights Futures acted as unpaid advisors on the project and we are particularly grateful to Francesca Klug and Helen Wildbore for their comments and support. Alison Gerry provided comments and undertook an excellent review of the case law set out in the report. Gwen Oliver has provided outstanding overall project management and the research team have worked closely with a Project Management Group from the Equality and Human Rights Commission (EHRC) and the Scottish Human Rights Commission including Duncan Wilson and Mary Cunneen. Anna Henry, Fiona Glen, Neil Crowther, David Darton and others have also provided critical input and guidance. Thanks are also due to Kathleen Doyle and Morag Patrick (EHRC Scotland) and Amelia John (EHRC Wales). The project has also benefited from the comments from and recommendations of an Advisory Group and we are extremely grateful to the following: Paul Allin (Office for National Statistics (ONS)), Nick Croft (City of Edinburgh Council), Tom Dooley and Warwick Allen (Home Office), Lindsey Dyer (Mersey Care National Health Service Trust), Nicolas Fasel (Office of the High Commissioner for Human Rights (OHCHR)), Gillian Fawcett (The Association of Chartered Certified Accountants), Tracey Good (National Health Service Centre for Equality and Human Rights), Samantha Grant and Michael Harmer (Welsh Assembly Government), Julia Häusermann (Rights and Humanity), Todd Landman (Essex University), Peter Matejic (Department for Work and Pensions (DWP) Households Below Average Income Team), Diane McGiffen (Audit Scotland), Brian Peddie, Nuala Gormley, Duncan Isles (Scottish Government), Jiwan Raheja (Ministry of Justice Human Rights Team), Jacquie Roberts and Karen Anderson (Scottish Care Commission),Isabella Sankey (Liberty), Sally Stares (London School of Economics), Nigel Thompson (Care Quality Commission), Lizzie Romilly (Home Office). Advisory Group members and many others have provided time and input into the project and some have given permission for the use of data. We are particularly grateful for the one to one meetings and other exchanges that were held with Eric Metcalfe (JUSTICE), Anne Owers, Laura Nettleingham and Louise Falshaw (HM Inspectorate of Prisons), Nigel Thompson and Frank Worth (Care Quality Commission), Sara Brodie (Police Complaints Commissioner for Scotland), Nick Hardwick (Independent Police Complaints Commission), Age UK, Frances Butler and Claudia Wells (ONS) as well as to participants at two Ministry of Justice events for feedback and comments (Human Rights Senior Champions (SCs) Meeting, 17 November 2010; and Regulators, Inspectorates and Ombudsmen (RIO) Forum on Human Rights, 1 December 2010). We would also like to thank participants in the Specialist Consultation for giving up their time and providing critical recommendations, input and information on the basis of which the Human Rights Measurement Framework has been developed and agreed. At the Centre for Analysis of Social Exclusion, IT expertise from Anita Bardhan-Roy, Joe Johannes and Nic Warner was critical to the project, including the running and design of the web consultation. Finally, we would like to thank John Donohue at Creative Services for his outstanding work in editing this document. Responsibility for errors remains with the authors.

xxvii

Data acknowledgements

Data sources acknowledgements
The report contains public sector information licensed under the Open Government Licence v1.0. For further details, see www.nationalarchives.gov.uk/doc/open-government-licence/ The following datasets have been accessed via the UK Data Archive at Essex University: National Patient Survey Programme (England), SN5167 (group 33348). Deposited by Healthcare Commission. Home Office. Communities Group and National Centre for Social Research, Home Office Citizenship Survey, 2005 [computer file]. Colchester, Essex: UK Data Archive [distributor], June 2006. SN: 5367. Full acknowledgments for the datasets originally accessed in related work (the Equality Measurement Framework project) are provided at www.equalityhumanrights.com/ uploaded_files/emf/front_cover%2C_title_page%2C_contents_etc.pdf We are very grateful to the Archive and to the original collectors and depositors for making these data available. However, neither the Archive nor the original collectors or depositors of the data bear any responsibility for the analysis or interpretations presented in this report. The report presents findings based on research datasets which may not exactly reproduce national statistics published elsewhere.

Web sources acknowledgements
The websources cited in this report have been accessed over the course of the HRMF project between October 2009-December 2011.

xxviii

List of acronyms

List of acronyms
AP ASBOs BIHR CASE CIRI CCTV CEDAW CESCR CMF COs COSLA CSOs CTO DCSF DH DNA ECHR ECtHR EHRC EMF EU FRA FRS FREDA GDI GDP GEM Action Plan Anti-Social Behaviour Orders British Institute of Human Rights Centre for Analysis of Social Exclusion Cingranelli-Richards Closed Circuit Television Convention on the Elimination of All Forms of Discrimination against Women Committee on Economic, Social and Cultural Rights Children’s Measurement Framework Country Offices Convention of Scottish Local Authorities Civil Society Organisations Community Treatment Order Department for Children, Schools and Families Department of Health Deoxyribonucleic Acid European Court of Human Rights European Court of Human Rights Equality and Human Rights Commission Equality Measurement Framework European Union Fundamental Rights Agency Family Resources Survey Fairness, Respect, Equality, Dignity and Autonomy Gender Related Development Index Gross Domestic Product Gender Empowerment Measure

xxix

List of acronyms

GEO GNI HDI HIV HM HMIP HPI HR HRA HRJRAMP HRMF HURIDOCS ICCPR ICERD ICESCR ICHRP ISOs LEA LSE MDG MoJ MP MSP NGOs NHRIs NHS OHCHR ONS OPM

Government Equalities Office Gross National Income Human Development Index Human Immunodeficiency Virus Her Majesty’s Her Majesty’s Inspectorate of Prisons Human Poverty Index Human Rights Human Rights Act Human Rights Joint Risk Assessment and Management Plan Human Rights Measurement Framework Human Rights Information and Documentation Systems International Covenant on Civil and Political Rights International Convention on the Elimination of All Forms of Racial Discrimination International Covenant on Economic, Social and Cultural Rights International Council on Human Rights Policy Individual Support Orders Local Education Authority London School of Economics Millennium Development Goals Ministry of Justice Member of Parliament Member of the Scottish Parliament Non-Government Organisations National Human Rights Institutions National Health Service Office of the High Commissioner for Human Rights Office for National Statistics Office for Public Management xxx

List of acronyms

PCT RIO SCs SHRC SMART SATs UDHR UK UN UNCESCR UNCRC UNDP UNHCHR UNHRC VAW VCS WAG WGI WHO

Primary Care Trust Regulators, Inspectorates and Ombudsman (Forum) (Human Rights) Senior Champions Scottish Human Rights Commission Specific, Measurable, Attainable, Relevant, and Time-framed Standard Assessment Tests Universal Declaration of Human Rights United Kingdom United Nations United Nations Committee on Economic, Social and Cultural Rights United Nations Committee on the Rights of the Child United Nations Development Programme United Nations High Commissioner for Human Rights United Nations Human Rights Council Violence Against Women Voluntary and Community Sector Welsh Assembly Government Worldwide Governance Indicators World Health Organisation

xxxi

Executive summary

Executive summary
The Human Rights Measurement Framework (HRMF) is a new ‘analytical tool’ that brings together evidence for human rights analysis and assessments, and makes this information available to the Equality and Human Rights Commission (‘the Commission’), the Scottish Human Rights Commission (SHRC), regional and international human rights monitoring mechanisms, Government, public bodies, Non-Government Organisations (NGOS), etc. It has been developed in order to begin to meet the need for a comprehensive evidence base for evaluating compliance with, and progress towards, the implementation of human rights in England, Scotland and Wales. The HRMF panels and indicator set have been developed and agreed through a combined process of research and consultation with subject experts and stakeholders, as well as extensive discussion with an advisory group and a project management group. This approach, we believe, has resulted in a high quality and analytically focused output that builds on recognised international best practice while fully reflecting and incorporating particular human rights issues and concerns in England, Scotland and Wales. Conceptually, the HRMF is anchored in the Indicators Framework developed by the United Nations Office for the High Commissioner for Human Rights (OHCHR) developed as a response to the growing international demand for indicators that can be used to promote and monitor the implementation of human rights and to make information about the progress that states are making in fulfilling the obligations that flow from human rights available to human rights monitoring bodies and civil society (OHCHR, 2008, 2006b, 2010). The development of the HRMF has also built on a process of consultation with human rights stakeholders, subject experts and NGOs. The HRMF Specialist Consultation was undertaken from mid-June to mid-September 2010 with the principal aim of reaching maximum possible agreement on a set of indicators that should be used as a basis for evaluating compliance with, and progress towards, the implementation of human rights in England, Scotland and Wales. Participants were invited to comment on the nature and scope of the indicators that should be used to ‘populate’ the HRMF and to provide feedback on their legitimacy, validity and importance.

Legal and normative underpinnings
The HRMF covers both rights that have a clear basis for enforcement in domestic law through the Human Rights Act (HRA) (which incorporates many of the UK’s obligations under the European Convention on Human Rights (ECHR)) and additional rights that are drawn from the international instruments that the UK has signed up to (such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD)). For the purposes of this report we describe the rights that are set out in the ECHR and incorporated into domestic law by the HRA, in the following way: Right to life, HRA, Article 2. The rights that are drawn from international instruments that the UK has signed up to, such as the ICESCR, are described as follows: Right to highest attainable standard of physical and mental health, ICESCR, Article 12. xxxii

Executive summary

What is being measured/monitored?
The HRMF evidence base brings together information about domestic human rights law and treaty ratifications with a broad range of other evidence including information about the regulatory and public policy framework for protecting human rights; information on case law outcomes (ie information on violations/breaches); concerns highlighted by domestic and international human rights monitoring bodies (for example, the Joint Committee on Human Rights (JCHR) and United Nations treaty monitoring committees); findings of investigations, inquiries and reviews; issues raised by regulators, inspectorates and ombudsmen; and allegations and concerns raised by NGOs and other civil society mechanisms such as media reports. The HRMF also draws on a wide range of statistical sources including administrative data and social surveys. It is critical to understand that the HRMF is not intended as a violations counting system. Many of the indicators go beyond the concept of ‘legal enforcement’, ‘violations’ and ‘minimum compliance’. They aim to provide evidence of the incorporation of human rights standards into broader public policy and the emergence of a so-called ‘culture’ of respect for human rights. Proactive public policy measures as well as broader societal developments can help to reduce the risks of legal breaches of human rights and may ultimately reduce the need for legal enforcement activities and case law. A key aim of the HRMF is to capture and convey evidence about broader progress of this type. When using the HRMF attention should be given to interpreting the different types of information and evidence that are covered in the HRMF indicators and evidence base. Particular care should be taken to distinguish between those rights that are domestically enforceable through the HRA, and other rights which are set out in the various regional and international human rights instruments that the UK has signed up to. Further, whilst some of the indictors in the HRMF provide direct evidence on breaches and violations (for example, case law outcomes) other elements of the HRMF evidence base provide more general information about overall patterns and trends as well as background and contextual information on the broader picture in relation to which a human rights concern is being raised. It is critical that both the qualitative and quantitative indicators within the HRMF are appropriately interpreted in line with the guidance provided in Part II.

Panels, indicators and evidence base
The HRMF is made up of a series of panels each of which focuses on a single right (for example, Panel 1 focuses on the Right to Life). Each Panel has a corresponding ‘indicator dashboard’ that has been developed and agreed through the Specialist Consultation process and by applying the project indicator selection criteria (as discussed in Chapter 2). The indicator dashboards’ each include ‘a balance of 10 qualitative and quantitative indicators and draw on both official and non-official sources. An evidence base’ against each of the indicator dashboards’ is presented in this report in a series of tables. This sets out the qualitative and quantitative information that has been gathered against each of the HRMF indicators to date.

xxxiii

Executive summary

Coverage Due to time and resource constraints, it has not been possible to develop and agree panels for all of the human rights that are incorporated in the HRA and/or reflected in international human rights instruments within the scope of the current project. The project has resulted in the development and agreement of eight prototype panels, five with a clear basis in domestic legislation (the HRA) and three drawn directly from the UK’s obligations under the ICESCR. These are: Domestic basis: • • • • • The Right to Life (HRA, Article 2) The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment (HRA, Article 3) The Right to Liberty and Security of the Person (HRA, Article 5) The Right to a Fair Trial (HRA, Article 6) The Right to Respect for Private and Family Life (HRA, Article 8)

International basis: • • The Right to the Highest Attainable Standard of Physical and Mental Health (Universal Declaration of Human Rights (UDHR), Article25; ICESCR, Article 12) The Right to Education (UDHR, Article 26; ICESCR, Article 13/14; United Nations Committee on the Rights of the Child (UNCRC), Article 28; HRA, Protocol 1 Article 2)1 The Right to an Adequate Standard of Living (UNCRC, Article 27; ICESCR, Article 11)

It is anticipated that the HRMF will be expanded over time to incorporate the full range of human rights that are protected and promoted in domestic, regional and international instruments.

Guidance on using and interpreting the HRMF
Part II of this report provides further guidance on using and interpreting the HRMF indicators and should be read before using and interpreting the HRMF indicators. Chapter 3 provides guidance on the legal and normative underpinnings of the HRMF. It is particularly important that readers are aware of the critical distinction between those human rights that have an explicit basis in UK domestic law (the Human Rights Act 1998, which incorporates most of the rights in the ECHR) and those human rights that are protected and promoted in other regional and international treaties and instruments that the UK has signed and ratified (such as the ICESCR, the Convention Against Torture (CAT) and the CRC).

xxxiv

Executive summary

Chapter 4 provides further guidance and clarification on using and interpreting the HRMF. The different types of information that are included within the HRMF are distinguished and the need for careful interpretation of both the qualitative and quantitative indicators is highlighted. An example of how one of the HRMF ‘indicator dashboards’ works (focusing on the right to life) is also provided.

Summary of the HRMF indicators
A summary of the indicators that have been developed and agreed for each of the HRMF panels is given below. The Right to Life (HRA, Article 2) Indicator dashboard Indicator 1: Legal and constitutional framework Indicator 2: Legal precedents, gaps and standard-setting Indicator 3: Regulatory framework Indicator 4: Public policy framework Indicator 5: Outcomes of key judicial, regulatory and investigative processes Indicator 6: Spotlight statistics: Deaths in the police and criminal justice system context Indicator 7: Spotlight statistics: Deaths within health and social care institutions/community care Indicator 8: Spotlight statistics: Protection from third party violations – homicide within society, community and families Indicator 9: Spotlight statistics: Premature mortality within families, community and society Indicator 10: Spotlight statistics: Public attitudes, understanding and experiences. The Prohibition on Torture and Inhuman Or Degrading Treatment or Punishment (HRA A3) Indicator dashboard Indicator 11: Legal and constitutional framework Indicator 12: Legal precedents, gaps and standard-setting Indicator 13: Regulatory framework Indicator 14: Public policy framework Indicator 15: Outcomes of key judicial, regulatory and investigative processes Indicator 16: Spotlight statistics: The use of restraint, punishment and conditions of detention Indicator 17: Spotlight statistics: Physical violence, physical and sexual abuse, and victimisation within miscellaneous establishments

xxxv

Executive summary

Indicator 18: Positive duties and effective protection from sexual violence, domestic violence, hate crime and abuse within families, communities and society: Spotlight statistics on prevalence, detection and prosecution Indicator 19: Denial of basic needs Indicator 20: Spotlight statistics: Public attitudes, understanding and experiences. The Right to Liberty and Security of the Person (HRA, Article 5) Indicator dashboard Indicator 21: Legal and constitutional framework Indicator 22: Legal precedents, gaps and standard-setting Indicator 23: Regulatory framework Indicator 24: Public policy framework Indicator 25: Outcomes of key judicial, regulatory and investigative processes Indicator 26: Spotlight statistics: Deprivation of liberty – Custodial context Indicator 27: Spotlight statistics: Deprivation of liberty – Noncustodial context Indicator 28: Spotlight statistics: Administrative detention – Mental health detention and issues of capacity/consent Indicator 29: Spotlight statistics: Detention within the asylum and immigration system Indicator 30: Spotlight statistics: Public attitudes, understanding and experiences. The Right to a Fair Trial (HRA, Article 6) Indicator dashboard Indicator 31: Legal and constitutional framework Indicator 32: Legal precedents, gaps and standard-setting Indicator 33: Regulatory framework Indicator 34: Public policy framework Indicator 35: Outcomes of key judicial, regulatory and investigative processes Indicator 36: Spotlight statistics: Access to courts and tribunals Indicator 37: Spotlight statistics: Special prosecution Indicator 38: Spotlight statistics: Appropriate justice for children and young people Indicator 39: Spotlight statistics: Treatment of victims and witnesses protection Indicator 40: Spotlight statistics: Public attitudes, understanding and experiences.

xxxvi

Executive summary

The Right to Respect for Private and Family Life (HRA, Article 8) Indicator dashboard Indicator 41: Legal and constitutional framework Indicator 42: Legal precedents, gaps and standard-setting Indicator 43: Regulatory framework Indicator 44: Public policy framework Indicator 45: Outcomes of key judicial, regulatory and investigative processes Indicator 46: Privacy, identity and autonomy Indicator 47: Spotlight statistics: The detention context Indicator 48: Spotlight statistics: Unmet basic needs that may meet the Article 8 threshold Indicator 49: Spotlight statistics: Abuse, neglect, discrimination, lack of dignity and respect Indicator 50: Spotlight statistics: Public attitudes, understanding and experiences. The Right to the Highest Attainable Standard of Physical and Mental Health (UDHR, Article 25; ICESCR, Article 12) Indicator dashboard Indicator 51: Legal and constitutional framework Indicator 52: Legal precedents, gaps and standard-setting Indicator 53: Regulatory framework Indicator 54: Public policy framework Indicator 55: Outcomes of key judicial, regulatory and investigative processes Indicator 56: Spotlight statistics: Mortality rates, healthy life expectancy and ill health Indicator 57: Spotlight statistics: Prevalence of self-harm, access to health services and health outcomes – at risk/vulnerable groups Indicator 58: Spotlight statistics: Spotlight statistics: Non-discrimination, autonomy and dignity and respect Indicator 59: Spotlight statistics: ‘Social determinants’, environmental and occupational health Indicator 60: Public attitudes, understanding and experiences. The Right to Education (UDHR Article 26; ICESCR Article 13/14; UNCRC Article 28; HRA Protocol 1, Article 22) Indicator dashboard Indicator 61: Legal and constitutional framework Indicator 62: Legal precedents, gaps and standard-setting

xxxvii

Indicator 63: Regulatory framework Indicator 64: Public policy framework Indicator 65: Outcomes of key judicial, regulatory and investigative processes Indicator 66: Spotlight statistics: Inequalities in educational attainment Indicator 67: Spotlight statistics: Exclusions and access to education/training and educational attainment for at risk/vulnerable groups Indicator 68: Spotlight statistics: Support for those with Special Educational Needs Indicator 69: Spotlight statistics: Bullying and treatment with dignity and respect – subjective measures Indicator 70: Spotlight statistics: Public attitudes, understanding and experiences. The Right to an Adequate Standard of Living (UNCRC, Article 27; ICESCR, Article 11) Indicator dashboard Indicator 71: Legal and constitutional framework Indicator 72: Legal precedents, gaps and standard-setting Indicator 73: Regulatory framework Indicator 74: Public policy framework Indicator 75: Outcomes of key judicial, regulatory and investigative processes Indicator 76: Spotlight statistics: Income poverty and material deprivation Indicator 77: Spotlight statistics: Child income poverty and material deprivation – reporting against the Child Poverty Act targets (fulfilment of the Child Poverty Duty) Indicator 78: Spotlight statistics: Deprivation in other basic needs Indicator 79: Spotlight indicators: Adequate standard of living – at risk/vulnerable groups Indicator 80: Spotlight statistics: Public attitudes, understanding and experiences.

Chapter notes
1

2

The right to education is also set out in the ECHR Protocol 1 Article 2 and is incorporated into domestic law in the HRA. This is a more limited right than the broader right to education derived from the ICESCR. The right to education is also set out in the ECHR Protocol 1 Article 2 and is incorporated into domestic law in the HRA. This is a more limited right than the broader right to education derived from the ICESCR.

xxxviii

Part I
What is the Human Rights Measurement Framework?

Introduction and overview

1

Introduction and overview

The Human Rights Measurement Framework (HRMF) is a new ‘analytical tool’ that brings together evidence for human rights analysis and assessments, and makes this information available to the Equality and Human Rights Commission (‘the Commission’), the Scottish Human Rights Commission (SHRC), regional and international human rights monitoring mechanisms, Government, public bodies and Non-Government Organisations (NGOs). It has been developed in order to begin to meet the need for a comprehensive evidence base for evaluating compliance with, and progress towards, the implementation of human rights in England, Scotland and Wales. The HRMF panels and indicator set have been developed and agreed through a combined process of research and consultation with subject experts and stakeholders, as well as extensive discussion with an advisory group and a project management group. This approach, we believe, has resulted in a high quality and analytically focused output that builds on recognised international best practice while fully reflecting and incorporating particular human rights issues and concerns in England, Scotland and Wales. Conceptually, the HRMF is anchored in the Indicators Framework developed by the United Nations Office of the High Commissioner for Human Rights (OHCHR)as a response to the growing international demand for indicators that can be used to promote and monitor the implementation of human rights and to make information about the progress that states are making in fulfilling the obligations that flow from human rights available to human rights monitoring bodies and civil society (OHCHR, 2008, 2006b, 2010). The development of the HRMF has also built on a process of consultation with human rights stakeholders, subject experts and NGOs. The HRMF Specialist Consultation was undertaken from mid-June to mid-September 2010 with the principal aim of reaching maximum possible agreement on a set of indicators that should be used as a basis for evaluating compliance with, and progress towards, the implementation of human rights in England, Scotland and Wales. Participants were invited to comment on the nature and scope of the indicators that should be used to ‘populate’ the HRMF and to provide feedback on their legitimacy, validity and importance. The HRMF covers both rights that have a clear basis for enforcement in domestic law through the Human Rights Act (HRA) (which incorporates many of the UK’s obligations under the European Convention on Human Rights (ECHR) and additional rights that are drawn from the international instruments that the UK has signed up to (such as the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD)). For the purposes of this report we describe the rights that are set out in the ECHR and incorporated into domestic law by the HRA, in the following way: Right to life, HRA, Article 2. The rights that are drawn from international instruments that the UK has signed up to, such as the ICESCR, are described as follows: Right to highest attainable standard of physical and mental health, ICESCR, Article 12.

2

Introduction and overview

The Framework brings together information about domestic human rights law and treaty ratifications with a broad range of other evidence including information about the regulatory and public policy framework for protecting human rights; information on case law outcomes (ie information on violations/breaches); information about concerns highlighted by domestic and international human rights monitoring bodies (for example, the Joint Committee on Human Rights (JCHR) and United Nations treaty monitoring committees); findings of investigations, inquiries and reviews; issues raised by regulators, inspectorates and ombudsmen; and allegations and concerns raised by NGOs and other civil society mechanisms such as media reports. The HRMF also draws on a wide range of statistical sources including administrative data and social surveys. It is critical to understand that the HRMF is not intended as a violations counting system. Many of the indicators go beyond the concept of ‘legal enforcement’, ‘violations’ and ‘minimum compliance’. They aim to provide evidence of the incorporation of human rights standards into broader public policy and of the emergence of a so-called ‘culture’ of respect for human rights. Proactive public policy measures as well as broader societal developments can help to reduce the risks of legal breaches of human rights and may ultimately reduce the need for legal enforcement activities and case law. A key aim of the HRMF is to capture and convey evidence about broader progress of this type. This first chapter provides an introduction and overview to the HRMF. It is organised as follows: Section 1.1 sets out the background to, and rationale for, the HRMF; Section 1.2 provides a conceptual overview of the HRMF and the process whereby an indicator set to ‘populate’ the HRMF has been developed and agreed; Section 1.3 makes recommendations on the next steps in taking the development of the HRMF forward; Section 1.4 provides an overview of this report.

1.1

Background to the HRMF

The background to the HRMF is the decision of the Equality and Human Rights Commission (‘the Commission’) in partnership with the SHRC to move ahead with the development of a set of indicators of the human rights position of individuals and groups in England, Scotland and Wales. The aim of the HRMF is to provide a systematic and rigorous basis for this exercise by: • producing a credible and objective methodology with which to measure compliance with, and progress towards, the implementation of domestic and international human rights obligations providing the Commission, Government, public bodies, NGOs and others with an interest in human rights, with data against which to prioritise action on human rights meeting the statutory responsibilities of the Commission to monitor and report on progress in relation to equality and human rights.

• •

The development of the HRMF should be understood in terms of the Commission’s general duty to encourage and support the development of a society based on equality and human rights (Equality Act 2006, Sections 3 and 9, Human Rights Duty) and specific 3

Introduction and overview

duties to monitor both the law and results (or ‘social outcomes’) by reporting on progress triennially to parliament, including by developing indicators and evaluating change (Equality Act 2006, Section 12). The Commission also has a statutory duty to consult with stakeholders (Equality Act 2006, Section 12 2(a)) and particular responsibilities to encourage public authorities to comply with their responsibilities under Section 6 of the HRA 1998 (c. 42) (Equality Act 2006, Section 9). The SHRC has a general duty to promote awareness, understanding and respect for all human rights, and a series of powers to protect human rights. The Commission and the SHRC are accredited as ‘National Human Rights Institutions’ (NHRIs) with A-Grade status. This means that, in addition to their domestic enforcement functions, both institutions have a responsibility to promote international human rights norms including the international human rights instruments that the UK has signed up to. The HRMF builds on the Commission’s earlier work on indicator-based monitoring including the development of the Equality Measurement Framework (EMF). The EMF uses administrative and social survey data to monitor the position of individuals and groups across 10 critical domains of life with systematic disaggregation by key characteristics such as age, gender, disability, religion and belief, race/ethnicity, sexual orientation and social class and separate monitoring by transgender status (see Alkire et al., 2009; and EHRC, 2010a). Related work on the Children’s Measurement Framework (CMF) is discussed in Holder et al. (2011). The HRMF also builds on the findings and recommendations of the Commission’s Human Rights Inquiry. Background research for the Inquiry concluded that public sector organisations are generally not collecting detailed information on the benefits of human rights activities in a systematic way (Office for Public Management (OPM), 2009). The Inquiry recommended that the Commission should work with regulatory bodies and inspectors to develop human rights indicators that measure the extent to which public bodies are adopting a human rights approach (EHRC, 2009b:184). At the international level, treaty monitoring bodies such as the United Nations Committee on the Rights of the Child (UNCRC), the United Nations Human Rights Committee and the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) are increasingly emphasising the importance of disaggregated statistical information and indicators for human rights monitoring purposes. For example, the reporting guidelines issued by the UNCRC inform states about the annual disaggregated statistical data that they are obligated to collect and present to the Committee for its evaluations, alongside principal legislative texts and judicial decisions (UNCRC, 2005). Article 31 of the CRPD specifically obliges states to collect appropriate statistics and data. The UK has, on occasions, been criticised for having inadequate statistical systems for monitoring the human rights position of individuals and groups and for not making such information available to civil society and international treaty monitoring mechanisms. For example, the Concluding Observations of the UNCRC following its consideration of the UK’s Periodic Report include specific recommendations on the need for additional data to monitor the position of certain at risk children (UNCRC, 2008).

4

Introduction and overview

The OHCHR Indicators Framework has been developed in response to increased international emphasis on the use of indicators for monitoring and promoting human rights. The Framework provides a common conceptual and methodological basis for developing human rights indicators and has itself been through a process of extensive consultation and validation with United Nations treaty bodies, special rapporteurs and civil society. The Framework has been endorsed by the inter-committee treaty monitoring body and the use of the system is being encouraged by the human rights treaty monitoring bodies. The UN Human Rights Committee has adopted revised guidelines for state reporting and requires states to provide disaggregated statistics based on the OHCHR Indicators Framework when submitting reports under specific provisions of the International Covenant on Civil and Political Rights(ICCPR)’ whilst the UNCESCR requires states to identify indicators and related national benchmarks for each covenant right, taking into account the OHCHR Indicators Framework and list of illustrative indicators when submitting their reports (UN Economic and Social Council 2011; UNCESCR, 2009b). The Human Rights Commissioner for the Council of Europe has also highlighted the important role of indicators in addressing ‘implementation gaps’ and evaluating progress towards the achievement of human rights in practice. He suggests that the OHCHR Indicators Framework provides a useful model for moving forward in this area based on the distinction between structural, process and outcome indicators (Hammarberg, 2009). The development of the HRMF has provided an opportunity to build on these developments and to address how human rights indicators can begin to be used to evaluate compliance with, and progress towards, the implementation of human rights in England, Scotland and Wales.

1.2

Building blocks of the HRMF

The HRMF draws on three key inputs (or ‘building blocks’) set out in Figure 1. The first building block is the framework for protecting and promoting human rights in England, Scotland and Wales – that is, the HRA 1998 together with other regional and international human rights instruments that the UK has signed up to (such as the European Convention for the Protection of Human Rights and Fundamental Freedoms, the ICCPR and the ICESCR, the CRC), the Convention Against Torture (CAT) and the CRPD. Further details on the protection and promotion of human rights in England, Scotland and Wales are provided in Chapter 3. The second building block is coverage of three types of indicators – structural indicators, process indicators and outcome indicators – based on the OHCHR Indicators Framework. This conceptual anchoring provides the basis for the development and agreement of a set of indicators that provide evidence on the human rights standards to which the UK is committed in principle (‘structural indicators’), the ‘efforts’ that are being made by duty holders to meet the obligations that flow from human rights standards (‘process indicators’) and the position and experiences of individuals and groups in practice (‘outcome indicators’). Further details of the OHCHR Indicators Framework and the ways these have been modified and refined for the English, Scottish and Welsh contexts are provided in Section 1.6. 5

Introduction and overview

The third building block is that of stakeholder consultation in the development and agreement of the set of indicators that is being used with the HRMF. In developing the HRMF we have built not only on the OHCHR Indicators Framework but also on an extensive process of consultation with human rights NGOs, subject experts, Government departments, regulators, inspectorates, etc. In order to ‘populate’ the HRMF a specialist consultation was undertaken from mid-June to mid-September 2010. The aim was to reach maximum possible agreement on the nature and scope of the indicators that are included in the HRMF as well as on their legitimacy, validity and importance. The views expressed in the HRMF Specialist Consultation are discussed in Chapter 2 and recorded in Appendix 4. Figure 1: HRMF building blocks

Three core building blocks
Legal underpinnings Starting point is the Human Rights Act 1998 which is enforceable in domestic law but also additional human rights instruments that the UK has signed up to (ICCPR, ICESC, CRC, CAT, CRPD, etc.) Three types of indicator drawing on the OHCHR Indicators Framework 1 Structural indicators (formal commitment to human rights in principle, for example, domestic human rights law/ratification of regional and international treaties) 2 Process indicators (‘steps taken’ or the efforts that states make to meet obligations that flow from human rights standards, for example, primary law, policies, targets, guidelines, inspection and regulatory frameworks or resource allocation) 3 Outcome indicators (results achieved in terms of the position/experiences of individuals and groups) Specialist consultation on the selection of indicators (June to September 2010) Included NGOs, Government departments, inspectorates, subject specialists in England, Scotland and Wales and aimed to reach the maximum possible agreement on the nature and scope of indicators/legitimacy/validity/importance

6

Introduction and overview

Systematic disaggregation and separate monitoring of at risk/ vulnerable groups
An important objective of the HRMF has been to identify and bring together administrative and social survey data sources that can be used for the purposes of monitoring and promoting human rights. Taking forward this objective has involved building on the principle of systematic disaggregation of data by key characteristics such as age, gender, disability, religion and belief, race/ethnicity, sexual orientation, transgender status and social class reflected in the earlier EMF. In addition, the HRMF has put particular emphasis on identifying and bringing together administrative and social survey data sources that provide evidence on the position of specific at risk/vulnerable groups such as Gypsies and Travellers, refugee and asylum seekers, people resident or detained in public and private institutions (for example, older people resident in care homes or individuals detained in prisons), ‘looked after children’ and ‘children in need’. Participants in the HRMF Specialist Consultation were invited to comment on the at risk/vulnerable groups that should be monitored separately for the purposes of the HRMF as well as to make suggestions on the administrative and social survey data sources that might provide a basis for this exercise.

1.3

Conceptual overview of the HRMF

The HRMF is made up of a series of panels each of which focuses on a single right (for example, Panel 1 focuses on the Right to Life). Each panel includes a ‘dashboard’ of 10 indicators that has been developed and agreed through the Specialist Consultation process and by applying the project indicator selection criteria. These are discussed in more detail in Chapter 2. The HRMF is represented as a ‘3-D matrix’ in Figure 2. The layers of the matrix represent the HRMF panels (with one panel for each human right that is included within the system, for example, the first panel is the panel for the Right to Life). The rows of the matrix represent the different types of indicator in the system (ie structural, process and outcome indicators, based on OHCHR good practice). The importance of ‘systematic disaggregation’ and identification of the position of at risk/vulnerable groups is captured and specified at the bottom of the panel.

7

Introduction and overview

Figure 2: HRMF Panels, Indicator Dashboards and Evidence Base

el s

8 The Right to an Adequate Standard of Living (ICESCR, Article 11) 7 The Right to Education (ICESCR, Article 13 and Article 14) 6 The Right to the Highest Standard of Physical and Mental Health (ICESCR, Article 12)

Etc.

5 The Right to Respect for Private and Family Life (HRA, Article 8) 4 The Right to a Fair Trial (HRA, Article 6) 3 The Right to Liberty and Security of the Person (HRA, Article 5) 2 The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment (HRA, Article 3) 1 The Right to Life (HRA, Article 2)

Pa n

International basis

Domestic basis

Indicators

Indicator Dashboard (10 indicators for each right)
Structural Process Outcome X X X X X X X X X X X X X X X X X X X X X X X X X X X

Indicators should be systematically disaggregated and allow for identification/monitoring of at risk/vulnerable groups

The HRMF panels
Due to time and resource constraints, it has not been possible to develop and agree panels for all the human rights incorporated in the HRA and/or reflected in regional and international human rights instruments within the scope of the current project. The project has resulted in the development of eight prototype panels, five with a clear basis in domestic legislation (the HRA) and three drawn directly from the UK’s obligations under the ICESCR. These are: Domestic basis: • • • • • The Right to Life (HRA, Article 2) The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment (HRA, Article 3) The Right to Liberty and Security of the Person (HRA, Article 5) The Right to a Fair Trial (HRA, Article 6) The Right to Respect for Private and Family Life (HRA, Article 8)

8

Introduction and overview

International basis: • • • • The Right to the Highest Attainable Standard of Physical and Mental Health (Universal Declaration of Human Rights (UDHR), Article 25; ICESCR, Article 12) The Right to Education (UDHR, Article 26; ICESCR, Article 13/14; CRC, Article 28 and Article 29; HRA, Protocol 1, Article 2)1 The Right to an Adequate Standard of Living (CRC, Article 27;ICESCR, Article 11). It is anticipated that the HRMF will be expanded over time to incorporate the full range of human rights that are protected and promoted in domestic, regional and international instruments.

The HRMF ‘indicator dashboards’
Each of the HRMF panels is populated by a corresponding ‘dashboard’ of 10 indicators with a total of 80 indicators currently included within the HRMF indicator set (ie 10 indicators for each of the eight panels). It is anticipated that the number of indicators in the overall set will increase as additional HRMF panels are developed. It is important to understand that we do not regard the HRMF indicator set as a ‘fixed’ or ‘final’ list but as one that will be periodically reviewed and updated (for example, every three years). It is also important to understand that the limit (or ‘cap’) on the number of indicators in each dashboard is essentially an arbitrary one. The indicators are intended to put the spotlight on key issues and concerns rather than as providing a complete evidence base under each human right. The definition of a human rights indicator that has been used in the development of the HRMF is the definition suggested by OHCHR: ‘[H]uman rights indicators are specific information on the state of an event, activity or an outcome that can be related to human rights norms and standards; that address and reflect the human rights concerns and principles; and that are used to assess and monitor promotion and protection of human rights’ (OHCHR, 2006b). This definition was subjected to scrutiny and ultimately agreed on through the HRMF Specialist Consultation(see Chapter 3).It draws on the definition used by Special Rapporteur Paul Hunt in his various reports to the Commission on Human Rights (for example, Hunt 2003, Hunt 2006).

Structural, process and outcome indicators
The dashboard of 10 indicators for each panel includes a balance of structural, process and outcome indicators (based on the OHCHR model). This balance ensures that the evidence base under each panel incorporates information relating to the formal commitment to the human right in question in principle (through the HRA and additional regional and international instruments), the steps being taken by duty holders to discharge the obligations that flow from human rights (for example, primary law, policy and guidance, and regulation, inspection and complaints handling) and the results achieved in practice (in terms of the position and experiences of individuals and groups).

9

Introduction and overview

Each indicator dashboard begins with two structural indicators that capture and convey information about the formal commitment to human rights in the UK. This includes information on the protection of human rights in domestic law (including in ‘higher’ law) and the status of the ratification of regional and international human rights instruments; and information about precedents in legal judgements and principles established in international standard-setting processes. Two process indicators are also included within the indicator dashboard for each right. These capture and convey information about the steps that duty holders are taking to fulfil the obligations that flow from human rights. This includes information about the public policy framework for the protection of human rights (including primary legislation, policies, plans, targets, codes, guidance and resource allocations) as well as information about key regulators, inspectorates, ombudsman and related mechanisms. Finally, each indicator dashboard also includes a series of outcome indicators. These capture and convey qualitative and quantitative information about the realisation of human rights and the position and experiences of individuals and groups in practice.

The HRMF ‘evidence base’
The HRMF ‘evidence base’ is the qualitative and quantitative information that we have identified against each indicator within the scope of the current project. The evidence that has been gathered to date under each indicator is presented in this report in a series of tables. It is important to understand that we do not regard this evidence base as complete and that follow-up projects will be required not only to extend the HRMF in terms of the number of human rights covered by the system, but also to extend the evidence base itself. The HRMF evidence base brings together different types information for human rights analysis and assessments including: • • • • • • • • information about domestic human rights law and treaty ratifications information about human rights case law outcomes(ie violations/breaches) information about the public policy framework for protecting human rights concerns highlighted by domestic and international human rights monitoring bodies (for example, the JCHR and United Nations treaty monitoring committees) findings of investigations, inquiries and reviews issues raised by regulators, inspectorates and ombudsmen allegations and concerns raised by NGOs and other civil society mechanisms such as media reports statistical information drawing on a wide range of administrative and social survey sources.

10

Introduction and overview

It is critical that in using and interpreting the HRMF indicators and evidence base adequate attention is given to distinguishing between these different types of information. Part II of this report provides guidance and clarification and is essential reading. Chapter 3 provides further guidance on the legal underpinnings of the HRMF and the protection of human rights in domestic law and the international instruments which the UK has signed up to. Chapter 4 provides further guidance on using and interpreting the qualitative and quantitative indicators and the HRMF evidence base. A worked example (focusing on the right to life) is also provided.

1.4

Next steps in the development of the HRMF

The current project has resulted in the development and agreement of eight prototype panels and an associated indicator set. It is anticipated that the HRMF will be expanded over time to incorporate the full range of human rights that are protected and promoted in domestic, regional and international instruments. This will involve developing and agreeing additional panels and the associated indicator dashboards. The HRMF indicator set is not intended as a definitive ‘fixed’ and ‘final’ list and will need periodic review and revision as data availability changes and because new human rights concerns will emerge. We suggest that the indicator set is reviewed and revised every three years. It is anticipated that the HRMF evidence base will expand as the overall system is expanded. In addition, the evidence set out in this report is the evidence that we have been able to gather to date. However, there are some important gaps in the evidence base that will require dedicated follow-up work. For example, it has not been possible, within the current project, to map human rights standards to primary law. This work will require a specific follow-up project. The HRMF would ideally be continuously maintained and updated. Case law is continuously evolving, new investigations reviews are regularly concluding, inspections and complaints-handling mechanisms are constantly being undertaken, and new social survey and administrative data is continuously being collected and made available. Ideally, the HRMF would be viewed as a ‘living document’ and additional evidence would be regularly added to the system. It is also anticipated that the HRMF will be made available on the web. Alongside a userfriendly, web-based system, there needs to be both a plain English summary of the HRMF and an accessible version, in order to maximise the use of the Framework by a broad range of individuals and groups. Ideally, in addition to making the report generally available, a web tool would be developed that would provide access to the indicators and data contained in the HRMF. One model would be to develop an interactive web tool which allows organisations (including civil society organisations) to upload their own data to widen the evidence base and keep it current.

11

Introduction and overview

It is anticipated that over time a high quality narrative will be developed to accompany the HRMF. A narrative of this type would set out how compliance with, and progress towards, implementing human rights in England, Scotland and Wales can be evaluated against the agreed indicators. A model for this is provided in Chapter 4 (which provides a worked example based on the right to life).

1.5

Overview of this report

Chapter 2 discusses the HRMF research framework and methodology, including the HRMF Specialist Consultation. Chapter 3 provides guidance on the protection of human rights in UK domestic law and in the regional and international human rights instruments that the UK is signed up to. Chapter 4 provides a worked example of an HRMF panel and essential guidance on interpreting and using the HRMF indicators. Chapters 5-12 set out the HRMF panels, indicators and evidence. Each chapter includes a: • • • panel (one panel per right) dashboard of 10 indicators that has been developed and agreed for each panel qualitative and quantitative evidence base against each of the HRMF indicators.

Details of participation in the HRMF specialist consultation are provided in Appendix 3 and feedback from the consultation is recorded in Appendix 4.

Chapter notes
1

The right to education is also set out in the ECHR, Protocol 1, Article 2 and is incorporated into domestic law in the HRA. This is a more limited right than the broader right to education derived from the ICESCR.

12

Research framework and methodology

2

Research framework and methodology

This chapter sets out the methodology that has been used to develop and agree the Human Rights Measurement Framework (HRMF); Section 2.1 provides an overview of the research framework; Section 2.2. provides details of our conceptual starting point, the Office of the High Commissioner for Human Rights (OHCHR) Indicator Framework; Section 2.3 provides details of the HRMF Specialist Consultation; Section 2.4 sets out the Indicator Framework selection criteria adopted in the HRMF.

2.1
• • • •

How has the HRMF been developed?
a preliminary literature and data review developing a provisional HRMF set of panels based on international good practice (by modifying and orientating the OHCHR panels) ‘road-testing’ and revising the provisional HRMF conceptual grid with the project Advisory Group developing a ‘long-list’ of human rights indicators based on the literature and data review including sources such as: – OHCHR good practice indicators – United Nations General Comments – the Equality Measurement Framework (EMF) – the Children’s Measurement Framework (CMF)

Developing and agreeing the HRMF has been a multi-stage process which involved:

• •

developing a provisional short-list of ‘spotlight’ indicators based on the long-list (by applying the provisional project ‘selection criteria’ below) specialist consultation with human rights stakeholders and subject specialists aiming to reach maximum possible agreement on the HRMF conceptual grid and indicator set (including one-day events, web consultation and one-to-one meetings with specific organisations) refinement of a set of indicator selection criteria based on discussions and feedback from the Specialist Consultation, the Advisory Group and the Project Management Group revising the panels and short-list of spotlight indicators in the light of comments, feedback and recommendations from participants in the Specialist Consultation and the project selection criteria developing an evidence base under each right by ‘populating’ the HRMF with the agreed indicators and measures using administrative, social survey and other data securing necessary agreements with data providers and commissioners. 13

• •

Research framework and methodology

The development and agreement of the HRMF panels and the associated set of indicators has been an iterative process, reflecting these discrete research phases. After initial desk research, the provisional HRMF panels were revised in line with comments from the Project Management Group and subjected to a road-testing exercise with the Advisory Group. A provisional short-list of indicators was developed and the provisional panels/ short-list of indicators were subjected to scrutiny through a specialist consultation exercise, to establish: • the extent to which the: – panels had been modified and refined correctly – correct short-list of indicators had been identified, and • whether supplementary or alternative indicators were necessary.

As discussed below, the consultation process involved three main one-day events (one each in England, Scotland and Wales), a 12-week web consultation and a series of indepth one-to-one meetings and discussions. The panels have also been presented at two events convened by the Ministry of Justice (MoJ), the Human Rights Senior Champions (SCs), and the Regulators, Inspectorates and Ombudsmen (RIO) Forum on Human Rights, with opportunities for discussion and feedback. The consultation feedback was analysed and the panels and indicators were revised for a final time and evidence using the indicator set for each panel was produced.

2.2

The OHCHR Indicators Framework

An illustration of one of the OHCHR panels (for the right to life) is given below in Figure 3. The ‘attributes’ of the right to life (arbitrary deprivation of life, disappearances of individuals, health and nutrition and death penalty) are specified in the columns of the panel. The different types of indicators covered in the OHCHR system (ie structural, process and outcome indicators) are specified in the rows. The principle of ‘systematic disaggregation’ is specified in the final row of the panel, reflecting the emphasis of the OHCHR on systematic disaggregation and separate identification of the position of vulnerable/at risk groups. Illustrative indicators are included within the panel cells.

14

Figure 3: OHCHR panels: Example of the right to life2
Disappearances of individuals Health and nutrition Death penalty

Arbitrary deprivation of life

Structural Indicators

• International human rights treaties, relevant to the right to life, ratified by the State • Date of entry into force and coverage of the right to life in the Constitution or other forms of superior law • Date of entry into force and coverage of domestic laws for implementing the right to life • Date of entry into force and coverage of habeas corpus provision in the Constitution • Time frame and coverage of national policy on health and nutrition • Number of sub-national administrative entities that have abolished death penalty

• Date of entry into force and coverage of formal procedure governing inspection of police cells, detention centres and prisons by independent inspection agencies

Process Indicators

• Proportion of received complaints on the right to life investigated and adjudicated by the national human rights institution, human rights ombudsperson or other mechanisms and the proportion of these responded to effectively by the government • Proportion of communications sent by the UN Working Group on Enforced or Involuntary Disappearances responded to effectively by the government in the reporting period • Reported cases of disappearances (e.g. as reported to the UN Working Group on Enforced or Involuntary Disappearances) • Proportion of population using • Number of convicted persons on death row in an improved drinking water the reporting period source • Proportionof births attended by skilled health personnel

15

• Proportion of communications sent by the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions responded to effectively by the government in the reporting period

Outcome Indicators

• Number of homicides and life threatening crimes, per 100,000 population • Number of deaths in custody per 1,000 detained or imprisoned persons, by cause of death (e.g. illness, suicide, homicide)

• Infant mortality rates • life expectancy at birth • Prevalence of and death rates associated with communicable and non-communicable diseases (e.g. HIV/AIDS, malaria* and tuberculosis*)

• Proportion of death penalty sentences commuted • Number of executions (under death penalty)

Research framework and methodology

All indicators should be disaggregated by prohibited grounds of discrimination, as applicable and reflected in metasheets

Research framework and methodology

It was decided at the outset of the current project that whilst the HRMF would be conceptually anchored in the OHCHR panels,a number of modifications and refinements would be necessary in order to ensure adequate ‘contextualisation’ of the OHCHR panels for England, Scotland and Wales. These panels and ‘attributes’ (column headings) as well as the indicators have been modified and refined in order to achieve this. For example, some of the attributes highlighted in the OHCHR panels (for example, disappearances of individuals or the death penalty under the right to life) are not key human rights concerns in England, Scotland and Wales. In addition, it was felt that there was a need to put more emphasis on the standards set out in the Human Rights Act (HRA)1998. The HRA provides a clear basis for the legal enforcement of human rights in the British context and includes explicit provisions under Section 6 for public bodies to comply with human rights. An important priority from the outset was to view the HRA – the legal instrument that individuals can use to enforce their human rights in Britain – as the starting point for the development of the HRMF and to ensure that this priority was reflected in the conceptual framing of the panels and ‘attributes’. A further priority was to give prominence to the role of regulators, inspectorates and ombudsmen in implementing and promoting human rights (building on the recommendations of the Equality and Human Rights Commission’s(‘the Commission’)Human Rights Inquiry) and on the incorporation of human rights standards into public policy. It is important to understand that in making these modifications and refinements our motivation has been to maximise the potential of the HRMF as a practical tool for promoting and monitoring the implementation of human rights in England, Scotland and Wales. For example, it is envisaged that the Scottish Human Rights Commission(SHRC) and the Commission, as human rights institutions, have an over-arching role in bringing together information that flows to them from other regulators, inspectorates and ombudsmen, and in identifying and reporting on any human rights issues that emerge. Hence, in England, information about the position of individuals and groups that is of potential relevance to the right to life flows from bodies such as the Independent Police Complaints Commission (IPCC), HM Inspectorate of Prisons, the Prisons and Probation Ombudsman and the Care Quality Commission. The Commission is in a position to take an overview of the findings that emerge from these regulatory, inspection and complaintshandling processes and to identify and report on human rights concerns (including crosscutting human rights concerns that relate to the work of more than one of these bodies and processes). With this function in mind, an important priority in developing the HRMF has been to identify the monitoring systems that are used by regulators, inspectorates and ombudsmen and relate (or ‘map’) these to the HRMF. For example, the IPCC has an established process and procedure for monitoring deaths within custody, and the data arising from this established system is included within the HRMF evidence base on the right to life.

16

Research framework and methodology

Figure 4: Model of human rights regulation and inspection

EHRC
HRMF Brings together cross-cutting concerns under each Article, e.g. concerns relating to Article 2, right to life, in police and criminal justice system context, health and social care context, educational context, etc

Regulators, Inspectors and Ombudsman Builds on the ways in which human rights are being integrated into regulation, audit and inspection processes

IPCC

HM Inspectorate of Prisons

Prisons and Probation Ombudsmen

Care Quality Commission (MOU)

Etc

Another priority has been to ensure that the HRMF covers qualitative as well as quantitative indicators, and non-official as well as official data sources. A range of qualitative indicators (for example, case law indicators, indicators capturing and communicating the concerns expressed by human rights monitoring bodies and in investigations, inquiries and reviews, as well as information gathered by regulators, inspectorates and ombudsmen) were suggested by participants in the HRMF consultation. Participants also suggested that it was critical that independent human rights monitoring exercises do not only rely on official data sources and that it would be important to include indicators that draw on information generated by civil society, for example, by NonGovernment Organisations (NGOs) and through media reporting. The HRMF panels and indicator set have been developed and agreed through a combined process of research and consultation with subject experts and stakeholders, as well as extensive discussion with an advisory group and a project management group. This approach, we believe, has resulted in a high quality and analytically focused output that builds on recognised international best practice while fully reflecting and incorporating specific human rights issues and concerns in England, Scotland and Wales.

17

Research framework and methodology

The OHCHR has also provided support and input to the HRMF. At the end of the project the OHCHR expressed the view that the indicators identified on the eight universal human rights in the HRMF and their contextualisation for England, Scotland and Wales have highlighted the relevance and applicability of a common approach on statistical and other indicators that is consistent with OHCHR’s conceptual and methodological framework on indicators for human rights (HRI/MC/2008/3), in particular by seeking to capture linkages between human rights commitments, efforts and results through a configuration of structural, process and outcome indicators (OHCHR, 2011).

2.3

The HRMF Specialist Consultation

In order to ‘populate’ the HRMF a specialist consultation was undertaken from mid-June to mid-September 2010. The principal aim of the Specialist Consultation was to reach maximum possible agreement on a shortlist of ‘spotlight’ indicators relevant for England, Scotland and Wales. In addition, feedback and comments on the panels and attributes; the development of a list of vulnerable groups; the types of data that are admissible (official, allegations-based, etc.); and other concerns and issues raised by participants are recorded and synthesised in this chapter.

The Specialist Consultation: Scope, process and participation
The following remit was specified for the Specialist Consultation: • The primary aim was to develop and agree a set of indicators that put the ‘spotlight’ on key human rights concerns. Broader comments (such as comments on the project aims and objectives, on the panels, and on the use of language and terminology) were also invited. It covered three types of indicators (structural indicators, process indicators and outcome indicators, based on the OHCHR model). It covered both quantitative indicators ( drawing on social surveys and administrative data sources) and qualitative indicators (covering case law, treaty ratifications, outcomes of investigations, data collected by NGOs, allegations of violations, etc.). It covered both official sources and non-official sources. It was envisaged that whilst some data sources would be covered by the National Statistical Standard system of quality control, other types and quality of data are also admissible). Its geographical scope covered Great Britain, England, Scotland and Wales. It covered children and adults. It covered stakeholders and subject specialists (ie it was not a full-scale public consultation). The emphasis would be on identifying and using existing data sources, although identifying data gaps was also an important concern.

• •

• • • •

18

Research framework and methodology

Three all-day consultation events were held, one each in England, Scotland and Wales. The morning sessions included two presentations, the first of which introduced the consultation and consultation materials while the second provided an overview of the HRMF and the right to life panel. Break-out groups operated during the second half of the day, which ended in a plenary session where groups provided comments, feedback and recommendations from their discussions on the panels. Full details of participation in the Specialist Consultation are provided in Appendix 3. Details of comments, feedback and recommendations from the consultation events, along with feedback from the web consultation and in-depth one-to-one meetings, are provided in Appendix 4.

What did we ask participants?
Participants were invited to review the panels and input comments and feedback; to answer the consultation questions; and/or to provide us with information on related work. Participants were invited to respond to the consultation questions as well as for their general views, recommendations and reactions to the project. Figure 5: Details of the HRMF Specialist Consultation questions Definition of a human rights indicator • We are proposing the following definition of a human rights indicator for the purposes of the project: [H]uman rights indicators are specific information on the state of an event, activity or an outcome that can be related to human rights norms and standards; that address and reflect the human rights concerns and principles; and that are used to assess and monitor promotion and protection of human rights. (UNOHCHR, 2006b). Do you have any feedback or comments on this definition?

Identification of good practice examples • • • • Are you aware of agreed lists of human rights indicators that are being used for monitoring purposes in England, Scotland or Wales? Are you aware of good practice use of human rights indicators within official statistical monitoring systems? Do you have examples of human rights indicators from your everyday work/ organisation on which we could draw? Do you have any further suggestions or comments regarding statistical indicators that we could include in the short-lists of indicators in each domain, that are particularly important from a human rights perspective? Do you have an agreed definition of a human rights indicator that you use in your everyday work/organisation? Continued

19

Research framework and methodology

Figure 5: Details of the HRMF Specialist Consultation questions (continued) Overall consultation questions • • • Overall, do you think that the panels will make a useful contribution to human rights monitoring in England, Scotland and Wales? Do you think that dividing the panels by structure, process and outcome indicators is useful? Overall, are there any comments you would like to make about the focus, language or design of the panels (for example, coverage of the Human Rights Act, the international human rights framework, the rights covered in the first round of panel development, etc.)? Do you think we have got the language right for describing the HRMF? Indicators and measures for each panel Do you have any suggestions about indicators or measures that we could draw on for this panel? Do you have any suggestions about data sources that we could draw on for this panel? Is your organisation working with any indicators or measures that are relevant to the development of this panel? Are there any indicators or measures under this panel that you would remove? Do you have any comments about the way in which the design of this panel could be improved? Are you aware of any matching Scottish and Welsh sources that we could draw on for this panel?

• • • • • • • •

Vulnerable groups • We would like to define a list of ‘vulnerable groups’ to use with the HRMF project. Do you have any suggestions for who should be included in a list of vulnerable groups for children and adults?

Other suggestions and comments • • Do you have any other overall comments about the project, the panels or human rights monitoring that you would like us to record? Do you have any suggestions or comments about additional ways in which we could draw on human rights principles and standards in taking the development of the HRMF forward?

20

Research framework and methodology

What were the outcomes of the Specialist Consultation?
The feedback from the HRMF Specialist Consultation was used by the research team to further develop the HRMF panels and to develop a revised list of indicators to use with the HRMF. Full details of the feedback from the HRMF Specialist Consultation are provided in Appendix 4. A number of key strategic issues and dilemmas that fundamentally affect the general positioning of the HRMF were discussed in the Specialist Consultation. The first issue concerns the use of ‘legalistic terminology’ versus the use of ‘plain English terminology’ and ‘accessible terminology’. One argument was that the HRMF is about monitoring the implementation of legal duties and that the language and terminology adopted should be based on legal definitions as much as possible. Another view was that the use of legal definitions and terminology should be avoided and that the need to use plain English and/ or accessible language should prevail. We agree with many stakeholders that accessible and plain English versions of the Framework are developed so that the system can be used by a range of individuals and groups. A related but distinct concern was whether the HRMF should be strictly anchored in/ driven by case law versus a broader approach grounded in human rights ‘values’ such as freedom, respect, freedom equality, dignity and autonomy. The approach we have adopted here is to ensure that the panels are explicitly grounded in the legal framework, whilst formulating some indicators and measures in terms of human rights values. The legislative background underpinning values such as ‘autonomy’ and ‘dignity and respect’ are also emphasised. A third key issue relates to the question of whether the focus of the HRMF should be on domestic law and the HRA, or the international human rights framework. Some participants argued that the focus of the HRMF should be the HRA which is legally binding and enforceable in courts within the UK. Another view was that the starting point should be international human rights law, with its emphasis on economic, social and cultural rights, as well as civil and political rights. The approach we have adopted in the HRMF is to try to strike a balance between these two viewpoints, by adopting the HRA (with five of the HRMF panels having an explicit basis in domestic law) whilst also developing three panels that draw on the international human rights framework (the International Covenant on Economic, Social and Cultural Rights (ICESCR), which has not been incorporated into UK domestic law, but which the UK is signed up to). We have also taken account of standard-setting by international human rights bodies in developing the HRMF indicator set. For example, General Comment 6 issued by the UN Human Rights Committee suggests that variations in infant mortality and life expectancy between individuals and groups can engage the right to life (UN Human Rights Committee, 1982). We have therefore included general population statistics on infant mortality and life expectancy (along with other general population statistics on mortality) under the Right to Life panel.

21

Research framework and methodology

Fourth, a related issue was whether the HRMF should focus exclusively on developing indicators of ‘minimal compliance’ and violations or whether it should also be concerned with proactive public policy and the emergence of a human rights ‘culture’. Our approach here has been to capture and incorporate both concerns. Some of the indicators in the HRMF system relate to minimal compliance and violations whilst others provide broader information about the emergence of a so-called human rights culture (for example, as evidenced by public attitudes and understanding of human rights and their self-reported experiences). Fifth, there was much discussion of the need for an expansion of the qualitative indicators within the HRMF in the Specialist Consultation. At the consultation stage, whilst we included some qualitative human rights indicators in the draft HRMF panels, the vast majority of indicators in the system were of a quantitative nature. Many participants called for a significant expansion of the qualitative indicators in the overall indicator set to include not only case law but also the findings of human rights bodies; the findings of inquiries, investigations and reviews; the findings of inspectorates, regulators and ombudsmen; and so forth. A major change in approach resulted from this input and feedback, with a very significant expansion of the qualitative information included within the HRMF at the revision stage. Finally, a number of participants emphasised the importance of including non-official (as well as official) data within the HRMF. It was argued here that a picture of the realisation of human rights in England, Scotland and Wales should not be reliant on the ‘state’s version of events’ and official sources alone, and that non-official sources including press and media, advocacy and NGO data should also play a key role. Again, new indicators were introduced into the HRMF in order to address this recommendation.

2.4

HRMF indicator selection criteria

The selection criteria principles developed for the EMF (set out in Alkire et al., 2009) were modified in line with the requirements of the HRMF and synthesised into a practical and manageable checklist under the headings of admissibility criteria, criteria for selecting individual indicators, criteria that apply to the balance of indicators within each panel, and criteria that apply to the HRMF as a system.

General admissibility criteria
• • • • Indicator types: Both qualitative and quantitative indicators are admissible. Data sources: Both official and non-official data sources are admissible. Structures, process and outcomes: Structural, process and outcome indicators are all admissible. Individual-/institutional level: Admissible indicators can relate to individuals, resources, and other units, such as prisons, hospitals and other institutions.

22

Research framework and methodology

Selection criteria that apply at the HRMF level
Essential: • The starting point for the development of the HRMF panels should be domestic human rights law (ie the HRA) but some indicators within the portfolio as a whole should also reflect and capture the international human rights framework. Indicators should be evenly balanced across panels. The portfolio of indicators as a whole should put the spotlight on the concerns of different individuals and groups (rather than an overemphasis on the concerns of any particular subgroup).

• •

Selection criteria that apply to each panel (panel ‘balancing criteria’)
Essential: • • Within each panel there should be a balance between structural, process and outcome indicators. Within each panel there should be a balance between a case law driven approach (focusing on minimum compliance/‘violations’) and a focus on broader human rights principles/the emergence of a human rights culture. Within each panel there should be a balance between indicators that capture and reflect negative duties and those that capture and reflect positive duties.

Desirable: • Within each panel there should be an emphasis on objective measures. However, it is also desirable that subjective measures (for example, perceptions of discrimination, self-reported treatment with dignity and respect, ‘voiced’ based indicators and attitudinal indicators) are included within the indicator dashboard for each right.

Selection criteria that apply to single indicators
Essential: • • An indicator is valid if it contributes to an information base for evaluating the human rights position of individuals and groups in England, Scotland and/or Wales. An indicator is important and represents a priority for inclusion in the HRMF if it captures and reflects concerns raised through the legal process, by human rights monitoring bodies (for example, the Joint Committee on Human Rights, United Nations monitoring committees, or as raised in United Nations General Comments), in independent investigations and inquiries, by relevant inspectorates/audit bodies, or by civil society, in media reports, etc. An indicator is legitimate if maximum possible agreement has been achieved in relation to its validity and importance within the overall portfolio by relevant stakeholders and subject experts, through the HRMF Specialist Consultation process. An indicator comes from a credible and reliable source. 23

Research framework and methodology

Desirable: • Disaggregation. The indicator is disaggregated by population subgroups and the non-private household population and vulnerable/at risk groups can be separately identified and reported on. Frequency. The indicator is collected reasonably frequently (at least every three years) for monitoring purposes. Time series. A time series that provides a basis for comparison over time and consistent evaluation of trends is available. International comparability. The indicator provides a basis for comparison, either regionally or internationally. Robustness. Standard statistical requirements of accuracy, reliability and validity, as well as the criterion of non-ambiguity, are desirable but not essential.3

• • • •

Other considerations
• • Emphasis on existing sources. Existing social survey sources and administrative sources should be used wherever possible. Cost minimisation. New data collection should only be proposed in cases where reasonably close alternatives or suitable proxy indicators are not available and the cost implications of data requests should be taken into account. EMF indicators should be used where they are ‘fit for purpose’. Indicators or measures already being used in other Commission Frameworks (the EMF, Children’s Measurement Framework or Good Relations Framework) should be used where they are fit for purpose. For example, if an indicator of domestic violence has been included in the EMF and is defined and specified in a way that is useful for the HRMF, it can reasonably be included in the HRMF. This methodology is intended to maximise overlap between the frameworks in order to capitalise on relevant previous and ongoing technical work on indicators; to build on existing agreements with data commissioners and providers; and to minimise cost burdens.

Chapter notes
2 3

This figure provides extracts from the OHCHR panel on the right to life. For the full version see OHCHR (2008). For the full panel see Chapter 4. ‘Robustness’ was considered an ‘essential’ characteristic for the purposes of the EMF consultation. This approach was not adopted for the HRMF consultation since it was viewed as overly-restrictive – for example, it could potentially rule out relevant sources of data from non-official sources.

24

Part II
Guidance on using and interpreting the Human Rights Measurement Framework

The underlying legal framework: guidance and clarification

3

The underlying legal framework: guidance and clarification

This chapter is essential reading prior to using the Human Rights Measurement Framework (HMRF) and interpreting the HRMF evidence base as it provides guidance on the legal underpinnings of the HRMF project. The chapter is organised as follows: Section 3.1 provides background information on human rights that have explicit legal protection in UK domestic law (the Human Rights Act 1998 (HRA)). Section 3.2 provides an illustrative analysis of selected articles of the HRA. Section 3.3 provides information about additional human rights that are protected and promoted in other international treaties and instruments that the UK has signed and ratified (such as the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Convention on the Rights of the Child (CRC)).

3.1

The Human Rights Act 1998

The first five panels of the HRMF are based on human rights that have an explicit basis in domestic law, through the HRA. These are the panels covering: • • • • • The Right to Life (HRA, Article 2) The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment (HRA, Article 3) The Right to Liberty and Security of the Person (HRA, Article 5) The Right to a Fair Trial (HRA, Article 6) The Right to Respect for Private and Family Life (HRA, Article 8).

The HRA came into force throughout the UK on 2 October 2000. It makes most of the makes most of the human rights set out in the European Convention on Human Rights (‘the Convention’) enforceable in domestic law4 and, in Section 6, places a legal duty on all public authorities to act in a way which is not incompatible with Convention rights. A list of the key articles in the HRA is provided in Figure 6. Prior to the HRA people in the UK who sought an effective remedy for breaches of their Convention rights had to seek redress from the European Court of Human Rights (ECtHR) rather than being able to directly access their rights in UK courts. Following the HRA, any person, corporate body, Non-Government Organisation (NGO), or group of individuals who believe that their rights have been infringed by a public authority can raise this in any existing procedure before a court or tribunal (criminal or civil). They can, alternatively, start proceedings under the HRA itself. It is not necessary to be a UK national in order to make a claim under the Convention and the remedies available for breach of Convention rights are wide and include damages. The time limit for bringing proceedings under the HRA is one year from the date of the act complained of, although this may be extended in some circumstances.

26

The underlying legal framework: guidance and clarification

The domestic courts must take into account the case law of the ECtHR. They are not, however, bound by it. Any domestic court that ignores or declines to follow clear Strasbourg case law runs the risk of being challenged in the ECtHR. Therefore, in practice, the UK courts cannot develop standards that are below the existing human rights standards established by the ECtHR but there is nothing stopping them being more generous in rights terms than the ECtHR and developing its own case law under the HRA. The Convention represents a floor rather than a ceiling for the protection of human rights. For all new legislation, the minister responsible for the bill must make a statement confirming that it complies with the Convention (or explaining why it does not). The courts must interpret legislation in a way that is compatible with the Convention where this is possible. However, they cannot overturn acts of parliament. Where it is not possible to interpret legislation so as to be compatible with the Convention, the high court and more senior courts will issue a declaration of incompatibility. The courts may strike down most subordinate or secondary legislation when not compatible with the Convention. Figure 6: The Human Rights Act 1998 • • • • • • • • • The right to life (Article 2). The right not to be subjected to torture, inhuman or degrading treatment or punishment (Article 3). The right to be free from slavery and forced labour (Article 4). The right to liberty (Article 5). The right to a fair and public trial or hearing (Article 6). The right not to be subject to arbitrary or retrospective criminal penalties (Article 7). The right to respect for private and family life, home and correspondence (Article 8). The right to freedom of thought, conscience and religion (Article 9). The right to freedom of expression and to receive and impart information (Article 10). Continued

27

The underlying legal framework: guidance and clarification

Figure 6: The Human Rights Act 1998 (continued) • • • • • • • The right to assembly and to associate with others, including in organisations like trade unions (Article 11). The right to marry and start a family (Article 12). The right not to be discriminated against (Article 14). The right to peaceful enjoyment of possessions and property (Protocol 1, Article 1). The right to education, including respect for the religious and philosophical convictions of parents (Protocol 1, Article 2). The requirement to hold free and fair elections (Protocol 1, Article 3) Abolition of the death penalty (Protocol 6, Article 1).

There is no entitlement to abuse rights to destroy, or unnecessarily limit the rights of others (Article 17). Note: Rights are referred to by reference to the Articles in the European Convention on Human Rights. Source: EHRC (2009: 23).

European Convention on Human Rights
At the regional level, the UK signed up to the European Convention on Human Rights in 1951. The Convention, which UK lawyers and civil servants helped to draft, was agreed after the Second World War by the Council of Europe.5 The Convention is enforced by the ECtHR based in Strasbourg. The Convention is divided into ‘articles’, with Articles 2 to 14 setting out the human rights that are protected by the Convention. The Convention mainly deals with civil and political rights, although it should be noted that the interpretation of the rights reflects societal changes (see below regarding ‘living instrument’ aspect of the Convention). There are also supplementary protocols that have been agreed by the Council of Europe which states can sign up to. The UK is a party to a number of the protocols that guarantee additional rights (these include Protocols 1, 3 and 6).

Positive obligations
The Convention is continually being interpreted and developed; it is a set of standards which evolve with society, rather than setting out fixed standards which reflect the particular time at which they were enacted.6 Therefore, the Convention can sometimes impose a positive obligation on the state to protect rights, although this may not be explicitly stated in the text, such positive obligations are considered necessary for the effective operation of the right. An example of a positive obligation is the duty to take reasonable steps to protect the right to life, including by putting in place a legal framework

28

The underlying legal framework: guidance and clarification

that protects Convention rights and in certain circumstances, take further steps to ensure those rights are effectively protected. As will be discussed below, the courts have established that such positive obligations exist, for example, in relation to Article 3 (the prohibition of torture), Article 2 (the right to life) and Article 8 (the right to respect for private and family life). Analysing the jurisprudence of the ECtHR, positive obligations may include a duty to: • • • • provide a reasonable level of resources to individuals in order to protect a Convention right prevent breaches, this may mean intervening to protect one individual from the actions of another provide information to those whose Convention rights are at risk and respond to breaches of Convention rights.

The duties of public authorities
Under Section 6 of the HRA all public authorities must act in a way that is compatible with the ECHR. ‘Public authority’ is not properly defined in the HRA, but parliament made clear that it was to be broadly interpreted. It includes all central and local government agencies, and includes hospitals, the prison services, and police and social services departments. It also includes courts and tribunals. The notion of public authority was also intended by parliament to extend to private bodies such as companies or charities to the extent that they are carrying out a public function, for example, a private hospital or a care home acting under contract with a local authority. Private individuals, where they are not carrying out a public function, have no responsibility to protect Convention rights under the HRA. However, there is a positive obligation on public authorities to ensure that these rights are protected.

The devolved context
The HRA covers the UK, so human rights in Scotland and Wales are protected and promoted by it. In addition to this, the Scotland Act 1998 is an important aspect of legal protection of human rights in Scotland. Prior to the entry into force of the HRA in October 2000, human rights cases in Scotland were brought in respect of the executive acts from 20 May 1999 and in respect of Acts of the Scottish Parliament from 1 July 1999 (Wilson, 2010).

29

The underlying legal framework: guidance and clarification

3.2

Overview of selected articles of the HRA7

This section provides an overview of Articles 2, 3 and 8 of the HRA and clarifies the nature and scope of the legal duties that flow from these rights.

Article 2
‘Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. The deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: 1) 2) 3) in defence of any person from unlawful violence in order to effect a lawful arrest or to prevent the escape of a person lawfully detained in action lawfully taken for the purpose of quelling a riot or insurrection.’

The right to life is considered to be fundamental.8 The ECtHR refers to the substantive and the procedural aspects of Article 2. The substantive aspect of Article 2 deals with the duties on states to secure life, and in turn entails two aspects: • • a negative duty to refrain from arbitrarily depriving anyone of their life except in the limited circumstances prescribed a positive duty under certain circumstances to take measures to ensure the protection of life.

The procedural aspect refers to the requirement that states have in place adequate legal and administrative systems to investigate, prosecute and punish those who take life intentionally. This procedural aspect also includes the duty on the state to provide a full and effective investigation into deaths which are within the ambit of Article 2.9 The right to life could be engaged where loss of life is caused or risked by the actions of state officials. If a state official (for example, a police officer, member of the armed forces or prison officer) intentionally takes the life of another person, this will always engage their right to life and any death caused by an agent of the state using force beyond that which is absolutely necessary under the provisions set out in Article 2.2 will amount to a violation. For example, in the McCann case, the ECtHR established that the use of force must be no more than what is absolutely necessary to defend persons from unlawful violence. Article 2 also imposes a requirement for the state to take appropriate measures to safeguard life under certain circumstances. This includes a positive duty to provide a legal regime that effectively protects life and positive duties to take reasonable measures to protect life from certain identifiable threats. For example, Article 2 can impose positive obligations on public authorities to take preventive measures to protect an individual whose life is at risk from the criminal acts of another individual if the authorities have or ought to have knowledge of this risk.10 Public authorities are also under a positive duty to implement measures to protect life where there is a known risk in the detention context 30

The underlying legal framework: guidance and clarification

(including where there is a risk from suicide) and to implement protective and safeguarding measures where there is a known risk to life in the context of mental health patients who are detained. The procedural aspect of Article 2 requires effective investigations into the loss of life. Domestic law must, therefore, properly prohibit and punish killings, and unlawful killing must be subject to criminal sanctions. All deaths must be properly investigated and the law must be effectively implemented. Other issues that could potentially engage Article 2 include inadequate protective regulation and, in the healthcare context, negligent healthcare provision and under certain circumstances, the withdrawal of life-saving treatment.

Article 3
‘No one should be subjected to torture or to inhuman or degrading treatment or punishment.’ This is an absolute right which means that the state can never justify interference with this right, not even in the case of national emergency, war or similar. The UK courts have established that dignity is at the core of the rights protected by Article 3 and that dignity is a ‘core value of our society’.11 Conduct has to be very serious for it to breach Article 3 and the treatment must attain a ‘minimum level of severity’.12 Whether this threshold is met will depend on the circumstances of the case, such as the duration of the treatment, its physical or mental effects and in some cases the sex, age and state of health of the victim.13 Article 3 covers three kinds of treatment: torture, inhuman treatment or punishment, and degrading treatment or punishment. Torture is the most serious kind of ill treatment. The UN Convention Against Torture (CAT) defines it as having three elements: • • • severe pain or suffering which can be either mental or physical, or both intentionally inflicted for the purposes of obtaining information, for punishment or to intimidate or discriminate against the person, and infliction by someone acting in an official capacity without the consent of the victim.

Inhuman treatment is less severe than torture and has been described as causing severe suffering, whether mental or physical. It could include serious physical assault or prolonged sexual and emotional abuse, particularly in relation to children. Hooding, wall standing, subjection to noise, sleep deprivation and deprivation of food and drink have been found to be inhuman treatment.14 Degrading treatment is conduct that grossly humiliates. It is designed to arouse in the victim feelings of fear, anguish, and inferiority capable of humiliating them and possibly breaking their physical or moral resistance.15 Discrimination based on race may in certain circumstances amount to degrading treatment. 31

The underlying legal framework: guidance and clarification

Examples where Article 3 might be engaged include the general conditions of detention, including in the context of prison and juvenile custody; the general conditions of hospitals, residential homes and/or care homes and other institutions16; and the standard of domiciliary care provision. In addition to the duty on the state not to subject individuals to torture, or inhuman or degrading treatment, Article 3 also imposes some positive obligations to prevent individuals from being subjected to such treatment. Under Article 3, where the state knew or ought to have known about the risk of vulnerable people suffering treatment covered by Article 3 at the hands of other private individuals, there is a positive obligation to act, for example, in cases of child abuse.17 Positive duties also prevent the removal of foreign nationals to a country where they are at risk of suffering Article 3 type treatment18 and the destitution of asylum seekers in relation to the level/type/lack of support provided by the state.19

Article 8
‘Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.’ Article 8 protects four discrete interests: family life, private life, home and correspondence. It is a qualified right, which means it can be restricted in accordance with the limitation clause set out in the second paragraph of the text. The limitation takes account of the general public interest. To establish a breach of Article 8 it is necessary to show three elements: • • • that there is private life, family life, home or correspondence being enjoyed or potentially being enjoyed but for the interference that there is an interference with the enjoyment of these rights, and that this interference is not in accordance with the law, necessary or proportionate.

Private life has been interpreted by the ECtHR as a person’s ‘physical and psychological integrity’.20 It includes at least two elements: 1) the notion of an ‘inner circle’ in which the individual may live their own personal life as they choose; and 2) the right to establish and develop relationships with other human beings.21 The ECtHR has stressed that ‘the concept of ‘private life’ is broad and not susceptible to exhaustive definition’.22

32

The underlying legal framework: guidance and clarification

Examples of issues that fall within this concept include compulsory medical treatment23 or forcible restraint; personal autonomy and a person’s ability to establish and develop relationships with other people24; sexual life and same sex relationships25; personal identity, including name26 and gender27; the holding, use or disclosure of personal information, which includes access to information held by public authorities28 and retention of information and samples by the state, for example, policies governing the retention of DNA samples by criminal justice agencies29; and stop and search police powers.30 Family life is interpreted broadly, in a way which does not allow legally recognised relationships to prevail over ‘biological and social reality’31. Family life, therefore, includes marriage and other de facto relationships and is not confined to blood relatives, rather it is a ‘question of fact’ depending on the real existence of close personal ties.32 Examples of issues that fall within the ambit of family life include being able to develop family relationships and, where a family is split up, the right to ongoing contact subject to the child’s interest33; the state’s responsibility to protect children; and in deportation cases where a person has established or wishes to establish close family ties34, although the UK courts have been reluctant to find that deportation is a violation of Article 8. Home: The ECtHR has held that there is no abstract definition of home. What is important is the intention and attitude of the person to consider the place identified as the home as the place where they live or are settled or intend such.35 The ECtHR has frequently established that the right protected by Article 8 is the right to respect for one’s existing home and not a right to be provided with housing accommodation or better accommodation than is provided. Examples of issues that fall within the ambit of home include Gypsy and Traveller caravan sites36 and closures of care homes or hospital wards.37 Correspondence has been interpreted widely to cover personal communications such as letters and telephone calls.38

Positive obligations
Article 8 includes positive obligations to act in order to protect individuals’ rights as well as negative obligations which require the state to refrain from taking certain action which interferes with the rights protected under Article 8.39 Examples where positive obligations have been imposed include: • Ensuring there are adequate legal remedies, including addressing barriers to access justice: X and Y v the Netherlands no. 8978/80 [1985] ECHR involved a failure by the state to prosecute a rape case. The law required the victim to make a complaint but in this case the victim was unable to do so because of her mental disability. The ECtHR, finding a violation of Article 8, established that states had a positive obligation to prosecute the perpetrator in cases involving abuse and the availability of civil remedies (for example, damages) was not sufficient to protect Article 8 rights.

33

The underlying legal framework: guidance and clarification

Providing support to disabled parents in order to maintain their right to a family life: Kutzner v Germany no. 46544/99 [2002] ECHR – the applicants’ two young children had been removed from their care because it was alleged that the parents’ ‘impaired mental development’ rendered them incapable of bringing up their children. There was no suggestion of any neglect or ill treatment. The children were separated from each other and eventually fostered. For the first six months they had no contact with their parents and thereafter it was restricted to one hour on a monthly basis. The ECtHR found a violation of the right to a family life, referring to the state’s positive obligations to take measures to facilitate the family’s reunion as soon as possible. These measures also included the provision of additional educational and other measures to support the family. Providing care arrangements for older and disabled people that respect Article 8. For example, in R (Bernard) v London Borough of Enfield [2002] EWHC 2287 (Admin) the UK courts held that the borough council had a duty to provide assistance to a disabled woman so that she could maintain basic physical and psychological integrity.

3.3

Other human rights treaties and instruments covered by the HRMF

In addition to the HRA, the HRMF covers other regional and international human rights treaties and instruments that the UK has signed and ratified. In using and interpreting the HRMF, it is particularly important to make an appropriate distinction between the legal status of human rights that are codified in the HRA and that have an explicit basis in domestic law (and which can be directly enforced in UK courts) and regional and international treaties that do not have an explicit basis in domestic law. Further details of these are provided below and in Appendix 1.

International human rights treaties
The UK has also signed and ratified a number of international human rights treaties such as the International Covenant on Civil and Political Rights (ICCPR), the ICESCR and the CRC. International human rights treaties that are not incorporated into domestic law cannot be directly enforced through the UK courts. As highlighted above, it is therefore critical, in using and interpreting the HRMF, to maintain an appropriate distinction between the legal status of those human rights that have an explicit basis in domestic law through the HRA, and human rights that are incorporated into international treaties and cannot be directly enforced by UK courts. Nevertheless, by signing and ratifying international human rights treaties, the UK has indicated its commitment to fulfil the obligations that flow from these instruments under international law. The fulfilment of international treaty obligations in the field of human rights is monitored by international committees such as the UN Human Rights Committee, the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) and the United Nations Committee on the Rights of the Child (UNCRC). These monitoring committees undertake standard setting in relation to their remits and evaluate countries’ performance on a periodic basis. The UK submits periodic reports to the monitoring committee and the committee’s evaluation of the UK’s performance in relation to the fulfilment of its obligations is set out in ‘concluding observations’. Some of the treaties are supplemented by optional protocols dealing with specific concerns which states can elect to sign up to. For example, the UK is a party to 34

The underlying legal framework: guidance and clarification

the individual complaints procedure under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and has also signed the optional protocol to the Convention on the Rights of People with Disabilities. Figures 7 and 8 provide further details of the core international human rights treaties that the UK is (and is not) signed up to and the bodies that monitor the UK’s performance in complying with the obligations that flow from these treaties. Additional information is also provided in Appendix 1. Figure 7: Core international human rights treaties
ICERD ICCPR ICESCR CEDAW CAT CRC ICRMW Date International Convention on the Elimination of All 21 December 1965 Forms of Racial Discrimination International Covenant on Civil and Political 16 December 1966 Rights International Covenant on Economic, Social and 16 December 1966 Cultural Rights Convention on the Elimination of All Forms of 18 December 1979 Discrimination against Women Convention against Torture and Other Cruel, 10 December 1984 Inhuman or Degrading Treatment or Punishment Convention on the Rights of the Child 20 November 1989 International Convention on the Protection of the 18 December 1990 Rights of All Migrant Workers and Members of Their Families International Convention for the Protection of All Persons from Enforced Disappearance Convention on the Rights of Persons with Disabilities Optional Protocol of the Covenant on Economic, Social and Cultural Rights Optional Protocol to the International Covenant on Civil and Political Rights Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty Optional Protocol to the Convention on the Elimination of Discrimination against Women Optional protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict Optional protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment Optional Protocol to the Convention on the Rights of Persons with Disabilities 20 December 2006 13 December 2006 10 December 2008 16 December 1966 15 December 1989 CRPD CESCR HRC HRC Monitoring body CERD CCPR CESCR CEDAW CAT CRC CMW

CRPD ICESCR-OP ICCPR-OP1 ICCPR-OP2

OP-CEDAW OP-CRC-AC

10 December 1999 25 May 2000

CEDAW CRC

OP-CRC-SC

25 May 2000

CRC

OP-CAT

18 December 2002

CAT

OP-CRPD

12 December 2006

CRPD

35

The underlying legal framework: guidance and clarification

Figure 8: UN human rights treaties to which the UK is a party40
Treaty CERD CCPR CERD Article 14 Optional Protocol Second Protocol ICESCR Optional Protocol CAT CAT Article 22 OPCAT CEDAW CEDAW Optional Protocol CRC CRC Optional Protocol on Armed Conflict CMW CRPD CRPD Optional Protocol CPPED Status of UK (Yes=1, No=0) 1 0 1 0 1 1 0 1 0 1 1 1 1 1 0 1 1 0

Notes: The Convention on the Rights of Persons with Disabilities and its Protocol entered into force on 3 May 2008. The Convention for the Protection of All Persons from Enforced Disappearance is not yet into force.

International Covenant on Economic, Social and Cultural Rights
The HRMF draws in particular on the ICESCR. Three of the HRMF panels cover human rights that are codified in this instrument: • • • The Right to the Highest Standard of Physical and Mental Health (Universal Declaration of Human Rights (UDHR), Article 25; ICESCR, Article 12) The Right to Education (UDHR, Article 26; ICESCR, Articles 13 and 14, CRC, Article 28; HRA, Protocol 1 Article 2)41 The Right to an Adequate Standard of Living (CRC, Article 27; ICESCR, Article 11)

The ICESCR emerged out of the UDHR, alongside a similar treaty for civil and political rights (ICCPR) to imbue the rights established in the UDHR with binding obligations on states. It opened for signatures in 1966, with the two covenants coming into force in 1976. It has been repeatedly recognised and reaffirmed by the UN and its member states that the rights outlined in these two treaties are equal, interdependent and indivisible. The UK was one of the earlier signatories of the ICESCR in 1968 and is obligated to ensure domestic legislation and measures are compatible with its obligations under this treaty. The UK is required to make regular reports to the treaty’s monitoring committee on

36

The underlying legal framework: guidance and clarification

compliance with its obligations and progress towards the realisation of the rights set out in the Covenant. The monitoring committee consists of independent experts, who raise concerns or recommendations to states through the ‘concluding observations’ of their reports on a state’s progress towards the realisation of the rights in the treaty as well as producing ‘general comments’ which explain in greater detail how these rights are to be understood and realised. The optional protocol to this treaty which would allow individuals to make direct complaints to the committee was adopted unanimously by the UN General Assembly in 2008 but has not yet entered into force, and the UK has yet to sign up to it. The UK has bound itself to this treaty under international law – opening itself up to observations and potential criticisms from the monitoring committee, and shadow reports from NGOs or others highlighting areas of concern. However, the ICESCR is not directly incorporated in UK law, meaning that the rights enshrined within the treaty are not directly legally enforceable within UK law.

European regional arrangements
The Council of Europe, based in Strasbourg, has 47 member countries and was founded on 5 May 1949. It seeks to develop common and democratic principles throughout Europe based on the Convention and other reference texts on the protection of individuals. Among the core Council of Europe human rights treaties to which the UK is a party are the: • • • • • • European Convention for the Protection of Human Rights and Fundamental Freedoms European Social Charter European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment Framework Convention for the Protection of National Minorities European Charter for Regional or Minority Languages Council of Europe Convention on Action against Trafficking in Human Beings.

Further details are provided in Appendix 1.

37

The underlying legal framework: guidance and clarification

Chapter notes
4

5

6

7 8

9 10 11 12 13

14 15 16 17 18 19 20 21 22

23 24

25

The rights which are not included are those in Articles 1 and 13 which deal with access to an effective remedy for all those within the country’s jurisdiction. The Government decided not to include these in the HRA as it considered that the HRA itself was the effective remedy accessible to all in the UK. The Council of Europe was set up to safeguard and defend human rights, democracy and the rule of law across its 47 member states. It should not be confused with the European Union, although signing up to the European Convention is a pre-condition of European Union membership. The Council of Europe spans the European continent and includes countries such as Russia, Turkey and the Ukraine. For example, the American Bill of Rights enshrines principles of equality; however, at the time of enactment gender equality had not been recognised or envisaged as part of the text, but subsequent application reflects the changing nature of society. The subsection under Article 2 draws on Gerry (2011). McCann v UK [GC] no. 18984/91 [1995] ECHR, para 147: ‘...as a provision which not only safeguards the right to life but sets out the circumstances when deprivation of life may be justified, Article 2 ranks as one of the most fundamental provisions in the Convention... one which, in peacetime, admits no derogation under Article 15. Together with Article 3, it also enshrines one of the basic values of democratic societies making up the Council of Europe.’ McCann v UK [GC] no. 18984/91 [1995] ECHR. Osman v UK [GC] no. 23452/94 [1998] ECHR. R v East Sussex County Council Ex parte A, B, X and Y [2003] EWHC 167 (Admin) (DRC – Intervener). Ireland v UK no. 5310/71 [1978] ECHR. Costello-Roberts v UK no. 13134/87 [1993] ECHR, para 30: ‘Factors such as the nature and context of the punishment [or treatment], the manner and method of its execution, its duration, its physical and mental effects, and in some instances, the sex, age, and state of health of the victim must all be taken into account.’ Ireland v UK no. 5310/71 [1978] ECHR. Tyrer v UK no. 5856/72 [1978] ECHR. R v East Sussex County Council Ex parte A, B, X and Y [2003] EWHC 167 (Admin) (DRC – Intervener); B v UK no. 9480//82 [1987] ECHR. Z and others v UK (GC) no. 29392/95 [2001] ECHR. Chahal v UK (GC) no. 22414/93 [1996] ECHR. R v Secretary of State for Home Department ex parte Limbuela [2005] UKHL 66. Botta v Italy no. 21439/93 [1998] ECHR. See, for example, Connors v UK no. 66746/01 [2004] ECHR and Niemietz v Germany no. 13710/88 [1992] ECHR. Pretty v UK no. 2346/02 [2002] ECHR, para 61-62: ‘It covers the physical and psychological integrity of a person. It can sometimes embrace aspects of an individual’s physical and social identity. Elements such as, for example, gender identification, name and sexual orientation and sexual life fall within the personal sphere protected by Article 8. Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world…the Court considers that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees.’ See, for example, YF v Turkey no. 24209/94 [2003] ECHR and Glass v UK no. 61827/00 [2004] ECHR. Bruggerman & Scheuten v Germany no. 6959/75 [1977] EHRR 244 para 55: private life ‘…also secures to the individual a sphere in which he or she can freely pursue the development and fulfilment of his or her own personality’. Dudgeon v UK no. 7525/76 [1983] ECHR: private life was held to include sexual life and laws which criminalised sexual activity between men is an interference with private life under Article 8.

38

The underlying legal framework: guidance and clarification

26 27 28

29

30

31 32 33

34 35 36 37

38 39

40 41

Burghartz v Switzerland no. 16213/90 [1992] ECHR: legal restrictions on the names people can adopt engage Article 8. Goodwin v UK (GC) no. 28957/95 [2002] ECHR: national laws which discriminate against transsexual people engage Article 8. Gaskin v UK no. 10454/83 [1989] ECHR: access to social work files where this is necessary for the person to know about their early childhood. Odievre v France no. 42326/09 [2003] ECHR: access to information for adopted children about their biological parents. S & Marper v UK (GC) nos. 30562/04 and 30566/04 [2008] ECHR: the policy of blanket DNA and fingerprint retention for all people suspected of committing criminal acts breached the right to private life. Gillan and Quinton v UK no. 4158/05 [2010] ECHR: stop and search powers under Section 44 of the Terrorism Act 2000 breach the right to respect for private life because the power is so broad that it fails to provide safeguards against abuse. Kroon v the Netherlands no. 18535/91 [1994] ECHR, para 40. Marckx v Belgium no. 6833/74 [1979] ECHR. Whitear v UK [1997] EHRLR 291: the interests of the child may require a parent’s access to be restricted. Johansen v Norway no. 17383/90 [1996] ECHR: particular weight should be attached to the best interests of the child and that, depending on the seriousness of the issues, these may override those of the parent. In particular, the parent cannot be entitled to have such measures taken as would harm the child’s health and development. Cliliz v The Netherlands no. 29192/95 [2000] ECHR. Buckley v UK no. 20348/92 [1995] ECHR. Buckley v UK no. 20348/92 [1995] ECHR; Connors v UK no. 66746/01 [2004] ECHR. Coughlan & Ors v North & East Devon Health Authority [1999] EWCA Civ 1871: the health authority attempted to move a disabled woman from her specialist NHS unit where she had lived for six years. Taking into account all the circumstances, including the health authority’s desire to close the facility for budgetary reasons, the court considered that depriving somebody of her home without providing accommodation to meet her needs amounted to a breach of Article 8. It also considered that the authority had previously promised the applicant that she could remain there for life. Klass v Germany no. 5029/71 [1977] ECHR. X and Y v the Netherlands no. 8978/80 [1985] ECHR, para 23: ‘…although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities, it does not merely compel the State to abstain from such interference; in additional to this primarily negative undertaking, there may be positive obligations inherent in an effective respect for private and family life. These obligations may involve the adoption of measures designed to secure respect for private life even in the sphere of relations of individuals between themselves.’ As of 25 February 2010. Source: www2.ohchr.org/english/bodies/treaty/index.htm (accessed 26 February 2010). The right to education is also set out in the ECHR Protocol 1 Article 2 and is incorporated into domestic law in the HRA. This is a more limited right than the broader right to education derived from the ICESCR.

39

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

4

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

This chapter is essential reading prior to using the Human Rights Measurement Framework (HRMF) and provides guidance on interpreting the HRMF indicators and evidence base. Section 4.1 sets out the nature and scope of the HRMF evidence base and highlights the need for appropriate analysis and interpretation; Section 4.2 provides further guidance on the use and interpretation of the quantitative indicators within the HRMF; Section 4.3 provides further guidance on the use and interpretation of the qualitative indicators within the HRMF; Section 4.4 provides a worked example of one of the HRMF ‘indicator dashboards’ (focusing on the right to life).

4.1

What is being measured/monitored?

As discussed in Section 1.3, the HRMF evidence base brings together different types information for human rights analysis and assessments including: • • • • information about domestic human rights law and treaty ratifications information about human rights case law outcomes(i.e. violations/breaches) information about the regulatory and public policy framework that protects human rights concerns highlighted by domestic and international human rights monitoring bodies (for example, the Joint Committee on Human Rights (JCHR) and United Nations treaty monitoring committees) findings of investigations, inquiries and reviews issues raised by regulators, inspectorates and ombudsmen allegations and concerns raised by Non-Government Organisations (NGOs) and other civil society mechanisms such as media reports statistical information drawing on a wide range of administrative and social survey sources.

