The right to a fair trialIn Greenfield v Secretary of State for the Home Department (22 February 2001, (2001) The Times, 6 March), the Divisional Court considered the procedural rights of a prisoner charged with the disciplinary offence of administering a controlled drug to himself or failing to prevent its administration to him by another prisoner.

The claimant's defence was that another prisoner had given him a spiked cigarette, a claim which another prisoner confirmed at a hearing.

The deputy controller of the prison decided that the claimant did not need legal representation and imposed a sentence of 21 days' loss of remission.

The area manager upheld the decision on review.The claimant alleged that the refusal of legal representation at the hearing and lack of independent review breached his right to a fair trial under article 6 of the European Convention and his right to have a court review the legality of his detention under article 5(4).

The Divisional Court rejected the claims.

The article 6 guarantees for criminal defendants, including the right to representation, did not apply.

Although the facts of the disciplinary offence could have founded a criminal charge, the extent of maximum punishment, 42 days' loss of remission, while not insignificant, was nonetheless wholly different from the sentence which would have followed a criminal conviction.

The offence was also 'directly connected to the procedure for drug testing which is considered a necessary disciplinary tool for the purpose of controlling the use of drugs in prison'.The Divisional Court also concluded that the adjudication did not amount to the determination of a 'civil right', in respect of which article 6 imposes fair trial obligations.

Nor was it a determination of the lawfulness of his detention which, according to article 5(4), must be reviewed by a 'court'.

Although section 33 of the Criminal Justice Act 1991 obliged the home secretary to release a short-term prisoner who had served half his sentence, this was subject to the power to award additional days of detention for misconduct.

Any additional detention so ordered was part of the original sentence, so that no question of the lawfulness of the detention arose, and the claimant's right to liberty was not in issue.In reaching these conclusions the Divisional Court declined to apply Benham v United Kingdom (1996) 22 EHRR 293, in which the Strasbourg court held that imposing periods of imprisonment of less than 30 days (for failure to pay community charge) could be regarded as a criminal sanction to which article 6 applied.The right to start a familyThe claimant in R v Secretary of State for the Home Department, ex parte Mellor (4 April 2001 CA), was a life prisoner whose tariff element expired in 2006.

He challenged the home secretary's refusal to allow him to provide a semen sample for the purpose of artificially inseminating his wife.

She had met the claimant while she was working as a prison officer.

The home secretary refused since artificial insemination was only required because Mr Mellor was in prison, there was no medical need for it and he was concerned about the stability of the relationship on his release.Dealing with the convention, the Master of the Rolls held that the claimant's right to marry and found a family did not include the right of a prisoner to inseminate his wife by artificial means.

Relying on a series of commission cases dealing with conjugal visits - the issue has not been before the Strasbourg court - he said the commission had recognised that a majority of convention signatories considered that prisoners should be denied family rights.

Since the convention did not guarantee the enjoyment of family life and conjugal rights, a right to artificial insemination could not circumvent this.Lord Phillips then dealt with Lord Wilberforce's famous dictum, in Raymond v Honey [1983] AC 1: '.

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under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication'.

Having reviewed the authorities, and in particular having sought to limit the House of Lords decision in R v Secretary of State for the Home Department, ex parte Simms [2000] AC 115, he stood Lord Wilberforce's proposition on its head: 'The consequences that the punishment of imprisonment has on the exercise of human rights are justifiable provided they are not disproportionate to the aim of maintaining a penal system designed both to punish and to deter.

When the consequences are disproportionate, special arrangements may be called for to mitigate the normal effect of deprivation of liberty.' Lord Phillips accepted that deprivation of the right to conceive children was part and parcel of deprivation of liberty; that public perception of penal policy was a legitimate consideration in denying prisoners the opportunity of artificial insemination; and that it was admissible, indeed desirable, for the prison authorities to consider the consequences of imprisonment on children being brought up by single parent families.The right to voteIn R (Pearson & Martinez) v Secretary of State for the Home Department (4 April 2001), the Divisional Court considered whether the disqualification of convicted prisoners from voting in elections was consistent with article 3 of the first protocol to the European Convention for Human Rights, which obliges states to hold free elections by secret ballot at reasonable intervals.The case was brought by three post-tariff life prisoners.

An all-party working group had recommended in October 1999 that mental patients and remand prisoners should be allowed to vote, but accepted that convicted prisoners in custody should continue to have the franchise withdrawn.

Effect had been given to their recommendations in the Representation of the People Act 2000.

Side-stepping the dicta in Raymond v Honey and ex parte Simms, Lord Justice Kennedy said: '.

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the reality is that when a defendant in a criminal trial is sentenced to imprisonment a sentencing judge can make a variety of other orders which have nothing to do with loss of liberty, but which may make serious inroads on other rights.' There is no reason, according to him, why parliament should not take away the right to vote without infringing this principle.He went on to say that although the court might be as well placed as parliament to decide whether to disenfranchise prisoners, the court had to pay deference to the policy decision of a democratically elected legislature.

In his view, parliament was entitled to decide that no convicted prisoner could vote during the period of his imprisonment.Common law fairnessMeanwhile, in Hirst v Secretary of State for the Home Department (8 March 2001, (2001) The Times, 22 March), the Court of Appeal made a declaration that reclassification of a post-tariff discretionary life prisoner should not take place until he has been told the reasons for the proposed change and given a reasonable opportunity to make representations about the change.

The claimant argued successfully that reclassifying him from category C to B had a significant effect on his prospects of early release.

The case was decided on the basis of common law fairness, without reference to the Human Rights Act.