Protection from torture and mistreatment

The Human Rights Act protects you from:

  • torture (mental, physical or both);
  • inhuman or degrading treatment or punishment; and
  • deportation or extradition (being sent to another country to face criminal charges) if there is a real risk you will face torture or inhuman or degrading treatment or punishment

Public authorities must not inflict such treatment on you, and they must also protect you from this treatment where it comes from someone else. For example, if they know you are suffering inhuman or degrading treatment, they must intervene to stop it. 

What is torture?

Torture occurs when someone acting in an official capacity (for example a police officer or soldier) deliberately causes serious pain or suffering (physical or mental) to another person. This might be to punish someone, or to intimidate or obtain information from them.

What is inhuman treatment?

Inhuman treatment or punishment includes:

  • serious physical assaults
  • psychological interrogation
  • inhuman detention conditions or restraints
  • failing to give medical treatment or taking it away from a person with a serious illness
  • threatening to torture someone, if the threat is real and immediate.

Example

A young man with mental health problems was placed in residential care. During a visit, his parents noticed unexplained bruising on his body. They raised the issue with managers at the home, but their concerns were dismissed. They were also told that they were no longer allowed to visit their son. The parents approached the home and raised their son’s right not to be treated in an inhuman and degrading way and their right to respect for family life. As a result, the ban on their visits was revoked and an investigation carried out into the bruising on the son’s body.

(Example taken from The Human Rights Act: Changing Lives, British Institute of Human Rights, 2006.)

Restrictions

Your right not to be tortured or treated in an inhuman or degrading way is absolute. This means it must never be limited or restricted in any way.

For example, a public authority can never use lack of resources as a defence against an accusation that it has treated someone in an inhuman or degrading way.

What the law says

Article 3: Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Example cases

Z v United Kingdom (2001)

A local authority failed to separate four children from their mother even though it was clear that the children were being subjected to an unacceptable level of abuse and neglect over a four-year period. The Court found that the authority had a positive obligation to remove the children as soon as they became aware of abuse that might amount to inhuman or degrading treatment.

(Case summary taken from Human rights, human lives, Department for Constitutional Affairs, 2006.)

McGlinchey and others v United Kingdom (2003)

A woman who had a heroin addiction and suffered from asthma was sentenced to four months in prison. While there, she suffered severe heroin withdrawal symptoms, including vomiting and weight loss. A doctor who visited her when she arrived advised the nursing staff to monitor her symptoms. Her condition deteriorated over a weekend, but the nursing staff did not call out a doctor, nor did they transfer her to a hospital. On the Monday morning she collapsed and was immediately admitted to hospital, where she died. The European Court of Human Rights held that the Prison Service had not protected the woman from inhuman treatment, because it had failed to take appropriate steps to treat the prisoner’s condition and relieve her suffering, and had failed to act sufficiently quickly to prevent the worsening of her condition.

(Case summary taken from Human rights, human lives, Department for Constitutional Affairs, 2006.)

R v Secretary of State for the Home Department, ex parte Limbuela, Tesema & Adam (2005)

A man arrived in the UK from Angola and claimed asylum on the same day. He was provided with emergency accommodation under the Secretary of State’s power to provide accommodation for people given temporary admission to the UK. However, shortly afterwards, the Secretary of State decided that he had not claimed asylum as soon as reasonably practicable, and his accommodation was taken away. The man was left destitute, and he slept rough outside a police station and begged for food from passers by. At the same time, he had health problems for which he was receiving treatment. The House of Lords ruled that where the law prohibits asylum seekers from working, and charities lack the resources to help them, it is a violation of the right not to be treated in an inhuman or degrading way to deny support that creates potential suffering by withholding shelter, food or basic necessities.

Chahal v United Kingdom (1996)

An Indian Sikh living in the UK claimed he would be tortured if removed to India because he was a high profile supporter of Sikh separatism. Nevertheless the UK sought to deport him on the basis that he was a suspected terrorist. In a very important case, the European Court of Human Rights held that Article 3 prohibited his removal since he faced a real risk of torture or inhuman or degrading treatment in India. The Court stressed that his suspected involvement in terrorist activities was irrelevant for these purposes – the protection afforded by the prohibition of torture is absolute and extends to every human being, regardless of their conduct.

What is degrading treatment?

Something counts as degrading only if it involves a minimum level of severity. This level is dependent upon a number of factors, such as the duration of the treatment, its physical or mental effects and the sex, age, vulnerability and health of the victim.  This concept is based on the principle of dignity.

Example

A man with learning difficulties slipped in the bath at his care home and injured himself. To reassure him afterwards, careworkers (who were usually female) would sit with him while he had a bath. One careworker felt that having a female see him nude was degrading for the man, and she used her knowledge of his human rights to arrange a screen to be placed between the man and his careworker while he bathed.

(Example taken from The Human Rights Act: Changing Lives, British Institute of Human Rights, 2006.)

Example

There are several potential scenarios where a trans person could be subjected to inhuman or degrading treatment within institutions.  As a result, the Chief Nursing Officer, for instance, has issued, specific guidance regarding appropriate hospital accommodation. Managers of residential care homes or domiciliary services should also be aware of the need to ensure that a trans person’s expressed gender identity is fully respected, in particular with regard to gender specific accommodation, appropriate forms of address and the preservation of privacy and dignity during the provision of personal care.

A similar set of considerations arise in respect of prison accommodation. The Home Office has been preparing an (as yet unpublished) operating procedure (PSO) which is intended to cover the circumstances in which trans people should be assigned to men’s or women’s prisons, and how medical assessment and treatment should be initiated or continued.

Trans women, in particular, are vulnerable to sexual assault when inappropriately accommodated. Failing to mitigate that known risk by taking appropriate steps could constitute both criminal negligence and an inhuman and degrading punishment.

Addressing such risks by placing trans prisoners into solitary or hospital section confinement for their protection would also be inappropriate since this would mean that their imprisonment was on more punitive terms than a non-trans prison convicted to serve the same length of service. The onus is upon the prison estate to make appropriate provisions for the small number of trans people who receive custodial sentences, not to punish them more for being inconvenient to accommodate. An example case was reported in September 2009 (external link to Daily Telegraph) where a transsexual woman prisoner won the right to be relocated to a women’s prison after initial placement in a male prison.

In another recent case concerning a transsexual woman prisoner, her right to be relocated to women's prison was eventually granted on the basis that detention in a male prison breached her right to a private and family life - see AB, R (on application of) v Secretary of State for Justice & Anor [2009]
 

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