• • • •

It is critical to understand that the HRMF is not intended as a violations counting system. Many of the indicators go beyond the concept of ‘legal enforcement’, ‘violations’ and ‘minimum compliance’. They aim to provide evidence of the incorporation of human rights standards into broader public policy and of the emergence of a so-called ‘culture’ of respect for human rights. Proactive public policy measures as well as broader societal developments can help to reduce the risks of legal breaches of human rights and may ultimately reduce the need for legal enforcement activities and case law. A key aim of the HRMF is to capture and convey evidence about broader progress of this type.

40

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

When using and interpreting the HRMF, attention should be given to interpreting the different types of information and evidence that are covered in the HRMF indicators and evidence base. Particular care should be taken to distinguish between those rights that are domestically enforceable through the Human Rights Act (HRA), and other rights which are set out in the various regional and international human rights instruments that the UK has signed up to. Further, whilst some of the indictors in the HRMF provide direct evidence on breaches and violations (for example, case law outcomes) other elements of the HRMF evidence base provide more general information about overall patterns and trends as well as background and contextual information on the broader picture in relation to which a human rights concern is being raised. It is critical that both the qualitative and quantitative indicators within the HRMF are appropriately interpreted in line with the guidance in this chapter.

4.2

Interpreting the qualitative information within the HRMF

The different types of information that are included within the HRMF evidence base are listed in Section 4.1. This section now runs through the different types of qualitative information within the HRMF evidence base. The intention is to provide further clarification and guidance on use and interpretation. Information about domestic human rights law and treaty ratifications Indicator 1 under each of the HRMF panels provides information about domestic human rights law and treaty ratifications. In using and interpreting the HRMF, particular care should be taken to distinguish between those rights that are domestically enforceable through the HRA, and other rights which are set out in the various regional and international human rights instruments that the UK has signed up to. Information about human rights case law outcomes (breaches) It is critical to understand that only two of the indicators in the ‘dashboard’ for each right capture and convey information about case law: • • Information about the principles established in case law is reflected in each of the HRMF panels under the second indicator Information about legal outcomes (i.e. specific information about violations/breaches) is reflected within each HRMF panel under the fifth indicator.

Consider the second HRMF panel which covers the prohibition on torture and inhuman or degrading treatment or punishment(HRA, Article 3). The second indicator captures the case law principles that are relevant under this panel. For example, the evidence base under the second indicator includes the principles established in the Chahal case (where the European Court of Human Rights (ECtHR) found that Article 3 prevents expulsion of an individual to a country where there are substantial grounds for believing that they might be tortured or where there might be inadequate protection against persecution). The fifth indicator captures the outcomes of key cases that are relevant under this panel. For example, the evidence base under the fifth indicator includes the finding of a violation/ breach of Article 3 in the Chahal case. 41

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

Information about regulatory and public policy frameworks
The HRMF also provides information about regulatory and public policy frameworks that protect human rights. This includes primary law, policies, codes and guidelines and information about key regulators, inspectorates and ombudsmen as well as their key powers and responsibilities. For example, HM Inspectorate of Prisons (HMIP) for England and Wales provides independent scrutiny of the conditions for and treatment of prisoners and other detainees including those young offender institutions and immigration detention facilities. HMIP’s work constitutes an important part of the UK’s obligations under the Optional Protocol to the United Nations Convention against Torture and Inhuman and Degrading Treatment (including having in place regular independent inspection of places of custody). This responsibility is captured under the HRMF panels covering the right to life (HRA, Article 2) and the prohibition on torture and inhuman or degrading treatment or punishment (HRA, Article 3).

Information about concerns raised by national and international human rights monitoring bodies
Some of the evidence reported in the HRMF – whilst not focusing on case law – nevertheless captures and conveys concerns and issues highlighted by authoritative national and international human rights bodies. For example, the HRMF panel covering the prohibition on torture and inhuman or degrading treatment or punishment includes the findings of the JCHR relating to allegations of UK complicity in torture; concerns raised by the Equality and Human Rights Commission (‘the Commission’) concerning torture guidelines; and findings by the United Nations Human Rights Council (UNHRC) relating to secret detention and rendition. The panels covering the right to liberty and security of the person (HRA, Article 5) and the right to a fair trial (HRA, Article 6) include findings of the JCHR relating to pre-charge detention, secret evidence and control orders; findings of United Nations special rapporteurs relating to secret detention; and findings of the JCHR and the United Nations Committee on the Rights of the Child (UNCRC) relating to the detention of children and the use of Anti-Social Behaviour Orders (ASBOs). The panel covering the right to liberty and security of the person also includes research findings of the Commission relating to stop and search.

The findings of investigations, inquiries and reviews
The findings of investigations, inquiries and reviews are another key HRMF source. Examples for the HRMF panel covering the prohibition on torture and on inhuman or degrading treatment or punishment include the Independent Inquiry into UK Involvement with Detainees in Overseas Counter-terrorism Operations; and findings of the Stern Review relating to how rape complaints are dealt with by public authorities in England and Wales. Findings under the panel covering the right to liberty and security of the person include findings of the Government’s Independent Review of Counter-Terrorism. Findings under the panel covering the right to respect for private and family life (HRA, Article 8) include the findings of the Home Affairs Select Committee relating to surveillance.

42

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

Findings of regulators, inspectorates and ombudsmen
The HRMF evidence base includes where appropriate findings of regulators, inspectorates and ombudsmen. Examples for the HRMF panel covering the prohibition on torture and on inhuman or degrading treatment or punishment include the findings of the National Council for Independent Monitoring Boards on Slopping Out; findings of the National Preventative Mechanism relating to detainees with mental health problems (including the use of restraint); and findings of the Commission for Social Care Inspection on the use of restraint in elderly care services. Examples for other panels include findings of HMIP Youth Justice Board concerning a worsening of the disproportionate representation of black and minority ethnic (BME) young people in custody (the panel covering liberty and security of the person, HRA, Article 5); findings of the Information Commissioner’s Office relating to the use of personal information (the panel covering the right to respect for private and family life, HRA, Article 8); and the Care Quality Commission inspection findings examining whether elderly people receive essential standards of care, including whether they are treated with dignity and respect, and whether those that need help receive support with eating (the panel covering the right to the highest attainable standard of physical and mental health, Universal Declaration of Human Rights (UDHR), Article 25; International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 12). In some cases the criteria and frameworks adopted by regulators and inspectorates may correspond to legally enforceable human rights and to specific international human rights standards. For example, case law has emerged in relation to the practices of ‘slopping out’ in prisons (see ‘case law outcomes’ under the panel covering the prohibition on torture and inhuman or degrading treatment or punishment, HRA, Article 3); the National Preventative Mechanism reflects the standards that the UK has signed up to under the Convention Against Torture (CAT); and both HMIP England and Wales, and HMIP Scotland, explicitly link their inspection criteria to both domestic human rights law (i.e. the HRA) and to international human rights standards (for example, the provisions of the CAT). Other inspectorates and regulators are also increasingly adopting this approach. For example, as discussed above the Independent Police Complaints Commission (IPCC) provides a mechanism for discharging the positive duty to investigate deaths under Article 2 of the HRA and has undertaken a series of recent investigations relating to failure to protect for example in relation to homicide, domestic violence and anti-social behaviour. The Care Quality Commission has a Formal Memorandum of Understanding with the Commission that aims to ensure adequate regulation and inspection on equality and human rights in the health and social care context. At the same time, it is imperative to understand that the HRMF evidence base draws on the work of regulators and inspectorates using their own criteria and frameworks. It is, therefore, critical that care is taken when using and interpreting the HRMF to maintain an appropriate distinction between the criteria and frameworks adopted by regulators and inspectorates on the one hand, and the breach of a legally enforceable human right on the other.

43

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

NGO and media reports and allegations
The HRMF also includes NGO and media reports. Participants in the HRMF Specialist Consultation argued that it is imperative to include NGO data within the HRMF since it would be wrong, in principle, to rely on official information and a state’s version of events in the context of independent human rights monitoring and reporting. Building on this approach, Panel 3 includes evidence and analysis by Liberty on terrorism and pre-charge detention and evidence from Amnesty International on rendition and secret detention. Media reports of human rights violations are also admissible within the HRMF, such as the media allegations of torture reported in the evidence base under the panel covering the prohibition on torture and inhuman or degrading treatment or punishment (HRA, Article 3).We have only included information within the HRMF that we believe to be from a reliable and credible source. Nevertheless, it is essential that when using and interpreting the HRMF evidence base appropriate consideration is given to issues of quality and the different types of sources on which the HRMF draws.

4.3

Interpreting the quantitative information within the HRMF

The HRMF evidence base also includes statistical information drawn from a broad range of social survey and administrative sources. Statistical information of this type can play a number of different roles in human rights analysis and assessments, for example, by: • • providing direct information on human rights violations and prima facie evidence of human rights violations/deficiencies providing information about overall patterns and variations and evidence of the vulnerability/risks of different individuals and groups and of possible gaps and/or weaknesses in protection providing information about the outcomes of relevant regulatory and inspection processes (for example, routine statistical monitoring of the number of deaths in custody and/or following police contact) and of other relevant monitoring excises providing relevant contextual and background information (for example, general population data on the prison population, on stop and search by ethnicity and data on public attitudes/understanding of human rights) meeting the data requests of international human rights bodies that monitor the implementation of international human rights treaties that the UK is signed up to (such as the UN Human Rights Committee, the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) and the UNCRC).

As with the qualitative indicators in the HRMF, important ‘health warnings’ apply to the interpretation of the HRMF quantitative indicators. All of the statistical evidence presented in this report should be carefully interpreted and used in line with definitions, terminology, interpretations and guidance set out by the original data providers, including guidance on the limitations and quality of the data, and in line with disclosure policy and rules. We have included as much supplementary information as possible in footnotes together with references to the original source of the data. However, readers and users of the HRMF 44

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

requiring further clarification on the interpretation of data are strongly advised to check whether the original source of the data includes a commentary and/or further guidance, or to follow up with the original data providers. The status of the statistical evidence also requires careful examination and interpretation in the light of standard statistical methods and evidential thresholds (for example, for establishing improvements and retrogression over time and variations by population subgroup using standard tests for statistical significance).An example of the need for careful analysis applying standard methods of statistical analysis is given in Figure 9. It is also important to understand that the statistics presented in this report are potentially of varying quality. Only some of the official statistics that are included have achieved national statistics’ classification. Some of the administrative statistics might be subject to variations in recording and coding whilst others might be based on small numbers. We have included as much information as possible about the statistics that are included within the HRMF in footnotes. However, in some cases it may be necessary to consult original data sources or other relevant sources in order to resolve questions about quality and interpretation that may arise.

Official administrative and social survey data sources
Some of the HRMF indicators draw on official administrative and social survey data sources. Statistical evidence of this type can often add to human rights analysis by helping to identify overall trends and patterns, highlighting which individuals and groups may be particularly vulnerable, identifying risks of a specific breach of human rights, as ultimately determined by the courts, pointing towards gaps in protection and so forth. Administrative statistics can also be important for the purposes of monitoring and, in some cases, general population statistics can also help to shed light on the issue of disproportionality. However, it is imperative not to ‘over-interpret’ the statistical evidence that is included within the HRMF and to maintain a clear and appropriate distinction between statistical analysis on the one hand and legal analysis on the other.

Administrative statistics generated from specific monitoring exercises
The evidence base under the first HRMF panel covering the right to life (HRA, Article 2) includes statistical data on deaths in custody in the police and criminal justice context. Routine statistical monitoring is undertaken by relevant inspectorates in this area including routine monitoring of deaths in police custody which are published on an annual basis by the IPCC. Data of this type is useful for human rights monitoring purposes and has therefore been included within the HRMF evidence base. Similarly, the evidence base under the panel covering the prohibition on torture and inhuman or degrading treatment or punishment (HRA, Article 3) includes data derived from routine statistical monitoring of complaints to the police by category. Again, this data is included because it is useful for monitoring purposes.

45

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

Specialist social surveys run by regulators and inspectorates
Some of the quantitative indicators draw on the specialist social surveys run by regulators and inspectorates. For example, information on the conditions and treatment in prisons, secure units and asylum and immigration centres are included in the HRMF indicator set under the panels covering the prohibition on torture and inhuman or degrading treatment or punishment (HRA, Article 3) and the right to respect for private and family life (HRA, Article 8), based on the specialist surveys conducted by HMIP. Similarly, quantitative indicators of compliance with the Care Quality Commission’s ‘essential standards’ framework, including statistics generated through specialist patient surveys, such as treatment with dignity and respect and support for nutritional needs during hospital stays, are included under the panel covering the right to the highest attainable standards of physical and mental health (UDHR, Article 25; ICESCR, Article 12). These statistics are again based on the inspection criteria adopted by the individual inspectorates, and should be used and interpreted in the light of the comments above.

General population surveys
The HRMF also draws on a range of other social surveys including general population surveys and user surveys. For example, the panel covering the prohibition on torture and inhuman or degrading treatment or punishment (HRA, Article 3) includes general population survey information on the prevalence of domestic violence derived from the British Crime Survey self-completion module together with administrative statistics on the number of instances reported to the police, the number of investigations carried out by the police, the number of cases going to court, and the outcomes of these cases. This information is particularly helpful in evaluating the implementation of Article 3 (including the positive duty to protect individuals from violations by third parties) and can usefully supplement case law analysis (for example, the findings in the Opuz v Turkey case) as well as the findings of investigations (for example, investigations into the failure to protect life conducted by the IPCC) by helping to identify overall trends and patterns in domestic violence, highlighting which individuals and groups may be particularly vulnerable and pointing towards gaps in protection. Nevertheless, it is imperative to maintain a clear and appropriate distinction between the statistical analysis of these overall trends and gaps, and the analysis of a legal violation of a human right, established through an appropriate judicial process given the specific facts of a case.

46

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

Figure 9: The need for careful analysis and interpretation of quantitative evidence using standard statistical methods: Illustration drawing on Office for National Statistics (ONS) deaths by place data The Right to Life (HRA, Article 2) (Indicator 7, Tables 30 and 31) provides data showing the number of deaths and age-standardised rate per 1 million population from c. difficile, dehydration, falls, MRSA, pressure sores and septicaemia, by place of death with separate reporting of hospitals and care homes, England and Wales, 1997-2009 where: (a) the cause specified was the underlying cause of death; (b) the cause specified was mentioned on the death certificate. This data represents an important new development in data collection and the ways in which deaths are monitored and investigated and has been included as a complement to qualitative evidence within the HRMF that raises questions about the treatment of older people in hospitals and care homes. However, the interpretation of this data is not straightforward. The data provides information about general trends and overall patterns in deaths by place rather than ‘fact based’ information about any particular case (ONS, 2011b) and emphasise that the figures should be interpreted with caution for a number of reasons. First, in order to understand patterns and trends it is necessary to look at data series covering cases where: (a) a specified cause (for example, dehydration, malnutrition, c. difficile, MRSA) is recorded as the underlying cause of death; (b) the specified cause was mentioned anywhere on the death certificate (either as the underlying cause or as a contributory factor). This is because in many cases involving dehydration, malnutrition, c. difficile and MRSA many of the deaths will be people who already have a serious illness, and it is this illness that is recorded as the underlying cause of death. Second, the data does not provide enough evidence to support any conclusion about the quality of care within an establishment. For example, in relation to the data on deaths caused by malnutrition, the data does not establish what caused the malnutrition. There are of course many explanations as to why someone becomes malnourished: for example they may have cancer of the digestive tract, which means they cannot eat properly or cannot absorb nutrients; they may have suffered from a stroke or have advanced dementia which can cause difficulties chewing and swallowing; or they may abuse alcohol and so not eat properly. The deceased may also have been malnourished before they went into the establishment or have been in the establishment for a very short time, and the malnutrition may have also have nothing to do with not being fed properly. Continued

47

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

Figure 9: The need for careful analysis and interpretation of quantitative evidence using standard statistical methods: Illustration drawing on Office for National Statistics (ONS) deaths by place data (continued) Third, some of the deceased may have had several of the specified conditions. For example, an older woman with osteoporosis has fallen down and fractured her hip. Whilst in hospital she develops an infection, which leads to septicaemia and she is treated with antibiotics. She then develops c. difficile and dies. The underlying cause of death would probably be the osteoporosis, but septicaemia and c. difficile would also be mentioned on the death certificate. So this woman would appear in three columns of Table 31. It is therefore not possible to add up the numbers of deaths from different conditions in Table 31 in order to obtain a total number of deaths from all six causes, because this could count the same death several times. Fourth, evaluation of trends requires the analysis of confidence intervals which are the standard evidential threshold used in statistics to determine whether a trend has increased or decreased significantly over time. For example, if we look at deaths from pressure sores in hospitals in Table 30, the numbers increased from 500 deaths in 1997 to 604 deaths in 2009, whilst the rates increased slightly from 6.1 to 6.4 deaths per million population. However, calculations based on small numbers of events are often subject to random fluctuations, and in order to make statements about trends it is necessary to analyse the confidence interval. In 1997 we can say that we are fairly sure that the rate was between 5.6 and 6.7; and in 2009 it was between 5.9 and 6.9. Because these two confidence intervals overlap (i.e. 5.9 is lower than 6.7) we cannot definitely say that the mortality rate was significantly higher in 2009 compared with 1997 – even though the numbers look slightly higher. In contrast, Table 31 provides data on deaths where dehydration was mentioned anywhere on the death certificate by place. In care homes, the numbers increased from 65 in 2001 to 125 in 2009, whilst the rates increased from 0.7 to 1.1 deaths per million population. Taking account of the information provided by the confidence intervals we can be fairly sure that the rate in care homes was between 0.5 and 0.8 deaths per million population in 2001 and between 0.9 and 1.3 deaths per million population in 2009. Since the confidence intervals do not overlap we can legitimately conclude that the increase in this rate over time is significant in a statistical sense. In hospitals, the number of deaths increased from 587 in 2001 to 816 in 2009, whilst the rates increased from 6.5 to 7.8 deaths per million population. Given the confidence intervals we can be fairly sure that the rate was between 5.9 and 7.0 deaths per million population in 2001 and was between 7.3 and 8.4 deaths per million population in 2009. The confidence intervals do not overlap and again, we can legitimately conclude that the increase in this rate over time is significant. Source: Based on ONS (2011b).

48

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

Disaggregation and separate identification of the position of at risk and vulnerable groups
Wherever possible, administrative and social survey statistics have been systematically disaggregated by characteristics such as age, gender, disability, religion and belief, race/ethnicity, sexual orientation, transgender status and social class. In addition, particular emphasis has also been put in the HRMF on identifying and bringing together administrative and social survey data sources that support separate monitoring of at risk/ vulnerable groups, such as conditions of detention for prisoners under the panels covering the prohibition on torture and inhuman or degrading treatment or punishment (HRA, Article 3) and the right to respect for private and family life (HRA, Article 8); the number of asylum seekers and refugees who enter and leave detention under the panel covering the right to liberty and security of the person (HRA, Article 5); educational gaps for ‘looked after children’ (included in the evidence base under the right to education (UDHR, Article 26, ; ICESCR, Articles 13 and 14; CRC, Article 28 and Article 29; HRA, Protocol 1 Article 2); and the numbers of ‘children in need’ whose primary care need is recorded as low income (included in the evidence base under the panel covering the right to an adequate standard of living, UNCRC, Article 27; ICESCR, Article 11). However, even where a range of demographic variables are recorded and at risk/vulnerable groups are separately identified, the potential for both systematic disaggregation and for separating monitoring for at risk/vulnerable groups is limited by sample size and other factors such as the need to maintain anonymity, privacy and disclosure. For further discussion in relation to sample size, see Alkire et al. (2009). In relation to anonymity, privacy and disclosure, we have, generally speaking, been guided by the guidelines and policies set out by data providers.

4.4

Worked example: The right to life (HRA, Article 2)

Figure 10 provides details of the ‘indicator dashboard’ that has been developed and agreed for the right to life. This will now be used to illustrate how the HRMF indicator dashboards work.

49

Figure 10: Illustrative HRMF panel: the right to life42
Other action/inaction by the state, its agents or bodies fulfilling a public function Noninstitutional context Institutional context (covers prisons, police stations, secure units, detention centres, schools, health and social care settings, etc.)

Protection of the right to life by the state, its agents or bodies fulfilling a public function

Use of unlawful/arbitrary force by the state, its agents or bodies fulfilling a public function

Indicators

Noninstitutional context

Institutional context (covers prisons, police stations, secure units, detention centres, schools, health and social care settings, etc.)

Effective investigation of all deaths covered by Article 2

Structural

Indicator 1: Legal and constitutional framework for the protection of the right to life. Evidence base: Protection of the right to life in domestic law (including constitutional/‘higher’ law); status of ratification of relevant regional/international treaties. Indicator 2: Legal precedents, gaps and standard-setting. Evidence base: principles established in key cases (domestic and ECHR) and in international standard-setting processes; gaps in legal protection; non-implementation of legal judgements and recommendations.

Process

Indicator 3: Regulatory framework for the protection of the right to life. Evidence base: Identification of key regulators, inspectorates, ombudsman/spotlight responsibilities and powers, minimum standards and inspection/complaints-handling criteria. Indicator 4: Public policy framework for the protection of the right to life. Evidence base: Primary law policies, plans, targets and goals; training guidelines, codes; spotlight resource allocations; etc.

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

50
Indicators should be systematically disaggregated

Outcome

Indicator 5: Outcomes of key judicial, regulatory and investigative processes. Evidence base: Case law outcomes; concerns raised by human rights monitoring bodies; outcomes of inspection, regulation and complaints procedures; outcomes of investigations, inquiries and reviews; key allegations by civil society organisation/reports in the media. Indicator 6: Spotlight statistics: Deaths in the police/criminal justice system context. Evidence base: Deaths during or following contact with the police (by category of death), within prisons, secure units, court cells, and immigration and asylum centres (covering deaths from natural causes, non-natural causes and self-inflicted deaths) and during transit. Indicator 7: Spotlight statistics: Deaths within health and social care institutions. Evidence base: Hospital Standardised Mortality Ratios (HSMRs); deaths through neglect, malnutrition, dehydration, pressure sores, avoidable/preventable and ‘excess’ deaths; variations in overall hospital mortality rates. Indicator 8: Spotlight statistics: Protection from third party violations – homicide within society, community and families. Evidence base: Homicide rates: by characteristic (age, gender, race/ethnicity, disability, etc.) and by category (with separate reporting of hate crime homicide, religious/racially incited homicide and domestic homicide, etc.). Indicator 9: Spotlight statistics: Premature mortality within families, community and society. Evidence base: Life expectancy and infant mortality rates by ethnicity, social class and area deprivation; maternal mortality rates; child accidental death rate by social class. Indicator 10: Spotlight statistics Public attitudes/experiences. Evidence base: Public attitudes towards, and understanding of, the right to life.

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

As Figure 10 suggests, the right to life indicator dashboard includes a balance of structural, process and outcome indicators. This balance ensures that the evidence base under the right to life (HRA, Article 2) Panel incorporates information relating to the formal commitment to the human right in question in principle (through the Human Rights Act and additional regional and international instruments), the steps being taken by duty holders to discharge the obligations that flow from the right to life (for example, primary law, policy and guidance, and regulation, inspection and complaints-handling) and the results achieved in practice (in terms of the position and experiences of individuals and groups).

The right to life – structural indicators
The right to life indicator dashboard begins with two ‘structural indicators’ that provide evidence base on the formal commitment to protect and promote the right to life in England, Scotland and Wales. Indicator 1: Legal and constitutional framework Indicator 1 provides information on the formal commitment to the human right to life in principle through codification in domestic law and ratification of international human rights instruments. The HRA incorporates Article 2 of the ECHR and establishes an explicit basis for Article 2 in domestic law. Violations of Article 2 are therefore legally justiciable and the negative and positive duties that flow from Article 2 can be legally enforced through the domestic courts. Indicator 1 also provides information on additional regional and international instruments that the UK has signed up to, such as the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Rights of the Child, that protect the right to life. The legal status of these instruments should be understood in the context of the discussion in Chapter 3. For further details of the evidence base under Indicator 1, see Table 1. Indicator 2: Legal precedents, gaps and standard-setting The evidence under Indicator 2 identifies key legal principles that have been applied in judicial processes to determine whether a particular issue or concern meets the threshold for establishing a violation of Article 2 of the HRA. Article 2 establishes a negative obligation on duty holders to refrain from arbitrarily taking life. The evidence base under Indicator 2 includes information on principles that have been applied in determining the nature and scope of violations of this duty. For example, in the McCann case, the ECtHR established that the use of force must be no more than what is absolutely necessary to defend persons from unlawful violence. This principle is included in the evidence base under Indicator 2. For references and further examples, see Table 3. Indicator 2 also provides information on key principles that relate to the positive duty to protect life under Article 2 of the HRA. The Courts have established that Article 2 creates positive duties to protect life, as well as negative duties to refrain from arbitrarily depriving individuals of life – and that the failure to undertake positive steps to protect life can meet the threshold necessary to establish a justiciable violation of Article 2. The McCann case is again important here, establishing that the obligation to ensure that everyone’s life is 51

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

protected by law has a procedural aspect whereby the circumstances of a deprivation of life receives public and independent scrutiny. A number of further principles that clarify the nature and scope of this procedural duty under Article 2 have been established through the domestic courts. For example, the principle that there should be an effective public examination by an independent official body into any death occurring in circumstances in which the substantive obligations of Article 2 may have been violated and agents of the state may be implicated; and the principle that a near suicide of a prisoner can trigger an obligation under Article 2 to conduct an investigation which is independent, prompt and involves the next of kin. The positive duties under Article 2 can also require legislative and administrative measures to protect and safeguard life and the courts have established that the failure to undertake such measures can satisfy the threshold for justiciable violations of the right to life. In the Osman case the ECtHR established that the police were under a positive obligation to take reasonable steps to protect life where they knew or ought to have known of a real and immediate risk to life. In the domestic courts, the Savage case clarified the nature and scope of the responsibilities of dutyholders (in this case, an NHS Trust) to implement protective and safeguarding measures where there is a known risk to life in the context of mental health patients who are detained. The case established that for detained patients Article 2 can be breached when duty holders have the requisite knowledge, actual or constructive, of a real and immediate risk to a patient’s life from self-harm and fail to do all that could reasonably have been expected of them to avoid or prevent that risk. In other key cases, the ECtHR has established that violations of Article 2 can arise in the context of the failure of duty holders to provide effective protection from violations by third parties. For example, Article 2 can be violated in the context of an explosion caused by a build-up of hazardous waste where there was no effective regulation and inspection, and in the context of the failure to protect women from life-threatening domestic violence. For references and further examples, see Table 3. Indicator 2 also provides information on principles that are established in authoritative international standard-setting processes. These principles do not necessarily provide information on issues and concerns under the right to life that satisfy the threshold for legal justiciability under the HRA. However, the UK has signed up to a number of international human rights instruments and the bodies that monitor the implementation of these instruments have set out a number of principles that are relevant for monitoring and reporting on implementation. For example, the UK has signed up to the United Nations Covenant on Civil and Political Rights (UNCCPR) and the implementation of the UNCCPR in the UK is monitored by the United Nations Committee on Civil and Political Rights. The Committee’s General Comment 6 suggests that the right to life should not be interpreted narrowly but rather as covering such issues as life expectancy and infant mortality. Information about the principle established in this international standard is also included in the evidence base under Indicator 2. For references and further examples, see Table 3.

52

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

In addition, Indicator 2 provides information on gaps in protection under the right to life and information on non-implementation of legal judgements. The right to life is protected in the HRA and in a range of international instruments that the UK is signed up to. The JCHR highlighted in 2007 that there was protection available under UK law for circumstances where there has been a serious breach of the right to life as a result of the gross management failure of a private or public organisation, but no identifiable individual within the organisation can be proved to be responsible for the failure (see Table 5). Relevant new primary legislation is highlighted in Table 9. The UK has not yet signed up to the individual complaints mechanism under the ICCPR First Optional Protocol. On the non-implementation of legal judgements, the JCHR has highlighted the delays in agreeing appropriate implementation measures, in particular in respect of establishing new independent inquiries, in cases relating to the use of force by the security services in Northern Ireland. For references and further examples, see Tables 5 and 6. For further details of the evidence base under Indicator 2, see Tables 1, 2, 3, 4, 5 and 6).

The right to life – process indicators
The ‘process indicators’ under the right to life panel provide evidence on the steps being taken by duty holders to fulfil the obligations that flow from the right to life. There are two process indicators under the right to life. Indicator 3: Regulatory framework Indicator 3 provides spotlight information on the key regulators, inspectorates and ombudsmen that have powers and responsibilities relating to the right to life and the investigation/monitoring of deaths. The information here sheds light both on the processes that are available in England, Scotland and Wales for investigating and monitoring deaths in the police and criminal justice context and in other areas such as health and social care, as well as the findings of the bodies that are charged with relevant responsibilities, and the types of monitoring and inspection that are in place. For example, in England and Wales the IPCC investigates deaths in police custody and/ or following police contact and complaints; whilst the Prisons and Probation Ombudsman investigates deaths in prison custody. In the health and social care context, investigations into deaths are undertaken by a range of bodies including health authorities, coroners and others. The Care Quality Commission inspects on ‘essential standards of care’ that cover patient safety and quality and undertake responsive inspections and investigations relating to deaths, whilst the Health and Social Care Ombudsman undertakes complaints handling including those relating to deaths. Indicator 3 provides a mechanism for highlighting and bringing together spotlight information on the powers and responsibilities of key regulators, inspectorates and ombudsmen in relation to deaths, and for analysing these within a human rights framework.

53

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

The evidence base under Indicator 3 also includes some specific information on the ways in which some of the regulators, inspectorates and ombudsmen relate their own work to domestic and international human rights standards. For example, an IPCC submission to the JCHR notes that IPCC investigations enable the state to comply with the requirement under Article 2 for an effective independent investigation into any alleged breach by the police, and this information is included in the evidence base under Indicator 3. Information is also include on the ways in which HMIP England and Wales, and HMIP Scotland, relate their powers and remits to legally binding human right standards (such as the positive duty to take reasonable measures to prevent suicide in prisons under Article 2) as well as to international standards such as those set out in the CAT. For details of the evidence base under Indicator 3, see Tables 7 and 8. Indicator 4: Public policy framework Indicator 4 provides further information on the steps that are being taken to discharge the obligations that flow from the right to life, including legal, policy and other measures. The evidence based here brings together spotlight information on primary law, policies, plans, targets, goals, training, guidelines, codes and resource allocations. For example, relevant primary law includes the Criminal Law Act 1967 Part 1 Section 3, relating to the use of force in making arrest and legislation that protects individuals and groups from homicide. Policy guidance and training guidelines on the use of lethal force/potentially lethal force and the use of restraint have been issued by a number of bodies, and these are also included in the Indicator 4 evidence base. Examples for the prison and secure training centre context include Prison Services Policy (Prison Service Order (PSO) 1600 Use of Force) and Use of Force Training Manual; PSO 2700 Suicide prevention and selfharm management; PSO 2710 Follow up to deaths in custody; The Secure Training Centre (Amendment) Rules and the Ministry of Justice (MoJ) Physical Control in Care Training Manual. For references and further examples, see Table 10. We have also included identifiable expenditure on social protection as an element of the evidence base under Indicator 4. There were a number of discussions in the HRMF Specialist Consultation regarding the role of resource indicators within the HRMF (for a detailed record, see Appendix 4). Whilst some participants highlighted the possible limitations of resource indicators, others highlighted the importance of resource allocations as one element of the ‘positive steps’ that duty holders can take to protect the right to life. The particular importance of expenditure on social care for children was highlighted in the context of statistics that reveal the increased vulnerability of under ones to homicide and potential gaps and weaknesses in protection (discussed under Indicator 8). Some participants suggested that expenditure on social care for adults is also particularly important in the context of the positive duty to protect the right to life. For these reasons, we have included information on general trends in identifiable expenditure on social protection within the evidence base under Indicator 4. We recommend that follow-up work is undertaken to identify specific expenditure streams on safeguarding children and adults, and on child and adult protection, in follow-up projects. For further details of the evidence base under Indicator 4, see Tables 9 and 10. 54

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

The right to life – outcome indicators
The ‘outcome indicators’ under the right to life panel illustrated in Figure 3 provide evidence on results achieved and the position of individuals and groups in practice. The outcome indicators for the right to life dashboard brings together both qualitative and quantitative information on relevant outcomes from a range of official, authoritative and NGO sources. Indicator 5: Outcomes of key judicial, regulatory and investigative processes Indicator 5 is a qualitative indicator that provides a broad range of evidence about outcomes in practice including: • • • • case law outcomes that engage the right to life (i.e. violations/breaches) findings of authoritative national and international human rights bodies that relate to the right to life findings of other investigations, inquiries and reviews, and findings highlighted by regulators, inspectorates and ombudsmen, that relate to the right to life allegations and concerns raised by NGOs and other civil society mechanisms such as media reports.

The evidence base under Indicator 5 begins with information on case law outcomes where violations/breaches of human rights have been established through a judicial process. For example, the outcomes of McCann and Savage cases discussed already, where violations or breaches of Article 2 were established through the courts, are both included in the evidence base under Indicator 5. For references and further examples, see Table 11. Alongside information on case law outcomes, the evidence base under Indicator 5 includes issues and concerns highlighted by national and international human rights bodies. For example, the evidence against this indicator includes the finding of the Joint Committee on Human Rights in its report Deaths in Custody, which examines the causes of deaths in custody and considers what may be done to prevent these deaths and to better protect the right to life (and other human rights) of vulnerable people held in the custody of the state. Findings of international human rights monitoring bodies relating to the right to life are also included in the evidence base under Indicator 5. These include concerns around child deaths in custody and concerns about the gap in infant mortality between the most and the least well-off groups highlighted by the UNCRC and findings of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) relating to maternal mortality rates among ethnic minorities and the high numbers of miscarriages and stillbirths for women from Traveller communities. For references and further examples, see Table 12. The evidence base against Indicator 5 also includes findings by official inquiries, investigations and reviews. Examples include the findings of the Bloody Sunday Inquiry, which concluded that the unjustifiable firing by soldiers on Bloody Sunday caused the 55

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

deaths of 13 people and injury to a similar number, none of whom was posing a threat of causing death or serious injury. Other examples are the Inquest finding relating to the 14-year-old Adam Rickwood and the unlawful use of restraint which was found to be a contributing factor; and the findings of death reviews such as the reviews of ‘preventable deaths’ on behalf of Local Safeguarding Children Boards. Examples for Scotland include a review of Fatal Accident Inquiry (FAI) legislation undertaken in 2009 which recommended mandatory FAIs to cover work-related deaths, deaths of any person subject to compulsory detention by a public authority, and deaths of children being maintained in a ‘residential establishment’. The findings of regulators, inspectorates and ombudsmen are another key source under Indicator 5. Section 6 of the HRA establishes a duty on public bodies to comply with the HRA and in the McCann case discussed already, the ECtHR established that the obligation to ensure that everyone’s life is protected by law includes a procedural aspect whereby the circumstances of a deprivation of life receives public and independent scrutiny. The relevance of the powers and responsibilities of the IPCC in this context was discussed above and the evidence base under Indicator 5 includes a number of findings of IPCC investigations such as the IPCC inquiry into the death of Ian Tomlinson relating to the alleged use of force by a police officer. Other IPCC investigations that relate to the positive duty to protect life (including in the context of violations by third parties) are also reflected. For example, the IPCC investigation into the death of Rabina Bibi found that the police force failed by not dispatching police officers when an initial call for assistance was made contrary to force policy on domestic abuse. The IPCC investigation into the death of Fiona Pilkington highlighted the failure to implement a cohesive, structured and effective approach in the context of harassment/anti-social behaviour. The importance of including information relating to the failure to protect life in the context of domestic violence and disability hate crime was highlighted in the HRMF Specialist Consultation, and the evidence base here is intended to capture and reflect these concerns. Broadening out from the police and criminal justice system context, the findings of other regulators and inspectorates that have powers and responsibilities to investigate and monitor deaths in England, Scotland and Wales are also included as evidence under Indicator 5. Examples include the findings of the Parliamentary and Health Service Ombudsman and the Local Government Ombudsman highlighting failures in the quality of health and social care services in the context of deaths of people with learning disabilities; findings of the Health Services Ombudsman relating to end of life care of older people; and findings in the investigation of ‘excess deaths’ in Mid Staffordshire NHS Foundation Trust by the Healthcare Commission (now the Care Quality Commission). For references and further examples, see Tables 14, 15, 16 and 17. Indicator 5 also includes spotlight information on allegations and concerns raised by NGOs and other civil society mechanisms such as media reports. Examples include concerns raised in Inquest’s Briefing on the death of Ian Tomlinson, concerns around the deaths of six people with a learning disability in NHS care highlighted in the Mencap Death by 56

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

Indifference campaign and press and advocacy reports of deportation cases that raise issues and concerns under Article 2. For references and further examples, see Table 18. For further details of the evidence base here under Indicator 5, see Tables 11, 12, 13, 14, 15, 16, 17 and 18. Indicator 6: Spotlight statistics: Deaths in the police and criminal justice system context The ‘outcome indicators’ under the right to life panel illustrated in Figure 3 also include a series of quantitative indicators that provide statistical information on key concerns and issues. The first of these, Indicator 6, includes data generated by a range of bodies that have responsibilities and powers relating to the investigation and monitoring of deaths in the police and criminal justice system context (including, for example, deaths during or following contact with the police, deaths from natural and non-natural causes (including suicide) within prisons, secure units, court cells, immigration and asylum centres and during transit). For further details of the evidence base under Indicator 6, see Tables 19, 20, 21, 22, 23, 24, 25 and 26. Indicator 7: Spotlight statistics: Deaths within health and social care institutions/ community care This information under Indicator 7 is intended to provide a broader picture of the systems that are in place to investigate and monitor deaths in England, Scotland and Wales beyond the police and criminal justice context. Participants in the HRMF Specialist Consultation also highlighted the need for robust systems for investigating and monitoring deaths across the board, including within the health and social care context. For example, the evidence base under Indicator 7 includes data on variations in death rates by NHS Trusts. This data series has been included because we feel that it represents an important new development in the routine monitoring of deaths in the health and social care context. The inclusion of this data in the evidence base should be understood in the context of the findings of the investigation of ‘excess deaths’ in Mid Staffordshire NHS Foundation Trust by the Healthcare Commission (now the Care Quality Commission) (on which, see Table 16). The evidence base under Indicator 7 also includes data on the number of deaths and agestandardised death rate per 1 million population from c. difficile, dehydration, falls, MRSA, pressure sores and septicaemia, with separate reporting for hospitals and care homes. These statistics also represent an important new development in ONS data collection and have been included as a complement to qualitative evidence within the HRMF on the treatment of older people in health and social care highlighted under the panels covering the right to life (HRA, Article 3); the prohibition on torture and inhuman or degrading treatment or punishment (HRA, Article 3);the right to respect for private and family life (HRA, Article 8); and the right to the highest attainable standard of physical and mental health (UDHR, Article 25; ICESCR, Article 12). However, it is critical to understand that statistics of this type require careful analysis and interpretation. Further guidance on the 57

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

use and interpretation of the HRMF evidence base drawing on the example of the ONS series on deaths by place is provided in Figure 9. For further details of the evidence base under Indicator 7, see Tables 27, 28, 29, 30, 31 and 32. Indicator 8: Spotlight statistics: Protection from third party violations – homicide within society, community and families Indicator 8 provides statistical information on the prevalence of homicide by characteristic (by age, gender and ethnicity) and by category (with separate reporting of hate crime homicide, religious/racially incited homicide and domestic homicide).Participants in the HRMF Specialist Consultation put particular emphasis on the importance of positive duties to protect the right to life including in the context of violations by third parties and the importance of child homicide, domestic homicide, racially motivated homicide and hate crime homicide, were all highlighted during the course of discussions. The statistical information under Indicator 8 is intended to provide general information to inform this analysis on the prevalence of homicide, the vulnerability and risks of different individuals and groups, and possible gaps and/or weaknesses in protection. For example, Table 33 provides information on the homicide rate per million of the population by age and sex of victim, 1999-2000 to 2009-10 for England and Wales. The data shows that, for the population subgroups identified in the analysis, the greatest risk of homicide is for under ones and highlights the particular vulnerability of this group. For further details of the evidence base under Indicator 8, see Tables 33, 34, 35, 36 and 37. Indicator 9: Spotlight statistics: Premature mortality within families, community and society Indicator 9 provides statistical information on other types of premature mortality within families, community and society including life expectancy and infant mortality rates by ethnicity, social class and area deprivation; maternal mortality rates; suicide rates; and child accidental death. The statistical information here is again intended to provide general information to inform this analysis on the prevalence of premature mortality within families, community and society, the vulnerability and risks of different individuals and groups, and possible gaps and/or weaknesses in protection. Data of this type is often requested by international bodies that monitoring the implementation of international human rights treaties that the UK is signed up to, such as the UN Human Rights Committee and the UNCRC. Participants in the HRMF Specialist Consultation put particular emphasis on disaggregation of this data by a broad range of characteristics including area deprivation. The inclusion of the data on child accidental deaths reflects participants’ comments regarding differential vulnerability to road and traffic accidents and to fire both by social class and for particular population subgroups (for example, Gypsies and Travellers).

58

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

For further details of the evidence base under Indicator 9, see Tables 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 and 62. Indicator 10: Spotlight statistics: Public attitudes, understanding and experiences Finally, Indicator 10 provides information on public support for, and understanding of, the right to life. The evidence base here relates to population values and the ways in which the idea of human rights is embedded in broader culture. For further details of the evidence base under Indicator 10, see Table 63.

59

Using and interpreting the Human Rights Measurement Framework: guidance and clarification

Chapter notes
42

This is a shortened one page version of the right to life panel. The full version is provided in Chapter 5.

60

Part III
The Human Rights Measurement Framework panels, indicators and evidence base

Chapter 5
The Right to Life (Human Rights Act, Article 2)

Please read Part II Guidance on using and interpreting the Human Rights Measurement Framework first.

5

The Right to Life (Human Rights Act (HRA), Article 2)

Panel and indicators
Other action/inaction by the state, its agents or bodies fulfilling a public function Noninstitutional context Institutional context (covers prisons, police stations, secure units, detention centres, schools, health and social care settings, etc.) Effective investigation of all deaths covered by Article 2

Protection of the right to life by the state, its agents or bodies fulfilling a public function

The Right to Life – HRA, Article 2

Indicators

Use of unlawful/arbitrary force by the state, its agents or bodies fulfilling a public function

Noninstitutional context

Institutional context (covers prisons, police stations, secure units, detention centres, schools, health and social care settings, etc.)

Structural (indicators of ‘commitment in principle’)

Indicator 1: Legal and constitutional framework • Protection of the right to life in domestic law (including constitutional/‘higher’ law) • Status of ratification of relevant international treaties

62

Indicator 2: Legal precedents, gaps and standard-setting • Principles established in key cases (domestic and ECHR) and international standard-setting processes • Gaps in protection and non-implementation of legal judgements and recommendations

Process (indicators of ‘steps taken’ – including legal, regulatory and public policy measures)

Indicator 3: Regulatory framework • Key regulators, inspectorates, ombudsmen and other mechanisms for complaints handling • Relevant responsibilities and powers, national minimum standard frameworks and inspection/complaints-handling criteria

Indicator 4: Public policy framework • Primary legislation, policies, plans, targets and goals • Codes and guidance (covers guidance to military personnel/police, prison and other security and detention personnel on the use of lethal/potentially lethal force, and guidance on the use of force and restraint in the health and social care context) • Spotlight resource allocations (including public expenditure on child protection and adult protection)

Outcome (indicators of the position of individuals and groups in practice/ emergence of a human rights ‘culture’)

Indicator 5: Outcomes of key judicial, regulatory and investigative processes • Violations of the right to life: Case law outcomes • Key concerns raised by human rights monitoring bodies • Outcomes of judicial processes/inspection, regulation and complaints procedures/independent inquiries, investigations and reviews that engage Article 2. For example: – outcomes of independent investigations into the use of unlawful/arbitrary force – findings by regulators/inspectorates relating to the failure to protect life (‘positive duties’) including failure to protect from homicide (in the police and criminal justice context) and investigations into ‘excess’, ‘avoidable’ and ‘preventable’ deaths and deaths through neglect within the health and social care context – outcomes of inquest and coroner’s findings and other death review processes (for example, child death reviews/serious case reviews for ‘safeguarding adults’/domestic homicide reviews (established under Domestic Violence, Crime and Victims Act 2004 Article 9 (1) ‘significant case reviews’ and fatal accident inquiries in Scotland) that result in findings of neglect and/or serious criticism of actions of the state, its agents or bodies fulfilling a public function • Key allegations by private individuals and civil society organisations/reports in the media

Indicator 6: Spotlight statistics: Deaths in the police and criminal justice system context • Deaths within prisons, secure units, police and court cells, immigration and asylum centres and during transit (covering deaths from natural causes, non-natural causes and self-inflicted deaths) • Deaths during or following contact with the police (by category of death)

63

Indicator 7: Spotlight statistics: Deaths within health and social care institutions/community care • Statistics on ‘excess deaths’, ‘avoidable’ and ‘preventable’ deaths and deaths through neglect in health and social care establishments and in the community health and social care context • Statistics on the use of Do Not Resuscitate orders without consent/applications to administer lifesaving medical treatment especially for those with and without capacity

Indicator 8: Spotlight statistics: Protection from third party violations – homicide within society, community and families • Homicide rates per million disaggregated by characteristics of victim including age, gender, race/ethnicity and disability) with separate reporting of hate crime homicide, religious/racially incited homicide and domestic homicide

Indicator 9: Spotlight statistics: Premature mortality within families, community and society • Life expectancy, infant mortality, suicide rates and accidental deaths

The Right to Life – HRA, Article 2

Indicator 10: Public attitudes, understanding and experiences • Public attitudes towards the right to life as a right ‘you should have’ and ‘you do have’ • Self-reported experiences of protection of life

Indicators should be systematically disaggregated Key disaggregation characteristics include ethnicity/race, gender, disability, sexual orientation, transgender, religion and belief, age, social class, area (region, urban/rural, remoteness) with separate reporting of the non-private household population and at risk/vulnerable groups including individuals staying in/ resident/detained in public and private institutions; individuals living in poverty; refugees/asylum seekers, vulnerable children and young people (for example, children in need, ‘looked after children’, children who are carers), Gypsies and Travellers, etc.

The Right to Life – HRA, Article 2

Evidence base
Structural indicators Indicator 1: Legal and constitutional framework
Table 1: Protection of the right to life in domestic law (including constitutional/‘higher’ law) • UK HRA, Article 2. Table 2: Status of ratification of relevant international treaties43 • • • • • • • International Covenant on Civil and Political Rights (ICCPR) Article 6 – ratified. ICCPR First Optional Protocol – not ratified (individual complaints mechanism). ICCPR Second Optional Protocol – ratified (abolition of death penalty). United Nations Committee on the Rights of the Child (UNCRC) Article 6 – ratified. Convention for the Protection of All Persons from Enforced Disappearances – not ratified. ECHR and Protocols 1, 2, 3, 5, 6, 8, 10, 11, 13 and 14 – ratified. Geneva Conventions – ratified.44

Indicator 2: Legal precedents, gaps and standard-setting
Table 3: Principles established in key cases (domestic and ECHR) Procedural aspects • McCann and Others v UK [GC] no. 18984/91 [1995] ECHR45 – The European Court of Human Rights established that the obligation to ensure that everyone’s life is protected by law includes a procedural aspect whereby the circumstances of a deprivation of life receives public and independent scrutiny. See also Jordan v UK no. 24746/94 [2001] ECHR.46 R (on the application of Amin) v Secretary of State for Home Department [2003] UKHL 5147 – The House of Lords established that it is indispensable that proper procedures are in place for ensuring accountability of agents of the state in the context of the right to life. R (Middleton) v West Somerset Coroner and Another [2004] UKHL 1048 – The House of Lords considered the extent that an inquest fulfils requirements under Article 2. These concern the need for an effective public examination by an independent official body into any death occurring in circumstances in which the substantive obligations of Article 2 may have been violated and agents of the state may be implicated.

64

The Right to Life – HRA, Article 2

R (JL) v The Secretary State [2008] UKHL 6849 – The House of Lords held that a near suicide of a prisoner which left him with brain damage automatically triggered an obligation under Article 2 to conduct an investigation, which is independent, prompt and involves the next of kin. R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin)50 – Whether the refusal to give legal aid funding breached the state’s obligation to carry out an effective investigation into a death.

Use of force • McCann and Others v UK [GC] no. 18984/91 [1995] ECHR51 – The European Court of Human Rights established that the use of force must be no more than what is absolutely necessary to defend persons from unlawful violence.

Positive obligations • Osman v UK [GC] no. 23452/94 [1998] ECHR52 – The European Court of Human Rights established that police were under an obligation to take reasonable steps to protect life where they knew or ought to have known of a real and immediate risk to life. LCB v UK [1999] 27 EHRR 21253 – The European Court of Human Rights found that Article 2 includes a duty of the state in healthcare to do ‘all that could have been required of it to prevent the applicant’s life from being avoidably put at risk’ – (the case involved alleged exposure to life threatening levels of radiation linked to nuclear testing. The European Court found that the UK ought to have warned of the risks and subsequently to monitor her health in light of those risks). Calvelli and Ciglio v Italy [GC] no. 32967/96 [2002] ECHR54 – The Grand Chamber of the European Court of Human Rights held that Article 2 imposes positive obligations on the state to make regulations compelling hospitals to adopt appropriate measures for the protection of their patients’ lives. However, the European Court found that there had been no violation of Articles 2 and 6. McKerr v UK no. 28883/95 [2001] ECHR55 – The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible.

65

The Right to Life – HRA, Article 2

Öneryıldız v Turkey [GC] no. 48939/99 [2004] ECHR56 – The case concerned an explosion at a municipal dump caused by a build up of methane gases due to defective equipment, where the authorities had failed to effectively regulate and inspect. The European Court of Human Rights found that there was an obligation under Article 2 to take all appropriate steps to safeguard life and that there was a primary duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. Article 2 ‘must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake, and a fortiori in the case of industrial activities, which by their very nature are dangerous.’ The case concerns the obligation for the state to properly regulate and police dangerous activities, and the European Court found a violation of Article 2 in both its substantive and procedural aspect. Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 7457 – The House of Lords established that in addition to general obligations on health authorities and their staff, Article 2 imposes an obligation to take reasonable steps to prevent harm, where they have knowledge, actual or constructive, of a real and immediate risk to the patient’s life from self-harm. The right to life requires positive measures to protect the lives of individuals in custody in prisons and mentally ill people detained in hospitals (including protection from suicide). Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB) – The European Court of Human Rights found that the Trust had breached Article 2 because it had the requisite knowledge, actual or constructive, of a real and immediate risk to the patient’s life from self-harm, and failed to do all that could reasonably have been expected of it to avoid or prevent that risk. Brecknell v UK no. 32457/04 [2008] ECHR58 – Violation of Article 2 (lack of independence of the investigating body during the initial stages of the investigation). Opuz v Turkey no. 33401/02 [2009] ECHR59 – In a judgement establishing that the right to life requires positive measures to protect women from domestic violence, the European Court of Human Rights found a violation of Articles 2, 3 and 14. Rabone v Pennine Care NHS Trust [2010] EWCA Civ 69860 – The Court of Appeal established that the Article 2 operational obligation set out in Savage does not extend to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a ‘real and immediate’ risk of death. McCann v UK [GC] no. 18984/91 [1995] ECHR61 (cited above) also established the positive duty to undertake effective official investigations under Article 2 where death follows use of lethal force by agents of the state.

66

The Right to Life – HRA, Article 2

Deportation • Al-Saadoon & Mufdhi v UK no. 61498/08 [2010] ECHR62 – The European Court of Human Rights considered the case of two Iraqi civilians accused of murdering two members of the UK Armed Forces which was transferred to the Iraqi High Tribunal which has the power of imposing the death penalty. It found a violation of the rights of the claimants under Article 2.

Extraterritorial aspects • Al Skeini & Others v Ministry of Defence [2008] 1 AC 153 – This case concerned the application of the HRA 1998 in relation to six deaths that occurred during the occupation of southern Iraq by UK forces. The Appellate Committee held unanimously that the exceptions to territoriality were limited and were confined to examples such as embassies and naval frigates. On the facts of the appeal, the Committee held that HRA jurisdiction was capable of extending to a British military base (on which one of the deceased, Mr Mousa, was tortured to death) but refused to extend it beyond its gates, notwithstanding that British Forces were in occupation and control of Basra and its environs. Al-Skeini and others v UK (GC) no. 55721/07 [2011] ECHR63 – The European Court of Human Rights held that ‘following the removal from power of the Ba’ath regime and until the accession of the Interim Government, the United Kingdom (together with the United States) assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government. In particular, the United Kingdom assumed authority and responsibility for the maintenance of security in South East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom for the purposes of Article 1 of the Convention.’ R (Smith) v Secretary of State for Defence [2010] UKSC 2964 – The Supreme Court considered the jurisdiction of Article 2 and the implications that this has for inquest requirements in relation to a soldier who died of heat stroke while serving in Iraq. Whilst finding that members of a state’s armed forces serving abroad are not automatically within the jurisdiction of the state, a public inquest was found to be necessary ‘because the evidence that was placed before the Coroner has raised the possibility that there was a failure in the system that should have been in place to protect soldiers from the risk posed by the extreme temperatures in which they had to serve. On the facts disclosed it was arguable that there was a breach of the State’s substantive obligations under article 2. This was enough to trigger the need to give a verdict that complied with the requirements of article 2.’

67

The Right to Life – HRA, Article 2

Assisted suicide • Pretty v UK no. 2346/02 [2002] ECHR65 – The European Court of Human Rights established that the right to life does not incorporate right to commit suicide. [c.f. recent Swiss case Haas v Switzerland no. 31322/07 ECHR66, where right to choose manner and timing of death was an element of Article 8, provided the individual had the legal and practical capacity to take their life. There is no positive duty under the ECHR to support someone to realise that element of self-determination. The applicant had tried several psychiatrists and none would provide him with the prescription for medication he felt he needed to take his life.]

Withdrawal of life sustaining treatment • Airedale NHS Trust v Bland [1993] AC 78967, Re A (Children) (Cojoined twins: Surgical Separation) [2001] Fam 14768 – The domestic courts have found that the withdrawal of life-sustaining treatment from terminally ill patients will not violate Article 2. NHS Trust A v Mrs M, NHS Trust B v Mrs H [2001] 1 All ER 801 and North Staffordshire Combined Healthcare Trust v Dorothy Humphries [2001] 2 FLR 501 – the principles set out by the House of Lords in Bland v Airedale NHS Trust, according to which it may be lawful to withdraw artificial nutrition and hydration from patients in a persistent vegetative state, are compatible with Articles 2 and 3 of the ECHR (NHS Litigation Authority, 2007).69 Re OT [2009] EWHC 633 (Fam) – The High Court found that the withdrawal of life sustaining treatment, which was no longer in the patient’s best interest, was not a breach of Article 2 or Article 8.

Table 4: Principles established in international standard-setting processes • In its General Comment 6, the UN Human Rights Committee (UNHRC) has stated that the state is not only under a negative obligation to refrain from intentional and unlawful taking of life, but also a positive obligation to protect life (including, for example, steps to reduce infant mortality and to increase life expectancy). The state is required to take ‘all possible measures to reduce infant mortality and to increase life expectancy’.71

Table 5: Gaps in legal protection • • Individual complaints under ICCPR First Optional Protocol. Domestic legislation – the Joint Committee on Human Rights (JCHR) highlighted that there was no protection available under UK law for circumstances where there has been a serious breach of the right to life as a result of the gross management failure of a private or public organisation, but no identifiable individual within the organisation can be proved to be responsible for the failure. (JCHR, 2007).72 For relevant primary legislation, see Table 9. 68

The Right to Life – HRA, Article 2

Table 6: The right to life – non-implementation of legal judgements and recommendations • The JCHR highlighted a series of cases concerning the use of force by the security forces in Northern Ireland, Jordan, McKerr, Finucane, Kelly, Shanaghan, and McShane, arguing that they are notable for the considerable delay there has been in agreeing appropriate implementation measures, in particular in respect of establishing new independent inquiries in the individual cases concerned.73

Process indicators Indicator 3: Regulatory framework
Table 7: The right to life – identification of key regulators, inspectorates, ombudsman and examples of relevant responsibilities, powers and standards • • • • • • • • • • • • • • Independent Police Complaints Commission (IPCC) (investigate all deaths following police contact and complaints). Prisons and Probation Ombudsman (PPO) (investigate all deaths in custody). Ministerial Board on Deaths in Custody.74 Independent Advisory Panel on Deaths in Custody.75 HM Inspectorate of Prisons (HMIP) for England and Wales. HMIP for Scotland. Care Quality Commission (CQC) (responsive inspections and investigations relating to deaths). Health and Social Care Ombudsman (complaints handling, including relating to deaths) Office for standards in education, children’s services and skills (Ofsted). Health and Safety Executive (HSE). Police Complaints Commissioner for Scotland (investigate complaints, including complaints about deaths and Quality of Service complaints). Crown Office and Procurator Fiscal Service (COPFS). Scottish Public Services Ombudsman. Scottish Fatal Accidents Inquiries – the primary investigative mechanism to comply with Article 2 in Scotland, undertaken by Sheriffs.76

69

The Right to Life – HRA, Article 2

• • • •

HM Inspectorate of Constabulary for Scotland. HM Inspectorate of Constabulary(HMIC). Crown Prosecution Service (CPS). National Preventive Mechanism (NPM)77.

Table 8: Spotlight responsibilities and powers of key regulators and inspectors Example 1: The procedural duty to investigate deaths under Article 2 – interpretation by the IPCC In a submission to the JCHR in 2006, the IPCC noted that Article 2 of the ECHR is interpreted as involving not only a negative obligation upon the state not to take life, but also a positive obligation to take steps to protect the right to life, including a procedural obligation to ensure that there is an adequate and effective investigation into deaths which are alleged to have arisen from the use of lethal force by state agents, or from the state’s negligent failure to protect the lives of persons for whom it is responsible. The IPCC submission further notes that IPCC investigations enable the state to comply with the requirement under Article 2 for an effective independent investigation into any alleged breach by the police. Any death or serious injury following some form of direct or indirect contact with the police where there is reason to believe that the contact may have caused or contributed to the death or serious injury, must be referred to the IPCC, regardless of whether there has been a complaint. In this way, through its investigatory function, the IPCC plays an important role in ensuring compliance by the state with Article 2 where the police are concerned. An effective independent investigation is followed by full criminal proceedings or, in their absence where a death is involved, an inquest. In this way, the state discharges its procedural investigative obligations under Article 2. Source: IPCC (2006).

70

The Right to Life – HRA, Article 2

Example 2: The positive duty to take reasonable measures to prevent suicide in prisons under Article 2 – interpretation by HMIP Scotland In Scotland, standards used in the inspection of prisons are explicitly linked to human rights standards including international human rights treaties, the HRA and domestic and regional jurisprudence. International and domestic case law feed into an inspection model and a system of indicators, which include regular inspections to ensure that appropriate steps are taken to ensure that individual prisoners are protected from harm by themselves and others. In interpreting its duties under the right to life, HMIP Scotland is clear that the duties of the regulator extend to the positive duty to take reasonable measures to protect life: ‘Article 2 of the European Convention on Human Rights (Schedule 1 of the Human Rights Act 1998) guarantees the right to life. The UK Parliamentary Joint Committee on Human Rights has emphasised that there is a close link between the right to life and the duty of care: Article 2 imposes on States, not only a negative duty not to take life intentionally or negligently, but also a positive duty to safeguard life. Case law makes it clear that the duty of care linked to the positive obligation to protect life comes into play whenever the prison authorities know or ought to know that there is a risk to a prisoner’s life. There is a breach of Article 2 if, when knowing there is a risk, the authorities fail to take reasonable measures to prevent the harm. So the safety and protection of the individual prisoner is a legal duty’. Source: HMIP (2006).

71

The Right to Life – HRA, Article 2

Example 3: Positive duties to inspect prisons under the CAT The HMIP Expectations document sets out criteria for assessing the conditions in prisons and the treatment of prisoners. This document notes that the Joint Parliamentary Human Rights Committee considers that independent, human rights based inspection criteria are essential to fulfil the requirements of the Optional Protocol to the CAT, which requires states to have in place an independent expert preventive mechanism for regularly visiting and inspecting places of detention. The Expectations criteria draw on, and are referenced against, both the HRA and international human rights standards. And HMIP’s four tests – safety, respect, purposeful activity and resettlement – are increasingly accepted, both domestically and internationally, as the cornerstones of a ‘healthy’ custodial environment. As in Scotland, HMIP in England and Wales recognises that there is a duty of care in relation to suicide prevention in prisons and the importance of accountability. Suicide prevention is a key element of the inspection methodology of HMIP. The four tests of a ‘healthy prison’ were introduced in HMIP’s thematic review Suicide is everyone’s concern. Judgements against each of the healthy prison tests are made and published in all full inspection reports. Source: HMIP (2008), www.justice.gov.uk/downloads/publications/inspectorate-reports/ hmipris/expectations_2009.pdf and HMIP (2010b) www.justice.gov.uk/inspectorates/hmiprisons/docs/HMIP_AR_2008-9_web_published_rps.pdf Example 4: Review of Fatal Accident Inquiry legislation Lord Cullen undertook a review of Fatal Accident Inquiry (FAI) legislation in 2009. Key recommendations included extending the categories under which an FAI should be mandatory to include work-related deaths, deaths of any person subject to compulsory detention by a public authority, and deaths of children being maintained in a ‘residential establishment’. Source: Scottish Government (2009b) www.scotland.gov.uk/Resource/Doc/290392/0089246.pdf

72

The Right to Life – HRA, Article 2

Indicator 4: Public policy framework
Table 9: Spotlight primary legislation78 The Corporate Manslaughter and Corporate Homicide Act 2007 This Act, which came into effect in 2008, created a new offence of corporate manslaughter which can be committed by organisations which cause the death of a person through gross negligence management failings.. The legislation strengthens the accountability of custody providers under the criminal law and covers both public and private providers, such as prisons, secure hospitals, police and juvenile detention facilities. The law has also been extended to that it applies to Ministry of Defence and UK Borders Agency customs custodial facilities.

73

The Right to Life – HRA, Article 2

Table 10: Use of lethal force/potentially lethal force – policy guidance and training guidelines Prison and Secure Training Centre (STC) context • • • Prison Services Policy (Prison Service Order (PSO) 1600 Use of Force79) and Use of Force Training Manual. PSO 2700 Suicide prevention and self harm management80; PSO 2710 Follow up to deaths in custody. The Secure Training Centre (Amendment) Rules, which amended the Secure Training Centre Rules 1998, amend the existing rules to permit STCs to use force against detained children and young people to ‘ensure good order and discipline’. The Amendment Rules were criticised for widening the scope for restraint in STCs (JCHR, 2008).81 The Ministry of Justice’s (MoJ’s) Physical Control in Care Training Manual,created by the National Offender Management Service ‘to train staff in safe methods of restraining young people in secure training centres’,amended July 2010(National Offender Management Service, 2010).82

Police context • • • Criminal Law Act 1967 Part 1 Section 3, use of force in making an arrest.83 Guidance on the Safer Detention & Handling of Persons in Police Custody (Association of Chief Police Officers (ACPO), 2006).84 Police and Criminal Evidence Act (PACE) Code C, setting out the requirements for the detention, treatment and questioning of suspects not related to terrorism in police custody.85 PACE Code Hon the detention, treatment and questioning by police officers of persons under Section 41 of, and Schedule 8 to, the Terrorism Act 2000.86 Operational Use of Taser Guidance (ACPO,2008).87 Human Rights Advice on the Use of Taser (Starmer and Gordon, 2007) – Tasers should be treated as potentially lethal equipment, rather than lethal or non-lethal. The fact that a Taser should be treated as potentially lethal does not mean that its use can never be compatible with Article 2 of the ECHR (the right to life) or the HRA. The proper test under Article 2 of the ECHR and the HRA for the use of a Taser is that its use will be lawful where it is immediately necessary to prevent or reduce the likelihood of recourse to lethal force (for example, conventional firearms). ACPO, Manual of Guidance on Keeping the Peace (National Policing Improvement Agency (NPIA), 2010).89

• • •

74

The Right to Life – HRA, Article 2

HM Inspectorate of Constabulary (HMIC), Policing Public Order. An overview and review of progress against the recommendations of Adapting to Protest and Nurturing the British Model of Policing, February 201190. HMIC ‘found less progress on one of its key recommendations (Nurturing the British Model 1a): that a single overarching set of principles on the use of force be adopted across the Service’91.

Health and social care context England and Wales • • Mental Health Act 1983 Section 136, relating to the police powers to detain a person suffering from a mental disorder in a public place ‘in a place of safety’.92 Mental Capacity Act (2005): Code of Practice93 – Sections 6.40-6.48 set out the definition of restraint and the conditions that have to be satisfied in order for it to be legally justified, particularly if the person being restrained does not have the capacity to consent (Qureshi, 2009); Sections 24-26 relating to Advance Decisions to refuse treatment. NICE Clinical Guideline 42 – ‘Health and social care staff should be trained to anticipate behaviour that challenges and how to manage violence, aggression and extreme agitation, including de-escalation techniques and methods of physical restraint’ (National Institute for Health and Clinical Excellence (NICE) and Social Care Institute for Excellence (SCIE), 2006).94 Rights, risks and restraints: An exploration into the use of restraint in the care of older people.(Commission for Social Care Inspection (CSCI), 2007a).95 Guidance for inspectors: How to move towards restraint free care (CSCI, 2007b).96 Mental Capacity Act 2005 – Deprivation of Liberty Safeguards – code of practice97 – ‘this code of practice provides safeguards for people who lack capacity specifically to consent to treatment or care in either a hospital or a care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty (as opposed to a restriction of liberty), and where detention under the 1983 Mental Health Act is not appropriate for the person at that time’ (Qureshi, 2009:35).98

• • •

Scotland • Rights, risks and limits to freedom: Principles and guidance on good practice in caring for residents with dementia and related disorders and residents with learning disabilities where consideration is being given to the use of physical restraint and other limits to freedom (Mental Welfare Commission for Scotland, 2006).99

See Table 346. 75

The Right to Life – HRA, Article 2

Outcome indicators Indicator 5: Outcomes of key judicial, regulatory and investigative processes
Table 11: Violations of the right to life – case law outcomes Procedural aspects of Article 2 • • McCann and Others v UK [GC] no. 18984/91 [1995] ECHR100 – Violation of Article 2 (see Table 3). R (on the application of Amin) v Secretary of State for Home Department [2003] UKHL 51 – In finding a violation of Article 2 due to the lack of a post-mortem investigation consistent with domestic and Convention standards, the House of Lords established that it is indispensable that proper procedures are in place for ensuring accountability of agents of the state in the context of the right to life (see Table 3). R (Middleton) v West Somerset Coroner and Another [2004] UKHL 10101 – The House of Lords considered the extent that an inquest fulfils requirements under Article 2. These concern the need for an effective public examination by an independent official body into any death occurring in circumstances in which the substantive obligations of Article 2 may have been violated and agents of the state may be implicated (see Table 3). R (JL) v The Secretary State [2008] UKHL 68102 – The House of Lords held that a near suicide of a prisoner which left him with brain damage automatically triggered an obligation under Article 2 to conduct an investigation, which is independent, prompt and involves the next of kin (see Table 3). R (Humberstone) v Legal Services Commission [2010] EWHC 760 (Admin)103 – The refusal to give legal aid funding breached the state’s obligation to carry out an effective investigation into a death (see Table 3).

Use of force • McCann and Others v UK [GC] no. 18984/91 [1995] ECHR104 – In finding a violation of Article 2, the European Court of Human Rights established that the use of force must be no more than what is absolutely necessary to defend persons from unlawful violence (see Table 3).

Positive obligations • Osman v UK [GC] no. 23452/94 [1998] ECHR105 – The European Court of Human Rights found no violation of Articles 2 and 8, however,it did find that there had been a violation of Article 6 (see Table 3).

76

The Right to Life – HRA, Article 2

• • • •

LCB v UK [1999] 27 EHRR 212106 – No violation of Articles 2 and 8 (see Table 3). McKerr v UK no. 28883/95 [2001] ECHR107 – Violation of Article 2 (see Table 3). Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74108 – The Court found a violation of Article 2 (see Table 3). Brecknell v UK no. 32457/04 [2008] ECHR109 – Violation of Article 2 (lack of independence of the investigating body during the initial stages of the investigation) (see Table 3). Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698110 – No violation of Article 2 (see Table 3). R (on the application of Amin) v Secretary of State for Home Department [2003] UKHL 51111 – The House of Lords found that the refusal to hold a public inquiry was a breach of Article 2 (see Table 3).

• •

Deportation and Article 2 • Al-Saadoon & Mufdhi v UK no. 61498/08 [2010] ECHR112 – The European Court of Human Rights found a violation of Article 3 (see Table 3).

Extraterritorial aspects of Article 2 • • Al-Skeini and others v UK (GC) no. 55721/07 [2011] ECHR113 – The European Court of Human Rights found a violation of Article 2 (procedural aspect) (see Table 3). R (Smith) v Secretary of State for Defence [2009] EWCA Civ 441114 – Relating to the procedural obligation on the state to undertake an Article 2 investigation (see Table 3).

Assisted suicide • Pretty v UK no. 2346/02 [2002] ECHR115 – The European Court of Human Rights found no violation of Article 2 (see Table 3).

77

The Right to Life – HRA, Article 2

Withdrawal of life sustaining treatment • Airedale NHS Trust v Bland [1993] AC 789116, Re A (Children) (Cojoined twins: Surgical Separation) [2001] Fam 147117 – The withdrawal of life sustaining treatment from terminally ill patients will not violate Article 2 (see Table 3). NHS Trust A v Mrs M, NHS Trust B v Mrs H [2001] 1 All ER 801 and North Staffordshire Combined Healthcare Trust v Dorothy Humphries [2001] 2 FLR 501 – The principles set out by the House of Lords in Bland v Airedale NHS Trust, according to which it may be lawful to withdraw artificial nutrition and hydration from patients in a persistent vegetative state, are compatible with Articles 2 and 3 of the ECHR (Human Rights Information Service, 2007)118 (see Table 3). Re OT [2009] EWHC 633 (Fam) – The High Court found that the withdrawal of life sustaining treatment, which was no longer in the patient’s best interest, was not a breach of Articles 2 or 8 (see Table 3).

Table 12: The right to life – key concerns raised by human rights monitoring bodies Domestic JCHR (2009b) – Coroners and Justice Bill119 – Concern that provision for certified inquests would contravene Article 2 of ECHR. JCHR (2004b) – Deaths in Custody120 – Examining the causes of deaths in custody, and considering what may be done to prevent these deaths, and to better protect the right to life, and other human rights, of vulnerable people held in the custody of the state. JCHR (2007) – Treatment of older people in health and social care, including malnutrition and dehydration (see Table 83). International United Nations Committee on the Elimination of Discrimination against Women (UNCEDAW) (2008) – Expressed concern over ‘the high rate of maternal mortality among all ethnic minorities [as well as high numbers of miscarriages and stillbirths particularly for women from Traveller communities]’. It also noted that ‘women of minority and ethnic communities suffer higher rates of depression and mental illness, while women of Asian descent have higher suicide and self-harm rates’.121 UNCRC (2008) – Was ‘very concerned’ about UK child deaths in custody as well as ‘the high prevalence of self-injurious behaviour among children in custody’. The UNCRC also expressed concern about ‘the widening gap in infant mortality between the most and the least well-off groups’. United Nations Committee on Economic Social and Cultural Rights (UNCESCR) (2009) – Expressed concern about the increasing suicide rates of mental health patients.122

78

The Right to Life – HRA, Article 2

Table 13: The right to life – Commission case law interventions The need for positive duties to protect life Chief Constable of Hertfordshire Police v Van Colle [2008] UKHL 50; Smith v Chief Constable of Sussex Police, House of Lords The Commission made submissions in these cases on the scope of the obligation on law enforcement authorities to take steps to protect individuals from threats to their life by third parties. It argued that the Court of Appeal applied the correct principles as to when a positive obligation had been engaged, that is was necessary to have a flexible approach which did not apply a strict threshold, and that in this case the duty had been breached. The Commission also made submissions on the proper relationship between common law negligence and a failure to discharge the positive obligation implicit in Article 2 of the HRA; for example, that if a negligence claim fails, that does not automatically mean that an HRA claim fails. In the case of Van Colle, concerning whether the Osman test under Article 2 had been met such that a positive obligation arose, the House of Lords found the police did not breach Mr Van Colle’s right to life under Article 2 of the HRA in failing to take further steps to prevent his murder. In Smith, the case concerned the extending of the duty of care in negligence to cases of failures to protect life. The House of Lords allowed the appeal by Sussex Police and effectively restored the decision of the First Instance Judge who struck out the negligence claim. The House of Lords approved the principle in Hill v Chief Constable of West Yorkshire Police [1989] AC 53 that, in the absence of special circumstances, the police owed no common law duty of care to protect individuals against harm caused by criminals, since such a duty would encourage defensive policing and would divert manpower and resources from their primary function of suppressing crime and apprehending criminals in the general public interest.

79

The Right to Life – HRA, Article 2

The need for an effective and independent investigation (and what constitutes an effective and independent investigation) R (JL) v Secretary of State for Home Department, House of Lords, 2008] UKHL 68. The case concerned an attempted suicide at a young offenders institution. The House of Lords accepted the Commission’s submissions that near deaths in custody warranted an independent Article 2 compliant investigation. Oxfordshire Assistant Deputy Coroner and Secretary of State for Defence v R (Catherine Smith) [2009] EWCA Civ 441. The case concerned the territorial application of the HRA and the ECHR and the duty to hold an independent investigation. The Court accepted the Commission’s submissions on the jurisdictional application of HRA and on the need for Article 2 compliant investigation. R (Smith) v Secretary of State for Defence [2010] UKSC 29. The case concerned the jurisdictional application of human rights protection for British military personnel and the right to an investigation under Article 2. The Supreme Court accepted the Commission’s submissions on the need for an Article 2 compliant investigation but did not accept its submissions on the jurisdictional application of the HRA. Source: Equality and Human Rights Commission (2010c). Table 14: The right to life – summary of the outcomes of key inspection, regulation and complaints procedures; independent investigations into deaths related to the use of unlawful/arbitrary force; and other official investigations, inquiries and reviews into deaths that result in serious criticism of actions of the state, its agents or bodies fulfilling a public function Protection of life: army context • The Bloody Sunday Inquiry123, which found that the unjustifiable firing by soldiers on Bloody Sunday caused the deaths of 13 people and injury to a similar number, none of whom was posing a threat of causing death or serious injury. Inquest into the death of Corporal Mark Wright, killed in Afghanistan in 2006, finding that a lack of appropriate military equipment was one of the causes of his death.124

Protection of life: police context • Inquest into death of Paul Davies, finding that his death was contributed to by police neglect, due to lack of training of officers in forced search and control and restraint of a detained person.125 The Stockwell Investigation into the fatal shooting of Jean Charles de Menezes126, leading to the prosecution of the Office of the Commissioner of Police of the Metropolis for failing to provide for the health, safety and welfare of Jean Charles de Menezes.

80

The Right to Life – HRA, Article 2

IPCC Investigation into the death of Ian Tomlinson127, relating to the alleged use of force by a police officer that was not necessary, proportionate or reasonable in the circumstances. The Crown Prosecution Service has subsequently determined that the officer involved in the incident will be charged with manslaughter.128 IPCC investigation into the death of Rabina Bibi, finding that the police force failed Ms Bibi by not dispatching police officers to her when she initially called for assistance, contrary to force policy on domestic abuse.129 IPCC investigation into the death of Fiona Pilkington, who had made 33 calls over a seven-year period asking police for help after suffering repeated and continuing abuse and torment from a gang of youths130. The IPCC’s final report concluded that the failure by police officers to identify Fiona Pilkington, her son and severely disabled daughter ‘as a collective vulnerable family unit’ was ‘at the core of Leicestershire Constabulary’s failure to implement a cohesive, structured and effective approach to the harassment/anti social behaviour from which they were suffering’ (IPCC, 2009c, 2010:23).131 Investigation into Deaths in or following police custody: An examination of the cases 1998/99 – 2008/09 (Hannan et al., 2010).132

Protection of life: STC context • Inquest into the death of 14-year-old Adam Rickwood, criticising failings by the private company running the Hassockfield STC, the Youth Justice Board, Prison Service restraint trainers and the Lancashire Youth Offending Team. Finding that unlawful use of restraint contributed to the death (Inquest, 2007).133

Protection of life: prison context • The Scottish Parliament, Conditions in Scottish Prisons, Research Note 00/34, 16 May 2000134, providing some statistical briefing on conditions in Scottish prisons in relation to the practice of slopping out, overcrowding, suicide rates, drugs misuse and violence by prisoners. Finding that ‘Levels of suicide… continue to pose a serious problem in Scottish prisons despite the introduction by SPS in 1998-99 of a new estate-wide suicide prevention strategy’ (Scottish Parliament, 2000).

Protection of life: immigration detention and deportation • HMIP, Detainee escorts and removals: A thematic review, August 2009135, ‘found a number of weaknesses in the systems for monitoring, investigating and complaining about incidents where force had been used or where abuse was alleged’ (HMIP, 2010c).136

81

The Right to Life – HRA, Article 2

FAI, Scotland137 • Suicide at Dunvagel Immigration removal centre, 2004138, finding that ‘Failure to facilitate communication between non-English speaking detainees and the authorities detaining them is likely to lead to wrong assessments being made, wrong decisions being taken, risks to the physical or mental health of such detainees and to injustice to at least some of them’. Suicide at Barlinnie Prison, 2003139, emphasising the issue of language difficulties in accurately assessing the suicide risk of a non-English speaking prisoner and finding that the case highlighted ‘the difficulties potentially presented for non-English speaking prisoners and those from different ethnic or cultural backgrounds’. Death in hospital, 2004140, finding that full and accurate medical and nursing notes are absolutely essential to enable a proper assessment of the patient to be made by all medical staff involved in the care of the patient. Head injury caused by a fall when under the influence of alcohol, 2004141, recommending that ‘Consideration should be given to the provision of supervised accommodation to which persons arrested or detained under the influence of alcohol might be admitted. Such provision would require... a degree of medical supervision and be subject to a regime of checking or observation similar to that which currently exists for dealing with vulnerable patients in custody’. Choking on food in hospital, 2004142, finding that the death may have been avoided by ‘having in place a system of ensuring patients were provided with the consistency of food for their particular dietary needs’.

Protection of life: health context • Mid Staffordshire NHS Foundation Trust Inquiry 2009 Report143, identifying severe failings in emergency care provided by Mid Staffordshire NHS Foundation Trust between 2005 and mid 2008. See Table 16 for a detailed overview (Healthcare Commission (now the Care Quality Commission), 2009).

Protection of life: health context, maternal deaths context • Healthcare Commission Investigation into 10 maternal deaths at, or following delivery at, Northwick Park Hospital, North West London Hospitals NHS Trust, between April 2002 and April 2005. The report finds that there were either major or minor deficiencies in the care and treatment provided to all but one of the 10 women144 (Healthcare Commission (now the Care Quality Commission), 2006).

82

The Right to Life – HRA, Article 2

Protection of life: the mental health context • Parliamentary Health Service Ombudsman (PHSO) and the Local Government Ombudsman (PHSO, 2009), Six Lives, highlights failures in the quality of health and social care services for people with learning disabilities; finding, with maladministration, service failure and unremedied injustice in a number, but not all, of the 20 bodies investigated (three councils, 16 NHS bodies and the Healthcare Commission (now the Care Quality Commission)) (also see Mencap’s Death by Indifference campaign) (see Table 17 for further details).

Protection of life: social care context • Inquest into the death of Alan Simper, finding that he died from infected multiple pressure sores as a result of care failings by the nursing home in which he was resident.145 Inquest into the death of Will Perrin, finding that his death was due to neglect by the care home in which he resided. The coroner condemned the home’s ‘failure to provide basic food or nourishment’.146 Joint police and Health and Safety Executive investigation into the death of Anthony Pinder, which found that the care home in which Mr Pinder was resident had failed to ensure that staff were adequately trained to carry out the safe physical restraint of residents.147

End of life care • PHSO Report (PHSO, 2011), Care and Compassion. Report of the Health Services Ombudsman on 10 investigations into NHS care of older people148, February 2011. The report provides a summary of 10 investigations undertaken by the PHSO; the Ombudsman notes that ‘the reasonable expectation that an older person or their family may have of dignified, pain-free end of life care, in clean surroundings in hospital, is not being fulfilled. Instead, these accounts present a picture of NHS provision that is failing to respond to the needs of older people with care and compassion and to provide even the most basic standards of care’.

Treatment of older people in health and social care • Evidence on compliance with minimum nutritional standards is provided in Care Quality Commission (2011c) (see Table 85 for further details).

83

The Right to Life – HRA, Article 2

Protection of life: child protection context • Victoria Climbié Inquiry 2003149, documenting the ‘gross failure’ of the UK’s child protection system leading to the death of Victoria Climbié. The Inquiry’s Chairman concluded that ‘despite the Children Act 1989 having been in force for just under a decade, the standard of investigation into criminal offences against children may not be as rigorous as the investigation of similar crimes against adults’. The Laming Review of Child Protection (Baby P case) 2009150, making wide-ranging recommendations in relation to child protection in the UK (Laming, 2009). Adult and Child Protection Committee’s Significant Case Reviews, for example, a significant case review was commissioned in line with national guidance to examine the particular circumstances surrounding the child protection issues, and the role of the various authorities involved, following the death of Brandon Muir in Dundee in 2008.151

• •

Protection of life: Outcomes of serious case reviews • Safeguarding Adults Board Serious Case Reviews (Jean and Derek Randall case) – finding no neglect by authorities in relation to the death of an elderly couple who died of natural causes in their home after refusing offers of help by local authorities.152 Serious Case Review, Parkside House, Northamptonshire, June 2010 (on behalf of Northamptonshire Safeguarding Vulnerable Adults Board) – a review into the case of five elderly people who died from causes that were considered to be consistent with the effects of severe neglect.153

84

The Right to Life – HRA, Article 2

Proportion of child death1 reviews completed by Child Death Overview Panels (CDOPs) on behalf of Local Safeguarding Children Boards (LSCBs)2 which were reviewed as preventable. England, years ending 31 March 2009 and 2010
Number of child death reviews completed on behalf of the LSCB which were assessed as preventable6 in the year ending 31 March 2009 2010 Total 2009 and 2010 260 20 20 20 30 40 20 40 30 20 50 20 Proportion of all completed child deaths reviewed which were assessed as preventable7 in the year ending 31 March 2009 2010 Total 2009 and 2010 5% 7% 2% 3% 5% 5% 4% 5% 8% 3% 7% 7%

England Region North East North West12 Yorkshire and Humberside East Midlands West Midlands East of England London Inner London Outer London South East South West

110 10 10 10 10 20 x 20 20 x 30 10

150 10 10 10 20 30 20 20 10 10 20 10

5% 12% 2% 4% 5% 4% x 5% 10% x 14% 15%

4% 6% 2% 3% 5% 5% 6% 5% 6% 4% 4% 5%

Source: Department for Education (2010a), Table A.

85

The Right to Life – HRA, Article 2

Notes: 1. A child for these purposes is defined as a child aged 0 up to 18 years, excluding still births. 2. Figures are rounded to the nearest 10. Figures may not add up due to rounding. Numbers from 1 to 5 inclusive have been suppressed, being replaced by a cross (x). Percentages are shown rounded to whole numbers but where the numerator was five or less or the denominator was 10 or less, they have been suppressed and replaced by a cross (x). Notes 3-5 are not shown as they relate to additional data from the source table that is not presented here. 6. A preventable child death is defined as ‘events, actions or omissions contributing to the death of a child or to substandard care of a child who died, and which, by means of national or locally achievable interventions, can be modified’. 7. A number of panels encountered issues in the first year of reviewing child deaths which meant that the proportion of deaths assessed as preventable was artificially high, or artificially low. For example some panels prioritised the order in which deaths were reviewed to ensure that by 31 March 2009 the deaths with they felt had the greatest learning points were reviewed fully. This resulted in a high proportion of preventable child deaths in the first year of reviewing deaths. Other panels had experienced problems interpreting the definition of preventability, therefore by 31 March 2009 they felt unable to fully review many of the child deaths which were the most complex and more likely to be preventable. This resulted in a low proportion of preventable child deaths in the first year of reviewing deaths. Notes 8-10 are not shown as they relate to additional data from the source table that is not presented here. 11. This proportion is calculated by dividing the sum of number of child death reviews completed in the year ending 31 March 2009 and 31 March 2010 (column F) by the approximate number of deaths in the year ending 31 March 2009 and 31 March 2010 (Column Q). 12. Please note that one LSCB included child death reviews which had been completed in April 2009 in the data provided for the year ending 31 March 2009, therefore there are a small number of children included in the last two columns in the table.

86

The Right to Life – HRA, Article 2

Table 15: Outcomes of key investigations into deaths – concerns around police response and the failure to protect highlighted by the IPCC The IPCC Annual Report for 2008-09 details nine deaths that were alleged murders where concerns were raised about the police response prior to the death. The largest group of cases included women (six) who were known to be at risk from their former partners and were subsequently murdered. Two children were found dead after officers responded to a call expressing concerns about their mother’s mental welfare. One teenager was shot dead after police were made aware that he had been the target of a stabbing attack. Source: IPCC (2009d: 5,6). The IPCC Annual Report for 2009-10 notes that a growing number of referrals and complaints are in cases where violence against and abuse of women is involved. Another trend is the number of cases where the allegation is that the police and other statutory agencies have failed to protect women or vulnerable people from violence and abuse. The IPCC states that: ‘Failure to protect covers cases where there has been prior contact with the police, but the allegation or concern is that their actions have not prevented a death, injury or serious offence. Investigations into these cases focus on whether a different course of action by the police could have prevented the tragic outcome’. A number of relevant investigations into deaths are detailed in the IPCC 2009-10 Annual Report. For example, the IPCC carried out an independent investigation into the way that West Midlands Police responded to contact from Ms Rabina Bibi on the day of her death. Ms Bibi was murdered at her home in Coventry in 2008 by her ex-partner in front of her seven-year-old daughter. The IPCC investigation found that the force failed Ms Bibi by not dispatching police officers to her when she initially called for assistance, contrary to force policy on domestic abuse. Source: IPCC (2010).

87

The Right to Life – HRA, Article 2

The terms of investigation of the IPCC report into the death of Ms Rabina Bibi included an explicit reference to the duty to take reasonable steps to protect life under the HRA. These included explicit consideration of whether ‘The force had met its obligations – under Article 2 of the Human Rights Act and otherwise – to take reasonable steps to protect Rabina Bibi’s life’. Source: Report following the IPCC’s independent investigation into West Midlands police contact with Rabina Bibi immediately prior to her death in Foleshill on 3 September 2008, 25 January 2010, www.ipcc.gov.uk/en/Pages/inv_reports_central_ region.aspx The IPCC Annual Report for 2009-10 further notes that the police failure to protect can also be an issue in cases where the police have not responded to reports of anti-social behaviour. An inquest into the deaths of Fiona Pilkington and her daughter ended in September 2009. The inquest heard that Ms Pilkington and her neighbours had made 33 calls over a seven-year period asking police for help after suffering repeated and continuing abuse and torment from a gang of youths outside her home in Barwell. In October 2007, Ms Pilkington drove to a lay-by near Earl Shilton, Leicestershire and set the car alight with herself and her disabled daughter inside the vehicle. The IPCC’s final report concluded that the failure by police officers to identify Fiona Pilkington, her son and daughter ‘as a collective vulnerable family unit’ was ‘at the core of Leicestershire Constabulary’s failure to implement a cohesive, structured and effective approach to the harassment/antisocial behaviour from which they were suffering’.154 Source: IPCC (2010). Table 16: Outcomes of key investigations into deaths – investigation of ‘excess deaths’ in Mid Staffordshire NHS Foundation Trust by the Healthcare Commission (now the Care Quality Commission) In 2008 the Healthcare Commission (now the Care Quality Commission) carried out an investigation into apparently high mortality rates in patients admitted as emergencies to Mid Staffordshire NHS Foundation Trust since April 2005, and the care provided to these patients. It also considered the trust’s arrangements for monitoring mortality rates and its systems for ensuring that patients were cared for safely. One of the aims of the investigation was to clarify how the trust investigated its apparently high mortality rates. Analysis undertaken for the investigation showed that the trust consistently had a high mortality rate for patients admitted as emergencies, which it could not explain. The rate had been comparatively high for several years, but the trust had not investigated this. In April 2007, Dr Foster’s Hospital Guide showed that the trust had a hospital standardised mortality ratio (HSMR) of 127 for 2005-06, in other words more deaths than expected. The trust established a group to look into mortality, but put much of its effort into attempting to establish whether the high rate was a consequence of poor recording of clinical information. 88

The Right to Life – HRA, Article 2

The investigation found that the trust did not have a grip on operational and organisational issues, with no effective system for the admission and management of patients admitted as emergencies. Nor did it have a system to monitor outcomes for patients, so it failed to identify high mortality rates among patients admitted as emergencies. This was a serious failing. Commenting on the national picture and lessons for other organisations , the investigation recommended that in the future trusts should be able to get access to timely and reliable information on comparative mortality and other outcomes, and for trusts to conduct objective and robust reviews of mortality rates and individual cases, rather than assuming errors in data. Source: Healthcare Commission (now the Care Quality Commission) (2009). Table 17: Outcomes of key investigations into deaths – investigation into six deaths of people with learning difficulties by the PHSO The PHSO and the Local Government Ombudsman Six Lives Report sets out the findings of its investigation into complaints about the deaths of six people with learning difficulties. The report highlights failures in the quality of health and social care services for people with learning disabilities; finding, with maladministration, service failure and unremedied injustice in a number, but not all, of the 20 bodies investigated (three councils, 16 NHS bodies and the Healthcare Commission(now the Care Quality Commission)). Significant failures in service across both health and social care are identified. The report highlights the impact of organisational behaviour which does not adapt to individual needs, or even consistently follow procedures designed to maintain a basic quality of service for everyone. A lack of leadership and a failure to understand the law in relation to disability discrimination and human rights is highlighted. This led to situations in which people with learning disabilities were treated less favourably than others, resulting in prolonged suffering and inappropriate care. The PHSO concluded that in one case the death of the person concerned occurred as a consequence of the service failure and maladministration identified. In another case it concluded that it was likely the death of the person could have been avoided, had the care and treatment provided not fallen so far below the relevant standard. In two cases, although complaints of service failure and maladministration were upheld, the Ombudsman did not conclude that the person’s death was avoidable. Source: PHSO (2009).

89

The Right to Life – HRA, Article 2

Table 18: The right to life – key concerns and allegations raised by private individuals and civil society organisations/reports in the media • Inquest’s Briefing on the death of Ian Tomlinson155, arguing that Mr Tomlinson’s death raises key concerns around ‘police powers, tactics and responsibilities’. Inquest argued that ‘The controversial circumstances surrounding Mr Tomlinson’s death require robust, independent and transparent investigation’. According to Inquest, his death ‘also raises wider contextual questions about: a. b. c. d. e. f. the police planning, operation, command and control of the G20 protests; the lines of accountability and control in relation to joint police operations; the role of the Metropolitan Police Service (MPS) Territorial Support Group (TSG); abuse of police powers including the use of excessive and unlawful force; the police strategy of forcibly preventing people from leaving the area and the policy of containment known as kettling; the police media strategy and their briefings preceding the G20 protests, during the day, and following Ian Tomlinson’s death and how this affected police strategy and behaviour; the inaccuracy of official accounts concerning the contact between police officers and Ian Tomlinson and the cause of his death; the failure of the police to learn from the Metropolitan Police’s shameful handling of the aftermath of the death of Jean Charles de Menezes; the role of the Independent Police Complaints Commission (IPCC) including in relation to the media, and the process of investigating deaths following police contact.’

g. h. i.

Inquest’s Briefing on the death of Jimmy Mubenga (Inquest 2011)156 during removal from the UK whilst being escorted by three private security guards working for Group 4 Services (G4S) contracted by the UK Border Agency (UKBA). The Briefing called for a parliamentary committee inquiry into use of restraint and force in deportation cases and scrutiny by human rights mechanisms.

