A captive audience

Prisoners have lost their liberty - but under the law, they are entitled to most other rights.

Lawyers tell Victoria MacCallum how they ensure that these rights are maintained

Prison law has traditionally never been the most glamorous of areas in which to specialise.

Always the first to be targeted by tabloids hungry for a headline-grabbing outrage, prison lawyers have long been the less popular and marginalised bridesmaid to their more socially acceptable civil liberties counterparts.However, over recent years, and specifically with the advent of the Human Rights Act 1998 a year ago, prison law has gained the spotlight, and - whether popular with the tabloids or not - many prisoners are discovering their rights and bringing more and more cases to court.The veil of secrecy that has long masked abuses of power inside prisons is also lifting, and last month six London criminal law firms - led by specialist human rights firm Hickman & Rose - joined forces to call for a public inquiry into the alleged culture of violence at London's Wormwood Scrubs prison in the 1990s (see [2001] Gazette, 20 September, 4).For specialist lawyers in England and Wales, prison work is split into two areas.

'The everyday work, the bread and butter stuff, is mostly about standard issues of prison life,' says Elkan Abrahamson, head of the prisoners' rights department at Liverpool firm AS Law.

His list of this work includes 'representing prisoners on their parole boards, disputing prisoners' security categorisations, looking at prison transfers to less secure units or ones nearer their family, and arguing for transferral to a psychiatric unit'.Hickman & Rose partner Daniel Machover, a prisoners' rights expert who is also heading the Scrubs Lawyers Litigation Group, agrees.

'We deal with a lot of smaller day-to-day issues - such as the quality of prison food and the amount of exercise out of cells - which may appear trivial to most people, but are very important to prisoners.'However, it is the bigger cases and the judicial reviews which make the headlines and set the precedents.

Simon Creighton, a partner at London-based specialist human rights firm Bhatt Murphy and head of its prison law department, says: 'The biggest ongoing issue in this area is life sentences, and the legality - or not - of the home secretary reserving the power to set tariffs and release dates for lifers.

'Another important issue, and one where Europe and this country are in conflict, is prison discipline and specifically whether it is in breach of article six of the Human Rights Act [which deals with fair trials].' A domestic case earlier this year that claimed that internal prison disciplinary proceedings amounted to criminal charges but were carried out without the required legal safeguards, such as having a lawyer present, was unsuccessful (see [2001] Gazette, 22 February, 4).

Another case is currently at the European Court of Human Rights pending judgment.'There is no doubt that prison law is one of the more litigated areas under the Human Rights Act,' says Mr Machover.

'However, many prisoners had unrealistic expectations that the Act would solve all their problems with the Prison Service and be far more liberating for them than it has proved.'As a result, prison lawyers find themselves in the position of having to break bad news to their clients.

'Many lawyers have been warning prisoners that they have false and unrealistic expectations of what will happen under the Human Rights Act,' says Mr Machover, although he admits that it is still early days, and that 'prison law is one of the areas ready for the biggest change under the Act'.There have been some notable HRA wins in the courts, such as the reduction in the post-tariff parole reviews for discretionary life prisoners from two years between assessments to one.

The power of prison governors to search prisoners' private legal material has also been challenged - pre-HRA, officers argued that the security implications allowed them to search at their leisure and without the prisoners being present.

Post-HRA, the House of Lords decided that was a breach of legal privilege and hence their right to a fair trial.Despite that, perhaps one of the reasons that the floodgates have not opened fully since 2 October 2000 is that the Act - in its previous incarnation as the European Convention on Human Rights - has long been a part of prison law.'Historically, prisoners have made more use of the European Court [of Human Rights] than anyone else,' explains Mr Creighton.

'UK prisoners are one of the largest groups of people applying to the European Court, and so a lot of prison law over the last 20 years has been shaped by European decisions, meaning that a huge area of prison law is already compatible with the Act.'He also suggests that the Prison Service is inclined to settle cases at an early stage to avoid having to set precedents for future ones.That may be so, but Vicky King, partner at London-based Thanki Novy Taube and head of its prison law department, still sees the future of prison law as being 'very much Human Rights Act centred.

It's a case of when, not if, the cases start to come through,' she says.

'The strongest cases don't tend to go first, but they are starting to filter through now and precedents are starting to be set.'The last ten years, according to Ms King, have seen a widening and opening of prison law as a practice area, and this will only improve as the Act gets into its stride.

'Until the start of the 1990s, there were hardly any prison lawyers, and no-one really knew in detail how the system worked,' she says.'Prisoners found it almost impossible to get access to the law or advice about their rights.

This has improved significantly over the last ten years, and more lawyers have become involved in the area, although for the majority of prisoners it is still incredibly difficult to get good independent advice [because of their lack of access].'That appears to be a widely held view, and the reason many solicitors choose to become involved in the area.

'I have always thought that the way society protects its weakest citizens is a test of its true libertarianism,' says Mr Abrahamson.

'In my view, prisoners are one of the weakest groups in society, as they have the least possible access to legal rights, advice and support.'Mr Creighton agrees.

'Prisons are enclosed institutions, and prisoners have less access to law than ordinary citizens,' he says.

'It's easy for abuses of power to go unnoticed because there aren't the resources to deal with it.'The area is also a rewarding one from another point of view.

'Prison law is dealing with rights issues at their most fundamental,' he says.

'Morally, these people are seen as having very few rights and yet from a legal point of view they have all their rights - bar liberty - and so it's important to strike a balance.' Striking this balance may be easy in theory, but more difficult in practice when dealing with a hostile press and public unable to understand why convicted criminals should have access to any legal rights or privileges.'The public want vengeance for crimes, and they want prisoners to suffer in prison,' says Mr Abrahamson.

'This creates a problem: if prisoners are not going to reoffend on release, they need to be rehabilitated and treated in a civilised manner, which is not what the majority of people want to see happen.'Mr Machover says that it is because of this attitude that lawyers are needed.

'Prisoners are demonised in the public mind as being all murderers and rapists, whereas the reality is that only a tiny percentage of prisoners are "bad", 'he says.

'It is a far more complicated subject than people realise, and it's only when people have direct experience of friends or family members in prison that they change their views.'Prison law serves an important social function.

'It's vital for any democracy to question what the purpose of prison is and what the government hopes to achieve by it, and that is what litigation does.' he says.Hickman & Rose also deals with a number of violence cases - both prisoner-on-prisoner violence and prison officer-on-prisoner - and deaths in custody.

'In terms of the prison violence work I do, I wish that we weren't necessary,' says Mr Machover.

'But the fact remains that these people are totally marginalised in society, and without lawyers to expose the violence, prison officers and staff would feel they had the impunity to carry on and get away with it for longer.'So, prison law may be one of the less glamorous areas of practice, but it is arguably one of the most ethically, legally and morally stimulating.

As Mr Abrahamson says: 'In theory, all you lose in prison is your liberty, but in practice you tend to lose a great deal more.'