• Miriam Doyle

Polling, Porn, and Privileges: What Does the ECHR Entitle Prisoners to?


Have you ever tried to go a whole night aware of the fact that you do not have access to a toilet until a certain time? It is not a comfortable situation to be in. Even the mere thought that you might need and not be able to access the toilet puts you on edge. However, this is the situation which prisoners in Corton Vale, Stirling, found themselves in.

There is often talk, and rightly so, in the press and media about people who have been illegally imprisoned. However, there is very little awareness about the human rights surrounding prisoners that are lawfully detained. It can never be said that it is not important to highlight the injustices and breaches of human rights that the illegally incarcerated face. However, the question of what guides us when we are thinking about what is fair, and the treatment of offenders is also an imperative.

Furthermore, the rulings that are made in the West towards how prisoners ought to be treated has ramifications for inmates across the world. These ramifications are particularly poignant in situations where rights are often taken away at the expense of the inmates’ dignity, mental and physical health, and sometimes their life.

Alcatraz Federal Penitentiary, a former prison in the United States, by Alexander C Kafka

It is generally acknowledged that when someone is incarcerated, they forfeit a number of human rights. Most obviously, Article 5 of the European Convention on Human Rights states that those who are convicted by a competent court forfeit their right to liberty. However, there are also a number of ‘luxuries’ (for want of a better word) that are prohibited – for example, alcohol and mobile phones. This raises the issue of what rights and allowances should be afforded to convicted prisoners, and what can fairly be removed.

There are a few examples to which the answer is obvious. Any reasonable person would agree that toilets are an amenity which prisoners are absolutely entitled to. They are a necessity for hygiene reasons, as well as preserving human dignity. But what about the access to pornography? And what about the right to vote? These are two issues which have been debated for over 15 years, and which continue to be debated to this day.

The debate surrounding prisoner’s access to pornographic material has been ongoing since 2002. The crux of the matter is that some offenders have claimed that being able to access both hardcore and soft porn is a human right. Two articles from the European Convention of Human Rights have been used to support this argument. It is declared that Article 8 – the right to family and private life – and Article 10 – the right to freedom of expression – support the claims of these convicts.

It has been stated that “Article 8 is one of the most open-ended of the Convention rights.” The fact that it is used to support porn in prisons is evidence of this. However, surely there should be more of an emphasis on partner visits. If Article 8 stipulates that there is a right to family and private life, surely this extends to prisoners and their ability to have conjugal visits. A real, human connection is surely far more beneficial than any ‘benefit’ that porn may have. This indicates a double standard in the interpretation of the European Convention of Human Rights. In a scenario where inmates are appealing to article 8, it is bizarre that they are not permitted to see their family more and to have private visits.

Vital to the argument for pornographic material in prisons is the right to freedom of expression. Article 10 states that not only does everyone has the right to the freedom of expression, but also to “receive and impart information.” The question here is whether porn allows prisoners to express their sexuality. It has been claimed that this expression of sexuality is enabled by porn, thus making access to porn a human right.

This may seem like a sound argument, but what about in the case of sex offenders? The Scottish Prison Service (SPS) give prisoners access to porn on request with each prison Governor's consent. I’m sure you have heard the argument that porn distorts the image of sex and has been linked with violent sex crimes. Does it seem sensible to you to give offenders – particularly sex offenders – access to material which is renowned for creating unrealistic images of intimacy? Surely, in order to rehabilitate sex offenders and help them build healthy relationships, we should be promoting real human relationships rather than an unrealistic and often misogynistic, version. Perhaps the fact that porn is permitted in prisons is most shocking when you contrast it with the fact that prisoners are denied the right to vote. The right to vote is enshrined in Article 3. Moreover, the right to vote and democracy itself is often held up as one of the major achievements of Western society. However, this right is denied to some inmates.

Throughout Western history there have been a plethora of wars and conflicts which have aimed to bring free elections to those living under oppressive regimes. Furthermore, there have been centuries of political movements whose sole ambition was to enfranchise the population. The importance of being able to vote is cherished throughout our society. This indicates the importance and the sacred nature of article 3 of the European Convention on Human Rights.

Considering that offenders are given access to pornographic material, it is strange indeed that they are not permitted to vote in free elections. The grounds on which prisoners are allowed porn is tenuous. The grounds on which they are denied the right to vote are equally tenuous. The European Court of Human Rights has ruled that this denial is a direct violation of human rights.

A crucial question which must be asked is how can we expect to rehabilitate prisoners into the general community when we deny them the right to vote. By stripping them of their right to vote, are we not sending them the message that they are not worthy of having a say in their country’s governance? If prison’s intention is to rehabilitate offenders, then this simply is counter-intuitive.

Upon permitting pornographic material in Glenochil Prison, the SPS stated that “these publications are not illegal to purchase, therefore local management felt if inmates wished to order them through the prisoners’ canteen service, they should be able to.” However, this is illogical. Voting is also legal, as is the consumption of alcohol or the use of mobile phones. What dictates which rights it is fair to remove from prisoners? And what is the reasoning which decides what is a fundamental right which cannot be removed, as opposed to one that can?

#prison #mentalhealth #ECHR

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