90

The Right to Life – HRA, Article 2

Inquest’s Briefing on the death of 14-year-old Adam Rickwood (Inquest 2007)157 stated that [t]here have been 29 deaths of children in penal custody in England and Wales since 1990. There has never been a public inquiry following any of these deaths. Collectively they raise thematic issues that need to be addressed in a joined-up manner through a properly resourced inquiry so that appropriate recommendations are made to ensure that lessons are learned and safeguards put in place to protect the lives of children in the future.’ Inquest argued that the death of 14-year-old Adam Rickwood158 ‘reignited concerns over the treatment of children by the criminal justice system. His case has attracted substantial parliamentary and public disquiet and led for calls for a radical overhaul of the way the state treats child offenders.’ It suggested that its casework ‘has highlighted that child deaths are too often linked to failings in the community, the inappropriate use of penal custody for vulnerable children, and inadequate treatment whilst in custody whereby the institutions are unable to care for the vulnerabilities of those that they detain.’ Inquest calls for ‘a judicial inquiry into the treatment of children within the juvenile justice system which should consider the following issues as part of its deliberations: – the type and prevalence of physical restraint used against children in custody; – the appropriateness of the force used on children; – how the type of the pain inflicting ‘nose distraction’ technique was originally approved and medically assessed; – the monitoring, auditing and reviewing of PCC and if potential risks and injuries were identified; – how the staff are trained in the use of restraint.’

Mencap’s Death by Indifference campaign – a campaign following the deaths of six people with learning disabilities in NHS care, exposure of alleged ‘massive care failings’, suggestion that the individuals concerned died unnecessarily as a result of receiving worse healthcare than people without learning disabilities, challenging earlier findings of no ‘service failure’ by the PHSO159. Mencap welcomes the Six Lives Report of the PHSO whilst not accepting the finding in relation to GPs. Details of Mencap’s position are provided at www.mencap.org.uk/news.asp?id=9637. See Table 14.

Institute of Race Relations (2006), Driven to Desperate Measures – highlighting the deaths of 221 asylum seekers who have died either attempting to reach the UK or in the UK in the past 17 years, including people taking their own lives after having asylum claims rejected or those who died after being returned to countries where they feared for their safety.160

91

The Right to Life – HRA, Article 2

Medical Justice, Outsourcing Abuse: The use and misuse of state-sanctioned force during the detention and removal of asylum seekers (Birnberg Peirce & Partners et al., 2008).161 Daily Mail, Dignity for the Elderly Campaign against neglect of the elderly within health and social care establishments.162

Press/media/advocacy reports of deportation cases • Brenda Namigadde case – outcome pending, the threatened deportation of lesbian woman to Uganda where she fears for her life after recent attacks on homosexuals.163 Medhi Kazemi case – a gay Iranian teenager granted asylum on the grounds of fearing for his life if returned to Iran.164 Dumisani Lungu case – a child and his HIV positive parents face deportation to Malawi where the parents argue that the lack of medical treatment will lead to their rapid deaths.165

• •

Other press/media/advocacy reports BBC Panorama report that proper maternity care could have prevented the deaths of 17 women in London over 18 months.166

92

The Right to Life – HRA, Article 2

Indicator 6: Spotlight statistics: Deaths in the police and criminal justice system context
Table 19: Deaths during or following police contact (type of death by gender, age group and by ethnicity), England and Wales, 2008-09
Road traffic fatalities N Gender Male Female Total Age group Not known Under 18 yrs 18-20 yrs 21-30 yrs 31-40 yrs 41-50 yrs 51-60 yrs 61 yrs and over Total Ethnic group White Of which: White British Any other White background 36 90 2 67 9 60 20 59 67 73 38 95 3 100 10 67 24 71 75 82 0 7 4 16 4 2 3 4 40 – 18 10 40 10 5 8 10 100 0 0 0 0 3 0 0 0 3 – – – – 100 – – – 100 0 0 0 2 4 8 1 0 15 – – – 13 27 53 7 – 100 1 4 3 7 9 8 0 2 34 3 12 9 21 26 24 – 6 100 1 11 7 25 20 18 4 6 92 1 12 8 27 22 20 4 7 100 34 6 40 85 15 100 3 0 3 100 – 100 13 2 15 87 13 100 24 10 34 71 29 100 74 18 92 80 20 100 % Fatal shootings N % Death during or following police custody N % Other deaths following police contact N % N

Total %

2

5

1

33

1

7

4

12

8

9

Continued

93

The Right to Life – HRA, Article 2

Table 19: Deaths during or following police contact (type of death by gender, age group and by ethnicity), England and Wales, 2008-09 (continued)
Road traffic fatalities N Asian or Asian British Of which: Asian Indian Any other Asian background Black or Black British Of which: Black Caribbean Black African Any other Black background Mixed race Of which: White and Black Caribbean Any other ethnic group Not known Total 0 0 – – 0 0 – – 1 1 7 7 0 2 – 6 1 3 1 3 0 – 0 – 2 13 0 – 2 2 0 % – Fatal shootings N 0 % – Death during or following police custody N 2 % 13 Other deaths following police contact N 2 % 6 N 4

Total % 4

0 2

– 5

0 0

– –

0 3

– 20

2 4

6 12

2 9

2 10

2 0

5 –

0 0

– –

1 0

7 –

2 1

6 3

5 1

5 1

0 0 0 40

– – – 100

0 0 0 3

– – – 100

0 0 0 15

– – – 100

1 2 1 34

3 6 3 100

1 2 1 92

1 2 1 100

Source: IPCC (2009a), Tables A1.1, A1.2 and A1.3. Note: 1 Percentages are rounded and therefore may not add up to 100 per cent.

94

Table 20: Number of fatal injuries incurred by members of the public as a result of a road traffic accident while in pursuit/ emergency response, 1996-07 – 2008-09, Scotland
Fife 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 1 0 0 0 1 0 1 0 0 0 0 0 1 2 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 2 0 Grampian Lothian & Borders Northern Strathclyde Tayside Scotland 2 0 3 1 1 0 1 0 1 1 1 0 1

Central 0 0 0 0 0 0 0 0 0 0 0 0 0

Dumfries & Galloway

199697

0

1997-98

0

1998-99

0

1999-2000

0

2000-01

0

2001-02

0

2002-03

0

2003-04

0

2004-05

n/k

2005-06

0

95

2006-07

1

2007-08

0

2008-09

0

Source: The Scottish Government (2011).

The Right to Life – HRA, Article 2

Table 21: Number of fatal injuries incurred by members of the public as a result of a road traffic accident while not in pursuit/ emergency response, 1996-07 – 2008-09, Scotland
Fife 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 1 0 Grampian Lothian & Borders Northern Strathclyde Tayside Scotland 6 0 0 0 0 0 0 0 0 2 1 0 1

Central 4 0 0 0 0 0 0 0 0 0 0 0 0

Dumfries & Galloway

199697

0

The Right to Life – HRA, Article 2

1997-98

0

1998-99

0

1999-2000

0

2000-01

0

2001-02

0

2002-03

0

2003-04

0

2004-05

n/k

2005-06

0

96

2006-07

0

2007-08

0

2008-09

0

Source: The Scottish Government (2011).

The Right to Life – HRA, Article 2

Table 22: Fatal incidents investigated by the Prisons and Probations Ombudsman, by type of death and location, England and Wales, 2009-10
Male prison Self-Inflicted Natural Causes Homicide or Attack Illicit Drug Overdose Accidental Unclassified Total 54 107 0 2 0 6 169 Female prison 1 4 0 0 0 0 5 YOI 5 0 0 0 0 0 5 Approved Immigration Premises removal centre 3 4 0 3 0 1 11 0 0 0 0 0 0 0 Discretionary 0 1 0 1 0 1 3 Total 63 116 0 6 0 8 193

Source: PPO (2010).

97

The Right to Life – HRA, Article 2

Table 23: Self-inflicted deaths in prison custody by time in custody and by gender, England and Wales, 2005-09
2005 Time in custody 1 to 2 days
2 1

2006 2 3 2 6 10 8 11 25 67 64 3 67 78,127

2007 1 4 6 10 11 15 10 35 92 84 8 92 80,216

2008 3 4 3 5 8 8 9 20 60 59 1 60 82,572

2009 0 8 4 6 8 10 6 18 60 57 3 60 83,461

on day of arrival 3 days to one week 1 week to 1 month 1 month to 3 months 3 months to 6 months 6 months to 1 year over one year Total self-inflicted deaths Gender Male Female Total self-inflicted deaths Prison population4 Three-year rolling average annual rates per 1,000 prisoners (self-inflicted deaths)
3

0 11 2 15 9 12 10 19 78 74 4 78 75,979

1.20

1.05

1.01

0.91

0.86

Source: Ministry of Justice (MoJ) (2010a), Tables 2 and 3. Notes: 1 Time in custody refers to time spent on current offence/prison number. Some prisoners may have previously spent time in prison custody for a different offence with a different prison number but this is not included. 2 Prisoners who die on the date of arrival will typically have been in the prison for less than 12 hours. The one to two days’ category includes any death after midnight on the date of arrival and before midnight on the second complete day in the prison. Care needs to be taken when interpreting numbers of deaths in the early days of custody as the actual number of deaths in precise 24-hour time slots is not known accurately due to uncertainty about the exact time of incident/death. 3 Deaths in prison custody figures include deaths of prisoners while released on temporary license (ROTL) for medical reasons but exclude other types of ROTL (see Data Sources and Quality). Approximately one one-third of the deaths in prison custody shown here actually occur in hospitals or hospices. 4 Population statistics are derived from the MoJ – Offender Management Caseload Statistics. The prison population figure shown for 2009 is provisional.

98

The Right to Life – HRA, Article 2

Table 24: Self-inflicted death by sentenced/unsentenced prisoners According to HMIP, the downward trend in self-inflicted deaths in prisons observed in 2007-08 was maintained in 2008-09. There were 64 deaths in the inspectorate reporting year, compared with 68 in the previous year, and in the calendar year 2009, there were 60, the same as in 2008, and a decline of a third since 2007. As a proportion of the prison population, the rate dropped from 133 per 100,000 in 2002 to 72 per 100,000. As in previous years, around two-thirds of self-inflicted deaths took place in local prisons, though one in four were in training prisons. A disproportionate number were unsentenced: though only 16 per cent of the population, they accounted for half the deaths. A high proportion of deaths continue to take place in the early days in a new prison. One in three occurred within the first seven days of being in the current prison – an indication of the additional vulnerability at this stage – and 42 per cent occurred within the first 28 days. Foreign national prisoners this year were under-represented in self-inflicted deaths, but life-sentenced prisoners remained over-represented. Source: HMIP England and Wales (2010b: 11, 21, 22).

99

Table 25: Child deaths in penal custody, 1990-date, England and Wales (including deaths in privately-run secure training centres)
Age Date 17 15 17 16 14 15 17 16 16 16 16 17 17 17 17 17 17 16 17 17 17/01/1997 17/04/1998 09/07/1998 Self-Inflicted Self-Inflicted Self-Inflicted 10/11/1998 Self-Inflicted 30/05/1999 Self-Inflicted 29/08/1999 Self-Inflicted 30/05/2000 Self-Inflicted 01/08/2000 Self-Inflicted 06/09/2000 Self-Inflicted HMYOI Feltham HMYOI Wetherby HMYOI Brinsford HMYOI Hindley HMYOI Wetherby HMYOI Hindley HMYOI Glen Parva HMP Doncaster HMYOI Hindley 15/02/2001 Self-Inflicted HMYOI Brinsford 27/07/2001 Self-Inflicted HMYOI Wetherby 29/09/2001 Self-Inflicted HMYOI Feltham 24/03/2002 Self-Inflicted HMYOI Stoke Heath 06/10/2002 Self-Inflicted HMP Parc 19/04/2004 Restraint Rainsbrook STC 09/08/2004 Self-Inflicted Hassockfield STC Narrative Accidental death + narrative Misadventure Accidental death Suicide + neglect Misadventure Accidental death Suicide Misadventure Suicide Suicide Suicide Accidental death Suicide Suicide Suicide while balance of his mind disturbed Continued 20/01/2005 Self-Inflicted HMYOI Lancaster Farms Narrative 15/09/2005 Self-Inflicted HMYOI Hindley Narrative 29/11/2007 Self-inflicted HMYOI Lancaster Farms Narrative 18/04/2011 Self-inflicted HMYOI Wetherby Awaited Classification Establishment Inquest Verdict

Name

Sex

Ethnicity

Ryan Clark

Male

White

Liam McManus

Male

UK White

Sam Elphick

Male

UK White

The Right to Life – HRA, Article 2

Gareth Price

Male

UK White

Adam Rickwood

Male

UK White

Gareth Myatt

Male

UK mixed

Ian Powell

Male

UK White

Joseph Scholes

Male

UK White

Kevin Jacobs

Male

UK White

Mark Dade

Male

UK White

Anthony Redding

Male

UK White

Kevin Henson

Male

UK White

100

Philip Griffin

Male

UK White

David Dennis

Male

UK White

Anthony Howarth

Male

UK White

Kirk Edwards

Male

UK White

John Keyworth

Male

UK White

Nicholas Whelan

Male

UK White

Colin Scarborough

Male

UK White

Lee Wagstaff

Male

UK White

Table 25: Child deaths in penal custody, 1990-date, England and Wales (including deaths in privately-run secure training centres) (continued)
Age Date 16 16 17 17 17 16 15 15 17 15 12/07/1990 Self-Inflicted HMP Swansea 12/08/1990 Self-Inflicted HMP Leeds 26/10/1990 Self-Inflicted HMYOI Glen Parva 22/09/1991 Self-Inflicted HMYOI Feltham Open Open Open 02/05/1992 Self-Inflicted HMYOI Deerbolt Suicide Accidental death 13/09/1993 Self-Inflicted HMP Exeter Open 10/05/1994 Self-Inflicted HMP Cardiff Suicide 08/08/1994 Self-Inflicted HMP Low Newton Suicide 02/10/1995 Homicide HMP Stoke Heath Unlawful killing 03/12/1995 Self-Inflicted HMP Doncaster Accidental death Classification Establishment Inquest Verdict

Name

Sex

Ethnicity

Mark Weldrand

Male

UK White

Chris Greenaway

Male

UK White

Andrew Batey

Male

UK White

Joseph Stanley

Male

Irish White

David Stewart

Male

UK White

Patrick Murphy

Male

UK White

Jeffrey Horler

Male

UK White

Craig Walsh

Male

UK White

Simon Willerton

Male

UK White

Philip Knight

Male

UK White

Source: INQUEST (2011), Casework and monitoring. Copies of narrative verdicts are available on request from INQUEST.167

101

Acronyms: HMYOI – Her Majesty’s Young Offenders Institute; HMP – Her Majesty’s Prison; STC – Secure Training Centre.

Reference: Inquest (2011), ‘Child deaths in penal custody (England and Wales) 1990-date’, available from www.inquest.org.uk/

The Right to Life – HRA, Article 2

The Right to Life – HRA, Article 2

Table 26: Deaths of young people aged 21 and under in prison (England and Wales) 1990-date: INQUEST monitoring
Year 2011 2010 2009 2008 2007 2006 2005 2004 2003 2002 2001 2000 1999 1998 1997 1996 1995 1994 1993 1992 1991 1990 Total: Self-inflicted 8 5 9 8 9 3 13 6 13 16 15 18 19 15 16 14 11 12 3 10 5 10 238 Non-selfinflicted 0 0 2 0 2 0 0 0 2 2 0 0 1 3 1 3 0 2 0 0 0 0 18 Other Nonnatural causes 0 0 0 0 0 0 1 1 0 0 0 0 0 0 0 0 0 0 0 0 0 0 2 Homicide 0 0 0 0 0 0 0 0 0 0 0 2 0 1 2 0 1 0 0 0 0 0 6 Total 8 5 11 8 11 3 14 7 15 18 15 20 20 19 19 17 12 14 3 10 5 10 264

Source: INQUEST monitoring and case work, updated August 2011.168

102

The Right to Life – HRA, Article 2

Indicator 7: Spotlight statistics: Deaths within health and social care institutions/community care
Table 27: Hospital Standardised Mortality Ratios
Lower than expected mortality Aintree University Hospitals NHS Foundation Trust Ashford and St Peter’s Hospitals NHS Trust Barnet and Chase Farm Hospitals NHS Trust Barts and The London NHS Trust Bradford Teaching Hospitals NHS Foundation Trust Cambridge University Hospitals NHS Foundation Trust East Kent Hospitals University NHS Foundation Trust Epsom and St Helier University Hospitals NHS Trust Frimley Park Hospital NHS Foundation Trust Imperial College Healthcare NHS Trust Leeds Teaching Hospitals NHS Trust Maidstone and Tunbridge Wells NHS Trust Mid Staffordshire NHS Foundation Trust North Bristol NHS Trust North West London Hospitals NHS Trust Plymouth Hospitals NHS Trust Royal Free Hampstead NHS Trust Salford Royal NHS Foundation Trust Sheffield Teaching Hospitals NHS Foundation Trust St George’s Healthcare NHS Trust Taunton and Somerset NHS Foundation Trust The Newcastle upon Tyne Hospitals NHS Foundation Trust The Whittington Hospital NHS Trust University College London Hospitals NHS Foundation Trust University Hospitals Bristol NHS Foundation Trust West Middlesex University Hospital NHS Trust Ratio 85 90 88 89 81 81 79 90 85 80 91 92 87 90 87 86 72 84 92 84 89 90 84 72 86 86 Continued

103

The Right to Life – HRA, Article 2

Table 27: Hospital Standardised Mortality Ratios (continued)
Higher than expected mortality Barking, Havering and Redbridge University Hospitals NHS Trust Buckinghamshire Hospitals NHS Trust City Hospitals Sunderland NHS Foundation Trust* Derby Hospitals NHS Foundation Trust East Sussex Hospitals NHS Trust* George Eliot Hospital NHS Trust* Hull and East Yorkshire Hospitals NHS Trust Isle of Wight NHS Primary Care Trust* Mid Cheshire Hospitals NHS Foundation Trust Northampton General Hospital NHS Trust* Pennine Acute Hospitals NHS Trust** Royal Bolton Hospital NHS Foundation Trust** Shrewsbury and Telford Hospital NHS Trust* South London Healthcare NHS Trust* Southport and Ormskirk Hospital NHS Trust* The Dudley Group of Hospitals NHS Foundation Trust The Royal Wolverhampton Hospitals NHS Trust* University Hospitals Birmingham NHS Foundation Trust Western Sussex Hospitals NHS Trust* Ratio 116 118 114 112 110 113 117 115 114 112 110 116 117 109 113 115 116 109 107

Source: Dr Foster (2010). Notes: * Denotes trusts which did not have high HSMRs last year. ** Denotes trusts with high HSMRs for the past six years. According to the Dr Foster report,: the HSMR is one of the most commonly used measures of overall mortality for trusts and looks at those conditions which account for the vast majority of deaths in hospital (80 per cent). The table compares the number of deaths at the trust with an estimate of the number that would happen if mortality ratios were in line with the national average. This takes into account a patient’s diagnosis, age, admission method and other characteristics. If a trust has the same number of deaths as estimated, it is given a score of 100. If it has 10 per cent more deaths, it is given a score of 110, or for 10 per cent fewer deaths a score of 90 (Dr Foster 2010: 11).

104

The Right to Life – HRA, Article 2

Table 28: Deaths where malnutrition was the underlying cause of death, by place of death, England and Wales, 1997-091, 2, 3, 4
Deaths (persons) Place of death Care home Hospital Other Total

1997 11 34 6 51

1998 19 25 5 49

1999 8 28 9 45

2000 9 26 8 43

2001 6 45 7 58

2002 6 56 5 67

2003 8 51 6 65

2004 7 45 8 60

2005 4 45 12 61

2006 3 62 10 75

2007 7 53 19 79

2008 8 42 17 67

2009 11 57 14 82

Source: Office for National Statistics (ONS) (2011b). Notes: See Figure 9 for a discussion of the interpretation of this data. 1 ‘Cause of death’ was defined using the International Classification of Diseases (ICD), Ninth Revision (ICD-9) codes 260-263 (malnutrition) for the years 1997-2000, and the ICD, Tenth Revision (ICD-10) codes E40-E46 (malnutrition) for 2001 onwards. Deaths were included where malnutrition was the underlying cause of death. The introduction of ICD-10 in 2001 means that the numbers of deaths from these causes before 2001 are not completely comparable with later years. 2 ‘Care home’ includes a variety of NHS, local authority and private nursing/care/ residential homes; ‘Hospital’ includes NHS hospitals or multifunction sites, and military and other non-NHS hospitals; ‘‘Other’ includes any other place e.g. other types of communal establishment, at home (at a private residential address) and elsewhere. 3 Figures for England and Wales include deaths of non-residents. 4 Figures are for deaths registered in each calendar year.

105

The Right to Life – HRA, Article 2

Table 29: Deaths (persons) where malnutrition and effects of hunger were mentioned on the death certificate, by place of death, England and Wales, 199720091, 2, 3, 4
Deaths (persons) Place of death Care home Hospital Other Total

1997 30 175 40 245

1998 33 163 22 218

1999 26 192 49 267

2000 36 181 29 246

2001 27 195 34 256

2002 26 249 19 294

2003 26 222 32 280

2004 25 222 36 283

2005 27 218 35 280

2006 25 268 51 344

2007 29 268 56 353

2008 38 288 56 382

2009 38 284 53 375

Source: ONS (2011b). Notes: See Figure 9 for a discussion of the interpretation of this data. 1 ‘Cause of death’ was defined using the International Classification of Diseases (ICD), Ninth Revision (ICD-9) codes 260-263 (malnutrition) for the years 1997-2000, and the ICD, Tenth Revision (ICD-10) codes E40-E46 (malnutrition) for 2001 onwards. Deaths were included where malnutrition was the underlying cause of death. The introduction of ICD-10 in 2001 means that the numbers of deaths from these causes before 2001 are not completely comparable with later years. 2 ‘Care home’ includes a variety of NHS, local authority and private nursing/care/ residential homes; ‘Hospital’ includes NHS hospitals or multifunction sites, and military and other non-NHS hospitals; ‘‘Other’ includes any other place e.g. other types of communal establishment, at home (at a private residential address) and elsewhere. 3 Figures for England and Wales include deaths of non-residents. 4 Figures are for deaths registered in each calendar year.

106

Table 30: Number of deaths and age-standardised rate per 1 million population, where the cause specified was the underlying cause of death, by place of death, England and Wales, 1997-091, 2, 3, 4, 5, 6
Care home Rate5 .. .. 0.2 .. 0.3 0.2 0.3 0.4 0.7 1.2 1.8 1.6 1.1 0.2 0.2 0.2 0.1 0.1 0.2 0.1 0.3 0.1 0.2 97 128 0.0 0.2 106 0.1 0.3 99 0.1 0.3 79 0.8 1.1 1.1 1.0 1.3 0.1 0.2 99 1.1 0.9 1.3 1,563 14.5 13.8 0.9 0.7 0.8 0.9 0.8 1.1 1.4 1.8 2,288 21.8 20.9 1.5 2.0 1,735 16.8 16.0 1.0 1.4 1,714 16.8 16.0 17.6 17.6 22.7 15.2 1.3 1.0 1.3 1.3 1.2 1.6 0.6 0.9 957 9.7 9.1 10.3 0.3 0.5 585 6.0 5.5 6.5 0.2 0.4 467 4.8 4.4 5.3 0.1 0.3 408 4.2 3.8 4.7 325 473 603 1,032 1,644 2,114 35 26 6 13 11 11 6 7 0.2 0.4 359 3.7 3.4 4.1 308 .. .. .. .. .. .. .. 0.1 0.3 247 2.8 2.4 3.1 265 3.0 .. 3.2 3.4 5.0 6.2 10.3 16.2 20.3 0.4 0.2 * 0.1 0.1 0.1 * * .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 2.6 .. 2.8 3.1 4.5 5.7 9.7 15.4 19.4 0.2 0.1 * 0.1 0.1 0.1 * * LCL6 UCL6 Number Rate5 LCL6 UCL6 Rate5 LCL6 Number .. .. 19 .. 26 21 28 41 74 132 207 179 123 15 18 22 10 15 24 Hospital Other UCL6 .. .. 3.3 .. 3.6 3.8 5.4 6.7 11.0 17.0 21.2 0.5 0.3 * 0.2 0.2 0.2 * * Continued
The Right to Life – HRA, Article 2

Cause

Year

Number

c. difficile

1997

c. difficile

1998

c. difficile

1999

c. difficile

2000

c. difficile

2001

c. difficile

2002

c. difficile

2003

c. difficile

2004

c. difficile

2005

c. difficile

2006

c. difficile

2007

107

c. difficile

2008

c. difficile

2009

Dehydration

1997

Dehydration

1998

Dehydration

1999

Dehydration

2000

Dehydration

2001

Dehydration

2002

Table 30: Number of deaths and age-standardised rate per 1 million population, where the cause specified was the underlying cause of death, by place of death, England and Wales, 1997-09 (continued)1, 2, 3, 4, 5, 6
Care home Rate Rate 1.3 1.4 1.5 1.1 1.3 1.5 1.1 46.6 44.7 47.5 49.1 53.4 50.8 54.9 56.4 56.4 56.4 57.0 5,791 5,616 57.0 54.2 51.9 49.3 53.4 54.9 54.9 54.9 55.5 55.5 52.8 47.6 46.1 49.0 50.6 55.0 52.3 56.4 57.9 57.9 57.8 58.5 58.5 55.6 43.3 46.1 45.2 48.1 0.9 1.3 1.2 1.7 12 8 599 485 526 556 630 612 660 645 672 638 594 617 588 1.0 1.5 8 0.9 1.4 8 1.2 1.7 11 0.1 * * 0.1 * 9.0 7.2 7.7 8.3 9.0 8.7 9.4 9.0 9.2 8.6 7.9 7.9 7.8 1.2 1.6 7 * 1.0 1.5 11 0.1 0.1 * 0.0 * * 0.0 * 8.2 6.5 7.1 7.6 8.3 8.0 8.7 8.3 8.5 7.9 7.3 7.3 7.2 Rate 0.2 0.2 0.3 0.4 0.3 0.3 0.2 7.6 7.4 7.4 6.6 7.0 7.2 7.3 6.7 6.4 5.5 5.8 5.8 5.4 4.9 5.8 5.3 6.2 5.4 6.3 5.1 6.0 5,535 5,708 5.9 6.9 5,375 6.2 7.2 5,197 6.7 7.8 5,023 6.7 7.7 4,609 6.5 7.6 4,768 6.1 7.1 4,275 6.9 8.0 4,079 6.9 8.0 3,801 7.0 8.1 3,881 0.1 0.3 128 0.2 0.5 162 0.2 0.4 130 0.2 0.5 121 0.2 0.4 147 0.1 0.3 139 0.1 0.3 125
5

Hospital Number
5

Other Number
5

Cause LCL
6

Year UCL
6

Number LCL
6

UCL

6

LCL

6

UCL6 0.2 * 0.2 * * 0.2 * 9.7 7.8 8.4 8.9 9.7 9.4 10.1 9.7 9.9 9.3 8.6 8.6 8.4 Continued

Dehydration 22 29 37 32 41 24 717 712 721 652 711 729 728 684 675 609 670 679 644

2003

21

Dehydration

2004

The Right to Life – HRA, Article 2

Dehydration

2005

Dehydration

2006

Dehydration

2007

Dehydration

2008

Dehydration

2009

Falls

1997

Falls

1998

Falls

1999

Falls

2000

108

Falls

2001

Falls

2002

Falls

2003

Falls

2004

Falls

2005

Falls

2006

Falls

2007

Falls

2008

Falls

2009

Table 30: Number of deaths and age-standardised rate per 1 million population, where the cause specified was the underlying cause of death, by place of death, England and Wales, 1997-09 (continued)1, 2, 3, 4, 5, 6
Care home Rate LCL Rate 0.7 0.8 0.7 1.1 1.5 1.3 1.5 1.4 2.1 2.6 1.8 2.2 1.4 1.4 1.5 1.6 1.5 1.5 175 158 1.9 1.7 1.9 1.2 1.1 1.2 1.4 1.2 1.3 1.6 1.5 1.6 2.3 3.0 2.1 2.5 1.6 1.6 1.7 1.9 1.7 1.8 2.2 2.0 1.8 2.4 1.1 1.6 1.3 1.8 1.1 1.6 125 163 205 247 263 247 3 0 17 9 15 15 13 22 16 1.3 1.8 113 0.9 1.3 92 0.6 0.9 59 0.7 1.2 1.3 1.5 1.9 2.4 2.7 2.8 2.7 * * 0.2 * 0.2 0.2 0.1 0.3 0.2 0.6 1.0 50 0.6 0.5 0.8 42 0.5 0.4 0.5 0.5 0.9 1.1 1.2 1.6 2.0 2.3 2.5 2.4 * * 0.1 * 0.1 0.1 0.1 0.1 0.1 Rate * 0.0 0.0 * 0.1 0.1 0.1 0.2 0.2 0.1 0.2 0.1 * 0.8 0.9 0.8 0.6 0.6 0.7 0.8 1.2 1.0 1.0 0.9 138 137 1.2 143 1.3 128 1.2 117 * 139 0.2 208 0.4 180 0.3 236 0.4 188 0.4 124 0.3 137 0.2 110 0.2 130 * 91 0.2 59 0.2 56 * 54 UCL LCL UCL LCL * 0.1 0.1 * 0.1 0.2 0.2 0.3 0.3 0.2 0.3 0.2 * 1.0 1.1 1.0 0.8 0.8 0.8 1.0
5 6 6

Hospital Number
5 6 6 5 6

Other Number UCL6 0.7 0.8 0.9 1.4 1.6 1.7 2.2 2.7 3.0 3.1 3.0 * * 0.3 * 0.2 0.3 0.2 0.4 0.2 Continued
The Right to Life – HRA, Article 2

Cause 7 10 10 8 15 11 22 28 30 20 33 17 8 95 109 92 73 81 86 99

Year

Number

MRSA

1997

MRSA

1998

MRSA

1999

MRSA

2000

MRSA

2001

MRSA

2002

MRSA

2003

MRSA

2004

MRSA

2005

MRSA

2006

MRSA

2007

109

MRSA

2008

MRSA

2009

Pressure sores

1997

Pressure sores

1998

Pressure sores

1999

Pressure sores

2000

Pressure sores

2001

Pressure sores

2002

Pressure sores

2003

Table 30: Number of deaths and age-standardised rate per 1 million population, where the cause specified was the underlying cause of death, by place of death, England and Wales, 1997-09 (continued)1, 2, 3, 4, 5, 6
Care home Rate LCL Rate 2.0 1.9 1.6 1.4 1.4 1.5 19.0 18.5 21.1 21.2 24.9 24.2 25.4 26.1 27.0 26.4 25.8 23.8 2,137 24.1 23.2 24.3 25.0 25.9 25.3 24.8 22.7 23.1 23.8 20.1 22.2 26.0 25.3 26.5 27.2 28.2 27.5 26.9 24.8 25.1 20.1 22.2 17.5 19.5 18.0 20.1 1.3 1.8 19 39 34 38 35 37 41 29 32 46 44 47 45 53 1.2 1.6 13 1.2 1.7 18 1.3 1.8 14 0.1 0.2 0.1 0.2 0.7 0.6 0.6 0.6 0.6 0.7 0.5 0.5 0.8 0.6 0.6 0.6 0.8 1.6 2.2 7 * 1.7 2.3 9 * * * 0.1 0.1 0.1 0.1 0.5 0.4 0.4 0.4 0.4 0.5 0.3 0.3 0.6 0.4 0.4 0.4 0.5 Rate 0.5 0.7 0.7 0.7 0.6 0.5 0.5 0.7 0.6 0.4 0.8 0.7 0.6 0.7 0.9 0.9 0.8 0.8 0.7 1.0 1.2 1.1 2,219 2,064 1.3 2,261 1.3 2,267 1.1 2,091 1.0 1,996 1.1 1,905 1.2 1,828 0.8 1,496 1.0 1,460 1.0 1,271 0.8 1,279 0.8 150 0.9 147 1.0 146 1.0 155 1.0 178 0.9 176 UCL LCL UCL LCL 0.7 0.9 0.9 0.8 0.8 0.6 0.6 0.8 0.8 0.6 1.0 0.9 0.8 0.9 1.1 1.1 1.0 1.0 0.8
5 6 6

Hospital Number
5 6 6 5 6

Other Number UCL6 * * 0.2 0.2 0.2 0.3 0.9 0.8 0.7 0.8 0.8 0.9 0.6 0.6 1.0 0.8 0.8 0.8 1.0

Cause 69 90 95 89 83 74 58 75 70 53 93 85 77 85 105 111 107 108 90

Year

Number

Pressure sores

2004

Pressure sores

2005

The Right to Life – HRA, Article 2

Pressure sores

2006

Pressure sores

2007

Pressure sores

2008

Pressure sores

2009

Septicaemia

1997

Septicaemia

1998

Septicaemia

1999

Septicaemia

2000

Septicaemia

2001

110

Septicaemia

2002

Septicaemia

2003

Septicaemia

2004

Septicaemia

2005

Septicaemia

2006

Septicaemia

2007

Septicaemia

2008

Septicaemia

2009

Source: ONS (2011b).

Notes: See Figure 9 for a discussion of the interpretation of this data.

1 ‘Cause of death’ was defined using the ICD, Ninth Revision (ICD-9) for the years 1997-2000, and the ICD, Tenth Revision (ICD-10) for 2001 onwards. The ICD codes used are shown in the definitions worksheet. Deaths were included where the specified cause was the underlying cause of death. The introduction of ICD-10 in 2001 means that the numbers of deaths from these causes before 2001 are not completely comparable with later years.

2 ‘Care home’ includes a variety of NHS, local authority and private nursing/care/residential homes; ‘Hospital’ includes NHS hospitals (excluding psychiatric hospitals) or multifunction sites, and military and other non-NHS hospitals; ‘Other’ includes any other place e.g. other types of communal establishment (such as psychiatric hospitals or hospices), at home (at a private residential address) and elsewhere.

3 Figures for England and Wales include deaths of non-residents.

4 Figures are for deaths registered in each calendar year.

111

5 Age-standardised mortality rates per 1 million population, standardised to the European Standard Population. Age-standardised rates are used to allow comparison between populations which may contain different proportions of people of different ages, and so also allow comparisons over time.

6 The lower and upper confidence limits have been provided. These form a confidence interval, which is a measure of the statistical precision of an estimate and show the range of uncertainty around the estimated figure. Calculations based on small numbers of events are often subject to random fluctuations. As a general rule, if the confidence interval around one figure overlaps with the interval around another, we cannot say with certainty that there is more than a chance difference between the two figures. Data for c. difficile is not available for 1997, 1998 and 2000 due to the use of ICD-9. Data is available for 1999 because a special coding exercise was carried out.
The Right to Life – HRA, Article 2

*Rates are not calculated where there are fewer than 10 deaths.

Table 31: Number of deaths and age-standardised rate per 1 million population, where the cause specified was mentioned on the death certificate, by place of death, England and Wales, 1997-20091, 2, 3, 4, 5, 6
Care home Rate5 .. .. 0.3 .. 0.4 0.3 0.4 0.8 1.2 2.2 3.5 3.3 1.9 0.7 0.7 0.6 0.5 0.7 1.0 0.8 1.2 0.5 0.8 587 775 0.4 0.7 546 0.5 0.8 561 0.6 0.9 550 6.4 6.4 6.1 6.5 8.5 0.5 0.9 608 7.1 1.6 2.1 3,627 35.0 33.9 6.5 5.9 5.9 5.6 5.9 7.9 3.0 3.7 5,420 53.6 52.1 3.1 3.8 3,534 34.9 33.7 1.9 2.5 3,111 30.9 29.8 32.0 36.1 55.0 36.2 7.7 6.9 7.0 6.6 7.0 9.1 1.0 1.5 1,763 18.0 17.2 18.8 0.6 1.0 1,086 11.3 10.6 11.9 0.3 0.6 880 9.2 8.6 9.8 0.2 0.4 752 8.0 7.4 8.5 631 878 1,071 1,868 3,129 4,395 141 88 40 53 59 46 50 41 0.3 0.5 621 6.6 6.0 7.1 555 .. .. .. .. .. .. .. 0.2 0.5 457 5.2 4.7 5.7 486 5.5 .. 5.9 6.7 9.3 11.2 19.0 31.6 43.8 1.5 0.9 0.5 0.7 0.8 0.6 0.6 0.5 .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 5.0 .. 5.4 6.2 8.7 10.5 18.1 30.5 42.5 1.3 0.7 0.4 0.5 0.6 0.4 0.4 0.4 LCL6 UCL6 Number Rate5 LCL6 UCL6 Rate5 LCL6 Number .. .. 32 .. 38 33 46 81 126 240 395 370 218 66 74 61 53 65 98 Hospital Other UCL6 .. .. 6.0 .. 6.4 7.3 9.9 11.9 19.8 32.7 45.1 1.8 1.1 0.7 0.9 1.1 0.8 0.8 0.7 Continued

Cause

Year

Number

c. difficile

1997

c. difficile

1998

The Right to Life – HRA, Article 2

c. difficile

1999

c. difficile

2000

c. difficile

2001

c. difficile

2002

c. difficile

2003

c. difficile

2004

c. difficile

2005

c. difficile

2006

c. difficile

2007

112

c. difficile

2008

c. difficile

2009

Dehydration

1997

Dehydration

1998

Dehydration

1999

Dehydration

2000

Dehydration

2001

Dehydration

2002

Table 31: Number of deaths and age-standardised rate per 1 million population, where the cause specified was mentioned on the death certificate, by place of death, England and Wales, 1997-2009 (continued)1, 2, 3, 4, 5, 6
Care home Rate5 1.0 0.9 1.1 1.5 1.2 1.3 1.1 16.6 16.8 16.4 15.4 10.5 11.0 11.1 9.7 9.6 8.3 8.6 8.7 8.1 7.6 8.6 8.1 9.2 8.1 9.2 7,458 7,577 7,318 7.8 8.9 7,169 9.0 10.2 7,053 9.1 10.3 6,817 73.2 73.3 72.5 74.0 74.0 70.0 10.4 11.7 6,723 72.8 10.3 11.6 6,298 68.4 66.7 71.1 71.5 71.6 70.8 72.3 72.3 68.4 9.8 11.1 6,313 69.9 68.2 14.7 16.2 8,593 95.1 93.1 15.6 17.2 8,274 93.1 91.1 95.1 97.1 71.7 70.1 74.5 74.9 75.0 74.2 75.7 75.6 71.6 16.0 17.6 7,781 88.0 86.1 90.0 15.8 17.4 7,559 87.1 85.2 89.1 0.9 1.3 816 7.8 7.3 8.4 1.1 1.5 934 9.0 8.5 9.6 71 71 990 850 897 884 857 851 884 842 900 841 815 848 818 1.0 1.4 905 9.0 8.4 9.6 71 1.2 1.7 932 9.5 8.9 10.1 70 0.9 1.3 837 8.8 8.2 9.3 64 0.7 0.8 0.8 0.8 0.8 13.8 11.7 12.3 12.2 11.8 11.6 12.0 11.3 11.8 10.9 10.5 10.5 10.3 0.7 1.1 799 8.5 7.9 9.1 64 0.8 0.8 1.2 773 8.5 7.9 9.1 56 0.7 0.5 0.6 0.5 0.6 0.6 0.6 0.6 13.0 10.9 11.5 11.4 11.0 10.9 11.2 10.6 11.1 10.2 9.8 9.8 9.6 LCL6 UCL6 Number Rate5 LCL6 UCL6 Rate5 LCL6 Number 99 93 111 155 133 143 125 1,563 1,614 1,588 1,521 1,050 1,109 1,113 997 1,013 915 981 1,009 963 Hospital Other UCL6 0.8 0.9 0.9 1.0 1.0 0.9 0.9 14.7 12.5 13.1 13.0 12.5 12.4 12.8 12.1 12.6 11.6 11.2 11.2 11.0 Continued
The Right to Life – HRA, Article 2

Cause

Year

Number

Dehydration

2003

Dehydration

2004

Dehydration

2005

Dehydration

2006

Dehydration

2007

Dehydration

2008

Dehydration

2009

Falls

1997

Falls

1998

Falls

1999

Falls

2000

113

Falls

2001

Falls

2002

Falls

2003

Falls

2004

Falls

2005

Falls

2006

Falls

2007

Falls

2008

Falls

2009

Table 31: Number of deaths and age-standardised rate per 1 million population, where the cause specified was mentioned on the death certificate, by place of death, England and Wales, 1997-2009 (continued)1, 2, 3, 4, 5, 6
Care home Rate LCL Rate 2.7 2.5 2.8 3.9 4.3 4.2 5.3 5.2 7.8 8.3 6.6 11.9 7.2 6.1 6.1 5.8 6.2 5.8 568 610 6.4 7.0 11.2 6.6 5.6 5.6 5.3 5.6 5.3 5.9 6.5 6.1 7.7 8.9 7.2 12.6 7.7 6.7 6.7 6.3 6.7 6.3 7.0 7.6 7.2 8.3 4.7 5.7 4.8 5.8 3.7 4.6 415 482 600 837 830 859 41 27 62 56 60 60 46 69 54 3.8 4.7 336 3.5 4.3 308 2.5 3.2 221 2.8 4.1 4.2 5.3 6.0 7.1 9.9 9.4 9.8 0.5 0.4 0.7 0.7 0.7 0.7 0.5 0.8 0.6 2.1 2.8 180 2.4 2.3 3.0 151 2.0 1.7 2.0 2.4 3.6 3.8 4.7 5.4 6.6 9.2 8.8 9.2 0.3 0.2 0.5 0.5 0.5 0.5 0.4 0.6 0.4 Rate 0.2 0.3 0.3 0.3 0.3 0.4 0.4 0.7 1.1 0.8 1.0 1.0 0.6 3.5 3.7 3.1 2.9 3.0 2.8 3.0 3.7 3.5 3.8 3.6 524 512 3.9 488 4.5 509 4.4 500 0.9 671 1.4 1,061 1.5 605 1.2 722 1.6 673 1.0 452 0.7 428 0.7 332 0.6 351 0.6 315 0.5 223 0.6 188 0.5 202 UCL LCL UCL LCL 0.4 0.5 0.4 0.5 0.4 0.5 0.6 0.8 1.4 1.0 1.3 1.2 0.7 3.9 4.1 3.5 3.3 3.4 3.1 3.4
5 6 6

Hospital Number
5 6 6 5 6

Other Number UCL6 2.3 2.7 3.1 4.5 4.6 5.8 6.5 7.7 10.5 10.1 10.5 0.6 0.5 0.9 0.9 0.9 0.9 0.7 1.0 0.8 Continued

Cause 33 41 36 43 44 47 58 86 139 100 129 128 83 355 374 328 306 329 312 321

Year

Number

MRSA

1997

MRSA

1998

The Right to Life – HRA, Article 2

MRSA

1999

MRSA

2000

MRSA

2001

MRSA

2002

MRSA

2003

MRSA

2004

MRSA

2005

MRSA

2006

MRSA

2007

114

MRSA

2008

MRSA

2009

Pressure sores

1997

Pressure sores

1998

Pressure sores

1999

Pressure sores

2000

Pressure sores

2001

Pressure sores

2002

Pressure sores

2003

Table 31: Number of deaths and age-standardised rate per 1 million population, where the cause specified was mentioned on the death certificate, by place of death, England and Wales, 1997-2009 (continued)1, 2, 3, 4, 5, 6
Care home Rate LCL Rate 6.6 7.3 6.7 6.5 6.0 6.4 156.5 163.1 179.6 186.1 203.7 217.4 238.1 252.6 276.1 288.5 275.8 265.7 255.3 214.2 234.8 249.2 272.6 284.9 272.4 262.3 252.0 200.5 183.0 189.2 206.9 220.7 241.5 256.1 279.6 292.0 279.3 269.0 258.6 176.5 182.6 160.1 166.0 153.6 159.3 5.9 6.9 84 287 289 308 279 325 364 363 408 421 481 481 553 552 5.5 6.5 69 6.0 7.0 80 6.2 7.3 67 0.8 0.9 0.8 0.9 4.3 4.4 4.3 4.1 4.7 5.3 5.1 5.7 5.7 6.4 6.2 7.1 7.1 6.7 7.8 57 0.7 6.1 7.1 48 0.6 0.4 0.5 0.6 0.7 0.6 0.7 3.8 3.8 3.8 3.6 4.2 4.8 4.5 5.2 5.2 5.8 5.6 6.5 6.5 Rate 2.6 2.5 2.4 2.7 2.2 2.2 6.7 7.2 7.6 7.3 7.9 7.6 8.3 8.2 8.8 9.4 9.2 8.7 8.9 10.0 9.9 10.5 24,366 23,810 23,206 10.7 24,922 10.0 23,468 9.4 20,868 9.5 19,348 8.8 17,469 9.1 15,894 8.4 14,097 8.8 13,308 8.3 12,005 7.8 11,273 2.8 604 2.8 575 3.3 605 3.1 605 3.2 647 3.2 570 UCL LCL UCL LCL 2.9 2.9 2.7 3.0 2.5 2.5 7.3 7.8 8.2 7.9 8.5 8.2 8.9 8.8 9.4 10.1 9.9 9.3 9.4
5 6 6

Hospital Number
5 6 6 5 6

Other Number UCL6 0.7 0.8 1.0 1.1 0.9 1.1 4.8 4.9 4.8 4.6 5.2 5.9 5.6 6.3 6.3 7.0 6.8 7.7 7.7

Cause 282 295 282 313 271 285 632 693 717 702 784 764 825 819 899 995 1,006 947 1,019

Year

Number

Pressure sores

2004

Pressure sores

2005

Pressure sores

2006

Pressure sores

2007

Pressure sores

2008

Pressure sores

2009

Septicaemia

1997

Septicaemia

1998

Septicaemia

1999

Septicaemia

2000

Septicaemia

2001

115

Septicaemia

2002

Septicaemia

2003

Septicaemia

2004

Septicaemia

2005

Septicaemia

2006

Septicaemia

2007

Septicaemia

2008

Septicaemia

2009

The Right to Life – HRA, Article 2

Source: ONS (2011b).

Notes: See Figure 9 for a discussion of the interpretation of this data.

The Right to Life – HRA, Article 2

1 Cause of death was defined using the International Classification of Diseases, Ninth Revision (ICD-9) for the years 1997-2000, and the International Classification of Diseases, Tenth Revision (ICD-10) for 2001 onwards. The ICD codes used are shown in the definitions worksheet. Deaths were included where the specified cause was the underlying cause of death. The introduction of ICD10 in 2001 means that the numbers of deaths from these causes before 2001 are not completely comparable with later years.

2 ‘Care home’ includes a variety of NHS, local authority and private nursing/care/residential homes; ‘Hospital’ includes NHS hospitals (excluding psychiatric hospitals) or multifunction sites, and military and other non-NHS hospitals; ‘Other’ includes any other place e.g. other types of communal establishment (such as psychiatric hospitals or hospices), at home (at a private residential address) and elsewhere.

3 Figures for England and Wales include deaths of non-residents.

4 Figures are for deaths registered in each calendar year.

116

5 Age-standardised mortality rates per 1 million population, standardised to the European Standard Population. Age-standardised rates are used to allow comparison between populations which may contain different proportions of people of different ages, and so also allow comparisons over time.

6 The lower and upper confidence limits have been provided. These form a confidence interval, which is a measure of the statistical precision of an estimate and show the range of uncertainty around the estimated figure. Calculations based on small numbers of events are often subject to random fluctuations. As a general rule, if the confidence interval around one figure overlaps with the interval around another, we cannot say with certainty that there is more than a chance difference between the two figures. Data for c. difficile is not available for 1997, 1998 and 2000 due to the use of ICD-9. Data is available for 1999 because a special coding exercise was carried out. *Rates are not calculated where there are fewer than 10 deaths.

The Right to Life – HRA, Article 2

Table 32: Deaths caused by malnutrition in Scotland Figures for deaths by malnutrition in Scotland were released in August 2009 following a parliamentary question by the West of Scotland MSP. In 2009, there were 15 deaths in hospitals where malnutrition was the principal cause of death and a further 67 cases where it was a contributory factor. The number of people dying from malnutrition has remained relatively steady since 2005. The 2009 figures show that over-75 year olds were the most susceptible and that Greater Glasgow and Clyde was the area where the largest number of deaths occurred. Source: The Scotsman (2010).

117

Indicator 8: Spotlight statistics: Protection from third party violations – homicide within society, community and families

Table 33: Offences currently1 recorded as homicide by age and sex of victim, 1999-2000 to 2009-10. England and Wales recorded crime
200102 2002-03 200304 200405 200506 200607 200708 200811 200910

The Right to Life – HRA, Article 2

19992000

2000012

Sex

Number

Rate per million pop.

Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop.

Number

Rate per million pop.

Number 30 19 24 12 7 9 4 3 4 35 11 23 28 10 18 10 11 21 12 8 20 16 6 22 186 50 236 223 67 290 29 33 31 9 6 8 4 2 3 36 10 23 29 9 19 12 6 18 8 8 16 9 6 15 163 48 211 164 59 223 33 17 26 6 6 6 3 2 2 31 10 21 21 8 15

Age of victim Under 1 year

1 to 4 years

5 to 15 years

16 to 29 years

30 to 49 years

M F T M F T M F T M F T M F T

18 13 31 7 4 11 14 9 23 148 49 197 182 77 259

56 43 50 5 3 4 4 2 3 32 11 21 25 10 17

22 23 45 14 6 20 20 10 30 160 60 220 194 82 276

71 78 75 11 5 8 5 3 4 35 13 24 26 11 18

11 5 16 14 5 19 20 7 27 182 62 244 225 92 317

37 17 27 11 4 8 5 2 4 39 14 26 30 12 21

14 17 31 15 11 26 10 24 34 151 58 209 213 83 296

46 59 53 12 9 11 3 7 5 32 13 23 28 11 19

18 8 26 10 9 19 16 10 26 172 54 226 230 72 302

58 27 43 8 8 8 4 3 4 37 12 24 30 9 20

11 11 22 10 8 18 11 10 21 190 61 251 197 73 270

34 36 35 8 7 8 3 3 3 40 13 27 26 9 18

14 7 21 5 4 9 8 9 17 165 76 241 178 88 266

43 22 33 4 3 4 2 3 2 34 16 25 23 11 17

10 6 16 15 8 23 16 11 27 175 52 227 212 74 286

11 31 12 35 23 33 7 5 10 8 17 6 9 3 3 1 12 2 138 26 39 8 177 17 165 22 72 9 237 15 Continued

Rate per million pop.

118

Table 33: Offences currently1 recorded as homicide by age and sex of victim, 1999-2000 to 2009-10 . England and Wales recorded crime (continued)
200102 2002-03 200304 200405 200506 200607 200708 200811 200910

19992000

2000012

Sex

Number

Rate per million pop.

Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop. Number

Rate per million pop.

Number 80 32 112 14 5 9 82 30 112 14 5 9 70 33 103 14 29 43 5 8 7 13 36 49 5 10 8 21 29 50

Age of victim 50 to 69 years 10 3 7 8 7 7 21 9 9 15 8 9 21 21 21 21 18 9 24 39 63 10 11 10 62 155 217 25 43 36 21 30 51 9 8 8 29 31 60 12 9 10 22 27 49 9 7 8 17 17 34 7 5 5 20 7 73 35 108 13 6 9 71 59 130 13 10 11 83 39 122 15 7 10 96 36 132 17 6 11 76 28 104 13 5 9 73 29 102 12 5 9

70 years and over

M F T

60 31 91

11 5 8

56 18 74

M F T

16 44 60

7 12 10

18 24 42

Total all ages

18

20 7

17 7

M % F % 15 794 15 943 18 772 15 780 15

445 66 227 34

9

538 70 227 30

549 69 245 31

536 57 407 43

550 71 222 29

549 70 231 30

468 66 241 34 709

518 72 197 28 13 715

541 73 203 27 13 744

451 70 193 30 14 644

421 68 198 32 12 619

T

672

13

765

Source: Ministry of Justice (MoJ) (2011a).

Notes: 1 As at 28 September 2010; figures are subject to revision as cases are dealt with by the police and the courts, or as further information becomes available.

2 For the year 2000-01 there were 58 victims (54 male and 4 female) of unknown age.

The Right to Life – HRA, Article 2

3 For the year 2004-05 there were 6 victims of unknown age.

4 For the year 2005-06 there were 2 victims of unknown age.

Rate per million pop. 12 5 8 8 8 8 16 7 11

119

The Right to Life – HRA, Article 2

Table 34: Relationship of currently recorded homicide victims1 to principal suspect by ethnic appearance of victim: England and Wales, combined data for 2005-06 to 2007-08
Ethnic appearance of victim White Relationship of victim to principal suspect Family Of which: Spouse/lover Other known Stranger
2, 3

Total Other Unknown

Black

Asian

465 282 433 538 1,436 193 1,629

35 12 67 98 200 54 254

42 21 40 65 147 30 177

15 9 20 26 61 8 69

19 9 9 49 77 22 99

576 333 569 776 1,921 307 2,228

Total with current suspect No current suspect4 Total

Source: MoJ (2009a), Table 3.6. Notes: 1 Offences recorded as homicide as at 4 November 2008; figures are subject to revision as cases are dealt with by the police and the courts, or as further information becomes available. 2 Includes cases where victim’s relationship to principal suspect is not known. 3 Total includes 52 victims of the 7 July 2005 London bombings. 4 Unlike Table 3.5 [in the original source document] , excludes cases where a former principal suspect has been acquitted, etc., and is based upon the all victims ‘no suspect’ row of Table 1.05 in Povey et al. (2009) Homicides, Firearm Offences and Intimate Violence 2007/08.

120

Table 35: Homicides currently1 recorded for all victims by relationship of victim to principal suspect, 1999-2000 to 2009-10. Recorded crime for England and Wales
200001 200102 200203 200304 200405 200506 200607 200708 200809 200910

Numbers

19992000

Male victims

Victim acquainted with suspect 31 9 23 17 139 219 235 237 213 251 260 205 142 154 134 168 176 138 179 252 18 13 10 15 16 15 14 26 29 30 26 39 22 30 6 10 12 23 15 14 7 14 34 16 185 276 43 31 27 19 14 16 22 27 23 9 31 9 169 241 17 10 21 19 145 212

Son or daughter

Parent

Partner/ex-partner

Other family

Friend/acquaintance

Total known

Victim not acquainted with suspect 152 74 226 445 538 549 536 550 303 312 323 299 289 549 82 98 82 65 51 221 214 241 234 238 210 53 263 468 199 67 266 518 198 67 265 541 166 44 210 451 148 61 209 421 Continued

121

Stranger2

No suspect

Total not known

Total

The Right to Life – HRA, Article 2

Table 35: Homicides currently1 recorded for all victims by relationship of victim to principal suspect, 1999-2000 to 2009-10. Recorded crime for England and Wales (continued)
200001 200102 200203 200304 200405 200506 200607 200708 200809 200910

Numbers

19992000

Female victims

The Right to Life – HRA, Article 2

Victim acquainted with suspect 19 6 89 5 25 144 176 181 191 156 174 145 24 30 39 26 32 30 23 140 8 9 8 7 9 6 5 101 118 106 96 105 90 91 5 12 11 9 7 6 3 12 79 16 28 154 38 12 27 18 21 13 18 19 13 12 101 5 18 149 23 11 95 7 14 150

Son or daughter

Parent

Partner/ex-partner

Other family

Friend/acquaintance

Total known

Victim not acquainted with suspect 66 17 83 227 227 245 407 222 51 64 216 66 57 231 8 24 30 15 15 43 40 186 51 42 74 22 96 241 36 21 57 197 28 21 49 203 25 19 44 193 26 22 48 198 Continued

122

Stranger2

No suspect

Total not known

Total

Table 35: Homicides currently1 recorded for all victims by relationship of victim to principal suspect, 1999-2000 to 2009-10. Recorded crime for England and Wales (continued)
200001 200102 200203 200304 200405 200506 200607 200708 200809 200910

Percentages

19992000

Male victims

Victim acquainted with suspect 7 2 5 4 31 49 44 43 40 46 47 44 26 28 25 31 32 29 35 49 3 2 2 3 3 3 3 5 5 6 5 7 5 6 1 2 2 4 3 3 1 3 6 3 34 51 8 6 5 3 3 3 4 5 5 2 7 2 37 53 4 2 5 5 34 50

Son or daughter

Parent

Partner/ex-partner

Other family

Friend/acquaintance

Total known

Victim not acquainted with suspect 34 17 51 100 100 100 100 100 56 57 60 54 53 100 15 18 15 12 9 41 39 45 43 43 45 11 56 100 38 13 51 100 37 12 49 100 37 10 47 100 35 14 50 100 Continued

123

Stranger2

No suspect

Total not known

Total

The Right to Life – HRA, Article 2

Table 35: Homicides currently1 recorded for all victims by relationship of victim to principal suspect, 1999-2000 to 2009-10. Recorded crime for England and Wales (continued)
200001 200102 200203 200304 200405 200506 200607 200708 200809 200910

Percentages

19992000

Female victims

The Right to Life – HRA, Article 2

Victim acquainted with suspect 8 3 39 2 11 63 78 74 47 70 75 60 11 12 10 12 14 12 12 71 4 4 2 3 4 2 3 44 48 26 43 45 37 46 2 5 3 4 3 2 2 6 39 8 14 76 17 5 7 8 9 5 9 9 7 6 52 3 9 77 12 6 48 4 7 76

Son or daughter

Parent

Partner/ex-partner

Other family

Friend/acquaintance

Total known

Victim not acquainted with suspect 29 7 37 100 100 100 100 100 22 26 53 30 25 100 4 10 7 7 6 19 16 46 23 18 31 9 40 100 18 11 29 100 14 10 24 100 13 10 23 100 13 11 24 100

124

Stranger2

No suspect

Total not known

Total

Source: MoJ (2011a).

Notes:

1 As at 28 September 2010; figures are subject to revision as cases are dealt with by the police and by the courts, or as further information becomes available.

2 Includes not known.

Table 36: Homicides currently1 recorded for victims under 16 years by relationship of victim to principal suspect, 1999-2000 – 2009-10. Recorded crime for England and Wales
200001 200102 200203 200304 200405 200506 200607 200708 200809 200910

Numbers

19992000

Male victims

Victim acquainted with suspect 29 3 32 46 36 28 28 19 23 27 5 6 2 10 7 8 6 7 31 41 30 26 18 12 15 21 24 20 5 25 16 2 18

Son or daughter

Other family/friend/acquaintance

Total acquainted

Victim not acquainted with suspect 4 3 7 39 56 45 39 44 32 10 9 11 16 13 4 27 3 6 5 5 6 1 7 3 6 11 7 3 7 7 14 41 6 1 7 38 1 3 4 29 2 7 9 27 Continued

Stranger2

No suspect

Total not acquainted

125

Total

The Right to Life – HRA, Article 2

Table 36: Homicides currently1 recorded for victims under 16 years by relationship of victim to principal suspect, 1999-2000 – 2009-10. Recorded crime for England and Wales (continued)
200001 200102 200203 200304 200405 200506 200607 200708 200809 200910

Numbers

19992000

Female victims

The Right to Life – HRA, Article 2

Victim acquainted with suspect 19 1 20 36 13 34 18 23 12 19 2 3 9 2 4 2 2 5 21 34 10 25 16 19 10 17 16 12 3 15 20 1 21

Son or daughter

Other family/friend/acquaintance

Total acquainted

Victim not acquainted with suspect 5 1 6 26 39 17 52 27 29 3 4 18 9 6 8 20 1 7 5 4 2 3 3 11 4 2 6 2 4 6 25 1 3 4 25 1 4 5 20 1 3 4 25 Continued

Stranger2

No suspect

Total not acquainted

126

Total

Table 36: Homicides currently1 recorded for victims under 16 years by relationship of victim to principal suspect, 1999-2000 – 2009-10. Recorded crime for England and Wales (continued)
200001 200102 200203 200304 200405 200506 200607 200708 200809 200910

Percentages

19992000

Male victims

Victim acquainted with suspect 74 8 82 82 80 72 64 59 85 66 9 13 5 23 22 30 15 18 82 73 67 67 41 38 56 51 63 69 17 86 59 7 67

Son or daughter

Other family/friend/acquaintance

Total acquainted

Victim not acquainted with suspect 10 8 18 100 100 100 100 100 100 18 20 28 36 41 15 100 5 13 13 11 19 4 13 7 15 25 22 11 17 17 34 100 16 3 18 100 3 10 14 100 7 26 33 100 Continued

Stranger2

No suspect

Total not acquainted

127

Total

The Right to Life – HRA, Article 2

Table 36: Homicides currently1 recorded for victims under 16 years by relationship of victim to principal suspect, 1999-2000 – 2009-10. Recorded crime for England and Wales (continued)
200001 200102 200203 200304 200405 200506 200607 200708 200809 200910

Percentages

19992000

Female victims

The Right to Life – HRA, Article 2

Victim acquainted with suspect 73 4 77 92 76 65 67 79 60 76 5 18 17 7 14 10 8 20 84 87 59 48 59 66 50 68 64 60 15 75 80 4 84

Son or daughter

Other family/friend/acquaintance

Total acquainted

Victim not acquainted with suspect 19 4 23 100 100 100 100 100 100 8 24 35 33 21 40 100 0 6 13 19 14 10 8 18 21 15 7 30 8 16 24 100 4 12 16 100 5 20 25 100 4 12 16 100

Stranger2

No suspect

Total not acquainted

128

Total

Source: MoJ (2011a).

Notes:

1 As at 28 September 2010; figures are subject to revision as cases are dealt with by the police and by the courts, or as further information becomes available.

2 Includes not known.

The Right to Life – HRA, Article 2

Table 37: Homicide by relationship of victim to principal suspect, all victims, Scotland, recorded crime in 1998-99, 2003-04 and 2008-09
1998-99 Relationship Partner/ex-partner Relative (parent, son, daughter, other blood relative) Acquaintance Total known Total unknown (stranger/ relationship not known) Total known and unknown (solved cases) Total Sex of victim M F M F M F M F M F M F N 8 9 8 2 42 6 58 17 13 4 71 21 92 % of all 11.3 42.9 11.3 9.5 59.2 28.6 81.7 81.0 18.3 19.0 100 100 2003-04 N 1 4 9 5 55 2 65 11 28 3 93 14 107 % of all 1.1 28.6 9.7 35.7 59.1 14.3 69.9 78.6 30.1 21.4 100 100 2008-09 N 5 13 9 2 44 8 58 23 10 5 68 28 96 % of all 7.4 46.4 13.2 7.1 64.7 28.6 85.3 82.1 14.7 17.9 100 100

Source: Walby et al. (2010), Table 4.2). Notes: Data from the Scottish Government. This table includes all victims, including those under 16 years old. The figures are of solved cases. Prior to 2000-01, ex-partner does not necessarily include ex-boyfriend/girlfriend as these may have been recorded as simply acquaintances. Comment from Walby (2010: 23): ‘Domestic homicides in Scotland are disproportionately committed against women. For Scotland in 2008/09, 46% of all female homicide victims were killed by a partner or ex-partner, with an additional 7% by another family member. The respective numbers were 7% and 13%.’ Original source cited as Scottish Government.

Indicator 9: Spotlight statistics: Premature mortality within families, community and society
Table 38: Period life expectancy by age, country and gender, 2007-09
England Birth Male Female 78.0 82.1 20 58.7 62.7 50 30.4 33.7 80 8.0 9.4 Birth 77.1 81.4 Wales 20 57.8 62.0 50 29.7 33.0 80 7.8 9.2 Birth 75.3 80.1 Scotland 20 56.0 60.6 50 28.4 31.9 80 7.4 8.7

Source: ONS (2010c).

129

The Right to Life – HRA, Article 2

Table 39: Life expectancy at birth and at age 65 (years) in Government Office Regions, by gender, 2007-09
Males GOR North East North West Yorkshire and The Humber East Midlands West Midlands East of England London South East South West Birth 76.8 76.6 77.4 78.1 77.5 79.3 78.6 79.4 79.2 65 years 17.0 17.0 17.5 17.8 17.7 18.5 18.4 18.7 18.6 Females Birth 80.9 80.8 81.5 82.1 81.9 83.0 83.1 83.3 83.3 65 years 19.5 19.5 20.0 20.4 20.4 21.0 21.2 21.3 21.3

Source: ONS (2010c). Table 40: Life expectancy at birth and at age 65 (years) in council areas in Scotland, by gender, 2007-09
Males Council area Aberdeen City Aberdeenshire Angus Argyll & Bute Clackmannanshire Dumfries & Galloway Dundee City East Ayrshire East Dunbartonshire East Lothian East Renfrewshire Edinburgh, City of Na h-Eileanan an Iar Falkirk Fife Glasgow City Highland Inverclyde Midlothian Moray North Ayrshire North Lanarkshire Birth 75.7 78.0 76.9 76.5 75.0 76.8 73.7 74.6 78.3 76.7 77.8 76.9 73.5 75.9 76.1 71.1 76.3 73.1 76.6 76.7 74.0 73.7 65 years 16.4 17.8 17.7 17.1 15.9 17.4 16.7 15.9 18.3 17.0 17.5 17.5 15.7 16.4 16.8 13.9 17.4 15.5 16.6 17.1 15.9 15.4 Females Birth 80.6 81.4 80.6 80.4 80.9 80.6 79.4 78.8 83.1 81.2 82.0 81.5 82.0 79.8 80.4 77.5 81.2 79.0 81.3 80.9 79.2 78.5 65 years 19.1 19.8 19.5 19.6 19.5 19.6 19.4 18.5 20.9 19.4 20.4 20.2 20.5 18.4 19.4 17.6 19.8 18.8 19.2 19.7 18.5 17.9 Continued

130

The Right to Life – HRA, Article 2

Table 40: Life expectancy at birth and at age 65 (years) in council areas in Scotland, by gender, 2007-09 (continued)
Males Council area Orkney Islands Perth & Kinross Renfrewshire Scottish Borders Shetland Islands South Ayrshire South Lanarkshire Stirling West Dunbartonshire West Lothian Birth 75.5 78.2 73.7 77.1 76.2 75.9 74.9 77.3 72.5 76.0 65 years 16.4 18.0 15.7 17.3 18.0 17.2 15.9 17.7 15.3 16.3 Females Birth 81.7 81.8 79.2 81.2 81.8 80.9 79.9 81.8 78.4 79.7 65 years 19.4 20.1 18.2 19.5 20.7 19.6 18.8 19.8 17.9 18.6

Source: ONS (2010c). Table 41: Life expectancy at birth and at age 65 (years) in local authorities in Wales, by gender, 2007-09
Males Local authority Isle of Anglesey/Ynys Môn Gwynedd/Gwynedd Conwy/Conwy Denbighshire/Sir Ddinbych Flintshire/Sir y Fflint Wrexham/Wrecsam Powys/Powys Ceredigion/Ceredigion Pembrokeshire/Sir Benfro Carmarthenshire/Sir Gaerfyrddin Swansea/Abertawe Neath Port Talbot/Castell-nedd Port Talbot Bridgend/Pen-y-bont ar Ogwr The Vale of Glamorgan/Bro Morgannwg Cardiff/Caerdydd Rhondda Cynon Taf/Rhondda Cynon Taf Merthyr Tydfil/Merthyr Tudful Caerphilly/Caerffili Blaenau Gwent/Blaenau Gwent Torfaen/Tor-faen Monmouthshire/Sir Fynwy Newport/Casnewydd Birth 76.7 77.3 77.1 77.9 78.1 77.4 79.5 80.4 77.3 77.3 76.9 76.2 76.4 78.2 77.0 75.5 74.6 76.1 75.6 76.8 79.5 76.7 65 years 17.4 17.4 17.9 18.2 17.5 17.4 18.6 19.9 17.6 17.3 17.5 16.9 16.9 18.0 17.2 16.4 16.0 16.5 16.4 17.0 18.7 17.0 Females Birth 81.9 82.0 81.5 81.3 82.0 81.2 83.2 84.1 82.2 81.3 81.6 80.7 81.2 82.6 81.8 80.0 79.3 81.1 79.1 81.0 83.3 81.8 65 years 20.4 20.4 20.5 20.1 20.2 19.8 21.4 22.3 20.3 20.0 20.2 19.6 19.9 20.9 20.3 18.8 19.0 19.5 18.5 20.0 21.5 20.3

Source: ONS (2010c).

131

The Right to Life – HRA, Article 2

Table 42: Local areas with the highest and lowest male life expectancy at birth, United Kingdom, 2007-091, 2
Rank 1 2 3 4 5 6 7 8 9 10 Local area Kensington and Chelsea Westminster Epsom and Ewell South Buckinghamshire Wokingham South Cambridgeshire Crawley Fareham Elmbridge East Dorset Country/Government Office Region London London South East South East South East South East South East South East South East South West Life expectancy at birth (years) 84.4 83.4 81.8 81.7 81.7 81.6 81.6 81.4 81.4 81.4

Highest life expectancy at birth

Lowest life expectancy at birth 1 2 3 4 5 6 7 8 9 10 Glasgow City West Dunbartonshire Inverclyde Na h-Eileanan an Iar Belfast Renfrewshire Blackpool Dundee City North Lanarkshire North Ayrshire Scotland Scotland Scotland Scotland Northern Ireland Scotland North West Scotland Scotland Scotland 71.1 72.5 73.1 73.5 73.5 73.7 73.7 73.7 73.7 74.0

Source: ONS (2010a). Notes: 1 Based on boundaries as of 2010. 2 Three-year rolling average, based on deaths registered in calendar years and mid-year population estimates.

132

The Right to Life – HRA, Article 2

Table 43: Period life expectancy by social class, England and Wales, 2002-05
At birth Social class – Men Professional Managerial and technical/intermediate Skilled non-manual Skilled manual Partly skilled Unskilled Social class – Women Professional Managerial and technical/intermediate Skilled non-manual Skilled manual Partly skilled Unskilled 85.1 83.2 82.4 80.5 79.9 78.1 22.0 21.0 19.9 18.7 18.9 17.7 80.0 79.4 78.4 76.5 75.7 72.7 18.3 18.0 17.4 16.3 15.7 14.1 At age 65

Source: ONS (2007), cited in Alkire et al. (2009). Table 44: Infant mortality rates, England, Government Office Regions, 2009
Number England North East North West Yorkshire and the Humber East Midlands West Midlands East of England London South East South West 3,110 113 427 366 274 429 288 579 403 231 Mortality rates1 4.6 3.8 4.9 5.5 5.1 6.0 4.0 4.5 3.9 4.0

Source: ONS (2010d). Notes: 1 Infant deaths per 1,000 live births. Infant deaths include deaths under one year.

133

The Right to Life – HRA, Article 2

Table 45: Infant mortality rates, Scotland, NHS Area Boards, 20091
Number Ayrshire & Arran Borders Dumfries & Galloway Fife Forth Valley Grampian Greater Glasgow Highland Lanarkshire Lothian Orkney Shetland Tayside Western Isles 18 3 5 24 14 21 55 12 20 33 1 – 29 – Rate2 4.6 2.6 3.3 5.8 4.2 3.3 3.9 3.8 3.0 3.4 5.0 – 6.7 –

Source: General Register Office for Scotland (GROS) (2010b). Notes: 1 Provisional data. 2 Rate per 1,000 live births. Table 46: Infant mortality rates, Wales, Welsh Local Health Boards, 2009
Number Wales Betsi Cadwaladr University Powys Teaching Hywel Dda Abertawe Bro Morgannwg University Cwm Taf Aneurin Bevan Cardiff and Vale University 166 44 5 15 19 20 31 32 Mortality rates1 4.8 5.7 4.0 3.9 3.3 5.6 4.6 5.3

Source: ONS (2010d). Notes: 1 Infant deaths per 1,000 live births. Infant deaths include deaths under one year. Mortality rates calculated from fewer than 20 deaths are distinguished by italic type as a warning that their reliability as a measure may be affected by the small number of events.

134

The Right to Life – HRA, Article 2

Table 47: Infant mortality rate (IMR) ethnic group: babies born in 2005, England and Wales
Deaths All
2

IMR 5.0 4.2 5.8 9.6 6.0 9.8 4.5 4.3 5.4 5.1

3,200 34 93 231 118 73 1,859 142
3

Bangladeshi Indian Pakistani African Caribbean White British White Other All other ethnic groups Not stated

271 357

Source: ONS (2008b). Notes: 1 Deaths under age one per 1,000 live births. 2 Includes birth and death registration records not linked to an NHS Numbers for Babies record. 3 Chinese, Other Asian, Other Black, Other, and all Mixed groups.

135

The Right to Life – HRA, Article 2

Table 48: Infant deaths by mother’s country of birth, England and Wales, 2009
Number All United Kingdom England and Wales Scotland Northern Ireland Elsewhere Outside the United Kingdom Irish Republic Other European Union Rest of Europe Commonwealth Australia, Canada and New Zealand New Commonwealth Asia Bangladesh India Pakistan East Africa Southern Africa Rest of Africa Far East Caribbean Rest of the New Commonwealth United States of America Rest of World and not stated 40 58 145 36 21 96 3 29 9 12 219 4.7 4.6 7.9 8.9 4.5 7.4 2.2 8.4 2.4 3.9 5.2 10 437 2.2 6.3 3,141 2,258 2,212 28 15 3 883 11 169 25 Rates1 4.4 4.2 4.2 4 6.8 7.3 5.1 3.7 3.8 3.2

Source: ONS (2010b). Notes: 1 Infant deaths per 1,000 live births.

136

The Right to Life – HRA, Article 2

Table 49: Infant mortality rates by father’s Socio-economic Classification (NS-SEC), 2009 England and Wales1, 2
All Inside marriage4 All5 1.1 Large employers and higher managerial 1.2 Higher professional 2 Lower managerial and professional 3 Intermediate 4 Small employers and own account worker 5 Lower supervisory and technical 6 Semi-routine 7 Routine Other6 Outside marriage joint registration All5 1.1 Large employers and higher managerial 1.2 Higher professional 2 Lower managerial and professional 3 Intermediate 4 Small employers and own account worker 5 Lower supervisory and technical 6 Semi-routine 7 Routine Other6 1,322 22 32 132 72 163 177 216 257 140 4.7 2.3 2.6 3.1 4.9 3.8 4.1 5.6 4.8 5.4 1,577 116 169 312 123 195 127 205 181 103 4.1 3.3 3.2 3.5 5.3 3.7 3.2 5.4 5.6 6.0 Number 2,899 Rates3 4.4

Source: ONS (2010b). Notes: 1 Information on father’s occupation is not collected for births outside marriage if the father does not attend the registration of the baby’s birth. Figures for live births in NS-SEC groups are a 10 per cent sample coded for father’s occupation. 2 NS-SEC based on father’s occupation at death registration. 3 Stillbirths and perinatal deaths per 1,000 live births and stillbirths. Neonatal, postneonatal and infant deaths per 1,000 live births. 4 Inside marriage and outside marriage/joint registration only, including cases where father’s occupation was not stated. Figures for sole registrations are excluded. 5 Includes cases where father’s occupation was not stated. 6 Students; occupations inadequately described; occupations not classifiable for other reasons; never worked and long-term unemployed. Rates based on less than 10 deaths are in italics.

137

Table 50: Age-specific mortality rates of all children (aged 0-15) from accidents, by NS-SEC, age group and selected causes, England and Wales 2001-031, 2, rate per million

Age group 13 7 17 26 21 91 97 69 226 217 66 17.6 16.9 7.8 2.9 4.9 4.4 5.3 4.9 3.6 3.8 2.1 4.5 32 19 36 67 33 7 8.4 8.9 99 38 73 136 76 18 63 46 56 65 64 17 34 28 48 91 42 9 33 15 29 45 30 7 35 14 29 44 29 7 3 3 4 5 6 3 3.3 4.1 27 6 33 77 25 6 3 10 10 22 54 18 3 2 17 9 16 15 14 2 2 8 18 13 48 15 3 – – – 1 1 –1 4 10 11 3 15.9 18.4 13 13 15 31 14 2 1 1

0-13 1-4 5-9 10-14 15 0-15 Drowning

Pedestrian accidents

Exposure to fire/hot substances

Suffocation 2 – –3 4 5 5 8 13 12 6 6.8 6.3

Higher managerial, professional

The Right to Life – HRA, Article 2

Large employers, higher managers

Higher professionals

Lower managerial, professional

Intermediate

Small employers, own account workers

Lower supervisory and technical

Semi-routine

Routine

‘Non-occupied'4

138

All children

Ratio 7:1

Ratio 'Non-occupied':1

Source: Siegler and Al-Hamad (2010), Tables 3 and 4.

Notes:

1 Figures in the table are rounded to nearest integer.

2 Age-specific mortality rates were not calculated where there were fewer than 3 deaths in a cell, denoted by a hyphen (-).

3 Deaths at aged 0 only included postneonatal deaths (children at least 28 days but under one year).

4 The ‘Non-occupied’ category includes ‘never worked, long-term unemployed, full-time students, inadequately described and unclassified for other reasons.

5 Figures in original table are presented with confidence intervals, refer to Siegler and Al-Hamad (2010) for further details.

Table 51: Deaths as a result of an unintentional injury, children aged under 15, by type of injury, Scotland, year ending 31 December 2009
1985 147 64 49 34 17 11 8 10 11 8 8 6 10 14 6 9 12 18 8 7 4 1 5 9 44 28 19 19 13 15 13 10 15 6 75 45 36 41 42 31 28 20 26 20 23 18 4 1 1990 1995 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 21 4 6 11

Type of injury

Number

Total deaths

Road traffic accidents

Home

Other

Standardised death rate1 per 100,000 population 7.9 4.7 1.3 1.9 1.1 0.8 0.5 0.6 0.9 0.7 0.8 0.4 0.1 0.2 0.4 0.5 0.4 0.2 3.3 2.0 1.3 1.7 0.9 1.4 1.2 4.8 2.8 2.0 2.7 2.3 2.5 2.2 1.3 0.9 0.0 0.3 2.0 1.5 0.0 0.5 1.2 0.3 0.1 0.8 1.7 1.6 0.1 0.0 1.2 0.4 0.3 0.4

Total

Road traffic accidents

Home

Other

139

Source:IDS Scotland (2010).

Notes: Data from: GROS.

1 Directly standardised using the European standard population. Definitions available at: www.isdscotland.org/isd/4438.html

The Right to Life – HRA, Article 2

The Right to Life – HRA, Article 2

Table 52: Deaths as a result of an unintentional injury, children aged under 15, by deprivation quintile, number and standardised mortality ratios, Scotland, year ending 31 December, 2005-09
Deprivation quintile 1 Number of deaths Standardised mortality ratio Lower 95% confidence interval Upper 95% confidence interval 28 126.1 79.4 172.8 2 16 72.5 37.0 108.0 3 29 134.5 85.5 183.4 4 19 90.4 49.8 131.1 5 13 56.2 25.6 86.7 Total1 105 100.0

Source: IDS Scotland (2010). Notes: Data from: GROS and Scottish Index of Multiple Deprivation (SIMD). 1 Excludes cases where deprivation quintile could not be assigned. Definitions available at: www.isdscotland.org/isd/4438.html Table 53: Age-standardised suicide rates1 (with 95 per cent confidence limits) by sex and age group, England2, 1991-20093
Rate per 100,000 population 20.2 20.0 19.0 18.5 18.8 17.8 17.5 19.8 19.1 18.1 17.5 16.8 16.6 16.5 16.1 15.4 14.9 15.8 16.1 Lower confidence limit 19.6 19.4 18.4 17.9 18.2 17.2 16.9 19.2 18.4 17.5 17.0 16.2 16.1 16.0 15.6 14.9 14.3 15.3 15.5 Upper confidence limit 20.9 20.7 19.6 19.1 19.5 18.4 18.1 20.5 19.7 18.7 18.1 17.4 17.2 17.1 16.7 15.9 15.4 16.4 16.6 Number of deaths 3,778 3,756 3,561 3,507 3,558 3,412 3,327 3,777 3,670 3,497 3,421 3,292 3,298 3,295 3,251 3,131 3,043 3,263 3,330 Continued

Year Males 15 and over 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

140

The Right to Life – HRA, Article 2

Table 53: Age-standardised suicide rates1 (with 95 per cent confidence limits) by sex and age group, England2, 1991-20093 (continued)
Rate per 100,000 population 6.5 6.4 6.1 5.7 5.7 5.7 5.7 5.8 5.7 5.9 5.3 5.3 5.3 5.6 5.4 4.8 4.4 4.7 4.8 Lower confidence limit 6.1 6.1 5.8 5.4 5.4 5.3 5.3 5.5 5.4 5.5 5.0 5.0 5.0 5.3 5.1 4.5 4.1 4.4 4.5 Upper confidence limit 6.8 6.8 6.5 6.0 6.1 6.0 6.0 6.1 6.0 6.2 5.6 5.6 5.6 5.9 5.7 5.1 4.7 5.0 5.1 Number of deaths 1,331 1,332 1,290 1,207 1,202 1,179 1,171 1,209 1,201 1,228 1,131 1,138 1,132 1,215 1,157 1,044 950 1,019 1,060

Year Females 15 and over 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Source: ONS (2011a). Notes: 1 Rates per 100,000 population standardised to the European Standard Population. 2 Excludes deaths of non-residents. 3 Deaths registered in each calendar year. ‘Suicide’ is defined as deaths given an underlying cause of intentional self-harm or injury/poisoning of undetermined intent. In England and Wales, it has been customary to assume that most injuries and poisonings of undetermined intent are cases where the harm was self-inflicted but there was insufficient evidence to prove that the deceased deliberately intended to kill themselves (Adelstein and Mardon, 1975). This cannot be assumed in children due to the possibility that these deaths were caused by unverifiable accidents, neglect or abuse. Therefore, only adults aged 15 years and over are included in the figures.

141

The Right to Life – HRA, Article 2

Table 54: Age-standardised suicide rates1 (with 95 per cent confidence limits) by sex and age group, Wales2, 1991-20093
Rate per 100,000 population 22.6 24.6 20.6 22.0 23.8 20.5 19.4 21.4 24.6 22.9 23.1 21.0 23.4 22.9 18.8 19.4 20.3 17.1 17.4 Lower confidence limit 19.8 21.7 17.9 19.3 20.9 17.8 16.8 18.7 21.6 20.0 20.2 18.2 20.6 20.1 16.3 16.9 17.7 14.7 15.0 Upper confidence limit 25.4 27.6 23.2 24.8 26.7 23.1 22.0 24.1 27.5 25.7 25.9 23.7 26.3 25.7 21.3 22.0 22.9 19.5 19.8 Number of deaths 247 269 228 245 264 226 214 236 268 252 253 229 254 258 213 223 232 195 201 Continued

Year Males 15 and over 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

142

The Right to Life – HRA, Article 2

Table 54: Age-standardised suicide rates1 (with 95 per cent confidence limits) by sex and age group, Wales2, 1991-20093 (continued)
Rate per 100,000 population 5.9 6.2 5.1 5.6 5.0 4.5 6.2 6.5 5.1 5.6 4.9 5.8 6.6 5.8 4.4 6.3 4.3 5.8 4.3 Lower confidence limit 4.6 4.9 3.8 4.4 3.7 3.3 4.8 5.1 3.8 4.3 3.7 4.5 5.2 4.4 3.3 4.9 3.2 4.5 3.2 Upper confidence limit 7.3 7.6 6.3 6.9 6.2 5.7 7.6 7.9 6.3 7.0 6.2 7.2 8.1 7.1 5.6 7.7 5.4 7.2 5.4 Number of deaths 73 78 62 75 62 55 74 82 65 68 59 75 78 72 56 77 57 71 57

Year Females 15 and over 1991 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009

Source: ONS (2011a). Notes: 1 Rates per 100,000 population standardised to the European Standard Population. 2 Excludes deaths of non-residents. 3 Deaths registered in each calendar year. ‘Suicide’ is defined as deaths given an underlying cause of intentional self-harm or injury/poisoning of undetermined intent. In England and Wales, it has been customary to assume that most injuries and poisonings of undetermined intent are cases where the harm was self-inflicted but there was insufficient evidence to prove that the deceased deliberately intended to kill themselves (Adelstein and Mardon, 1975). This cannot be assumed in children due to the possibility that these deaths were caused by unverifiable accidents, neglect or abuse. Therefore, only adults aged 15 years and over are included in the figures.

143

Table 55: Age-standardised suicide rates1 (with 95 per cent confidence limits), Government Office Regions2, 20093
Males Females

GOR 19.2 19.8 15.4 15.2 15.8 13.7 13.6 15.9 18.9 17.0 20.8 389 5.7 14.5 17.2 530 5.2 12.3 14.9 431 4.4 3.7 4.5 4.7 12.2 15.2 321 4.2 3.4 14.1 17.5 336 4.7 3.8 13.4 17.0 270 5.3 4.3 13.7 17.1 321 3.6 2.8 18.1 21.5 538 5.9 5.0 6.8 4.4 6.3 5.6 5.0 5.1 6.0 6.7 16.5 21.9 194 4.0 2.8 5.2

Rate per 100,000 population Number of deaths

Lower confidence limit

Upper confidence limit

Rate per 100,000 population

Lower confidence limit

Upper confidence limit

Number of deaths 43 167 80 103 110 102 139 191 125

North East

The Right to Life – HRA, Article 2

North West

Yorkshire and the Humber

East Midlands

West Midlands

East of England

London

South East

South West

Source: ONS (2011a).

144

Notes:

1 Rates per 100,000 population standardised to the European Standard Population.

2 Excludes deaths of non-residents.

3 Deaths registered in each calendar year. ‘Suicide’ is defined as deaths given an underlying cause of intentional self-harm or injury/ poisoning of undetermined intent. In England and Wales, it has been customary to assume that most injuries and poisonings of undetermined intent are cases where the harm was self-inflicted but there was insufficient evidence to prove that the deceased deliberately intended to kill themselves (Adelstein and Mardon, 1975). This cannot be assumed in children due to the possibility that these deaths were caused by unverifiable accidents, neglect or abuse. Therefore, only adults aged 15 years and over are included in the figures.

The Right to Life – HRA, Article 2

Table 56: Deaths for which the underlying cause was classified as ‘intentional selfharm’ or ‘event of undetermined intent’ by current local authority area: registered in Scotland, 2009
Region All Scotland Aberdeen City Aberdeen-shire Angus Argyll & Bute Clackmannanshire Dumfries & Galloway Dundee City East Ayrshire East Dunbartonshire East Lothian Number Region 746 East Renfrewshire 34 Edinburgh City 29 Eilean Siar 11 Falkirk 19 Fife 4 Glasgow City 24 Highland 23 Inverclyde 15 Midlothian 9 Moray 13 North Ayrshire Number Region 7 North Lanarkshire 64 Orkney Islands 3 Perth & Kinross 19 Renfrewshire 50 Scottish Borders 116 Shetland Islands 32 South Ayrshire 11 South Lanarkshire 9 Stirling 17 West Dunbartonshire 24 West Lothian Number 49 2 14 34 13 4 10 44 9 14 20

Source: GROS (2010a). Table 57: Deaths for which the underlying cause was classified as ‘intentional selfharm’ or ‘event of undetermined intent’ by sex and by type of cause: registered in Scotland, 2009
All such deaths Number registered in year Number 746 Sex Males 549 Females 197 Type of cause Intentional selfharm 568 Undetermined intent 178

Source: GROS (2010a). Notes: In mid-2009, the balance between ‘intentional self-harm’ and ‘undetermined intent’ was altered by a change in how Crown Office and Procurator Fiscal Service (COPFS) provides information about suicides. See www.gro-scotland.gov.uk/statistics/theme/vitalevents/deaths/suicides/definition-of-stats/how-nrs-classifies/index.html

145

The Right to Life – HRA, Article 2

Table 58: Age-standardised suicide rates by deprivation twentieth and sex, people aged 15 and over, England and Wales, 1999-2003
Men Deprivation twentieth 1 (most affluent) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 (most deprived) Rate per 100,000 population 11.9 11.7 13.7 13.2 15.0 15.0 14.8 16.9 17.2 17.2 17.6 17.8 18.7 21.1 20.8 22.0 23.1 22.1 22.2 25.4 Women Rate per 100,000 population 3.6 4.5 4.5 5.0 3.9 5.0 5.1 4.9 5.0 5.6 6.0 5.6 5.7 5.5 6.3 6.3 6.7 6.1 7.0 7.4

Source: Brock et al. (2006), cited in Allmark (2010). Notes: The ONS data from which Brocke created this table states that Carstairs scores provide an index of deprivation at ward level based on an unweighted combination of four census variables: unemployment, overcrowding, car ownership and low Social Class (Social Class IV and V). Originally calculated using the 1981 Census, and subsequently updated following the 1991 Census, the version used here is based on the 2001 Census. All the variables except for low Social Class are the same as in 1991. Social Class was replaced in the 2001 Census by the National Statistics Socio-economic Classification (NS-SEC). The NS-SEC categories have been matched to Social Class IV and V. (Available at: www.statistics.gov.uk/statbase/Product.asp?vlnk=14068&More=Y_) (accessed 4 November 2010).

146

The Right to Life – HRA, Article 2

Table 59: Deaths caused by intentional self harm and events of undetermined intent by gender and Scottish Index of Multiple Deprivation, Scotland, 2000-09
European agestandardised rates (95% confidence intervals) 2000-04 11 (9.3-13) 11.6 (9.8-13.6) 16.1 (13.9-18.5) 18.4 (16.1-21) 22.8 (20.2-25.6) 22.8 (20.3-25.6) 28.5 (25.6-31.6) 29.7 (26.7-32.9) 35.8 (32.5-39.3) 49.5 (45.6-53.6) 25.3 (24.4-26.2) 2005-09 11 (9.2-13) 10.2 (8.5-12) 16.6 (14.5-19) 18.1 (15.9-20.6) 18.9 (16.6-21.4) 19.6 (17.2-22.1) 25.3 (22.6-28.2) 30.3 (27.3-33.5) 34 (30.8-37.5) 45.4 (41.6-49.3) 22.9 (22-23.7) Continued

Numbers 2000-04 Males 10 (most affluent) 9 8 7 6 5 4 3 2 1 (most deprived) Unknown Scotland 145 148 199 229 288 288 361 372 443 606 103 3,182 142 139 221 241 249 258 326 382 418 548 16 2,940 11.5 11.9 16.6 18.8 23.4 23.3 29.0 29.9 35.4 48.1 25.7 2005-09 2000-04

Crude rates 2005-09 11.2 10.8 17.5 19.0 19.7 20.4 26.1 30.9 34.0 44.8 23.4

147

The Right to Life – HRA, Article 2

Table 59: Deaths caused by intentional self harm and events of undetermined intent by gender and Scottish Index of Multiple Deprivation, Scotland, 2000-09 (continued)
European agestandardised rates (95% confidence intervals) 2000-04 3.9 (3-5.1) 4.2 (3.1-5.4) 4.8 (3.7-6.1) 5.7 (4.5-7.2) 7.3 (5.9-8.9) 8.5 (7-10.2) 7.7 (6.3-9.3) 9.6 (8-11.4) 10.5 (8.9-12.4) 16.7 (14.6-19) 8.1 (7.6-8.6) 2005-09 3.2 (2.3-4.2) 2.8 (2-3.8) 5.1 (3.9-6.4) 4.8 (3.7-6.1) 6.9 (5.6-8.4) 7.8 (6.4-9.5) 7.4 (6-9) 8.7 (7.2-10.4) 11.2 (9.5-13.2) 15.2 (13.1-17.4) 7.3 (6.9-7.8)

Numbers 2000-04 Females 10 (most affluent) 9 8 7 6 5 4 3 2 1 (most deprived) Unknown Scotland 57 56 66 77 98 116 110 133 147 233 17 1,110 47 42 72 68 97 107 103 120 150 207 2 1,015 4.3 4.3 5.2 6.0 7.6 8.8 8.1 9.7 10.5 16.3 8.3 2005-09 2000-04

Crude rates 2005-09 3.5 3.2 5.4 5.1 7.3 8.0 7.6 8.8 11.0 15.1 7.6

Source: Scottish Public Health Observatory (2010a). Notes: Data from the GROS. Crude rates: these are the number of deaths divided by the SIMD population estimate for each sex/year group. The rate per 100,000 population is displayed. European age-standardised rates (EASRs): In order to compare rates in populations with different age structures(ie different areas or over time), rates can be agestandardised by applying a ‘standard population’. The standardised rate is calculated by multiplying each crude age-specific rate by the corresponding age group weight from the standard population (in this case the hypothetical European Standard) and then summing up these values over all ages. The rate per 100,000 population is displayed. Confidence Intervals for the EASRs: Describes the degree of uncertainty around the EASR. The width of the confidence interval depends on the sample size from which the estimate is derived and the underlying variability in the data. A 95% confidence interval implies that 95 times out of 100 the interval will include the true underlying rate.

