The human rights enshrined within the European Convention on Human Rights (ECHR), which has been incorporated into UK law by the Human Rights Act 1998, apply to everyone, including convicted criminals. Some of these rights are absolute, such as the right not to be subjected to torture or inhuman and degrading treatment; however, some rights are subject to limitations and, if there is a good legal basis for doing so, they can be restricted. Consequently, the human rights of convicted criminals are limited in some circumstances.
The ‘right to liberty and security’
Article 5 of the ECHR provides protection for individuals from arbitrary detention, yet convicted criminals are regularly detained in prison against their will, thereby being deprived of this particular human right. However, although everyone has the ‘right to liberty and security’, the state can detain individuals under certain circumstances provided it is done in line with relevant legal procedures. For example, the state can detain people for immigration purposes (e.g. if they are the subject of a Deportation Order), or if they are suspected or convicted of a criminal offence.
Can convicted criminals retain other human rights?
Whilst convicted criminals may legitimately be deprived of their liberty, they can still retain some other human rights. Indeed, it is important for the Government to treat individual cases on a case-by-case basis, rather than operating blanket policies on the treatment of convicted criminals. The court of human rights has previously upheld a complaint from a prisoner and his wife that they were deprived of the right to conceive by artificial insemination because by the time he was due for release she would be beyond childbearing age.
In addition, the absolute prohibition on torture or inhuman and degrading treatment under Article 3 of ECHR still applies to convicted criminals. This extends to prohibiting the state from sending convicted criminals back to a country where there is a risk that they may be tortured or subjected to inhuman or degrading treatment, even though any form of torture inflicted upon an individual in another country would not be the fault or responsibility of the UK.
However, the court of human rights has held that countries party to the ECHR will breach article 3 if they expel someone to another country where there are substantial grounds for suspecting that they are at risk of being tortured or subjected to inhuman or degrading treatment. This means that convicted criminals cannot be repatriated if they are considered to be at risk and may end up living freely in the UK.
In a similar vein, convicted criminals facing deportation can also appeal to remain in the UK under compassionate human-rights grounds, including claims that deportation would breach their ‘right to a family life’. This may apply when they have lived in the UK (rather than their country of origin) for a long time and have a family based in the UK, namely a spouse or partner and children.
Convicted criminals also retain the right to a fair trial and will usually have the opportunity to appeal their conviction and/or sentence if their case meets certain criteria.