11 April 2005

Prisoners and Bill of Rights damages

No developed or strong views at this stage - however, this issue did come up at a dinner party recently and prompted some interesting (but truncated) points and animated discussion. Those present promised to reflect further - this post will allow them to contribute their views directly. Prisoners' and Victims' Claims Bill

1 comment:

Bob said...

PRISONERS must have rights; the key difference is their freedom of movement and right to vote (for a start) are taken away. But that can't be a free pass for the government to permit them to be generally abused.

A side issue is ACC for prisoners. Instinctively I don't agree with it, but it's a separate issue, particularly when you consider their inability (because of ACC) to obtain any other redress for physical injury where torts have been committed.

As far as Bill of Rights breaches go, I think we should remember that "serious" breaches of a prisoner's integrity will give rise to claims in tort - for misfeasance, false imprisonment, etc. So why should they also have a claim for damages for breaches of the Bill of Rights Act? Seems not to me.

I don't think the question stops there. I am not sure that there is a good reason to distinguish prisoners from other members of the public in terms of general rights. Some additional limits on their rights arise from incarceration and safety issues - e.g. searches - which means their rights might in the circumstances be slightly different, but provided a right and a breach are established, why should prisoners' remedies be limited or any different from those on the outside?

The correct question to my mind is whether damages should be awarded for Bill of Rights breaches at all, never mind just for prisoners. In Baigent the underlying problem was that there appeared to be no other sanction available, and may be that's where the balance lies - where there is no other appropriate remedy, not even a public censure will do the trick. But frankly, my initial view is that damages for breach of the Bill of Rights Act should be way down at the bottom of the list, if not off it altogether, like damages in judicial review.
- Bob

Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"


This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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