148

The Right to Life – HRA, Article 2

Notes: 1 The figures shown are based on deaths registered in Scotland. This equates to all deaths that occurred in Scotland and thus, the figures are likely to include a small proportion of deaths for persons who are not residents of Scotland. It is also worth noting that the figures do not relate to deaths in the actual year of death, but to deaths registered in the year. This is important to be aware of because, although the majority of deaths registered in a year will have occurred in that year, a minority will have occurred in the previous year. 2 Details of the SIMD 2009 are available at www.scotland.gov.uk/Topics/Statistics/SIMD. These are devised at the datazone geography. Population estimates for 2009 at datazone level are not yet available, therefore, we have estimated rates and EASRs for 2009 using 2008 population estimates. 3 For analyses using SIMD 2009, ISD have changed their labelling and now label the categories as 1=most deprived to 5/10=least deprived. Our policy of populationweighting the quintiles remains unchanged, so the datazones contained within each quintile/decile will differ slightly to those presented in Scottish Government releases. Table 60: Estimated rates of maternal deaths by type and ethnic group, England, 2006-08
Estimated death rate (direct and indirect) per 100, 000 maternities 8.51 6.08 28.05 31.89 32.82 8.51 12.24 12.52 14.27 6.08 15.11 7.97 95% confidence interval for death rate 7.28-9.96 1.52-24.31 20.14-39.07 15.95-63.76 22.17-48.57 2.13-34.02 8.14-18.43 6.26-25.04 8.29-24.58 1.52-24.32 3.78-60.40 3.99-15.94

Ethnic group White Mixed Black Caribbean African Other Asian Indian Pakistani Bangladehsi Chinese Other

Source: Centre for Maternal and Child Enquiries (2011: Table 1.20). Saving Mothers’ Lives.169

149

The Right to Life – HRA, Article 2

Table 61: Estimated rates of maternal deaths by National Statistics Socio-Economic Classification (NS SEC), England and Wales, 2006-08
Social class of husband and partner and partnership status Managerial and professional Intermediate Routine and manual All employed Unemployed, unclassifiable or not stated All women with partners Estimated death rate (direct and indirect) per 100, 000 maternities 6.48 13.56 14.87 10.48 60.15 12.78 95% confidence interval for death rate 4.65-9.03 9.48-19.39 11.27-19.62 8.73-12.58 42.54-85.06 10.87-15.02

Source: Centre for Maternal and Child Enquiries (2011, Table 1.22).170 Table 62: Gypsies and Travellers: Evidence on premature mortality Parry et al. (2004) report an excess prevalence of miscarriages, stillbirths, neonatal deaths and premature death of older offspring in the Gypsy Traveller group compared with other groups. A recent review of the evidence in relation to differentials in life expectancy is provided in Cemlyn et al. (2009: 50) who highlight decreased life expectancy for the Irish Traveller sub-population.

Indicator 10: Spotlight statistics: Public attitudes, understanding and experiences
Table 63: Public attitudes towards ‘being protected if your life is under threat’
Which of the following, if any, would you say are the most important values for living in Britain today? % Bring protected if your life is under threat 58 And which four of five, if any, are most important to you personally? % 35 And which, if any, do you consider to be fundamental human rights? % 44

Source: Kaur-Ballagan et al. (2009), Charts 1, 2 and 3. Notes: This data is based on a demographically representative, face-to-face omnibus survey with 1,994 British adults over the age of 16 undertaken in August 2008.

150

The Right to Life – HRA, Article 2

Chapter notes
43

The status of UN treaty ratification is drawn from the UN Treaty Database, www.unhchr. ch/tbs/doc.nsf/Statusfrset?OpenFrameSet (accessed 4 November 2010). The status of European treaty ratification is drawn from the Council of Europe Treaty Office website, conventions.coe.int/ (accessed 4 November 2010). When a state signs an international treaty this signals its preliminary endorsement of the treaty, it does not create a binding legal obligation. A state which ratifies or accedes to a treaty is asserting that it considers itself to be legally bound by the treaty. Ratification requires the state to have previously signed the treaty, whereas accession is a single step which does not require previous signing. It should be noted that a treaty which has been acceded to or ratified by the UK does not automatically become part of the domestic law; separate legislative action is required to incorporate international law into domestic law (for example, the HRA making the ECHR enforceable in the UK). Nonetheless, ratification or accession is a state’s expression that it consents to be legally bound by the treaty, including respecting and implementing its provisions. www.icrc.org/ihl.nsf/Pays?ReadForm&c=GB cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695820&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697327&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd031016/amin-1.htm www.bailii.org/uk/cases/UKHL/2004/10.html www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081126/ssj-1.htm www.bailii.org/ew/cases/EWHC/Admin/2010/760.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695820&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696134&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/eu/cases/ECHR/1998/49.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698206&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697328&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=708579&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd081210/savage-1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=826000&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=851046&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/ew/cases/EWCA/Civ/2010/698.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695820&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=863698&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=887952&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.supremecourt.gov.uk/docs/uksc_2009_0103_judgment_v2.pdf cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=880261&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66

151

The Right to Life – HRA, Article 2

67 68 69 70 71 72 73 74

75 76 77

78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95

www.bailii.org/uk/cases/UKHL/1992/5.html www.bailii.org/ew/cases/EWCA/Civ/2000/254.html Human Rights Information Service, NHS Litigation Authority, ‘What the courts have said about end of life decisions and human rights’, 1 May 2007, www.nhsla.com/Publications/ (accessed 3 October2011). OHCHR, General Comment No. 6: The Right to Life, www.unhchr.ch/tbs/doc.nsf/0/84ab9690 ccd81fc7c12563ed0046fae3 (accessed 2 February 2011). www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/34/3406.htm (accessed 17 November 2010). www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/133/13305.htm#a2 paragraph 10 (accessed 17 November 2010). iapdeathsincustody.independent.gov.uk/about/ministerial-council-on-deaths-in-custody/ ministerial-board/. Terms of reference include all types of death in state custody – in prisons, in or following policy custody, immigration detention, the deaths of residents of approved premises and the deaths of those detained under the Mental Health Act in hospital. Providing independent advice and expertise to the Ministerial Board on Deaths in Custody. All recommendations arising from the inquiries are held at www.scotland.gov.uk/Topics/ Justice/law/fatalaccidentinquiries/Recommend The Optional Protocol of the Convention Against Torture (CAT) requires that states designate an NPM to carry out visits to places of detention, to monitor the treatment of and conditions for detainees and to make recommendations regarding the prevention of ill-treatment. The UK’s NPM is currently made up of 18 visiting or inspecting bodies in the four different nations of the UK, covering all forms of detention such as prisons, police custody, immigration detention centres, children’s secure accommodation and mental health institutions. The NPM is coordinated by HMIP. www.legislation.gov.uk/ukpga/2007/19/section/2 and www.justice.gov.uk/news/features/ feature010911a.htm (accessed November 2011). www.justice.gov.uk/guidance/prison-probation-and-rehabilitation/psipso/psos.htm (accessed 3 October2011). www.justice.gov.uk/guidance/prison-probation-and-rehabilitation/psipso/psos.htm www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/65/6503.htm (accessed 3 October2011). www.justice.gov.uk/publications/docs/physical-control-in-care-training-manual-2010.pdf (accessed 8 March 2011). www.legislation.gov.uk/ukpga/1967/58/section/3 (accessed 3 February 2011). www.nacro.org.uk/data/files/nacro-2006021400-469.pdf www.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/pace-code-c (accessed 3 February 2011). www.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/pace-code-h (accessed 3 February 2011). www.acpo.police.uk/documents/uniformed/2008/200812UNTAS01.pdf www.nipolicingboard.org.uk/intro_of_taser.pdf www.acpo.police.uk/documents/uniformed/2010/201010UNKTP01.pdf www.hmic.gov.uk/SiteCollectionDocuments/PPR/PPR_20110209.pdf (accessed 3 October2011). www.hmic.gov.uk/SiteCollectionDocuments/PPR/PPR_20110209.pdf, p 20. www.mentalhealthalliance.org.uk/policy/documents/LordsCtteeStage_136_Briefing.pdf (accessed 3 October2011). www3.imperial.ac.uk/pls/portallive/docs/1/51771696.PDF www.scie.org.uk/publications/misc/dementia/dementia-guideline.pdf (accessed 3 February 2011). cambridgeshire.gov.uk/NR/rdonlyres/46979CAB-51B2-4305-B64B-E520165D56D7/0/ Restraint.pdf, November 2007 (accessed 3 February 2011).

152

The Right to Life – HRA, Article 2

96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125

126 127 128 129 130

www.positive-options.com/news/downloads/restraint_guidance_for_inspectors_csci_ december_2007.pdf (accessed 3 February 2011). www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/ DH_085476 (accessed 3 February 2011). www.scie.org.uk/publications/reports/report26.pdf (accessed 3 October2011). www.mwcscot.org.uk/web/FILES/Publications/Rights_Risks_web.pdf cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695820&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/UKHL/2004/10.html www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081126/ssj-1.htm www.bailii.org/ew/cases/EWHC/Admin/2010/760.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695820&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696134&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/eu/cases/ECHR/1998/49.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697328&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd081210/savage-1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=826000&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/ew/cases/EWCA/Civ/2010/698.html www.publications.parliament.uk/pa/ld200203/ldjudgmt/jd031016/amin-1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=863698&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=887952&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.supremecourt.gov.uk/docs/uksc_2009_0103_judgment_v2.pdf cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/UKHL/1992/5.html ww.bailii.org/ew/cases/EWCA/Civ/2000/254.html www.library.nhs.uk/healthmanagement/ViewResource.aspx?resID=267515 (accessed 1 February 2011). www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/94/9405.htm (accessed 17 November 2010). www.publications.parliament.uk/pa/jt200405/jtselect/jtrights/15/1502.htm (accessed 3 February 2011). www2.ohchr.org/english/bodies/cedaw/docs/CEDAW.C.GBR.CO.6.pdf, p 11 (accessed 1 February 2011). www.unhcr.org/refworld/publisher,CESCR,CONCOBSERVATIONS,GBR,4af181b10,0.html webarchive.nationalarchives.gov.uk/20101103103930/http://bloody-sunday-inquiry.org/ (accessed 3October 2011). www.heraldscotland.com/mark-wright-inquest-full-statement-from-coroner-1.892347 inquest.gn.apc.org/website/press-releases/press-releases-2010/highly-critical-jury-verdictcondemns-police-neglect-as-contributing-to-death-of-paul-davies (accessed 2 February 2011). www.ipcc.gov.uk/index/resources/evidence_reports/investigation_reports/the_stockwell_ investigation.htm (accessed 24 November 2010). www.ipcc.gov.uk/news/Pages/pr-291110-tomlinsonupdate.aspx (accessed 2 February 2011) www.ipcc.gov.uk/en/Pages/investigation_reports.aspx (accessed 14 June 2011). IPCC Annual Report and Statement of Accounts 2009/10, p 23, www.ipcc.gov.uk/Pages/ corp_reports-plans.aspx (accessed 2 February 2011). www.ipcc.gov.uk/news/Pages/pr_290909_pilkington.aspx (accessed 2 February 2011).

153

The Right to Life – HRA, Article 2

131 132 133

134 135 136 137

138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162

www.ipcc.gov.uk/en/Pages/investigation_reports.aspx (accessed 14 June 2011). fflm.ac.uk/upload/documents/1291370447.pdf (accessed 3 October 2011). inquest.gn.apc.org/website/press-releases/press-releases-2011/serco-and-youth-justiceagencies-condemned-for-unlawful-treatment-of-vulnerable-boy-in-custody (accessed 2 February 2011). www.scottish.parliament.uk/business/research/pdf_res_notes/rn00-34.pdf (accessed 4 November 2010). www.justice.gov.uk/inspectorates/hmi-prisons/docs/Detainee_escorts_and_removals_2009_ rps.pdf (accessed 10 February 2011). www.justice.gov.uk/inspectorates/hmi-prisons/docs/HMIP_AR_2008-9_web_published_rps. pdf, p 74. Under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act1976, an inquiry must be held in cases of death in custody or as a result of an accident at work. The full list of FAI recommendations is accessible at www.scotland.gov.uk/Topics/Justice/law/ fatalaccidentinquiries/Recommend www.scotcourts.gov.uk/opinions/tung.html www.scotcourts.gov.uk/opinions/fai_wu.html www.scotcourts.gov.uk/opinions/FOSTER.html www.scotcourts.gov.uk/opinions/MCKELVIE.html www.scotcourts.gov.uk/opinions/Allan.html www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/ DH_098660 (accessed 2 February 2011). www.cqc.org.uk/_db/_documents/Northwick_tagged.pdf (accessed August 2011). www.rjw.co.uk/latest-news/article/alan-simper-dies-after-failings-at-a-leading-care-home/ (accessed 2 February 2011). mobile.wimbledonguardian.co.uk/news/4760335.How_could_this_happen_/?ref=rss (accessed 2 February 2011). www.hse.gov.uk/press/2010/coi-yh-21410.htm (accessed 9 February 2010). www.chi.gov.uk/_db/_documents/Northwick_tagged.pdf www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/ dh_110711.pdf (accessed 2 February 2011). www.education.gov.uk/publications//eOrderingDownload/HC-330.pdf (accessed 2 February 2011). www.dundeeprotects.co.uk/documents/100aSCRReport-BrandonLeeMuir.pdf (accessed 24 May 2011). www.communitycare.co.uk/Articles/2010/08/23/115150/Council-cleared-of-failure-to-help39frozen-couple39.htm (accessed 2 February 2011). www.northamptonshire.gov.uk/en/councilservices/asc/services/va/Documents/PDF%20 Documents/Final%20Parkside%20v4%20executive%20summary%20for%20publication.pdf Report downloadable from www.ipcc.gov.uk/en/Pages/investigation_reports.aspx (accessed 14 June 2011). inquest.gn.apc.org/pdf/INQUEST_ian_tomlinson_briefing_jun_2009.pdf (accessed 24 November 2010). inquest.org.uk/pdf/briefings/INQUEST_parliamentary_inquiry_call_Jimmy_Mubenga_briefing.pdf inquest.gn.apc.org/pdf/INQUEST_adam_rickwood_briefing_04_07.pdf, p 4. inquest.gn.apc.org/pdf/INQUEST_adam_rickwood_briefing_04_07.pdf www.mencap.org.uk/campaigns/take-action/death-indifference (accessed 3 October 2011). www.irr.org.uk/pdf/Driventodesperatemeasures.pdf (accessed 3 February 2011). www.medicaljustice.org.uk/images/stories/reports/outsourcing%20abuse.pdf (accessed 3 February 2011). www.dailymail.co.uk/news/article-1313495/Daily-Mail-honoured-Dignity-Elderly-campaign. html

154

The Right to Life – HRA, Article 2

163

164 165

166 167 168 169 170

madikazemi.blogspot.com/2011/01/uk-preparing-to-put-asylum-seeking.html?utm_ source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SaveMehdiKazemi+%28 LGBT+asylum+news%29 news.bbc.co.uk/1/hi/world/europe/7294908.stm www.guardian.co.uk/uk/2007/apr/04/aids.immigration, www.barnardos.org. uk/news_and_events/media_centre/press_releases/press_releases_archive. htm?ref=28348&year=2007&month=4 Report dated 25 July 2011 available at: www.bbc.co.uk/news/uk-14219978 (accessed August 2011). Available online at inquest.gn.apc.org/pdf/Deaths_of_Children_in_Penal_Custody_1990date.pdf (accessed November 2011). Available online at www.inquest.org.uk/ (accessed November 2011). onlinelibrary.wiley.com/doi/10.1111/j.1471-0528.2010.02847.x/pdf (accessed August 2011). onlinelibrary.wiley.com/doi/10.1111/j.1471-0528.2010.02847.x/pdf (accessed August 2011).

155

Chapter 6
The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment (Human Rights Act, Article 3)

Please read Part II Guidance on using and interpreting the Human Rights Measurement Framework first.

6

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment (Human Rights Act (HRA), Article 3)

Panel and indicators

Protection from torture and inhuman or degrading treatment or punishment by the state, its agents or bodies fulfilling a public function Other action/inaction by the state, its agents or bodies fulfilling a public function (treatment and conditions which infringe dignity and respect) Noninstitutional context Institutional context (covers prisons, police stations, secure units, detention centres, schools, health and social care settings, etc.)

Indicators

Use of torture by the state, its agents or bodies fulfilling a public function

Noninstitutional context

Institutional context (covers prisons, police stations, secure units, detention centres, schools, health and social care settings, etc.)

Effective investigation of allegations of torture, inhuman or degrading treatment or punishment

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

158

Structural (indicators of ‘commitment in principle’)

Indicator 11: Legal and constitutional framework • Protection from torture and inhuman or degrading treatment or punishment in domestic law (including constitutional/‘higher’ law) • Status of ratification of relevant international treaties

Indicator 12: Legal precedents, gaps and standard-setting • Principles established in key cases (domestic and ECHR) and in international standard-setting processes • Gaps in protection and non-implementation of legal judgements and recommendations

Process (indicators of ‘steps taken’ – including legal, regulatory and public policy measures)

Indicator 13: Regulatory framework • Key regulators,inspectorates, ombudsmen • Relevant responsibilities and powers, national minimum standard frameworks and inspection/complaints handling criteria

Indicator 14: Public policy framework • Primary legislation including entry and scope of law enabling effective prosecution of those complicit in torture • Relevant codes and guidance (for example, training, guidance and strategies provided to military and other personnel on complicity to torture; training, guidance and strategies provided to police, prison and other security and detention personnel/those with caring responsibilities/those working in mental health context/educational establishments) on the use of force, detention, arrest, discipline, punishment and restraint • Other relevant policies, plans, targets and goals (for example, safeguarding adult and children plans/procedures, support services for victims of domestic violence; violence against women strategy) • Spotlight resource allocations (including public expenditure on child protection and adult protection, and support services for victims of domestic violence)

Outcome (indicators of the position of individuals and groups in practice/ emergence of a human rights ‘culture’)

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

159

Indicator 15: Outcomes of key judicial, regulatory and investigative processes • Violations of the right to freedom from torture, inhuman or degrading treatment or punishment: Case law outcomes • Number of disciplinary actions following allegations of torture or inhuman or degrading treatment or punishment, number of prosecutions and sentencing/sanctions/out of court settlements/compensation payments • Key concerns raised by human rights monitoring bodies • Outcomes of inspection, regulation and complaints procedures and independent inquiries/inspections that may engage Article 3 (for example,Independent Police Complaints Commission (IPCC)inquiries, HM Inspectorate of Prisons (HMIP)inquiries, inquiries relating to immigration detention and removals, inquiries relating to torture allegations/health and social care complaints upheld by the relevant ombudsmen; safeguarding children/adults inquiries, in Scotland, significant case reviews, and investigations that result in serious criticism of actions of the state, its agents or bodies fulfilling a public function) • Key allegations by private individuals and civil society organisations/reports in the media. (NB: covers reported cases, including allegations of use or complicity to torture, inhuman or degrading treatment or punishment by

the state or state agents overseas, including cases of involvement in extraordinary rendition172; alleged deportation of individuals to countries where they face the risk of torture, including use of diplomatic assurances and Memoranda of Understanding (MOUs); use of evidence and intelligence derived from torture)

Indicator 16: Spotlight statistics: The use of restraint, punishment and conditions of detention • Appropriate punishment and restraint of children and young people (covers ‘looked after children’, detained children and young people/children and young people in secure units/public and private school context). • Conditions of detention that may engage Article 3 for example,‘slopping out’, ‘overcrowding in prisons’, ‘prolonged confinement in cells’ and conditions for people with disabilities

Panel and indicators (continued)

‘Outcome’ (indicators of the position of individuals and groups in practice/ emergence of a human rights ‘culture’)

Indicator 17: Spotlight statistics: Physical violence, physical and sexual abuse, and victimisation within miscellaneous establishments • Victimisation, physical assault and sexual violence within the police and criminal justice system (covers prison establishments, secure children’s homes, secure training centres, immigration centres, etc.) • Physical assault within mental health and learning difficulties services • Child abuse, elder abuse and other ‘significant harm’ within the institutional context

Indicator 18: Positive duties and effective protection from sexual violence, domestic violence, hate crime and abuse within families, communities and society: Spotlight statistics on prevalence, detection and prosecution • Prevalence, detection and prosecution of sexual violence, domestic violence, hate crime and racially or religiously aggravated crime • Child abuse and elder abuse in the private household population • Bullying of children and young people that meets the threshold for Article 3 (covers public and private school contexts, see Article 8 for details)

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

160

Indicator 19: Spotlight statistics: Denial of basic needs • The percentage of older people reporting lack of support for individual nutritional needs in social and healthcare establishments (with separate reporting for older disabled) • Percentage of asylum-seekers/undocumented migrants experiencing destitution. (NB: covers violations of positive obligations, for example, if an official makes a decision which leaves a person with no food, shelter or means of subsistence)

Indicator 20: Spotlight statistics: Public attitudes, understanding and experiences • Public attitudes towards the right to freedom from torture, inhuman or degrading treatment or punishment as a right ‘you should have’ and ‘you do have’ • Self-reported experiences by individuals who feel that they have not had an adequate investigation in relation to violation of Article 3 rights

Indicators should be systematically disaggregated Key disaggregation characteristics include ethnicity/race, gender, disability, sexual orientation, transgender, religion and belief, age, social class, area (region, urban/rural, remoteness) with separate reporting of the non-private household population and at risk/vulnerable groups including individuals staying in/ resident/detained in public and private institutions; individuals living in poverty; refugees/asylum seekers, vulnerable children and young people (for example, children in need, ‘looked after children’, children who are carers), Gypsies and Travellers, etc.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Evidence base
Structural indicators Indicator 11: Legal and constitutional framework
Table 64: Protection from torture, inhuman or degrading treatment or punishment in domestic law (including constitutional/‘higher’ law) • • • • • • • • • UK HRA, Article 3. International Covenant on Civil and Political Rights (ICCPR) Article 7 – ratified. ICCPR First Optional Protocol – not ratified (individual complaints mechanism). UN Convention Against Torture (CAT) and Optional Protocol – ratified. ECHR and Protocols 1, 2, 3, 5, 6, 6, 8, 10, 11, 13 and 14 – ratified. European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and Protocols 1 and 2 – ratified. Geneva Conventions, common Article 3 – ratified.174 Rome Statute Article 7(1)(f) – ratified. UN Convention on the Rights of the Child Articles 19 and 37 – ratified. Table 65: Status of ratification of relevant international treaties173

Indicator 12: Legal precedents, gaps and standard-setting
Table 66: Principles established in key cases (domestic and ECHR) Deportations • Vilvarajah and others v UK nos. 13163/87; 13164/87; 13165/87; 13447/87; 13448/87 [1991] ECHR175 – The European Court of Human Rights established that the Article 3 threshold requires a real risk of persecution if returned to the home country, not a mere possibility of ill-treatment. Chahal v UK (GC) no. 22414/93 [1996] ECHR176; Koci v Secretary of State for Home Department [2003] EWCA Civ 1507177 – The European Court of Human Rights found that Article 3 prevents expulsion of an individual to a country where there are substantial grounds for believing that they might be tortured or where there might be inadequate protection against persecution.

161

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Koci v Secretary of State for Home Department [2003] EWCA Civ 1507178 – Finding that there would be a violation of Articles 2 and 3, were the appellant to be sent back to Albania, because of the threat to his life and because to live in hiding, or at least to live in constant fear of a reprisal shooting, would amount to inhuman and degrading treatment. D v UK no. 30240/96 [1997] ECHR179 – The European Court of Human Rights found that there would be a breach of Article 3 if the UK Government were to deport a terminally-ill man suffering from AIDS to his home country of St Kitts, where no specialist medical treatment and little if any social support would be available. N v UK (GC) no. 26565/05 [2008] ECHR180 – The European Court of Human Rights that Article 3 ‘principally applies to prevent a deportation or expulsion where the risk of ill-treatment in the receiving country emanates from intentionally inflicted acts of the public authorities there or from non-state bodies when the authorities are unable to afford the applicant appropriate protection…Aliens who are subject to expulsion cannot in principle claim any entitlement to remain in the territory of a Contracting State in order to continue to benefit from medical, social or other forms of assistance and services provided by the expelling State. The fact that the applicant’s circumstances, including his life expectancy, would be significantly reduced if he were to be removed from the Contracting State is not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is suffering from a serious mental or physical illness to a country where the facilities for the treatment of that illness are inferior to those available in the Contracting State may raise an issue under Article 3, but only in a very exceptional case, where the humanitarian grounds against the removal are compelling.’ Naseer & Ors v Secretary of State for the Home Department [2010] UKSIAC 77/2009181 – The UK Supreme Court rejected the deportation of two men on the grounds that they would be at real risk of prohibited ill-treatment if they were returned to Pakistan.

Corporal punishment of children • Tyrer v UK no. 5856/72 [1978] ECHR182 – The European Court of Human Rights established that to engage Article 3 the intensity of suffering and humiliation involved in a punishment must go beyond the inevitable element of suffering and humiliation connected with any form of legitimate treatment or punishment.

162

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Costello-Roberts v UK no. 13134/87 [1993] ECHR183 – The European Court of Human Rights established that in order for punishment to be “degrading” and in breach of Article 3, the humiliation or debasement involved had to attain a particular level of severity, the assessment of which depended on all the circumstances of the case. Beyond the measures to be expected from measures taken on a purely disciplinary plane, the application had adduced no evidence of any severe or longlasting effects as a result of the treatment complained of. A v UK no. 25599/94 [1998] ECHR184 – The European Court of Human Rights found that the defence of ‘reasonable chastisement’, which the prosecution had to disprove, meant that the law did not provide adequate protection for the child’s Article 3 rights, which prohibit absolutely inhuman and degrading treatment. Subsequently, amendments were made by Section 58 of the Children Act 2004 which has removed the defence of reasonable chastisement in cases concerning actual bodily harm, unlawfully inflicting grievous bodily harm with intent, causing grievous bodily harm and cruelty to a child.

Threshold for Article 3 cases • Ireland v UK no. 5310/71 [1978] ECHR185 – The European Court of Human Rights established that in order to engage Article 3 the ill-treatment involved has to attain a minimum level of severity before it can be considered inhuman or degrading treatment.

Deprivation in basic needs can meet Article 3 threshold • R v Secretary of State for Home Department ex parte Limbuela [2005] UKHL 66186 – The House of Lords established that refusal to give financial support (including practice of refusing accommodation or food) to asylum seekers may breach Article 3 where the individuals involved would otherwise be destitute.

Protection from third party violations • Z and others v UK (GC) no. 29392/95 [2001] ECHR187 – The European Court of Human Rights established that there is a positive obligation on states to protect children from ill treatment about which it had, or ought to have had, knowledge. Opuz v Turkey no. 33401/02 [2009] ECHR188 – The European Court of Human Rights established that the authority’s failure to protect the applicant from her exhusband’s violent and abusive behaviour amounted to a violation of Article 3. E and others v UK no. 33218/96 [2002] ECHR189 – The European Court of Human Rights criticised the UK’s lack of effective remedies, including investigation.

163

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

MC v Bulgaria no. 39272/98 [2004] ECHR190 – The European Court of Human Rights found a violation of Article 3 where the domestic legal prohibition of rape was inadequate due to a disproportionate emphasis on need for violence. The definition of the offence in domestic law effectively required proof of physical resistance. The Court referred to developing state practice on rape definitions as broader than in the past and found that the Bulgarian definition was inadequate as it did not protect individuals from non-consensual sexual acts. The Court stated that state parties have a positive obligation both to enact criminal legislation to effectively punish rape and to apply this legislation through effective investigation and prosecution.

Rape cases191 • • Aydin v Turkey (GC) no. 23178/94 [1997] ECHR192 – The European Court of Human Rights established that rape could constitute torture and violate Article 3. X and Y v the Netherlands no. 8978/80 [1985] ECHR193 – Establishing the duty to have effective legal protections from abuse. The European Court of Human Rights found a violation of Article 8.

Medical treatment • Pretty v UK no. 2346/02 [2002] ECHR194 – The European Court of Human Rights ruled that states are required to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals. ‘The suffering which flows from naturally occurring illness, physical or mental, may be covered by Article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible.’ Article 3 is ‘cast in absolute terms, without exception or proviso, or the possibility of derogation’. Herczegfalvy v Austria no. 10533/83 [1992] ECHR195 – A patient detained in a psychiatric institution, suffering from ‘paranoid querulans’ went on hunger strike. The hospital director ordered forced feeding, the patient refused and was given sedatives against his will, and had to be overpowered to be forcibly fed. In finding no violation of Article 3, the European Court of Human Rights found that ‘a measure which is a therapeutic necessity cannot be inhuman and degrading’(but the means by which it is employed can amount to cruel, inhuman or degrading treatment – as in a Ukrainian case on forced feeding). However, vulnerability and powerlessness of people detained on mental health grounds called for increased vigilance by the Court and national authorities to satisfy themselves that medical necessity had been shown to exist. Suggestion from the case is that H lacked capacity to refuse treatment, but had he had capacity, doctors could have compelled treatment if they satisfied themselves of the legality, necessity and proportionality of non-consensual treatment.

164

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Nevmerzhitsky v Ukraine no. 54825/00 [2005] ECHR196 – In the circumstances of that case the European Court of Human Rights considered that forced feeding of the applicant was not justified as the state had not shown that it was a medical necessity. It also considered that the unjustified non-consensual treatment, combined with the manner in which forced-feeding was carried out amounted to torture. The Court found a violation of Article 3 (on account of torture and degrading treatment).

Discrimination • East African Asians v UK (1973) 3 EHRR 76197 – The differential treatment on basis of race may constitute a form of degrading treatment.

Disability • Price v UK no. 33394/96 [2001] ECHR198 – The European Court of Human Rights established that detaining a disabled person in conditions without adequate facilities constitutes inhuman and degrading treatment in violation of Article 3. It found that there is no need to prove an intention to inflict inhuman and degrading treatment on the part of the authorities to establish a violation of Article 3. R v East Sussex County Council Ex parte A, B, X and Y [2003] EWHC 167 (Admin) (DRC – Intervener)199 – The England and Wales High Court established that a blanket ban on manual lifting by carers of people with a disability is unlikely to be lawful because it does not consider a person’s individual circumstances. A breach of Article 3 may occur if applicants are left in their own bodily waste or on the lavatory for a long time because care workers are banned from lifting them. R (B) v Director of Public Prosecutions [2009] EWHC 106 (Admin)200 – A mental health patient successfully challenged the Director of Public Prosecutions’s decision to discontinue a prosecution for wounding with intent and witness intimidation, on the basis that the victim’s mental illness meant he would not be a credible witness. This decision was a breach of Artice 3, which includes the duty to provide a legal system for bringing to justice those who commit serious acts of violence against others.

165

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Jurisdiction over acts of torture committed abroad • R v Bartle and the Commissioner of Police for the Metropolis, ex parte Pinochet [1999] UKHL 147201 – The House of Lords established that a state party’s courts have jurisdiction over acts of torture committed abroad and that a former head of state does not have immunity from such crimes.

Effective investigation • Elci v Turkey nos 23145/93 and 25091/95 [2003] ECHR202 – The case concerned the arrest and detention of suspected members of the PKK who alleged illtreatment. The European Court of Human Rights found that the applicants had been ill-treated but in addition, in view of the judicial authorities’ total failure to investigate the applicants’ complaints of ill-treatment, the European Court of Human Rights also found that there had been a violation of Article 3 in its procedural aspect. Assenov v Bulgaria no. 24760/94 [1998] ECHR203 – The European Court of Human Rights found that the lack of a thorough and effective investigation into the applicant’s arguable claim that he had been beaten by police officers had violated the requirement for an effective investigation under Article 3.

Table 67: Principles established in international standard-setting processes International standard-setting • UNHRC General Comment 7 – Complaints about ill-treatment must be investigated effectively by competent authorities; this extends to pupils and patients in educational and medical institutions. Replaced by the United Nations Human Rights Committee (UNHRC) General Comment 20 – prohibition covers mental suffering as well as physical pain. States must not expose people to risk of torture or inhuman or degrading treatment or punishment by way of their extradition, expulsion or refoulement. There is a particular requirement for safeguards to be put in place for vulnerable people. Requirement to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation (UNCRC, Article 19) Requirement to protect children from torture or other cruel, inhuman or degrading treatment or punishment(UNCRC, Article 37). CAT General Comment 1 – refoulement and communications. CAT General Comment 2 – implementation of Article 2 by states’ parties – Prohibition against torture absolute and non-derogable; extends to territories or facilities under the state’s control (for example, conflict zones) and applies to all persons, citizen or non-citizen. The concept of any territory under its (the state’s) jurisdiction, linked as it is with the principle of non-derogability, includes any territory or facilities and must be applied to protect any person, citizen or noncitizen without discrimination subject to the de jure or de facto control of a state party (CAT General Comment 2). 166

• • •

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 68: Inhuman and degrading treatment or punishment and prison conditions Cases • Ali v Romania no. 20307/02 [2010] ECHR204 – One of the factors that the European Court of Human Rights took into account in determining whether the conditions in detention amounted to inhuman and degrading treatment was the availability of showers. The European Court of Human Rights noted ‘In addition, when corroborating the parties’ allegations on the sanitary conditions with the CPT reports, the European Court can but conclude that the applicant was deprived of the possibility to maintain an adequate corporal hygiene in prison: hot water was only available once a week for one hour. In this context, while availability of showers and cleaning equipment is a step forward towards ensuring decent conditions in prison, their utility remains rather futile given the lack of hot water.’ The European Court found a violation of Article 3. Gubin v Russia no. 8217/04 [2010] ECHR205 – The European Court of Human Rights took into account the infrequency of inmates’ capacity to shower in finding an Article 3 breach. Carson [2005] NIQB 80206 – ‘In considering whether a person has been subjected to inhuman or degrading treatment one must consider the totality of the circumstances. A particular act on its own may constitute treatment, although the concept of treatment generally points to a course of conduct. In considering whether the sanitary arrangements have given rise to degrading treatment those arrangements must be looked at in the overall context of the surrounding prison arrangements.’ Karalevicius v Lithuania no. 53254/99 [2005] ECHR207 – The European Court of Human Rights takes into account access to showers and regularity and heating of the water supply as factors in determining whether conditions of detention breach Article 3. The European Court found a violation of Article 3. Nevmerzhitsky v Ukraine no. 54825/00 [2005] ECHR208 – The findings of prison inspectors were a factor which the European Court of Human Rights considered seriously and contributed to finding a breach of Article 3: ‘…in view of the small number of showers per prison section (for example, two showers for over 170 prisoners) and their very dilapidated state, prisoners had great difficulty in maintaining satisfactory personal hygiene.’

167

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Napier v the Scottish Ministers [2004]209 – Showers and access to them is not just a procedural matter but a practical one. Prisoners’ health issues (in this case eczema) which require extra care must be taken into account: ‘It was impossible to wash with the care that his skin required at a sink during slopping out. He could only splash water over himself. The water he could take to the cell was inadequate and became contaminated as soon as it was used. His attempt to secure his removal from the hall to better conditions had failed…In sum, the court considers that the condition of the applicant detention...amounted to degrading treatment within the meaning of Article 3 of the Convention.’ Valašinas v Lithuania no. 44558/98 [2001] ECHR210 – In relation to the conditions of detention it was noted that ‘Sanitary conditions were deplorable. Toilets, sinks and shower facilities were colonies of bacteria. There were various leaks and the water pipes were very old, rusty and affected by fungus.…. The applicant stated that it was very difficult to keep himself clean as he was only allowed to shower once a week on designated days. Showering on an unspecified day was penalised. Shower facilities only worked five days a week, and were always overcrowded. During the summer, hot water was only available at weekends.’ The European Court of Human Rights found a violation of Article 3. Generalov v Russia no. 24325/03 [2009] ECHR211 – The following contributed to the Court’s finding of Article 3 breaches: ‘... Access to shower facilities appears to have been sporadic: at times he showered every couple of days but on other occasions, according to the logbook, he did not leave his cell to shower for two weeks.... The water in the shower was usually lukewarm; the inmates had to wait for hours for their turn to take a shower.’

Segregation • Somerville v Scottish Ministers [2007] UKHL 44212 – The routine use of segregation with no proper tier of review or appeal amounted to a breach of Article 3.213

168

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Mental health in the context of detention • Slawomir Musial v Poland no. 28300/06 [2009] ECHR214 – ‘The Court has held on many occasions that the detention of a person who is ill may raise issues under Article 3 of the Convention and that the lack of appropriate medical care may amount to treatment contrary to that provision. In particular, the assessment of whether the particular conditions of detention are incompatible with the standards of Article 3 has, in the case of mentally ill persons, to take into consideration their vulnerability and their inability, in some cases, to complain coherently or at all about how they are being affected by any particular treatment. The Court observes that there are three` particular elements to be considered in relation to the compatibility of an applicant’s health with his stay in detention: (a) the medical condition of the prisoner, (b) the adequacy of the medical assistance and care provided in detention, and (c) the advisability of maintaining the detention measure in view of the state of health of an applicant.’ The Court found a violation of Article 3. See Table 252 for additional cases in relation to Article 3 and the right to the highest attainable standard of health. Table 69: Gaps in legal protection • • Individual complaint under ICCPR First Optional Protocol. Ambiguity in relation to the coverage of violations of Article 3 by non-state actors, for example, private security firms. CAT – ‘(i) article 15 of the Convention prohibits the use of evidence gained by torture wherever and by whomever obtained; notwithstanding the State party’s assurance set out in paragraph 3 (g), supra, the State party’s law has been interpreted to exclude the use of evidence extracted by torture only where the State party’s officials were complicit; and (ii) article 2 of the Convention provides that no exceptional circumstances whatsoever may be invoked as a justification for torture; the text of Section 134(4) of the Criminal Justice Act however provides for a defence of ‘lawful authority, justification or excuse’ to a charge of official intentional infliction of severe pain or suffering, a defence which is not restricted by the Human Rights Act for conduct outside the State party, where the Human Rights Act does not apply; moreover, the text of Section 134(5) of the Criminal Justice Act provides for a defence for conduct that is permitted under foreign law, even if unlawful under the State party’s law…’215

169

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Process indicators Indicator 13: Regulatory framework
Table 70: The prohibition on torture and inhuman or degrading treatment or punishment – list of key regulators, inspectorates, ombudsman, etc. • • • • • • • • • • • • • • • • • National Preventive Mechanism (NPM)216 IPCC Police Complaints Commissioner for Scotland HMIP England and Wales HMIP Scotland HM Inspectorate of Constabulary (HMIC) HMIC Scotland Prisons and Probation Ombudsman (PPO) Care Quality Commission (CQC) Social Care and Social Work Improvement Scotland Health and Social Care Ombudsman Office for Standards in Education, Children’s Services and Skills (OFSTED) Health and Safety Executive Scottish Public Services Ombudsman Crown Prosecution Service (CPS) Crown Office and Procurator Fiscal Service (COPFS) Multi-Agency Resource Centre on child protection at Stirling University which is conducting an audit of significant case reviews and developing guidance.

170

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 71: The prohibition on torture and inhuman or degrading treatment or punishment – Spotlight responsibilities and powers of key regulators and inspectors The NPM217 The Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) is an international human rights treaty designed to strengthen protection for people deprived of their liberty. It recognises that such people are particularly vulnerable and aims to prevent their ill-treatment through establishing a system of visits or inspections to all places of detention. The UK ratified OPCAT in December 2003 and designated its NPM in March 2009. The UK’s NPM is coordinated by HMIP and is currently made up of 18 visiting or inspecting bodies who visit places of detention such as prisons, police custody, immigration detention centres, children’s secure accommodation and mental health institutions. The HMIP’s work constitutes an important part of the UK’s obligations under the OPCAT: to have in place regular independent inspection of places of custody.

171

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 72: Number of prisons, immigration removal centres and short-term holding facilities inspected by HMIP that are evaluated as performing poorly or not sufficiently well, by Healthy Prison/Establishment Assessments and type of prison/ establishment, England and Wales, 2008-09
Purposeful activity 5 (63%) 0 8 (38%) 0 0 0 0 1 (100%) 4 (57%) Total number of prisons inspected 8 3 21 2 3 2 1 1 7

Safety Local prisons High secure prisons Trainer prisons Therapeutic community prisons Open prisons Resettlement prisons Split site trainer and open prison Split site local and young adult prison Young adult establishments Children and young people’s establishment Women’s prisons Extra-jurisdiction Military correction and training centre Immigration removal centres 2 (25%) 1 (33%) 6 (29%) 0 0 0 0 0 2 (29%)

Respect 3 (38%) 1 (33%) 7 (33%) 0 1 (33%) 0 1 (100%) 1 (100%) 2 (29%)

Resettlement 1 (13%) 1 (33%) 9 (43%) 1 (50%) 1 (33%) 0 1 (100%) 0 1 (14%)

4 (44%) 3 (38%) 1 (50%) 0 3 (50%)

1 (11%) 3 (38%) 1 (50%) 0 2 (33%)

1 (11%) 0 2 (100%) 0 1 (17%)

0 1 (13%) 1 (50%) 1 (100%) 3 (50%)

9 8 2 1 6

Source: HMIP for England and Wales (2010b). Notes: Prisons and establishments are scored on a scale from 1-4: 1 – Performing poorly; 2 – Not performing sufficiently well; 3 – Performing reasonably well; 4 – Performing well. We have categorised underperformance as those who scored either a 1 or 2. Percentages illustrate the number of prisons which are underperforming in each area of the Healthy Prison/Establishment Assessment as a percentage of the total number of prisons/ establishments inspected for each establishment type.

172

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 73: Prisons: outcome of recommendations assessed in follow-up inspection reports published 2008-09, England and Wales
Recommendations Local prisons Peterborough Preston Swansea Parc Total High security prisons Whitemoor Total Trainer prisons Blundeston Camp Hill Coldingley Gartree Kingston Lowdham Grange Parkhurst Risley Shepton Mallet Stocken Moorlands Total Open prisons Ford Total Resettlement prisons Blantyre House Kirklevington Grange Total 37 56 93 (100%) 20 23 43 (46%) 5 11 16 (17%) 12 22 34 (37%) Continued 100 100 (100%) 52 52 (52%) 23 23 (23%) 25 25 (25%) 127 154 90 143 92 109 115 163 104 110 161 1,368 (100%) 62 40 43 47 39 50 28 60 63 41 65 538 (39%) 28 27 22 36 24 32 24 39 18 31 43 324 (24%) 37 87 25 60 29 27 63 64 23 38 53 506 (37%) 138 138 (100%) 63 63 (46%) 26 26 (19%) 49 49 (36%) 218 89 144 155 606 (100%) 81 46 42 62 231 (38%) 69 29 43 44 185 (31%) 68 14 59 49 190 (31%) Achieved Partially achieved Not achieved

173

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 73: Prisons: outcome of recommendations assessed in follow-up inspection reports published 2008-09, England and Wales (continued)
Recommendations Young adult establishments Northallerton Rochester Swinfen Hall Thorn Cross Total Children and young people’s establishment Ashfield Downview – Josephine Butler Unit (Girls) Huntercombe Total Women’s prison Holloway Peterborough Send Total Extra-jurisdiction Guernsey Maghaberry Total Prison total 151 155 306 (100%) 3,839 (100%) 61 44 105 (34%) 1,597 (42%) 31 28 59 (19%) 936 (24%) 59 83 142 (46%) 1,306 (34%) 136 226 109 471 (100%) 65 91 34 190 (40%) 38 75 34 147 (31%) 33 60 41 134 (28%) 122 64 26 32 111 93 105 83 392 (100%) 50 31 61 46 188 (48%) 29 18 18 21 86 (22%) 32 44 26 16 118 (30%) Achieved Partially achieved Not achieved

74 169 365 (100%)

43 80 187 (51%)

14 30 70 (19%)

17 59 108 (30%)

Source: HMIP for England and Wales (2010b).

174

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 74: Immigration removal centres and short-term holding facilities: outcome of recommendations assessed in follow-up inspection reports published 2008-09, England and Wales
Recommendations Immigration removal centres Campsfield House Dover Dungavel Total Short-term holding facilities Reliance House Sandford House Birmingham International Airport Waterside Court John Lennon Airport Glasgow Airport Glasgow Festival Court Portsmouth Continental Ferry Port Total Total 23 24 32 7 5 13 9 9 9 7 10 10 82 82 69 233 (100%) 35 26 36 97 (42%) 23 18 14 55 (24%) 24 38 19 81 (35%) Achieved Partially achieved Not achieved

37 24 37 36 31

9 7 20 16 6

11 7 9 11 11

17 10 8 9 14

244 (100%) 477 (100%)

83 (34%) 180 (38%)

76 (31%) 131 (27%)

85 (35%) 166 (35%)

Source: HMIP for England and Wales (2010b). Table 75: Eligible complaints made to the PPO, by service, England and Wales, 200809 and 2009-10 (%)
2008-09 % Prisons Probation Immigration Overall eligibility 46 14 56 43 2009-10 % 52 16 67 48

Source: PPO (2010).

175

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 76: Detained people who self-report that they have made a complaint, and feel they are dealt with fairly, England and Wales
Type of prison Local N=4,323 High security N=418 Young offenders (18-21) N=1,858 Category B trainers N=855 Category C trainers N=4,167 Open N=1,254 Female N=1,352 Children and young people (under 18) N=776 Immigration removal centres N=1,019 N 523 70 272 162 779 170 279 158 54 % 30 25 37 30 35 45 45 41 19

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High secure comparator from 2007 onwards. Young offender institutions comparator from 2005 onwards. Category B trainers comparator from 2005 onwards. Category C trainers comparator from 2005 onwards. Opens comparator from 2005 onwards. Children and young people comparator from 2009 onwards. Female comparator from 2005 onwards. Immigration removal centre comparator from 2005 onwards. Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2.

176

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 77: Investigation of deprivations of liberty and security of the person and outcomes of other investigations, inquiries and reviews Outcome of completed investigations by the IPCC relating to breach of Police and Criminal Evidence Act 1984 (PACE) by allegation category (substantiated complaint cases only), England and Wales, 2008-09
Allegation category Breach of Code A PACE on stop and search Breach of Code B PACE on searching of premises and seizure of property Breach of Code C PACE on detention, treatment and questioning Breach of Code D PACE on identification procedures Breach of Code E PACE on tape recording Multiple or unspecified breaches of PACE which cannot be allocated to a specific code Number of substantiated allegations 25 50 111 2 1 6

Source: IPCC (2009b), Table 4.5. Table 78: Outcome of completed investigations by allegation category (substantiated complaint cases only), England and Wales, 2008-09
Allegation category Serious non-sexual assault Sexual assault Other assault Oppressive conduct or harassment Unlawful/unnecessary arrest or detention Irregularity in relation to evidence/perjury Corrupt practice Mishandling of property Breach of Code A PACE on stop and search Breach of Code B PACE on searching of premises and seizure of property Breach of Code C PACE on detention, treatment and questioning Breach of Code D PACE on identification procedures Breach of Code E PACE on tape recording Multiple or unspecified breaches of PACE which cannot be allocated to a specific code Number of substantiated allegations 10 6 108 93 71 46 11 59 25 50 111 2 1 6 Continued

177

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 78: Outcome of completed investigations by allegation category (substantiated complaint cases only), England and Wales, 2008-09 (continued)
Allegation category Lack of fairness and impartiality Discriminatory behaviour Other neglect or failure in duty Incivility, impoliteness and intolerance Traffic irregularity Other irregularity in procedure Improper disclosure of information Other sexual conduct Other Total British Transport Police Total including British Transport Police Number of substantiated allegations 40 15 693 235 25 68 88 6 41 1,810 30 1,840

Source: IPCC (2009b), Table 4.5.

178

Table 79: Number of complaint allegations made against Scottish police officers that were substantiated, by region, Scotland, 2006-07
Fife 2 0 5 4 0 4 0 2 5 8 2 6 20 18 4 5 14 0 0 0 14 3 7 21 0 0 0 0 3 2 Grampian Lothian & Borders Northern Strathclyde Tayside Scotland 7 58 50 49 13

Complaints related to 0 8 0 4 1

Central

Dumfries & Galloway

Assaults

0

Incivility

5

Neglect of duty

4

Irregularity of procedure

5

Traffic irregularity

1

Oppressive conduct or harassment 1 4 4 1 2

0

4

1

17

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

179
0 1 1 0 0 0 0 0 14 23 49 2 0 4 0 0 0 1 0 0 0 1 0 11

Unlawful or unnecessary arrest

1

0

1

1

5

Racial or discriminatory behaviour

0

1 0 4 1 28

1 0 9 11 89

0 0 4 1 9

3 0 24 16 242

Corrupt practice

0

Other crime

2

Other

1

Total

19

Source: The Scottish Government (2009b).

Notes: Data from: HM Inspectorate of Constabulary for Scotland (HMICS) Statistics. Definitions available at: www.scotland.gov.uk/Resource/Doc/260965/0078601.pdf

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Indicator 14: Public policy framework
Table 80: The prohibition on torture and inhuman or degrading treatment or punishment – policy guidance and training guidelines UK Government Guidance on Torture, July 2010 – see Table 83 in relation to criticisms of the guidance by the Equality and Human Rights Commission (‘the Commission’). Prison and Secure Training Centre (STC) context • • Prison’s Services Policy (Prison Service Order (PSO) 1600 Use of Force218) and Use of Force Training Manual. The Secure Training Centre (Amendment) Rules, which amended the Secure Training Centre Rules 1998, amend the existing rules to permit STCs to use force against detained children and young people to ‘ensure good order and discipline’. The Amendment Rules were criticised for widening the scope for restraint in STCs (Joint Committee on Human Rights (JCHR), 2008b).219 PSO 2855 (the management of prisoners with physical, sensory or mental disabilities) requires prisons to abide by the duties contained in the Disability Discrimination Act 1995, in particular the Section 21 duty to make reasonable adjustments.220

Police context • • • Criminal Law Act 1967 Part 1 Section 3, use of force in making an arrest.221 Guidance on the Safer Detention & Handling of Persons in Police Custody (National Centre for Policing Excellence, 2006).222 Police and Criminal Evidence Act (PACE) Code C, setting out the requirements for the detention, treatment and questioning of suspects not related to terrorism in police custody.223 PACE Code H on the detention, treatment and questioning by police officers of persons under Section 41 of, and Schedule 8 to, the Terrorism Act 2000.224

Health and social care context England and Wales • • Mental Health Act 1983 Section 136, relating to the police powers to detain a person suffering from a mental disorder in a public place ‘in a place of safety’.225 Mental Capacity Act 2005: Code of Practice226 – Sections 6.40-6.48 set out the definition of restraint and the conditions that have to be satisfied in order for it to be legally justified, particularly if the person being restrained does not have the capacity to consent (Qureshi, 2009).227

180

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

NICE Clinical Guideline 42 – ‘Health and social care staff should be trained to anticipate behaviour that challenges and how to manage violence, aggression and extreme agitation, including de-escalation techniques and methods of physical restraint’ (National Institute for Health and Clinical Excellence (NICE)-Social Care Institute for Excellence (SCIE), 2006).228 Rights, risks and restraints: An exploration into the use of restraint in the care of older people (Commission for Social Care Inspection (CSCI ), 2007a).229 Guidance for inspectors: How to move towards restraint free care (CSCI, 2007b). Mental Capacity Act 2005 – Deprivation of Liberty Safeguards – code of practice230 – ‘this code of practice provides safeguards for people who lack capacity specifically to consent to treatment or care in either a hospital or a care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty (as opposed to a restriction of liberty), and where detention under the 1983 Mental Health Act is not appropriate for the person at that time’ (Qureshi, 2009).231 Guidance on Restraint and Seclusion in Health and Personal Services (Human Rights Working Group on Restraint and Seclusion, 2005).232 Guidance for the care of older people (Nursing and Midwifery Council, 2009).233 SCIE Guide 15: Dignity in Care (SCIE, 2006 (updated 2010)).234 Managing Risk, Minimising Restraint: challenges, dilemmas and positive approaches for working with older people in care homes (SCIE, 2009).235 Restraint: How to move towards restraint free care (CQC, 2009d).236 Walk a mile in my shoes: scrutiny of dignity and respect for individuals in health and social care services: a guide (Centre for Public Scrutiny ,2009).237 Essence of Care (Department of Health, 2010a).238

• • •

• • • • • • •

Scotland • Rights, risks and limits to freedom: principles and good practice guidance for practitioners considering restraint in residential care settings (Mental Welfare Commission for Scotland, 2006).239

181

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 81: Violence against women strategies • • • Safer lives: changed lives. A shared approach to tackling violence against women in Scotland (Scottish Government, 2009c).240 Together we can end violence against women and girls: a strategy (Home Office,2009).241 The Right to be Safe (Welsh Assembly Government, 2010).242

NB for identifiable expenditure on child and adult protection (personal social services), see Tables 352 and 353.

Outcome indicators Indicator 15: Outcomes of key judicial, regulatory and investigative processes
Table 82: The prohibition on torture and inhuman or degrading treatment or punishment – case law outcomes Deportations • • • Vilvarajah and others v UK nos. 13163/87; 13164/87; 13165/87; 13447/87; 13448/87[1991] ECHR243 – No violation of Article 3 (see Table 66). Chahal v UK (GC) no. 22414/93 [1996] ECHR244 – Violation of Article 3 (see Table 66). Koci v Secretary of State for Home Department [2003] EWCA Civ 1507245 – Finding that there would be a violation of Articles 2 and 3, were the appellant to be sent back to Albania (see Table 66). D v UK no 30240/96 [1997] ECHR246 – The deportation of a terminally ill man to his home country where no medical treatment or social support available would be a breach of Article 3 (see Table 66 and 252). N v UK (GC) no. 26565/05 [2008] ECHR247 – No violation of Article 3 in the event of the applicant being removed to Uganda. Naseer & Ors v Secretary of State for the Home Department [2010] UKSIAC 77/2009.248

• •

Corporal punishment • • • Tyrer v UK no. 5856/72 [1978] ECHR249 – Violation of Article 3 (see Table 66). Costello-Roberts v UK no. 13134/87 [1993] ECHR250 – No violation of Article 3 (see Table 66). A v UK no. 25599/94 [1998] ECHR251 – Violation of Article 3 (see Table 66).

182

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Threshold for Article 3 cases • Ireland v UK no. 5310/71 [1978] ECHR252 – Violation of Article 3 (see Table 66).

Deprivation in basic needs can meet Article 3 threshold • R v Secretary of State for Home Department ex parte Limbuela [2005] UKHL 66253 – Refusal to give financial support to asylum seekers and to prohibit them working may breach Article 3 (see Table 66).

Protection from violations by third parties • • Z and others v UK (GC) no. 29392/95 [2001] ECHR254 – Violation of Article 3 (see Table 66). E and others v UK no. 33218/96 [2002] ECHR255 – Violation of Article 3 (see Table 66).

Medical treatment • Pretty v UK no. 2346/02 [2002] ECHR256 – No violation of Article 3 (see Table 66).

Discrimination • East African Asians v UK (1973) 3 EHRR 76257 – No violation of Article 3 (see Table 66).

Disability • • Price v UK no. 33394/96 [2001] ECHR258 – Violation of Article 3 (see Table 66). R v East Sussex County Council Ex parte A, B, X and Y [2003] EWHC 167 (Admin) (DRC – Intervener)259 – The England and Wales High Court found that a breach of Article 3 may occur if the applicants are left in their own bodily waste or on the lavatory for a long time because care workers are banned from lifting them (see Table 66). R (B) v Director of Public Prosecutions [2009] EWHC 106 (Admin)260 – There had been a breach of the positive obligation under Article 3 (see Table 66).

Extraterritorial dimensions of Article 3 and immunity from prosecution • R v Bartle and the Commissioner of Police for the Metropolis, ex parte Pinochet [1999] UKHL 147261 – Holding that the state party’s courts have jurisdiction over acts of torture committed abroad and that a former head of state does not have immunity from such crimes (see Table 66).

183

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Prison conditions and Article 3 • • Carson [2005] NIQB 80262 – No violation of Article 3 (see Table 68). Napier v the Scottish Ministers [2004]263 – ‘the court considers that the condition of the applicant detention...amounted to degrading treatment within the meaning of Article 3 of the Convention’ (see Table 68).

Segregation • Somerville v Scottish Ministers [2007] UKHL 44264 – The routine use of segregation with no proper tier of review or appeal amounted to a breach of Article 3 (see Table 68).

Table 83: The prohibition on torture and inhuman or degrading treatment or punishment – key concerns raised by human rights monitoring bodies Domestic NPM Annual Report Monitoring Places of Detention. First Annual Report of the UK’s National Preventive Mechanism, 2009-2010 (NPM, 2011)265. The report noted concerns about detainees with mental health problems as ‘the most significant and recurring concern across all types of detention’; and ‘concerns about the use of restraint on detainees, particularly whether restraint is being used safely, only when absolutely necessary and whether appropriate methods are used on children’. The report also notes a significant gap in monitoring, in potential breach of the requirements of the OPCAT – ‘Gaps in coverage have so far been identified in relation to military detention facilities and court custody in England and Wales. While HMIP is invited to inspect some places of military detention (most notably the Military Corrective Training Centre, the main detention facility for military personnel), the right of access is not statutory. Moreover, there are other places of military detention which are not currently inspected, such as service custody facilities (sometimes known as guardhouses). HMIP is currently in discussion with the government about extending its inspection programme of military detention facilities, as well as an extension of its mandate so that it may inspect court custody’ (NPM, 2011). Equality and Human Rights Commission – torture guidelines In 2010 the Commission advised the Government that its new guidance on torture may violate UK and international law, writing to the prime minister and the heads of the UK’s intelligence agencies expressing ‘serious concerns’ about the lawfulness of the guidance and providing advice on how it can be brought within the law. It questioned whether the guidance did enough to protect officers in the field because it may leave them with the erroneous expectation that they will be protected from personal criminal liability in situations where they may, unwittingly, be liable for crimes committed and condoned by others. It also suggested that the failure to amend the guidance as requested may result in judicial review proceedings being issued. Details of the steps the Government can take to

184

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

bring the guidance into line with the law, including prohibiting an officer from proceeding where there is a serious or real risk of torture, and making the guidance more explicit to indicate factors that will be taken into account when a situation is referred to a minister for a decision, were also provided.266 JCHR, Allegations of UK Complicity in Torture, 2009267 – accountability gaps relating to torture allegations In 2009 the JCHR (2009d) examined a number of reports that UK security services have been complicit in the torture of UK nationals held in Pakistan and elsewhere. The JCHR suggested that complicity in torture exists where a state: • • • • • • asks a foreign intelligence service known to use torture to detain and question an individual provides information to a foreign intelligence service known to use torture, enabling that intelligence service to apprehend an individual gives questions to a foreign intelligence service to put to a detainee who has been, is being or is likely to be tortured sends interrogators to question a detainee who is known to have been tortured by those detaining and interrogating them has intelligence personnel present at an interview with a detainee in a place where they are being, or might have been tortured systematically receives information known or thought likely to have been obtained from detainees subjected to torture.

The JCHR also found that states are complicit when they act in these ways in circumstances where they should have known about the use of torture. Further, it found that the Government appeared to have been determined to avoid parliamentary scrutiny on this issue. It recommended that, in order to restore public confidence and to improve compliance with human rights obligations, the Government should take measures to improve the system of accountability for the intelligence and security services. It found that the Government should: • aim to make the Intelligence and Security Committee a proper parliamentary select committee, with independent advice, and reporting to parliament not the prime minister publish all versions of guidance given to intelligence and security service personnel about detaining and interviewing individuals overseas, to allow others to ensure that it complies with the UK’s human rights obligations make public all relevant legal opinions provided to ministers.

185

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

The JCHR recommended that the Government should set up an independent inquiry into the allegations about the UK’s complicity in torture. The inquiry should make recommendations to improve the Government’s accountability for the security and intelligence services (JCHR, 2009d)268. Allegations of torture involving the UK – key cases summarised by the JCHR Pakistan • MSS, a UK-born doctor of Pakistani origin, arranged to spend some time working in a hospital in Pakistan in 2005. He claims to have been abducted, questioned about the bombings in London on 7 July 2005, tortured, and forced to witness the torture of others. He says that towards the end of his detention and torture he was questioned by two British intelligence officers. Rangzieb Ahmed, a UK-born convicted terrorist, was detained in Pakistan between 2006 and 2007. He claims to have been tortured, including by having his fingernails removed, and that during this process he was interviewed by UK officials who specified that they were not consular officials. During his trial, the assertion that the police and security services passed questions to the Pakistani intelligence agency was heard in closed session. This issue was not addressed by the judge in his open judgement, but the judge concluded that although Mr Ahmed was kept in inhumane conditions before he was interviewed by UK officials he was not physically injured. Zeeshan Siddiqui, a UK-born man with ‘some history of mental illness’ is associated with a number of terrorists. He was held in Pakistan between 2005 and 2006 and claims to have been severely mistreated before being interviewed six times by British intelligence officers and once by a consular official. Salahuddin Amin, a UK-born terrorist, was convicted in 2007 of planning to attack numerous targets in the UK, including the Bluewater shopping centre. Mr Amin alleged that he was tortured during his detention in Pakistan between 2004 and 2005 and that British intelligence officials interviewed him several times in between periods of torture. Before his trial began, the judge ruled that Amin’s treatment had been ‘oppressive’ but said he did not believe his allegations of torture. Tariq Mahmood, a UK-born man,disappeared in Pakistan in 2003 and is now thought to be living in Dubai. Family members claim Mr Mahmood was tortured while held in Pakistan in between 2003 and 2004 and that the UK was involved. Tahir Shah, a UK-born man,was detained in Pakistan for 16 days, shortly after the July 2005 bombings in London. Mr Shah claims to have been treated inhumanely and that, on his return to the UK, his passport was returned by an unnamed official who Mr Shah ‘assumed … to have been from the security service’.

186

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Rashid Rauf, a Pakistan-born man with UK nationality,was detained in Pakistan in 2006 on terrorism charges. Mr Rauf claimed to family members that he was tortured in the presence of people speaking in English and American accents. Mr Rauf was later cleared of the charges before being subject to extradition proceedings. He later disappeared in somewhat mysterious circumstances before it was announced that he was killed, on 22 November 2008, following a US missile strike close to the Afghan-Pakistan border.269

Egypt • Azar Khan, an associate of several terrorists and terrorism suspects, claimed, via an intermediary, that he was ‘questioned, under torture, on the basis of information that must have been supplied by the UK authorities’ during a visit to Egypt in July 2008. A further unidentified man was possibly also being detained by Egyptian authorities on the basis of information supplied by UK authorities and subsequently at risk of torture.270

The case of Binyam Mohamed • Binyam Mohamed is an Ethiopian national who was resident in the UK before being arrested in Pakistan as a terrorism suspect in 2002. He was transferred to Guantanamo Bay in 2004 before being released in February 2009. The US brought terrorism charges against Mr Mohamed in May 2008, as a result of which he brought proceedings against the UK Government seeking disclosure of potentially exculpatory material. This led to a series of high court judgements relating to the case, which is still continuing. In August 2008, the high court found that the UK security services ‘facilitated interviews’ in Pakistan of Binyam Mohamed by providing information and questions while he was being detained unlawfully and without access to a lawyer. The high court found that ‘by seeking to interview BM in the circumstances described and supplying information and questions for his interviews, the relationship of the United Kingdom Government to the United States authorities in connection with BM was far beyond that of a bystander or witness to the alleged wrongdoing’.271

Uzbekistan Mr Craig Murray, the UK ambassador to Uzbekistan from 2002 to 2004, alleged that: • • the Uzbek authorities used torture to a ‘staggering extent’ against suspected political or religious dissidents the information provided under torture was largely planted by the Uzbek authorities, to exaggerate the scale of the terrorist threat in central Asia and provide a firm link to Al-Qaida the CIA intelligence from Tashkent ‘was giving precisely the same narrative’ and therefore may also have been derived from torture and be inaccurate, and the US embassy confirmed to Mr Murray’s deputy that the CIA intelligence ‘probably did come from torture’ but, in the War on Terror, this was not considered to be a problem. 187

• •

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Mr Murray’s allegations are significantly different to those relating to the possible use of torture in Pakistan and Egypt outlined already. He said there was no evidence of British nationals or residents being mistreated in Uzbekistan and no suggestion that British agents were meeting detainees in Uzbekistan or passing on questions for use by interrogators. His claim, supported by the memorandum from Sir Michael Wood, is that the UK Government turned a blind eye to the provenance of intelligence which was almost certainly derived from torture in Uzbekistan, partly because it might have been useful but principally to preserve a valuable intelligence sharing agreement with the US. The importance of this agreement to the UK Government has also been a factor in the litigation involving Binyam Mohamed.272 JCHR – use of pain compliance techniques on young people in detention The JCHR(2009c) expressed ‘strong concerns that pain compliance is still used as a tactic against young people in detention, and used disproportionately against vulnerable girls. We are particularly concerned that this remains the case, even though the independent review recognised that the use of pain compliance techniques would be irreconcilable with the UN Convention. We find this situation to be alarming and to go against the Government’s espoused commitment to the best interests of the child. The Minister failed to persuade us that such techniques are necessary or consistent with the Convention. We reiterate our previous conclusions that techniques which rely on the use of pain are incompatible with the UNCRC.’ (JCHR, 2009c:57).273 EHRC – call for independent review into 24 allegations that the Government knew of, and was complicit in, the torture of Britons held abroad274 In its response to the United Nations Human Rights Council (UNHRC) joint study on secret detention (see below), the Commissioncalls on the UK Government to urgently put in place a review process to assess the truth, or otherwise, of allegations of UK complicity in torture. Any independent review needs to be robust, open and thorough and satisfy the Commission that: • • • those carrying out the review are given complete access to all relevant materials the review team are completely independent of Government and appointed via a transparent and independent process the review will be as open and transparent as possible, put as much material in the public domain as possible and hold as many evidence sessions in public as possible, and the findings of the review will be published as soon as possible with as little concealed for national security reasons as is practical.

188

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Payment ofcompensation to settle cases involving accusations of British security forces involvement in rendition • The BBC reported in November 2010 that ‘Around a dozen men who accused British security forces of colluding in their transfer overseas are to get millions in compensation from the UK government.’275

Treatment of older people in health and social care • The JCHR (2007), The Human Rights of Older People in Healthcare, Eighteenth Report of Session 2006-07, raised concerns about poor treatment, neglect, abuse, discrimination , malnutrition and dehydration and ill-considered discharge.276

International • The UNCRC (2008) – ‘The Committee notes that the State party has reviewed the use of physical restraint and solitary confinement to ensure that these measures are not used unless absolutely necessary and as a measure of last resort. However, the Committee remains concerned at the fact that, in practice, physical restraint on children is still used in places of deprivation of liberty.’277 The United Nations Committee on the Elimination of Discrimination against Women (UNCEDAW) voiced its concern in 2008 that Britain still lacks a comprehensive strategy to combat violence against women, including rape, domestic violence, forced marriage, female genital mutilation (FGM) and trafficking (UNCEDAW, 2008).278 The European Committee for the Prevention of Torture (CPT) condemned the conjunction of slopping out, overcrowding and poor regime (being incarcerated within the cell for 23 hours a day) in English and Scottish prisons as amounting, in its view, to inhuman or degrading treatment or punishment.279 Joint Study of Global Practices in relation to Secret Detention (UNHRC, 2010) – The UNHRC, detailed allegations, on 19 February 2010, that the UK knowingly took advantage of the situation of secret detention, including in the cases of Binyam Mohamed, Salahuddin Amin, Zeeshan Siddiqui, Rangzieb Ahmed and Rashid Rauf.280 Reprieve notes that the report includes: – ‘Confirmation that the UK knew about US renditions practices from 2002, yet continued to hand vulnerable prisoners to US custody with no process until well into 2004; – Confirmation that the UK knowingly received information obtained from prisoners being interrogated in US ghost detention; – Numerous cases showing that the UK took advantage of illegal secret detention practices over at least three continents by colluding in torture; – Unanswered questions in relation to the number of prisoners held by torturous Arab regimes at the request of the UK.’281

189

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

The UK response to the joint study notes that ‘By mid-2003 suspicions arose regarding the operation of black sites, so the UK agencies sought Ministerial approval and assurances from foreign liaison agencies if there was a risk of rendition operations arising from their operations. After April 2004 (Abu Ghraib revelations), in view of the known risk of mistreatment in operations which may result in US custody of detainees, the UK agencies sought assurances of humane treatment in any operation which may involve rendition/US custody.’ The Joint Study notes that ‘Secret detention as such may constitute torture or ill-treatment for the direct victims as well as for their families. The very purpose of secret detention, however, is to facilitate and, ultimately, cover up torture and inhuman and degrading treatment used either to obtain information or to silence people’.282

Table 84: The prohibition on torture and inhuman or degrading treatment – EHRC case law interventions • R(C) v Secretary of State for Justice, EWCA Civ 882 Court of Appeal – Concerning the use of restraint in STCs and children in custody(2008). This case challenged the use of restraint in STCs following the deaths of two young people, Adam Rickwood and Gareth Myatt, in separate centres in 2004.The Court agreed with the Commission’s argument that the restraint rules violated Article 3 which prohibited‘inhuman or degrading treatment or punishment,’ and that the Ministry of Justice failed to determine the impact of the rule change for ethnic minority STC residents via an equality impact assessment. Morrison v IPCC, Court of Appeal – What is required to satisfy the investigative duty under Art 3 ECHR – This case was discontinued but raised important issues around the requirements of the duty to investigate under Article 3. Weaver v London and Quadrant Housing Trust – Concerning Registered Social Landlords(RSLs) and interpretation of ‘public function’ under the HRA 2009. The Commission argued that RSLs ‘should be treated as a public authority for the purposes of the HRA 1998 (HRA)’. This was accepted by the Court of Appeal. Source: EHRC (2010c, 2011).

190

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 85: The prohibition on torture and inhuman or degrading treatment or punishment – summary of the outcomes of key inspection, regulation and complaints procedures; independent investigations that engage Article 3; and other official investigations, inquiries and reviews engaging Article 3 that result in serious criticism of actions of the state, its agents or bodies fulfilling a public function Torture, inhuman or degrading treatment • Independent Inquiry into UK involvement with detainees in overseas counterterrorism operations chaired by Sir Peter Gibson, was established in July 2010 ‘to examine whether, and if so to what extent, the UK Government and its intelligence agencies were involved in improper treatment of detainees held by other countries in counter-terrorism operations overseas, or were aware of improper treatment of detainees in operations in which the UK was involved. The particular focus is the immediate aftermath of the attacks of 11 September 2001 and particularly cases involving the detention of UK nationals and residents in Guantanamo Bay. The Inquiry is of course free to examine any of these cases it wishes, consistent with reaching general conclusions on the above within the set timescale. Allegations relating to military detention operations in Iraq and Afghanistan post-2003 are being addressed by separate arrangements made by the Ministry of Defence.’283 The outcome is pending. The Handling of detainees by UK Intelligence Personnel in Afghanistan, Guantanamo Bay and Iraq, March 2005284 (Intelligence and Security Committee, 2005), found no evidence that UK intelligence personnel abused detainees, but that ‘The SIS and Security Service personnel deployed to Afghanistan and Guantanamo Bay were not sufficiently trained in the Geneva Conventions, nor were they aware which interrogation techniques the UK had specifically banned in 1972.’ There were also deficiencies identified in notification of concerns about inhumane or degrading treatment, the lack of a comprehensive approach towards instances of potential abuse, and the failure to follow-up subsequent concerns being notified to US officials.

Rendition • UK Agencies and Rendition, 25 July 2007 (Intelligence and Security Committee,2007), reported on rendition and recommended strengthening procedures and safeguards in relation to rendition: – ‘First, where despite the use of caveats and assurances there remains a real possibility that sharing intelligence with foreign liaison services might result in torture or mistreatment, current procedure requires that the case is referred to senior management or Ministers for consideration of the risks involved – we recommend that Ministerial approval should be sought in all such cases.

191

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

– Secondly, the Committee considers that ‘secret detention’, without legal or other representation, is of itself mistreatment. Therefore, where there is a real possibility of ‘Rendition to Detention’ to a secret facility, even if it would be for a limited time, we consider that approval must never be given.’ Use of restraint against detainees with mental health problems • Monitoring Places of Detention. First Annual Report of the UK’s National Preventive Mechanism, 2009-2010, February 2011286 (NPM, 2011), noted concerns about detainees with mental health problems as ‘the most significant and recurring concern across all types of detention’; and ‘concerns about the use of restraint on detainees, particularly whether restraint is being used safely, only when absolutely necessary and whether appropriate methods are used on children’.The report also noted a significant gap in monitoring, in potential breach of the requirements of the OPCAT: ‘Gaps in coverage have so far been identified in relation to military detention facilities and court custody in England and Wales. While HMIP is invited to inspect some places of military detention (most notably the Military Corrective Training Centre, the main detention facility for military personnel), the right of access is not statutory. Moreover, there are other places of military detention which are not currently inspected, such as service custody facilities (sometimes known as guardhouses). HMIP is currently in discussion with the Government about extending its inspection programme of military detention facilities, as well as an extension of its mandate so that it may inspect court custody.’

Conditions for segregated prisoners • HM Chief Inspector of Prisons for England and Wales Annual Report 2008-2009287, February 2010 (HMIP, 2010c), found under the category ‘segregation and the use of force’ that:‘In the great majority of cases, we found little more than a basic regime for segregated prisoners and worryingly there were more units where prisoners did not have daily access to washing facilities and telephones.... Accommodation was sometimes poor and inadequate….In women’s prisons, it remained evident that segregation and the use of force were inadequate ways of dealing with challenging and often self-harming women.’288 Conditions in Scottish Prisons, Research Note 00/34289, 16 May 2000 (Scottish Parliament, 2000), provided some statistical briefing on conditions in Scottish prisons in relation to the practice of slopping out, overcrowding, suicide rates, drugs misuse and violence by prisoners. It noted that: ‘At the start of the Twenty First Century there remain concerns over the living conditions prevailing in some Scottish prisons. In particular, the practice of ‘slopping out’ has been described as inhumane and degrading to prisoners…’. The report notes improvements in the proportion of prisoners slopping out (reduced from 29 per cent to 25 per cent) and ‘significant improvements’ in the extent of prison overcrowding.

192

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Managing increasing prisoner numbers in Scotland, May 2008290 (Audit Scotland, 2008), found that: ‘Scotland has one of the highest imprisonment rates in Western Europe, and Scottish prisons are among the most overcrowded.… Overcrowding negatively affects prisoners’ accommodation and access to rehabilitation activities, with remand and short-term prisoners most affected’. ‘Slopping Out’? A report on the lack of in-cell sanitation in Her Majesty’s Prisons in England and Wales, August 2010291 (National Council for Independent Monitoring Boards,2010), found that: – in-cell sanitation does not exist in some 2,000 prison cells across 10 prisons – an electronic unlocking system exists in these prisons but excessive queuing and limited access time cause further unplanned problems – the use of buckets continues at night-time causing the practice of slopping out to continue, despite the formal termination of this system some 14 years ago – there are particularly serious concerns where elderly and disabled prisoners are placed in these cells – there is evidence that some prisons cope with the management of this issue better than others – in many instances, the night sanitation system is unreliable and frequent breakdowns are reported.

Use of restraint in elderly care services • Rights, Risks and Restraints study (Commission for Social Care Inspection (CSCI) (2007a), found that the use of restraint in elderly care services is ‘unacceptable’ and denies the human right to ‘dignity and choice’. The study looked at the experiences of elderly people – not at the prevalence of restraint methods – in residential care homes, nursing homes and individual’s homes. The incidents in the study were taken from CSCI inspection reports, reviews of concerns and complaints made to CSCI, and the Rights, Risks and Restraints survey.

193

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Failure to protect – anti-social behaviour context In 2010 the Commission undertook a formal inquiry into the actions of public authorities to eliminate disability-related harassment and its causes. ACPO (2010b) responded to the call for evidence in September 2010, noting that: ‘The inquest into the deaths of Fiona Pilkington and Francecca Hardwick focused public attention on the impact that anti-social behaviour (ASB) has on the lives of victims and families. In March 2010 Her Majesty’s Inspectorate of Constabulary (HMIC) published a National Overview of Police Performance which identified weaknesses in the quality and scrutiny of data relating to ‘less serious offences’. HMIC made a further statement on anti-social behaviour acknowledging the extent of public concern about the issue. HMIC identified a number of areas for improvement including the lack of an agreed operating framework, inadequacies in police information about ASB and inconsistencies and weaknesses in the ability of police systems to identify vulnerability and repeat victimisation. HMIC’s findings highlight the major impact of repeated ASB on victims’ quality of life. Importantly, HMIC identified that disability was a significant issue and found that one in five of repeat victims identified themselves as disabled. HMIC have identified this as an issue that requires further work…. In making assessments of risk and vulnerability police officers need to take account of a wide range of factors including health and disability as disability related harassment cuts across a wide range of crime types’.292 Protection against rape • The Stern Review (Stern, 2010)293 examined how rape complaints are dealt with by public authorities in England and Wales, and made detailed recommendations to police and prosecution services on how to make the implementation of existing rape policies more effective. In making its recommendations, the review noted that: The policies are not the problem. The failures are in the implementation. We received evidence from over 300 people and have read a number of assessments of the way policies are being implemented. In some areas the policies are applied consistently and with commitment by all involved. In others this is not yet the case and that is where progress needs to be made. There are still public authorities where the staff have dismissive attitudes, police forces where the investigations are badly done, prosecutors who do not see the point of building a difficult case, and areas where the help and support for victims are sparse’.

194

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

A short brief setting out human rights standards and binding norms which apply in the handling, investigation and prosecution of rape complaints was prepared for the review and included in the report in an Appendix. According to this advice: ‘Substantively, rape engages three main ECHR rights: Article 3 (prohibition on torture), Article 8 (right to private life), and Article 14 (prohibition on discrimination). On the procedural side, the investigation and prosecution of rape also engages the right to an effective remedy (Article 13). Article 1 of the Convention is also highly relevant here, as it requires States to “secure to everyone within their jurisdiction the rights and freedoms” set out in the Convention. This implies, and has been taken by the European Court of Human Rights (ECtHR) to mean, that Convention rights not only limit state action, but also require the State to take action to protect the rights of citizens in respect of the acts of private individuals. As rape is normally perpetrated by private individuals in the United Kingdom, this requirement is crucial to the development of safeguards in respect of the handling, investigation and prosecution of rape complaints’. The development of the positive duties principle under European human rights law is traced and the implications for protection of individuals for rape is evaluated. The conclusion is reached that the state’s positive duties in respect of victimwitnesses and the fair trial rights of defendants are ‘multi-faceted’ relating to ‘the context of the investigation and trial as a whole, the particular vulnerability of the witness-victim and the countervailing measures adopted by the judicial authorities in protecting the defendant’s fair trial rights’. In its broader conclusions, the review recommended the adoption of broader measures of ‘successful outcomes’ in relation to rape than the rape conviction rate, however it is defined, including indicators relating to the treatment of victims. Measures of conviction rates, including complex issues around the measurement of ‘attrition’, were considered in detail. The importance of incorporating sexual assault referral centres and sexual violence advisers within the mainstream provision of responses to rape cases were finally highlighted.

195

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Safeguarding vulnerable adults • Safeguarding adults: report on the consultation on the review of No Secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse294 (Department of Health, 2009), identified concerns about the definitions ‘no secrets’ and ‘vulnerable adult’. The consultation identified strong support for the development of safeguarding legislation. The CQC undertook a review of service (CQC, 2011b) after issues were identified on BBC’s Panorama programme in relation to Winterbourne View, a provider of healthcare and support for adults with learning disabilities, complex needs and challenging behaviours (see Table 86). The CQC’s report identified that Winterbourne View was not meeting essential standards, and amongst a number of serious findings of poor practice concluded that ‘The registered provider did not take reasonable steps to identify the possibility of abuse and prevent it before it occurred; and did not respond appropriately to allegations of abuse’.295

Treatment of older people in health and social care • Parliamentary and Health Service Ombudsman (PHSO), Care and Compassion. Report of the Health Services Ombudsman on 10 investigations into NHS care of older people296, February 2011. Dignity and nutrition reports. The CQC (CQC, 2011c) published 12 reports from an inspection programme which examined whether elderly people were receiving essential standards of care in 100 hospitals across England. The inspection programme has identified recurring concerns in relation to both nutrition and dignity, including people not being given assistance to eat, not having their nutritional needs monitored and not being given enough to drink; and staff not treating patients in a respectful way or involving them in their own care.297

196

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 86: The prohibition on torture, inhuman or degrading treatment or punishment Key concerns and allegations raised by private individuals and civil society organisations/reports in the media Amnesty International • Europe: Open Secret: Mounting Evidence of Europe’s Complicity in Rendition and Secret Detention, November 2010 (Amnesty International, 2010a), detailed a number of ‘notorious cases of alleged abuse’ involving the UK: – Guantanamo Bay: Seven former Guantanamo Bay detainees, all UK nationals or residents – Jamil al-Banna, Bisher al-Rawi, Richard Belmar, Moazzam Begg, Omar Deghayes, Binyam Mohamed, and Martin Mubanga – brought a civil claim for damages against the UK government in 2008, alleging that UK state actors had been involved in their apprehensions, unlawful detentions, and abusive interrogations, including torture and illtreatment, in various locations (e.g. Afghanistan, Morocco, Pakistan) before their transfers to the detention facility at Guantanamo Bay. Six of the men continue to seek damages over alleged acts or omissions by MI5, MI6, the Foreign Office and the Home Office for the alleged abuse. Shaker Aamer, a Saudi national and former UK resident, remains detained at Guantanamo Bay and has alleged that he was severely beaten during interrogations at Bagram Theater Internment Facility in Afghanistan, including by men who claimed to be from MI5. A number of other former Guantanamo detainees who are not party to any legal proceedings have also made similar allegations against the UK government. – Diego Garcia: After years of denials, in February 2008, then UK Foreign Minister David Miliband acknowledged that planes operating in the context of the CIA’s rendition programme had landed at Diego Garcia. The UK-based NGO, Reprieve, alleged in 2009 that Diego Garcia had been a transit stop and/or secret prison location in the rendition and/or secret detention of former Guantanamo Bay detainee, Pakistani national Mohammed Saad Iqbal Madni. – Pakistan: In addition to Binyam Mohamed, a number of UK nationals – including Salahuddin Amin, Zeeshan Siddiqui, Rangzieb Ahmed and Rashid Rauf (Rauf was reportedly killed in a drone attack in 2008) – have claimed that UK state actors were complicit in their detentions and interrogations under torture and ill-treatment between 2004 and 2007 at the hands of the Pakistani security agencies, including the Inter-Services Intelligence agency (ISI). – Other countries: In addition to the cases above, individuals held in other countries, including Bangladesh, Egypt, Kenya, Somalia, United Arab Emirates, and Yemen have made similar claims against the UK government.’298

197

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Submission for the Review of Counter Terrorism and Security Powers, September 2010 (Amnesty International, 2010b), outlined Amnesty International’s primary concerns in relation to the control orders regime; the use of diplomatic assurances in the context of national security deportations; the 28-day limit for pre-charge detention of people suspected of terrorism-related activity; and the use of stop and search powers under Section 44 of the Terrorism Act 2000.299 Dangerous Deals: Europe’s Reliance on ‘Diplomatic Assurances’ Against Torture, April 2010 (Amnesty International, 2010c), noted that ‘Serious concerns have been raised domestically about the UK government’s policy of seeking assurances from states that practise torture as a means of circumventing its obligations under the prohibition against torture.’ At the international level, the UK’s policy of ‘deportation with assurances’ has been ‘criticized by the UN Human Rights Committee and the Council of Europe Commissioner for Human Rights who concluded, after a visit to the UK in 2008, that diplomatic assurances ‘should never be relied on, where torture or ill-treatment is condoned by… Governments and is widely practised’. Manfred Nowak, the UN’s Special Rapporteur on torture, has said that ‘the plan of the United Kingdom to request diplomatic assurances for the purpose of expelling persons in spite of a risk of torture reflects a tendency in Europe to circumvent international obligations.’300 United Kingdom: Time for an inquiry into the UK’s role in human rights violations overseas since September 11 2001, March 2010 (Amnesty International, 2010d), detailed Amnesty International’s belief that ‘Credible allegations implicate the UK in torture or other ill-treatment, unlawful detentions and renditions including – UK personnel were present at and participated in interrogations of detainees held unlawfully overseas in circumstances in which the UK knew or ought to have known that the detainees concerned had been or were at risk of being tortured and/or whose detention was unlawful; – UK personnel provided information (e.g. telegrams sent by UK intelligence personnel to intelligence services of other countries) that led the USA and other countries to apprehend and detain individuals when the UK knew or ought to have known that these people would be at risk of torture and/or unlawful detention; – The UK was involved in the US-led programme of renditions and secret detentions through, for example, the use of UK territory (e.g. Diego Garcia) and/or airspace;

198

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

– UK personnel forwarded questions to be put to individuals detained by other countries in circumstances in which the UK knew or ought to have known that the detainees concerned had been or were at risk of being tortured and/or whose detention was unlawful; and – The UK systematically received information extracted from people detained overseas in circumstances in which it knew or ought to have known that the detainees concerned were being, had been or would be tortured and/or whose detention was unlawful.’301 • Scottish Involvement in Extraordinary Rendition, 9 November 2009 (Reprieve, 2009),alleged that:‘Glasgow Prestwick Airport functioned as a crucial ‘staging point’ in renditions’ circuits where planes stopped to refuel en route to and from the United States and the various nations hosting secret prisons...’ Reprieve argued that ‘This raises serious issues of criminal complicity in these acts by those who knew, or should have known, of the significance of these notorious jets refuelling on Scottish soil’.302

Elder abuse • UK study of abuse and neglect of older people Prevalence Survey Report, 2007303 (O’Keeffe et al., 2007 for Action on Elder Abuse), found that 2.6 per cent of people aged 66 and over living in private households reported that they had experienced mistreatment involving a family member, close friend or care worker (ie those in a traditional expectation of trust relationship) during the past year.

Treatment of older people in health and social care • Still hungry to be heard (Age UK, 2010), the most recent report from the campaign Malnutrition in hospitals: Hungry to be heard, described the lack of detection and treatment of malnutrition in hospital as a ‘national disgrace’, and called on the Government to introduce compulsory monitoring of malnutrition.304 Patients Association report (2011) ‘We’ve been listening, have you been learning?’ details sixteen accounts of poor hospital care heard by its Helpline focusing on care-communication, access to pain relief, assistance with toileting and help with eating and drinking.

199

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Homophobic hate crime • Homophobic hate crimes and hate incidents305 (Stonewall 2009 for the EHRC, Dick, 2009), found that ‘there remain a number of operational and strategic obstacles to successfully responding to and preventing homophobic hate crime. To date, the work by the CJS [criminal justice system] in tackling hate crimes and incidents, and specifically homophobic hate crimes, is not consistent across England, Wales and Scotland. There are continuing disparities in the law. Racially aggravated crimes are an offence under the Crime and Disorder Act 1998 while homophobia is considered under the law as an aggravating factor rather than an offence in its own right. Such disparity has an impact on the recording and response to different incidents by police forces’. The report’s recommendations include initiatives to increase the reporting of hate crimes; the development of resources to educate lesbian, gay, and bisexual people about their rights in relation to hate crime; measures to increase investigation and conviction rates for hate crime; and improved data collection.

Transphobic bullying and hate crime • Engendered Penalties: Transgender and Transsexual People’s Experiences of Inequality and Discrimination306 (Whittle et al., 2007 for the Equalities Review), found that 40 per cent of transgender respondents had experienced verbal abuse, 30 per cent had experienced threatening behaviour, 25 per cent had experienced physical abuse and four per cent had experienced sexual abuse. Gender Variance in the UK: Prevalence, Incidence, Growth and Geographic Distribution307 (Reed et al., 2009 for the Gender Identity Research and Education Society (GIRES)), noted that the lack of reliable data on transgender people in the UK has resulted in UK policy makers and service providers ‘largely flying blind in providing protection against transphobic bullying and crime’.

Adults with learning disabilities • Panorama’s allegations that severely disabled and vulnerable patients suffered ‘physical assaults, systematic brutality, and torture’ by carers at the Winterbourne View care home.308 The CQC has published a report of the inspection of care provided at Winterbourne view; the report ‘concludes that there was a systemic failure to protect people or to investigate allegations of abuse’309 (see Table 85).

200

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Indicator 16: Spotlight statistics: The use of restraint, punishment and conditions of detention
Table 87: Overcrowding in prisons: definitions and national key performance indicator results, England and Wales, 2009 Overcrowding is measured as the percentage of prisoners who, at unlock on the last day of the month, are held in a cell, cubicle or room where the number of occupants exceeds the uncrowded capacity of the cell, cubicle or room. This includes the number of prisoners held two to a single cell, three prisoners in a cell designed for one or two and any prisoners held overcrowded in larger cells or dormitories. For example, if 12 prisoners occupy a dormitory with an uncrowded capacity of ten, then the 12 prisoners are counted as overcrowding. Target: To ensure the number of prisoners held in accommodation units intended for fewer prisoners does not exceed 26 per cent of the population in 2008-09. Result: Target met – the average rate of overcrowding was 25 per cent. The rate of overcrowding has remained steady at around 25 per cent for the past three years. The rates of overcrowding vary by prison function. The rate of overcrowding in male local establishments is twice the national rate. Source: National Offender Management Service (NOMS) (2010). Table 88: Overcrowding in prisons by function, England and Wales, 2009
Function name Male category B Male category C Male dispersal Female closed Female local Female open Male closed young offenders institute Male young offenders institute – young people Male local Male open Male open young offenders institute Semi open Cluster National totals Overcrowding target N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A N/A 26.0* Overcrowding rate 5.6 12.3 0.0 0.0 8.0 0.0 12.4 0.7 49.8 0.0 0.0 0.0 26.6 24.7

Source: NOMS (2010). Notes: * The overcrowding target is set at a national level only. 201

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 89: Average rate of overcrowding in prisons, England and Wales, 1998-99 – 2008-09
Year 1998-99 1999-2000 2000-01 2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 Average rate 20.0 20.1 18.2 19.2 23.3 24.8 24.3 24.0 24.6 25.3 24.7

Source: HM Prisons Service (2010). Notes: Average rate of overcrowding within all prisons, expressed as a percentage of the prisoner population. Table 90: Slopping out Parliamentary question on in-cell sanitation 2010 David Howarth: To ask the Secretary of State for Justice what his most recent estimate is of the number of prison cells without in-cell sanitation; and what plans his Department has to install in-cell sanitation in those cells. [319481] Maria Eagle: There are about 2,000 cells on normal location across the prison estate that do not have integral sanitation but which have electronic unlocking facilities, which permits a prisoner to leave the cell to access sanitation and washing facilities on a call system. This system was approved as a method of ending ‘slopping out’, as set out in the Judge Tumin report of 1989. There are also some further cells on the prison estate without integral sanitation but which permit prisoners to have open access to central sanitation facilities via their privacy locks This was also acceptable to Judge Tumin as a method of ending of ending ‘slopping out’.Cells with the current electronic unlocking facilities are too small for the installation of integral sanitation. Source: www.publications.parliament.uk/pa/cm200910/cmhansrd/cm100303/ text/100303w0014.htm

202

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 91: Number of prison cells that do not have access to in-cell sanitation, England and Wales, 2011
Establishment Albany Blundeston Bullwood Hall Bristol Brockhill Coldingley Glouster Grendon Long Lartin Total Places 440 188 144 99 139 350 81 225 307 1,973

Source: NOMS (2011). Notes: Arrangements are in place to enable prisoners to access sanitation facilities throughout the day and night.

203

Table 92: In-cell sanitation recommendations made by HMIP since September 2009, England and Wales
Publication Date 13/03/2010 Announced Recommendation Prisoners on D wing should have the same access to toilets over lunchtime periods as at night. (2.23) Adequate hygiene standards should be maintained on all units, and all prisoners should have 24-hour access to toilet and washing facilities. (2.28) Inspection type Main recommendation Text of recommendation

Name of Establishment

Gender

Functional type

Exeter

Male

Local and young offender 18/11/2009 Announced Recommendation

Portland

Male

Young offenders

Source: HMI Prisons for England and Wales (2011).

