Prisoners retain certain basic rights, which survive despite imprisonment. The rights of access to the courts and of respect for one’s bodily integrity – that is, not to be assaulted – are such fundamental rights. Others may be recognised as the law develops. Prisoners lose only those civil rights that are taken away either expressly by an Act of Parliament or by necessary implication. For example, one right taken away by statute is that prisoners detained following conviction do not have a right to vote. The test in every case is whether the right is fundamental and whether there is anything in the Prison Act 1952, the Prison Rules 1999 or elsewhere which authorises the prison authorities to limit such a right.
The test now applied is that the State can only place limits on prisoners’ rights if they are necessary for the prevention of crime or for prison security. Any limitations placed upon such rights must also be proportionate to the aim that the authorities are seeking to achieve. There are a large number of cases that have been heard by the European Court of Human Rights (ECHR) which help clarify the extent to which limitations can be imposed.
Access to prison records
The Data Protection Act 1998 (DPA) allows prisoners to have copies of their prison records. Applications should be made in writing to the Discipline/Custody Office, Personnel Department or Library. A fee of £10 is payable to obtain these. The prison must normally give access within 40 days of receiving your request and any supplementary details needed.
Disclosure can be refused on a number of grounds, including that the information identifies third parties or that disclosure may prejudice the detection or prevention of crime. A weakness of the DPA is that you need not be told whether exempt information has been withheld. You have no right to be told whether you have been given access to the full file or only an edited version.
The DPA also gives you the right to have inaccurate data about yourself corrected. This applies if the data is incorrect or misleading about any matter of fact or contains an opinion based on data that is factually incorrect or misleading. In such cases you are entitled to require the prison to correct, erase, destroy or block the use of the information. Opinions cannot be challenged unless they are based on wrong facts – but if you disagree with an opinion, it is worth asking for your own views about the disputed data to be added to the record. There is though no explicit right to have this done.
If you feel that NOMS has contravened its obligations under the DPA, you can complain to the Information Commissioner.
As of April 2003, responsibility for funding prison health services shifted from the Home Office to the Department of Health. This was the first step in a five-year process that will see prison health become part of the National Health Service (NHS). Primary Care Trusts will then become responsible for the commissioning and provision of health services to prisoners in their areas.
For the time being, however, convicted prisoners remain in the care of the Prison Medical Service, which is not part of the NHS. You do not, therefore, have the right to consult the doctor or dentist of your choice for treatment. However, the Prison Medical Service has accepted that prisoners are entitled to the same standard of medical care as under the NHS and in some prisons, medical care is provided by outside GPs who visit the prison on a daily basis. If you are party to legal proceedings, an independent doctor may visit you where examination is relevant to those proceedings. If you are an unconvicted prisoner and willing to pay any expenses involved, you may be visited and treated by the doctor or dentist of your choice.
Access to Medical Records
The DPA allows you to have copies of your medical records. A fee of £10 is payable to obtain these. Disclosure can be refused on the basis that it would cause serious harm to the physical or mental health of the patient or any other individual.
All medical information about you should be treated in confidence and is not to be disclosed except for specifically defined purposes. The same confidentiality applies to prisoners who are HIV positive. The prison guidelines say that if it seems desirable in the inmate’s interest to inform a third party that he or she is HIV positive, a member of staff must consult the prisoner and must obtain the prisoner’s consent before disclosing the information. The prison authorities may be liable in damages if they negligently reveal confidential information – for example, that a prisoner has committed sexual offences – as a result of which he is assaulted.
If you are convicted in the courts you can appeal against your sentence, or conviction, or both.
If the conviction is disputed, the whole trial will be heard again at the Crown Court in front of a judge and two magistrates. If only the sentence is in dispute, it will be for a Crown Court judge to consider your appeal. He or she may increase the sentence, reduce it or leave it as it is.
If your solicitor believes that the magistrates have reached the wrong decision because they misinterpreted the law, the case may be appealed to the High Court which will decide whether the magistrates were right or not. If the High Court decides they were wrong it can order the magistrates to change their verdict. This does not involve a re-trial.
If your appeal is unsuccessful you can make an application to the Criminal Cases Review Commission, which considers cases of alleged miscarriages of justice that have been through the appeal process. They can refer the case back to the Court of Appeal if they consider it likely that a conviction or sentence would not be upheld. This only occurs in a very small number of cases.
Your solicitor can advise you on possible appeals against your sentence.
If you are convicted in a Crown Court, you can appeal against your sentence or conviction. You will need to appeal to the Crown Court within 28 days by submitting a Form NG (Notice and Grounds). Your legal team will discuss the option to appeal with you as soon as you are convicted. You can obtain the form NG from:your solicitor
your Appeals Officer in prison; and
the website of Her Majesty’s Court Service
Your case is not referred straight to the Court of Appeal. The Criminal Appeal Office in London receives your form and prepares a file for review by a judge. You don’t have a right to appeal, the judge will decide if you have ‘leave’ to appeal. If successful your case will be referred to the Court of Appeal. If unsuccessful you can write again and this time three judges will consider your appeal. Your last option will be to contact the Criminal Cases Review Commission who may refer your case to the Court of Appeal themselves.
The Court of Appeal has the following powers:
If they disagree with the sentence they can:
change it for a different sentence
reduce the sentence
If they find your conviction ‘unsafe’ they will quash it. They can also order a retrial or sometimes substitute a new conviction for a different offence.