You are in prison for years but with no clear idea about when you will be released – what can justify such a fate?
How does your situation stand within the perspective of Human Rights?
A new discussion paper by the Scottish Human Rights Commission (SCHR) tackles some of these fundamental questions.
In Scotland, indefinite detention takes effect under the Order for Lifelong Restriction (OLR), which sets a period of punishment followed by the possibility of supervised release. The case must meet the threshold that there is a likelihood the person will seriously endanger life or well-being in the future. There is a mandatory risk assessment which underpins much of the rationale for the sentence in individual cases.
The SCHR has laid out a number of problems which demand attention.
Over 90 per cent of those currently held in prison have completed their period of punishment. After the expiry of their punishment tariff, people placed in a form of preventive detention are in principle not being punished, and their treatment should be wholly constructive. It is not appropriate that they undergo the punitive regimes meted out to other prisoners.
Many OLR prisoners are not able to access the rehabilitative courses required to show their level of risk has been reduced and so they cannot qualify for release. In addition, the level of mental distress associated with uncertainty about release may be harmful; the impacts on neurodivergent individuals must also be considered. The lack of a review mechanism reinforces the concerns.
Some prisoners are therefore at risk of violations of their rights to liberty and to private and family life under the European Convention on Human Rights.
Implications
Indefinite detention strikes most people as a draconian intervention, certainly one that has to be justified with reason and evidence. For very serious crimes, when a life sentence has been imposed, the path to supervised release can appear as a kind of concession, and the expectation of returning to the community predictably fraught with uncertainty.
Outside those exceptional offences, what is the justification for prolonged imprisonment with merely a hope of release? And what are the implications for human rights?
In England and Wales, controversy about Imprisonment for Public Protection (IPP) has raised exactly the same questions, made more urgent by the fact that the law was abolished in 2012, yet thousands still live under its constraints.
The history of IPP parallels the growing criticism of the OLR in that delay in providing rehabilitative support undermined the legitimacy of the sentence and hastened its end. As the SCHR paper points out, the UN Special Rapporteur on Torture, Alice Jill Edwards has criticized the retention of IPP.
Correcting the problems
The Commission does not call for abolition, but its conclusions create a challenge to Scottish law and to the Scottish government. In particular, we may ask:
- Will those who have not received rehabilitative support be allowed to pursue legal cases in order to vindicate their rights?
- Will the government mandate more appropriate minimum standards for OLR prison regimes and programmes?
- Will a full and proper review of the law itself take place?
The story is not finished. Campaigners, advocates and families affected, north and south of the border, should be following what happens from this point onward; and be prepared to raise their voices together as the full implications of the report unfold.
A death row of sorts, by Roger Grimshaw, compares the different life sentence-like indeterminate sentences across the UK.