Note: This table contains recommendations made following full inspections by HMI Prisons inspectors. Five of those inspected were given recommendations regarding time out of cell as a Main Recommendation.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

204

Table 93: Time out of cell recommendations made by HMIP since September 2009, England and Wales
Publication Date 15/06/2010 Announced Main recommendation Inspection type Main recommendation Text of recommendation Time out of cell should be ten hours on weekdays and in particular association should be available daily, and at least twice during the week in the evening for all prisoners. (HP54) Prisoners should have evening association on four evenings a week. (HP55) Time out of cell arrangements should be improved for all prisoners. (HP55, see paragraph HP35) Prisoners should be able to have an hour’s exercise in the open air daily. (HP54) All young people should have at least one hour in the open air each day in a suitably equipped area with seating and good recreational facilities. (HP44) All prisoners should be offered the opportunity to spend one hour in the open air every day. (6.43) Recommendation Recommendation Monday evening association should be provided on all wings. (5.62) Daily exercise should be included in the published regime of F wing, and prisoners on this wing should be encouraged to spend time outdoors. (5.63) Continued

Name of Establishment

Gender

Functional type

Bristol

Male

Local

Norwich 13/07/2010 Announced Main recommendation Main recommendation Main Recommendation

Male

Local

25/06/2010

Unannounced

Main recommendation

Stoke Heath

Male

Young offender 18/11/2009 15/12/2009 Announced Announced

Portland

Male

Young Offenders

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

205
25/05/2010 Unannounced Recommendation 09/09/2009 09/09/2009 Announced Announced

Werrington

Male

Young Offenders

Altcourse

Male

Local

Bedford

Male

Local

Bedford

Male

Local

Table 93: Time out of cell recommendations made by HMIP since September 2009, England and Wales (continued)
Publication Date 15/06/2010 15/06/2010 02/09/2010 Full unannounced Full unannounced Full unannounced Recommendation Recommendation Recommendation Announced Recommendation Announced Recommendation All prisoners should spend at least 10 hours out of their cells on weekdays. (6.44) All prisoners should have access to adequate association areas. (6.47) The number of women locked in their rooms during activity periods should be reduced significantly. (6.47, see paragraph 6.42) The published regime should be adhered to consistently. (6.48, see paragraph 6.43) Inspection type Main recommendation Text of recommendation

Name of Establishment

Gender

Functional type

Bristol

Male

Local

Bristol

Male

Local

Holloway

Female

Local

Holloway 02/09/2010

Female

Local

02/09/2010

Holloway

Female

Local

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

206
02/02/2010 02/02/2010 Announced Announced Recommendation Recommendation 02/02/2010 Announced Recommendation 25/06/2010 Unannounced Recommendation 25/06/2010 Unannounced Recommendation

All women prisoners should have the opportunity for at least one hour of exercise in the open air every day. (6.49, see paragraph 6.44) All prisoners should have daily association. (6.48) All prisoners should have the opportunity for at least one hour’s exercise in the open air everyday. (6.49) Prisoners without allocated activities should have more time out of their cells during the day. (6.50) There should be an increase in time out of cell available to prisoners in the main prison. (6.46) The requirements of the published core day should be fully adhered to. (6.47) Continued

Liverpool

Male

Local

Liverpool

Male

Local

Liverpool

Male

Local

Norwich

Male

Local

Norwich

Male

Local

Table 93: Time out of cell recommendations made by HMIP since September 2009, England and Wales (continued)
Publication Date 25/06/2010 25/06/2010 Unannounced Recommendation Unannounced Recommendation There should be a general unlock each morning with access to domestic time. (6.48) The cancellation of exercise should be properly authorised in accordance with reasonable published criteria. (6.49) All prisoners, other than those segregated for disciplinary reasons, should be allowed daily association for at least one hour and all should have sufficient time out of cell daily to shower and make a telephone call. (6.46) Inspection type Main recommendation Text of recommendation

Name of Establishment

Gender

Functional type

Norwich

Male

Local

Norwich

Male

Local

Nottingham

Male

Local

28/10/2010

Announced

Recommendation

Nottingham

Male

Local

28/10/2010

Announced

Recommendation

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

207
20/10/2009 Announced Recommendation 20/10/2009 Announced Recommendation 05/03/2010 05/03/2010 Announced Announced Recommendation Recommendation

All prisoners should be able to access time in the fresh air without forgoing other activities and be offered suitable outdoor clothing when necessary. (6.47) Time out of cell should be increased, particularly at weekends and evenings and for unemployed prisoners. (5.50) Prisoners involved in activities should have equal access to showers and telephones. (5.51) Unemployed prisoners on basic should receive adequate time out of cell. (6.45) All prisoners should have the opportunity to take outdoor exercise. (6.46) Continued

Pentonville

Male

Local

Pentonville

Male

Local

Preston

Male

Local

Preston

Male

Local

Table 93: Time out of cell recommendations made by HMIP since September 2009, England and Wales (continued)
Publication Date 20/10/2009 Announced Recommendation A system for ensuring fair access to association should be devised and records kept of cancellations, stating who has cancelled it, why and which prisoners this has affected. (5.56) Association should not coincide with corporate worship. (5.57) Association should conclude at the advertised time. (5.58) Time in the fresh air should be offered, even during inclement weather. (5.60) Note should be taken of prisoners who do not participate in association, and this should be monitored for potential information about vulnerability. (5.61) Prisoners should be allowed access to their cells during association. (6.56) All prisoners should spend at least 10 hours out of their cell on weekdays. (6.50) Recommendation The prison should ensure, in conjunction with the Strategy and Performance Group at Prison Service Headquarters, that time spent out of cell is recorded accurately. This should be validated by the regional custodial manager. (6.51) Continued Inspection type Main recommendation Text of recommendation

Name of Establishment

Gender

Functional type

Wandsworth

Male

Local

Wandsworth 20/10/2009 20/10/2009 20/10/2009 Announced Recommendation Announced Recommendation Announced Recommendation

Male

Local

20/10/2009

Announced

Recommendation

Wandsworth

Male

Local

Wandsworth

Male

Local

Wandsworth

Male

Local

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

208
07/02/2011 13/03/2010 Announced Full unannounced Recommendation Recommendation 13/03/2010 Announced

Holme House

Male

Local and trainer

Exeter

Male

Local and young offender

Exeter

Male

Local and young offender

Table 93: Time out of cell recommendations made by HMIP since September 2009, England and Wales (continued)
Publication Date 13/03/2010 Announced Recommendation Routines for each wing, and where necessary for each landing, should be published for prisoners and staff clearly in a simple format. (6.52) All prisoners should have the opportunity for one hour’s evening association. (6.53) The reasons for cancellations of association and exercise should be recorded on all occasions and where possible notified to prisoners in advance. (6.54) All prisoners should have the opportunity for at least one hour’s exercise in the open air every day. (6.55) Prisoners should be able to return to their cells to smoke or use the toilet during association periods without removing themselves from association for the entire period. (6.42) Recommendation Prisoners should be given the opportunity for at least one hour of exercise in the open air every day. (6.43) Recommendation Recommendation Accurate records of time out of cell should be kept. (6.42) Announced Prisoners on G wing should not have to remain in their rooms during the patrol state. (6.43) Continued Inspection type Main recommendation Text of recommendation

Name of Establishment

Gender

Functional type

Exeter

Male

Local and young offender 13/03/2010 Announced Recommendation

Exeter

Male

Local and young offender 13/03/2010 Announced Recommendation

Exeter

Male

Local and young offender 13/03/2010 Announced Recommendation

Exeter

Male

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

209
11/08/2010 Announced Recommendation 11/08/2010 Announced 30/11/2010 30/11/2010 Announced

Local and young offender

Swansea

Male

Local and young offender

Swansea

Male

Local and young offender

Ashwell

Male

Trainer

Ashwell

Male

Trainer

Table 93: Time out of cell recommendations made by HMIP since September 2009, England and Wales (continued)
Publication Date 30/11/2010 27/10/2010 Announced Recommendation Announced Recommendation Prisoners should have daily opportunity for at least one hour in the open air. (6.44) Prisoners should spend at least 10 hours a day out of their cells. (6.43, see paragraph 6.41) The nationally calculated time out of cell figure should more accurately reflect the actual experience in prisons. (6.42, see paragraph 6.38) Prisoners should be offered a full hour of exercise in the fresh air daily at a later time in the day. (6.43, see paragraph 6.40) All prisoners should be guaranteed the opportunity of at least one hour of exercise every day, taking into account any other commitments they might have, including meal times. (6.47) There should be open access through the day to the exercise yard at Usk. (6.41, see paragraph 6.40) Recommendation Recommendation Association start and finish times should be adhered to. (5.53) All prisoners should have access to one hour a day in the fresh air. (5.56) Continued Inspection type Main recommendation Text of recommendation

Name of Establishment

Gender

Functional type

Ashwell

Male

Trainer

Coldingley

Male

Trainer

Gartree

Male

Trainer

22/09/2010

Announced

Recommendation

Gartree

Male

Trainer

22/09/2010

Announced

Recommendation

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

210
30/03/2010 Announced Recommendation 29/09/2010 Announced Recommendation 23/12/2009 23/12/2009 Announced Announced

The Mount

Male

Trainer

Prescoed/Usk

Male

Trainer and Open

Manchester

Male

High Security

Manchester

Male

High Security

Table 93: Time out of cell recommendations made by HMIP since September 2009, England and Wales (continued)
Publication Date 31/03/2010 Announced Recommendation The prison should ensure the delivery of the core day as published. (6.61) Prisoners beyond the age of retirement should not be locked up during the day. (6.62) All prisoners should be given an hour’s exercise outside. (6.63) Prisoners on house block 8 should be allowed to exercise during association. (6.65) All prisoners should have access to evening association every evening. (6.77) More time unlocked and domestic time should be permitted in the morning and at meal times. (6.78) The daily time out of cell for unemployed young adults should be increased. (6.81) Continued Inspection type Main recommendation Text of recommendation

Name of Establishment

Gender

Functional type

Hewell cluster

Male

Cluster – Local, trainer and open 31/03/2010 Announced Recommendation

Hewell cluster

Male

Cluster – Local, trainer and open 31/03/2010 Announced Recommendation

Hewell cluster

Male

Cluster – Local, trainer and open 31/03/2010 Announced Recommendation

Hewell cluster

Male

Cluster – Local, trainer and open 03/06/2010 03/06/2010 Announced Recommendation Announced Recommendation

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

211
09/07/2010 Announced Recommendation

Brinsford

Male

Young offender

Brinsford

Male

Young offender

Feltham

Male

Young Offender

Table 93: Time out of cell recommendations made by HMIP since September 2009, England and Wales (continued)
Publication Date 09/07/2010 Announced Recommendation Young adults should be guaranteed a period of evening association at least twice a week. (6.82) There should be more than one exercise period a day so that it is available to all young adults. (6.84) Juveniles on the basic level of the incentives and earned privileges scheme should receive adequate time out of their cell. (6.94) All young people should spend a minimum of 10 hours each day out of their cell. (5.55) All young people should have an hour’s exercise in the open air which does not coincide with other activities. (5.56) All young people should be out of their cells for at least 10 hours every day. (5.59) A broad and varied programme of evening and weekend activities should be developed which enables young people to make constructive use of their leisure time. (5.60) Recommendation Young adults should be offered time to exercise in the open air daily. (6.107, see paragraph 6.105) Recommendation Announced Recommendation Association should last for the full one-hour period. (6.108, see paragraph 6.106) All prisoners should have 10 hours out of their cell each day. (6.55) Continued Inspection type Main recommendation Text of recommendation

Name of Establishment

Gender

Functional type

Feltham

Male

Young Offender 09/07/2010 Announced Recommendation

Feltham

Male

Young Offender 09/07/2010 Announced Recommendation

Feltham

Male

Young Offender 26/03/2010 26/03/2010 Announced Recommendation Announced Recommendation

Hindley

Male

Young Offender

Hindley

Male

Young Offender 02/12/2009 02/12/2009 Announced Announced Recommendation Recommendation

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

212
13/07/2010 Announced 13/07/2010 23/03/2010 Announced

Parc (young people’s unit)

Male

Young offender

Parc (young people’s unit)

Male

Young offender

Stoke Heath

Male

Young offender

Stoke Heath

Male

Young offender

Glen Parva

Male

Young Offenders

Table 93: Time out of cell recommendations made by HMIP since September 2009, England and Wales (continued)
Publication Date 23/03/2010 18/11/2009 18/11/2009 Announced Recommendation Announced Recommendation Time out of cell should be recorded accurately. (5.42) The prison should conform to the unlock and lock up timings and the other requirements listed in its published core day. (5.43) An hour’s outdoor exercise should be provided for all prisoners. (6.52, see paragraph 6.47) There should be a period of general unlock in the morning before activity. (6.53, see paragraph 6.48) All prisoners should receive evening association every day. (6.54, see paragraph 6.49) Core day routines should be adhered to. (6.55, see paragraph 6.50) Recommendation A system for ensuring fair access to association should be devised and records kept of cancellations, stating who has cancelled it, why and which prisoners this has affected. (5.56) Announced Recommendation Association should not coincide with corporate worship. (5.57) Continued Announced Recommendation All prisoners should receive one full hour in the open air every day. (6.56) Inspection type Main recommendation Text of recommendation

Name of Establishment

Gender

Functional type

Glen Parva

Male

Young Offenders

Portland

Male

Young Offenders

Portland

Male

Young Offenders 04/11/2010 Announced Recommendation

Swiffen Hall

Male

Young Offenders 04/11/2010 Announced Recommendation

Swiffen Hall

Male

Young Offenders 04/11/2010 Announced Recommendation

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

213
04/11/2010 20/10/2009 Announced Announced Recommendation 20/10/2009

Swiffen Hall

Male

Young Offenders

Swiffen Hall

Male

Young Offenders

Wandsworth

Male

Local

Wandsworth

Male

Local

Table 93: Time out of cell recommendations made by HMIP since September 2009, England and Wales (continued)
Publication Date 20/10/2009 20/10/2009 20/10/2009 20/10/2009 Announced Recommendation Announced Recommendation Announced Recommendation Announced Recommendation Inspection type Main recommendation Text of recommendation Association should conclude at the advertised time. (5.58) The activities available for those on association should be expanded. (5.59) Time in the fresh air should be offered, even during inclement weather. (5.60) Note should be taken of prisoners who do not participate in association, and this should be monitored for potential information about vulnerability. (5.61) The daily programme should be organised so that all young people have the opportunity to take an hour of outdoor exercise some time during the day. (5.47) All young people should spend at least 10 hours a day out of their cells. (5.54) Young women should be allowed out of their cell for at least 10 hours at the weekend. (6.36) Recommendation The daily programme should be organised so that all young people have the opportunity to take an hour of outdoor exercise some time during the day. (5.47)

Name of Establishment

Gender

Functional type

Wandsworth

Male

Local

Wandsworth

Male

Local

Wandsworth

Male

Local

Wandsworth

Male

Local

Warren Hill

Male

Juvenile

17/03/2010

Announced

Recommendation

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

214
15/12/2009 02/06/2010 Announced Announced Recommendation Recommendation 17/03/2010 Announced

Werrington

Male

Young Offenders

DownviewJosephine Butler Unit

Female

Children and Young People

Warren Hill

Male

Juvenile

Source: HMIP for England and Wales (2011)

Note: This table contains recommendations made following full inspections by HMI Prisons inspectors. Five of those inspected were given recommendations regarding time out of cell as a Main Recommendation.

Table 94: Standardised ratio of proportion of patients who had recorded incidents – hands-on restraint, England and Wales, 2009
Males 95% confidence interval Upper Observed 105 130 134 95 121 96 150 81 32 146 104 200 39 116 114 1,435 101 95 107 1,168 100 Standardised ratio Lower Upper Observed Standardised ratio Lower 96 90 98 95% confidence interval 95% confidence interval Upper Observed 104 146 133 2,603 71 176 Females Persons

Ethnic category code

Census Census groups categories 94 63 88

Standardised ratio

Lower

White

British

99

White

Irish

92

White

Other White

109

Mixed

White and Black Caribbean 108 202 43 84 45 144 13

150

127

96

164

56

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

215
42 61 55 163 15 132 80 197 13 98 39 193 8 111 30 285 202 207 78 152 37 56 29 98 62 127 32 76 39 133

Mixed

White and Black African

98

4 7 19

102 109 115

53 66 80

178 168 161

12 20 34

Mixed

White and Asian

115

Mixed

Other mixed

99

Asian or Asian British Indian

110

12

89

66

118

49

Asian or Asian British Pakistani

90

12

86

62

115

44 Continued

Table 94: Standardised ratio of proportion of patients who had recorded incidents – hands-on restraint, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Standardised ratio Lower 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Asian or Asian British Bangladeshi 41 139 12 15 0 83 1 60

80

32

102

13

Asian or Asian British Other Asian 79 175 27 38 12 90 5

120

90

62

128

32

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

216
64 97 96 88 65 117 94 149 78 92 66 125 60 127 30 110 64 176

Black or Black British Caribbean

80

48

82

69

97

144

Black or Black British African

119

41

108

90

130

119

Black or Black British Other Black

89

17

96

70

127

47 Continued

Table 94: Standardised ratio of proportion of patients who had recorded incidents – hands-on restraint, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Standardised ratio Lower 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Other ethnic groups 14 202 3 44 9 129 3 54

Chinese

69

20

117

6

Other ethnic groups 78 164 30 90 47 158 12

Other

115

107

77

144

42

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

217
1,986 100

Grand total

100

1,482

100

3,468

Source: CQC (2011a).

Notes: England and Wales ratio = 100. Recorded incidents: How many of the following kinds of incident have been recorded for this patient during this hospital spell, or within the last three months (if hospital spell is longer): hands on restraint. The colour coding highlights instances where the standardised ratio was found to be statistically significant: dark grey where it is lower, light grey where it is higher.

Figures derived from the Count Me In census 2009 including inpatients in mental health and learning disability services, and those who were subject to a community treatment order (CTO) on the day of the census (CQC, 2011d).

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 95: Use of hands-on restraints in mental health institutions in England and Wales, 2009
Number of times N England Wales 26,191 2,056 0 % 88.7 91.3 N 1,437 93 1 % 4.9 4.1 N 1,047 50 2-4 % 3.5 2.2 N 431 30 5-9 % 1.5 1.3 N 429 22 10+ % 1.5 1.0

Source: CQC (2010a, 2010b, 2010c). Notes: Figures derived from the Count Me In census 2009 including inpatients in mental health and learning disability services, and those who were subject to a CTO on the day of the census (CQC, 2010a). Approximately 11 per cent of patients (a) on mental health wards and independent healthcare organisations had experienced one or more episodes of hands-on restraint. When exploring the differences between groups, Count Me In reported that the only ethnic difference observed was the 28 per cent lower than average rate among the Black Caribbean group. However, they note that ethnic differences have not shown a consistent pattern over the five censuses. Twenty-seven per cent of inpatients in learning disability services had experienced one or more episodes of hands-on restraint. No differences by ethnic minority were observed. Table 96: Detained people who self-report they have been physically restrained in the last six months, England and Wales
Type of prison/establishment Local N=4,323 Young offenders (18-21) N=1,858 Category C trainers N=4,167 Female N=1352 Immigration removal centres N=1,019 N 132 77 51 10 123 % 7 16 5 4 15

Source: HMIP for England and Wales (2010a).

218

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Notes: Data was not available for all types of prison as a result of changes made to the surveys or the re-coding of questions, leading to a loss of comparator data. The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. Offender Institutes comparator from 2005 onwards. Category C trainers comparator from 2005 onwards. Opens comparator from 2005 onwards. Female comparator from 2005 onwards. Immigration removal centre comparator from 2005 onwards. [See source document for comparators] Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2. Table 97: Detained children and young people who self-report that they have ever been physically restrained while in this establishment, England and Wales
Type of prison/establishment Children and young people (under 18) N=776 N 221 % 30

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Children and young people comparator from 2009 onwards. Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2. Table 98: Respondents who self-report that they were handcuffed or restrained whilst in the police custody suite, England and Wales
Type of prison/establishment Police Custody N=1,011 N 445 % 47

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Police Custody comparator from 2008 onwards. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2.

219

Indicator 17: Spotlight statistics: Physical violence, physical and sexual abuse, and victimisation within miscellaneous establishments

Table 99: Standardised ratio of proportion of patients who had recorded incidents – physical assault on the patient, England and Wales, 2009
Males 95% confidence interval Upper Observed 106 126 134 92 100 76 129 57 34 127 88 179 33 1,465 100 94 106 1,073 Standardised ratio Lower Upper Observed Standardised ratio 100 105 105 Lower 97 82 89 95% confidence interval Females Persons 95% confidence interval Upper Observed 104 134 124 2,538 67 149

Ethnic category code

Census Census groups categories 96 63 88

Standardised ratio

Lower

White

British

101

White

Irish

90

White

Other White

109

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

220
114 226 36 130 69 222 37 49 42 160 10 67 204 9 153 221 6 39 1 61 25 219 314 147 50 119 23 77 41 131 60 135 26 106 55 185

Mixed

White and Black Caribbean

163

13

153

113

202

49

Mixed

White and Black African

102

1 7 6

83 124 78

33 71 45

171 201 127

7 16 16

Mixed

White and Asian

108

Mixed

Other mixed

87

Asian or Asian British Indian

79

13

78

55

108

36

Asian or Asian British Pakistani

92

12

96

68

132

38 Continued

Table 99: Standardised ratio of proportion of patients who had recorded incidents – physical assault on the patient, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Standardised ratio Lower 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Asian or Asian British Bangladeshi 43 164 10 21 1 114 1 68

89

34

122

11

Asian or Asian British Other Asian 76 183 22 58 19 136 5

121

101

67

147

27

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

221
67 102 88 107 79 142 81 141 54 92 60 133 48 120 21 156 89 253

Black or Black British Caribbean

83

48

90

76

107

136

Black or Black British African

108

27

102

81

127

81

Black or Black British Other Black

78

16

100

70

137

37 Continued

Table 99: Standardised ratio of proportion of patients who had recorded incidents – physical assault on the patient, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Standardised ratio Lower 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Other ethnic groups 7 200 2 66 14 191 3 61

Chinese

55

20

142

5

Other ethnic groups 54 140 19 79 34 155 8

Other

89

86

57

125

27

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

222
1,917 100

Grand total

100

1,323

100

3,240

Source: CQC (2011a).

Notes:

England and Wales ratio = 100. Recorded incidents: How many of the following kinds of incident have been recorded for this patient during this hospital spell, or within the last three months (if hospital spell is longer): assault. The colour coding highlights instances where the standardised ratio was found to be statistically significant: dark grey where it is lower, light grey where it is higher.

Figures derived from the Count Me In census 2009 including inpatients in mental health and learning disability services, and those who were subject to a CTO on the day of the census (CQC, 2011d).

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 100: Incidences of physical assaults on inpatients within mental health and learning difficulties services, England and Wales, 2009
0 N England Wales 26,409 2,080 % 89.4 92.4 N 1,649 88 1 % 5.6 3.9 2-4 N 870 42 % 2.9 1.9 5-9 N 328 19 % 1.1 0.8 10+ N 279 22 % 0.9 1.0

Source: CQC (2010b, 2010c). Notes: Figures derived from the Count Me In census 2009 including inpatients in mental health and learning disability services, and those who were subject to a CTO on the day of the census (CQC, 2010a). Number of recorded incidents since 1 January 2009 or during this hospital spell (if shorter) (CQC, 2010b, 2010c: spreadsheet figures). Table 101: Assault summary statistics, England and Wales, 2004-08
2004 Prison population Assault incidents1, 2 Male establishments Female establishments Three-year rolling average annual assault incidents per 1,000 prisoners 74,657 12,558 11,702 856 2005 75,979 14,406 13,317 1,089 2006 78,127 15,054 13,893 1,161 2007 80,216 15,231 14,227 1,004 2008 82,572 15,847 14,942 905

164.31

173.28

183.50

190.72

191.49

Source: Ministry of Justice (MoJ) (2010a), Table 7. Notes: 1 It is now expected that all assaults, including fights, should be reported whether or not there was an injury. As this was not the case in the past, care needs to be taken when interpreting changes over the years. 2 In prisons, as in the community, it is not possible to count assault incidents with absolute accuracy. In prison custody, however, such incidents are more likely to be detected and counted. Care needs to be taken when comparing figures shown here with other sources where data may be less complete.

223

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 102: Assault incidents by role and age, England and Wales, 2004-08
2004 Prisoner victims 15-17 years 18-20 years 21-25 years 26-29 years 30-39 years 40-49 years 50-59 years 60 years and over 4,261 518 936 964 596 902 252 75 18 2005 5,301 926 1,199 1,056 693 1,038 316 55 18 2006 5,633 967 1,235 1,168 715 1,070 364 85 29 2007 5,783 999 1,248 1,226 739 1,084 392 73 22 2008 6,380 1,242 1,475 1,257 785 1,067 450 78 26

Source: MoJ (2010a), Table 8. Notes: a This table only includes figures for prisoner victims. The prisoner assailants and prisoner fighters categories are not included here. The prisoner fighter category arises from assault incidents where no clear victim can be identified. Both the prisoner victims and prisoner assailant categories arise from Actual Bodily Harm (ABH) and Grievous Bodily Harm (GBH) assault incidents where there is a clear victim (MoJ, 2010a: 13). 1 Reported incidents before 2000 and prisoner involvements arising from them are not directly comparable with later figures and have, therefore, been excluded. Although figures for 2000 to 2002 have been included they are under-reported by modern standards. It is now expected that all assaults, including fights, should be reported whether or not there was an injury. As this was not the case in the past, care needs to be taken when interpreting changes over the years.

224

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 103: Detained people who self-report that they have been victimised by a member of staff, England and Wales, 2009
Type of prison/establishment Local N=4323 High secure N=418 Young offenders (18-21) N=1858 Category B trainers N=855 Category C trainers N=4167 Open N=1254 Female N=1352 Children and young people (under 18)* N=776 Immigration removal centres* N=1019 N 1,001 178 404 233 854 173 257 172 215 % 26 44 23 28 22 16 21 25 28

Source: HMIP for England and Wales (2010a). Notes: * The children and young people survey and the Immigration Detention Centre survey asks about another prisoner/detainee or group of prisoners/detainees. The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High secure comparator from 2007 onwards. Youth offender institutes comparator from 2005 onwards. Category B trainers comparator from 2005 onwards. Category C trainers comparator from 2005 onwards. Opens comparator from 2005 onwards. Children and young people comparator from 2009 onwards. Female comparator from 2005 onwards. Immigration removal centre comparator from 2005 onwards. Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2.

225

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 104: Adult male prisoners who self-report that they have been victimised by a member of staff, by ethnicity, religion and disability, England and Wales, 2008-09
Black and minority ethnic prisoners Number of completed questionnaires Percentage who said that they have been victimised by a member of staff Consider themselves to have a disability Do not consider themselves to have a disability

White

Muslim prisoners

NonMuslim prisoners

1,037

2,890

422

3,435

559

3,170

32%

23%

38%

24%

33%

25%

Source: HMIP for England and Wales (2010b). Notes: Light grey boxes denote where the group is significantly worse than the comparator. (Emphasis as in publication).

226

Table 105: Detained people who self-report that they have experienced physical or sexual abuse or been victimised by a member of staff*, England and Wales

Locals N=4,323 N %

High security N=418 N % Open N=1,254 N % Female N=1,352 N %

Young offenders (18-21) N=1,858 N % Category B trainers N=855 N % Category C trainers N=4,167 N %

Children and young people (under 18) N=776 N %

Immigration removal centres N=1,019 N %

448 9 2 72 18 4 1 26 5 3 1 102 30 3 1 5 7 1 1 26 7 2 1

12

91

23

199

12

105

13

369

10

75

7

116

9

102 33 9

15 5 1

82 29 21

11 4 3

167 40

5 1

36 6

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

227
13 72 4 66 8 190 5 36 4 – 3 – – – – – – 24 1 17 2 123 3 – – – – – – – – 11 – – 1 – 8 112 7 41 5 159 4 47 4 2 9 1 8 1 24 1 3 0

196

5

57

28

2

27

4

49

7

– 33 –

– 3 –

– 14 24

– 2 3

68 10 -

9 1 -

178

5

12

Made insulting remarks about you, your family or friends Hit, kicked or assaulted Sexually abused* Victimised because of race or ethnic origin Victimised because of nationality Victimised because of drugs Taken canteen/ property Victimised because of being new Victimised because of their sexuality 54 4 23 24 2 –

204

6

34

4

38

5

25

1

7

9 1 Continued

Table 105: Detained people who self-report that they have experienced physical or sexual abuse or been victimised by a member of staff*, England and Wales (continued)

Locals N=4,323 N %

High security N=418 N % Open N=1,254 N % Female N=1,352 N %

Young offenders (18-21) N=1,858 N % Category B trainers N=855 N % Category C trainers N=4,167 N %

Children and young people (under 18) N=776 N %

Immigration removal centres N=1,019 N %

95

3

18

5

19

2

25

4

53

2

3

0

16

2

10

1

12

2

110

3

36

8

33

3

38

5

100

3

21

2

21

2

14

2

28

4

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

228
– 11 2 – – 15 1 4 1 12 84 5 51 6 166 4 22 2

Victimised because of their disability Victimised because of their religion/religious beliefs Victimised because of their age Victimised because they were from a different part of the country 7 3 – 36 3 16

43

2

155

4

46

2

Source: HMIP for England and Wales (2010a).

Notes: * In the immigration detention centre survey, the question asks if the respondent has ‘experienced unwanted sexual attention from staff’ rather than the other surveys which ask if the respondent has been ‘sexually abused’. Gaps in the above table denote where the question is not asked in that survey. The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High security comparator from 2007 onwards. Young offender institutions comparator from 2005 onwards. Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. [For comparators and data from previous years see source document.] See Appendix 2.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 106: Adult male prisoners who self-report that they have been victimised by a member of staff, by ethnicity, religion and disability, England and Wales, 2008-09
Black and minority ethnic prisoners Number of completed questionnaires Percentage who report that they have been victimised because of their race or ethnic origin Percentage who report that they have been victimised because of a disability Percentage who report that they been victimised because of their religion/ religious beliefs Consider themselves to have a disability Do not consider themselves to have a disability

White

Muslim prisoners

NonMuslim prisoners

1,037

2,890

422

3,435

559

3,170

15%

2%

20%

3%

6%

5%

2%

3%

1%

2%

12%

1%

9%

2%

17%

2%

5%

4%

Source: HMIP for England and Wales (2010b). Notes: Light grey boxes denote where the group is significantly worse than the comparator. Dark grey boxes denote where the group is significantly better than the comparator. (Emphasis as in publication).

229

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 107: Detained people who self-report that they have been victimised by another prisoner/detainee, England and Wales
Type of prison/establishment Local N=4,323 High security N=418 Young offenders (18-21) N=1,858 Category B trainers N=855 Category C trainers N=4,167 Open N=1,254 Female N=1,352 Children and young people (under 18) N=776 Immigration removal centres N=1,019 N 854 140 364 211 775 96 340 180 272 % 22 35 21 25 20 8 26 24 34

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High security comparator from 2007 onwards. Young offender institutions comparator from 2005 onwards. Category B trainers comparator from 2005 onwards. Category C trainers comparator from 2005 onwards. Opens comparator from 2005 onwards. Children and young people comparator from 2009 onwards. Female comparator from 2005 onwards. Immigration removal centre comparator from 2005 onwards. Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. [For comparators and data from previous years see source document.] See Appendix 2.

230

Table 108: Detained people who self-report that they have experienced physical or sexual abuse or been victimised by another prisoner/detainee, England and Wales

Locals N=4,323 N %

High security N=418 N % Open N=1,254 N % Female N=1,352 N %

Young offenders (18-21) N=1,858 N % Category B trainers N=855 N % Category C trainers N=4,167 N %

Children and young people (under 18) N=776 N %

Immigration removal centres N=1,019 N %

411 11 2 161 17 9 1 57 13 7 1 207 37 5 1 17 6 1 0 68 17 5 1

11

67

16

202

11

122

15

386

10

55

5

210

16

100 71 7

14 11 1

108 62 30

14 8 4

282 42

7 1

46 9

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

231
7 64 4 49 6 146 4 23 2 – 5 6 96 5 43 5 125 40 2 30 4 99 3 3 – – – – – – – 4 9 – 0 1 5 120 7 36 4 166 4 26 2 3 17 1 15 2 29 1 4 0

143

4

30

50

4

17

2

62

8

– 38 66

– 3 5

– 20 34

– 3 5

67 19 63

9 3 8

134

4

20

191

5

25

Made insulting remarks about you, your family or friends Hit, kicked or assaulted Sexually abused* Victimised because of race or ethnic origin Victimised because of nationality Victimised because of drugs Taken canteen/ property Victimised because of being new Victimised because of their sexuality 85 7 61 18 2 –

214

6

21

9

49

6

32

1

11

15 2 Continued

Table 108: Detained people who self-report that they have experienced physical or sexual abuse or been victimised by another prisoner/detainee, England and Wales (continued)

Locals N=4,323 N %

High security N=418 N % Open N=1,254 N % Female N=1,352 N %

Young offenders (18-21) N=1,858 N % Category B trainers N=855 N % Category C trainers N=4,167 N %

Children and young people (under 18) N=776 N %

Immigration removal centres N=1,019 N %

99

3

10

2

19

1

30

4

65

2

3

0

29

3

15

2

17

2

91

2

27

6

27

2

34

5

89

3

11

1

22

2

9

1

37

5

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

232
– 13 2 – – 19 2 2 0 7 114 6 54 7 181 5 17 1

Victimised because of their disability Victimised because of their religion/religious beliefs Victimised because of their age Victimised because they were from a different part of the country 9 4 – 47 4 38

30

2

158

4

28

6

Source: HMIP for England and Wales (2010a).

Notes: * In the immigration detention centre survey, the question asks if the respondent has ‘experienced unwanted sexual attention from staff’ rather than the other surveys which ask if the respondent has been ‘sexually abused’. Gaps in the above table denote where the question is not asked in that survey. The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High security comparator from 2007 onwards. Young offender institutions comparator from 2005 onwards. Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. [For comparators and data from previous years see source document.] See Appendix 2.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 109: Adult male prisoners who self-report that they have been victimised by another prisoner because of their ethnicity, religion or disability, England and Wales, 2008-09
Black and minority ethnic prisoners Number of completed questionnaires Percentage who report that they have been victimised by another prisoner Percentage who report that they have been victimised because of their race or ethnic origin Percentage who report that they have been victimised because of a disability Percentage who report that they been victimised because of their religion/ religious beliefs Consider themselves to have a disability Do not consider themselves to have a disability

White

Muslim prisoners

NonMuslim prisoners

1,037

2,890

422

3,435

559

3,170

25%

24%

25%

24%

37%

21%

10%

2%

10%

3%

5%

4%

1%

3%

1%

3%

12%

1%

6%

2%

9%

2%

5%

3%

Source: HMIP for England and Wales (2010b). Notes: Light grey boxes denote where the group is significantly worse than the comparator. Dark grey boxes denote where the group is significantly better than the comparator. (Emphasis as in publication.)

233

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 110: People in police custody who self-report that they were victimised by another detainee or member of staff, England and Wales
Type of prison/establishment Police custody N=1,011 N 398 % 42

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Police custody comparator from 2008 onwards. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2. Table 111: People in police custody who self-report that they were victimised by another detainee or member of staff – by type of victimisation, England and Wales
Police custody N=1,011 N Made insulting remarks (about you, your family or friends) Physical abuse (being hit, kicked or assaulted) Sexual abuse Victimised because of race or ethnic origin Victimised because of drugs Victimised because of their crime Victimised because of their sexuality Victimised because of their disability Victimised because of their religion/religious beliefs Victimised because they were from a different part of the country 203 131 17 54 145 166 7 34 26 43 % 21 14 2 6 15 17 1 3 3 5

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Police Custody comparator from 2008 onwards. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2.

234

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Indicator 18: Positive duties and effective protection from sexual violence, domestic violence, hate crime and abuse within families, communities and society: Spotlight statistics on prevalence, detection and prosecution
Table 112: Prevalence of intimate violence by category among adults aged 16 to 59, England and Wales, 2009-10
Since the age of 16 Men Any domestic abuse (partner or family non-physical abuse, threats, force, sexual assault or stalking) Any partner abuse (non-physical abuse, threats, force, sexual assault or stalking) Any family abuse (non-physical abuse, threats, force, sexual assault or stalking) Partner abuse (nonphysical abuse, threats or force) – nonsexual Non-physical abuse (emotional, financial) Threats or force Threats Force - Minor - Severe Women All Men In the last year Women All

Percentage who were victims once or more

15.8

29.4

22.6

4.2

7.5

5.8

12.7

26.0

19.3

3.1

5.8

4.4

6.7

10.1

8.4

1.6

2.6

2.1

11.2 7.4 6.2 1.0 6.0 2.8 5.0

22.6 15.4 17.4 9.8 15.9 12.6 11.7

16.9 11.4 11.8 5.4 10.9 7.7 8.4

2.6 1.9 1.1 0.2 1.0 0.5 0.8

4.6 2.9 2.8 1.5 2.3 1.6 1.5

3.6 2.4 2.0 0.8 1.7 1.0 1.1 Continued

235

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 112: Prevalence of intimate violence by category among adults aged 16 to 59, England and Wales, 2009-10 (continued)
Since the age of 16 Men Family abuse (nonphysical abuse, threats or force) – nonsexual Non-physical abuse (emotional, financial) Threats or force Threats Force - Minor - Severe Any sexual assault (including attempts) Serious sexual assault including attempts Serious sexual assault excluding attempts Rape including attempts Rape excluding attempts Assault by penetration including attempts Assault by penetration excluding attempts Less serious sexual assault Stalking Unweighted base1 Women All Men In the last year Women All

Percentage who were victims once or more

6.2 3.5 3.7 1.1 3.3 1.4 2.7 2.3 0.3 0.2 0.3 0.2 0.1 0.1 2.2 9.3 9,971

8.9 5.4 6.0 2.5 5.2 3.5 3.7 19.7 5.1 4.3 4.7 3.8 1.8 1.5 19.0 18.7 11,988

7.6 4.4 4.8 1.8 4.2 2.5 3.2 10.9 2.7 2.2 2.5 2.0 0.9 0.8 10.5 14.0 21,959

1.4 1.0 0.6 0.2 0.5 0.1 0.4 0.5 0.1 0.0 0.0 0.0 0.0 0.0 0.4 2.9 9,892

2.3 1.4 1.2 0.5 0.9 0.5 0.6 2.3 0.4 0.3 0.4 0.3 0.1 0.1 2.1 4.4 11,728

1.9 1.2 0.9 0.4 0.7 0.3 0.5 1.3 0.2 0.2 0.2 0.2 0.1 0.1 1.3 3.6 21,620

Source: Smith (2011). Notes: Data from the British Crime Survey. 1 Bases given are for any domestic abuse; bases for other measures will be similar. 2 See User Guide to Home Office Crime Statistics for definitions of different categories of intimate violence. 3 Figures for any domestic abuse, any partner abuse, any family abuse, partner abuse (nonsexual) and any sexual assault differ from those originally published in Crime in England and Wales 2009/10 due to revisions in analysis. 236

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 113: Estimated numbers of victims of intimate violence in the last year by category among adults aged 16 to 59, England and Wales, 2009-10
Numbers (000s) Estimate Any domestic abuse (partner or family non-physical abuse, threats, force, sexual assault or stalking) Any partner abuse (nonphysical abuse, threats, force, sexual assault or stalking) Any family abuse (nonphysical abuse, threats, force, sexual assault or stalking) Partner abuse (non-physical abuse, threats or force) – non-sexual Family abuse (non-physical abuse, threats or force) – non-sexual Any sexual assault (including attempts) Men Women All Men Women All Men Women All Men Women All Men Women All Men Women All Stalking Men Women All 677 1,207 1,881 510 931 1,438 263 414 676 424 751 1,175 234 370 604 74 364 435 464 704 1,167 600 1,115 1,760 444 849 1,332 215 359 602 364 679 1,080 188 318 535 48 313 376 401 634 1,073 – – – – – – – – – – – – – – – – – – – – – Range 754 1,299 2,002 577 1,013 1,544 311 469 750 485 823 1,270 279 421 672 99 416 494 527 774 1,262

Source: Smith (2011). Notes: Data from the British Crime Survey. 1 See User Guide for definitions of different categories of intimate violence. 2 Numbers are derived by mutliplying the prevalence rate by the 2009 population aged 16 to 59 in England and Wales (based on mid-2006 estimates from the Office for National Statistics). Lower and higher estimates of the range are derived using the 95% confidence interval.

237

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 114: Percentage of adults who have had a partner since the age of 16 or who have had a partner or contact with an ex-partner in the last 12 months, who have experienced partner abuse by age and gender, Scotland, 2009-10
Experienced any psychological abuse Since the age of 16 Male(total) 16-24 25-44 45-59 60 or over Female(total) 16-24 25-44 45-59 60 or over Victim Non-victim 15% most deprived Rest of Scotland All 9 15 14 8 2 17 20 26 18 6 24 11 21 12 13 Age 9 9 13 10 3 14 15 22 15 5 Victim status 21 10 Deprivation 18 11 12 13 18 19 13 4 19 23 28 21 7 28 14 24 15 16 5 6 9 5 1 12 13 19 13 4 16 7 15 8 9 Continued Experienced any physical abuse Experienced any psychological/ physical abuse Row percentages Experienced both psychological and physical abuse

238

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 114: Percentage of adults who have had a partner since the age of 16 or who have had a partner or contact with an ex-partner in the last 12 months, who have experienced partner abuse by age and gender, Scotland, 2009-10 (continued)
Row percentages Experienced any psychological abuse In the last 12 months Male (total) 16-24 25-44 45-59 60 or over Female(total) 16-24 25-44 45-59 60 or over Victim Non-victim 15% most deprived Rest of Scotland All 2 9 3 1 0 3 8 4 2 1 7 2 4 3 3 Experienced any physical abuse Experienced any psychological/ physical abuse Experienced both psychological and physical abuse

Age 2 5 2 1 0 2 5 2 1 0 Victim status 4 1 Deprivation 3 2 2

3 11 3 1 1 4 10 5 2 1 8 2 5 3 3

1 3 2 0 0 1 4 1 1 0 3 1 2 1 1

Source: MacLeod and Page (2010a). Notes: Data from the Scottish Crime and Justice Survey (SCJS). Base: Adults who have had a partner since the age of 16 (12,729). Base: Adults who have had a partner or contact with an ex-partner in the last 12 months (9,471). 1 Partner abuse as measured by the SCJS in 2009-10 is any psychological or physical abuse undertaken against a man or a woman carried out by a male or female partner or ex-partner (including any boyfriend, girlfriend, husband, wife or civil partner). 2 Psychological partner abuse includes emotional, financial and other forms of psychological abuse. 3 Physical partner abuse includes sexual and other forms of physical force or violence. 4 Experienced any psychological/physical abuse means that a respondent had experienced at least one of the forms of psychological or at least one of the forms of physical partner abuse presented to respondents. 5 Experienced both psychological and physical abuse means that a respondent has experienced at least one of the forms of psychological and at least one of the forms of physical partner abuse presented to respondents.

239

Table 115: Percentage of adults who had experienced each form of psychological or physical abuse since the age of 16 by age and gender, Scotland, 2009-10
Male All 16-24 25-44 45-59 60+ All 16-24 25-44 45-59 Female 60+

Age

Form of abuse: psychological 42 21 17 21 9 15 6 20 13 8 19 1 13 7 7 23 16 16 29 23 14 9 33 43 10 21 18 11 41 26 47 34 21 20 18 22 24 17 53 40 60 49 48 34 15 58 63 61 56 50 41 30 26 21 45 51 36 21 34 14

Behaved in a jealous/controlling way e.g. restricting what you can do, who you can see, what you wear

Repeatedly put you down so that you felt worthless

Threatened to hurt you

Stopped you from seeing friends and relatives

Stopped you having your fair share of the household money/taken money from you

Threatened you with a weapon e.g. ashtray/bottle

Threatened to/attempted to/actually hurt themselves as a way of making you do something/ stopping you doing something 16 7 7 8 7 5 17 21 9 4 17 20

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

240
10 7 4 7 8 8 12 8 8 4 3 0 71 28 13 83 2 4 3 0 75 25 3 0 61 37 2 51 48

21 16

17 24

16 15

11 14

Threatened to hurt your other/previous partner

Threatened to kill/attempt to kill themselves as a way of making you do something/stopping you from doing something

16 17

19 11

16 18

15 18

13 22

Threatened to kill you

Threatened to hurt someone close to you, for example, your children, family members, friends or pets

16 2 89 10

14 5 88 11

17 1 91 8

16 2 87 12

15 4 86 13 Continued

Forced you to view material which you considered to be pornography

Experienced any psychological abuse

Experienced no psychological abuse

Table 115: Percentage of adults who had experienced each form of psychological or physical abuse since the age of 16 by age and gender, Scotland, 2009-10 (continued)
Male All 53 31 11 15 2 2 2 70 28 43 26 22 27 53 71 77 73 74 24 2 2 1 – 7 8 67 30 2 3 1 – 19 11 – 3 4 – 23 15 6 18 18 8 16 11 17 24 20 7 77 22 11 12 12 – 50 47 55 21 35 32 25 38 24 42 34 56 60 59 42 39 47 40 38 48 19 26 22 6 75 24 16-24 25-44 45-59 60+ All 16-24 25-44 45-59 Female 60+ 31 39 39 15 20 22 7 71 28

Age

Form of abuse: physical

Thrown something at you

Kicked, bitten, or hit you

Pushed you/held you down

Used a weapon against you, e.g. ashtray/bottle

Choked/tried to strangle/smother you

Forced you/tried to force you to have sexual intercourse when you did not want to

Forced you/tried to force you to take part in another sexual activity when you did not want to

Experienced any physical abuse

Experienced no physical abuse

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

241

Source: MacLeod and Page (2010a).

Notes: Data from the SCJS. Base: Adults who had experienced partner abuse since the age of 16 (2,156).

1 Psychological partner abuse is psychological abuse undertaken against a man or a woman carried out by a male or female partner or ex-partner (including any boyfriend, girlfriend, husband, wife or civil partner).

2 Any psychological abuse includes any of the emotional, financial and other forms of psychological abuse listed above.

3 The question used to identify psychological partner abuse was: ‘Since you were 16, has any partner or ex-partner ever done any of the following things to you? By partner, we mean any boyfriend or girlfriend, as well as a husband, wife or civil partner’.

4 Physical partner abuse is physical abuse undertaken against a man or a woman carried out by a male or female partner or expartner (including any boyfriend, girlfriend, husband, wife or civil partner).

5 Physical partner abuse includes any of the sexual or other forms of physical force or violence listed above.

6 The question used to identify physical partner abuse was: ‘Since you were 16, has any partner or ex-partner ever done any of the following things to you? By partner, we mean any boyfriend or girlfriend, as well as a husband, wife or civil partner’.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 116: Percentage who had experienced any stalking/harassment or sexual victimisation1 since the age of 16/in the last 12 months by demographic variables, Scotland, 2009-10
Any stalking and harassment in last year 10 7 3 1 5 Any less serious sexual assault since age 16 6 3 2 1 3 Any less serious sexual assault in last year 4 0 0 0 1 Any serious sexual assault since age 16 1 1 0 0 1 Any serious sexual assault in last year 0 0 – – 0

Age Male 16-24 24-44 45-59 60+ Total male Female 16-24 24-44 45-59 60+ Total female Victim status Victim Non-victim Multiple deprivation2 15% most deprived areas Rest of Scotland All

15 8 4 2 6

14 19 16 7 14

6 2 1 0 2

4 7 5 2 4

1 0 0 0 0

11 4

13 8

3 1

5 2

0 0

7 5 6

9 9 9

2 1 1

4 2 3

0 0 0

Source: MacLeod and Page (2010b). Notes: Data from the SCJS. 1 Victim status indicates whether a respondent was the victim of a crime as measured by the SCJS in 2009-10 (for further details of the crimes included, see Annex 3 of the SCJS (www.scotland.gov.uk/Topics/Statistics/Browse/Crime-Justice/Publications/ publications). 2 Multiple deprivation is measured by the Scottish Index of Multiple. Deprivation (SIMD). Breakdowns are for those living in the 15% most deprived areas and those living in the rest of Scotland. See the Scottish Government website for further information: www.scotland.gov.uk/Topics/Statistics/SIMD

242

Table 117: Incidents of domestic abuse recorded by the police, by type of crime/offence and financial year, Scotland, 2000-01 to 2009-10
2002-03 35,877 41,235 43,633 45,331 48,808 49,949 53,931 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 51,926 35,248

2000-01

2001-02

Total incidents1

35,113

Incidents resulting in the recording of a crime/offence 13,926 15,669 21,593 21,829 23,506 23,804 25,127

13,942

29,526

32,066

(of which reported to the procurator fiscal) 9,354 9,313 11,013 14,176 14,857 15,565

9,436

15,843

18,828

21,660

Non-sexual crimes of violence 544 11 335 198 258 314 245 269 367 364 351 351 9 4 11 5 634 682 607 625

613

646 6 361 279

606 10 356 240

643 17 387 239

593 16 349 228 Continued

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

243

Homicide

19

Serious assault

345

Other

249

Table 117: Incidents of domestic abuse recorded by the police, by type of crime/offence and financial year, Scotland, 2000-01 to 2009-10 (continued)
2002-03 79 77 2 – 3 3 2 1 2 1 – 3 1 4 – – 95 105 101 99 117 135 99 108 106 101 123 135 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 165 159 2 4 71 69 1 1

2000-01

2001-02

Crimes of indecency

72

Sexual assault

67

Lewd and libidinous practices

1

Other

4

Crimes of dishonesty 95 978 6 972 616 580 27 8 1 4 8 14 27 29 50 48 34 5 840 1,217 1,897 887 1,302 1,984 2,180 2,052 66 58 4 1,037 1,327 1,636 1,590 11 15 17 21 1,048 1,342 1,653 1,611 1,745 20 1,725 2,288 2,170 69 48 1 169 187 327 354 451

65

460 1,734 21 1,713 2,716 2,606 80 26 4

515 1,918 23 1,895 3,205 3,097 67 40 1

639 1,793 21 1,772 3,440 3,333 58 49 – Continued

Fire-raising, vandalism, etc.

941

Fire-raising

7

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

244

Vandalism, etc.

934

Other crimes

603

Crimes against public justice

550

Handling an offensive weapon

43

Drugs

10

Other

Table 117: Incidents of domestic abuse recorded by the police, by type of crime/offence and financial year, Scotland, 2000-01 to 2009-10 (continued)
2002-03 12,852 7,221 5,389 3 239 249 320 572 511 536 4 8 – 3 – 7,962 7,265 8,088 7,475 7,808 9,761 9,548 9,941 10,566 11,116 12,622 9,704 9 754 17,976 17,141 18,601 18,555 19,460 23,089 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 25,418 13,740 10,489 3 1,186

2000-01 11,621 6,567 4,980 4 70

2001-02

Miscellaneous offences

11,647

Minor assault

6,353

Breach of the peace

5,230

Drunkenness

1

Other

63

Motor vehicle offences 1 – 5 9 29 18

1

28

21

18

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

245
21,322 – – – – 20,208 19,642 21,804 21,825 –

Behaviour not leading to recording a crime or offence

21,163

25,004 –

24,822 –

24,405 –

19,860 –

Not recorded

8

Source: Scottish Government (2010).

Notes:

1 Different police forces record domestic abuse information in differing ways. Police practice in deciding when a behaviour justifies the recording of a crime or offence may also differ. These differences influence the proportion of incidents which lead to the recording of a crime or offence, as well as the proportion of crimes and offences reported to the procurator.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 118: Rapes recorded by the police between 2003 and 20081, Scotland
Year Number of rapes recorded 2003-04 845 2004-05 900 2005-06 975 2006-07 922 2007-08 908

Source: Crown Office and Procurator Fiscal Service (COPFS) (2009). Notes: 1 Figures taken from Scottish Government publication Statistical Bulletin Crime and Justice Series: Recorded Crime in Scotland, available on the Scottish Government website at www.scotland.gov.uk/publications

246

Table 119: Sanction detection rates for rape, recorded crime, England and Wales, 2008-09 and 2009-101, 2, 3
2008-09 2009-10

Offence 170 7,780 2,538 1,652 12,140 22 317 218 407 964 291 166 41 30 71 33 52 16 2 9 .. 372 241 561 1,174 3,116 26 13,991 649 39 1,963 742 29 2,926 1,665 21 9,102 1,781 840 798 3,419 .. 71 94 207 372 60 35 .. ..

Number of offences

Number of sanction detections Number of offences .. 20 29 41 24 .. 19 39 37 32

Sanction detection rate (%)

Number of sanction detections

Sanction detection rate (%)

Percentage point change in sanction detection rate between 2008-09 and 2009-10 .. -2 -1 1 -1 0 .. 3 6 -4 1

Rape of a female (19A)

Rape of a female aged 16 and over (19C)

Rape of a female child under 16 (19D)

Rape of a female child under 13 (19E)

Rape of a female

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

247

Rape of a male (19B)

Rape of a male aged 16 and over (19F)

Rape of a male child under 16 (19G)

Rape of a male child under 13 (19H)

Rape of a male

Source: Flatley (2010).

Notes:

1 Offences detected in the current year may have been initially recorded in an earlier year and for this reason some percentages may exceed 100. 2. Numbers of recorded crimes and percentages will be affected by changes in reporting and recording. 3. Some forces have revised their 2008-09 data and totals may not agree with those previously published.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 120: Action taken by the police against identified perpetrators of crimes or offences of domestic abuse cleared up by the police, by financial year, Scotland, 2000-01 to 2009-10
2000-01 2001-02 2002-03 2003-04 2004-05 2005-06 2006-07 2007-08 2008-09 2009-10 Referral to procurator fiscal Police warning Other action1 No further action Not recorded Total 1,415 1,710 41 13,950 1,977 1,571 33 13,926 3,269 1,824 348 15,669 4,967 3,165 1,265 21,593 5,007 1,180 293 21,829 4,781 2,908 73 23,506 4,692 2,466 243 23,804 5,399 2,935 244 25,127 6,761 3,637 7 29,526 7,037 3,290 7 32,066

9,436 1,348

9,354 991

9,313 915

11,013 1,183

14,176 1,173

14,857 887

15,565 838

15,843 706

18,828 293

21,660 72

Source: Scottish Government (2010). Notes: 1 Other action includes such action as referrals to support groups such as victim support. Table 121: Current levels of hate crime in England and Wales, 2008-09
Type of incident Racial Religious Age Disability Sexual orientation Percentage of population 0.4 0.1 0.4 0.1 0.1

Source: EHRC analysis of unpublished 2008-09 British Crime Survey data (EHRC, 2010c). Note: Incidents relating to age are not officially recognised as hate crimes.

248

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 122: Racially or religiously aggravated offences recorded by police forces by offence type, with clear up rates for England and Wales, 2007-08
Less serious wounding 1.1 4,746 39 40 Criminal damage 0.4 3,983 21 14 Common assault 2.0 4,158 37 37

Harassment Percentage racially or religiously aggravated1 Total (for England and Wales) Percentage cleared-up Racially or religiously aggravated Non-racially or religiously aggravated 42 68 11.1 25,440

Total 2.1 38,327 39 29

Source: MoJ (2009a), Table 3.2. Notes: 1 Percentage of the overall total of the racially and religiously aggravated offence and the equivalent non-aggravated offence. 2 Numbers of non-racially aggravated offences are not shown in this table. 3 Figures exclude the British Transport Police. 4 The figures in this table have been supplied by the Home Office from the database used to produce Crime in England and Wales 2007/08.

249

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 123: Recorded hate crime from regional forces in England, Wales and Northern Ireland*, January to December 2009
All monitored Disability hate crimes Antisemitic (included in previous total)

Race England, Wales and Northern Ireland totals

Religion/ faith

Sexual orientation

Transgender

43,426

2,083

4,805

312

1,402

52,028

703

Source: Association of Chief Police Officers (ACPO) (2010a). Notes: a Due to technical issues, two police forces were unable to submit data for Quarter 2 (ACPO, 2010). b Hate crimes are included and not in addition to general crime (ie all of these crimes are also recorded in the figures of the relevant crime categories, such as robbery, assault, etc.) (ACPO, 2010). c Collating data for the five strands of hate crime has only been going on since 1 April 2008 (ACPO, 2010). d Data for non-crime incidents is held locally and not included in this data (ACPO, 2010). e *Calculated by the CASE research team: without the figures for the Police Service of Northern Ireland, totals for Race = 42,634; totals for Religion/faith = 2,007; totals for Sexual orientation = 4,711; Transgender = 305; Disability = 1,319; totals for All monitored hate crime = 50,976; totals for Antisemitic = 701.

250

Table 124: Recorded crime statistics on racially and religiously aggravated crime, England and Wales, 2007-08, 2008-09, 2009-10

Year (8J) .. .. .. .. .. .. .. .. 2,391 2,376 26,495 .. 28,485 .. .. .. 23,354 23,235 26,605 .. .. 23,363 .. .. 3,866 3,945 4,351 4,323 4,182 4,330 20,975 .. .. 4,161 1,982 1,845 1,742 1,543 1,150 999 850 16,910 .. .. 4,602 2,044 (8E) (8M) (9B) 105B (58E) (58F) 1,160 1,185 1,137 1,274 1,079 833 780 662

Inflicting GBH without intent Harassment7/ Public fear, etc. Harassment7 Assault without injury5, 7

Less serious wounding7

ABH or other injury

Public fear, alarm or distress

Criminal damage to a dwelling7

Criminal damage to a building other than a dwelling7 Criminal damage to a vehicle7 (58G) 1,525 1,603 1,640 1,899 1,711 1,339 1,306 1,133

Other criminal damage7 (58H) 780 838 837 975 953 681 727 604

HO code

(8H)

(8D)

2002031, 2

..

4,415

200304

..

4,930

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

251

200405

..

5,426

200506

..

6,107

200607

..

5,620

200708

..

4,826

200809

383

..

3,923

200910

223

..

3,515

Source: Home Office (2010a) Recorded Crime Statistics (online Excel file)

Notes [taken directly from original source, some do not apply to the table presented here]:

1 The National Crime Recording Standard (NCRS) was introduced in April 2002 but some forces adopted it prior to this date. Broadly, the NCRS had the effect of increasing the number of crimes recorded by the police. Therefore, following its introduction, numbers of recorded crimes are not comparable with previous years.

2 Includes the British Transport Police from 2002-03 onwards.

3 The homicide figure for 2002-03 includes 173 murders committed by Harold Shipman in previous years but coming to light in the official inquiry in 2002. The homicide figure in 2005-06 of 766 includes 52 homicide victims of the 7 July London bombings.

4 The 7 July London bombings also accounted for approximately one-quarter of the total 920 attempted murders in 2005-06.

5 The change in definition relating to resultant injury in common assault and less serious wounding, which applied from 1 April 2002, is described in Chapter 5 of Crime in England and Wales 2005/06.

6 Possession of weapons offences can also be included in other offence classifications.

7 Religiously aggravated offences were added to the series from April 2002.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

252

8 The Sexual Offences Act 2003, introduced in May 2004, altered the definition and coverage of sexual offences. This means that sexual offences data for 2004-05 are not comparable with those for previous years.

9 The increase in 2005-06 was accounted for by a large number of offences that were dealt with by the Norfolk Constabulary.

10 This offence consists solely of the former offence of Indecent Exposure for years prior to 2004-05. This became the offence of Exposure and is included within Other miscellaneous sexual offences from May 2004.

11 Includes tampering with a motor vehicle.

12 These offences were added to the series from 1 April 2003.

13 The large increase in this offence in 2005-06 was due to one large-scale fraud recorded by the Cambridgeshire Constabulary and the large rise in 2007-08 due to a fraud recorded by the North Yorkshire Police. The large increases in 2008-09 were due to largescale frauds recorded in Gwent, Leicestershire and the Metropolitan Police areas.

14 The Fraud Act 2006, introduced in January 2007, altered the definition, coverage and some counting rules for fraud offences (see Chapter 4 in Crime in England and Wales 2006/07 for further details).

15 This table includes the fraud offences used prior to the commencement of the Fraud Act 2006 on 15 January 2007.

16 Possession of controlled drug offences were split with effect from April 2004 into possession of cannabis and possession of other drugs other than cannabis.

17 These are offences under the Firearms Act 1968 and other Firearms Acts connected with licensing and certification of firearms. Such offences are not included in the firearms offences statistics which are discussed in Chapter 3 of Crime in England and Wales 2006/07.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

253

18 Following two independent reviews of crime statistics, several changes have been made to offence categories. The offence ‘concealment of birth’ has been moved from ‘violence against the person’ group to the ‘other miscellaneous offence’ group that is used for offences not allocated to a specific offence type. The offence of ‘bigamy’ has been moved from the ‘sexual offences’ group to ‘other miscellaneous offences’ group. The former offence of ‘indecent exposure’ (replaced by ‘exposure’ under the Sexual Offences Act 2003 which came into force in May 2004) has retrospectively been moved from ‘other offences’ to be part of ‘other miscellaneous sexual offences’. A new group of ‘offences against vehicles’, has been created, bringing together the offences of ‘theft of and from vehicles’ with ‘vehicle interference’ – the rationale for the change is that vehicle interference largely consists of attempted offences very similar in character to theft of, and from, vehicles. A further group has been created of ‘other thefts’, comprising offences such as ‘theft by an employee’, ‘shoplifting’ and ‘handling stolen goods’.

19 This offence consists solely of the former offence of Indecent Exposure for years prior to 2004-05. This became the offence of Exposure and is included within ‘Other miscellaneous sexual offences’ from May 2004.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 125:Number of rapes charges reported to the procurator fiscal, Scotland, April 2006 to 31 March 2007
Number of reports submitted to the procurator fiscal including at least one charge of rape1 Number of charges of rape reported to the procurator fiscal. Number of charges of rape which were indicted for trial. 515 656 172

Source: COPFS (2009). Notes: 1 In the period, 515 reports, including at least one charge or rape, were reported to the procurator fiscal. A police report can contain more than one charge and can relate to more than one accused. This is why the number or reports submitted by the police is fewer than the number of charges received by the procurator fiscal in any given period. Table 126: The conviction rate of sexual offences, England and Wales, 2008
Conviction rate (%) Sexual offences All offences 61 83

Source: MoJ (2010c). Notes: The conviction rate is defined as the proportion of defendants proceeded against who are found guilty (MoJ, 2010c: 58). Table 127: Reports, prosecutions and convictions for rape,Scotland, 1997-2006
1997 Reports Prosecutions Percentage of cases leading to prosecution Convictions Percentage of prosecutions leading to conviction Conviction rate (convictions as a percentage of reports) 570 68 12 31 46 5 2000 562 51 9 28 55 5 2003 794 86 11 47 55 6 2006 981 69 7 29 42 3

Source: Walby et al. (2010: Table 5.6). Notes: Figures calculated by Walby et al. from Burman et al. (2009). Analysis is based on a calendar year.

254

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 128: Serious sexual offences brought to justice, England and Wales, 2009-101 Serious sexual offences brought to justice compared with the volume of serious sexual recorded crime2. Latest data3: year ending June 2010.
Recorded crime4 12 months ending September 2009 Number 37,040 12 months ending September 2010 40,142 Offences brought to justice (OBTJ)5, 6 12 months ending September 2009 11,768 12 months ending September 2010 12,303

Source: MoJ (2011c). Notes: 1 Serious sexual offences includes: rape, sexual activity involving a child under 13, sexual assault on a male, sexual assault on a female, causing sexual activity without consent, sexual activity, etc. with a person with a mental disorder, abuse of children through prostitution and pornography, trafficking for sexual exploitation. 2 Comparing the volume of OBTJ with the volume of recorded crime provides a proxy measure of the effectiveness of the criminal justice system in bringing crime to justice. However, there are differences in how recorded crime and OBTJ are measured that mean caution must be taken when comparing the two. For example: an offence may be brought to justice in a different period to the corresponding recorded crime; one crime could result in a number of offenders brought to justice (for example, a gang committing a burglary), and a crime recorded by the police as one offence may, once all the evidence has been considered, be subsequently brought to justice as an alternative offence. 3 Recorded crime data shown as available at 21 January 2011 and OBTJ data shown as available at 2 February 2011. 4 England and Wales data excludes British Transport Police. 5 OBTJ numbers are in part affected by the number of recorded crimes in an area. If recorded crime in an area falls there will be fewer offences which can potentially be brought to justice. 6 OBTJ numbers for 2010 are provisional unvalidated data from the courts and police. These are provided as management information and are likely to change. Bringing offences to justice is one measure of the effectiveness of the CJS. An offence is said to have been brought to justice when a recorded crime results in an offender being convicted, cautioned, issued with a penalty notice for disorder or a cannabis warning, or having an offence taken into consideration at court. The number of Offences Brought to Justice (OBTJs) is in part affected by the number of recorded crimes in an area. If recorded crime in an area falls there will be fewer offences which can potentially be brought to justice. Comparing the volume of OBTJs with the volume of recorded crime provides a proxy measure of the effectiveness of the CJS in bringing crime to justice. However, there are differences in how recorded crime and OBTJs are measured that mean caution must be taken when comparing the two. For example: an offence may be brought to justice in a different period to the corresponding recorded crime; one crime could result in a number of offenders brought to justice (e.g. a gang committing a burglary); and a crime recorded by the police as one crime (e.g. Grievous Bodily Harm) may, once all the evidence has been considered, be subsequently brought to justice as an alternative offence (e.g. Actual Bodily Harm). England and Wales data excludes British Transport Police. 255

Table 129: Violence against the person and sexual offences brought to justice, offence type, England and Wales, 1998-99 – 2009-101, 2, 3
19992000 Number of offences (thousands) 215 16 Percentage of all offences brought to justice (%) 20 1 1 1 2 1 1 1 1 21 21 22 15 14 15 15 15 16 17 17 17 223 213 216 236 259 329 412 464 460 407 17 369 18 200001 200102 200203 200304 200405 200506 200607 200708 200809 200910

Type of offence

199899

Violence against the person

Sexual offences

Violence against the person

23
24 29 31

33 1

32 1

29 1

29 1

Sexual offences

Source: MoJ (2010f).

Notes:

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

256

1 Figures for 2009-10 are provisional.

2 Excludes British Transport Police.

3 Excludes Lincolnshire Cautions data for January to March 2010.

Bringing offences to justice is one measure of the effectiveness of the CJS. An offence is said to have been brought to justice when a recorded crime results in an offender being convicted, cautioned, issued with a penalty notice for disorder or a cannabis warning, or having an offence taken into consideration at court. OBTJ numbers are in part affected by the number of recorded crimes in an area. If recorded crime in an area falls there will be fewer offences which can potentially be brought to justice. Comparing the volume of OBTJ with the volume of recorded crime provides a proxy measure of the effectiveness of the criminal justice system in bringing crime to justice. However, there are differences in how recorded crime and OBTJ are measured that mean caution must be taken when comparing the two. For example: an offence may be brought to justice in a different period to the corresponding recorded crime; one crime could result in a number of offenders brought to justice (for example, a gang committing a burglary); and a crime recorded by the police as one crime (for example, GBH) may, once all the evidence has been considered, be subsequently brought to justice as an alternative offence (for example, ABH). England and Wales data excludes British Transport Police.

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 130: Pre-charge decisions: the percentage of defendants who were charged with domestic violence or rape, by crime type, England and Wales, 2007-08 – 2009-101, 2
2007-08 Volume Domestic violence Rape 47,115 2,220 % 63.6 38.8 2008-09 Volume 52,418 2,565 % 65.2 38.9 2009-10 Volume 57,256 2,798 % 62.8 36.4

Source: CPS (2010a). Notes: 1 Pre-charge decisions are shown inclusive of cases in which the outcome of the decision was not fully captured in CPS records. The present figures therefore differ from those in the 2007-08 report. 2 CPS records include no indication of pre-charge decisions regarding sexual offences, as a principal offence category is allocated to cases only at the conclusion of prosecution proceedings. Table 131: Reports and convictions for rape, Scotland, 1999-2000-2006-07
19992000 Reported rape and attempted rape Convictions for rape and attempted rape Percentage of reported rapes resulting in convictions 2000-01 200102 2002-03 2003-04 2004-05 2005-06 2006-07

755

690

788

924

1,037

1,109

1,161

1,123

48

52

67

55

58

70

61

58

6.4

7.5

8.5

6.0

5.6

6.3

5.3

5.2

Source: Walby et al. (2010), Table 5.7. Notes: Data from the Scottish Government. This data was constructed by Walby et al. (2010) from data on the number of reports and convictions published by the Scottish Government. This method of estimating the percentage of reported rapes resulting in convictions has been used by Walby in a previous report.

257

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 132: Number and outcomes in rape charges reported from 2006-07, Scotland
Reports submitted to the procurator fiscal including at least one charge of rape Number of charges of rape reported to the procurator fiscal Number of charges of rape indicted for trial Charges incited as a percentage of charges reported to the procurator fiscal Outcomes in rape charges Found guilty of charge Pled guilty to charge Pled guilty to an alternative sexual charge Found guilty of an alternative sexual charge Found guilty of alternative non-sexual charge Total convictions Convictions as a percentage of rape charges indicted Convictions as a percentage of rape charges reported by the police Found not proven Found not guilty No further action by prosecution Withdrawn from jury by judge or prosecutor Plea of not guilty accepted by prosecutor No case to answer Total non-convictions Non-convictions as a percentage of rape charges indicted Non-convictions as a percentage of rape charges reported by police Total not concluded Total 12 172 45 31 17 7 4 3 107 62% 16% 32 13 6 1 1 53 31% 8% 515 656 172 26%

Source: Walby et al. (2010: Table 5.8) based on data from the Crown Office and Procurator Fiscal Service. Notes: Rape charges (any charge containing allegation of rape, not including charges of attempted rape or assault with intent to rape) reported by police to the procurator fiscal by outcome. The number of reports is smaller than the number of charges since a report can contain more than one charge and relate to more than one accused.

258

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 133: Completed prosecutions by outcomes: percentage convicted of domestic violence, sexual offences excluding rape, or rape, by crime type, England and Wales, 2007-08 – 2009-10
2007-08 Volume Domestic violence Sexual offences excluding rape Rape 43,977 5,976 2,021 % 68.9 73.5 57.7 2008-09 Volume 48,465 5,955 2,018 % 72.2 75.1 57.7 2009-10 Volume 53,347 6,060 2,270 % 72.0 76.0 59.4

Source: CPS (2010a). Table 134: Pre-charge decisions: the percentage of defendants charged with a hate crime, by hate crime type, England and Wales, 2007-08 – 2009-101
2007-08 Volume Racially and religiously aggravated Homophobic and transphobic Disability 9,115 758 187 % 70.1 62.2 67.0 2008-09 Volume 8,673 710 292 % 73.2 65.1 65.8 2009-10 Volume 9,214 907 506 % 71.3 66.1 70.3

Source: CPS (2010b). Notes: 1 Figures included in the 2007-08 report are exclusive of those cases in which the outcome of the decision was not fully captured in CPS records. For the sake of completeness, these outcomes have been added in the present report. The above figures therefore differ from those in the 2007-08 report. Table 135: Completed prosecutions by outcomes: Percentage convicted of a hate crime, by hate crime type, England and Wales, 2007-08 – 2009-10
2007-08 Volume Racially and religiously aggravated Homophobic and transphobic Disability 10,398 778 141 % 79.9 78.2 77.0 2008-09 Volume 9,576 815 299 % 82.4 80.5 76.1 2009-10 Volume 9,993 929 483 % 82.4 80.6 75.7

Source: CPS (2010b).

259

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 136: Race crime statistics, Scotland, 2003-04 –2008-09
2003-04 Number of charges Percentage of charges where courts proceedings taken Percentage of charges dealt with by alternative direct measure (eg warning, fine) Percentage not proceeding or awaiting decision 3,322 2004-05 4,019 2005-06 4,287 2006-07 4,367 2007-08 4,394 2008-09 4,319

85

85

86

89

88

88

9

9

9

7

6

6

*

*

*

*

6

6

Source: Walby et al. (2010: Table 5.17) based on data from the Crown Office and Procurator Fiscal Service. Notes: * Missing. This information is taken from police reports submitted to procurators fiscal in Scotland. The figures relate to the number of charges. Table 137: Religiously aggravated crime statistics, Scotland, 2003-04 – 2008-09
2003-04 Number of charges Percentage of charges where courts proceedings taken Percentage of charges dealt with by alternative direct measure (eg warning, fine) Percentage not proceeding or awaiting decision 272 2004-05 479 2005-06 704 2006-07 699 2007-08 608 2008-09 669

96

96

96

95

91

93

4

4

3

3

5

3

*

*

4

4

6

6

Source: Walby et al. (2010: Table 5.18) based on data from the Crown Office and Procurator Fiscal Service. Notes: * Missing. This information is taken from police reports submitted to procurators fiscal in Scotland. The figures relate to the number of charges.

260

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Table 138: Elder abuse and neglect in the private household population The National Centre for Social Research (NatCen) and King’s College London (KCL) were commissioned to conduct a piece of qualitative research into the abuse and neglect of older people in the UK.310 The sample was weighted to be representative of older adults across the UK; over 2,100 adults aged 66 and over living in private households (including sheltered accommodation) in England, Scotland, Wales and Northern Ireland participated in the survey. The research was conducted through faceto-face interviews. There are five definitions of mistreatment in the report, taken from a Department of Health sponsored review of the research literature (McCreadie, 1996): • Neglect – ‘…repeated deprivation of assistance needed by the older person for important activities of daily living…’ (McCreadie, 1996), for example, repeated failure of a designated care-giver to provide help with personal care and day to day activities. Financial abuse – ‘…the unauthorised and improper use of funds, property or any resources of an older person…’ (McCreadie, 1996), for example, theft, fraud or misuse of power of attorney. Psychological abuse – ‘…the persistent use of threats, humiliation, bullying, swearing and other verbal conduct, and/or of any other form of mental cruelty that results in mental or physical distress…’ (McCreadie, 1996), for example, persistent insults, threats and belittlement. Physical abuse – ‘…the non-accidental infliction of physical force that results in a bodily injury, pain or impairment…’ (McCreadie, 1996), for example, physical violence, physical restraint or over-medication. Sexual abuse – ‘…direct or indirect involvement in sexual activity without consent…’ (McCreadie, 1996), for example, verbal harassment, touching in a sexual way or intercourse without consent.

261

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Results Overall, 2.6 per cent of participants reported that they had experienced mistreatment involving a family member, friend or care worker during the reference year, which equates to approximately 227,000 people aged 66 and over in the UK. When mistreatment is expanded to include incidents with neighbours and acquaintances, the prevalence rises from 2.6 per cent to 4.0 per cent, increasing the population figure to about 342,400 older people being subject to some form of mistreatment. The most common type of mistreatment reported was neglect (1.1 per cent). Of those, 85 per cent had not received help with a day to day activity, 41 per cent had not received help with personal care and 20 per cent had not received help with taking their medication at the right time. Neglect dominates the prevalence figures for those who are aged 85 and over, especially for women. Although numbers are small, spouses or partners emerge as the main perpetrators of neglect (with family members following closely). The authors suggest that this might not be deliberate neglect but the consequence of two people with increasing disabilities trying to support each other. The other categories of mistreatment were reported as follows: financial abuse (0.7 per cent), psychological abuse (0.4 per cent), physical abuse (0.4 per cent) and sexual abuse (reported cases were classified as harassment due to their nature – being the ‘less serious end of abuse’ (O’Keeffe et al., 2007: 42). Recorded reports included being spoken to in a sexual way that made the person feel uncomfortable and being touched sexually against their will (0.2 per cent) (O’Keeffe et al., 2007: 42).). Fifty-one per cent of mistreatment in the reference year involved a spouse/partner, 49 per cent another family member, 13 per cent a care worker and five per cent a close friend. Mistreatment varied significantly by gender (3.8 per cent of women compared to 1.1 per cent of men had experienced mistreatment), marital status (9.4 per cent of those who were separated or divorced compared to 1.4 per cent of those who were widowed) and whether the individual had a declining health status, depression and/or loneliness. Three-quarters of those asked said the effect of the mistreatment was either serious (43 per cent) or very serious (33 per cent). Full details of the report can be obtained online from the NatCen website at: www.elderabuse.org.uk/AEA%20Services/Useful%20downloads/Prevalence/ Prevalence%20Report-Full.pdf (accessed October 2011). Source: O’Keeffe et al. (2007).

Indicator 19: Denial of basic needs
Treatment of older people in health and social care. For relevant statistical evidence on malnutrition and dehydration by place, and variations in support for eating by age during hospital stays, see Tables 28, 29, 30, 31, 304, and 305.

262

Indicator 20: Spotlight statistics: Public attitudes, understanding and experiences
Age Social grade Region

Table 139: Public attitudes toward the right not to be tortured or degraded: Liberty polling exercise

Gender

Total Male 93 120 116 93% 98% 97% 93% 88% 183 260 272 178 196 96% 232 91% 122 134 192 76% 50 56 62 40 16% 12 6% 5 4% 10 5% 4 2% 4 1% 10 3% 4 1% 17 8% 11 5% 8 3% 18 8% 12 5% 7 3% 152 178 161 144 195 265 282 195 204 244 160 190 170 150 210 270 290 210 230 254 264 252 96% 238 90% 177 67% 61 23% 14 5% 8 3% 163 194 184 159 207 376 198 157 269 259 252 253 251 233 93% 224 89% 173 69% 51 20% 9 4% 13 5%

Female

1824 65+ AB C1 C2 DE Midlands

2534

3544

4554

5564

South East

North England

Wales and South West Scotland 145 144 135 94% 132 92% 102 71% 30 21% 3 2% 4 3% 91 87 82 95% 80 92% 49 57% 31 35% 2 2% 4 4% Continued

Unweighted base

1,000

434

566

Weighted base

1,000

490

510

Net: Of use at all

946

457

489

Net: Of use at all 108 148 173 156 139

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

263
87% 96% 94% 85% 85% 135 216 223 86 115 132 120 105 64% 80% 77% 58% 58% 48 45 21 32 41 35 34 23% 17% 17% 27% 27% 9 7% 3 3% 2% 3% 4 6 7 4% 3% 3% 3% 3% 4 5 5 5

95%

93%

96% 97% 95% 94% 94% 96%

Net: Vital/ important

906

434

473

Net: Vital/ important

91%

89%

93% 90% 92% 91% 92% 93%

Vital4

694

340

354

69%

69%

69% 72% 72% 70% 71% 70%

Important3

213

94

118

21%

19%

23% 18% 20% 22% 21% 23%

Useful2

40

23

17

4%

5%

3%

Unnecessary1

36

24

12

4%

5%

2%

Table 139: Public attitudes toward the right not to be tortured or degraded: Liberty polling exercise (continued)
Age Social grade Region

Gender

Total Male 4 3.50 3.76 3.72 3.40 3.41 0.81 0.55 0.59 0.85 0.89 0.06 0.03 0.04 0.07 0.06 0.04 0.70 0.74 0.05 3.66 3.57 3% 3% 1% 1% 3% * 1% 2% 4% 1% 1% 2% 3.56 0.80 0.05 5 2 1 5 1 4 4 9 3 4 5

Female

1824 65+ AB C1 C2 DE Midlands 5 3% 3.66 0.66 0.06

2534

3544

4554

5564

South East

North England

Wales and South West Scotland 1 1% 3.46 0.75 0.08

Don’t know

18

9

9

2%

2%

2%

Mean

3.59

3.56

3.63 3.59 3.67 3.62 3.60 3.60

Standard deviation

0.74

0.80

0.67 0.75 0.65 0.71 0.75 0.73

Standard error

0.02

0.04

0.03 0.08 0.05 0.05 0.06 0.06

Base: All respondents

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

264

Note: Respondents were asked the following question [several rights were actually listed and respondents’ responses to each right are shown in the relevant chapter]: ‘In modern Britain, would you say each of the following rights are vital, important, useful, or unnecessary? The right not to be tortured or degraded.’

Source: Liberty (2011).

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

Chapter notes
172

Liberty’s definition is ‘deliberate transfer of detainees to foreign countries for interrogation, in the knowledge that they may be tortured, including use of UK airspace and territory, and compliance by UK security forces’ The status of UN treaty ratification is drawn from the UN Treaty Database, www.unhchr. ch/tbs/doc.nsf/Statusfrset?OpenFrameSet (accessed 4 November 2010). The status of European treaty ratification is drawn from the Council of Europe Treaty Office website, conventions.coe.int/ (accessed 4 November 2010). When a state signs an international treaty this signals its preliminary endorsement of the treaty, it does not create a binding legal obligation. A state which ratifies or accedes to a treaty is asserting that it considers itself to be legally bound by the treaty. Ratification requires the state to have previously signed the treaty, whereas accession is a single step which does not require previous signing. It should be noted that a treaty which has been acceded to or ratified by the UK does not automatically become part of domestic law; separate legislative action is required to incorporate international law into domestic law (for example, the HRA making the ECHR enforceable in the UK). Nonetheless, ratification or accession is a state’s expression that it consents to be legally bound by the treaty, including respecting and implementing its provisions. www.icrc.org/ihl.nsf/Pays?ReadForm&c=GB cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695590&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695881&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2003/1507. html&query=Koci&method=boolean www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2003/1507. html&query=Koci&method=boolean cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695912&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=835780&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/SIAC/2010/77_2009.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695464&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695681&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696109&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695383&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051103/adam-1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697332&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=851046&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698658&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699398&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 The cases highlighted in this section are drawn from The Stern Review, beneaththewig.com/ wp-content/uploads/2011/08/Stern_Review_acc_FINAL4.pdf, pp 126-128 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696248&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

173

174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192

265

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

193 194 195 196 197 198 199

200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216

217 218 219 220 221

cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695480&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695658&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=725056&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/eu/cases/ECHR/1973/2.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697442&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2003/167.html&query=title+( +R+)+and+title+(+v+)+and+title+(+East+)+and+title+(+Sussex+)+and+title+(+County+)+and +title+(+Council+)&method=boolean www.mentalhealthlaw.co.uk/R_(B)_v_DPP_(2009)_EWHC_106_(Admin) www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699319&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696138&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=876980&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=870103&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.courtsni.gov.uk/en-GB/Judicial%20Decisions/PublishedByYear Documents/2005/2005%20NIQB%2080/j_j_GIRF5249.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=725269&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=725056&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.scotcourts.gov.uk/opinions/P739.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697485&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=852284&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071024/somerv.pdf www.taylorkelly.co.uk/prison-law/segregation/ cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=845733&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.publications.parliament.uk/pa/jt200506/jtselect/jtrights/185/185-ii.pdf The Optional Protocol of the Convention Against Torture requires that states designate an NPM to carry out visits to places of detention, to monitor the treatment of and conditions for detainees and to make recommendations regarding the prevention of ill-treatment. The UK’s NPM is currently made up of 18 visiting or inspecting bodies in the four different nations of the UK, covering all forms of detention such as prisons, police custody, immigration detention centres, children’s secure accommodation and mental health institutions. The NPM is coordinated by HMIP. www.justice.gov.uk/about/hmi-prisons/preventive-mechanism.htm www.justice.gov.uk/guidance/prison-probation-and-rehabilitation/psipso/psos.htm (accessed 3 October2011). www.publications.parliament.uk/pa/jt200708/jtselect/jtrights/65/6503.htm (accessed 3 February 2011). www.justice.gov.uk/guidance/prison-probation-and-rehabilitation/psipso/psos.htm www.legislation.gov.uk/ukpga/1967/58/section/3 (accessed 3 February 2011).

266

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252

www.homeoffice.gov.uk/publications/police/operational-policing/safer-detentionguidance?view=Binary www.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/pace-code-c (accessed 3 February 2011). www.homeoffice.gov.uk/publications/police/operational-policing/pace-codes/pace-code-h (accessed 3 February 2011). www.mentalhealthalliance.org.uk/policy/documents/LordsCtteeStage_136_Briefing.pdf (accessed 3 February 2011). www3.imperial.ac.uk/pls/portallive/docs/1/51771696.pdf www.scie.org.uk/publications/reports/report26.pdf (accessed 3 February 2011). www.scie.org.uk/publications/misc/dementia/dementia-guideline.pdf (accessed 3 February 2011). www.cambridgeshire.gov.uk/NR/rdonlyres/46979CAB-51B2-4305-B64B-E520165D56D7/0/ Restraint.pdf November 2007 (accessed 3 February 2011). www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/ DH_085476 (accessed 3 February 2011). www.scie.org.uk/publications/reports/report26.pdf, p 35 (accessed 3 February 2011). www.dhsspsni.gov.uk/restraint_and_seclusion_august_2005.pdf (accessed 3 February 2011). www.nmc-uk.org/Documents/Guidance/Guidance-for-the-care-of-older-people.pdf www.scie.org.uk/publications/guides/guide15/index.asp www.scie.org.uk/publications/elearning/restraint/index.asp Downloadable from: www.rcn.org.uk/development/practice/dignity/uk_wide_dignity_ resources/standards_and_guidance www.dignityincare.org.uk/_library/Resources/Dignity/OtherOrganisation/Walk_a_mile_in_my_ shoes.pdf www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/ DH_119969 www.mwcscot.org.uk/web/FILES/Publications/Rights_Risks.pdf www.scotland.gov.uk/Resource/Doc/273938/0081867.pdf (accessed 6 July 2010). webarchive.nationalarchives.gov.uk/20100418065544/http://www.homeoffice.gov.uk/ documents/vawg-strategy-2009/ (accessed 6 July 2010). wales.gov.uk/docs/dsjlg/publications/commsafety/100325besafefinalenv1.pdf (accessed 6 July 2010). cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695590&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695881&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2003/1507. html&query=Koci&method=boolean cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695912&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=835780&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/SIAC/2010/77_2009.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695464&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695681&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696109&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695383&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

267

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

253 254 255 256 257 258 259

260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287

www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051103/adam-1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697332&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698658&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/eu/cases/ECHR/1973/2.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697442&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2003/167.html&query=title+( +R+)+and+title+(+v+)+and+title+(+East+)+and+title+(+Sussex+)+and+title+(+County+)+and +title+(+Council+)&method=boolean www.mentalhealthlaw.co.uk/R_(B)_v_DPP_(2009)_EWHC_106_(Admin) www.parliament.the-stationery-office.co.uk/pa/ld199899/ldjudgmt/jd990324/pino1.htm www.courtsni.gov.uk/NR/rdonlyres/5E5FD8F0-33D2-4ED6-BEFC-67ACF9A371EA/0/j_j_ GIRF5249.htm www.scotcourts.gov.uk/opinions/P739.html www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071024/somerv.pdf www.justice.gov.uk/inspectorates/hmi-prisons/docs/National_Preventive_Mechanism_ Annual_report_2009-2010(web).pdf (accessed 8 February 2011). www.equalityhumanrights.com/news/2010/september/commission-advises-government-thattorture-guidance-may-breach-the-law/ www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/15202.htm (accessed 3 February 2011). www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/15203.htm www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/15205.htm www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/15205.htm www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/15205.htm www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/152/15205.htm www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/157/157.pdf www.equalityhumanrights.com/uploaded_files/humanrights/hrc13_torture_statement.pdf www.bbc.co.uk/news/uk-11762636 www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/156/156i.pdf (accessed 9 November 2011). www2.ohchr.org/english/bodies/crc/docs/AdvanceVersions/CRC.C.GBR.CO.4.pdf daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/555/92/PDF/N0955592.pdf?OpenElement www.taylorkelly.co.uk/prison-law/slopping-out/ (accessed 25 January 2011). www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-42.pdf, p 82. www.reprieve.org.uk/2010_01_27_un_report www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-42.pdf (accessed 15 February 2011). download.cabinetoffice.gov.uk/intelligence/pm-letter-gibson.pdf (accessed 15 February 2011). www.mi5.gov.uk/output/intelligence-and-security-committee-special-reports.html (accessed 3 October 2011). www.statewatch.org/news/2007/jul/uk-intel-sec-cttee-rendition-prel.pdf (accessed 15 February 2010). www.justice.gov.uk/inspectorates/hmi-prisons/docs/National_Preventive_Mechanism_ Annual_report_2009-2010(web).pdf (accessed 8 February 2011). www.justice.gov.uk/inspectorates/hmi-prisons/docs/HMIP_AR_2008-9_web_published_rps.pdf (accessed 10 February 2011).

268

The Prohibition on Torture and Inhuman or Degrading Treatment or Punishment – HRA, Article 3

288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310

Ibid, p 24. www.scottish.parliament.uk/business/research/pdf_res_notes/rn00-34.pdf www.audit-scotland.gov.uk/docs/central/2008/nr_080508_prisoner_numbers.pdf webarchive.nationalarchives.gov.uk/+/http://www.imb.gov.uk/docs/In-Cell_Sanitation_Report_ V2_Aug_10.pdf (accessed 18 October 2011). www.acpo.police.uk/documents/edhr/2010/201010EDHREHR01.pdf (accessed 10 February 2011). beneaththewig.com/wp-content/uploads/2011/08/Stern_Review_acc_FINAL4.pdf www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/ dh_102981.pdf (accessed 27 June 2011). caredirectory.cqc.org.uk/_db/_documents/1-116865865_Castlebeck_Care_(Teesdale)_Ltd_1138702193_Winterbourne_View_RoC_20110517_201107183026.pdf, p 5 (accessed 20 July 2011). www.ombudsman.org.uk/__data/assets/pdf_file/0016/7216/Care-and-Compassion-PHSO0114web.pdf (accessed 9 November 2011). www.cqc.org.uk/newsandevents/newsstories.cfm?widCall1=customWidgets.content_ view_1&cit_id=37384 (accessed 5 July 2011). www.unhcr.org/refworld/docid/4ce139192.html, pp 35-6 (accessed 15 February 2011). www.amnesty.org/en/library/info/EUR45/015/2010/en www.amnesty.org/en/library/info/EUR01/012/2010/en www.amnesty.org/en/library/asset/EUR45/001/2010/en/6b65c47e-c1a1-42e6-b382eae6a948b42a/eur450012010en.pdf (accessed 15 February 2011). www.reprieve.org.uk/static/downloads/2009_11_09REPORTONSCOTTISHINVOLVEME NT.__.pdf (accessed 16 February 2011). www.elderabuse.org.uk/AEA%20Services/Useful%20downloads/Prevalence/Prevalence%20 Report-Full.pdf (accessed 27 June 2011). www.ageuk.org.uk/Documents/EN-GB/ID9489%20HTBH%20Report%2028ppA4. pdf?dtrk=true, p24 (accessed 5 July 2011). www.stonewall.org.uk/documents/sexual_orientation_hate_crimes_paper.pdf (accessed 17 March 2011). www.spectrum-lgbt.org/downloads/reports/equality_review_trans.pdf www.gires.org.uk/assets/Medpro-Assets/GenderVarianceUK-report.pdf www.bbc.co.uk/programmes/b011pwt6 (accessed 5 July 2011). www.cqc.org.uk/newsandevents/pressreleases.cfm?cit_id=37463&FAArea1=customWidgets. content_view_1&usecache=false (accessed 20 July 2011). www.elderabuse.org.uk/AEA%20Services/Useful%20downloads/Prevalence/Prevalence%20 Report-Full.pdf

269

Chapter 7
The Right to Liberty and Security of the Person (Human Rights Act, Article 5)

Please read Part II Guidance on using and interpreting the Human Rights Measurement Framework first.

7

The Right to Liberty and Security of the Person (Human Rights Act (HRA), Article 5)

Panel and indicators
Effective and speedy review of deprivation of liberty by courts Other

Protection of the right to liberty and security of the person by the state, its agents or bodies fulfilling a public function Administrative

Indicators

Exercise of powers of arrest and/or detention

Police and criminal justice system

The Right to Liberty and Security of the Person – HRA, Article 5

Structural (indicators of ‘commitment in principle’)

Indicator 21: Legal and constitutional framework • Protection of the right to liberty and security of the person in domestic law (including constitutional/‘higher’ law) • Status of ratification of relevant international treaties

Indicator 22: Legal precedents, gaps and standard-setting • Principles established in key cases (domestic and ECHR) and international standard-setting processes • Gaps in protection and non-implementation of legal judgements and recommendations

272

Process (indicators of ‘steps taken’ – including legal, regulatory and public policy measures)

Indicator 23: Regulatory framework • Key regulators, inspectorates, ombudsmen and other mechanisms for complaints handling • Relevant responsibilities and powers, national minimum standard frameworks and inspection/complaints-handling criteria

Indicator 24: Public policy framework • Primary law • Codes and guidance (for example, training, guidance and strategies provided to military, police, medical and other personnel who have powers of detention, Police and Criminal Evidence Act 1984 (PACE)) • Other relevant policies, plans, targets and goals • Spotlight resource allocations

Outcome (indicators of the position of individuals and groups in practice/ emergence of a human rights ‘culture’)

Indicator 25: Outcomes of key judicial, regulatory and investigative processes • The right to liberty and security of the person: Case law outcomes • Detention covering formal and informal detention mechanisms: Judicial review of deprivation of liberty (the number of cases where the right of appeal has overturned a decision to detain using deprivation of liberty safeguards (England and Wales) and outcomes for other bodies for example, parole boards, mental health review tribunals, asylum and immigration tribunals. Also extraterritorial dimensions – detention in an armed forces context and where the UK’s armed forces are in effective control • Key concerns raised by human rights monitoring bodies • Outcomes of inspection, regulation and complaints procedures that engage Article 5 • Outcomes of independent inquiries and investigations that engage Article 5 • Wrongful convictions and criminal appeals • Key allegations by private individuals and civil society organisations/reports in the media

273

Indicator 26: Spotlight statistics: Deprivation of liberty – custodial context • Criminal cases – decisions on bail/remand: timings, number of applications granted/refused • Numbers held in detention pre-charge for over 24 and 48 hours, including numbers eventually released and charged • Use of informal detention powers • Number of applications for compensation and percentage of successful applications for compensation for deprivation of liberty • Numbers released on bail by the court after arrest, having initially being denied bail by the police • Length of time from charge to eventual determination of case, for those in custody and on bail

The Right to Liberty and Security of the Person – HRA, Article 5

Indicator 27: Spotlight statistics: Deprivation of liberty – noncustodial context • Use of Anti-Social Behaviour Orders (ASBOs), control orders, bind-overs, house detention and other noncustodial measures and administrative orders(NB Intro Terrorism Prevention and Investigation Measures ) • Numbers held in detention following breach of the above • Exercise of stop and search powers: Administrative source (broken down by powers/legislation) and general population source for prevalence, numbers of subsequent arrests/charges and convictions • Number of substantiated complaints made to the Independent Police Complaints Commission (IPCC) due to a breach of PACE (England and Wales) • Containment/kettling • Awards of damages for unlawful arrest/detention(includes criminal justice, police, prisons, health)

Panel and indicators (continued)

‘Outcome’ (indicators of the position of individuals and groups in practice/ emergence of a human rights ‘culture’)

Indicator 28:Spotlight statistics: Administrative detention – mental health detention and issues of capacity/consent • Number of people detained or sectioned under the Mental Health Act/Mental Health (Care and Treatment)(Scotland) Act • Consent status of those in mental health or learning difficulties services • Number of people resident in a care home or hospital as a result of the deprivation of liberty safeguards (England and Wales) • Variations in the routes to mental health and learning difficulties institutions

Indicator 29: Spotlight statistics: Detention within the asylum and immigration system • Numbers entering and leaving immigration and asylum detention centres (with separate reporting for children and young people)

Indicator 30: Spotlight statistics: Public attitudes, understanding and experiences • Public attitudes towards the right to liberty and security of the person as a right ‘you do have’ and ‘you should have’

The Right to Liberty and Security of the Person – HRA, Article 5

Indicators should be systematically disaggregated Key disaggregation characteristics include ethnicity/race, gender, disability, sexual orientation, transgender, religion and belief, age, social class, area (region, urban/rural, remoteness) with separate reporting of the non-private household population and at risk/vulnerable groups including individuals staying in/resident/detained in public and private institutions; individuals living in poverty; refugees/asylum seekers, vulnerable children and young people (for example, children in need, ‘looked after children’, children who are carers), Gypsies and Travellers, etc.

274

The Right to Liberty and Security of the Person – HRA, Article 5

Evidence base
Structural indicators Indicator 21: Legal and constitutional framework
Table 140: Protection of the right to liberty and security of the person (including constitutional/‘higher’ law) • UK HRA, Article 5. Table 141: Status of ratification of relevant international treaties311 • • • • International Covenant on Civil and Political Rights (ICCPR) Article 9 – ratified. ICCPR First Optional Protocol – not ratified (individual complaints mechanism). ECHR and Protocols 1, 2, 3, 5, 6, 8, 10, 11, 13 and 14 – ratified. Convention on the Rights of the Child – ratified.

Indicator 22: Legal precedents, gaps and standard-setting
Table 142: Principles established in key cases (domestic and ECHR) Detention must have a clear legal basis and must be proportionate • S v Miller (No 2) [2001] SLT 1304 – The Court ruled that a secure accommodation order made under the Children (Scotland) Act 1995, following upon determination that a child had committed an offence, was regarded as falling under the heading of ‘educational supervision’, thus emphasising that juvenile justice proceedings are considered to be essentially welfare rather than criminal in nature (Miller et al., 2004).312

Entitlement to have detention reviewed by a court or independent tribunal. • Brogan v UK no. 11209/84 [1988] ECHR313 – the European Court of Human Rights found that under Article 5, prompt appearance before a court requires periods of detention to be reviewed by a judicial officer before they are reviewed and extended by a member of the executive. Stafford v UK (GC) no. 46295/99 [2002] ECHR314 – The European Court of Human Rights determined that once the penal element of a life sentence had been served, namely the minimum term set by the court at sentence, detention must and can only then be justified on the grounds of ongoing danger to the public; risk of further violent offending. Whether or not such a justification existed must be determined by a judicial body. Detention could not be justified on the grounds of a risk of nonviolent reoffending.

275

The Right to Liberty and Security of the Person – HRA, Article 5

Right of review of lawfulness of deprivation of liberty; requirement for ‘speedy’ review • De Wilde Ooms and Versyp v Belgium nos. 2832/66, 2835/66, 2899/66 [1971] ECHR315 – The European Court of Human Rights found a violation of Article 5.4 as the applicants had no remedy open to them before a court against the decisions ordering their detention. HL v UK no. 45508/99 [2004] ECHR316 – The European Court of Human Rights found that there had been a violation of Article 5.1 as regards the lack of protection against arbitrary detention; and that the applicant had not had available to him a procedure which satisfied the requirements of Article 5.4. Sanchez-Reisse v Switzerland no. 9862/82 [1986] ECHR317 – The European Court of Human Rights found that there had been a violation of Article 5.4 on account of the failure to take decisions ‘speedily’. The court noted that the requirement for decisions to be taken speedily cannot be defined in abstract, and must be determined in light of the circumstances of each case.

Deprivation of liberty and access to bail • Caballero v UK no. 32819/96 [2000] ECHR318 – The European Court of Human Rights found that the removal of right to bail constituted a violation of Article 5.

Detention of people on mental health grounds • R v Mental Health Review Tribunal, North and East London Region, ex parte H [2001] EWCA Civ 415319 – The Court of Appeal reversed the burden of proof to the effect that it is for the mental health review tribunal to discharge a patient if it cannot be shown that they are currently suffering from a mental disorder which warrants detention – otherwise there is a breach of Article 5(1)(e) and the need for detention in accordance with a procedure prescribed by law. Anderson v Scottish Ministers (Scotland) [2001] UKPC D5320 – The Privy Council upheld the provisions of the Mental Health Public Safety and Appeals (Scotland) Act 1999 against a challenge that they were beyond the competence of the Scottish Parliament because they were inconsistent with Article 5. The Act provides for the continuing detention of people in hospital where the Scottish ministers are satisfied that detention is necessary to protect the public from serious harm (Miller et al., 2004).321

276

The Right to Liberty and Security of the Person – HRA, Article 5

HL v the UK no. 45508/99 [2005] ECHR322 (the Bournewood Case) – The European Court of Human Rights found that the practice of informal admission of compliant but incapacitated adults was, de facto, detention but without recourse to the protection set out in mental health law for formally detained patients. This practice was not ‘in accordance with a procedure described by law’’ and thus breached Article 5. The Court distinguished between the doctrine of necessity which applies only in an emergency and de facto detention beyond the period which can strictly be called an emergency – where the procedural safeguards that apply to formal detention should be accorded.

Care arrangements and deprivations of liberty • RK & YB v BCC [2010] EWHC 3355 (COP) (Fam)323 – In a case determining whether the placement in a care home of a 17½ year old with severe disabilities constituted a deprivation of liberty, the High Court held that there was no deprivation of liberty, either on the facts, or as a matter of law. Where a child is placed under Section 20 of the Children’s Act 1989 and the parents have a right under Section 20(8) of the Children’s Act 1989 to refuse consent to the placement, there can be no deprivation of liberty.

Stop and search • R (on the application of Gillan) v Secretary of State for the Home Department [2004] EWCA Civ 1067324 – The Court of Appeal found that the power to stop and search under terrorism legislation did not generally involve a deprivation of liberty. However, the European Court ruled in Gillan and Quinton v UK no. 4158/05 [2010] ECHR325 that the coercive element of the search was indicative of deprivation of liberty.

Policing of protests • Austin v Commissioner of Police for the Metropolis [2009] UKHL 5326 – In a case concerning the police tactic of ‘kettling’, the House of Lords considered the dividing line between ‘deprivation’ of liberty and ‘restriction of liberty’, determining that Article 5 only protects the former. The House of Lords found that the use of the tactic of ‘containment’ by the police in respect of policing demonstrations did not engage Article 5 as it was not a deprivation’ of liberty. The House of Lords emphasised that whether or not a situation amounted to a deprivation of liberty as opposed to a restriction of movement was a matter of degree and intensity and was highly fact-sensitive. See also R (on the application of Joshua Moos and Hannah McClure v Commissioner of the Police for the Metropolis [2011] EWHC 957 (Admin).327

277

The Right to Liberty and Security of the Person – HRA, Article 5

Control orders – deprivation of liberty aspects • Secretary of State for Home Department v JJ & Others [2007] UKHL 45328 – The House of Lords found that the terms of a control order were ‘incompatible with the individual’s right to liberty under Article 5’ – ‘The effect of the 18-hour curfew, coupled with the effective exclusion of social visitors, meant that the controlled persons were in practice in solitary confinement for this lengthy period every day for an indefinite duration, with very little opportunity for contact with the outside world, with means insufficient to permit provision of significant facilities for selfentertainment and with knowledge that their flats were liable to be entered and searched at any time…. Their lives were wholly regulated by the Home Office, as a prisoner’s would be, although breaches were much more severely punishable.’ A & others v UK (GC) no. 3455/05 [2009] ECHR329 – The European Court of Human Rights found that the applicants had been unlawfully detained in breach of their rights under Article 5. The European Court of Human Rights also found that the use of special advocates, closed hearings and lack of full disclosure in the proceedings before a special immigration appeals commission did not enable the applicants to effectively address the charges against them, in breach of the requirements of Article 5.4.

Non-discrimination • A & others v UK (GC) no. 3455/05 [2009] ECHR330 – The European Court of Human Rights held that the detention of foreign terror suspects under a derogating measure permitting their indefinite detention discriminated unjustifiably between nationals and non-nationals in breach of Article 5.1 [Note: this is a leading case on liberty and non-discrimination].

Sentencing • Thynne, Wilson and Gunnell v UK nos. 11787/85; 11978/86; 12009/86 [1990] ECHR331 – The European Court of Human Rights held that there must be periodic reviews of the lawfulness of detention during the post-tariff (minimum term) stage of a life sentence, which was later also recognised to be necessary in cases of mandatory life sentenced prisoners (see Stafford v UK, above). Also in the case of R (on the application of Sim) v Parole Board & Anor [2003] EWHC 152 Admin332 it was found that in cases of extended sentences where a person is detained on the grounds of ongoing dangerousness there must, likewise, be periodic reviews.

Jurisdiction • R (on the application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58333 – The House of Lords found that where British forces were detaining people overseas, they had to ensure that the detainees’ rights under the ECHR were not infringed.

278

The Right to Liberty and Security of the Person – HRA, Article 5

Table 143: Principles established in international standard setting processes • UNHRC General Comment 8334 – Applicable to all deprivations of liberty, including mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc. Some provisions of Article 9 are only applicable to those against whom a criminal charge has been made. However, the right to control by a court of the legality of detention is applicable to all. Preventative detention for reasons of public security must not be arbitrary and must be subject to legal and procedural controls.

ASBOs • The United Nations Committee on the Rights of the Child (UNCRC) expressed concern at ‘the application to children of the Anti-Social Behaviour Orders (ASBOs), which are civil orders posing restrictions on children’s gathering, which may convert into criminal offences in case of their breach. The Committee is further concerned: – At the ease of issuing such orders, the broad range of prohibited behaviour and the fact that the breach of an order is a criminal offence with potentially serious consequences; – That ASBOs, instead of being a measure in the best interests of children, may in practice contribute to their entry into contact with the criminal justice system; – That most children subject to them are from disadvantaged backgrounds.’335 The UNCRC recommended that the UK conduct an independent review of ASBOs, with a view to abolishing their application to children. Table 144: Gaps in legal protection Individual complaint under ICCPR First Optional Protocol. Table 145: The right to right to liberty and security of the person – nonimplementation of legal judgments and recommendations • Gillan and Quinton v UK no. 4158/05 [2010] ECHR336 – The European Court of Human Rights found that stop and search powers under Section 44 of the Terrorism Act 2000 were too broadly drawn and there were inadequate protections against abuse. The legislation is currently under review by the UK Government.337

279

The Right to Liberty and Security of the Person – HRA, Article 5

Process indicators Indicator 23: Regulatory framework
Table 146: List of key regulators, inspectors, complaint handling mechanisms, etc. • • • • • • • • • • • IPCC Police Complaints Commissioner for Scotland (PCCS) Care Quality Commission (CQC) (detention under the Mental Health Act) Authorisation of Deprivation of Liberty Safeguards Court of Protection (England and Wales) Office of the Public Guardian Criminal Cases Review Commission Scottish Criminal Cases Review Commission Parole Board for England and Wales National Mental Health Development Unit Independent Mental Health Advocacy services

Indicator 24: Public policy framework
Table 147: The right to the right to liberty and security of the person – policy guidance and training guidelines • • • Police and Criminal Evidence Act 1984 and PACE Code of Practice338 – PACE Code A Stop and Search (updated 6 March 2011). Mental Capacity Act 2005: Deprivation of liberty safeguards339 – Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice. Mental Health (Care and Treatment) (Scotland) Act 2003340 – Code of Practice.

280

The Right to Liberty and Security of the Person – HRA, Article 5

Outcome indicators Indicator 25: Outcomes of key judicial, regulatory and investigative processes
Table 148: Violations of the right to liberty and security of the person: case law outcomes Detention must have a clear legal basis and must be proportionate • S v Miller (No 2) [2001] SLT 1304341 – No violation of Article 5 (see Table 142).

Entitlement to have detention reviewed by a court or independent tribunal • • Brogan v UK no. 11209/84 [1988] ECHR342 – Violation of Articles 5.3 and 5.5; no violation of Articles 5.1 and 5.4 (see Table 142). Stafford v UK (GC) no. 46295/99 [2002] ECHR343 – Violation of Articles 5.1 and 5.4 (see Table 142).

Right of review of lawfulness of deprivation of liberty; requirement for ‘speedy’ review • HL v UK no. 45508/99 [2004] ECHR344 – Violation of Articles 5.1 and 5.4 (see Table 142).

Deprivation of liberty and access to bail • Caballero v UK no. 32819/96 [2000] ECHR345 – Violation of Articles 5.3 and 5.5 (see Table 142).

Detention of people on mental health grounds • R v Mental Health Review Tribunal, North and East London Region, ex parte H [2001] EWCA Civ 415346 – Violation of Article 5.1(e) as there is a need for detention to be in accordance with a procedure prescribed by law (see Table 142). Anderson v Scottish Ministers (Scotland) [2001] UKPC D5347 – No violation of Article 5 (see Table 142).

Care arrangements and deprivations of liberty • RK & YB v BCC [2010] EWHC 3355 (COP) (Fam)348 – No deprivation of liberty (see Table 142).

281

The Right to Liberty and Security of the Person – HRA, Article 5

Stop and search • R (on the application of Gillan) v Secretary of State for the Home Department [2004] EWCA Civ 1067349 – The power to stop and search under terrorism legislation did not generally involve a deprivation of liberty. However, Gillan and Quinton v UK no. 4158/05 [2010] ECHR350 – Whilst noting that the coercive element of the search was indicative of deprivation of liberty the European Court of Human Rights did not make a ruling on Article 5; however,it ruled that the stop and search measures were a violation of Article 8 (see Indicator 22 and Table 142).

Policing of protests • • Austin v Commissioner of Police for the Metropolis [2009] UKHL 5351 – The containment of protesters was held to be lawful (see Indicator 22 and Table 142). R (on the application of Joshua Moos and Hannah McClure v Commissioner of the Police for the Metropolis [2011] EWHC 957 (Admin)352 – The Court found that the containment of the Climate Camp and the pushing operation to move the crowd were not lawful police operations (see Indicator 22 and Table 142).

Control orders – deprivation of liberty aspects • Secretary of State for Home Department v JJ & Others [2007] UKHL 45353 – The terms of a control order were ‘incompatible with the individual’s right to liberty under Article 5’ (see Indicator 22 and Table 142).

Non-discrimination • A & others v UK (GC) no. 3455/05 [2009] ECHR354 – Violation of Articles 5.1), 5.4 and 5.5 (see Indicator 22 and Table 142).

Sentencing • • Thynne, Wilson and Gunnell v UK nos. 11787/85; 11978/86; 12009/86 [1990] ECHR355 – Violation of Articles 5.4 and 5.5 (see Table 142). R (Sim) v Parole Board & Anor [2003] EWHC 152 Admin356 – No violation of Article 5 (see Table 142).

Jurisdiction • R (on the application of Al-Jedda) v Secretary of State for Defence [2007] UKHL 58357 – No violation of Article 5.1 (see Table 142).

282

The Right to Liberty and Security of the Person – HRA, Article 5

Table 149: Key concerns raised by human rights monitoring bodies Domestic • Joint Committee on Human Rights (JCHR) (2010c), Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing human rights back in358, 9 March 2010, documented concerns about the implementation of counter-terrorism policy including the use of secret evidence, control orders and pre-charge detention. The report noted the JCHR’s ‘longstanding concerns that the current arrangements for judicial authorisation of extended pre-charge detention are not compatible with the right to a judicial determination of the lawfulness of detention and will lead in practice to breaches of the right to liberty in Article 5 ECHR in individual cases.’ The JCHR recommended that: ‘(1) Schedule 8 of the Terrorism Act 2000 is amended to make clear that the extension judge must apply an evidential test when deciding whether or not to extend pre-charge detention; and (2) Code H of the PACE Codes of Practice be amended to explain to police why Article 5 ECHR is relevant to extensions of pre-charge detention and what its requirements are, and to make clear that continued detention of terrorism suspects is likely to become unlawful if the suspects are not told clearly the offences they are suspected of committing and the reasons for the suspicions leading to their arrests.’ • JCHR (2009), Children’s Rights359, October 2009, noted its concerns about the high numbers of children in detention in the UK: ‘We would like to see a real reduction in the numbers of children being detained in the UK each year. There is a lack of clarity about the trends in the incidence of child detention, both on remand and sentenced. We are also concerned that some very vulnerable children are significantly more likely to be detained than others. We urge the Government to comply fully with its obligations under the Convention, in particular to ensure that custody is only used as a measure of last resort and to address the reasons for the over-representation of certain groups of children in detention.’ JCHR (2010a), Legislative Scrutiny: Crime and Security Bill; Personal Care at Home Bill; Children, Schools and Families Bill. Twelfth Report of Session 2009-10360, recommended that specific guidance be introduced on the use of stop and search powers in relation to children. Mental Welfare Commission for Scotland, Autonomy, benefit and protection. How human rights can protect people with mental health conditions or learning disabilities from unlawful deprivation of liberty361, argued that the establishment of a human rights culture ‘could help ensure that respect for dignity and autonomy becomes embedded in care practice’.

283

The Right to Liberty and Security of the Person – HRA, Article 5

International • The UNCRC expressed concern ‘that: – As also acknowledged recently by the Human Rights Committee,asylumseeking children continue to be detained, including those undergoing an age assessment, who may be kept in detention for weeks until the assessment is completed; – There is a lack of data on the number of children seeking asylum; – There is no independent oversight mechanism, such a guardianship system, for an assessment of reception conditions for unaccompanied children who have to be returned; – Section 2 of the 2004 Asylum and Immigration Act permits the prosecution of children over the age of 10 if they do not possess valid documentation upon entry to the United Kingdom’.362 • UNHRC (2010), Joint study on global practices in relation to secret detention in the context of countering terrorism, of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-Chair, Shaheen Sardar Ali; and the Working Group on enforced or involuntary disappearances represented by its chair, Jeremy Sarkin, 19 February 2010363, detailed allegations that the UK knowingly took advantage of the situation of secret detention, including in the cases of including Binyam Mohamed, Salahuddin Amin, Zeeshan Siddiqui, Rangzieb Ahmed and Rashid Rauf.364 Reprieve notes that the report includes: – ‘Confirmation that the UK knew about US renditions practices from 2002, yet continued to hand vulnerable prisoners to US custody with no process until well into 2004; – Confirmation that the UK knowingly received information obtained from prisoners being interrogated in US ghost detention; – Numerous cases showing that the UK took advantage of illegal secret detention practices over at least three continents by colluding in torture; – Unanswered questions in relation to the number of prisoners held by torturous Arab regimes at the request of the UK.’365 See Table 83 for further details.

284

The Right to Liberty and Security of the Person – HRA, Article 5

Disproportionate detention by ethnicity • HM Inspectorate of Prisons (HMIP) Youth Justice Board (2008), Children and Young People in Custody 2006-2008, noted that the ‘disproportionate representation of black and minority ethnic young people in custody had worsened: 29% of young men and 23% of young women were from black and minority ethnic backgrounds’.366

Table 150: Outcomes of inspection, regulation and complaints procedures that engage Article 5 • The Independent Review of Counter-Terrorism Legislation – Lord Carlile’s Operation Pathway Report Following Review (Carlile, 2009)367, November 2009. The JCHR (2010b) noted that the report, incorporating a detailed review of the way in which the procedures for extending pre-charge detention operated in practice, ‘confirms many of our concerns about the adequacy of the safeguards in that process and the risk of breaches of Article 5 ECHR unless the procedures are reformed to ensure that suspects are told clearly the offences they are suspected of having committed and the reasons for the suspicions leading to their arrest’.368 The report’s recommendations include: – that the police and the Crown Prosecution Service (CPS) should take immediate steps to ensure that their procedures reflect the need for legal advice to the police at an early stage – expert CPS lawyers should be informed, well before arrests take place, of ongoing inquiries likely to result in arrests, and asked to advise on the state of the intelligence, information and evidence as the inquiry progresses and – all police officers involved in counter-terrorism policing should be trained in the law of arrest and its potential effect on detentions under the Terrorism Act – there should be better recording of custody officers’ reviews and their decisions – consideration should be given to amending the Terrorism Act 2000 to allow the granting of bail by a judge for a period up to the 28th day following arrest, subject to the full range of conditions available in general crime and in relation to control orders.

285

The Right to Liberty and Security of the Person – HRA, Article 5

The Government’s Review of Counter-Terrorism and Security Powers. Review Report and Recommendations369 was presented to parliament in January 2011 (HM Government, 2011). The review considered six key counter-terrorism and security powers, and found that in some areas our counter-terrorism and security powers are neither proportionate nor necessary’. The recommendations included a return to 14 days as the standard maximum period that a terrorism suspect can be detained before they are charged or released; an end to the indiscirminate use of terrorism stop and search powers provided under Section 44 of the Terrorism Act 2000; and the end of control orders and their replacement with a less intrusive and more focused regime (p 5). Mental Health Commission Report (2009), Coercion and Consent. Monitoring the Mental Health Act 2007-2009370, 2009, detailed a number of issues and recommendations in relation to the detention of patients under the Mental Health Act. CQC (2010d), Monitoring the use of the Mental Health Act in 2009/10. The Care Quality Commission’s first report on the exercise of its functions in keeping under review the operation of the Mental Health Act 1983371, included the CQC’s finding on three key areas: use of control, restraint and seclusion; consent to treatment; and community treatment orders.

For further relevant evidence under this Indicator see Table 78. Table 151: Key concerns and allegations raised by private individuals and civil society organisations/reports in the media Liberty • Liberty (July 2010), Terrorism pre-charge detention. Comparative law study372, noted that ‘Detaining people for 28 days without charge inevitably leads to injustice, and undermines our ability to fight terrorism by winning hearts and minds. It also flies in the face of the British tradition of liberty and justice. This report presents comparative evidence to show that 28 day pre-charge detention is unnecessary’.

Amnesty International • Amnesty International (2010a), Europe: Open Secret: Mounting Evidence of Europe’s Complicity in Rendition and Secret Detention, November 2010, detailed a number of ‘notorious cases of alleged abuse’ involving the UK (see Table 86 for details). Amnesty International (2010b), Submission for the Review of Counter Terrorism and Security Powers, September 2010, outlined Amnesty International’s primary concerns in relation to the control orders regime; the use of diplomatic assurances in the context of national security deportations; the 28 day limit for pre-charge detention of people suspected of terrorism-related activity; and the use of stop and search powers under Section 44 of the Terrorism Act 2000.373

286

The Right to Liberty and Security of the Person – HRA, Article 5

Indicator 26: Spotlight statistics: Deprivation of liberty – Custodial context
Table 152: Average waiting times in the crown court for cases committed for trial1 by remand status, weeks,England and Wales, 2005-092
Remand status3 Year 2005 2006 2007 2008 2009 Custody 13.1 14.0 12.8 12.4 12.3 Bail 17.1 18.4 18.2 17.2 17.0 All cases4 15.7 16.9 16.3 15.4 15.4

Source: Ministry of Justice (MoJ) (2010f). Notes: 1 From committal by magistrates’ courts to the start of the main crown court hearing. 2 The use of different counting rules impacts on the tables issued in previous editions of criminal statistics and means that the data for earlier years are not directly compatible. 3 The defendant’s remand status at the start of the first crown court hearing. 4 Excludes bench warrant issued, no plea recorded, indictment to lie on file, found unfit to plead, and other. Table 153: Defendants proceeded against at magistrates’ courts – average time for criminal cases from offence to completion by offence type, England and Wales, 2005-09
Offence type Indictable offences (including triable either way) 2005 2006 2007 2008 2009 122 123 118 112 111 Average number of days

Source: MoJ (2010j). Notes: See the original data source for details of changes in survey methodology affecting the consistency and interpretation of the data in this table.

287

Table 154: Population in prison establishments, by type of custody, sentence length and gender: total for age group 15-17 year olds, England and Wales, 2002-2008
2003 Male 2,176 452 316 136 1,724 0 401 251 923 134 15 0 1 1 1 1 15 0 4 139 5 143 17 3 37 871 25 886 30 1 0 2 4 265 9 254 3 254 911 138 43 1 11 416 19 481 21 468 13 6 29 1 1 0 0 0 0 0 0 0 0 57 1,706 58 1,780 55 1,814 50 1,827 0 457 258 923 120 69 2 8 169 9 145 4 188 5 164 12 322 10 326 11 367 14 361 20 491 18 471 15 555 19 525 19 14 5 56 0 20 3 26 4 3 0 78 2,198 77 2,254 72 2,370 70 2,354 75 2,456 580 360 219 1,876 0 467 277 906 144 81 1 Female Male Female Male Female Male Female Male Female Male 2004 2005 2006 2007 2008 Female 70 14 6 8 57 0 20 7 24 6 0 0

2002

Male 115 13 5 8 103 0 22 20 55 5 1 0

Female

Total 15-17 year olds in prison, of which:

2,477

Remand

490

Untried

304

Convicted unsentenced

186

Under sentence

1,986

The Right to Liberty and Security of the Person – HRA, Article 5

Fine defaulter

0

Less than or equal to 6 months

413

288

Greater than 6 months to less than 12 months

282

12 months to less than 4 years

1,105

4 years or more (excluding Indeterminate)

159

Indeterminate sentences

27

Non-criminal prisoners

1

Source: MoJ (2008b), derived from Table 7.1.

Notes:

1 Data sources and quality: These figures have been drawn from administrative IT systems. Care is taken when processing and analysing the returns, but the detail collected is subject to the inaccuracies inherent in any large scale recording system, and so although shown to the last individual, the figures may not be accurate to that level. See Technical appendix of report for fuller information.

The Right to Liberty and Security of the Person – HRA, Article 5

Table 155: Number of children accommodated in secure children’s homes 2002-2010 by gender, age, length of stay, and type of placement
Coverage: England only numbers At 31 March Number of places approved Number of children accommodated Occupancy rate (%) Number of places contracted to Youth Justice Board Gender Male Female Age Aged under 12 Aged 12 Aged 13 Aged 14 Aged 15 Aged 16 Aged 17 Aged 18 and over x x 65 105 125 70 20 0 x 15 65 120 125 65 x 0 5 25 60 130 100 60 15 0 10 20 40 120 100 50 5 x x 10 40 100 90 45 10 0 x x 35 95 90 55 5 0 x x 35 90 90 40 10 0 0 5 30 95 80 45 15 0 x 5 30 65 85 35 15 0 0 x 19 43 68 56 x 0 285 115 275 125 270 130 215 130 190 105 195 90 175 90 175 100 145 95 134 68 2002 425 2003 425 2004 435 2005 385 2006 370 2007 370 2008 325 2009 320 2010 295 2011 292

395

400

400

345

300

290

265

275

240

202

93

94

92

90

80

78

81

85

80

69

235

230

270

220

220

220

210

205

175

173

Continued

289

The Right to Liberty and Security of the Person – HRA, Article 5

Table 155: Number of children accommodated in secure children’s homes 2002-2010 by gender, age, length of stay, and type of placement (continued)
Coverage: England only numbers At 31 March Length of stay Under 1 month 1 to < 3 months 3 to < 6 months 6 to < 12 months 12 to < 24 months 24 months or more Type of placement Child detained or sentenced and placed by the Youth Justice Board Child placed by local authority in a criminal justice context Child placed by local authority on welfare grounds 90 130 90 65 x x 100 120 65 90 x x 90 130 110 50 20 x 90 115 85 45 15 x 85 85 70 45 10 x 85 90 65 35 15 x 60 105 50 40 10 x 65 95 65 40 10 0 50 80 50 45 15 x 41 71 47 28 x x 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011

..

..

..

..

..

180

180

160

115

129

..

..

..

..

..

30

20

25

30

13

..

..

..

..

..

75

60

90

95

60

Source: Department for Education (2011c) www.education.gov.uk/rsgateway/DB/SFR/ s001027/index.shtml (accessed 21 September 2011). Notes: .. Unavailable. Collected for the first time in 2007. For 2010 and earlier: x represents less than or equal to 5 Numbers have been rounded to the nearest 5 For 2011: x represents a number between 1 and 5 inclusive To protect the number, secondary suppression may be required in some cases.

290

The Right to Liberty and Security of the Person – HRA, Article 5

Indicator 27: Spotlight statistics: Deprivation of liberty – Noncustodial context
Table 156: Stop and search of people under Section 1 of PACE, and other legislation, (total numbers and per 1,000 population) by self-defined ethnicity, England and Wales, 2007-08
Self-defined ethnicity White British Irish Other Mixed White and Black Caribbean White and Black African White and Asian Other Asian or Asian British Indian Pakistani Bangladeshi Other Black or Black British Caribbean African Other Chinese or other Chinese Other Not stated Total 15 49 -22 3,028 9,814 72,388 1,035,438 121 88 380 62,694 39,008 33,587 20 42 61 95 19,011 27,420 15,781 21,172 62 35 15 53 13,530 2,557 2,581 7,594 16 12 39 649,424 7,217 48,632 Per 1,000 population Number

Source: MoJ (2009a), Tables 4.1b and 4.2b. Notes: 1 Refers to the Metropolitan Police (but includes the City of London). 2 Caution should be exercised when using these per 1,000 population figures as they rely on estimates of the black and minority ethnic (BME) population based on the ethnicity breakdown of the population from the 2001 census.

291

The Right to Liberty and Security of the Person – HRA, Article 5

Table 157: Percentage of stop and search under Section 1 of PACE and other legislation resulting in an arrest, ethnic appearance, England and Wales, 2006-07 – 2007-08
Ethnic appearance of person searched White 2006-07 2007-08 Black 2006-07 2007-08 Asian 2006-07 2007-08 Other 2006-07 2007-08 Total1 2006-07 2007-08 12 11 14 13 10 10 12 12 12 12 Stop and searches (%)

Source: MoJ (2009a), Table 4.4a. Notes: 1 Includes cases where ethnicity is unknown.

292

The Right to Liberty and Security of the Person – HRA, Article 5

Table 158: Percentage of stop and search under Section 1 of PACE and other legislation resulting in an arrest, by self-defined ethnicity, England and Wales, 200708
Self-defined ethnicity White British Irish Other Mixed White and Black Caribbean White and Black African White and Asian Other Asian or Asian British Indian Pakistani Bangladeshi Other Black or Black British Caribbean African Other Chinese or other Chinese Other Not stated Total 19 12 9 11 13 13 10 10 9 10 10 13 15 12 12 12 15 12 Stop and searches (%)

Source: MoJ (2009a), Table 4.4b.

293

The Right to Liberty and Security of the Person – HRA, Article 5

Table 159: Stop and search of people under Section 60 of the Criminal Justice and Public Order Act 1994, by ethnic appearance, England and Wales, 2007-08
Self-defined ethnicity White Black Asian Other Unknown Total Stop and searches 35,973 11,837 4,125 433 757 53,125

Source: MoJ (2009a), Table 4.5a. Table 160: Stop and search of people under Section 60 of the Criminal Justice and Public Order Act 1994, by self-defined ethnicity, England and Wales, 2007-08
Self-defined ethnicity White British Irish Other Mixed White and Black Caribbean White and Black African White and Asian Other Asian or Asian British Indian Pakistani Bangladeshi Other Black or Black British Caribbean African Other Chinese or other Chinese Other Not stated Total 181 324 3,620 53,125 4,341 2,935 1,989 671 1,484 494 1,149 800 149 114 323 33,132 206 1,213 Stop and searches

Source: MoJ (2009a), Table 4.5b.

294

The Right to Liberty and Security of the Person – HRA, Article 5

Table 161: Stop and search of people under Section 44 (1) and (2) of the Terrorism Act 2000, by ethnic appearance, England and Wales, 2006-07 – 2007-08
Ethnic appearance of person searched White 2006-07 2007-08 Black 2006-07 2007-08 Asian 2006-07 2007-08 Other 2006-07 2007-08 Unknown 2006-07 2007-08 Total 2006-07 2007-08 37,197 117,278 490 1,398 1,638 5,927 5,505 20,768 3,602 15,218 25,962 73,967 Stop and searches

Source: MoJ (2009a), Table 4.6a.

295

The Right to Liberty and Security of the Person – HRA, Article 5

Table 162: Stop and search of people under Section 44 (1) and (2) of the Terrorism Act 2000, by self-defined ethnicity, England and Wales, 2007-08
Self-defined ethnicity White British Irish Other Mixed White and Black Caribbean White and Black African White and Asian Other Asian or Asian British Indian Pakistani Bangladeshi Other Black or Black British Caribbean African Other Chinese or other Chinese Other Not stated Total 1,558 3,527 12,700 117,278 3,969 5,844 2,809 6,080 3,713 2,364 6,461 564 293 516 1,417 42,886 1,296 21,281 Stop and searches

Source: MoJ (2009a), Table 4.6b.

296

The Right to Liberty and Security of the Person – HRA, Article 5

Table 163: Stop and search of vehicle occupants under Section 441 of the Terrorism Act 2000 and resultant arrests, by ethnic appearance, England and Wales, 2007-08
Ethnic appearance White Black Asian Other Unknown Total Searches N 42,006 8,753 10,878 2,773 807 65,217 % 64.4 13.4 16.7 4.3 1.2 100.0 Arrests in connection with terrorism N 13 9 10 1 1 34 % 38.2 26.5 29.4 2.9 2.9 100.0 Arrests for other reason N 293 165 130 64 13 665 % 44.1 24.8 19.5 9.6 2.0 100.0

Source: MoJ (2009a), Table 4.7a. Table 164: Stop and search of vehicle and occupants under Section 441 of the Terrorism Act 2000 and resultant arrests, by self-defined ethnicity, England and Wales, 2007-08
Self-defined ethnicity White British Irish Other Mixed White and Black Caribbean White and Black African White and Asian Other 27,641 672 9,649 42.4 1.0 14.8 4 0 5 11.8 0.0 14.7 148 12 94 22.3 1.8 14.1 Searches N % Arrests in connection with terrorism N % Arrests for other reason N %

281

0.4

0

0.0

6

0.9

143 225 644

0.2 0.3 1.0

0 0 2

0.0 0.0 5.9

3 3 10

0.5 0.5 1.5 Continued

297

The Right to Liberty and Security of the Person – HRA, Article 5

Table 164: Stop and search of vehicle and occupants under Section 441 of the Terrorism Act 2000 and resultant arrests, by self-defined ethnicity, England and Wales, 2007-08 (continued)
Self-defined ethnicity Asian or Asian British Indian Pakistani Bangladeshi Other Black or Black British Caribbean African Other Chinese or Other Chinese Other Not stated Total 601 1,707 6,396 65,217 0.9 2.6 9.8 100.0 0 2 4 34 0.0 5.9 11.8 100.0 13 35 72 665 2.0 5.3 10.8 100.0 2,431 3,400 1,607 3.7 5.2 2.5 7 1 0 20.6 2.9 0.0 43 78 21 6.5 11.7 3.2 2,916 2,201 1,248 3,455 4.5 3.4 1.9 5.3 1 4 1 3 2.9 11.8 2.9 8.8 29 33 12 53 4.4 5.0 1.8 8.0 Searches N % Arrests in connection with terrorism N % Arrests for other reason N %

Source: MoJ (2009a), Table 4.7b.

298

The Right to Liberty and Security of the Person – HRA, Article 5

Table 165: Stop and search of pedestrians under Section 442 of the Terrorism Act 2000 and resultant arrests by ethnic appearance, England and Wales, 2007-08
Ethnic appearance White Black Asian Other Unknown Total Searches N 31,961 6,465 9,890 3,154 591 52,061 % 61.4 12.4 19.0 6.1 1.1 100 Arrests in connection with terrorism N 9 7 11 9 2 38 % 23.7 18.4 28.9 23.7 5.3 100 Arrests for other reason N 225 123 85 75 7 515 % 43.7 23.9 16.5 14.6 1.4 100

Source: MoJ (2009a), Table 4.8a. Table 166: Stop and search of pedestrians under Section 442 of the Terrorism Act 2000 and resultant arrests, by self-defined ethnicity, England and Wales, 2007-08
Self-defined ethnicity White British Irish Other Mixed White and Black Caribbean White and Black African White and Asian Other 15,245 624 11,632 29.3 1.2 22.3 3 0 4 7.9 0.0 10.5 85 5 81 16.5 1.0 15.7 Searches N % Arrests in connection with terrorism N % Arrests for other reason N %

283

0.5

0

0.0

3

0.6

150 291 773

0.3 0.6 1.5

0 0 2

0.0 0.0 5.3

1 3 10

0.2 0.6 1.9 Continued

299

The Right to Liberty and Security of the Person – HRA, Article 5

Table 166: Stop and search of pedestrians under Section 442 of the Terrorism Act 2000 and resultant arrests, by self-defined ethnicity, England and Wales, 2007-08 (continued)
Self-defined ethnicity Asian or Asian British Indian Pakistani Bangladeshi Other Black or Black British Caribbean African Other Chinese or Other Chinese Other Not stated Total 957 1,820 6,304 52,061 1.8 3.5 12.1 100 2 3 6 38 5.3 7.9 15.8 100 14 37 97 515 2.7 7.2 18.8 100 1,538 2,444 1,202 3.0 4.7 2.3 3 2 0 7.9 5.3 0.0 32 44 23 6.2 8.5 4.5 3,164 1,512 1,116 3,006 6.1 2.9 2.1 5.8 4 3 0 6 10.5 7.9 0.0 15.8 22 12 9 37 4.3 2.3 1.7 7.2 Searches N % Arrests in connection with terrorism N % Arrests for other reason N %

Source: MoJ (2009a), Table 4.8b.

300

The Right to Liberty and Security of the Person – HRA, Article 5

Table 167: Stop and accounts, total numbers and per 1,000 population aged 10 and over, by ethnic appearance, England and Wales, 2006-07 and 2007-08
Ethnic appearance White 2006-07 2007-08 Black 2006-07 2007-08 Asian 2006-07 2007-08 Other 2006-07 2007-08 Unknown 2006-07 2007-08 Total 2006-07 2007-08 39 49 1,868,703 2,353,918 – – 35,719 42,131 32 42 21,431 23,470 41 57 92,395 129,541 89 114 117,962 152,487 37 46 1,601,196 2,006,289 Per 1,000 population aged 10 and over Total numbers

Source: MoJ (2009a), Tables 4.9 and 4.10. Notes: 1 Refers to the Metropolitan Police (but includes the City of London). 2 Caution should be exercised when using these per 1,000 population figures as they rely on estimates of the BME population based on the ethnicity breakdown of the population from the 2001 census.

301

The Right to Liberty and Security of the Person – HRA, Article 5

Table 168: Stop and search of people under Section 1 of the PACE, and other legislation, by ethnic appearance, England and Wales, 2007-08
England and Wales Ethnic appearance White 738,505 Black 172,393 Asian 89,781 Other 17,755 Unknown 17,004 Total 1,035,438

Source: MoJ (2009a),Table 4.1a. Table 169: Stop and search of people under Section 1 of PACE and other legislation per 1000 population, by ethnic appearance, 2006-07 – 2007-08
Ethnic appearance of person searched England and Wales White 200607 16 200708 17 Black 200607 114 200708 129 Asian 200607 35 200708 40 Others 200607 27 200708 32 Total 200607 20 200708 22

Source: MoJ (2009a), Table 4.2a. Notes: 1 Refers to the Metropolitan Police (but includes the City of London). 2 Caution should be exercised when using these per 1,000 population figures as they rely on estimates of the BME population based on the ethnicity breakdown of the population from the 2001 census.

302

The Right to Liberty and Security of the Person – HRA, Article 5

Table 170: Percentage of the population that self-report being stopped on foot or in vehicles, and are stopped and searched, in the last year, by age, gender, ethnicity, disability, religion and social class
Percentage stopped on foot or in vehicle in last year (weighted) 28.1 12.4** 8.1** 3.3** 1.113.1 6.7** 9.4 12.3 9.4 17.4** 9.3 11.9 9.4** Percentage stopped in last year that were searched (weighted) 21.0 10.9** 6.2** 0** – 17.6 4.5** 12.3 – 22.215.6 – 17.7 12.3

Sample size Age 16-24 25-44 45-64 65-74 75+ Gender Male Female Ethnicity White Mixed Asian or Asian British Black or Black British Chinese/other Non-white White Disability No limiting longstanding illness or disability Limiting longstanding illness or disability 10,907 65 341 207 139 755 10,907 5,316 6,346 952 3,766 3,808 1,629 1,507

Sample size 263 464 320 53 20A 694 426 1030 8A 32 36 13 90 1030

9,190

10.5

968

13.3

2,458

6.1**

151

9.5 Continued

303

The Right to Liberty and Security of the Person – HRA, Article 5

Table 170: Percentage of the population that self-report being stopped on foot or in vehicles, and are stopped and searched, in the last year, by age, gender, ethnicity, disability, religion and social class (continued)
Percentage stopped on foot or in vehicle in last year (weighted) 9.9 9.9 14.0 9.512.98.1 8.9 16.3** Percentage stopped in last year that were searched (weighted) 9.9 – – – – – – 17.2

Sample size Religion Christian Buddhist Hindu Jewish Muslim Sikh Other No religion Social class Managerial and professional occupations Intermediate occupations Small employers and own account workers Lower supervisory and technical Semi-routine and routine Never worked and long-term unemployed Full-time student Not classified 9,156 65 98 41 206 42 64 1,969

Sample size 777 9A 13A 6A 26A 2A 6A 279

3,817 1,245

9.9 9.2

359 96

6.6 7.7

14.9** 12.7 9.3**

12.2 12.0 12.1

7.1 22.8** 2.4

– 26.3 –

Source: Alkire et al. (2009). Note: Authors’ preliminary calculations from the British Crime Survey England and Wales, 200708. ** Denotes statistical difference in percentage by group using ANOVA test.

304

Table 171: ASBOs issued1 at all courts, as reported to the Ministry of Justice2 by the Court Service, by age at date of issue, England and Wales, 1 April 1999 to 31 December 2009
ASBOs issued

Age group .. .. .. .. .. 41 64 104 104 137 350 427 1,349 3,479 11 6 6 8 53 72 4,122 151 170 713 2,086 2,469 89 125 503 1,541 1,839 23 62 45 210 545 630 430 1,195 1,625 27 2,705 62 193 251 628 1,340 1,581 1,053 40 130 174 466 1,013 1,168 775 709 920 374 988 1,362 17 2,299 18 52 72 144 299 378 265 200 4 11 5 18 28 35 13 11

Total issued 2001 2002 2003 2004 2005 2006 2007 2008 8 181 530 719 341 963 1,304 4 2,027

April 1999 – May 2000

June – December 2000

2009 8 113 380 501 294 875 1,169 1 1,671

10-11

141

12-14

1,722

15-17

5,385

10-17 sub total

7,248

18-20

2,954

21+

8,159

18+ subtotal

11,113

305

Age not known

309

Total all ages

18,670

Source: Home Office (2011), Table 1 (prepared by Justice Statistics Analytical Services within the MoJ).

Notes:

1 Includes ASBOs issued on application by magistrates’ courts acting in their civil capacity and county courts, which became available on 1 April 1999; and ASBOs made following conviction for a relevant criminal offence at the crown court and at magistrates’ courts (acting in their criminal capacity), which became available on 2 December 2002.

2 Prior to the creation of the Ministry of Justice on 9 May 2007, the numbers of ASBOs issued were reported to the Home Office by the Court Service.

The Right to Liberty and Security of the Person – HRA, Article 5

3 Not available; from 1 April 1999 to 31 May 2000 no details of the ages of ASBO recipients were collected.

4 Note: Every effort is made to ensure that the figures presented are accurate and complete. However, it is important to note that these data have been extracted from large administrative data systems generated by the courts. As a consequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used.

Table 172: ISOs1 issued at all magistrates’ courts, in addition to an ASBO, as reported to the Ministry of Justice2 by the Court Service, England and Wales, 1 April 1999 to 31 December 2009
All individuals aged 15-17 All individuals aged 10-17

All individuals aged 10-14

Year .. 22 * * 40 * * * * .. * *

ISOs

ASBOs issued on application 10-14 year olds at magistrates’ courts Percentage of ASBOs with an ISO attached ISOs ISOs Percentage of ASBOs with an ISO attached .. 62

ASBOs issued on application 15 -17 year olds at magistrates’ courts

ASBOs issued on application 10-17 year olds at magistrates’ courts

Percentage of ASBOs with an ISO attached * *

April 1999 – May 2000

*

The Right to Liberty and Security of the Person – HRA, Article 5

June 2000 – December 2000 63 77 106 172 179 128 118 96 78 1,039 11 37 42 172 18 24 19 28 18 52 12 20 456 292 335 243 194 2,575 1 6 425 * * 287 * * 173 * * 130 * * * 1 4 18 8 10 22 7

*

306

2001

*

* * * 7 42 75 50 41 71 286

193 250 393 597 635 420 453 339 272 3,614

* * * 1 7 18 11 12 26 8

2002

*

2003

*

2004

1

2005

22

2006

23

2007

22

2008

17

2009

29

Total

114

Source: Home Office (2011), Table 5 (prepared by Justice Statistics Analytical Services within the Ministry of Justice).

Notes:

1 ISOs are court orders only available for 10-17 year olds which can be attached to ASBOs made on application. ISOs impose positive conditions on the young person to address the underlying causes of the behaviour that led to their ASBO being issued. ISOs are available at magistrates’ courts only for juveniles (aged 10-17) with ASBOs issued on application. Commencement date 1 May 2004.

2 Prior to the creation of the Ministry of Justice on 9 May 2007, numbers of ASBOs issued were reported to Home Office by the Court Service.

3 Every effort is made to ensure that the figures presented are accurate and complete. However, it is important to note that these data have been extracted from large administrative data systems generated by the courts. As a consequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used.

4 * Not applicable – ISOs became available from 1 May 2004.

307
The Right to Liberty and Security of the Person – HRA, Article 5

The Right to Liberty and Security of the Person – HRA, Article 5

Table 173: ASBOs issued at all courts1, as reported to the Ministry of Justice2 by the Court Service, by duration of order3, England and Wales, 2009
ASBOs and percentages Duration of order 4 years and fewer Until Duration than 5 5 years further not years and over order reported Total5 – 2 – – 8 5 1 1 – 113 5 9 10 – 380 10 12 11 – 501 4 23 9 – 294 35 154 77 – 875 39 177 86 – 1,169 49 189 97 – 1,671 – 4 1 2 1 4 3 3 25 1 2 2 8 18 15 11 – 1 3 2 3 9 7 6 – – – – – – – – 100 100 100 100 100 100 100 100

Period 2009

Age group 10-11 12-14 15-17 10-17 18-20 21+ 18+ Total5

2 years and fewer than 3 years 4 88 310 402 214 475 689 1,092 50 78 82 80 73 54 59 65

3 years and fewer than 4 years 2 18 46 66 44 134 178 244 25 16 12 13 15 15 15 15

per cent

10-11 12-14 15-17 10-17 18-20 21+ 18+ Total5

Source: Home Office (2011), Table 4 (prepared by Justice Statistics Analytical Services within the Ministry of Justice). Notes: 1 Includes ASBOs issued on application by magistrates’ courts acting in their civil capacity and county courts, which became available on 1 April 1999 and ASBOs made following conviction for a relevant criminal offence at the Crown Court and at magistrates’ courts (acting in their criminal capacity), which became available on 2 December 2002. 2 Prior to the creation of the Ministry of Justice on 9 May 2007, numbers of ASBOs issued were reported to Home Office by the Court Service. 3 ASBOs are made for a minimum duration of two years. 4 Totals include those ASBO recipients whose age was not reported to the Ministry of Justice (309 to the end of 2009).
5 Not available. 6 Note: Every effort is made to ensure that the figures presented are accurate and complete. However, it is important to note that these data have been extracted from large administrative data systems generated by the courts. As a consequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used.

308

The Right to Liberty and Security of the Person – HRA, Article 5

Table 174: ASBOs proven at all courts to have been breached, by type of sentence received, age group1 and sex, England and Wales, 1 June 2000 to 31 December 20092
Individuals Age and gender 10-11 All offenders Males Females 12-14 All offenders Males Females 15-17 All offenders Males Females 18-20 All offenders Males Females 21+ All offenders Males Females 10-17 All offenders Males Females 3,298 2,982 316 83 68 15 158 143 15 1,505 1,343 162 1,332 1,233 99 220 195 25 Continued 4,638 3,853 785 78 59 19 380 309 71 668 509 159 2,950 2,512 438 562 464 98 2,444 2,265 179 36 30 6 178 170 8 547 495 52 1,237 1,179 58 446 391 55 2,675 2,418 257 65 52 13 144 129 15 1,191 1,063 128 1,111 1,025 86 164 149 15 592 534 58 14 12 2 13 13 – 291 258 33 221 208 13 53 43 10 31 30 1 4 4 – 1 1 – 23 22 1 – – – 3 3 – Total ASBOs breached By severest type of sentence received during period Discharge Fine Community sentence Custody Other3

309

The Right to Liberty and Security of the Person – HRA, Article 5

Table 174: ASBOs proven at all courts to have been breached, by type of sentence received, age group1 and sex, England and Wales, 1 June 2000 to 31 December 20092 (continued)
Individuals Age and gender 18+ All offenders Males Females All ages All offenders Males Females 10,380 9,100 1,280 197 157 40 716 622 94 2,720 2,347 373 5,519 4,924 595 1,228 1,050 178 7,082 6,118 964 114 89 25 558 479 79 1,215 1,004 211 4,187 3,691 496 1,008 855 153 Total ASBOs breached By severest type of sentence received during period Discharge Fine Community sentence Custody Other3

Source: Home Office (2011), Table 12 (prepared by Justice Statistics Analytical Services within the Ministry of Justice). Notes: 1 Age group is determined by age at the date of appearance in court, on which the severest penalty for breach of an ASBO was received, not the date on which the ASBO was issued. 2 Excludes data for Cardiff magistrates’ court for April, July, and August 2008. 3 The category ‘other’ includes: one day in police cells, disqualification order, restraining order, confiscation order, travel restriction order, disqualification from driving, and recommendation for deportation and other miscellaneous disposals. 4 Some figures may not sum due to rounding. 5 ASBO breach data are compiled by matching records of ASBOs issued with ASBOs breached. The nature of this matching process means that previously published ASBO breach data are subject to minor revision. Every effort is made to ensure that the figures presented are accurate and complete. However, it is important to note that these data have been extracted from large administrative data systems generated by the courts and police forces. As a consequence, care should be taken to ensure data collection processes and their inevitable limitations are taken into account when those data are used.

310

Indicator 28: Spotlight statistics: Administrative detention – Mental health detention and issues of capacity/consent

Table 175: Number of authorisations granted or not granted under the deprivation of liberty safeguards assessments, by age, gender, ethnicity, religion, sexual orientation, disability, length of authorisation, England,2010
65-74 Not granted Granted 393 16.85% Female Not granted 520 22.29% 29.66% 23.23% Mixed Other White background Not granted Granted 41 1.76% 1.29% 30 Granted 4 0.17% 13 0.56% Not granted
¹

18-64 Not granted Granted 343 14.7% 10.46% 244 325 13.93% Not granted

75-84

85+

Age 170 6.09% 142

Granted

Not granted

Granted

England total

365

351

15.65% Male Granted 692 542 Not granted

15.05%

7.29%

Gender

Granted

311
White and Black Caribbean Not granted 2 0.09% Granted 2 0.09%

England total

579

24.82%

White

Ethnicity

British

Irish

White and Black African Not granted 0 0.0%

White and Asian Granted 1 0.04% Not granted 0 0.0%

Other Mixed background Granted 2 0.09% Not granted 1 0.04% Continued

Granted

Not granted

Granted

England total

1110

918

24

The Right to Liberty and Security of the Person – HRA, Article 5

47.58%

39.35%

1.03%

Table 175: Number of authorisations granted or not granted under the deprivation of liberty safeguards assessments, by age, gender, ethnicity, religion, sexual orientation, disability, length of authorisation, England, 2010 (continued)
Black or Black British Bangladeshi Granted 3 0.13% 0.26% 0.3% 0.09% 0.69% 0.6% 0.34% 6 7 2 16 14 8 Not granted Granted Granted Granted 10 0.43% Not granted Not granted Not granted Other Asian background Caribbean African Other Black background Granted 1 0.04% Not granted 2 0.09%

Asian or Asian British

Ethnicity Not granted 5 0.21%

Indian

Pakistani

Granted

Not granted

Granted

England total

5

15

8

0.21%

0.64%

0.34%

Other ethnic groups Other ethnic group Granted 4 0.17% Buddhist Granted 5 0.21% 3 0.13% Not granted Hindu Granted 4 0.17% Not granted 12 0.51% Continued 0.17% 1.5% 4 35 39 1.67% Not granted Granted Not granted Not stated2

The Right to Liberty and Security of the Person – HRA, Article 5

Chinese

312
1 Christian Not granted 569 24.39% 720

Ethnicity

Granted

Not granted

England total

0

0.0%

0.04%

None

Religion

Granted

Not granted

Granted

England total

110

95

4.71%

4.07%

30.86%

Table 175: Number of authorisations granted or not granted under the deprivation of liberty safeguards assessments, by age, gender, ethnicity, religion, sexual orientation, disability, length of authorisation, England, 2010 (continued)
Muslim Not granted Granted 2 0.09% Bisexual Granted 2 0.09% 0.0% 0.13% 0.04% 1.76% 0 3 1 41 Not granted Granted Granted 30 1.29% Not granted Not granted Other Prefer not to say 0.09% 0.73% 0.56% 16.5% 14.66% Not stated Granted 482 20.66% Not granted 437 18.73% 2 17 13 385 342 Granted Granted 16 0.69% Not granted Not granted Not granted Sikh Other religion Not stated

Jewish

Religion 15

Granted

Not granted

Granted

England total

13

10

0.56%

0.43%

0.64%

Heterosexual Not granted 4 0.17%

Lesbian or gay

Sexual orientation 2

Granted

Not granted

Granted

England total

741

590

313
Physical disability, frailty and/or sensory impairment of which: visual impairment Granted 7 Not granted 21 of which: dual sensory loss Granted 6 Not granted 11 Not granted 10 6

31.76%

25.29%

0.09%

of which: physical disability, frailty and/or temporary illness

of which: hearing impairment

Total Granted 222 Not granted 239 Continued

Disability

Granted

Not granted

Granted

The Right to Liberty and Security of the Person – HRA, Article 5

England total

203

197

Table 175: Number of authorisations granted or not granted under the deprivation of liberty safeguards assessments, by age, gender, ethnicity, religion, sexual orientation, disability, length of authorisation, England, 2010 (continued)
Mental health Total Granted 855 668 194 155 Not granted Granted Not granted Total Learning disability

of which: dementia Granted 161 152 Not granted

of which: any other health problem

Disability

Granted

Not granted

England total

694

516

The Right to Liberty and Security of the Person – HRA, Article 5

Length of authorisation (calendar days) 181 to 270 days Total 1,291 100.0% 155 12.01% 7.13% 6.97% 92 90 271 to 364 days 343

0 to 90 days

91 to 180 days

365+ days (cumulative total)

England total

611

314

47.33%

26.57%

Source: The Health and Social Care Information Centre (2011).

Notes:

Quarterly data from 1 July 2010 and 30 September 2010. Data from the Mental Capacity Act 2005 Deprivation of Liberty Safeguards (MCA DOLS) monitoring omnibus collection.

1 Transgendered individuals are recorded as their acquired gender not birth gender.

2 A person may have more than one disability. As such, they may appear in more than one column.

3 The maximum period for a single authorisation is 365 days. Full year authorisations which lapse and are followed up immediately with a new authorisation should be recorded in the 365+ category. Similarly, multiple shorter authorisations which have a cumulative authorisation period of over one year would be recorded in the 365+ category.

The Right to Liberty and Security of the Person – HRA, Article 5

Table 176: Numbers of cases where authorisation is not granted by a Deprivation of Liberty Safeguards Assessment but the best interests assessor advises that deprivation of liberty is actually occurring, England, 2010
Total England total 23

Source: The Health and Social Care Information Centre (2011). Notes: Quarterly data from 1 July 2010 and 30 September 2010. Table 177: Number of cases where authorisation is granted and not granted by a Deprivation of Liberty Safeguards Assessment, total applications by local authority, England, 2010
Total authorisations granted N 1,003 % 57 Total authorisations not granted N 758 % 43 Total authorisations completed N 1,761 % 100

Table 178: Number of cases where authorisation is granted and not granted by a Deprivation of Liberty Safeguards Assessment, total applications by Primary Care Trust (PCT), England, 2010
Total authorisations granted N 268 % 47 Total authorisations not granted N 304 % 53 Total authorisations completed N 572 % 100

315

The Right to Liberty and Security of the Person – HRA, Article 5

Table 179: Restricted patients detained in hospital by legal category1, England and Wales, 2004-08
Number of patients Legal category Transferred from a Prison Service establishment after sentence Transferred from a Prison Service establishment while unsentenced or untried All transferred from prison Hospital order with restriction order Recalled after conditional discharge Transferred from Scotland, Northern Ireland, etc. Unfit to plead Not guilty by reason of insanity Hospital and limitation direction Other All legal categories 2004 505 189 694 1,978 351 3 205 35 10 6 3,282 20052 561 218 779 2,344 -2 212 42 11 5 3,395 20062 627 175 802 2,492 -3 234 51 14 5 3,601 20072 684 284 968 2,624 -8 244 46 16 0 3,906 20082 703 234 937 2,678 -7 255 47 13 0 3,937

Source: MoJ (2010b), Table 2. Notes: a This source only includes mentally disordered offenders who are in contact with the criminal justice system. b An offender can become a restricted patient by one of two ways: If convicted for a serious offence, there may be an order to receive hospital treatment instead of a prison sentence. The court has the option of adding a restriction order for offenders posing a risk of serious harm to others when issuing the hospital order. Second, if the court decides on a prison sentence, it can simultaneously direct the offender to hospital, or the offender can be transferred to hospital by the secretary of state, where the prisoner is subject to restrictions. There are also other groups of restricted patients, such as offenders transferred from a Prison Service establishment while unsentenced or untried, or offenders who are unfit to plead (MoJ, 2010b: 2). 1 See Note 7 for details of the legislation: Explanatory Note 7: Legislative framework: Includes the Mental Health Act 1959, the Mental Health Act 1983, as amended by the Mental Health Act 2007 and the Criminal Procedure (Insanity) Act 1964 as amended by the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and the Domestic Violence, Crime and Victims Act 2004 (which came into force on 31 March 2005). The 1959 Act was amended by the Mental Health (Amendment) Act 1982 and was then consolidated by the 1983 Act which was largely implemented on 30 September 1983. The provisions of the two Mental Health Acts are similar and references below are to the 1983 Act only. In terms of admissions, the 1983 Act provides for:

316

The Right to Liberty and Security of the Person – HRA, Article 5

i

the diversion to hospital by the courts of convicted offenders who satisfy certain conditions (Sections 37(1) & (2)) by making a hospital order. This may be with or without a restriction order under Section 41, which has the effect of requiring the Secretary of State’s consent on all matters relating to leave of absence, transfer or discharge, except where the Tribunal orders discharge; the admission of an unconvicted offender to hospital by the magistrates’ courts where they are satisfied that the person concerned meets the criteria for admission and has done the act or made the omission with which charged (Section 37(3)); the imposition of a hospital order on unsentenced prisoners in their absence and without conviction for an offence (Section 51(5)); the recall to hospital, by order of the Secretary of State, of patients subject to restriction orders who were conditionally discharged (Section 42(3)); the court to impose a prison sentence on a convicted offender together with a direction for immediate admission to hospital, subject to restrictions (hospital and limitation direction under Section 45A); the transfer to hospital, by order of the Secretary of State, of prisoners serving a sentence in a Prison Service establishment (Section 47). Under Section 49 these patients can be made subject to a restriction direction, which has the same effect as a restriction order under Section 41;

ii

iii iv v

vi

vii the transfer to hospital, by order of the Secretary of State, of an unsentenced or untried defendant in criminal proceedings who is held in a Prison Service establishment (Section 48). In this case a restriction direction is mandatory. Civil prisoners and persons detained under the Immigration Act 1971 may also be admitted under this section, but restrictions are not mandatory; viii the transfer of patients from one part of the United Kingdom, Channel Islands or the Isle of Man to another. Those transferred to England and Wales are treated as if they had been admitted to hospital under the Act, so that some of them will, in effect, be subject to restricted hospital orders (part VI). 2 Detained figures for 2005, 2006, 2007 and 2008 do not show the category of ‘Recalled after conditional discharge’. Figures are now included under the appropriate legal category which resulted in the majority of patients being included under ‘Hospital order with restriction order’. This category cannot, therefore,be compared to previous years and trends cannot be measured. (It should not be assumed that the recalled category can be added to the hospital order category for previous years’ figures as they cannot be backdated).

317

The Right to Liberty and Security of the Person – HRA, Article 5

Table 180: Restricted patients detained in hospital by sex, England and Wales, 2004-083
Number of patients Sex Male Female All patients 2004 2,886 396 3,282 20051 2,984 411 3,395 20061 3,159 442 3,601 20071 3,448 458 3,906 20081 3,460 477 3,937

Source: MoJ (2010b), Table 1. Notes: 1 Figures for 2005, 2006, 2007 and 2008 were derived from a manual matching procedure (See Note 10). This source only includes mentally disordered offenders who are in contact with the criminal justice system. An offender can become a restricted patient by one of two ways: If convicted for a serious offence, there may be an order to receive hospital treatment instead of a prison sentence. The court has the option of adding a restriction order for offenders posing a risk of serious harm to others when issuing the hospital order. Second, if the court decides on a prison sentence, it can simultaneously direct the offender to hospital, or the offender can be transferred to hospital by the secretary of state, where the prisoner is subject to restrictions. There are also other groups of restricted patients, such as offenders transferred from prison service establishment while unsentenced or untried, or offenders who are unfit to plead (MoJ, 2010b: 2).

318

Table 181: Standardised ratio of proportion of informally admitted patients deemed incapable of consenting, England and Wales, 2009
Males 95% confidence interval Upper Observed 106 134 122 87 100 79 124 80 50 97 71 130 46 100 99 1,704 100 95 105 1,776 101 Standardised ratio Lower Upper Observed Standardised ratio Lower 97 81 85 95% confidence interval 95% confidence interval Upper Observed 104 122 115 3,480 96 167 Females Persons

Ethnic category code

Census Census groups categories 97 76 79

Standardised ratio

Lower

White

British

101

White

Irish

102

White

Other White

99

Mixed

White and Black Caribbean 45 230 7 124 40 290 5

111

116

60

203

12

319
17 1 7 210 2 66 14 289 1 266 86 621 193 516 2 0 337 58 160 17 122 75 189 43 154 11 13 0 75

Mixed

White and Black African

143

0 5 3

80 158 63

10 58 20

290 343 146

2 6 5

Mixed

White and Asian

52

Mixed

Other mixed

58

Asian or Asian British Indian

100

20

111

78

153

37

Asian or Asian British Pakistani

86

1

59

31

104

12 Continued

The Right to Liberty and Security of the Person – HRA, Article 5

Table 181: Standardised ratio of proportion of informally admitted patients deemed incapable of consenting, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Standardised ratio Lower 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Asian or Asian British Bangladeshi 67 344 7 128 26 375 3 153

167

73

282

10

The Right to Liberty and Security of the Person – HRA, Article 5

Asian or Asian British Other Asian 24 143 6 77 21 197 4

66

70

33

128

10

320
54 98 46 102 74 136 24 111 8 111 62 183 27 140 7 64 13 187

Black or Black British Caribbean

73

46

85

69

104

92

Black or Black British African

56

15

83

53

125

23

Black or Black British Other Black

68

3

67

32

123

10 Continued

Table 181: Standardised ratio of proportion of informally admitted patients deemed incapable of consenting, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Standardised ratio Lower 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Other ethnic groups 36 516 3 133 27 387 3 151

Chinese

176

56

329

6

Other ethnic groups 71 218 14 122 65 208 13

Other

130

126

83

183

27

321
1,972 100

Grand total

100

2,023

100

3,995

Source: CQC (2011).

Notes: England and Wales ratio = 100.

The colour coding highlights instances where the standardised ratio was found to be statistically significant: dark grey where it is lower, light grey where it is higher.

a Figures derived from the Count Me In census 2009.

The Right to Liberty and Security of the Person – HRA, Article 5

b The Count Me In census 2009 includes inpatients in mental health and learning disability services, as well as those who were subject to a community treatment order (CTO) on the day of the census (CQC, 2011d).

Table 182: Standardised ratio of proportion of formally detained patients who are capable but refusing consent, England and Wales, 2009
Males 95% confidence interval Upper Observed 94 156 141 50 132 95 179 42 17 124 72 199 17 109 117 667 92 84 100 520 89 Standardised ratio Lower Upper Observed Standardised ratio Lower 84 76 94 95% confidence interval 95% confidence interval Upper Observed 94 153 144 1,187 34 92 Females Persons

Ethnic category code

Census Census groups categories 81 57 79

Standardised ratio

Lower

White

British

87

White

Irish

97

White

Other White

107

The Right to Liberty and Security of the Person – HRA, Article 5

Mixed 98 219 26 178 89 318 11

White and Black Caribbean

150

157

111

217

37

322
101 71 47 193 9 36 4 272 10 146 40 387 10 72 2 399 373 129 98 216 27 126 65 220 89 194 28 45 9 133

Mixed

White and Black African

210

1 4 2

179 147 76

89 81 38

320 247 136

11 14 11

Mixed

White and Asian

148

Mixed

Other mixed

102

Asian or Asian British Indian

148

12

141

100

192

39

Asian or Asian British Pakistani

134

3

113

77

160

31 Continued

Table 182: Standardised ratio of proportion of formally detained patients who are capable but refusing consent, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Standardised ratio Lower 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Asian or Asian British Bangladeshi 62 221 11 36 1 198 1 102

124

53

179

12

Asian or Asian British Other Asian 44 158 11 96 31 223 5

89

91

52

147

16

323
121 182 98 187 137 250 103 180 53 124 78 188 114 238 31 153 70 291

Black or Black British Caribbean

150

46

160

135

188

144

Black or Black British African

138

22

133

105

167

75

Black or Black British Other Black

168

9

164

117

224

40 Continued

The Right to Liberty and Security of the Person – HRA, Article 5

Table 182: Standardised ratio of proportion of formally detained patients who are capable but refusing consent, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Standardised ratio Lower 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

The Right to Liberty and Security of the Person – HRA, Article 5

Other ethnic groups 1 232 1 158 43 406 4 101

Chinese

42

33

237

5

Other ethnic groups 62 176 16 174 83 320 10

Other

108

127

83

186

26

324
1,065 100

Grand total

100

709

100

1,774

Source: CQC (2011).

Notes: England and Wales ratio = 100.

The colour coding highlights instances where the standardised ratio was found to be statistically significant: dark grey where it is lower, light grey where it is higher.

Figures derived from the Count Me In census 2009 including inpatients in mental health and learning disability services, as well as those who were subject to a CTO on the day of the census (CQC, 2011d).

Table 183: Standardised ratio of proportion of formally detained patients deemed incapable of consenting, England and Wales, 2009
Males 95% confidence interval Upper Observed 99 134 140 94 118 88 154 53 32 128 83 187 26 107 115 1,293 92 86 99 767 93 Standardised ratio Lower Upper Observed Standardised ratio Lower 89 81 97 95% confidence interval 95% confidence interval Upper Observed 97 139 136 2,060 58 147 Females Persons

Ethnic category code

Census Census groups categories 89 65 92

Standardised ratio

Lower

White

British

94

White

Irish

95

White

Other White

114

Mixed 87 176 34 101 44 199 8

White and Black Caribbean

126

121

87

163

42

325
31 75 67 190 16 170 88 229 14 201 81 413 296 185 6 216 59 554 48 114 23 107 58 179 77 152 36 149 79 255

Mixed

White and Black African

85

4 7 12

112 153 135

54 94 90

207 233 195

10 21 28

Mixed

White and Asian

136

Mixed

Other mixed

117

Asian or Asian British Indian

76

14

85

60

117

37

Asian or Asian British Pakistani

110

13

118

87

156

49 Continued

The Right to Liberty and Security of the Person – HRA, Article 5

Table 183: Standardised ratio of proportion of formally detained patients deemed incapable of consenting, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Standardised ratio Lower 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Asian or Asian British Bangladeshi 52 166 13 270 129 496 10 134

97

85

201

23

The Right to Liberty and Security of the Person – HRA, Article 5

Asian or Asian British Other Asian 93 203 28 133 61 253 9

140

139

98

191

37

326
102 144 135 145 108 192 113 175 84 140 96 197 69 146 30 131 63 242

Black or Black British Caribbean

122

50

127

110

147

185

Black or Black British African

141

32

141

116

169

116

Black or Black British Other Black

102

10

108

77

147

40 Continued

Table 183: Standardised ratio of proportion of formally detained patients deemed incapable of consenting, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Standardised ratio Lower 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Other ethnic groups 89 405 8 152 49 355 5 181

Chinese

206

96

310

13

Other ethnic groups 97 198 33 76 28 166 6

Other

141

125

89

171

39

327
1,879 100

Grand total

100

1,026

100

2,905

Source: CQC (2011).

Notes: England and Wales ratio = 100.

The colour coding highlights instances where the standardised ratio was found to be statistically significant: dark grey where it is lower, light grey where it is higher.

The Right to Liberty and Security of the Person – HRA, Article 5

Figures derived from the Count Me In census 2009 including inpatients in mental health and learning disability services, as well as those who were subject to a CTO on the day of the census (CQC, 2011d).

Table 184: Standardised ratio of proportion of patients referred by criminal justice routes, England and Wales, 2009
Males 95% confidence interval Upper Observed 95 175 106 90 64 37 102 17 81 48 74 32 146 8 119 1,503 93 84 102 423 91 Standardised ratio Lower Upper Observed Lower 87 90 67 Standardised ratio 95% confidence interval 95% confidence interval Upper Observed 95 154 98 1,926 56 107 Females Persons

Ethnic category code

Census Census groups categories 86 97 69

Standardised ratio

Lower

White

British

90

White

Irish

132

White

Other White

86

Mixed 100 171 57 202 108 346 13

The Right to Liberty and Security of the Person – HRA, Article 5

White and Black Caribbean

132

141

110

178

70

Mixed 69 70 98 202 32 115 46 177 20 70 8 252 237 204 15 229 47 669

328
69 130 42 79 32 164 91 153 62 114 46 234

White and Black African

124

3 2 7

134 108 137

79 68 98

212 164 188

18 22 39

Mixed

White and Asian

115

Mixed

Other mixed

143

Asian or Asian British Indian

96

7

93

69

123

49

Asian or Asian British Pakistani

119

7

119

92

150

69 Continued

Table 184: Standardised ratio of proportion of patients referred by criminal justice routes, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Lower Standardised ratio 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Asian or Asian British Bangladeshi 87 189 28 116 24 340 3 129

131

88

184

31

Asian or Asian British Other Asian 79 156 37 102 33 237 5

113

111

80

151

42

329
126 164 221 171 120 236 128 177 148 217 154 297 69 129 42 121 49 249

Black or Black British Caribbean 37

144

147

130

167

258

Black or Black British African

151

39

161

139

186

187

Black or Black British Other Black

96

7

99

73

130

49 Continued

The Right to Liberty and Security of the Person – HRA, Article 5

Table 184: Standardised ratio of proportion of patients referred by criminal justice routes, England and Wales, 2009 (continued)
Males 95% confidence interval Upper Observed Standardised ratio Lower Upper Observed Lower Standardised ratio 95% confidence interval 95% confidence interval Upper Observed Females Persons

Ethnic category code

Census Census groups categories

Standardised ratio

Lower

Other ethnic groups 26 190 5 143 39 367 4 101

Chinese

81

46

191

9

The Right to Liberty and Security of the Person – HRA, Article 5

Other ethnic groups 83 155 43 96 31 224 5

Other

115

113

83

149

48

330
2,393 100

Grand total

100

587

100

2,980

Source: CQC (2011).

Notes: England and Wales ratio = 100. Includes the following referral routes: police, courts, Probation Service, prison, and the Courts Liaison and Diversion Service.

The colour coding highlights instances where the standardised ratio was found to be statistically significant: dark grey where it is lower, light grey where it is higher.

Figures derived from the Count Me In census 2009 including inpatients in mental health and learning disability services, as well as those who were subject to a CTO on the day of the census (CQC, 2011d).

The Right to Liberty and Security of the Person – HRA, Article 5

Indicator 29: Spotlight statistics: Detention within the asylum and immigration system
Table 185: Persons entering detention1, 2 held solely under Immigration Act powers, by age3 and sex, UK, 20094, 5
Sex Total detainees Adults3 Under 5 yrs Male Female Total of whom: asylum detainees6 15,580 14,865 275 285 125 30 715 22,625 5,380 28,005 22,075 4,860 26,940 260 240 495 5-11 yrs 165 205 370 Children3 12-16 yrs 100 65 160 17 yrs 25 10 40 Total 550 520 1,065

Source: Home Office (2010a), Table 9.2. Notes: 1 These figures are based on management information and are not subject to the detailed checks that apply for national statistics. They are provisional and may be subject to change. 2 Some detainees may be recorded more than once if, for example, the person has been detained on more than one separate occasion in the time period shown, such as a person who has left detention, but has subsequently been re-detained. 3 Recorded age at the start of their period of detention. Figures for children will overstate if any applicants aged 18 or over claim to be younger. 4 Figures rounded to the nearest 5 (- = 0, * = 1 or 2) and may not sum to the totals shown because of independent rounding. Figures exclude people recorded as entering Harwich Short Term Holding Facility, police cells and Prison Service establishments, those recorded as detained under both criminal and immigration powers and their dependants. 5 Figures include dependants. 6 People detained under Immigration Act powers who are recorded as having sought asylum at some stage.

331

The Right to Liberty and Security of the Person – HRA, Article 5

Table 186: Persons removed from the United Kingdom on leaving detention1, held solely under Immigration Act powers, by age2, 20093, 4, 5, P
Total detainees Adults2 Under 5 yrs Grand total of whom: asylum detainees6 6,710 6,425 115 120 45 5 285 16,070 15,545 260 5-11 yrs 180 Children2 12-16 yrs 70 17 yrs 10 Total 520

Source: Home Office (2010a), Table 14.2. Notes: 1 Some detainees may be recorded more than once if, for example, the person has been detained on more than one separate occasion in the time period shown, such as a person who has left detention for the purpose of a removal, but who has subsequently been re-detained. 2 Recorded age at the end of their period of detention. Figures for children will overstate if any applicants aged 18 or over claim to be younger. 3 Figures rounded to the nearest 5 (- = 0, * = 1 or 2) and may not sum to the totals shown because of independent rounding. Figures exclude persons recorded as leaving detention from police cells and Prison Service establishments, those recorded as detained under both criminal and immigration powers at time of removal and their dependants. 4 Not necessarily removed in the same quarter as leaving detention. 5 Figures include dependants. 6 Persons detained under Immigration Act powers who are recorded as having sought asylum at some stage. P Provisional figures. Table 187: Number of children entering and leaving immigration and asylum detention centres In 2009, 1,065 children entered detention, held solely under Immigration Act powers. Of these, 715 (67 per cent of the total) were asylum detainees. In 2009, 1,105 children left detention. Of these, 745 (67 per cent of the total) were asylum detainees. In total, 520 children were removed from the UK upon leaving detention. Source: Home Office (2010a).

332

The Right to Liberty and Security of the Person – HRA, Article 5

Table 188: Persons in detention in the United Kingdom solely under Immigration Act powers, by length of detention as at 31 December 20091, 2
Number of persons Length of detention3, 4 Total detainees5 Adults
5

Children6 of whom: asylum of whom: asylum Total ----detainees7 -----

Total 12 months to less than 18 months 18 months to less than 24 months 24 months or more Total 95 65 50 2,595 95 65 50 2,595

detainees7 60 50 30 1,770

Source: Home Office (2010a), Table 12. Notes: 1 Figures rounded to the nearest 5 (- = 0, * = 1 or 2), may not sum to the totals shown because of independent rounding and exclude persons detained in police cells, Prison Service establishments and those detained under both criminal and immigration powers. 2 Figures include dependants. 3 Relates to most recent period of sole detention. The period of detention starts when a person first enters the UK Border Agency estate. If the person is then moved from a removal centre to a police cell or Prison Service establishment, this period of stay will be included if the detention is solely under Immigration Act powers. 4 ‘2 months’ is defined as 61 days; ‘4 months’ is defined as 122 days; ‘6 months’ is defined as 182 days; ‘18 months’ is defined as 547 days. 5 These figures are based on management information and are not subject to the detailed checks that apply for national statistics. They are provisional and may be subject to change. 6 People recorded as being under 18 on 31 December 2009. These figures will overstate if any applicants aged 18 or over claim to be younger. 7 Persons detained under Immigration Act powers who are recorded as having sought asylum at some stage.

333

The Right to Liberty and Security of the Person – HRA, Article 5

Indicator 30: Spotlight statistics: Public attitudes, understanding and experiences
Table 189: Public attitudes towards ‘only being arrested if there are reasonable grounds of suspicion’
Which of the following, if any, would you say are the most important values for living in Britain today? Only being arrested if there are reasonable grounds of suspicion And which four of five, if any, are most important to you personally? And which, if any, do you consider to be fundamental human rights?

41 %

7%

27 %

Source: Kaur-Ballagan et al. (2009), Charts 1, 2 and 3. Notes: This data is based on a demographically representative, face-to-face omnibus survey with 1,994 British adults over the age of 16 undertaken in August 2008.

334

Table 190: Public attitudes towards the ‘right not to be detained without reason’: Liberty polling exercise
Age Social Grade Region

Gender

Total 93 120 110 93% 95% 89% 87% 95% 94% 150 79% 89% 77% 78% 86% 84% 79 42% 51% 48% 51% 55% 53% 71 64 44 56 86 88 87 71 107 148 155 82 78 76% 75% 93 80 39% 41% 151 115 163 233 243 160 173 205 81% 119 47% 87 34% 23 29 8% 10% 15 7% 11 4% 11 4% 29 14% 18 21 9% 28 8% 12% 29 11% 16 6% 90% 84% 92% 145 177 162 134 184 256 272 189 194 234 235 89% 199 76% 120 46% 79 30% 35 13% 24 9% 160 190 170 150 210 270 290 210 230 254 264 163 194 184 159 207 376 198 157 269 259 252 253 251 233 93% 214 85% 130 52% 84 33% 19 8% 12 5%

Male

Female

1824 65+ AB Cl C2 DE Midlands

2534 35-44

4554

5564

South East

North England

Wales and South West Scotland 145 144 130 90% 119 83% 82% 73 51% 46 32% 11 8% 9 7% 35 41% 37 42% 7 8% 5 6% Continued 91 87 79 91% 72

Unweighted base

1,000

434

566

Weighted base

1,000

490

510

Net: Of use at all

911

441

470

Net: Of use at all 98 132

91%

90%

92% 92% 91%

Net: Vital/ important

809

381

428

335
63 35 62 70 38% 38% 29% 27% 32% 30% -37% 35% 26 14% 11 6% 3% 5 13 9% 6% 13% 10% 11 19 21 12 8% 15 9% 13 8 6%

Net: Vital/ important

81%

78%

84% 82% 83%

Vital

477

237

241

Vital

48%

48%

47% 53% 44%

Important3

332

145

187

33%

30%

37% 29% 39%

Useful2

101

60

42

10%

12%

8% 10%

Unnecessary1

67

37

30

The Right to Liberty and Security of the Person – HRA, Article 5

7%

7%

6%

Table 190: Public attitudes towards the ‘right not to be detained without reason’: Liberty polling exercise (continued)
Age Social Grade Region

Gender

Total 2 2% 3.16 3.39 3.18 3.29 3.39 3.37 3.08 3.08 0.88 0.75 0.97 0.93 0.81 0.82 0.94 1.01 0.06 0.06 0.08 0.07 0.04 0.06 0.08 0.06 0.06 0.89 0.98 0.06 3.23 3.14 – 1% 2% 2% 5% 1% 2% 2% 4% 2% 2% 3% 3.36 0.82 0.05 2 3 3 11 3 7 3 9 4 5 6

Male

Female

1824 65+ AB Cl C2 DE Midlands 5 3% 3.31 0.89 0.08

2534 35-44

4554

5564

South East

North England

Wales and South West Scotland 3 3% 3.21 0.84 0.09

Don’t know

22

12

10

2%

3%

2%

Mean

3.25

3.22

3.28 3.31 3.17

Standard deviation

0.90

0.94

0.86 0.90 0.93

The Right to Liberty and Security of the Person – HRA, Article 5

Standard error

0.03

0.05

0.04 0.09 0.07

Base: All respondents

336

Source: Liberty (2011).

Notes: Respondents were asked the following question [several rights were actually listed and respondents’ responses to each right are shown in the relevant chapter]: ‘In modern Britain, would you say each of the following rights are vital, important, useful, or unnecessary? The right not to be detained without reason.’

The Right to Liberty and Security of the Person – HRA, Article 5

Chapter notes
311

The status of UN treaty ratification is drawn from the UN Treaty Database, www.unhchr. ch/tbs/doc.nsf/Statusfrset?OpenFrameSet (accessed 4 November 2010). The status of European treaty ratification is drawn from the Council of Europe Treaty Office website, conventions.coe.int/ (accessed 4 November 2010). When a state signs an international treaty this is signals its preliminary endorsement of the treaty, it does not create a binding legal obligation. A state which ratifies or accedes to a treaty is asserting that it considers itself to be legally bound by the treaty. Ratification requires the state to have previously signed the treaty, whereas accession is a single step which does not require previous signing. It should be noted that a treaty which has been acceded to or ratified by the UK does not automatically become part of the domestic law; separate legislative action is required to incorporate international law into domestic law (for example, the HRA making the ECHR enforceable in the UK). Nonetheless, ratification or accession is a state’s expression that it consents to be legally bound by the treaty, including respecting and implementing its provisions. www.scotland.gov.uk/Publications/2004/11/20181/45877 (accessed 3 October 2011). cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695327&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698363&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695483&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=704930&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695448&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696335&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2001/415.html&query=title+(+R +)+and+title+(+v+)+and+title+(+Mental+)+and+title+(+Health+)+and+title+(+Tribunal+)&meth od=boolean www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKPC/2001/d5.html&query=title+(+Anderso n+)&method=boolean www.scotland.gov.uk/Publications/2004/11/20181/45877 (accessed 27 January 2011). cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=704930&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.mentalhealthlaw.co.uk/Re_RK;_YB_v_BCC_(2010)_EWHC_3355_(COP) (accessed 10 March 2011). www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2004/1067. html&query=gILLAN&method=all cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=860909&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/UKHL/2009/5.html www.bailii.org/ew/cases/EWHC/Admin/2011/957.html www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071031/homejj-1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=847470&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=847470&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695523&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

312 313 314 315 316 317 318 319

320 321 322 323 324 325 326 327 328 329 330 331

337

The Right to Liberty and Security of the Person – HRA, Article 5

332 333 334 335 336 337 338 339 340 341 342 343 344 345 346

347 348 349 350 351 352 353 354 355 356 357 358 359 360 361

www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2003/152.html&query=title+( +Sim+)&method=boolean www.bailii.org/uk/cases/UKHL/2007/58.html www.unhchr.ch/tbs/doc.nsf/(Symbol)/f4253f9572cd4700c12563ed00483bec?Opendocument UNCRC daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/555/92/PDF/N0955592. pdf?OpenElement (accessed 24 November 2010). cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=860909&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.parliament.uk/documents/joint-committees/human-rights/HRJGillan_HomeSec_090910. pdf www.homeoffice.gov.uk/police/powers/pace-codes/ (accessed 10 March 2011). www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/ DH_085476 (accessed 9 March 2011). www.scotland.gov.uk/Topics/Health/health/mental-health/mhlaw/codeofpractice (accessed 27June 2011). Miller et al., 2004. The Use of Human Rights Legislation in the Scottish Courts, www.scotland.gov.uk/Publications/2004/11/20181/45877 (accessed 27 January 2011). cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695327&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698363&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=704930&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696335&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2001/415.html&query=title+(+R +)+and+title+(+v+)+and+title+(+Mental+)+and+title+(+Health+)+and+title+(+Tribunal+)&meth od=boolean www.bailii.org/cgi-bin/markup.cgi?doc=/uk/cases/UKPC/2001/d5.html&query=title+(+Anderso n+)&method=boolean www.mentalhealthlaw.co.uk/.../Re_RK%3B_YB_v_BCC_(2010)_EWHC_3355_(COP).doc (accessed 10 March 2011). www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2004/1067. html&query=gILLAN&method=all cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=860909&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/UKHL/2009/5.html www.bailii.org/ew/cases/EWHC/Admin/2011/957.html www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071031/homejj-1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=847470&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695523&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2003/152.html&query=title+( +Sim+)&method=boolean www.bailii.org/uk/cases/UKHL/2007/58.html www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/86/86.pdf www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/157/157.pdf www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/67/67.pdf (accessed 15 March 2011). Patrick (no date given), Autonomy, benefit and protection. How human rights can protect people with mental health conditions or learning disabilities from unlawful deprivation of liberty, Mental Welfare Commission for Scotland, www.mwcscot.org.uk/web/FILES/ Publications/Autonomy%2C_benefit_and_protection_FULL.pdf (accessed 5 July 2011).

338

The Right to Liberty and Security of the Person – HRA, Article 5

362 363 364 365 366 367 368 369 370 371 372 373

UNCRC daccess-dds-ny.un.org/doc/UNDOC/GEN/N09/555/92/PDF/N0955592. pdf?OpenElement (accessed 24 November 2010). www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-42.pdf www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-42.pdf, p 82. www.reprieve.org.uk/2010_01_27_un_report www.justice.gov.uk/inspectorates/hmi-prisons/docs/children_and_young_people-rps.pdf, p 7. www.irr.org.uk/pdf2/Carliles_report_Pathway.pdf www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/86/86.pdf, p 26. www.homeoffice.gov.uk/publications/counter-terrorism/review-of-ct-security-powers/reviewfindings-and-rec?view=Binary (accessed 5 July 2011). www.cqc.org.uk/_db/_documents/MHAC_Biennial_Report_0709_final.pdf (accessed 10 March 2011). www.cqc.org.uk/_db/_documents/CQC_Monitoring_the_use_of_the_Mental_Health_Act_ in_200910_Main_report_Tagged.pdf www.liberty-human-rights.org.uk/policy/reports/comparative-law-study-2010-pre-chargedetention.pdf www.amnesty.org/en/library/info/EUR45/015/2010/en

339

Chapter 8
The Right to a Fair Trial (Human Rights Act, Article 6)

Please read Part II Guidance on using and interpreting the Human Rights Measurement Framework first.

8

The Right to The Right to a Fair Trial (Human Rights Act (HRA), Article 6)

Panel and indicators
Actions/inactions by the state, its agents or bodies fulfilling a public function Public hearings and public pronouncements (note both may be limited, for example, for national security or to protect young people’s privacy) Criminal Civil Criminal Civil Nature of the hearing/ overall fairness; effective participation in hearing; equality of arms; representation Specific to criminal proceedings: presumption of innocence; information on charge; time and resources to prepare defence; legal aid; examination of witness; interpretation Responsiveness of the criminal justice system and the civil justice system to all complainants

The Right to a Fair Trial – HRA, Article 6

Effective protection of the right to a fair trial by the state, its agents or bodies fulfilling a public function

Timely determination of disputes by, and access to, an impartial and independent court

Indicators

Criminal

Civil

342

Structural (indicators of ‘commitment in principle’)

Indicator 31: Legal and constitutional framework • Protection of the right to a fair trial and fair hearing in domestic law (including constitutional/‘higher’ law) • Status of ratification of relevant international treaties

Indicator 32: Legal precedents, gaps and standard-setting • Principles established in key cases (domestic and ECHR) and international standard-setting processes • Gaps in protection and non-implementation of legal judgements and recommendations

Process (indicators of ‘steps taken’ – including legal, regulatory and public policy measures)

Indicator 33: Regulatory framework • Key regulators, inspectorates, ombudsmen and other mechanisms for complaints handling • Relevant responsibilities and powers, national minimum standard frameworks and inspection/complaints-handling criteria

Indicator 34: Public policy framework • Primary legislation, policies, plans, targets and goals (including policies relating to special measures for vulnerable and intimidated victims and witnesses) • Codes and guidance spotlight resource allocations (including public expenditure on legal aid) • Spotlight resource allocations

Outcome (indicators of the position of individuals and groups in practice/ emergence of a human rights ‘culture’)

Indicator 35: Outcomes of key judicial, regulatory and investigative processes • Violations of the right to a fair trial • Key concerns raised by human rights monitoring bodies • Outcomes of inspection, regulation and complaints procedures that engage Article 6 • Complaints handled, for example, by the relevant ombudsman service and reviews by the Scottish Criminal Cases Review Commission • Outcomes of independent inquiries and investigations that engage Article 6 • Key allegations by private individuals and civil society organisations/reports in the media

343

Indicator 36: Spotlight statistics: Access to courts and tribunals • Access to criminal and civil justice • Provision of interpreters and information in alternative languages, particularly for those detained in an immigration removal centre • Access to Welsh as a language of choice and interpreters – within Wales • Number of cases taken by the official solicitor on behalf of those deemed to not have capacity • Percentage of detained people who report that they find it easy or very easy to communicate with their solicitor or legal representative • The average number of days taken from offence to completion of a criminal case in the magistrates’ courts (sheriff’s courts for Scotland), with separate reporting for all defendants and youth defendants • The number/outcome of civil cases involving the HRA (HM Court Services – self-reported N1 form)

Indicator 37: Spotlight statistics: Special prosecution • Use of special advocates when information is withheld • Closed cases with a separate report for why it was a closed case, i.e. to protect young people, for reasons of national security, etc.) – terrorism and other proceedings, including family • Consideration of evidence not put before jury for example, intercept evidence
The Right to a Fair Trial – HRA, Article 6

Indicator 38: Spotlight statistics: Appropriate justice for children and young people • Number of children whose case proceeds in the crown court rather than the Youth youth Court court (England and Wales) • Number of 15-17 year olds in adult prisons

Panel and indicators (continued)

The Right to a Fair Trial – HRA, Article 6

‘Outcome’ (indicators of the position of individuals and groups in practice/ emergence of a human rights ‘culture’)

Indicator 39:Spotlight statistics: Treatment of victims and witness protection Indicator 40: Spotlight statistics: Public attitudes, understanding and experiences • Public attitudes towards the right to liberty and security of the person as a right ‘you do have’ and ‘you should have’ • Perceptions of fair treatment by the criminal justice system • Confidence in the criminal justice system

Indicators should be systematically disaggregated Key disaggregation characteristics include ethnicity/race, gender, disability, sexual orientation, transgender, religion and belief, age, social class, area (region, urban/rural, remoteness) with separate reporting of the non-private household population and at risk/vulnerable groups including individuals staying in/resident/detained in public and private institutions; individuals living in poverty; refugees/asylum seekers, vulnerable children and young people (for example, children in need, ‘looked after children’, children who are carers), Gypsies and Travellers, etc.

344

The Right to a Fair Trial – HRA, Article 6

Evidence base
Structural indicators Indicator 31: Legal and constitutional framework
Table 191: Protection of the right to a fair trial in domestic law (including constitutional/‘higher’ law) UK HRA Article 6. Table 192: Status of ratification of relevant international treaties374 International Covenant on Civil and Political Rights (ICCPR) Article 14 – ratified. ICCPR First Optional Protocol – not ratified (individual complaints mechanism). ECHR and Protocols 1, 2, 3, 5, 6, 8, 10, 11, 13 and 14 – ratified.

Indicator 32: Legal precedents, gaps and standard-setting
Table 193: Principles established in key cases (domestic and ECHR) Right to a trial within a reasonable time • Bullen and Soneji v UK no. 3383/06 [2009] ECHR375 – The European Court of Human Rights found that the length of the criminal proceedings contravened reasonable time requirements and was therefore in violation of Article 6.

Right to an independent and impartial judge or tribunal • G v The Governors of X School and Y Local Authority [2010] EWCA Civ 1376 – In a case relating to the right to a fair trial in employment disciplinary proceedings, the Court of Appeal ruled that Article 6 rights were engaged in a disciplinary proceedings which could lead to a teacher being statutorily barred from practising his profession. Starrs v Ruxton [2000] JC 208 – The High Court of Justiciary found that in relation to the requirement for an independent and impartial tribunal, the position of temporary sheriffs, appointed by the lord advocate for periods of one year, was found to be incompatible with Article 6 owing to their lack of security of tenure.377 McMichael v UK no. 16424/90 [1995] ECHR378 – The European Court of Human Rights found that the applicant did not receive a ‘fair hearing’, within the meaning of Article 6.1 at either of the two stages in the care proceedings concerning her son because, as a matter of practice, documents lodged with the sheriff’s court were not made available to her, placing her at a substantial disadvantage, both in respect of bringing an appeal and in the subsequent presentation of any appeal (Miller et al., 2004).

345

The Right to a Fair Trial – HRA, Article 6

Right to a public judgement • R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65379 – The Court of Appeal found that the principles of freedom of expression, democratic accountability and the rule of law were integral to the principle of open justice, so that, where litigation had occurred and judgment given, any disapplication of the open justice principle (which included the ordinary right of all the parties to the litigation to know the reasons for the court’s decision) had to be rigidly contained. It should be rare for the court to order that any part of the reasoning in its judgment which had led it to its conclusion should be redacted, and any such order should be made only in extreme cases.

Right to compensation in cases of miscarriage of justice • Osman v UK no. 87/1997/871/1083 [1998] ECHR380 – The European Court of Human Rights found that the applicant’s loss of the right to take legal proceedings against the police for negligence and to argue the justice of their case due to a blanket immunity being granted to police from civil actions constituted a disproportionate restriction on the applicant’s right of access to a court.

Right to a fair hearing in determining legal capacity • Salontaji-Drobnjak v Serbia no. 36500/05[2009] ECHR381 – The European Court of Human Rights found that individuals have a right to a fair hearing (including right to participate in decisions and access to a court to challenge decisions) in relation to a determination of their legal capacity. The ECtHR found a violation of Articles 6.1 and 8.

Right to effective participation • T v UK (GC) no. 24724/94 [1999] ECHR382 – The European Court of Human Rights found that the applicant, a child, was unable to participate effectively in the criminal proceedings against him and was, in consequence, denied a fair hearing in breach of Article 6.1.

Limitations on the right of access to court • Golder v UK no. 4451/70 [1975] ECHR383 – The European Court of Human Rights held that there are legitimate limitations on the right to access to a court; however in Stubbings v UK no. 22083/93 [1995] ECHR384, the European Court held that any limitation on access must be proportionate.

346

The Right to a Fair Trial – HRA, Article 6

For criminal proceedings: right to presumption of innocence; right to be informed of accusations against you; right not to be forced to answer questions; right to adequate time to prepare your defence; right to legal aid if you cannot afford a lawyer and it is in the interests of justice for you to have one; right to be present at your trial; right to put your side of the case at trial; right to question witnesses against you and to call your own witnesses; right to an interpreter if you need one • John Murray v UK (GC) 18731/91 [1996], ECHR385 – In a key case on the right to remain silent and not to incriminate oneself, the European Court of Human Rights found that the applicant’s lack of access to a lawyer in the first 48 hours of his detention was a violation of Article 6. Edwards and Lewis v UK (GC) nos. 39647/98 and 40461/98 [2003] ECHR386 – The European Court of Human Rights found that the procedure employed to determine the issues of disclosure of evidence and entrapment did not comply with the requirements to provide adversarial proceedings and equality of arms or incorporate adequate safeguards to protect the interests of the accused. Cadder v HM Advocate [2010] UKSC 43387 – The Supreme Court found that an accused person’s rights are breached if the prosecution leads and relies on evidence from the accused’s interview by police, if a solicitor was not present at that interview. Salduz v Turkey (GC) no. 36391/02 [2008] ECHR388 – The European Court of Human Rights determined ‘that, even if the primary purpose of Article 6, as far as criminal proceedings are concerned, is to ensure a fair trial by a ‘tribunal’ competent to determine ‘any criminal charge’, it does not follow that the Article has no application to pre-trial proceedings. Thus, Article 6 – especially paragraph 3 – may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply with its provisions’. The European Court of Human Rights found a violation of Articles 6.1 and 6.3. Wright v Secretary of State for Health [2009] UKHL 3389 – the House of Lords found that the interim listing of a care worker as someone who could not have contact with vulnerable adults (protection of vulnerable adults order) without the right to be heard violated Article 6 and that the subsequent fairness of appellate proceedings could not cure the defect in this case where the interim listing effectively made Wright unemployable. Saunders v UK no. 19187/91 [1994] ECHR390 – The European Court of Human Rights found that the right to presumption of innocence was violated where a criminal trial included evidence contained in interviews that the applicant had been compelled to give during a Department of Trade and Industry investigation.

347

The Right to a Fair Trial – HRA, Article 6

Cases concerning unlawfully obtained evidence • Austria v Italy no. 788/60 [1961] ECHR – The European Court of Human Rights held that evidence obtained in breach of absolute rights, such as protection from inhuman and degrading treatment or torture, must always be excluded from trial. Khan v UK no. 35394/97 [2000] ECHR391; Schenk v Switzerland no. 10862/84 [1987] ECHR392 – The European Court of Human Rights found that the mere fact that evidence has been obtained in breach of other rights under the ECHR does not automatically lead to its exclusion. The question which must be answered is whether the proceedings as a whole, including the way the evidence was obtained, were fair.

Reverse onus cases • Salabiaku v France no. 10519/83 [1988] ECHR393 – In finding no violation of Article 6, the European Court of Human Rights accepted that reverse onus provisions do not inevitably give rise to a breach of the right to a fair trial. However, whether there is a breach or not will depend on whether the modification or limitation of the right to be presumed innocent pursues a legitimate aim and whether it satisfies the principle of proportionality (see Ashingdane v UK (GC) no. 8225/78 [1985] ECHR394; Brown v Stott [2000] UKPC D3395).

The rights of witnesses • X v UK (1993) 15 EHRR CD 113 – The European Court of Human Rights held that if necessary, screens and other equipment can be used in court to protect vulnerable witnesses.

Table 194: Principles established in international standard setting processes • United Nations Office of the High Commissioner for Human Rights (OHCHR) General Comment 13396 on equality before the courts and the right to a fair and public hearing by an independent court established by law. UN Human Rights Committee General Comment 32397 on the right to equality before courts and tribunals and to a fair trial.

Table 195: Gaps in legal protection Individual complaint under ICCPR First Optional Protocol – not ratified.

348

The Right to a Fair Trial – HRA, Article 6

Process indicators Indicator 33: Regulatory framework
Table 196: List of key regulators, inspectorates and ombudsmen Criminal Cases Review Commission Scottish Criminal Cases Review Commission Legal Services Commission Legal Ombudsman for England and Wales Office of Legal Complaints Royal Courts of Justice Advice Bureau Miscarriages of Justice Support Service Her Majesty’s Crown Prosecution Service Inspectorate (HMCPSI) Professional self-regulatory bodies Solicitors Regulation Authority (SRA) Legal Complaints Service Legal Services Board Solicitors Disciplinary Tribunal Bar Standards Board Conduct Committee of the Bar Council

Indicator 34: Public policy framework
Table 197: Public expenditure on legal aid,
Expenditure in Departmental Spending Limits 2007-08 outturn (£000) Criminal Defence Service Community Legal Services 1,178,271 843,970 2008-09 outturn (£000) 1,187,750 912,797 2009-10 (£000) 1,208,825 940,340

Source: Ministry of Justice (MoJ) (2009b, 2010h). Notes: Information from the Ministry of Justice’s resource accounts. Figures do not include the resources spent on administration for the Legal Services Commission. The Legal Services Commission is the public body responsible for administering legal aid in England and Wales. It delivers legal services through two schemes: the Community Legal Service and the Criminal Defence Service. ‘Legal aid funds the provision of legal advice and representation for people who would otherwise be denied access to justice because they could not afford to pay’. 349

The Right to a Fair Trial – HRA, Article 6

Outcome indicators Indicator 35: Outcomes of key judicial, regulatory and investigative processes
Table 198: Violations of the right to a fair trial: case law outcomes • • Bullen and Soneji v UK no. 3383/06 [2009] ECHR398 – Violation of Article 6 (see Table 193). G v The Governors of X School and Y Local Authority [2010] EWCA Civ 1399 – Where an individual was subject to two or more sets of proceedings, or phases of a single proceeding, and a civil right or obligation enjoyed or owed by him would be determined in one of them, he could (but not necessarily would), by force of Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms , enjoy appropriate procedural rights in relation to another of them if its outcome would have a substantial influence or effect on the determination of the civil right or obligation. Accordingly, disciplinary proceedings which could lead to a teacher being statutorily barred from working with children were determinant of an individual’s right to practice his profession and art 6 was engaged by those proceedings (see Table 193). Starrs v Ruxton [2000] JC 208 – The position of temporary sheriffs, appointed by the lord advocate for periods of one year, was found to be incompatible with Article 6 owing to their lack of security of tenure400 (see Table 193). McMichael v UK no. 16424/90 [1995] ECHR401 – Violation of Articles 6 and 8 (see Table 193). R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65402 – The Court of Appeal dismissed an appeal by the Secretary of State for Foreign and Commonwealth Affairs, arguing that five paragraphs in the judgement should be redacted, on the basis that the principles of freedom of expression, democratic accountability and the rule of law were integral to the principle of open justice, so that, where litigation had occurred and judgement given, any disapplication of the open justice principle (which included the ordinary right of all the parties to the litigation to know the reasons for the court’s decision) had to be rigidly contained. It should be rare for the court to order that any part of the reasoning in its judgement which had led it to its conclusion should be redacted, and any such order should be made only in extreme cases (see Table 193). Osman v UK no. 87/1997/871/1083 [1998] ECHR403 – No violation of Articles 2 and 8; violation of Article 6 (see Table 193). T v UK (GC) no. 24724/94 [1999] ECHR404 – Violation of Article 6.1 (see Table 193). Golder v UK no. 4451/70 [1975] ECHR405 – Violation of Articles 6.1 and 8 (see Table 193).

• •

• • •

350

The Right to a Fair Trial – HRA, Article 6

• •

Stubbings v UK no. 22083/93 [1995] ECHR406 – No violation of Article 6.1 (see Table 193). John Murray v UK (GC) no. 18731/91 [1996] ECHR407 – Violation of Articles 6.1 and 6.3 as regards the applicant’s lack of access to a lawyer during the first 48 hours of his police detention (see Table 193). Edwards and Lewis v UK (GC) nos. 39647/98 and 40461/98 [2003] ECHR408 – Violation of Article 6 as the procedure employed to determine the issues of disclosure of evidence and entrapment did not comply with the requirements to provide adversarial proceedings and equality of arms or incorporate adequate safeguards to protect the interests of the accused (see Table 193). Cadder v HM Advocate [2010] UKSC 43409 – Leading and relying on the evidence of the appellant’s interview by the police without the presence of his lawyer was a violation of his rights under Article 6.3(c) read in conjunction with Article 6.1 (see Table 193). Wright v Secretary of State for Health [2009] UKHL 3410 – Violation of Article 6 (see Table 193). Saunders v UK no. 19187/91 [1994] ECHR411 – Violation of Article 6.1 (see Table 193). Khan v UK no. 35394/97 [2000] ECHR412 – No violation of Article 6.1; violation of Article 8 (see Table 193). X v the UK (1993) 15 EHRR CD 113.

• • • •

Table 199: Key concerns raised by human rights monitoring bodies Domestic • Joint Committee on Human Rights (JCHR) (2010c), Counter-Terrorism Policy and Human Rights (Seventeenth Report): Bringing human rights back in413, 9 March 2010, concluded ‘that the use of secret evidence and special advocates in the control order regime, as that regime is currently designed in law and operated in practice, could not be made to operate in a way which is compatible with the requirements of basic fairness inherent in both the common law and Article 6 ECHR’. The JCHR recommended ‘that the Government urgently conduct a comprehensive review of the use of secret evidence and special advocates, in all contexts in which they are used, in light of the judgements of the European Court of Human Rights and the House of Lords, to ascertain how often they are used and whether their use is compatible with the minimum requirements of the right to a fair hearing’.

351

The Right to a Fair Trial – HRA, Article 6

JCHR (2010b), Counter-Terrorism Policy and Human Rights (Sixteenth Report): Annual Review of Control Orders Legislation 2010414, 23 February 2010, found that the current system of control orders cannot be made to operate in a way that is compatible with the requirements of basic fairness which are inherent in both the common law and in Article 6 ECHR, as ‘the current system is not capable of ensuring the substantial measure of procedural justice that is required’. JCHR (2009b), Legislative Scrutiny: Policing and Crime Bill (gangs injunctions)415, 27 April 2009, expressed the JCHR’s concern that the proposed introduction of gang injunctions represents the introduction of another measure of control which is ‘outside of the criminal process and which avoid the appropriate standard of fairness’. JCHR (2009c), Children’s Rights416, October 2009, noted its concerns about ‘the degree to which ASBOs hasten children’s entry into the criminal justice system, before other strategies have been tried.’ The JCHR also expressed its particular concern about ‘the high number of children from especially vulnerable and marginalised groups within the criminal justice system. The Government should review and explain why such a disproportionate number of children who are looked-after, Gypsies and Travellers or have autism, are present within the criminal justice system, and why existing strategies appear to be failing’. JCHR (2010d), Work of the Committee in 2008-2009417, reported that ‘the system of control orders, by which the activities of terrorism suspects who have not been prosecuted can be regulated and curtailed, is bound to lead to breaches of the ECHR, particularly because people subject to control orders are not given the details of the case against them.’ Scottish Human Rights Commission, Comments in response to the Criminal Procedure (Legal Assistance, Detention and Appeals) Scotland Bill 2010.418

International • UN Human Rights Committee (2008), ‘The Committee is concerned about the control order regime established under the Prevention of Terrorism Act 2005 which involves the imposition of a wide range of restrictions, including curfews of up to 16 hours, on individuals suspected of being ‘involved in terrorism’, but who have not been charged with any criminal offence…. The Committee is also concerned that the judicial procedure whereby the imposition of a control order can be challenged is problematic, since the court may consider secret material in closed session, which in practice denies the person on whom the control order is served the direct opportunity to effectively challenge the allegations against him or her.’ (Articles 9 and 14).419

352

The Right to a Fair Trial – HRA, Article 6

UN Human Rights Committee (2008), ‘under Schedule 8 to the Terrorism Act 2000, access to a lawyer can be delayed for up to 48 hours if the police conclude that such access would lead, for instance, to interference with evidence or alerting another suspect. The Committee considers that the State party has failed to justify this power.’420 United Nations Human Rights Council (UNHRC) (2010), Joint Study on global practices in relation to secret detention in the context of countering terrorism, of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Martin Scheinin; the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak; the Working Group on Arbitrary Detention represented by its Vice-Chair, Shaheen Sardar Ali; and the Working Group on enforced or involuntary disappearances represented by its Chair, Jeremy Sarkin, 19 February 2010421, detailed allegations that the UK knowingly took advantage of the situation of secret detention, including in the cases of including Binyam Mohamed, Salahuddin Amin, Zeeshan Siddiqui, Rangzieb Ahmed and Rashid Rauf422. Reprieve notes that the report includes: – ‘Confirmation that the UK knew about US renditions practices from 2002, yet continued to hand vulnerable prisoners to US custody with no process until well into 2004; – Confirmation that the UK knowingly received information obtained from prisoners being interrogated in US ghost detention; – Numerous cases showing that the UK took advantage of illegal secret detention practices over at least three continents by colluding in torture; – Unanswered questions in relation to the number of prisoners held by torturous Arab regimes at the request of the UK’423

See Table 83 for further details. • UN Human Rights Committee (2008), Consideration of reports submitted by States parties under article 40 of the Covenant: International Covenant on Civil and Political Rights: concluding observations of the Human Rights Committee: United Kingdom of Great Britain and Northern Ireland, 30 July 2008424, noted that ‘in order to combat terrorist activities, the State party is considering the adoption of further legislative measures which may have potentially far-reaching effects on the rights guaranteed in the Covenant. In particular, while it is disturbed by the extension of the maximum period of detention without charge of terrorist suspects under the Terrorism Act 2006 from 14 days to 28 days, it is even more disturbed by the proposed extension of this maximum period of detention under the counterterrorism bill from 28 days to 42 days… The State party should ensure that any terrorist suspect arrested should be promptly informed of any charge against him or her and tried within a reasonable time or released’.

353

The Right to a Fair Trial – HRA, Article 6

The UN Human Rights Committee also noted its concerns about ‘about the control order regime established under the Prevention of Terrorism Act 2005 which involves the imposition of a wide range of restrictions, including curfews of up to 16 hours, on individuals suspected of being ‘involved in terrorism’, but who have not been charged with any criminal offence. While control orders have been categorized by the House of Lords as civil orders, they can give rise to criminal liability if breached. The Committee is also concerned that the judicial procedure whereby the imposition of a control order can be challenged is problematic, since the court may consider secret material in closed session, which in practice denies the person on whom the control order is served the direct opportunity to effectively challenge the allegations against him or her. The State party should review the control order regime established under the Prevention of Terrorism Act 2005 in order to ensure that it is in conformity with the provisions of the Covenant. In particular, it should ensure that the judicial procedure whereby the imposition of a control order can be challenged complies with the principle of equality of arms, which requires access by the concerned person and the legal counsel of his own choice to the evidence on which the control order is made. The State party should also ensure that those subjected to control orders are promptly charged with a criminal offence.’ Table 200: Outcomes of inspection, regulation and complaints procedures that engage Article 6 • • Privy Council (2008), Review of Intercept as Evidence, 30 January 2008, which provided in-principle support for the introduction of intercept as evidence.425 The Hunt Review of the regulation of legal services (Hunt, 2009)426, October 2009, ‘an independent report into the future regulation of law firms… undertaken on behalf of the profession, in the hope of helping to build an effective, proportionate regulatory regime that would serve the public interest in line with the statutory regulatory objectives’. Review of the Regulation of Corporate Legal Work (Smedley, 2009)427, March 2009, made a number of recommendations ‘to strengthen the capacity of the SRA to regulate and supervise the corporate legal sector, so that the risks of regulatory failure are reduced’. Ministry of Justice (2010), Review of Legal Aid Delivery and Governance (Magee, 2010)428, explored models for the delivery of legal aid; the possibility of separating the Criminal Defence Service from the Community Legal Service; and explored the effectiveness of ministerial accountability for, and policy direction of, legal aid; and of the transparency of financial management arrangements. Review of Scots criminal law and practice in light of the Cadder decision of the UK Supreme Court, Carloway.429

354

The Right to a Fair Trial – HRA, Article 6

Table 201: Key concerns and allegations raised by private individuals and civil society organisations/reports in the media • International Commission of Jurists (2009), Assessing Damage, Urging Action, Report of the Eminent Jurists Panel on Terrorism, Counter-Terrorism and Human Rights, 17 February 2009430, expressed concern that, over the longer term, control orders could give rise to a ‘parallel legal system’ and undermine the rule of law. It concluded that if control orders are to be used, it is essential to build in appropriate safeguards and that there are many important safeguards missing in the control order system currently operating in the UK. Justice (2009), Secret Evidence, based on a comprehensive survey of the use of secret evidence since the Special Immigration Appeals Commission was created in 1997, the report argues that over the last 12 years, ‘the British traditions of open justice and the right to a fair hearing have increasingly been undermined by the use of secret evidence in closed hearings. It sets out recommendations for the reform of the current law and procedure in order to guarantee that all defendants are able to know the evidence against them’. Amnesty International (2010e), Five Years On: Time to End the Control Orders Regime, August 2010431, highlighted the severe restrictions control orders place on individuals, sometimes in violation of their rights to liberty, freedom of movement, expression, association and privacy. Amnesty International found that the control order regime failed to meet the requirements of international human rights law. Sound off for justice432, the Law Society’s campaign against proposed government cuts to legal aid, argues ‘that the cuts proposed threaten the very principle of access to justice’.

Indicator 36: Spotlight statistics: Access to courts and tribunals
Table 202: Provision of interpreters and information in alternative languages for those detained in an immigration removal centre, as self-reported by detainees, England and Wales, 2008-09
N When being detained, were you told the reasons why in a language you could understand? Following detention, were you given written reasons why you were being detained in a language you could understand? Of those who have had a written review, was the review written in a language you could understand? 652 571 303 % 69 62 64

Source: HM Inspectorate of Prisons (HMIP) for England and Wales (2010b). Notes: Total number of survey respondents: 1,019. Percentages may vary in regard to the n-value as all comparator data is weighted. Immigration removal centre comparator from 2005 onwards. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2 for demographic information. 355

The Right to a Fair Trial – HRA, Article 6

Table 203: Detained people who self-report that they find it easy or very easy to communicate with their solicitor or legal representative, England and Wales, 2008-09
Type of prison Local N=4,323 High security N=418 Young offenders (18-21) N=1,858 Category B trainers N=855 Category C trainers N=4,167 Open N=1,254 Female N=1,352 Immigration removal centres N=1,019 N 1,606 223 832 377 1,839 717 457 258 % 41 58 47 57 51 62 42 43

Source: HMIP for England and Wales (2010b). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High security comparator from 2007 onwards. Young offender institutions comparator from 2005 onwards. Cat B Trainers comparator from 2005 onwards. Category B trainers comparator from 2005 onwards. Opens comparator from 2005 onwards. Children and young people comparator from 2009 onwards. Female comparator from 2005 onwards. Immigration removal centre comparator from 2005 onwards. Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2 for demographic information.

356

The Right to a Fair Trial – HRA, Article 6

Table 204: Adult male prisoners who self-report that they find it easy or very easy to communicate with their solicitor or legal representative, by ethnicity, religion and disability, England and Wales, 2008-09
Black and minority ethnic prisoners Number of completed questionnaires Percentage who find it easy or very easy to communicate with their solicitor or legal representative Consider themselves to have a disability Do not consider themselves to have a disability

White

Muslim prisoners

Non-Muslim prisoners

1,037

2,890

422

3,435

559

3,170

43%

50%

44%

49%

43%

49%

Source: HMIP for England and Wales (2010b). Notes: Light grey boxes denote where the group is significantly worse than the comparator. (Emphasis as in publication.)

357

The Right to a Fair Trial – HRA, Article 6

Table 205: Percentage of those who are very satisfied with their experience of visiting court by ethnicity, age, disability, gender and religion, England and Wales, 2008-10
Data recorded between 1 May 2008 – 7 April 2009 (‘Year 3’) Overall Ethnicity White Asian Black Age 16-34 35-54 55+ Illness Longstanding illness No illness Gender Male Female Religion No religion Christian Other N/A N/A N/A 36 43 38 N/A N/A N/A 39 45 37 43 Yes No 44 42 41 40 No Yes 38 44 49 36 42 47 Yes No No 43 40 36 41 35 29 Yes No Yes 42 Data recorded between 1 May 2009 – 31 March 2010 (‘Year 4’) 40 Statistically significant difference between Years 3 and 4? Yes

Source: MoJ (2010g). Notes: Data based on the following question: ‘Disregarding the outcome of your visit, or the result of your case, how satisfied or dissatisfied are you generally you’re your experience today?’. Religion was asked for the first time in Year 4. Other religions are not shown due to low base sizes. For details of the base numbers, please see the original source.

358

The Right to a Fair Trial – HRA, Article 6

Table 206: Percentage of civil justice problems where respondents obtained advice, England and Wales, January 2006 – January 20091
Did not obtain advice Count 18-24 25-44 45-64 65-74 75+ Female Male White Asian/Asian British Black/Black British Mixed Chinese or other Religion – None Christian Buddhist Hindu Jewish Muslim Sikh Other Not ill/disabled Ill/disabled 302 1,364 1,055 245 103 1,615 1,456 2,818 99 88 34 23 1,111 1,790 22 26 10 67 10 27 2,140 931 % 57.9 48.7 49.7 53.3 58.2 48.3 53.1 49.9 56.6 61.5 61.8 59.0 51.4 49.7 59.5 57.8 43.5 53.2 76.9 52.9 51.3 48.7 Obtained advice Count 220 1,435 1,066 215 74 1,729 1,285 2,831 76 55 21 16 1,050 1,815 15 19 13 59 3 24 2,033 981 % 42.1 51.3 50.3 46.7 41.8 51.7 46.9 50.1 43.4 38.5 38.2 41.0 48.6 50.3 40.5 42.2 56.5 46.8 23.1 47.1 48.7 51.3 Continued

359

The Right to a Fair Trial – HRA, Article 6

Table 206: Percentage of civil justice problems where respondents obtained advice, England and Wales, January 2006 – January 20091 (continued)
Did not obtain advice Count Class – Don’t know Modern professional occupations Clerical and intermediate occupations Senior managers or administrators Technical and craft occupations Semi-routine manual service occupations Routine manual service occupations Middle or junior managers Traditional professional occupations Other (specify) 7 378 352 190 228 249 306 113 159 12 % 63.6 50.7 54.2 51.9 52.5 48.3 47.2 44.8 53.2 29.3 Obtained advice Count 4 368 298 176 206 267 342 139 140 29 % 36.4 49.3 45.8 48.1 47.5 51.7 52.8 55.2 46.8 70.7

Source: Alkire et al. (2009), table provided by Legal Services Research Centre. Notes: 1 Civil and Social Justice Survey covers adults 18+. The survey question on disability refers to ‘a longstanding illness, disability or infirmity’ and ‘By longstanding I mean anything that troubled [you/them] over a period of time or that was likely to affect [you/ them] over a period of time’.

360

The Right to a Fair Trial – HRA, Article 6

Table 207: Percentage of civil justice problems where respondents gave up or did nothing as opposed to other outcomes, England and Wales, January 2006 – January 20091
Other outcome Count 18-24 25-44 45-64 65-74 75+ Female Male White Asian/Asian British Black/Black British Mixed Chinese or other Religion – None Christian Buddhist Hindu Jewish Muslim Sikh Other Not ill/disabled Ill/disabled 223 1,287 971 194 68 1,445 1,303 2,596 64 52 15 15 981 1,649 16 18 14 41 2 23 1,954 794 % 70.3 78.2 78.0 70.5 62.4 75.4 77.6 76.8 66.7 74.3 62.5 75.0 75.9 77.4 76.2 58.1 82.4 64.1 40.0 74.2 76.7 75.6 Gave up/did nothing Count 94 359 274 81 41 472 377 783 32 18 9 5 311 481 5 13 3 23 3 8 593 256 % 29.7 21.8 22.0 29.5 37.6 24.6 22.4 23.2 33.3 25.7 37.5 25.0 24.1 22.6 23.8 41.9 17.6 35.9 60.0 25.8 23.3 24.4 Continued

361

The Right to a Fair Trial – HRA, Article 6

Table 207: Percentage of civil justice problems where respondents gave up or did nothing as opposed to other outcomes, England and Wales, January 2006 – January 20091 (continued)
Other outcome Count Class – Don’t know Modern professional occupations Clerical and intermediate occupations Senior managers or administrators Technical and craft occupations Semi-routine manual service occupations Routine manual service occupations Middle or junior managers Traditional professional occupations Other (specify) 3 369 277 167 210 227 257 116 149 12 % 37.5 77.5 74.1 76.3 78.1 74.2 74.5 77.3 76.4 63.2 Gave up/did nothing Count 5 107 97 52 59 79 88 34 46 7 % 62.5 22.5 25.9 23.7 21.9 25.8 25.5 22.7 23.6 36.8

Source: Alkire et al. (2009), table provided by Legal Services Research Centre. Notes: 1 Civil and Social Justice Survey covers adults 18+. The survey question on disability refers to ‘a longstanding illness, disability or infirmity’ and ‘By longstanding I mean anything that troubled [you/them] over a period of time or that was likely to affect [you/ them] over a period of time’.

362

The Right to a Fair Trial – HRA, Article 6

Indicator 37: Spotlight statistics: Special prosecution Indicator 38: Spotlight statistics: Appropriate justice for children and young people
Table 208: Number of over 10 and under 18 year old defendants appearing at the Crown Court for trial or sentence, by sex, England and Wales, 2008
Age and reason for appearing 10 – under 12 Appearing for trial Appearing for sentence Male Female Male Female 12 – under 15 Appearing for trial Appearing for sentence Male Female Male Female 15 – under 18 Appearing for trial Appearing for sentence Male Female Male Female Total 2,835 282 2,177 170 5,872 189 17 150 8 379 205 25 154 15 9 0 6 0 5 0 4 0 0 0 0 0 Sex England Wales

Source: MoJ (2010c). For further relevant evidence under this Indicator, see Table 154.

363

The Right to a Fair Trial – HRA, Article 6

Indicator 39: Spotlight statistics: Treatment of victims and witnesses protection
Table 209: Percentage of victims and witnesses satisfied with their treatment with the criminal justice system, measured by the Witness and Victim Experience Survey, England and Wales (2008-09 – 2009-10)
Victims and witness satisfaction with the criminal justice system2 Cases closed period England and Wales October 2008 to September 2009 83 (base 37,895) October 2009 to September 20102 85* (base 37,864)

Source: Ministry of Justice (2011b). Notes: The table shows the percentage of victims and witnesses completely/very/fairly satisfied (weighted data). * Denotes a statistically significant difference at the 5% significance level compared with the previous 12 months. Percentages have been rounded to the nearest whole percentage point. 2 Data for the period October 2009 to September 2010 are provisional and subject to change. Data for Northumbria are based on cases closed between October 2009 to June 2010 only, and should be used with caution. Table 210: Percentage of victims and witnesses satisfied with their overall contact with the criminal justice system by ethnicity, measured by the Witness and Victim Experience Survey, England and Wales, cases closed in the 12 months to June 2010
Percentages and base sizes White Satisfied Neither satisfied nor dissatisfied Dissatisfied Base 85 2 13 13,355 Asian 84 3 13 1,938 Black 81 1 17 1,025 Mixed 81 2 17 695 Chinese or Other 86 2 12 566 Total 84 2 13 37,579

Source: MoJ (2011b). Notes: 1 Figures may not sum to 100 due to rounding. 2 Respondents who did not state their ethnicity excluded. 3 Ministry of Justice (MoJ) analysis suggests that significantly fewer people in the Black ethnic group reported being satisfied than in the White ethnic group and significantly more people in the Black ethnic group reported being dissatisfied than in the White, Asian, and Chinese or Other ethnic groups. The difference in the proportion of Mixed and White ethnic groups reporting being dissatisfied was also significant. 364

The Right to a Fair Trial – HRA, Article 6

Indicator 40: Spotlight statistics: Public attitudes, understanding and experiences
Table 211: Public attitudes towards ‘being entitled to a fair trial’
Which of the following, if any, would you say are the most important values for living in Britain today? Being entitled to a fair trial 58 %

And which four of five, if any, are most important to you personally? 28 %

And which, if any, do you consider to be fundamental human rights? 39 %

Source: Kaur-Ballagan et al. (2009). Notes: This data is based on a demographically representative, face-to-face omnibus survey with 1,994 British adults over the age of 16 undertaken in August 2008.

365

Table 212: Public attitudes toward the right to a fair trial: Liberty polling exercise
Age Social grade Region

Gender

Total Male 93 120 115 99% 99% 99% 96% 97% 201 96% 99% 97% 91% 94% 144 222 227 132 139 267 281 191 216 97% 236 93% 187 74% 53 60 77 49 19% 1 3% 2 1% 2 1% * 2 1% – 7 2% 11 5% 4 2% 8 4% 4 2% 11 4% 1 1% 151 189 169 148 208 268 287 202 224 248 258 98% 250 95% 187 71% 63 24% 7 3% 5 2% 160 190 170 150 210 270 290 210 230 254 264 163 194 184 159 207 376 198 157 269 259 252 253 251 250 99% 248 99% 188 75% 60 24% 2 1%

Female

1824 65+ AB C1 C2 DE Midlands

2534 35-44 45-54

5564

South East

North England

Wales and South West Scotland 145 144 142 98% 138 95% 107 74% 31 21% 4 3% 1 1% 91 87 84 97% 82 95% 51 59% 31 36% 2 2% 2 3% Continued

The Right to a Fair Trial – HRA, Article 6

Unweighted base

1,000

434

566

Weighted base

1,000

490

510

Net: Of use at all

981

480

501

Net: Of use at all 107 98% 144 76% 43 23% 2 1% 1 . 3% 1% 4 2 7 22% 18% 37 27 57 44 75% 79% 127 119 97% 98% 148 187 165 146

98%

98%

98% 96% 94% 100% 100% 99%

366
79 107 69% 82% 78% 63% 60% 29 41 27% 16% 18% 28% 33% 8 7% 3 2% 1% 2 2% 3

Net: Vital/ important

954

463

491

Net: Vital/ important

95%

95%

96% 89% 92%

Vital4

720

361

360

72%

74%

70% 66% 67%

Important3

234

103

131

23%

21%

26% 24% 25%

Useful2

27

16

10

3%

3%

2%

Unnecessary1

10

8

2

1%

2%

*

Table 212: Public attitudes toward the right to a fair trial: Liberty polling exercise (continued)
Age Social grade Region

Gender

Total Male 2 1% 3.75 0.46 0.03 0.04 0.04 0.04 0.02 0.03 0.05 0.04 0.04 0.53 0.53 0.60 0.46 0.47 0.68 0.66 0.58 0.64 0.04 3.71 3.76 3.63 3.81 3.77 3.55 3.53 3.69 3.64 4% * – 1% 2% 1% 2% * 1% 3.75 0.45 0.03 6 1 – 3 4 2 5 1 1

Female

1824 65+ AB C1 C2 DE Midlands

2534 35-44 45-54

5564

South East

North England

Wales and South West Scotland 2 1% 3.71 0.55 0.05 – 3.51 0.68 0.07

Don’t know

9

2

7

1%

1%

1%

Mean

3.68

3.68

3.68 3.55 3.65

Standard deviation

0.58

0.62

0.53 0.73 0.61

Standard error

0.02

0.03

0.02 0.08 0.05

Base: All respondents

367

Source: Liberty (2011).

Note: Respondents were asked the following question [several rights were actually listed and respondents’ responses to each right are shown in the relevant chapter]: ‘In modern Britain, would you say each of the following rights are vital, important, useful, or unnecessary? The right to a fair trial.’ [
The Right to a Fair Trial – HRA, Article 6

The Right to a Fair Trial – HRA, Article 6

Table 213: Percentage of people that are very or fairly confident that the criminal justice system respects the rights of individuals accused of committing a crime and treats them fairly, by age, gender, ethnicity, disability, religion and social class, England and Wales, 2007-08
% Age 16-24 25-44 45-64 65-74 75+ Gender Male Female Ethnicity White Mixed Asian Black Chinese/other Non-white White Disability No limiting longstanding illness or disability Limiting longstanding illness or disability Religion Christian Buddhist Hindu Jewish Muslim Sikh Other No religion 80.3 80.4 75.2 70.6 78.2 80.9 81.3 78.0** Continued 80.2 77.5** 80.1 75.9 78.9 68.8** 77.9 76.0 80.1** 80.5 79.0** 75.9 80.4** 80.4** 80.4** 80.7**

368

The Right to a Fair Trial – HRA, Article 6

Table 213: Percentage of people that are very or fairly confident that the criminal justice system respects the rights of individuals accused of committing a crime and treats them fairly, by age, gender, ethnicity, disability, religion and social class, England and Wales, 2007-08 (continued)
% Social class Managerial and professional occupations Intermediate occupations Small employers and own account workers Lower supervisory and technical Semi-routine and routine Never worked and long-term unemployed Full-time student Not classified 82.4 81.1 77.9** 79.7** 77.2** 77.4** 78.2** 77.5

Source: Alkire et al. (2009) Notes: Data from British Crime Survey England and Wales, 2007-08. Authors’ preliminary calculations. ** Denotes statistical significance based on ANOVA test. Table 214: Proportion of those questioned in the British Crime Survey expressing confidence that the criminal justice system as a whole is fair, England and Wales (2008-09 – 2009-10)
Confident that the criminal justice system as a whole is fair3 12 months to September 09 England and Wales 59 12 months to September 10 61*

Source: MoJ (2011c). Notes: This table shows the percentage of those questioned who were very/fairly confident. Percentages have been rounded to the nearest whole percentage point. Data are provisional and subject to change. The confidence indicator is made up of two questions: 1. The criminal justice system as a whole is effective and 2. The criminal justice system as a whole is fair. A revised method to calculate survey design effects was introduced from March 2009 which is comparable with the method used by the Home Office British Crime Survey team.

369

The Right to a Fair Trial – HRA, Article 6

Table 215: Public confidence in the fairness of the criminal justice system, England and Wales (2008-09 – 2009-10)
12 months to September 2009 Unweighted base Question1, 2 Criminal justice system gives witnesses and victims the support they need Criminal justice system treats those who have been accused of a crime as ‘innocent until proven guilty’ Criminal justice system takes into account the views of victims and witnesses Criminal justice system discriminates against particular groups or individuals Total Aggregated percentage Strongly/Tend to agree 12 months to September 2010 Unweighted base Total Aggregated percentage Strongly/Tend to agree

37,740

56

36,987

57

40,665

78

40,100

78

39,563

71

38,867

72*

38,032

65 Very/fairly confident

37,409 Total 43,328

66* Very/fairly confident 61*

Criminal justice system as a whole is fair

43,748

59

Source: MoJ (2011c). Notes: * Denotes a statistically significant change (at the 5% significance level) since the 12 months to September 2009. 1 Analysis excludes don’t know/refusal responses. 2 Data are provisional and subject to change. British Crime Survey respondents are given a set of seven statements covering common attitudes towards issues around ‘fairness’ in order to provoke consideration of these different aspects before asking the general question on confidence in the fairness of the criminal justice system as a whole. These seven lead-in statements are not used to measure performance.

370

The Right to a Fair Trial – HRA, Article 6

Chapter notes
374

The status of UN treaty ratification is drawn from the UN Treaty Database, www.unhchr.ch/tbs/ doc.nsf/Statusfrset?OpenFrameSet (accessed 4 November 2010). The status of European treaty ratification is drawn from the Council of Europe Treaty Office website, conventions.coe. int/ (accessed 4 November 2010). When a state signs an international treaty this is signals its preliminary endorsement of the treaty, it does not create a binding legal obligation. A state which ratifies or accedes to a treaty is asserting that it considers itself to be legally bound by the treaty. Ratification requires the state to have previously signed the treaty, whereas accession is a single step which does not require previous signing. It should be noted that a treaty which has been acceded to or ratified by the UK does not automatically become part of the domestic law; separate legislative action is required to incorporate international law into domestic law (for example, the HRA making the ECHR enforceable in the UK). Nonetheless, ratification or accession is a state’s expression that it consents to be legally bound by the treaty, including respecting and implementing its provisions. cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=845092&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 lexisweb.co.uk/cases/2010/january/r-on-the-application-of-g-v-governors-of-x-school-andanother-secretary-of-state-for-children-school Miller et al, www.scotland.gov.uk/Publications/2004/11/20181/45877 (accessed 27 January 2011). cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695800&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/ew/cases/EWCA/Civ/2010/65.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696134&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=855981&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696470&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695373&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=683621&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695857&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=706449&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.supremecourt.gov.uk/docs/UKSC_2010_0022_Judgment.pdf cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=843647&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/UKHL/2009/3.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=683577&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696718&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695449&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695447&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695302&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394

371

The Right to a Fair Trial – HRA, Article 6

395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432

www.bailii.org/uk/cases/UKPC/2000/D3.html www.unhchr.ch/tbs/doc.nsf/(Symbol)/bb722416a295f264c12563ed0049dfbd?Opendocument daccess-dds-ny.un.org/doc/UNDOC/GEN/G07/437/71/PDF/G0743771.pdf?OpenElement cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=845092&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 lexisweb.co.uk/cases/2010/january/r-on-the-application-of-g-v-governors-of-x-school-andanother-secretary-of-state-for-children-school Miller et al, www.scotland.gov.uk/Publications/2004/11/20181/45877 (accessed 27 January 2011). cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695800&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/ew/cases/EWCA/Civ/2010/65.html (accessed 10 March 2011). cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696134&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696470&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695373&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=683621&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695857&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=706449&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.supremecourt.gov.uk/docs/UKSC_2010_0022_Judgment.pdf www.bailii.org/uk/cases/UKHL/2009/3.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=683577&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696718&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/86/86.pdf www.publications.parliament.uk/pa/jt200910/jtselect/jtrights/64/64.pdf www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/81/81.pdf www.publications.parliament.uk/pa/jt200809/jtselect/jtrights/157/157.pdf www.publications.parliament.uk/pa/jt201011/jtselect/jtrights/32/32.pdf, p 7. www.scottishhumanrights.com/news/latestnews/article/cadderlegislationcomment www.statewatch.org/news/2008/jul/uk-un-hr.pdf, pp4-5 (accessed 2 December 2010). www.statewatch.org/news/2008/jul/uk-un-hr.pdf, p 5 (accessed 2 December 2010). www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-42.pdf www2.ohchr.org/english/bodies/hrcouncil/docs/13session/A-HRC-13-42.pdf, p 82. www.reprieve.org.uk/2010_01_27_un_report www.unhcr.org/refworld/publisher,HRC,CONCOBSERVATIONS,GBR,48a9411a2,0.html www.official-documents.gov.uk/document/cm73/7324/7324.pdf www.lawcentres.org.uk/uploads/Legal_Regulation_Report_October_2009.pdf www.lawcentres.org.uk/uploads/Review_of_the_Regulation_of_Corporate_Legal_Work_03.09_.pdf www.justice.gov.uk/publications/docs/legal-aid-delivery.pdf www.scotland.gov.uk/About/CarlowayReview ejp.icj.org/IMG/EJP-Report.pdf www.amnesty.org/en/library/info/EUR45/012/2010/en soundoffforjustice.org/ (accessed 11 July 2011).

372

Chapter 9
The Right to Respect for Private and Family Life (Human Rights Act, Article 8)

Please read Part II Guidance on using and interpreting the Human Rights Measurement Framework first.

9

The Right to Respect for Private and Family Life (Human Rights Act (HRA), Article 8)

Panel and indicators
Actions/inactions by the state, its agents or bodies fulfilling a public function Private life Personal information and surveillance Family life Home Correspondence Environmental rights

Protection of the right to private and family life by the state, its agents or bodies fulfilling a public function

Indicators

The Right to Respect for Private and Family Life – HRA, Article 8

Physical and psychological integrity; personal, social and sexual identity; personal development, autonomy and participation

374

Structural (indicators of ‘commitment in principle’)

Indicator 41: Legal and constitutional framework • Protection of the right to respect for private and family life by the state, its agents or bodies fulfilling a public function (including constitutional/‘higher’ law) • Status of ratification of relevant international treaties

Indicator 42: Legal precedents, gaps and standard-setting • Principles established in key cases (domestic and ECHR) and international standard setting processes • Gaps in protection and non-implementation of legal judgements and recommendations

Process (indicators of ‘steps taken’ – including legal, regulatory and public policy measures)

Indicator 43: Regulatory framework • Key regulators, inspectorates, ombudsmen • Relevant responsibilities and powers, national minimum standard frameworks and inspection/complaints-handling criteria

Indicator 44: Public policy framework • Primary legislation • Relevant codes and guidance • Other relevant policies, plans, targets and goals • Spotlight resource allocations

Outcome (indicators of the position of individuals and groups in practice/ emergence of a human rights ‘culture’)

Indicator 45: Outcomes of key judicial, regulatory and investigative processes • Case law outcomes (covering, for example, negative obligations, positive obligations, sexual identity, respect, autonomy, support for disability) • Key concerns raised by human rights monitoring bodies • Outcomes of regulation, inspection,ombudsmen and complaints procedures that engage Article 6 • Outcomes of independent inquiries and investigations that engage Article 6 • Key allegations by private individuals and civil society organisations/reports in the media

Indicator 46: Respect for private and family life: Privacy, identity and autonomy • Interference in private life and surveillance (DNA database; Use of Radio Frequency Identification; Use of CCTV (proportionate and necessary); targeted surveillance, etc.) • Gender identity and human rights

Indicator 47: Spotlight statistics: The detention context • Reporting against HM Inspectorate of Prisons (HMIP) of ‘Expectations Criteria’ (cross-reference A3, which covers ‘slopping out’, overcrowding and prolonged containment in cells) for example, sanitation, correspondence, individual life, family life • The number of women who have been refused a place at a mother and baby unit in prison (or alternatively the availability of unit places compared to the demand)

375

Indicator 48: Spotlight statistics: Unmet basic needs that may meet the Article 8 threshold • Deprivation in income/other basic goods and services that may meet the Article 8 threshold • Unmet support needs in health and social care that may meet the Article 8 threshold (support for disabled people, including disabled children; support for individuals to remain in their homes (rather than be moved to a private institution, for example to receive healthcare) • Asylum seekers and their families- destitution and separation of asylum seekers from family ties

Indicator 49: Spotlight statistics: Abuse, neglect, discrimination and dignity and respect • Treatment and neglect of older people • Bullying in schools • Harassment and identity-based targeting • Financial and emotional abuse

The Right to Respect for Private and Family Life – HRA, Article 8

Indicator 50: Spotlight statistics: Public attitudes, understanding and experiences • Awareness of information rights legislation • Experiences of identity-based discrimination • Percentage with experience of unfair treatment, harassment or bullying at work in the last two years

Panel and indicators (continued)

The Right to Respect for Private and Family Life – HRA, Article 8

Indicators should be systematically disaggregated Key disaggregation characteristics include ethnicity/race, gender, disability, sexual orientation, transgender, religion and belief, age, social class, area (region, urban/rural, remoteness) with separate reporting of the non-private household population and at risk/vulnerable groups including individuals staying in/resident/detained in public and private institutions; individuals living in poverty; refugees/asylum seekers, vulnerable children and young people (for example, children in need, ‘looked after children’, children who are carers), Gypsies and Travellers, etc.

376

The Right to Respect for Private and Family Life – HRA, Article 8

Evidence base
Structural indicators Indicator 41: Legal and constitutional framework
Table 216: Protection of the right to respect for private and family life in domestic law (including constitutional/‘higher’ law) UK HRA Article 8. Table 217: Status of ratification of relevant international treaties433 International Covenant on Civil and Political Rights (ICCPR) Article 17 – ratified. ICCPR First Optional Protocol – not ratified (individual complaints mechanism). ECHR and Protocols 1, 2, 3, 5, 6, 8, 10, 11, 13 and 14 – ratified.

Indicator 42: Legal precedents, gaps and standard-setting
Table 218: Principles established in key cases (domestic and ECHR) Positive obligation to respect private and family life • Douglas and others v Hello! Ltd [2003] EWHC 55434 – There is a positive obligation on the state to protect Article 8 rights against interference by other private parties.435

Interference in enjoyment of private and family life must be legal, necessary and proportionate • Gillan and Quinton v UK no. 4158/05 [2010] ECHR436 – Stop and search powers under Section 44 Terrorism Act 2000 breached the right to respect for private life because the power is so broad that it fails to provide safeguards against abuse. S & Marper v UK (GC) nos. 30562/04 and 30566/04 [2008] ECHR437 – The policy of blanket DNA and fingerprint retention for all persons suspected of committing criminal acts (including those subsequently acquitted or against whom proceedings are discontinued) breached the right to private life. R (Wright and others) v Secretary of State for Health and another [2009] UKHL 3438 – The procedure under legislation allowing the provisional listing of care workers as being unsuited to work with vulnerable adults after a complaint had been made about them, without giving them an opportunity to answer the allegations, and which has the effect of barring them from care work, was a breach of Articles 6.1 and 8.

377

The Right to Respect for Private and Family Life – HRA, Article 8

R (F and Thomson) v Secretary of State for the Home Department [2010] UKSC 17 – The indefinite notification requirements for sexual offenders who had been sentenced to 30 months’ imprisonment or more were incompatible with the right to respect for private and family life because they did not contain any mechanism for reviewing the justification for continuing the requirements in individual cases.439 A v Scottish Ministers [2007] CSOH 189, 2008 SLT 412440 – Resulted in the Scottish ministers making a remedial order under Section 14 of the Convention Rights (Compliance) (Scotland) Act 2001 to amend, for Scotland, the provisions of the Sex Offenders Act 2003, introducing a mechanism whereby those subject to indefinite notification can apply for their removal from what is known as the ’sex offender register’.441

‘Private life’ incorporates bodily integrity, personal autonomy, sexuality, personal identity and personal information442 Right to respect for physical integrity • R (Bernard) v Enfield London Borough Council [2002] EWHC 2287 (Admin) – The duty to assist an elderly woman with a disability to maintain her basic physical and psychological integrity.443 R (C) v Royal Devon and Exeter NHS Foundation Trust [2004]444 – An injunction granted requiring the Trust to provide female nursing staff to perform Ms C’s intimate care tasks (as had been done for over 30 years) until the High Court ruled whether this was a breach of Articles 3 and 8. Prior to the hearing, the matter was settled, with the Trust providing the guarantees that Ms C had sought. The case highlighted the need for choice, independence, autonomy and dignity for disabled people in the provision of healthcare services, particularly intimate care services. R v East Sussex County Council Ex parte A, B, X and Y [2003] EWHC 167 (Admin) (DRC – Intervener)445 – A blanket ban on manual lifting by carers of people with a disability is unlikely to be lawful because it does not consider a person’s individual circumstances. The court acknowledged that ‘the enhanced degree of protection which may be called for when the human dignity at stake is that of someone who is… so disabled as to be critically dependent on the help of others for even the simplest and most basic tasks of day to day living.’ The judgement also acknowledged that ‘the right of the disabled to participate in the life of the community and to have what has been described as “access to essential economic and social activities and to an appropriate range of recreational and cultural activities”’ is encompassed within Article 8’s protection of physical and psychological integrity. The Court ordered the local authority to revisit its policy to make sure it struck a better balance between the human rights of the sisters and the rights of the carers to a safe working environment.

378

The Right to Respect for Private and Family Life – HRA, Article 8

Glass v UK no. 61827/00 [2004] ECHR446 – The decision of authorities to override parental objection to a course of medical treatment proposed in respect of a child was a breach of Article 8. The European Court of Human Rights referred to Articles 5-9 of the Oviedo Convention (Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention of human Rights and Biomedicine) as relevant to interpretation of Article 8 (despite the fact that the UK is not a party to the Oviedo Convention). The Court found that treatment without consent (of the legal guardian) is an interference with Article 8, and the key question was whether it is based on the law, necessary and proportionate, a question under Article 8.2 not 8.1. The Court found that the treatment was in accordance with the law, that it was in pursuit of a legitimate aim (of relieving pain) – [having rejected at previous partial admissibility stage argument that Do Not Revive notices violated the right to life]. The case turned on the ‘necessity’ of the interference. The Court found that an immediate emergency cannot be isolated from the previous discussions between medical staff and applicants on what should happen in the event of an emergency. There was no satisfactory explanation as to why there was no legal recourse to the courts to resolve the dispute. The decision of the authorities to override C’s objection to treatment without recourse to the court violated Article 8. Pretty V UK no. 2346/02 [2002] ECHR447 – The European Court of Human Rights said that ‘the concept of ‘private life’ is a broad term not susceptible to exhaustive definition. It covers the physical and psychological integrity of a person… The very essence of the Convention is respect for human dignity and human freedom’.

The right to treatment • Bensaid v UK no.44599/98 [2001] ECHR448 – Article 3 might be breached if an individual was deported to a country where no suitable treatment was available; ‘private life’, protected by Article 8, includes the preservation of the individual’s mental stability. Dickson v UK (GC) no. 44362/04 [2007] ECHR449 – Over-ruling an earlier decision of the chamber, the European Court of Human Rights found that in refusing to permit artificial insemination between a prisoner and his wife, a fair balance was not struck between the competing public and private interests involved, and that there had therefore been a violation of Article 8.

379

The Right to Respect for Private and Family Life – HRA, Article 8

North West Lancashire Health Authority v A, D & G [2000] 1 WLR 977450 – In a case of refusal by a health authority to fund gender reassignment surgery, the Court of Appeal held that ‘Health Authorities have to make hard and often invidious decisions in the allocation of avowedly inadequate resources. But those decisions must proceed from proper assessments of the conditions competing for treatment’. The authority’s policies ‘were made upon the premise that transsexualism is not a disease and that surgical treatment for it is of no proven clinical benefit’, and needed to be revisited. However, the Court of Appeal noted that ‘Article 8 imposes no positive obligations to provide treatment’.

Treatment, resource allocation and the right to health451 • R (on the application of F) v (1) Oxfordshire Mental Healthcare NHS trust (2) Oxfordshire Health Authority [2001] EWHC Admin 535452 – Article 8 was not breached when a health authority refused to fund a medium security placement in Manchester rather than Oxford. Whilst a decision on funding affects lives, that was not a reason to judicialise them. R (on the application of H) v Mental Health Tribunal [2002] EWHC 1522 Admin453 – The decision not to recommend the transfer of a patient to a hospital closer to his home did not breach Article 8. Decisions on such transfers ‘may also be affected by questions as to the availability of resources with which the court cannot interfere unless those resources, and the lack of them, lead to an infringement of a Convention right, for example, a right under Article 3. That is not the position in the present case’. R (on the application of Haggerty) v St Helens Council [2003] EWHC 803 Admin454 – In a case concerning the closure of a private residential home, the court held that the financial resources of the council were an important element to be considered in the balancing exercise required by Article 8.2. R (on the application of Dudley and others) v East Sussex County Council [2003] EWHC 1093 Admin455 – The High Court ruled that the closure of a residential home did not breach Articles 2, 3 and 8. There was no evidence that Articles 2 and 3 were engaged; if Article 8.1 was engaged, this was justified under Article 8.2 by the council’s needs to balance competing claims on resources. R (on the application of Yvonne Watts) v (1) Bedford Primary Care Trust (2) Secretary of State for Health [2003] EWHC 2228 (Admin)456 – In the context of a patient waiting in pain for a hip operation, the court held that neither Article 3 nor Article 8 rights were engaged in the request for reimbursement of medical costs incurred in an overseas hip replacement operation undertaken to avoid an NHS waiting list to perform the procedure in the UK.

380

The Right to Respect for Private and Family Life – HRA, Article 8

Autonomy • Evans v UK (GC)6339/05 [2007] ECHR457, Pretty v UK no. 2346/02 [2002] ECHR458 – The European Court of Human Rights found that autonomy and decision making are integral to the right to private and family life. Shtukaturov v Russia no. 44009/05 [2008] ECHR459 – The European Court of Human Rights found that any interference with legal capacity – such as a finding of full or partial incapacity or a guardianship order – is an interference with the right to private and family life and must be based on law, pursue a legitimate aim and be a proportionate means of achieving that aim. The European Court found a violation of Article 8 on account of the applicant’s full incapacitation. Alajos Kiss v Hungary no. 38832/06 [2010] ECHR460 – The European Court of Human Rights found that blanket restrictions on a group of people to exercise capacity in a certain area simply due to the existence of a partial guardianship is disproportionate. The ECtHR found a violation of Protocol 1 Article 3. Storck v Germany no. 61603/00[2005] ECHR461 – The European Court of Human Rights found that a positive duty on the state to protect an individual from interference with their capacity from others exists. The European Court found a violation of Article 8 (the placement in a private clinic from 1977 to 1979); no violation of Article 8 (a stay in a private clinic in 1981 and treatment in a university clinic). Salontaji-Drobnjak v Serbia no. 36500/05[2009] ECHR462 – The European Court of Human Rights found that individuals have a right to a fair hearing (including right to participate in decisions and of access to a court to challenge decisions) in relation to a determination of their legal capacity(see Table 193). The European Court found a violation of Articles 6.1 and 8. R (McDonald) v Royal Borough of Chelsea and Kensington [2011] UKSC 33463 – The Supreme Court held that the borough’s proposal for the applicant to wear incontinence pads or use special sheeting,thus avoiding the need for a night-time carer to assist her in accessing a commode was not in breach of her Article 8 rights.

Medical treatment and consent • Y.F. v Turkey no. 24209/94 [2003] ECHR464 – The European Court of Human Rights found that a compulsory medical intervention, even a minor one, constitutes an interference with the right to private life. The Court found a violation of Article 8.

381

The Right to Respect for Private and Family Life – HRA, Article 8

Jehovah’s Witnesses of Moscow and others v Russia no. 302/02 [2010] ECHR465 – The European Court of Human Rights found that the right to autonomy and selfdetermination (of a competent adult patient) extends to a right to accept or refuse specific medical treatment, or to select an alternative form of treatment, even where this might lead to a fatal outcome – in the absence of any indication of the need to protect a third party, the state must abstain from interfering with individual freedom of choice in healthcare. The Court found a violation of Article 9 read in the light of Article 11; a violation of Article 11 read in the light of Article 9; and a violation of Article 6.1.

Rape • X and Y v Netherlands no.8978/80 [1985] ECHR466 – This decision began the process of developing positive procedural obligations in relation to the treatment of rape victims arising out of Article 8. The case turned on the need to ensure the criminal law is an effective remedy for sexual abuse .If the domestic law is unable or obstructs effective domestic investigation and prosecution this can render a remedy ineffective, even where a civil action is available. The Court found a violation of Article 8. MC v Bulgaria no. 39272/98 [2004] ECHR467 – The European Court of Human Rights took the view that acquaintance rape perpetrated by private individuals could also amount to a violation of Article 3 (as well as Article 8).The Court found a violation of Article 3 where the domestic legal prohibition of rape was inadequate due to a disproportionate emphasis on the need for violence to have been used. The definition of the offence in domestic law effectively required proof of physical resistance. The Court referred to developing state practice on rape definitions as broader than in the past and found that the Bulgarian definition was inadequate as it did not protect individuals from non-consensual sexual acts.

Sexual identity • Dudgeon v UK no. 7525/76 [1983] ECHR468 – ‘Private life’ was held to include sexual life and laws which criminalised sexual activity between men were an interference with private life under Article 8. Christine Goodwin v UK (GC) no. 28957/95 [2002] ECHR469 – National laws which discriminate against transsexual people engage Article 8. Ghaidan v Godin Mendoza [2004] UKHL 40470 – A law which treated the survivors of a same sex relationship less favourably than survivors of heterosexual relationships to succeed in tenancy following the death of a partner breached Articles 8 and 14. Here the Court decided it was possible to give a Conventioncompliant meaning to the law to extend to same sex couples and thus, any discriminatory effect could be eliminated.

• •

382

The Right to Respect for Private and Family Life – HRA, Article 8

Personal information • Liberty and others v UK no. 58243/00 [2008] ECHR471 – Interception of communications breached the right to respect for private life and correspondence and was not undertaken in accordance with the law. Szuluk v UK no. 36936/05 [2009] ECHR472 – Reading of a prisoner’s medical correspondence with his doctor was a breach of Article 8. Potter v Scottish Ministers [2007] CSIH 67473 – The addition of a message to every outgoing call from a Scottish prison that the call was emanating from a prison was a breach of Article 8. This is currently under appeal.474 R (on the application of GC) v Commissioner of Police of the Metropolis; R (on the application of C) v Commissioner of Police of the Metropolis [2011] UKSC 21475 – The Supreme Court found that the indefinite retention of the biometric data of all suspects breached individuals’ Article 8 rights, but held that the Police and Criminal Evidence Act 1984 could be read so as to not require indefinite retention.

• •

Respect for the home • Connors v UK no. 66746/01 [2004] ECHR476 – The lack of security of tenure of accommodation offered to Gypsy and Traveller communities in the UK was incompatible with respect for home, private and family life. ‘The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases…. To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life.’ (see also Table 340). McCann v UK no. 19009/04 [2008] ECHR477 – The lack of adequate procedural safeguards in possession proceedings violated the right to respect for the home. Manchester City Council v Pinnock [2010] UKSC 4478 – Where a person’s home is at stake, Article 8 enables the courts to review the proportionality as well as the reasonableness of that decision. [Important because previously, reasonableness focused on whether procedures had been followed not whether the procedures lead to a proportionate decision.] See also Hounslow LBC v Powell; Leeds CC v Hall; Birmingham CC v Frisby [2011] UKSC 8.479

• •

383

The Right to Respect for Private and Family Life – HRA, Article 8

Ghaidan v Godin-Mendoza [2004] UKHL 30480 – The House of Lords ruled that the same sex partner of a deceased statutory tenant should have the equivalent right to succeed to the tenancy of a flat as a heterosexual partner would have had. Whilst Article 8 ‘does not require the state to provide security of tenure for members of a deceased tenant’s family, nor the right to be provided with a home, but if the state makes legislative provision it must not be discriminatory; it must not draw distinction on the grounds of sexual orientation unless the difference in treatment can be ‘objectively justified’. The distinction on grounds of sexual orientation in this case had no legitimate aim and was made without good reason. Therefore, the difference of treatment infringes article 14 read in conjunction with article 8’ (Klug and Wildbore, no date).481

Environmental protection • López Ostra v Spain no. 16798/90 [1994] ECHR482 – The European Court of Human Rights found that the state did not succeed in striking a fair balance between the interest of the town’s economic well-being – that of having a wastetreatment plant – and the applicant’s effective enjoyment of her right to respect for her home and her private and family life. The Court held that Article 8 could include a right to protection from severe environmental pollution, since such a problem might ‘affect individuals’ well-being and prevent them from enjoying their homes in such a way as to affect their private and family life adversely, without, however, seriously endangering their health’.The Court found a violation of Article 8; no violation of Article 3. Hatton v UK (GC) no. 36022/97 [2003] ECHR483 – The European Court of Human Rights accepted that excessive noise could constitute a violation of Article 8. Taskin v Turkey no. 46117/99[2005] ECHR484 – The European Court of Human Rights viewed Article 8 through the lens of the Aarhus Convention and therefore, introduced clear procedural rights of participation and access to information, and access to justice in environmental matters, even though Turkey is not a party to Aarhus. The Court found a violation of Articles 6.1 and 8. Powell and Rayner v UK no. 931081 [1989] ECHR485 – In a case where the applicants had complained about disturbance from daytime aircraft noise, the European Court of Human Rights held that Article 8 was relevant, since ‘the quality of [each] applicant’s private life and the scope for enjoying the amenities of his home [had] been adversely affected by the noise generated by aircraft using Heathrow Airport’. Guerra and Others v Italy (GC) no. 14967/89 [1998] ECHR486 – In a case concerning environmental pollution, the European Court of Human Rights observed that ‘[the] direct effect of the toxic emissions on the applicants’ right to respect for their private and family life means that Article 8 is applicable’.

• •

384

The Right to Respect for Private and Family Life – HRA, Article 8

Respect for family life • R (Morris) v Westminster City Council [2004] EWHC 2191 (Admin) – Refusal to prioritise a claimant’s request for housing assistance due to the immigration status of her child infringed Article 8. Rachel Gunter (by her litigation friend and father Edwin Gunter) v South Western Staffordshire Primary Care Trust [2005]487 – A disabled woman who required 24hour care wanted to be cared for at home with her family, through an extensive care package. However, her local Primary Care Trust (PCT) wanted to place her in residential care due to the high cost of home care, and because of the higher quality of care in the residential care home in the event of a crisis. The High Court found that the PCT had not properly considered the impact of this on her family life. They had not taken into account her improved quality of life at home, or her own wishes to be placed at home. The PCT was, therefore, told to remake their decision, taking her right to respect for her family life under Article 8 into account.

The best interests of the child • ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4488 – The Supreme Court upheld the mother’s appeal against her deportation on the ground that her removal will constitute a disproportionate interference with her right to respect for her private and family life, guaranteed by Article 8. ‘The court held that the best interests of a child must be taken into account in such cases, meaning the well-being of the child, and will involve asking whether it is reasonable to expect the child to live in another country. An important part of discovering the best interests of the child is to discover the child’s own views’(Wagner, 2011b).489

Issues in prison detention • Carson [2005] NIQB 80490 – The lack of in-cell sanitation facilities fell within the ambit of Article 8 – ‘The prisoner is entitled to expect that there will be in place sufficient and adequate toileting and hygiene facilities to cope with her requirements and if those facilities are not adequate then her private life rights may well have been infringed.’

385

The Right to Respect for Private and Family Life – HRA, Article 8

Napier v the Scottish Ministers [2004]491 – In relation to Article 8 the Court stated: ‘In applying this right to the situation where a public authority has responsibility for the control and care of a person in an institution, ‘private life’ includes the conditions in which the person is held and the circumstances in which he has to undertake the particularly personal, regular activities of daily life, such as discharging bodily waste and maintaining a standard of cleanliness particularly where he suffers from a serious skin complaint which requires a regular regime of care…It is plain that the detention of the petitioner in the squalid conditions which I have recounted, taken together with subjecting him to the regime of slopping out as it effected his routine, necessary, personal activities amounts, on the face of it, to an infringement of Article 8’. Slawomir Musial v Poland no. 28300/06 [2009] ECHR492 – Regarding an alleged violation of Article 8 due to overcrowding in detention, the European Court of Human Rights ruled that having found a violation of Article 3 ‘the Court considers that no separate issue arises under Article 8 of the Convention with regard to the conditions of the applicant’s detention and the medical treatment he received’. Somerville v Scottish Ministers [2007] UKHL 44493 – It was argued that ‘the decision on the part of the Scottish Ministers to make provision for the effective imposition of a punishment regime in segregation as the only means of management, control and containment of prisoners involved a disproportionate interference with his rights under article 8 of the Convention to respect for his psychological integrity, personal development and autonomy and self-determination and to his physical and moral security’. R (Munjaz) v Mersey Care NHS Trust and others [2003] EWCA Civ 1036494 – The Court of Appeal noted that ‘Thus far, in the prison and mental hospital cases, it seems that the court has not found it necessary to consider the conditions of imprisonment as such separately under article 8 if they have not reached the threshold of severity required by article 3… the notion of the moral and physical integrity of the person extends to situations of deprivation of liberty and [the court] does not exclude the possibility that there might be circumstances in which article 8 could be regarded as affording a protection in relation to conditions during detention which do not attain the level of severity required by article 3’.

Prescribed by law • Malone v UK no. 8691/79 [1984] ECHR495 – The European Court of Human Rights considered whether police intercepting telephone conversations was justified under Article 8.2. The European Court found that there was a violation as the interference was not ‘prescribed by law’. This precipitated the introduction of the Criminal Proceedings and Investigation Act 1996, which provided the necessary legal basis for the interception of communications by police.

386

The Right to Respect for Private and Family Life – HRA, Article 8

R (on the application of Debbie Purdy) v Director of Public Prosecutions [2009] UKHL 45496 – The House of Lords found the Code for Crown Prosecutors was insufficient to satisfy the Article 8 requirements for accessibility and foreseeability in assessing how prosecutorial discretion was likely to be exercised in cases of assisted suicide under the Suicide Act 1961 Section 2(1). The Director of Public Prosecutions was required to promulgate an offence-specific policy identifying the facts and circumstances that he would take into account in deciding whether to consent to a prosecution under Section 2(1).497 See Table 252 for additional cases in relation to Article 8 and the right to the highest attainable standard of physical and mental health.

Table 219: Principles established in international standard setting processes • UNHRC General Comment 16498 – No interference with privacy, family, home or correspondence can take place except in cases envisaged by law. Even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be reasonable in the particular circumstances.

Table 220: Gaps in legal protection Individual complaint under ICCPR First Optional Protocol In March 2011 the EU Justice Commissioner announced the overhaul of the EU Data Protection Directive, identifying gaps in current legal protection. The Commissioner argued that people’s rights to the protection of personal data needed to be built on three pillars (Reding, 2011): • ‘The first is the ‘right to be forgotten’: a comprehensive set of existing and new rules to better cope with privacy risks online. When modernising the legislation, I want to explicitly clarify that people shall have the right – and not only the ‘possibility’ – to withdraw their consent to data processing. The burden of proof should be on data controllers – those who process your personal data. They must prove that they need to keep the data rather than individuals having to prove that collecting their data is not necessary.

387

The Right to Respect for Private and Family Life – HRA, Article 8

The second pillar is ‘transparency’. It is a fundamental condition for exercising control over personal data and for building trust in the Internet. Individuals must be informed about which data is collected and for what purposes. They need to know how it might be used by third parties. They must know their rights and which authority to address if those rights are violated. They must be told about the risks related to the processing of their personal data so that they don’t loose (sic) control over their data or that their data is not misused. This is particularly important for young people in the online world. I want to make sure that greater clarity is required when signing up to social networking. Unfavourable conditions – restricting control of users over their private data or making data irretrievably public – are often not clearly mentioned. In particular, children should be fully aware of the possible consequences when they first sign up to social networks. All information on the protection of personal data must be given in a clear and intelligible way – easy to understand and easy to find. The third pillar is ‘privacy by default’. Privacy settings often require considerable operational effort in order to be put in place. Such settings are not a reliable indication of consumers’ consent. This needs to be changed. The ‘privacy by default’ rule will also be helpful in cases of unfair, unexpected or unreasonable processing of data – such as when data is used for purposes other than for what an individual had initially given his or her consent or permission or when the data being collected is irrelevant. ‘Privacy by default’ rules would prevent the collection of such data through, for example, software applications. The use of data for any other purposes than those ‘specified should only be allowed with the explicit consent of the user or if another reason for lawful processing exists. The fourth principle is ‘protection regardless of data location’. It means that homogeneous privacy standards for European citizens should apply independently of the area of the world in which their data is being processed. They should apply whatever the geographical location of the service provider and whatever technical means used to provide the service. There should be no exceptions for third countries’ service providers controlling our citizens’ data. Any company operating in the EU market or any online product that is targeted at EU consumers must comply with EU rules (Reding, 2011).499

388

The Right to Respect for Private and Family Life – HRA, Article 8

Table 221: Non-implementation of legal judgements and recommendations • R (F and Thomson) v Secretary of State for the Home Department [2010] – A declaration of incompatibility was made by the Supreme Court as the indefinite nature of the requirement of Section 82 of the Sexual Offenders Act 2003 was deemed incompatible with Article 8 rights.500 S & Marper v UK [2008] – The Crime and Security Act 2010 provision for retention of DNA from innocent people and children for up to six years is in violation of the ECtHR finding that UK provision for retention of DNA and other samples from adults and children who had never been convicted of any offences is in violation of right to respect for private life.501

Process indicators Indicator 43: Regulatory framework
Table 222: The right to respect for private and family life – identification of key regulators, ombudsmen, etc. Press Complaints Commission OFCOM Office of Information Commissioner

Indicator 44: Public policy framework
Table 223: Right to respect for family and private life – policy guidance and training guidelines • • Anti-bullying strategies. Policies and codes for the regulation, collection, storage, sharing dissemination and use of all forms of personal data, including intrusive surveillance (CCTV, bugging, etc.) Policies, guidance and training on the use of entry, and seizure including phone tapping by police and other agencies. Guidance and policies to ensure planning application processes adequately take account of Article 8 rights. Guidance and processes regarding those subject to immigration control, to ensure protection of their family life. Guidance and policies in relation to children separated from their families to ensure protection of their family life (including children looked after by the state, and children in divorce or separation proceedings).

• • • •

389

The Right to Respect for Private and Family Life – HRA, Article 8

• •

Guidance and policies in relation to those in prison and medical detention or care (including care homes). Policies, guidance, etc. in relevant sectors (e.g. for example, schools, workplace, hospitals, police, or social services) for respect of individuals’ identity including sexual identity). Policies and guidance to ensure environmental impact assessments and proposals adequately take account of Article 8 rights. Policies and guidance on the functional approach to legal capacity, consent and decision making – including supported decision making, advance statements, etc. Privacy and Electronic Communications Regulations 2003. Environmental Information Regulations. Data Protection Act 1998. Privacy and Electronic Communications (EC Directive) Regulations 2003.

• • • • • •

Outcome indicators Indicator 45: Outcomes of key judicial, regulatory and investigative processes
Table 224: Violations of the right to respect for private and family life: case law outcomes • Douglas and others v Hello! Ltd [2003] EWHC 55502 – There is a positive obligation on the state to protect Article 8 rights against interference by other private parties.503 (see Table 218).

Interference in enjoyment of family life must be legal, necessary and proportionate • • • • Gillan and Quinton v UK no. 4158/05 [2010] ECHR504 – Violation of Article 8 (see Table 218). S & Marper v UK (GC) nos. 30562/04 and 30566/04 [2008] ECHR505 – Violation of Article 8 (see Table 218). R (Wright and others) v Secretary of State for Health and another [2009] UKHL 3506 – breach of Articles 6.1) and 8 (see Table 218). R (F and Thomson) v Secretary of State for the Home Department [2010] UKSC 17 – The indefinite notification requirements for sexual offenders who had been sentenced to 30 months’ imprisonment or more were incompatible with the right to respect for private and family life.507 (see Table 218).

390

The Right to Respect for Private and Family Life – HRA, Article 8

A v Scottish Ministers [2007] CSOH 189, 2008 SLT 412508 – Tthe judge found that Sections 81 and 82 of the Sexual Offences Act 2003, in so far as they apply to the petitioner, were compatible with Article 8 (see Table 218).

Right to respect for physical integrity • R (Bernard) v Enfield London Borough Council [2002] EWHC 2287 (Admin) – The duty to assist an elderly woman with a disability to maintain her basic physical and psychological integrity509 (see Table 218). R (C) v Royal Devon and Exeter NHS Foundation Trust [2004]510 – The matter was settled, with the Trust providing the guarantees that Ms C had sought (see Table 218). R v East Sussex County Council Ex parte A, B, X and Y [2003] EWHC 167 (Admin) (DRC – Intervener)511 – The blanket ban on manual lifting by carers of people with a disability is unlikely to be lawful in terms of Articles 3 and 8 (see Table 218). Glass v UK no. 61827/00 [2004] ECHR512 – Violation of Article 8 (see Table 218). Pretty v UK no. 2346/02 [2002] ECHR513 – No violation of Articles 2, 3, 8, 9 and 14 (see Table 218).

• •

• •

The right to treatment • • Bensaid v UK no. 44599/98 [2001] ECHR514 – No violation of Articles 3 and 8 (see Tables 218 and 252). Dickson v UK (GC) no. 44362/04 [2007] ECHR515 – The refusal to permit artificial insemination between a prisoner and his wife was a violation of their Article 8 rights (see Tables 218 and 252). North West Lancashire Health Authority v A, D & G [2000] 1 WLR 977516 – Whilst noting that ‘Article 8 imposes no positive obligations to provide treatment’, the Court held that the Health Authority’s policies on transsexualism needed to be revisited (see Tables 218 and 252).

Treatment, resource allocation and the right to health • R (on the application of F) v (1) Oxfordshire Mental Healthcare NHS trust (2) Oxfordshire Health Authority [2001] EWHC Admin 535517 – No violation of Article 8 (see Tables 218 and 252). R (on the application of H) v Mental Health Tribunal [2002] EWHC 1522 Admin518 – The decision not to recommend transfer of a patient to a hospital closer to his home did not breach Article 8 (see Tables 218 and 252).

391

The Right to Respect for Private and Family Life – HRA, Article 8

R (on the application of Haggerty) v St Helens Council [2003] EWHC 803 Admin519 – The Court held that the financial resources of the council were an important element to be considered in the balancing exercise required by Article 8.2 (see Tables 218 and 252). R (on the application of Dudley and others) v East Sussex County Council [2003] EWHC 1093 Admin520 – The High Court ruled that the closure of a residential home did not breach Articles 2, 3 and 8 (see Tables 218 and 252). R (on the application of Yvonne Watts) v (1) Bedford Primary Care Trust (2) Secretary of State for Health [2003] EWHC 2228 (Admin)521 – The Court held that neither Article 3 nor Article 8 rights were engaged in the request for reimbursement of medical costs incurred in an overseas hip replacement operation undertaken to avoid an NHS waiting list (see Tables 218 and 252).

Autonomy • • • Evans v UK (GC) 6339/05 [2007] ECHR522 – No violation of Article 8 (see Table 218). Pretty v UK no. 2346/02 [2002] ECHR523 – No violation of Article 8 (see Table 218). R (McDonald) v Royal Borough of Chelsea and Kensington [2011] UKSC 33524 – No violation of Article 8 (see Table 218).

Sexual identity • • • Dudgeon v UK no. 7525/76 [1983] ECHR525 – Violation of Article 8 (see Table 218). Christine Goodwin v UK (GC) no. 28957/95 [2002] ECHR526 – Violation of Article 8 (see Table 218). Ghaidan v Godin Mendoza [2004] UKHL 40527 – A law which treated the survivors of a same sex relationship less favourably than survivors of an heterosexual relationship to succeed in tenancy following the death of a partner breached Articles 8 and 14 (see Table 218).

Personal information • • • Liberty and others v UK no. 58243/00 [2008] ECHR528 – Violation of Article 8 (see Table 218). Szuluk v UK no. 36936/05 [2009] ECHR529 – Violation of Article 8 (see Table 218). Potter v Scottish Ministers [2007] CSIH 67530 – The addition of a message to every outgoing call from a Scottish prison that the call was emanating from a prison was a breach of Article 8 (see Table 218).531

392

The Right to Respect for Private and Family Life – HRA, Article 8

R (on the application of GC) v Commissioner of Police of the Metropolis; R (on the application of C) v Commissioner of Police of the Metropolis [2011] UKSC 21532 – The indefinite retention of the biometric data of all suspects breached individuals’ Article 8 rights (see Table 218).

Respect for the home • • • Connors v UK no. 66746/01 [2004] ECHR533 – Violation of Article 8 (see Table 218). McCann v UK no. 19009/04 [2008] ECHR534 – Violation of Article 8 (see Table 218). Manchester City Council v Pinnock [2010] UKSC 4535 – Article 8 enables the courts to review the proportionality as well as the reasonableness of that decision (see Table 218). Ghaidan v Godin-Mendoza [2004] UKHL 30536 – The distinction on grounds of sexual orientation infringed Article 14 read in conjunction with Article 8 (see Table 218).

Environmental protection • • Hatton v UK (GC) no. 36022/97 [2003] ECHR537 – No violation of Article 8; violation of Article 13 (see Table 218). Powell and Rayner v UK no. 9310/81 [1989] ECHR538 – No violation of Article 13 (see Table 218).

Respect for family life • R (Morris) v Westminster City Council [2004] EWHC 2191 (Admin) – The refusal to prioritise the claimant’s request for housing assistance due to her child’s immigration status infringed Article 8 (see Table 218). Rachel Gunter (by her litigation friend and father Edwin Gunter) v South Western Staffordshire Primary Care Trust [2005]539 – The PCT was told to remake their decision, taking her right to respect for her family life under Article 8 into account (see Table 218).

The best interests of the child • ZH (Tanzania) (FC) v Secretary of State for the Home Department [2011] UKSC 4540 – The Supreme Court upheld the mother’s appeal against her deportation on the ground that her removal will constitute a disproportionate interference with her right to respect for her private and family life, guaranteed by Article 8 (see Table 218).

393

The Right to Respect for Private and Family Life – HRA, Article 8

Prison detention • • • Carson [2005] NIQB 80541 – The lack of in-cell sanitation facilities fell within the ambit of Article 8 (see Table 218). Napier v the Scottish Ministers [2004]542 – Infringement of Article 8 (see Table 218). Somerville v Scottish Ministers [2007] UKHL 44543 – ‘...segregation as the only means of management, control and containment of prisoners involved a disproportionate interference with his rights under article 8 of the Convention to respect for his psychological integrity, personal development and autonomy and self-determination and to his physical and moral security.’ (see Table 218). R (Munjaz) v Mersey Care NHS Trust and others [2003] EWCA Civ 1036544 – The Court of Appeal noted that ‘… the notion of the moral and physical integrity of the person extends to situations of deprivation of liberty and [the court] does not exclude the possibility that there might be circumstances in which article 8 could be regarded as affording a protection in relation to conditions during detention which do not attain the level of severity required by article 3’ (see Table 218). Malone v UK no. 8691/79 [1984] ECHR545 – Violation of Article 8 (see Table 218). R (on the application of Debbie Purdy) v Director of Public Prosecutions [2009] UKHL 45546 – The House of Lords found the Code for Crown Prosecutors was insufficient to satisfy the Article 8 requirements for accessibility and foreseeability in assessing how prosecutorial discretion was likely to be exercised in cases of assisted suicide under the Suicide Act 1961 Section 2(1) (see Table 218).

Prescribed by law • •

Table 225: Key concerns raised by human rights monitoring bodies Domestic • Equality and Human Rights Commission (2010d), Stop and think. A critical review of the use of stop and search powers in England and Wales547, detailed the Commission’s concern that the current use of stop and search powers under the Police and Criminal Evidence Act 1984 may be ‘unlawful, disproportionate, discriminatory, and damaging to relations within and between communities’. The Joint Committee on Human Rights (JCHR) (2007), The Human Rights of Older People in Healthcare, Eighteenth Report of Session 2006-07, raised concerns around poor treatment, neglect, abuse, discrimination and ill-considered discharge548 (see Table 262). EHRC (2011) suggested poor treatment of older people in home care is breaching their human rights.

394

The Right to Respect for Private and Family Life – HRA, Article 8

Table 226: Outcomes of inspection, regulation and complaints procedures that engage Article 8 House of Commons Home Affairs Committee Inquiry • House of Commons Home Affairs Committee (2008), A Surveillance Society? Fifth Report of Session 2007-08, 20 May 2008549). Recommendations of the report included: Rules for Government as a whole – The Government should give an explicit undertaking to adhere to a principle of data minimisation and should resist a tendency to collect more personal information and establish larger databases. Any decision to create a major new database, to share information on databases, or to implement proposals for increased surveillance, should be based on a proven need. – The Government should take responsibility for safeguarding the personal information it collects and should exercise this responsibility before collection takes place: when it is possible by obtaining consent for collecting and processing data, and when it is not possible by providing an explanation. – The Government should hold information only as long as is necessary to fulfil the purpose for which it was collected. If information is to be retained for secondary purposes as well as for service delivery it should normally be anonymised and retained only for a previously specified period. – Every system for collecting and storing personal information should be designed with a focus on security and privacy. This process should involve planning not only the technical aspects of access to systems but also the staff management protocols for access and information-handling. – The Information Commissioner should lay before parliament an annual report on surveillance. The Government should make a formal response to his report, also to be laid before parliament. Rules for the Home Office – The Home Office should explicitly address these questions in every proposal for extending or changing its powers and functions with regard to the collection and use of personal information: in the fight against crime: Where should the balance between protecting the public and preserving individual liberty lie? How should this balance shift according to the seriousness of the crime? What impact will there be on the individual and on our society as a whole? – The Home Office should not routinely use the administrative information collected and stored in connection with the National Identity Register to monitor the activities of individuals.

395

The Right to Respect for Private and Family Life – HRA, Article 8

– The Home Office should maintain plans for securing the National Identity Register databases, and contingency plans to be implemented in the event of a loss or theft of biometric information from its databases. – The Home Office should take every opportunity to raise awareness of how and why the surveillance techniques provided for by the Regulation of Investigatory Powers Act might be used, and should keep under review the effectiveness of the statutory oversight of RIPA powers. – The Home Office should ensure that any extension of the use of camera surveillance is justified by evidence of its effectiveness for its intended purpose, and that its function and operation are understood by the public. House of Commons Home Affairs Committee (2011), Unauthorised tapping into or hacking of mobile communications, July 2011550, recommended that additional powers should be given to the Information Commissioner’s Office to deal with breaches of data protection, including phone hacking and blagging.551 Information Commissioner’s Office (ICO)552 • The ICO issues information notices, undertakings, enforcements or monetary penalty notices to individuals and organisations that collect, use and keep personal information. The First-tier Tribunal (Information Rights), part of the General Regulatory Chamber (GRC),hears appeals of enforcement notices, decision notices and information notices issued by the Information Commissioner. The GRC brings together a range of previously separate tribunals that hear appeals on regulatory issues. Some recent cases include: – A monetary penalty of £80,000 was issued to Ealing Council following the loss of an unencrypted laptop which contained personal information. Ealing Council breached the Data Protection Act by issuing an unencrypted laptop to a member of staff in breach of its own policies. – The Identity and Passport Service has signed an undertaking which commits the organisation to taking remedial action after the ICO found it in breach of the Data Protection Act for losing the passport renewal applications of 21 individuals. – NHS Blood and Transplant has signed an undertaking which commits the organisation to being more robust in checking information is accurate. This follows the discovery that due to a software error,the organ donation preferences of 444,031 people were recorded inaccurately on the Organ Donation Register, which is managed by NHS Blood and Transplant. – A formal undertaking has been signed by the Scottish Court Service after the ICO discovered,following a newspaper report about a data breach by the Court Service, that papers containing personal information had been lost by the editor of a series of law reports. The Court Service had failed to check how this individual intended to keep the information secure.

396

The Right to Respect for Private and Family Life – HRA, Article 8

The ICO (2009) reported to parliament on the state of surveillance in September 2006 and lodged an updated report in November 2010.523 The response to the report by the Surveillance Studies Network (SSN), published as part of the ICO’s update, identified ‘a host of privacy and human-rights issues involved in, for instance, techniques for analysing data about individuals, the sharing of data among organisations – often for undeclared and unconsented purposes – and the flow of data across national boundaries’.The SSN specifically identified body scanning, video analytics, drones and the flow of data into new domains of application as posing significant concerns. Treatment of older people in health and social care • Rights, Risks and Restraints study554 (Commission for Social Care Inspection (CSCI), 2007a), found that the use of restraint in elderly care services is ‘unacceptable’ and denies the human right to ‘dignity and choice’. The study looked at the experiences of elderly people – not at the prevalence of restraint methods – in residential care homes, nursing homes and individual’s homes. The incidents in the study were taken from CSCI inspection reports, reviews of concerns and complaints made to CSCI, and the Rights, Risks and Restraints survey. Parliamentary and Health Service Ombudsman (PHSO), Care and Compassion. Report of the Health Services Ombudsman on 10 investigations into NHS care of older people555, February 2011. Dignity and nutrition reports. Care Quality Commission (CQC) is publishing 12 reports from an inspection programme which examines whether elderly people are receiving essential standards of care in 100 hospitals across England. The inspection programme has identified recurring concerns in relation to both nutrition and dignity, including people not being given assistance to eat, not having their nutritional needs monitored and not being given enough to drink; and staff not treating patients in a respectful way or involving them in their own care.556

397

The Right to Respect for Private and Family Life – HRA, Article 8

Table 227: Key concerns and allegations raised by private individuals and civil society organisations/reports in the media Interference in private life and surveillance Liberty, Overlooked: Surveillance and personal privacy in modern Britain, October 2007 (Crossman et al., 2007)557, detailed a number of concerns in relation to: • Targeted surveillance – the framework for state sanctioned surveillance against specific targets created under the Regulation of Investigatory Powers Act 2000 ‘lacks accountability and transparency. In particular, there is a need for judicial authorization for the most intrusive forms of surveillance and an improved complaints mechanism. Further, the bar on intercepted material in criminal trials needs to be lifted.’ Mass surveillance – ‘New data protection legislation is needed to allow better regulation of data and to improve the ability and resources of the ICO to provide effective enforcement. There should be greater accountability to parliament.’ Visual surveillance – ‘New legislation is required to effectively regulate CCTV.’ DNA – detailing concerns with the National DNA Database (NDNAD), including the retention of data for people arrested (though not necessarily charged or convicted) with any recordable offence, which impacts disproportionately on black men.

• •

The report’s recommendations included a call for updated data legislation protection; increased role and powers for the ICO; greater accountability to parliament; judicial oversight of interceptions of communications; extending the role of the Investigatory Powers Tribunal; removal of the bar on intercept; no further extension of powers to retain DNA; and making the process for deletion of samples from the NDNAD simpler. Sexual identity Stonewall, No going back. Lesbian and Gay People and the Asylum System, 2010 (Miles, 2010)558, recommended that the UK Border Agency (UKBA) urgently implement a series of measures to prevent lesbian, gay and bisexual people from being treated differently when they seek asylum. The report contains detailed recommendations in relation to UKBA policy and training; the need for Country of Origin Information Service reports to include accurate and up-to-date information about the situation on the ground for lesbians and gay men and to accurately reflect the scale and nature of anti-gay persecution in all overseas jurisdictions; and the need for judges to receive comprehensive training on the unique issues in sexual identity-based claims.

398

The Right to Respect for Private and Family Life – HRA, Article 8

Treatment of older people in health and social care • • Daily Mail, Dignity for the Elderly campaign for better standards in hospitals and care homes, which has run since 2002.559 Still hungry to be heard (Age UK, 2010), the most recent report from the campaign Malnutrition in hospitals: Hungry to be heard, described the lack of detection and treatment of malnutrition in hospital as a ‘national disgrace’, and called on the Government to introduce compulsory monitoring of malnutrition.560 Patients Association Report (2011) We’ve been listening, have you been learning? details 16 accounts of poor hospital care heard by its helpline focusing on care communication, access to pain relief, assistance with toileting and help with eating and drinking.

Indicator 46: Privacy, identity and autonomy
Table 228: Interference in private life and surveillance See Table 226.

399

The Right to Respect for Private and Family Life – HRA, Article 8

Table 229: Gender identity and human rights The COE (2009, Human rights and gender identity, July 2009 (Hammarberg,2009), set out a series of recommendations to COE member states. A number of these have been identified as relating to particular concerns in England, Scotland and Wales. These are: Recommendations to Council of Europe member states Member states of the Council of Europe should: 2. Enact hate crime legislation which affords specific protection for transgender persons against transphobic crimes and incidents; 3. Develop expeditious and transparent procedures for changing the name and sex of a transgender person on birth certificates, identity cards, passports, educational certificates and other similar documents; 5. Make gender reassignment procedures, such as hormone treatment, surgery and psychological support, accessible for transgender persons, and ensure that they are reimbursed by public health insurance schemes; 6. Remove any restrictions on the right of transgender persons to remain in an existing marriage following a recognised change of gender; 9. Address the human rights of transgender persons and discrimination based on gender identity through human rights education and training programmes, as well as awareness-raising campaigns; 10. Provide training to health service professionals, including psychologists, psychiatrists and general practitioners, with regard to the needs and rights of transgender persons and the requirement to respect their dignity; 12. Develop research projects to collect and analyse data on the human rights situation of transgender persons including the discrimination and intolerance they encounter with due regard to the right to privacy of the persons concerned.

400

The Right to Respect for Private and Family Life – HRA, Article 8

Indicator 47: Spotlight statistics: The detention context
Table 230: Self-reported access and problems with the use of telephones and sending/receiving mail in detention, England and Wales
Problems sending or receiving mail N Local N=4,323 High security N=418 Young offenders (18-21) N=1,858 Category B trainers N=855 Category C trainers N=4167 Open N=1,254 Female N=1,352 Children and young people (under 18) N=776 Immigration removal centres N=1,019 1,736 214 719 % 44 52 42 Problems getting access to the telephones N 1245 127 541 % 32 31 32 Easy or very easy to receive incoming calls N % Easy or very easy to make outgoing calls N % -

Type of prison/ establishment:

Able to use the telephone everyday N % -

328 1,403 249 414 278

39 37 22 34 39

119 753 130 281 -

15 20 11 22 -

533

72

-

-

-

-

224

29

-

-

-

-

432

50

401

47

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High security comparator from 2007 onwards. Young offender institutions comparator from 2005 onwards. Category B trainers comparator from 2005 onwards. Category C trainers comparator from 2005 onwards. Opens comparator from 2005 onwards. Children and young people comparator from 2009 onwards. Female comparator from 2005 onwards. Immigration removal centre comparator from 2005 onwards. [Comparators available from source document] Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2 for demographic information.

401

The Right to Respect for Private and Family Life – HRA, Article 8

Table 231: Adult male prisoners who self-report that they have problems with access and use of telephones and sending/receiving mail, by ethnicity, religion and disability, England and Wales, 2008-09
Black and minority ethnic prisoners Number of completed questionnaires Problems sending or receiving mail Problems getting access to the telephone Consider themselves to have a disability Do not consider themselves to have a disability

White

Muslim prisoners

NonMuslim prisoners

1,037

2,890

422

3,435

559

3,170

43%

40%

49%

39%

44%

40%

27%

22%

31%

23%

26%

22%

Source: HMIP for England and Wales (2010b). Notes: Light grey boxes denote where the group is significantly worse than the comparator. (Emphasis as in publication.)

402

The Right to Respect for Private and Family Life – HRA, Article 8

Table 232: Detained people who self-report that they are able to have a shower, England and Wales
Able to have a shower every day Type of prison/establishment Local N=4,323 High security N=418 Young offenders (18-21) N=1,858 Category B trainers N=855 Category C trainers N=4,167 Open N=1,254 Female N=1,352 Children and young people (under 18) N=776 Immigration removal centres N=1,019 N 3191 385 1270 820 3826 1188 1169 608 859 Offered a shower N 93 % 9 % 78 94 69 98 94 98 87 81 93

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High security comparator from 2007 onwards. Young offender institutions comparator from 2005 onwards. Category B trainers comparator from 2005 onwards. Category C trainers comparator from 2005 onwards. Opens comparator from 2005 onwards. Children and young people comparator from 2009 onwards. Female comparator from 2005 onwards. Immigration removal centre comparator from 2005 onwards. Police custody comparator from 2008 onwards. [Comparators available from source document.] Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2 for demographic information.

403

The Right to Respect for Private and Family Life – HRA, Article 8

Table 233: Percentage of adult male prisoners who self-report that they are normally able to have a shower every day, by ethnicity, religion and disability, England and Wales, 2008-09
Black and minority ethnic prisoners Number of completed questionnaires Percentage who report that they are normally able to have a shower every day Consider themselves to have a disability Do not consider themselves to have a disability

White

Muslim prisoners

NonMuslim prisoners

1,037

2,890

422

3,435

559

3,170

84%

90%

80%

90%

87%

89%

Source: HMIP for England and Wales (2010b). Notes: Light grey boxes denote where the group is significantly worse than the comparator. (Emphasis as in publication.)

404

The Right to Respect for Private and Family Life – HRA, Article 8

Table 234: Detained people who self-report that they are treated with respect by most staff, England and Wales
Type of prison/establishment Local N=4,323 High security N=418 Young offenders (18-21) N=1,858 Category B trainers N=855 Category C trainers N=4,167 Open N=1,254 Female N=1,352 Children and young people (under 18) N=776 Immigration removal centres N=1,019 N 2,864 240 1,177 602 2,984 888 916 503 576 % 69 61 67 74 74 76 72 72 62

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High security comparator from 2007 onwards. Young offender institutions comparator from 2005 onwards. Category B trainers comparator from 2005 onwards. Category C trainers comparator from 2005 onwards. Opens comparator from 2005 onwards. Children and young people comparator from 2009 onwards. Female comparator from 2005 onwards. Immigration removal centre comparator from 2005 onwards. [Comparators available from source document.] Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2 for demographic information.

405

The Right to Respect for Private and Family Life – HRA, Article 8

Table 235: Adult male prisoners who self-report that they are treated with respect by most staff, by ethnicity, religion and disability, England and Wales
Black and minority ethnic prisoners Number of completed questionnaires Percentage who feel that they are treated with respect by most staff Consider themselves to have a disability Do not consider themselves to have a disability

White

Muslim prisoners

NonMuslim prisoners

1,037

2,890

422

3,435

559

3,170

64%

72%

60%

71%

65%

70%

Source: HMIP for England and Wales (2010b). Notes: Light grey boxes denote where the group is significantly worse than the comparator. (Emphasis as in publication.)

406

The Right to Respect for Private and Family Life – HRA, Article 8

Table 236: Detained people who self-report that they have ever felt unsafe in their establishment, England and Wales
Type of prison/establishment Local N=4,323 High security N=418 Young offenders (18-21) N=1,858 Category B trainers N=855 Category C trainers N=4,167 Open N=1,254 Female N=1,352 Children and young people (under 18) N=776 Police custody N=1,011 Immigration removal centres N=1,019 N 1,625 241 601 327 1,190 190 492 212 382 458 % 41 58 34 39 30 16 39 29 41 53

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High security comparator from 2007 onwards. Young offender institutions comparator from 2005 onwards. Category B trainers comparator from 2005 onwards. Category C trainers comparator from 2005 onwards. Opens comparator from 2005 onwards. Children and young people comparator from 2009 onwards. Female comparator from 2005 onwards. Immigration removal centre comparator from 2005 onwards. [Comparators available from source document.] Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2 for demographic information.

407

The Right to Respect for Private and Family Life – HRA, Article 8

Table 237: Adult male prisoners who self-report that they have ever felt unsafe in their establishment, by ethnicity, religion and disability, England and Wales, 2008-09
Black and minority ethnic prisoners Number of completed questionnaires Percentage who have ever felt unsafe in their establishment Consider themselves to have a disability Do not consider themselves to have a disability

White

Muslim prisoners

NonMuslim prisoners

1,037

2,890

422

3,435

559

3,170

45%

38%

50%

38%

57%

36%

Source: HMIP for England and Wales (2010b). Notes: Light grey boxes denote where the group is significantly worse than the comparator. (Emphasis as in publication.)

408

The Right to Respect for Private and Family Life – HRA, Article 8

Table 238: Detained people who self-report that their religious beliefs are respected, England and Wales561
Type of prison/establishment Local N=4,323 High security N=418 Young offenders (18-21) N=1,858 Category B trainers N=855 Category C trainers N=4,167 Open N=1,254 Female N=1,352 Children and young people (under 18) N=776 Immigration removal centres N=1,019 N 2,220 185 884 432 2,179 684 765 416 614 % 54 48 50 60 55 58 60 55 66

Source: HMIP for England and Wales (2010a). Notes: The n-value refers to the total number of respondents for each survey. Percentages may vary in regard to the n-value as all comparator data is weighted. Local comparator from 2006 onwards. High security comparator from 2007 onwards. Young offender institutions comparator from 2005 onwards. Category B trainers comparator from 2005 onwards. Category C trainers comparator from 2005 onwards. Opens comparator from 2005 onwards. Children and young people comparator from 2009 onwards. Female comparator from 2005 onwards. Immigration removal centre comparator from 2005 onwards. [Comparators available from source document.] Data for children and young people only includes responses from males because of the small number of female respondents. Percentages are calculated only from those who answered the question; missing data has been excluded. See Appendix 2 for demographic information.

409

The Right to Respect for Private and Family Life – HRA, Article 8

Table 239: Adult male prisoners who self-report that their religious beliefs are respected, by ethnicity, religion and disability, England and Wales, 2008-09562
Black and minority ethnic prisoners Number of completed questionnaires Percentage who feel their religious beliefs are respected Consider themselves to have a disability Do not consider themselves to have a disability

White

Muslim prisoners

NonMuslim prisoners

1,037

2,890

422

3,435

559

3,170

56%

53%

61%

53%

53%

54%

Source: HMIP for England and Wales (2010b). Notes: Dark grey boxes denote where the group is significantly better than the comparator.

Indicator 48: Spotlight statistics: Unmet basic needs that may meet the Article 8 threshold
See Treatment of older people in health and social care. For relevant statistical evidence on malnutrition and dehydration by place, and variations in support for eating by age during hospital stays, see Tables 28, 29, 30, 31, 304 and 305.

Indicator 49: Spotlight statistics: Abuse, neglect, discrimination, lack of dignity and respect
See Treatment of older people in health and social care. For relevant statistical evidence see Tables 28, 29, 30, 31, 302, 303, 304, and 305. Table 240: Experiences of bullying For relevant evidence under this Indicator, see Table 342.

410

Table 241: Experiences of harassment because of skin colour, ethnic origin or religion, by religion, percentage, England, 2008-09
Muslim All Practising Nonpractising All Practising All Practising Nonpractising Nonpractising Hindu Sikh All

Christian

Practising

Nonpractising

Has personally experienced harassment in the last two years 4 8,562 Other religion2 All religions All Practising Nonpractising All No religion All Practising Nonpractising 1,749 367 2,117 659 235 896 19 15 18 14 21 16 15 248

5

3

23 104

18 352

Respondents1

3,605

4,952

Buddhist

411
6 150 255 163 419 9 4 7 7 6,607

Practising

Nonpractising

All3

Has personally experienced harassment in the last two years

6

7

3

5 5,880 12,496

3 1,766

5 8,759

Respondents1

91

59

Source: Department for Communities and Local Government (CLG) (2010).

Notes:

1 Excludes respondents who answered ‘don’t know’ and those with missing answers.

The Right to Respect for Private and Family Life – HRA, Article 8

2 Jewish respondents included in ‘other religion’ due to small numbers.

3 ‘All’ column based on core sample. Other columns based on combined sample.

The Right to Respect for Private and Family Life – HRA, Article 8

Table 242: Reasons given for discrimination in recruitment and promotion, England and Wales, 2008-09
Discriminated against when refused a job % Gender Age Race Religion or belief Colour Disability or long-term illness Sexual orientation Where you live *Other reason Don’t know All Respondents
2

Discriminated against with regards to promotion % 1 2 1 * 1 * * * 2 * 7 5,813

1 3 2 * 1 1 * * 2 * 7 6,000

Source: CLG (2010). Notes: All columns based on core sample. 1 Respondents could mention an unlimited number of reasons. 2 Figures for ‘‘Discriminated against when refused a job’ include respondents who had been employees or had looked for work in the last five years. Figures for ‘Discriminated against regarding promotion’ include respondents who had been employees in the last five years. Excludes respondents with missing answers.

412

The Right to Respect for Private and Family Life – HRA, Article 8

Indicator 50: Spotlight statistics: Public attitudes, understanding and experiences
Table 243: Awareness of information rights legislation – access to information, England and Wales, 2010
What laws are you aware of, if any, that give people rights to obtain information from public authorities? (Wave 14) Percentage of respondents to the Information Rights Tracker Survey who are aware of the information rights legislation listed below % Freedom of Information Act Data Protection Act Human Rights Act Citizens’ Charter ‘Open Government’ Code of Practice Environmental Information Regulations Privacy and Electronic Communications regulations Others Don’t know 31 29 13 3 1 2 1 11 38

Source: Ministry of Justice (MoJ) (2010e), derived from Information Rights Tracker Survey, Key Wave 14 results. Notes: Unprompted question; all applicable answers coded, so respondents could mention more than one item on the list. Wave 14 Fieldwork of the Information Rights Tracker Survey was conducted between 2128 January 2010. The sample was: 1,877 adults aged 15 and over in England and Wales (Ministry of Justice, 2010e: 3).

413

The Right to Respect for Private and Family Life – HRA, Article 8

Table 244: Awareness of information rights legislation – holding of personal information, England and Wales, 2010
I have the legal right to find out what personal information is held about me by businesses or public authorities (Wave 14) Respondents to the Information Rights Tracker Survey (Wave 14) % True False Don’t know 85 11 3

Source: MoJ (2010e), derived from Information Rights Tracker Survey, Key Wave 14 results. Notes: Wave 14 Fieldwork of the Information Rights Tracker Survey was conducted between 21-28 January 2010. The sample was: 1,877 adults aged 15 and over in England and Wales (MoJ, 2010e: 3). Table 245: Public attitudes towards ‘respect for private and family life’
Which of the following, if any, would you say are the most important values for living in Britain today? Respect for private and family life 63% And which four of five, if any, are most important to you personally? 43% And which, if any, do you consider to be fundamental human rights? 53%

Source: Kaur-Ballagan et al. (2009). Notes: This data is based on a demographically representative, face-to-face omnibus survey with 1,994 British adults over the age of 16, undertaken in August 2008.

414

The Right to Respect for Private and Family Life – HRA, Article 8

Table 246: Attitudes towards being treated with dignity and respect
Which of the following, if any, would you say are the most important values for living in Britain today? Being treated with dignity and respect 75% And which four of five, if any, are most important to you personally? 63% And which, if any, do you consider to be fundamental human rights? 62%

Notes: This data is based on a demographically representative, face-to-face omnibus survey with 1,994 British adults over the age of 16, undertaken in August 2008. Table 247: Attitudes towards ‘being treated fairly regardless of gender, race, disability, etc.’
Which of the following, if any, would you say are the most important values for living in Britain today? Being treated fairly regardless of gender, race, disability, etc. And which four of five, if any, are most important to you personally? And which, if any, do you consider to be fundamental human rights?

65%

46%

56%

Source: Kaur-Ballagan et al. (2009). Notes: This data is based on a demographically representative, face-to-face omnibus survey with 1,994 British adults over the age of 16, undertaken in August 2008.

415

Table 248: Public attitudes towards the right to be treated fairly and equally by population subgroup
p-value Highest educ. Qual. (p<0.05) Reference group = Degree or equivalent 0.524 A level or equivalent GCSE A-C or equivalent 1.944 Foreign or other qualifications No qualifications Social class (HRP nssec7) (p<0.05) 0.948 0.01* 0.445 0.117 0.865 3.667 Routine occuptations Never worked/long-term unemployed Full time students 0.278 0.117 0.202 0.169 0.237 0.265 0.288 1.244 1.390 Continued 0.280 1.309 0.267 1.158 0.258 1.478 0.333 1.623 1.198 3.859 0.442 2.145 Reference group = Higher, lower managerial and professions Intermediate occupations/small employer Lower supervisory & technical/semi-routine 0.652 0.516 0.404 0.463 0.453 0.091 0.012* 0.001* 0.021* 0.199 0.397 0.307 0.242 0.241 0.135 1.072 0.865 0.673 0.890 1.520 0.495 0.226 GCSE D-E or equivalent 0.350 0.467 0.373 0.001* 0.017* 0.010* 0.192 0.000* 0.817 1.486 Higher education below degree 0.559 0.114 0.271 0.208 0.250 0.158 0.171 0.126 1.151 0.671 0.874 0.774 1.428 0.406 95% Conf Interval p-value Odds ratio 95% Conf Interval

Odds ratio

Gender

Reference group = male

Female

1.102

Disability 0.154 0.900

Reference group = no limiting longstanding illness or disability

Limiting longstanding illness or disability

1.322

Ethnicity

The Right to Respect for Private and Family Life – HRA, Article 8

Reference group = white

Asian

0.974

416
Social housing Equivalent household income

Black

2.150

Mixed

0.735

Chinese/other

1.781

Age

Reference group = 16-19

20-24

0.618

Social housing (renting, landlord is LA, HA etc.) Reference group=not social housing 1.026 1.000 0.896 0.147 0.700 1.000 1.505 0.000

25-34

0.556

35-49

0.606

50-64

0.599

65-70

0.607

Table 248: Public attitudes towards the right to be treated fairly and equally by population subgroup (continued)
p-value IMD (quintile groups) (p<0.05) Reference group = IMD First Quintile (least deprived) 0.134 0.754 0.359 0.933 0.936 0.358 0.136 North West Yorkshire and the Humber 0.837 0.128 0.283 0.391 0.836 0.120 0.018* 0.000* 0.235 0.664 0.198 0.859 svygof: 0.875 0.849 4.126 0.330 2.452 South West 0.326 1.553 South East 0.349 1.362 East of England 0.284 1.173 West Midlands 0.287 4.668 East Midlands 0.472 1.108 North East 0.569 4.732 Reference group = London 1.256 1.076 0.969 1.710 2.134 2.547 2.394 1.856 0.513 0.802 0.943 0.104 0.013* 0.008* 0.009* 0.074 0.634 0.605 0.414 0.895 1.175 1.280 1.250 0.942 2.487 1.914 2.269 3.269 3.877 5.068 4.584 3.657 0.317 2.881 Government Office Region (p<0.05) 0.398 2.326 IMD Fifth Quintile 1.258 0.313 24.512 IMD Fourth Quintile 0.973 0.308 2.351 IMD Third Quintile 2.051 0.026* 0.930 0.507 0.736 9.950 IMD Second Quintile 1.241 0.481 0.679 1.090 0.523 0.639 2.268 3.860 1.807 2.477 95% Conf Interval p-value Odds ratio 95% Conf Interval

Odds ratio

Religion/belief

Reference group = Christian

Buddhist

2.706

Hindu

0.851

Jewish

2.769

Muslim

0.963

Sikh

0.956

Any other religion

1.641

No religion

0.723

Country of birth (p<0.05)

417

Reference group = UK

Irish Republic

1.157

India

0.577

Pakistan

0.689

Bangladesh

0.711

Jamaica

0.899

East African New Commonwealth

1.872

Rest of New Commonwealth

0.412

The Right to Respect for Private and Family Life – HRA, Article 8

Other

0.395

Source: Vizard (2010).Notes: Author’s calculations from the Citizenship Survey. The data in this table is for England only. It represents the combined sample, corrected for complex survey design. The findings are accurate to three decimal places. * Significance tests are based on logistic regression analysis controlling for gender, long-term limiting illness or disability, ethnicity, age, religion/belief, country of birth, equivalent household income, highest educational qualification, social class, social housing, index of multiple deprivation ranking, Government Office Region.

Table 249: Attitudes towards respect for private and family life and the home: Liberty polling exercise
Age Social Grade Region

Gender

Total 93 160 190 170 150 210 270 290 210 230 254 264 163 194 184 159 207 376 198 157 269 259 252 253 251

Male

Female

1824 65+ AB Cl C2 DE Midlands 145 144

2534 35-44 45-54 55-64

South East

North England

Wales and South West Scotland 91 87

Unweighted base

1,000

434

566

Weighted base 117 99% 100% 100% 97% 99% 99% 99% 96% 181 96% 98 51% 84 44% 6 3% 4% 7% 7 11 7 3% 4 2% 36% 62 48 70 96 60% 98 101 92 126 162 178 114 85 96% 93% 93% 95% 95% 95% 91% 120 88 61% 60% 60% 62% 54% 52% 163 139 196 258 276 199 208 236 93% 146 57% 90 35% 11 4% – 1% 12 4% – 1% 9 4% – 1% 12 5% 5 2% 16 6% – 1% 99% 158 187 170 150 203 268 288 209 221 252 259 98% 252 95% 145 55% 106 40% 7 3% 1 2%

1,000

490

510 120

Net: Of use at all

986

480

506

249 99% 237 95% 151 60% 87 35% 12 5% 1 *

140 97% 132

86 99% 85

The Right to Respect for Private and Family Life – HRA, Article 8

Net: Of use at all 155

99%

98%

99% 98% 99%

418
60 47 56 98 32% 33% 35% 34% 41% 38% 10 8% 1 1% 2% 4

Net: Vital/ important

942

453

488 107

Net: Vital/ important

98% 91% 88 61% 44 30% 8 6% 2 2% 45 52% 40 46% 1 1% 1 – Continued

94%

93%

96% 89% 97%

Vital

575

275

300

Vital

57%

56%

59% 50% 61%

Important3

367

179

188

37%

36%

37% 39% 35%

Useful2

44

27

17

4%

5%

3%

Unnecessary1

5

3

2

*

1%

*

Table 249: Attitudes towards respect for private and family life and the home: Liberty polling exercise (continued)
Age Social Grade Region

Gender

Total 2 2% 3.49 0.56 0.04 0.04 0.05 0.05 0.03 0.04 0.05 0.04 0.04 0.57 0.63 0.66 0.57 0.57 0.58 0.69 0.62 0.57 0.04 3.56 3.54 3.54 3.56 3.58 3.50 3.44 3.51 3.52 1% 1% – – 2% 1% 1% 1% 2% 1% 2% * 3.55 0.61 0.04 2 3 – 3 2 2 1 5 2 4 1

Male

Female

1824 65+ AB Cl C2 DE Midlands 3 2% 3.54 0.66 0.06

2534 35-44 45-54 55-64

South East

North England

Wales and South West Scotland 3.48 0.59 0.06

Don’t know

9

7

3

1%

1%

1%

Mean

3.53

3.50

3.55 3.41 3.60

Standard deviation

0.61

0.63

0.58 0.68 0.54

Standard error

0.02

0.03

0.02 0.07 0.04

Base: All respondents

419

Source: Liberty (2011).

The Right to Respect for Private and Family Life – HRA, Article 8

Note: Respondents were asked the following question [several rights were actually listed and respondents’ responses to each right are shown in the relevant chapter]: ‘In modern Britain, would you say each of the following rights are vital, important, useful, or unnecessary? Respect for privacy, family life and the home.’

The Right to Respect for Private and Family Life – HRA, Article 8

Chapter notes
433

434 435 436 437 438 439 440 441 442 443 444

445

446 447 448 449 450 451

452 453

The status of UN treaty ratification is drawn from the UN Treaty Database, www.unhchr. ch/tbs/doc.nsf/Statusfrset?OpenFrameSet (accessed 4 November 2010). The status of European treaty ratification is drawn from the Council of Europe Treaty Office website, conventions.coe.int/ (accessed 4 November 2010). When a state signs an international treaty this is signals its preliminary endorsement of the treaty, it does not create a binding legal obligation. A state which ratifies or accedes to a treaty is asserting that it considers itself to be legally bound by the treaty. Ratification requires the state to have previously signed the treaty, whereas accession is a single step which does not require previous signing. It should be noted that a treaty which has been acceded to or ratified by the UK does not automatically become part of the domestic law; separate legislative action is required to incorporate international law into domestic law (for example, the HRA making the ECHR enforceable in the UK). Nonetheless, ratification or accession is a state’s expression that it consents to be legally bound by the treaty, including respecting and implementing its provisions. www.5rb.com/docs/Douglas-v-Hello!%20Ltd%20ChD%2027%20Jan%202003.pdf Joint Committee on Human Rights, 2007-08: 76. cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=860909&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=843941&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.lawreports.co.uk/WLRD/2009/HLPC/Jan.0.4.html www.parliament.uk/documents/joint-committees/human-rights/HRJThomson_ HomeSec_090910.pdf www.scotcourts.gov.uk/opinions/2007CSOH189.html (accessed 25 January 2011). www.taylorkelly.co.uk/public-law/sex-offender-notification/ (accessed 25 January 2011). Liberty, www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article8-right-to-respect-for-private-and-family-life.html www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-8-right-torespect-for-private-and-family-life docs.google.com/viewer?a=v&q=cache:yK9fchCEOdQJ:www.edf.org.uk/news/ HRCases140606.doc+R+v+Royal+Devon+and+Exeter+NHS+Foundation +Trust+ %5B2004%5D&hl=en&gl=uk&pid=bl&srcid=ADGEESjyxqkBeMRCFiQmb K9N8rdePbdMsHwFBih4xG7b54ZsvU1XNjcRmGhdoR9M42VrVaO_e3Lgg3VHvIby M7wADhEj4QqB0tHvIz7z8g9Pu2ItYRbWvU3fktUW1ZUGbYk7fdFTRIt7 &sig=AHIEtbTWkbpGHQMTrTfn1gAz5pvSZBC6jg www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2003/167.html&query=title+( +R+)+and+title+(+v+)+and+title+(+East+)+and+title+(+Sussex+)+and+title+(+County+)+and +title+(+Council+)&method=boolean cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699540&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697083&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=826595&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/ew/cases/EWCA/Civ/1999/2022.html Cases in this section are drawn from the NHS Litigation Authority document, ‘What the courts have said about… Resource allocation and human rights’, downloaded from: www.library.nhs.uk/healthmanagement/ViewResource.aspx?resID=267515 (accessed 28 February 2011). www.bailii.org/ew/cases/EWHC/Admin/2001/535.html www.bailii.org/ew/cases/EWHC/Admin/2002/1522.html

420

The Right to Respect for Private and Family Life – HRA, Article 8

454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485

www.bailii.org/ew/cases/EWHC/Admin/2003/803.html www.bailii.org/ew/cases/EWHC/Admin/2003/1093.html www.bailii.org/ew/cases/EWHC/Admin/2003/2228.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=815166&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=830318&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=868178&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=776914&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=855981&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.supremecourt.gov.uk/docs/UKSC_2011_0005_Judgment.pdf cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699124&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=869647&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695480&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699398&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695350&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698473&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040621/gha-1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=837278&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=850769&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.scotcourts.gov.uk/opinions/2007CSIH67.html www.taylorkelly.co.uk/prison-law/telephone-message/ (accessed 25 January 2011). www.bailii.org/uk/cases/UKSC/2011/21.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699671&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=835163&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/UKSC/2010/45.html www.bailii.org/uk/cases/UKSC/2011/8.html www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040621/gha-1.htm www2.lse.ac.uk/humanRights/articlesAndTranscripts/Human_rights_equality_and_ discrimination.pdf cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695782&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=835996&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=707509&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=683292&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

421

The Right to Respect for Private and Family Life – HRA, Article 8

486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509

510

511

512 513 514

cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=696012&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/ respect-for-your-private-and-family-life/ www.bailii.org/uk/cases/UKSC/2011/4.html (accessed 10 March 2011). ukhumanrightsblog.com/2011/02/01/supreme-court-bolsters-rights-of-children-in-deportationcases/ (accessed 10 March 2011). www.courtsni.gov.uk/NR/rdonlyres/5E5FD8F0-33D2-4ED6-BEFC-67ACF9A371EA/0/j_j_ GIRF5249.htm www.scotcourts.gov.uk/opinions/P739.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=845733&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071024/somerv.pdf www.bailii.org/ew/cases/EWCA/Civ/2003/1036.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695410&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/UKHL/2009/45.html The guidance has been published, see: www.cps.gov.uk/publications/prosecution/assisted_ suicide_policy.html www.unhchr.ch/tbs/doc.nsf/(Symbol)/23378a8724595410c12563ed004aeecd?Opendocument Available at www.euractiv.com/en/infosociety/reding-defines-new-eu-data-privacy-rulesnews-503172 (accessed 17 March 2011). www.parliament.uk/documents/joint-committees/human-rights/HRJThomson_ HomeSec_090910.pdf www.parliament.uk/documents/joint-committees/human-rights/HRJMarper_ HomeSec_090910.pdf www.5rb.com/docs/Douglas-v-Hello!%20Ltd%20ChD%2027%20Jan%202003.pdf Joint Committee on Human Rights, 2007-08: 76. cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=860909&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=843941&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.lawreports.co.uk/WLRD/2009/HLPC/Jan.0.4.html www.parliament.uk/documents/joint-committees/human-rights/HRJThomson_ HomeSec_090910.pdf www.scotcourts.gov.uk/opinions/2007CSOH189.html (accessed 25 January 2011). www.yourrights.org.uk/yourrights/the-human-rights-act/the-convention-rights/article-8-right-torespect-for-private-and-family-life docs.google.com/viewer?a=v&q=cache:yK9fchCEOdQJ:www.edf.org.uk/news/ HRCases140606.doc+R+v+Royal+Devon+and+Exeter+NHS+Foundation +Trust+ %5B2004%5D&hl=en&gl=uk&pid=bl&srcid=ADGEESjyxqkBeMRCFiQmb K9N8rdePbdMsHwFBih4xG7b54ZsvU1XNjcRmGhdoR9M42VrVaO_e3Lgg3VHvIby M7wADhEj4QqB0tHvIz7z8g9Pu2ItYRbWvU3fktUW1ZUGbYk7fdFTRIt7 &sig=AHIEtbTWkbpGHQMTrTfn1gAz5pvSZBC6jg www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2003/167.html&query=title+( +R+)+and+title+(+v+)+and+title+(+East+)+and+title+(+Sussex+)+and+title+(+County+)+and +title+(+Council+)&method=boolean cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699540&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=697083&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

422

The Right to Respect for Private and Family Life – HRA, Article 8

515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551

cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=826595&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/ew/cases/EWCA/Civ/1999/2022.html www.bailii.org/ew/cases/EWHC/Admin/2001/535.html www.bailii.org/ew/cases/EWHC/Admin/2002/1522.html www.bailii.org/ew/cases/EWHC/Admin/2003/803.html www.bailii.org/ew/cases/EWHC/Admin/2003/1093.html www.bailii.org/ew/cases/EWHC/Admin/2003/2228.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=815166&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698325&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.supremecourt.gov.uk/docs/UKSC_2011_0005_Judgment.pdf cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695350&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=698473&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040621/gha-1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=837278&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=850769&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.scotcourts.gov.uk/opinions/2007CSIH67.html www.taylorkelly.co.uk/prison-law/telephone-message/ (accessed 25 January 2011). www.bailii.org/uk/cases/UKSC/2011/21.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=699671&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=835163&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/UKSC/2010/45.html www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040621/gha-1.htm cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=835996&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=683292&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.equalityhumanrights.com/human-rights/what-are-human-rights/the-human-rights-act/ respect-for-your-private-and-family-life/ www.bailii.org/uk/cases/UKSC/2011/4.html (accessed 10 March 2011). www.courtsni.gov.uk/NR/rdonlyres/5E5FD8F0-33D2-4ED6-BEFC-67ACF9A371EA/0/j_j_ GIRF5249.htm www.scotcourts.gov.uk/opinions/P739.html www.publications.parliament.uk/pa/ld200607/ldjudgmt/jd071024/somerv.pdf www.bailii.org/ew/cases/EWCA/Civ/2003/1036.html cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=695410&portal=hbkm&sourc e=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649 www.bailii.org/uk/cases/UKHL/2009/45.html www.equalityhumanrights.com/uploaded_files/raceinbritain/ehrc_stop_and_search_report.pdf www.publications.parliament.uk/pa/jt200607/jtselect/jtrights/156/156i.pdf www.publications.parliament.uk/pa/cm200708/cmselect/cmhaff/58/58i.pdf (accessed 10 March 2011). www.parliament.uk/documents/commons-committees/home-affairs/ CRCFinalReportEmbargoed.pdf (accessed 20 July 2011). www.parliament.uk/business/committees/committees-a-z/commons-select/home-affairscommittee/news/110720-phone-hacking-report/ (accessed 20 July 2011).

423

The Right to Respect for Private and Family Life – HRA, Article 8

552 553 554 555 556 557 558 559 560 561

562

Information in this section is drawn from: www.ico.gov.uk/what_we_cover/promoting_data_ privacy/taking_action.aspx (accessed 5 October 2011). www.ico.gov.uk/about_us/research/~/media/documents/library/Corporate/Research_and_ reports/surveillance_report_for_home_select_committee.ashx (accessed 20 July 2011). www.cambridgeshire.gov.uk/NR/rdonlyres/46979CAB-51B2-4305-B64B-E520165D56D7/0/ Restraint.pdf (accessed 9 November 2011). www.ombudsman.org.uk/__data/assets/pdf_file/0016/7216/Care-and-Compassion-PHSO0114web.pdf (accessed 9 November 2011). www.cqc.org.uk/newsandevents/newsstories.cfm?widCall1=customWidgets.content_ view_1&cit_id=37384 (accessed 5 July 2011). www.liberty-human-rights.org.uk/policy/reports/overlooked-privacy-report-december-2007.pdf Available at www.stonewall.org.uk/what_we_do/2583.asp#Asylum (accessed 17 March 2011). www.dailymail.co.uk/news/article-1313495/Daily-Mail-honoured-Dignity-Elderly-campaign.html www.ageuk.org.uk/Documents/EN-GB/ID9489%20HTBH%20Report%2028ppA4. pdf?dtrk=true, p24 (accessed 5 July 2011). The right to respect for religious belief is protected under Article 9. It is unlikely a case concerning religion would fall under Article 8 alone. The data here is being collated and analysed within the conditions of detention context. The right to respect for religious belief is protected under Article 9. It is unlikely a case concerning religion would fall under Article 8 alone. The data here is being collated and analysed within the conditions of detention context.

424

Chapter 10
The Right to the Highest Attainable Standard of Physical and Mental Health (Universal Declaration of Human Rights, Article 25; International Covenant on Economic, Social and Cultural Rights, Article 12)

Please read Part II Guidance on using and interpreting the Human Rights Measurement Framework first.

10 The Right to the Highest Attainable Standard of Physical and Mental Health (Universal Declaration of Human Rights (UDHR), Article 25; International Covenant on Economic, Social and Cultural Rights (ICESCR), Article 12)

Panel and indicators
Actions/inactions by the state, its agents or bodies fulfilling a public function Mental health Sexual and reproductive health Environmental and occupational health Community health and social care Accessibility to health services and essential medicines

Protection of the right to the highest attainable standard of physical and mental health by the state, its agents or bodies fulfilling a public function

Indicators

General health

Structural (indicators of ‘commitment in principle’)

Indicator 51: Legal and constitutional framework • Protection of the right the enjoyment of the highest attainable standard of physical and mental health in domestic law (including constitutional/‘higher’ law) • Status of ratification of relevant international treaties

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

426

Indicator 52: Legal precedents, gaps and standard-setting • Principles established in key cases (domestic and ECHR) and international standard setting processes • Gaps in protection and non-implementation of legal judgements and recommendations

Process (indicators of ‘steps taken’ – including legal, regulatory and public policy measures)

Indicator 53: Regulatory framework • Key regulators, inspectorates, ombudsmen and other mechanisms for complaints handling • Relevant responsibilities and powers, national minimum standard frameworks and inspection/complaints-handling criteria

Indicator 54: Public policy framework • Primary legislation • Relevant codes and guidance • Other relevant policies, plans, targets and goals • Spotlight resource allocations

Outcome (indicators of the position of individuals and groups in practice/ emergence of a human rights ‘culture’)

Indicator 55: Outcomes of key judicial, regulatory and investigative processes • Violations of the right to the enjoyment of the highest attainable standard of physical and mental health: Case law outcomes • Key concerns raised by human rights monitoring bodies • Outcomes of inspection, regulation and complaints procedures, such as: • Complaints handling by regulatory bodies and inspectorates: complaints that engage the right to health, inspection outcomes against the Care Quality Commission (CQC) minimum standards/inspection criteria • Outcomes of independent inquiries, investigations and reviews that result in serious criticism of actions of the state, its agents or bodies fulfilling a public function (includes investigations into ‘excess’ and ‘avoidable deaths’ within healthcare establishments(also see the Human Rights Act (HRA), Article 2) • Key allegations by private individuals and civil society organisations/reports in the media

Indicator 56: Spotlight statistics: Mortality rates, healthy life expectancy and ill health • Life expectancy, infant mortality, accidents, deaths through cancer/cardiovacsular disease, healthy life expectancy, self-reported ill health, longstanding illness and disability, mental health

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

427

Indicator 57: Spotlight statistics: Prevalence of self-harm, access to health services and health outcomes – at risk/vulnerable groups • ‘Looked after children’: health protection gaps • Individuals who are detained: access to health/self harm rates for detained individuals • Health gaps for Gypsies and Travellers

Indicator 58: Spotlight statistics: Non-discrimination, autonomy and dignity and respect • Support for nutritional needs during hospital stays • Choice, control and autonomy in healthcare decisions. • Discrimination in access to healthcare (e.g. non-registration or discrimination at GP surgeries). Within Wales: access by Welsh as first language individuals to health, social care and speech therapy services • Access to sexual and reproductive healthcare

Indicator 59: Spotlight statistics: ‘Social determinants’, environmental and occupational health • Poverty and income inequality • Housing conditions

Indicator 60: Spotlight statistics: Public attitudes, understanding and experiences • Public attitudes towards the right to healthcare as a right ‘you should have’ and ‘you do have’ • Perceptions of treatment with dignity and respect in healthcare

Panel and indicators (continued)

Indicators should be systematically disaggregated Key disaggregation characteristics include ethnicity/race, gender, disability, sexual orientation, transgender, religion and belief, age, social class, area (region, urban/rural, remoteness) with separate reporting of the non-private household population and at risk/vulnerable groups including individuals staying in/resident/detained in public and private institutions; individuals living in poverty; refugees/asylum seekers, vulnerable children and young people (for example, children in need, ‘looked after children’, children who are carers), Gypsies and Travellers, etc.

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

428

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Evidence base
Structural indicators Indicator 51: Legal and constitutional framework
Table 250: Protection of the right to the highest attainable standard of physical and mental health in domestic law (including constitutional/‘higher’ law) The right to the highest attainable standard of physical and mental health is not incorporated into the HRA. Table 251: Status of ratification of relevant international treaties563 ICESCR Article 12 – ratified. International Covenant on Civil and Political Rights (ICCPR) Article 7 – ratified. International Convention on the Elimination of All Forms of Racial Discrimination(ICERD) Article 5(e)(iv) – ratified. Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Articles 11.1(f), 12, 14.2(b) – ratified. Convention on the Rights of the Child Articles 3, 23, 24, 26, 33 – ratified. Convention on the Rights of Persons with Disabilities (CRPD) Article 25 – ratified. ECHR Articles 2 and 3 – ratified. European Social Charter (revised) – signed but not ratified. Additional Protocol to the European Social Charter Providing for a System of Collective Complaints – not ratified.

429

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Indicator 52: Legal precedents, gaps and standard-setting
Table 252: Principles established in key cases (domestic, ECHR and international) Domestic case law The right to treatment564 • D v UK no 30240/96 [1997] ECHR565 – The European Court of Human Rights found that it would breach Article 3 if the UK Government were to deport a terminallyill man suffering from AIDS to his home country of St Kitts, where no specialist medical treatment and little, if any, social support would be available. Bensaid v UK no.44599/98 [2001] ECHR566 – Article 3 might be breached if an individual was deported to a country where no suitable treatment was available; ‘private life’ protected by Article 8 includes the preservation of the individual’s mental stability. In this case, however, the risks of such harm were too speculative for breach of Articles 3 and 8 to be found. Dickson v UK (GC) no. 44362/04 [2007] ECHR567 – Over-ruling an earlier decision of the chamber, the European Court of Human Rights found that in refusing to permit artificial insemination between a prisoner and his wife, a fair balance was not struck between the competing public and private interests involved, and that there had therefore been a violation of Article 8. North West Lancashire Health Authority v A, D & G [2000] 1 WLR 977568 – In a case of refusal by a health authority to fund gender reassignment surgery, the Court of Appeal held that ‘Health Authorities have to make hard and often invidious decisions in the allocation of avowedly inadequate resources. But those decisions must proceed from proper assessments of the conditions competing for treatment’. The authority’s policies ‘were made upon the premise that transsexualism is not a disease and that surgical treatment for it is of no proven clinical benefit’, and needed to be revisited. However, the Court of Appeal noted that ‘Article 8 imposes no positive obligations to provide treatment’. Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010569 – In the case of a women seeking compensation to fund a surrogacy arrangement after becoming infertile, the Court found that Article 12 does not give the right to be supplied with a child. However, it might ‘well preclude placing arbitrary or disproportionate restrictions upon access to the reproductive services which are generally available’.

430

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

R v Cambridge Health Authority ex p B [1995] EWCA Civ 49570 – In the context of an appeal by the parents against the decision of the health authority not to fund further treatment for their child dying of leukaemia, the Court noted that ‘Difficult and agonising judgements have to be made as to how a limited budget is best allocated to the maximum advantage of the maximum number of patients. That is not a judgement which the court can make’. N v Secretary of State for the Home Department [2003] EWCA Civ 1369571 – In a majority decision, the Court of Appeal held that only in extreme cases would absence of health facilities in another country prevent deportation. R (on the application of Burke) v General Medical Council [2005] EWCA Civ 1003572 – The Court found that a patient cannot demand that a doctor administer a treatment which the doctor considers is adverse to the patient’s clinical needs. However, withdrawing artificial nutrition and hydration from a competent patient who wishes to remain alive would violate Article 2. Rachel Gunter (by her litigation friend and father Edwin Gunter) and South Western Staffordshire Primary Care Trust [2005] EWHC 1894 Admin573 – When considering whether to provide a residential or home-based package of care for a severely disabled individual, the Primary Care Trust(PCT) must give proper weight to her Article 8 rights(see Table 218). R (on the application of Rogers) v Swindon NHS Primary Care Trust & Another [2006] EWCA Civ 392574 (over-ruling the earlier High Court decision) – The PCT’s policy regarding the funding of Herceptin was irrational and therefore unlawful. The fact that the availability of funding might be a ‘life and death decision’ for Ms Rogers meant that the court should subject the PCT’s decision to ‘rigorous scrutiny’. R (On the Application Of Condliff) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin)575 – The Court found that there was no Article 8 right to demand gastric banding, noting that ‘when a PCT makes a policy decision about where to allocate its limited medical resources, assuming it does so on a rational basis, the A8 rights of any particular person who may be denied treatment as a result of a decision which applies that policy need not be considered by reason of some positive duty’ (Wagner, 2011a).576 This decision was upheld on appeal, see R (on the application of Condliff) v North Staffordshire Primary Care Trust [2011] EWCA Civ 910.577

431

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Resource allocation and the right to health578 • R (on the application of F) v (1) Oxfordshire Mental Healthcare NHS trust (2) Oxfordshire Health Authority [2001] EWHC Admin 535579 – Article 8 was not breached when a Health Authority refused to fund a medium secure placement in Manchester rather than Oxford. Whilst decisions on funding affect lives, that was not a reason to judicialise them. R (on the application of H) v Mental Health Tribunal [2002] EWHC 1522 Admin580 – The decision not to recommend transfer of a patient to a hospital closer to his home did not breach Article 8. Decisions on such transfers ‘may also be affected by questions as to the availability of resources with which the court cannot interfere unless those resources, and the lack of them, lead to an infringement of a Convention right, for example, a right under Article 3. That is not the position in the present case’. R (on the application of Haggerty) v St Helens Council [2003] EWHC 803 Admin581 – In a case concerning the closure of a private residential home, the Court held that the financial resources of the council were an important element to be considered in the balancing exercise required by Article 8.2. R (on the application of Dudley and others) v East Sussex County Council [2003] EWHC 1093 Admin582 – The High Court ruled that the closure of a residential home did not breach Articles 2, 3 and 8. There was no evidence that Articles 2 and 3 were engaged; if Article 8.1 was engaged, this was justified under Article 8.2 by the council’s needs to balance competing claims on resources. R (on the application of Yvonne Watts) v (1) Bedford Primary Care Trust (2) Secretary of State for Health [2003] EWHC 2228 (Admin)583 – In the context of a patient waiting in pain for a hip operation, the Court held that neither Article 3 nor Article 8 rights were engaged in the request for reimbursement of medical costs incurred in an overseas hip replacement operation undertaken to avoid an NHS waiting list. R (Grogan) v Bexley NHS Care Trust [2006] EWHC 44 Admin584 – This case concerned the difference between healthcare (which should be fully funded by the NHS) and social care (where there is no obligation to fully fund). The Court found that the criteria drawn up by the Strategic Health Authority and adopted by the NHS Trust were ‘fatally flawed’ as they did not reflect the fact that those with a primary health need should be NHS funded. The Trust claimed its decision was in line with the Department of Health guidance and therefore lawful, but the Court rejected that claim.

432

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

R (on the application of Condliff) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin)585 – The Court held that because the right to respect for private and family life was not generally engaged in healthcare resource allocation, a PCT’s Individual Funding Request policy – which provided that non-clinical, social factors could not be taken into account in determining exceptionality – did not breach Article 8. For further details about this case see The right to treatment. R (on the application of Cawser) v Secretary of State for the Home Department [2003] EWCA Civ 1522586 – A leading case on the allocation of resources and the role of the court, considered in the context of Article 5 rights. See consideration of this case in Secretary of State for Justice v James (formerly Walker & Anor): R (on the application of Lee) v Secretary of State for Justice & one other action [2009] UKHL 22.587

Public functions and social care • YL v Birmingham City Council [2007] UKHL 27588 – House of Lords considered whether a care home when providing accommodation and care to a resident pursuant to arrangements made by a local authority is performing ‘functions of a public nature’ for the purposes of section 6(3)(b) of the Human Rights Act 1998 and is therefore a ‘public authority’ obliged to act compatibly with Convention rights under section 6(1) of the HRA. The care and accommodation provided by Southern Cross to Mrs YL were found not to constitute a ‘function of a public nature’ within the scope of section 6(3)b. For subsequent primary legislation, see Table 254.

Dignity • R (McDonald) v Royal Borough of Chelsea and Kensington [2011] UKSC 33589 – The Court held that the borough’s proposal for the applicant to wear incontinence pads or use special sheeting, thus avoiding the need for a night-time carer to assist her in accessing a commode was not in breach of her Article 8 rights (see Article 8).

International case law • Paschim Banga Khet Mazdoor Samity and others v State of West Bengal and another [1996] AIR SC 2426590; Olga Tellis and Ors v Bombay Municipality Corporation and Ors [1985] 2 Supp SCR 51591 – Judgements of the Supreme Court of India interpreting the right to life as giving rise to positive obligations on the state to protect basic needs such as life-saving medical treatment, the means of livelihood and the prevention of malnutrition and starvation deaths during periods of drought and famine.

433

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Minister of Health and others v Treatment Action Campaign and others (TAC) (2002) 5 SA 721 (CC)592 – Clarified the nature and scope of positive human rights obligations in relation to health. The South African court found that the government had failed to devise and implement a comprehensive and coordinated program to combat mother-to-child transmission of HIV.593 Viceconte, Mariela Cecilia v Argentinian Ministry of Health and Social Welfare (1999)594 – The Argentinian court found that the government had a positive duty to manufacture vaccine to prevent deaths from a virulent life-threatening disease because the disease only occurred in Argentina and there was, therefore, no commercial interest of a private pharmaceutical company in investing in research and development.

Table 253: Principles established in international standard setting processes General evaluative criteria developed by the United Nations Committee on Economic, Social and Cultural Rights (UNCESCR) • • • • • Obligations to respect, protect and fulfil human rights. Obligations of conduct versus obligations of result. Progressive realization/maximum available resources. Minimum core threshold approach/immediate obligations. Non-retrogression.

Other key international standards • • • • • UNCESCR General Comment 9 – domestic application of the Covenant.595 UNCESCR General Comment 14596 – principles of availability, accessibility, acceptability, quality. Framework developed by UN Special Rapporteur on the Right to Health, Paul Hunt. ‘Reasonableness’ of state actions (South African jurisprudence). European Committee of Social Rights.

434

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 254: Gaps in legal protection • The ICESCR is not incorporated into domestic law. The UNCESCR (2009) has expressed concerns about the non-incorporation of the Covenant into domestic law: ‘The Committee deeply regrets that, although the State party has adopted a certain number of laws in the area of economic, social and cultural rights, the Covenant has still not been incorporated in the domestic legal order and that there is no intention by the State party to do so in the near future. The Committee reiterates its concern about the State party’s position that the provisions of the Covenant, with minor exceptions, constitute principles and programmatic objectives rather than legal obligations that are justiciable, and that consequently they cannot be given direct legislative effect.’597 • The Revised European Social Charter has been signed but not ratified by the UK.

Social care and ‘Public functions’ • Section 146 of the Health and Social Care Act (2008) addressed the legal gap in the protection of the Human Rights Act relating to residential care provided by private and third sector providers following YL v Birmingham City Council (see Table 252). However, the Commission has identified a legal loophole which means that the majority of older people who receive care at home (if they pay for all or part of it themselves or if it is delivered by appropriate or voluntary sector organisation) are not protected by the HRA (EHRC 2011).

Process indicators Indicator 53: Regulatory framework
Table 255: List of key regulators, inspectorates, ombudsmen, etc. • • • • • • • • • Care Quality Commission Scottish Care Commission Parliamentary and Health Service Ombudsman Board of Community Health Councils in Wales Health & Safety Executive HM Chief Inspector of Prisons (HMIP) for England and Wales HMIP for Scotland Prisons and Probation Ombudsman General Medical Council (self-regulated)

435

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 256: Spotlight responsibilities and powers of key regulators, inspectorates, ombudsmen Example 2: The CQC ‘essential standards’ of quality and safety framework The CQC has introduced a new ‘essential standards of care’ framework which supercedes the previous ‘core standards’ and ‘national minimum standards’ criteria for health and social care. Details are available at www.cqc.org.uk/_db/_documents/CQC_ Complete_2009_18.pdf/598

Indicator 54: Public policy framework
Table 257: Right to the highest attainable standard of physical and mental health – spotlight primary legislation and regulatory mechanisms • • • Health and Social Care Act 2008 (including Section 146, on the definition of public functions in the health and social care context).599 NHS Constitution – ‘You have the right to be treated with dignity and respect, in accordance with your human rights.’ Memorandum of Understanding between the Commission and the Care Quality Commission (EHRC and CQC 2011).

Table 258: Right to the highest attainable standard of physical and mental health – policy guidance and training guidelines • • • • The Care Quality Commission (Registration) Regulations 2009.600 The Scottish Human Rights Commission Care About Rights601 resources for the care and support of older people.602 Prison Service Order 3100 Clinical Governance – Quality in prison healthcare.603 See also: – Suicide and self harm prevention and health and social care policies and guidelines (see Table 10). – Health and social care guidelines (see Table 80). • Department of Health, (2010b), Human Rights Training Materials and Human Rights Resources604, was a suite of training materials designed for use in training sessions for frontline workers supporting people with a learning disability (primarily health and social care workers).

436

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 259: Identifiable expenditure on health services in England, Scotland and Wales, 2004-05 – 2009-10, £ million
2004-05 outturn England Medical services Health research Central and other health services Total health Scotland Medical services Health research Central and other health services Total health Wales Medical services Health research Central and other health services Total health 4,297 22 4,575 29 4,914 34 5,178 36 5,480 39 5,776 47 7,596 29 8,438 32 8,906 37 9,603 43 9,871 106 10,381 104 66,559 169 72,092 198 75,643 230 82,053 231 88,660 295 96,932 262 2005-06 outturn 2006-07 outturn 2007-08 outturn 2008-09 outturn 2009-10 plans

1,057 67,785

914 73,204

954 76,828

944 83,227

966 89,922

1,073 98,267

76 7,702

92 8,562

92 9,035

81 9,727

183 10,160

236 10,721

14 4,333

45 4,649

35 4,984

40 5,255

34 5,553

43 5,867

Source: HM Treasury (2010). Notes: 1 The level of detail required for COFOG level 2 is not yet available. Health spending is therefore presented using HM Treasury’s own sub-functional classification.

437

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 260: Identifiable expenditure on health services in England, Scotland and Wales, 2004-05 – 2009-10, per head
2004-05 outturn England Medical services Health research Central and other health services Total health Scotland Medical services Health research Central and other health services Total health Wales Medical services Health research Central and other health services Total health 1,458 7 1,549 10 1,657 12 1,738 12 1,831 13 1,926 16 1,496 6 1,656 6 1,741 7 1,869 8 1,910 20 2,001 20 1,328 3 1,429 4 1,490 5 1,606 5 1,723 6 1,871 5 2005-06 outturn 2006-07 outturn 2007-08 outturn 2008-09 outturn 2009-10 plans

21 1,353

18 1,451

19 1,513

18 1,629

19 1,748

21 1,896

15 1,517

18 1,681

18 1,766

16 1,893

35 1,966

45 2,066

5 1,470

15 1,574

12 1,680

13 1,763

11 1,855

14 1,956

Source: HM Treasury (2010). Notes: 1 The level of detail required for Classification of the Functions of Government level 2 is not yet available. Health spending is therefore presented using HM Treasury’s own subfunctional classification. NB for identifiable expenditure on child and adult protection (personal social services), see Tables 352 and 353.

438

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Outcome indicators Indicator 55: Outcomes of key judicial, regulatory and investigative processes
Table 261: The right to the highest attainable standard of physical and mental health: case law outcomes Relevant domestic case law The right to treatment • D v UK no 30240/96 [1997] ECHR605 – The European Court of Human Rights found that the deportation of a terminally-ill man would be a violation of Article 3 (see Table 252) Bensaid v UK no.44599/98 [2001] ECHR606 – No violation of Articles 3 and 8 (see Table 252). Dickson v UK (GC) no. 44362/04 [2007] ECHR607 – The refusal to permit artificial insemination between a prisoner and his wife was a violation of their Article 8 rights (see Table 252). North West Lancashire Health Authority v A, D & G [2000] 1 WLR 977608 – Whilst noting that ‘Article 8 imposes no positive obligations to provide treatment’, the Court held that the health authority’s policies on transsexualism needed to be revisited (see Table 252). Briody v St Helen’s and Knowsley Area Health Authority [2001] EWCA Civ 1010609 – No violation of Article 12 (see Table 252). R v Cambridge Health Authority ex p B [1995] EWCA Civ 49610 – The decision of the health authority not to fund further treatment for a child dying of leukaemia was upheld; it was not appropriate for the Court to ‘express opinions as to the likelihood of the effectiveness of medical treatment, or as to the merits of medical judgement’(see Table 252). N v Secretary of State for the Home Department [2003] EWCA Civ 1369611 – In a majority decision, the Court of Appeal held that only in extreme cases would deportation to another country without adequate health facilities be a violation of Article 8 (see Table 252). R (on the application of Burke) v General Medical Council [2005] EWCA Civ 1003612 – The Court found that withdrawing artificial nutrition and hydration from a competent patient who wishes to remain alive would violate Article 2 (see Table 252).

• •

• •

439

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Rachel Gunter (by her litigation friend and father Edwin Gunter) and South Western Staffordshire Primary Care Trust [2005] EWHC 1894 Admin613 – When considering whether to provide a residential or home-based package of care for a severely disabled individual, the PCT must give proper weight to her Article 8 rights. See (Tables 218 and 252). R (on the application of Rogers) v Swindon NHS Primary Care Trust & Another [2006] EWCA Civ 392614 (over-ruling the earlier High Court decision) – The PCT’s policy regarding the funding of Herceptin was irrational and therefore unlawful (see Table 252). R (on the application of Condliff) v North Staffordshire Primary Care Trust [2011] EWHC B8 (Admin)615 – No violation of Articles 6 or 8 in the PCT’s refusal to fund a gastric banding operation (see Table 252).

Resource allocation and the right to health616 • R (on the application of F) v (1) Oxfordshire Mental Healthcare NHS trust (2) Oxfordshire Health Authority [2001] EWHC Admin 535617 – No violation of Article 8 (see Table 252). R (on the application of H) v Mental Health Tribunal [2002] EWHC 1522 Admin618 – The decision not to recommend transfer of a patient to a hospital closer to his home did not breach Article 8 (see Table 252). R (on the application of Haggerty) v St Helens Council [2003] EWHC 803 Admin619 – The Court held that the financial resources of the council were an important element to be considered in the balancing exercise required by Article 8.2 (see Table 252). R (on the application of Dudley and others) v East Sussex County Council [2003] EWHC 1093 Admin620 – The High Court ruled that the closure of a residential home did not breach Articles 2, 3 and 8 (see Table 252). R (on the application of Yvonne Watts) v (1) Bedford Primary Care Trust (2) Secretary of State for Health [2003] EWHC 2228 (Admin)621 – The Court held that neither Article 3 nor Article 8 rights were engaged in the request for reimbursement of medical costs incurred in an overseas hip replacement operation undertaken to avoid an NHS waiting list (see Table 252). R (Grogan) v Bexley NHS Care Trust [2006] EWHC 44 Admin622 – The Court found that the criteria drawn up by the Strategic Health Authority and adopted by the NHS Trust were ‘fatally flawed’ as they did not reflect the fact that those with a primary health need should be NHS funded (see Table 252).

Dignity • R (McDonald) v Royal Borough of Chelsea and Kensington [2011] UKSC 33623 – No violation of Article 8 (see Table 252). 440

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 262: Key concerns raised by human rights monitoring bodies Joint Committee on Human Rights • The Joint Committee on Human Rights (JCHR) (2007), The Human Rights of Older People in Healthcare, Eighteenth Report of Session 2006-07, raised concerns about poor treatment, neglect, abuse, discrimination , malnutrition and dehydration and ill-considered discharge.624 The JCHR considered the question of domestic incorporation of economic, social and cultural rights (JCHR, 2004a). In 2008, the JCHR’s report (JCHR, 2008b) included recommendations on the inclusion of these rights in any future bill of rights. It suggested that, in the first instance, the rights to health, education, housing, and an adequate standard of living, should be included. There should subsequently be a review of experience after a period and consideration of whether to add other social and economic rights (2008b: 196). These recommendations were underpinned by a new ‘mid-way’ reform model for the protection of economic and social rights combining political accountability and limited judicial review. This model was proposed as an alternative to full justiciability and legal enforcement on the one hand, and declaratory status on the other. The JCHR stated: ‘We consider that rights to health, education and housing are part of this country’s defining commitments, and including them in a UK Bill of Rights is therefore appropriate, if it can be achieved in a way which overcomes the traditional objections to such inclusion. We also agree with the view of our predecessor Committee that rights such as the right to adequate healthcare, to education and to protection against the worst extremes of poverty touch the substance of people’s everyday lives, and would help to correct the popular misconception that human rights are a charter for criminals and terrorists. In our view, the inclusion of such rights in a UK Bill of Rights would be far more effective in countering that misperception than the Government’s attempt to link rights with responsibilities in the popular imagination.’ (JCHR, 2008b: 191-197).

441

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Inquiry into home care of older people (EHRC, 2011) identified instances of care such as: older people not being given adequate support to eat and drink (in particular those with dementia); an unfounded belief that health and safety restrictions prevent care workers preparing hot meals; neglect due to tasks in the care package not being carried out, often caused by lack of time. Financial abuse, for example money being systematically stolen over a period of time; chronic disregard for older people’s privacy and dignity when carrying out intimate tasks; talking over older people (sometimes on mobile phones) or patronising them; little attention to older people’s choices about how and when their home care is delivered; risks to personal security, for example when care workers are frequently changed sometimes without warning; some physical abuse, such as rough handling or using unnecessary physical force. The inquiry found that a number of articles of the HRA have key relevance for people receiving home care services including Articles 2, 3 and 8 and Article 1, Protocol 1. It further highlighted possible gaps in protection under the Human Rights Act when care services are provided in people’s own homes and called for this legal loophole to be closed.

International • • The UNCESCR – access to healthcare for rejected asylum seekers.625 The UNCESCR ‘is deeply concerned that persons with mental disabilities experience significantly poorer health conditions, including the higher probability to suffer from bowel cancer, breast cancer and much shorter life expectancy, than those without mental health problems’.626

The UNCRC: • Health and health services: ‘The Committee is concerned that, despite the State party’s efforts to tackle inequalities in access to health services through, inter alia, substantial investments, inequalities remain a problem, as demonstrated by the widening gap in infant mortality between the most and the least well-off groups.’ • Mental health: ‘ The Committee – despite the considerable financial investment, especially in England – is concerned that, while 1 in 10 children in the State party have a diagnosable mental health problem, only around 25 per cent of them have access to the required treatment and care and that children may still be treated in adult psychiatric wards.’ • Adolescent health: ‘The Committee remains concerned at the high rate of teenage pregnancies, especially among girls from a lower socio-economic background and in the Overseas Territories, in particular Turks and Caicos.’627

442

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 263: Outcomes of inspection, regulation and complaints procedures that engage the right to the highest attainable standard of physical and mental health • Parliamentary and Health Service Ombudsman (PHSO), Care and Compassion. Report of the Health Services Ombudsman on 10 investigations into NHS care of older people628, February 2011 (see Table 14). Mid Staffordshire NHS Foundation Trust Inquiry (2009) report629, identified severe failings in emergency care provided by the Trust between 2005 and mid 2008 (see Tables 14 and 16). PHSO and the Local Government Ombudsman, Six Lives, highlights failures in the quality of health and social care services for people with learning disabilities; finding, with maladministration, service failure and unremedied injustice in a number, but not all, of the 20 bodies investigated (three Councils, 16 NHS bodies and the Healthcare Commission (now the Care Quality Commission) (see Tables 14 and 17). Commission for Social Care Inspection study (2007a), Rights, Risks and Restraints630, found that the use of restraint in elderly care services is ‘unacceptable’ and denies the human right to ‘dignity and choice’ (see Table 85). Department of Health, the British Institute of Human Rights and five NHS Trusts produced Human Rights in Healthcare: A Framework for Local Action (2008)631, to assist NHS Trusts to develop and apply human rights based approaches in their organisations to improve service design and delivery. Care Quality Commission (CQC) has published 12 reports from an inspection programme which examined whether elderly people were receiving essential standards of care in 100 hospitals across England. The inspection programme has identified recurring concerns in relation to both nutrition and dignity, including people not being given assistance to eat, not having their nutritional needs monitored and not being given enough to drink; and staff not treating patients in a respectful way or involving them in their own care (CQC, 2011c).632

443

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 264: Outcomes of independent reviews that are relevant to the right to the highest attainable standard of physical and mental health • The Marmot Review Team (www.marmotreview.org), Fair Society, Healthy Lives (Marmot, 2010), assembled evidence and advised on the development of a health inequalities strategy in England;included a monitoring framework on the social determinants of health and health inequalities;and suggested indicators to support monitoring of the overall strategic direction in reducing health inequalities. The London Health Observatory and the Marmot Review Team have also produced baseline figures for some key indicators of the social determinants of health, health outcomes and social inequality that correspond, as closely as is currently possible, to the indicators proposed in Fair Society, Healthy Lives. These are: male life expectancy female life expectancy slope index of inequality (SII) for male life expectancy SII for female life expectancy SII for male disability-free life expectancy SII for female disability-free life expectancy children achieving a good level of development at age five young people who are not in education, employment or training (NEET) people in households in receipt of means-tested benefits slope index of inequality for people in households in receipt of means-tested benefits.

• • • • • • • • • •

For further details, see: www.lho.org.uk/LHO_Topics/national_lead_areas/marmot/ marmotindicators.aspx

444

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 265: Health complaints accepted by the PSHO, by type of body, England, 2009-10
Complaints accepted Type of body NHS hospital, specialist and teaching trust (acute) Of which: Foundation trusts* Non-foundation trusts General practitioners Primary care trusts Mental health, social care and learning disability trusts Of which: Foundation trusts* Non-foundation trusts Strategic health authorities Other Of which: Ambulance trusts General dental practitioners Pharmacies Healthcare Commission Special health authorities Opticians Care trusts Total 12 9 1 0 0 0 0 346 100 14 12 16 22 5 6 69 126 57 30 26 16 9 8 N 195 % 56

Source: PHSO (2010). Notes: * The number of foundation trusts increases each year, so the changing proportion of complaints about foundation trusts reflects this.

445

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 266: Issues raised in complaints to the Healthcare Commission (now the Care Quality Commission)
Issues raised % Complaints handling Communication/information to patients Treatment Diagnosis Access and waiting Effectiveness of care Patient experience Attitude of staff Records Nursing 19 12 11 9 8 7 7 6 5 4

Source: Healthcare Commission (2009b). Notes: Of the complaints made, 29.3% (2,621) were upheld by the Healthcare Commission without recommendations and 6.7% (599) were upheld with recommendations. Table 267: Recommendations made by the Healthcare Commission (now the Care Quality Commission) where a complaint has been upheld
Recommendations made % Safety – compliance with guidance and policies Improve patient focus Communication Staff training/learning Improve delivery of services Other Hygiene and building service Clarify accountability/responsibility 24 21 14 12 11 7 6 5

Source: Healthcare Commission (2009b). Notes: In total, 599 recommendations were made to NHS organisations.

446

Table 268: NHS Performance performance ratings 2008-09: Core standards compliance by trust type (acute and specialist, and primary care trusts) and nationally (England only)
C01b 94.7% 96.7% 93.2% 95.0% C05d 97.6% 97.4% 96.6% 97.4% C11b 89.3% 86.8% 87.1% 87.6% 99.1% 98.7% 98.0% 98.6% 99.3% 97.8% 99.3% 99.3% 99.3% 99.4% 97.6% 96.4% 94.1% 100.0% 98.6% 97.2% C11c C12 C13a C13b 99.6% 97.0% 99.6% 90.5% 100.0% 98.6% 100.0% 87.8% 100.0% 100.0% C13c 96.4% 96.1% 91.8% 95.5% 99.3% 100.0% 100.0% 88.2% 100.0% 91.4% 90.5% 92.2% C14a 100.0% 100.0% 100.0% 99.8% 99.4% 92.9% 99.4% 93.5% 100.0% 94.1% C06 C07a&c C07b C07e C08a C08b 90.7% 98.3% 93.5% 89.6% 88.3% 95.7% 96.5% C09 94.1% 86.8% 82.3% 88.3% C14b 100.0% 98.7% 99.3% 99.4% 91.2% 98.6% 95.2% 84.4% 88.4% 95.2% 92.5% 94.1% 98.7% 98.0% 96.1% 96.1% 96.7% 98.0% 94.1% 94.6% 95.2% C10a 96.4% 96.1% 95.2% 96.3% C14c 96.4% 100.0% 100.0% 98.5% 87.0% 98.2% 90.5% 89.3% 80.5% 97.0% 98.8% 95.9% C02 C03 C04a C04b C04c C04d C04e C05a C05b 97.6% 99.3% 95.2% 97.2% C10b 100.0% 100.0% 100.0% 100.0% C15a 100.0% 100.0% 100.0% 99.6% Continued

Trust type

C01a

Acute and specialist trusts

97.6%

PCTs as commissioners of services

96.1%

PCTs as providers of services

94.6%

England

95.1%

Co5c

Acute and specialist trusts

98.2%

PCTs as commissioners of services

100.0%

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

447

PCTs as providers of services

98.0%

England

98.5%

C11a

Acute and specialist trusts

98.2%

PCTs as commissioners of services

99.3%

PCTs as providers of services

99.3%

England

98.5%

Table 268: NHS Performance performance ratings 2008-09: Core standards compliance by trust type (acute and specialist, and primary care trusts) and nationally (England only) (continued)
C16 99.4% 98.7% 99.3% 98.7% 95.88% 97.43% 96.00% 96.33% 98.9% 97.2% 95.0% 96.5% 91.3% 99.8% 99.6% 99.3% 98.0% 95.2% 98.0% 93.9% 100.0% 100.0% 100.0% 97.4% 97.4% 100.0% 96.7% 99.3% 100.0% 99.3% 100.0% 99.3% 97.6% 96.4% 92.9% 93.5% 87.0% 100.0% 98.8% 98.2% C17 C18 C20a C20b C21 C22a&c C22b C23 C24 97.0% 95.4% 95.9% 95.9%

Trust type

C15b

Acute and specialist trusts

97.0%

PCTs as commissioners of services

100.0%

PCTs as providers of services

100.00%

England

98.7%

National compliance rate

Acute and specialist trusts

PCTs as commissioners of services

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

448

PCTs as providers of services

England

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 268: NHS Performance performance ratings 2008-09: Core standards compliance by trust type (acute and specialist, and primary care trusts) and nationally (England only) (continued) Key
Domain Safety Safety Safety Safety Safety Safety Safety Safety Safety Clinical and cost effectiveness Clinical and cost effectiveness Clinical and cost effectiveness Clinical and cost effectiveness Clinical and cost effectiveness Governance Governance Governance Governance Governance Governance Governance Governance Governance Governance Governance Governance Patient focus Patient focus Patient focus Patient focus Patient focus Patient focus Patient focus Patient focus Patient focus Accessible and responsive care Accessible and responsive care Care environment and amenities Care environment and amenities Care environment and amenities Public health Public health Public health Public health Standard code C01a C01b C02 C03 C04a C04b C04c C04d C04e C05a C05b C05c C05d C06 C07a&c C07b C07e C08a C08b C09 C10a C10b C11a C11b C11c C12 C13a C13b C13c C4a C14b C14c C15a C15b C16 C17 C18 C20a C20b C21 C22a&c C22b C23 C24 Short name Incidents – reporting and learning Safety alerts Safeguarding children NICE interventional procedures Infection control Safe use of medical devices Decontamination Medicines management Clinical waste NICE technology appraisals Clinical supervision Updating clinical skills and techniques Clinical audit and review Partnership Corporate and clinical Honesty and probity Discrimination Whistle-blowing Personal development Records management Employment checks Professional codes of conduct Recruitment, training and skill mix Mandatory training Professional development Research governance Dignity and respect Consent Confidentiality of patient information <6 Accessible complaints procedure Complainants and discrimination Complaints response Food – provision Food – individual needs Accessible information Patient and public involvement Equity and choice Safe, secure environment Privacy and confidentiality Clean, well designed environments Local health needs Public health cycles. Emergency preparedness

Source: CQC (2009c), Appendices A and H. 449

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 269: The independent healthcare sector: Rates of non-compliance with core national minimum standards 2007-08 (all providers)
C1 C2 C3 C4 C5 C6 C7 C8 C9 Patients receive clear and accurate information about their treatment and its likely costs The treatment and care provided are patient-centred Treatments provided to clients are in line with the relevant clinical guidelines Clients are assured that monitoring of the quality of treatment and care takes place The dying and death of patients is handled appropriately and sensitively Patients’ views are obtained by the establishment and used to inform the provision of treatment and care and prospective patients Appropriate policies and ensure the quality of treatment and services Clients are assured that a fit person runs the establishment Clients received care from and qualified staff 0.9% 0.2% 0.1% 1.6% 0.0% 1.2% 1.2% 1.4% 1.7% 0.3% 0.0% 0.0% 0.4% 0.5% 0.3% 0.2% 1.3% 0.5% 0.0% 1.1% 0.5% 0.76% 0.1% 0.3% 0.7% 0.2% 0.5% 0.4% 0.4% 0.6% 0.2%

C10 Clients receive treatment from appropriately recruited, trained and qualified healthcare professionals C11 Professionals who comply with their professional code of conduct C12 Patients and healthcare blood borne viruses C13 Children receiving treatment are protected effectively from abuse C14 Patients have access to an effective complaints process C15 Patients receive appropriate information about how to make a complaint C16 Personnel are freely able to express concerns about questionable or poor practice C17 Patients receive treatment in premises that are safe and appropriate for treatment C18 Patients receive treatment using equipment and supplies that are safe and in good condition C19 Patients receive appropriate catering supplies C20 Patients, staff and anyone visiting the registered premises are assured that all risks connected with the establishment, treatment and services are identified, assessed and managed appropriately C21 The appropriate health and safety measures are in place C22 Measures are in place to ensure the safe management and secure handling of medicines C23 Medicines, dressings and medical gases are handled in a safe and secure manner C24 Controlled drugs are stored, administered and destroyed appropriately C25 Visitors acquiring a healthcare associated infection is minimised C26 Patients are not treated with contaminated medical devices C27 Patients are resuscitated appropriately C28 Contracts ensure that clients receive goods and services of the appropriate quality C29 Records are created, maintained and stored to standards which meet legal and regulatory compliance and professional practice recommendations C30 Clients are assured of appropriately completed health records C31 Clients are assured that all information is managed within the regulatory body to ensure confidentiality

C32 Any research conducted in the establishment/agency is carried out with appropriate consent and authorisation from any patients involved, in line with published guidance on the conduct of research projects 0.0%

Note: This table shows the levels of non-compliance for the core National Minimum Standards against which independent healthcare providers are assessed. It sets out the proportion of providers where the relevant standards were ‘not met’ in assessments by the Healthcare Commission (now the Care Quality Commission) in 2007-08. Source: CQC (2008), Table A1. 450

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 270: Quality ratings of adult social care services, England, 2008-09
May 2008* % 0 Stars – Poor 1 Star – Adequate 2 Stars – Good 3 Stars – Excellent Not yet Rated Rating suspended 2.8 23.6 56.1 13.3 4.1 0.1 April 2009 % 1.7 16.7 59.6 17.1 4.7 0.0

Source: CQC (2009a). Notes: * Quality ratings were first published at individual service level in May 2008. Prior to this ratings were only used to aid the practices of the regulatory body (CQC’s predecessor, Commission for Social Care Inspection (CSCI)). CSCI only began publishing ratings at aggregate level once they were in the public domain for individual services. Caution should be exercised when interpreting percentage figures for adult placement schemes, non-medical care homes and the ownership types of other and NHS as the actual number of services in these categories is relatively small. Table 271: Average of national minimum standards met by social care services as at 31 March each year, England, 2009
Private % All care homes for older people** Residential care homes*** Nursing homes All care homes for younger adults** Residential care homes*** Nursing homes Home care agencies Nursing agencies Adult placement schemes (Shared Lives) 84 84 83 86 87 83 84 – – Council % 87 87 – 86 86 – 87 – – Voluntary % 89 89 88 89 89 88 90 – – Total* % 84 85 84 87 87 85 88 89 93

Source: CQC (2009a). Notes: * Total column includes private, voluntary, council, NHS and other sectors. ** Includes personal care homes, care homes with nursing and non-medical care homes. *** Includes personal care homes and non-medical care homes. – Indicates no services or a very small number of services which make inclusion of a percentage not statistically meaningful. n/a indicates CSCI (CQC’s predecessor) was not regulating this service type in this year.

451

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 272: Services meeting or exceeding individual National Minimum Standards – all care homes for younger adults, England, 2008-09
Private % Information Needs assessment Meeting needs Introductory visits Contract Service user plan Decision making Participation Risk taking Confidentiality Personal development Education and occupation Community links and social inclusion Leisure Relationships Daily routines Meals and mealtimes Personal support Healthcare Medication Ageing and death Concerns and complaints Protection Premises Space requirements Furniture and fittings Toilets and bathrooms Shared space Adaptations and equipment Hygiene and control of infection 79 93 89 97 81 79 92 91 85 91 91 93 94 88 98 94 93 94 91 76 87 92 85 77 93 86 84 89 89 90 Council % 81 93 86 96 78 82 95 90 88 91 90 93 92 84 99 96 95 96 93 78 86 92 88 74 87 81 78 85 83 90 Voluntary % 82 96 92 97 82 83 94 93 88 91 95 95 95 91 99 96 95 96 93 78 89 94 89 78 93 88 81 88 90 91 Total % 80 94 89 97 81 80 92 91 86 91 92 93 94 89 98 95 94 95 92 77 88 92 86 76 93 86 82 88 89 90 Continued

452

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 272: Services meeting or exceeding individual National Minimum Standards – all care homes for younger adults, England, 2008-09 (continued)
Private % Roles Qualities and qualifications Staff team Recruitment Training and development Supervision and support Day to day operations Ethos Quality assurance Policies and procedures Record keeping Safe working practices Conduct of the service 90 86 78 81 81 78 83 91 79 79 72 79 80 Council % 93 87 74 84 79 84 87 89 78 74 70 77 78 Voluntary % 95 90 77 87 86 85 87 93 84 81 73 81 83 Total % 92 87 77 83 82 81 84 92 80 80 72 79 81

Source: CQC (2009a). Table 273: Services meeting or exceeding individual National Minimum Standards – residential care homes for younger adults*, England, 2008-09
Private % Information Needs assessment Meeting needs Introductory visits Contract Service user plan Decision making Participation Risk taking Confidentiality Personal development 79 93 89 97 81 79 92 91 85 91 92 Council % 81 93 86 96 79 82 95 90 88 91 90 Voluntary % 82 96 92 97 82 83 94 93 88 91 95 Total % 80 94 90 97 81 80 93 92 86 91 93 Continued

453

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 273: Services meeting or exceeding individual National Minimum Standards – residential care homes for younger adults*, England, 2008-09 (continued)
Private % Education and occupation Community links and social inclusion Leisure Relationships Daily routines Meals and mealtimes Personal support Healthcare Medication Ageing and death Concerns and complaints Protection Premises Space requirements Furniture and fittings Toilets and bathrooms Shared space Adaptations and equipment Hygiene and control of infection Roles Qualities and qualifications Staff team Recruitment Training and development Supervision and support Day to day operations Ethos Quality assurance 93 94 89 98 94 93 94 91 76 87 92 85 77 93 87 84 89 90 90 91 86 78 81 81 78 83 91 79 Council % 94 93 84 99 96 95 96 93 79 86 92 88 74 86 81 78 85 83 90 93 87 74 84 79 84 87 89 78 Voluntary % 95 96 92 99 97 95 96 93 78 88 94 89 78 93 88 81 88 89 91 95 91 78 87 86 86 87 94 84 Total % 94 95 89 98 95 94 95 92 77 87 93 86 77 93 87 82 89 89 91 92 87 78 83 82 81 84 92 80 Continued

454

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 273: Services meeting or exceeding individual National Minimum Standards – residential care homes for younger adults*, England, 2008-09 (continued)
Private % Policies and procedures Record keeping Safe working practices Conduct of the service 79 72 79 80 Council % 74 70 77 77 Voluntary % 81 72 81 82 Total % 80 72 79 81

Source: CQC (2009a). * Includes personal care homes and non-medical care homes. Table 274: Services meeting or exceeding individual National Minimum Standards – nursing homes for younger adults, England, 2008-09
Private % Information Needs assessment Meeting needs Introductory visits Contract Service user plan Decision making Participation Risk taking Confidentiality Personal development Education and occupation Community links and social inclusion Leisure Relationships Daily routines Meals and mealtimes Personal support Healthcare Medication Ageing and death Concerns and complaints 76 92 85 98 80 72 88 88 82 87 88 88 90 80 95 90 89 90 86 75 89 89 Voluntary % 80 97 91 97 82 75 90 92 90 93 96 90 91 85 99 92 93 94 92 74 92 95 Total % 78 94 87 98 80 73 89 89 85 89 90 88 90 81 96 91 90 91 88 75 90 91 Continued

455

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 274: Services meeting or exceeding individual National Minimum Standards – nursing homes for younger adults, England, 2008-09 (continued)
Private % Protection Premises Space requirements Furniture and fittings Toilets and bathrooms Shared space Adaptations and equipment Hygiene and control of infection Roles Qualities and qualifications Staff team Recruitment Training and development Supervision and support Day to day operations Ethos Quality assurance Policies and procedures Record keeping Safe working practices Conduct of the service 83 73 89 81 80 85 83 85 86 83 77 76 78 74 81 87 78 77 67 77 79 Voluntary % 88 74 94 91 79 89 91 92 95 89 71 86 88 83 87 93 84 80 77 79 90 Total % 85 73 91 85 80 87 86 88 89 85 75 80 81 77 84 89 81 78 70 77 84

Source: CQC (2009a). * Includes a small number of homes run by councils and NHS homes.

456

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 275: Services meeting or exceeding individual National Minimum Standards – all care homes for older people, England, 2008-09
Private % Information Contract Needs assessment Meeting needs Trial visits Intermediate care Service user plan Healthcare Medication Privacy and dignity Dying and death Social contact and activities Community contact Autonomy and choice Meals and mealtimes Complaints Rights Protection Premises Shared facilities Lavatories and washing facilities Adaptations and equipment Space requirements Furniture and fittings Heating and lighting Hygiene and infection control Staff complement Qualifications Recruitment Staff training 83 86 90 84 98 88 68 85 69 91 89 79 97 92 89 91 96 85 76 87 78 78 93 81 75 84 85 87 78 80 Council % 81 81 91 86 96 91 72 89 73 96 89 80 98 95 94 94 95 90 81 90 82 84 92 85 82 91 81 96 89 85 Voluntary % 87 90 92 90 99 93 71 91 73 95 93 87 99 96 93 94 98 88 87 94 89 88 95 91 85 92 86 93 85 86 Total % 83 86 91 85 98 89 69 86 70 92 89 80 98 93 89 92 96 86 78 88 79 79 93 83 76 85 84 88 79 81 Continued

457

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 275: Services meeting or exceeding individual National Minimum Standards – all care homes for older people, England, 2008-09 (continued)
Private % Day to day operations Ethos Quality assurance Financial procedures Service user money Staff supervision Record keeping Safe working practices 82 87 79 88 94 69 65 75 Council % 91 93 84 90 97 80 70 84 Voluntary % 90 93 87 93 97 75 72 81 Total % 83 88 80 89 94 71 67 76

Source: CQC (2009a). Table 276: Services meeting or exceeding individual National Minimum Standards – residential care homes for older people*, England, 2008-09
Private % Information Contract Needs assessment Meeting needs Trial visits Intermediate care Service user plan Healthcare Medication Privacy and dignity Dying and death Social contact and activities Community contact Autonomy and choice Meals and mealtimes Complaints Rights Protection 82 87 90 85 97 91 68 85 69 92 91 81 97 93 90 92 96 85 Council % 81 81 92 86 96 90 73 89 73 96 90 81 98 96 94 94 95 90 Voluntary % 87 89 92 91 99 91 71 92 73 96 93 87 99 97 94 94 98 89 Total % 83 86 90 86 97 91 69 86 70 93 91 81 98 94 91 93 96 86 Continued

458

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 276: Services meeting or exceeding individual National Minimum Standards – residential care homes for older people*, England, 2008-09 (continued)
Private % Premises Shared facilities Lavatories and washing facilities Adaptations and equipment Space requirements Furniture and fittings Heating and lighting Hygiene and infection control Staff complement Qualifications Recruitment Staff training Day to day operations Ethos Quality assurance Financial procedures Service user money Staff supervision Record keeping Safe working practices 77 88 79 78 93 83 73 84 86 88 76 79 82 88 78 87 93 70 63 74 Council % 80 90 82 84 92 86 82 91 80 96 89 85 91 93 85 90 96 81 70 84 Voluntary % 87 94 89 88 96 92 84 91 86 93 86 86 91 93 87 93 97 77 71 81 Total % 78 89 80 80 94 84 75 85 85 89 79 81 84 89 80 88 94 72 65 76

Source: CQC (2009a). * Includes personal care homes and non-medical care homes.

459

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 277: Services meeting or exceeding individual National Minimum Standards – Nursing homes for older people, England, 2008-09
Private % Information Contract Needs assessment Meeting needs Trial visits Intermediate care Service user plan Healthcare Medication Privacy and dignity Dying and death Social contact and activities Community contact Autonomy and choice Meals and mealtimes Complaints Rights Protection Premises Shared facilities Lavatories and washing facilities Adaptations and equipment Space requirements Furniture and fittings Heating and lighting Hygiene and infection control Staff complement Qualifications Recruitment Staff training Day to day operations Ethos Quality assurance Financial procedures Service user money Staff supervision Record keeping Safe working practices 83 86 91 83 98 84 68 84 70 89 86 77 98 91 86 90 96 86 76 85 77 77 92 79 78 84 83 85 81 82 81 86 81 90 94 68 68 76 Voluntary % 85 94 94 89 99 98 67 88 71 94 91 86 100 93 89 93 97 86 88 95 88 88 93 87 88 95 84 90 82 88 89 93 88 95 96 71 76 81 Total % 83 87 91 83 98 85 68 84 70 89 87 78 98 91 86 90 96 86 77 86 78 78 92 79 79 84 83 85 81 82 82 86 81 91 94 68 69 77

Source: CQC (2009a). * Includes a small number of homes run by councils and NHS homes. 460

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 278: Services meeting or exceeding individual National Minimum Standards – home care agencies, England, 2008-09
Private % Information Care needs assessment Meeting needs Contract Confidentiality Responsive services Service user plan Privacy and dignity Autonomy and independence Medication and health related activities Safe work practices Risk assessments Financial protection Protection of the person Security of the home Records kept in the home Recruitment and selection Requirements of the job Development and training Qualifications Supervision Business premises, management and planning Financial procedures Records keeping Policies and procedures Complaints and compliments Quality assurance 83 89 87 85 92 86 73 95 91 76 89 80 80 85 86 79 78 86 80 77 77 88 Council % 82 93 86 77 92 89 77 98 91 80 94 88 87 93 79 78 86 86 84 85 86 90 Voluntary % 90 95 93 85 95 91 83 99 95 83 95 89 87 92 84 83 87 92 91 86 88 92 Total % 84 90 87 84 92 87 75 96 92 78 91 82 82 87 84 79 80 87 82 80 80 89

95 76 80 90 81

94 75 81 94 85

96 83 88 94 87

95 77 81 91 82

Source: CQC (2009a). 461

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 279: Services meeting or exceeding individual National Minimum Standards – nursing agencies, England, 2008-09
Total % Information Fitness Of registered persons Recruitment process Checks on nurses Identification and qualification Competence Complaints Protection from abuse Assistance with medication Confidentiality Safe working practices Financial procedures Premises Management structure Organisational policies Agreement between the agency and staff Record keeping Quality assurance 86 82 90 90 84 84 90 85 91 95 90 93 95 93 89 94 86 84

Source: CQC (2009a). Table 280: Services meeting or exceeding individual National Minimum Standards – Shared Lives schemes, England, 2008-09
Total % Living a normal life Referral Matching and introductions Daily life Service user’s plan Placement monitoring and review Carer support and review Selection and training Conduct of the scheme Protection 97 95 98 96 93 91 96 86 86 93

Source: CQC (2009a).

462

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 281: Outcomes judgements adult social services by council, England and Wales, 2009
Performance of councils (%) Poor Outcome 1 – Improved health Outcome 2 – Quality of life Outcome 3 – Positive contribution Outcome 4 – Choice and control Outcome 5 – Freedom from discrimination Outcome 6 – Economic well-being Outcome 7 – Dignity and respect – – – – – – 2 Adequate 8 10 1 23 9 4 30 Well 63 65 49 59 72 66 60 Excellent 29 25 51 18 19 30 8

Source: CQC (2009b). Table 282: Performance of councils for adult social services, England, 2009
Performance of councils (%) Poor England 0 Adequate 5 Well 73 Excellent 22

Source: CQC (2009b). Table 283: Key concerns and allegations raised by private individuals and civil society organisations/reports in the media Neglect and poor treatment of older people in hospitals and care homes • Age UK and the British Institute of Human Rights (BIHR), Older people and human rights project633, to support older people to use human rights to challenge poor and often undignified treatment from service providers and local authorities. This project arose from a finding in a 2009 report by Age UK and the BIHR that issues for older people – particularly abuse, neglect and isolation – were rarely framed as human rights issues. Daily Mail, Dignity for the Elderly campaign for better standards in hospitals and care homes, which has run since 2002.634 Patients Association (2011) detailed 16 accounts of poor hospital care heard by its Helpline focusing on care-communication, access to pain relief, assistance with toileting and help with eating and drinking. Still hungry to be heard (Age UK, 2010), the most recent report from the campaign Malnutrition in hospitals: Hungry to be heard, described the lack of detection and treatment of malnutrition in hospital as a ‘national disgrace’, and called on the Government to introduce compulsory monitoring of malnutrition.635

• •

See also Table 86.

463

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Indicator 56: Spotlight statistics: Mortality rates, healthy life expectancy and ill health
For relevant evidence under this Indicator see Tables 28, 29, 30, 31, 32, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61 and 62. Table 284: Healthy life expectancy (HLE) at birth in years, by deprivation decile by gender, Scotland, 1999-2003
Expected period in ‘not good’ health (LE-HLE) 4.0 4.5 5.1 5.5 6.1 6.8 7.7 8.5 9.5 11.3 7.0 -7.2 77.2 75.7 74.5 73.4 71.8 70.5 68.8 67.2 64.7 60.7 70.2 77.4 75.9 74.7 73.6 72.0 70.7 69.0 67.3 64.9 60.9 70.3 5.0 5.7 6.2 6.5 7.3 8.2 9.4 10.2 11.4 13.5 8.5 -8.5

HLE 95% confidence limits Decile Males 10 (least deprived) 9 8 7 6 5 4 3 2 1 (most deprived) Scotland Quintile 10 minus quintile 1 Females 10 (least deprived) 9 8 7 6 5 4 3 2 1 (most deprived) Scotland Quintile 10 minus quintile 1 77.3 75.8 74.6 73.5 71.9 70.6 68.9 67.2 64.8 60.8 70.2 16.5 75.0 73.1 71.5 70.2 68.5 66.8 64.6 62.7 60.0 54.5 66.3 20.5 74.9 73.1 71.4 70.1 68.4 66.7 64.5 62.6 59.9 54.4 66.3 75.1 73.2 71.6 70.3 68.5 66.8 64.7 62.8 60.0 54.6 66.3 HLE Lower Upper

Source: Scottish Public Health Observatory (2010b). Notes: The deprivation patterns in HLE at birth identified for deprivation quintiles are examined by looking at deprivation deciles. These are based on the Scottish Government’s Scottish Index of Multiple Deprivation (SIMD) 2006 (not weighted for population). HLE for 1999-2003 is based on five years’ data on deaths and populations, and a single year of data for self-assessed health from the Scotland census for 2001 (the middle year). 464

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 285: Disability-Free Life Expectancy (DFLE) at birth by area deprivation quintile and gender, England,2001-04 and 2005-08
2001-04 95% confidence interval 67.2-68.5 64.4-65.7 62.9-64.2 58.9-60.3 53.3-54.7 12.9-14.8 : : : 68.5-69.8 66.3-67.7 65.5-66.9 61.8-63.2 56.9-58.4 10.5-12.6 : : : Proportion of life disability free (%) 85.2 83.0 82.4 79.3 75.1 : : : : 83.3 81.6 81.4 78.2 74.1 : : : : 2005-08 95% confidence interval 68.7-69.9 66.0-67.2 64.4-65.7 61.4-62.8 53.9-55.4 13.7-15.6 : : : 69.7-70.9 67.9-69.1 65.2-66.6 62.7-64.1 57.1-58.6 11.4-13.4 : : : Proportion of life disability free (%) 85.5 83.5 83.0 81.4 74.8 : : : : 83.5 82.4 80.1 78.4 73.6 : : : :

Deprivation quintile Male 1 – Least deprived 2 3 4 5 – Most deprived Range Ratio SII RII Female 1 – Least deprived 2 3 4 5 – Most deprived Range Ratio SII RII

DFLE 67.9 65.0 63.5 59.6 54.0 13.8 1.26 16.5 1.24 69.2 67.0 66.22 62.5 57.6 11.6 1.20 13.7 1.20

DFLE 69.31 66.6 1 65.1 1 62.1 1 54.7 14.6 1.27 16.2 1.23 70.3 68.51 65.9 63.4 57.9 12.4 1.21 14.6 1.20

Source: Smith et al. (2010). Notes: 1 Significant difference in DFLE between 2001-04 and 2005-08. 2 Not significantly lower than next less deprived quintile. Differences between cells may not match due to rounding. SII is the slope index of inequality; RII is the relative index of inequality. Slope and Relative indices of inequality (SII and RII respectively) were used to assess the absolute and relative inequality in DFLE between the least and most deprived quintiles (Smith et al., 2010, p.5).

465

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 286: Coronary heart disease mortality under 75 years by deprivation, rate per 100,000 and age-standardised to the European population, Scotland, 2000-08
2000 Scotland overall Most deprived 15% (SIMD) Most deprived 15% (SIMD) Scotland overall Percentage of deaths in 15% SIMD MD EASR EASR N N 91.7 151.8 1,257 5,104 2001 84.0 140.6 1,147 4,711 2002 80.3 135.8 1,108 4,537 2003 77.6 135.3 1,075 4,434 2004 70.3 123.7 974 4,055 2005 67.5 118.8 925 3,929 2006 61.8 110.2 839 3,589 2007 61.3 112.4 860 3,599 2008 56.0 103.5 781 3,333

%

24.6%

24.3%

24.4%

24.2%

24.0%

23.5%

23.4%

23.9%

23.4%

Source: Scottish Government (2010b). Notes: Data from: General Register Office for Scotland and the Analytical Services Division – Health (Scottish Government).Rates are European Age-Standardised Rates (EASR) per 100,000 population aged under 75 years. The most deprived 15% areas are according to SIMD 2006 at the national level. Table 287: Cancer mortality under 75 years by deprivation, rate per 100,000 and agestandardised to the European population, Scotland, 2000-08
2000 Scotland overall Most deprived 15% (SIMD) Most deprived 15% (SIMD) Scotland overall Percentage of deaths in 15% SIMD MD EASR EASR N N 149.7 204.7 1,678 8,219 2001 151.9 209.0 1,684 8,321 2002 149.6 205.4 1,645 8,292 2003 144.6 205.9 1,625 8,119 2004 142.5 208.0 1,633 8,104 2005 140.9 195.5 1,516 8,050 2006 137.0 200.0 1,542 7,894 2007 136.5 206.4 1,571 7,971 2008 133.6 200.3 1,521 7,924

%

20.4%

20.2%

19.8%

20.0%

20.2%

18.8%

19.5%

19.7%

19.2%

Source: Scottish Government (2010b). Notes: Data from: General Register Office for Scotland and the Analytical Services Division – Health (Scottish Government). Rates are EASR per 100,000 population aged under 75 years. The most deprived 15% areas are according to SIMD 2006 at the national level.

466

The Right to the Highest Attainable Standard of Physical and Mental Health – UDHR, Article 25; ICESCR, Article 12

Table 288: Percentage reporting poor self-reported health(self-reported health bad or very bad) by age, sex, ethnicity, LLID and occupational group, Health Survey for England 2009 Note: preliminary data for 2006 has been calculated for the EMF and is presented in Alkire (2009). It is anticipated that the data will be updated and validated for 2009 in a forthcoming data analysis project. Table 289: Limiting longstanding illness or disability by age, sex, ethnicity, LLID and occupational group, Health Survey for England 2009 Note: preliminary data for 2006 has been calculated for the EMF and is presented in Alkire (2009). It is