P
rison administrations have a duty to keep in custody those whom the judicial authorities have decided should lose their liberty. Prisoners do not like being in prison but the majority of them accept the reality of their situation; provided they are subject to appropriate security measures and fair treatment they will not try to escape or seriously disrupt the normal routine of the prison. On the other hand, a small number may well do everything in their power to try to escape. If they were to escape, some prisoners would be a danger to the community; others would not be a threat to the public. All of this means that the prison authorities should be able to assess the danger posed by each individual prisoner in order to make sure that each one is subject to the appropriate conditions of security, neither too high nor too low.Excessive
security and
control can be
dangerous
I
n prisons the world over there are situations where there is excessive security and control by the prison authorities at the expense of justice:J
J oppressive security measures which exclude rehabilitative programmes; J
J brutal methods of control; J
J lack of justice in disciplinary hearings; J
J unlawful punishments.
In prison systems in some countries, those managing prisons have lost control of their institutions and have allowed powerful groups of prisoners to exert an illegal system of control over both other prisoners and staff.
In both situations the well ordered community breaks down, leading to the possibility of violent and abusive behaviour by prisoners and staff, the likelihood of disorder, the possibility of escapes and an absence of constructive activities for prisoners.
O
nly in extreme circumstances, when there is a complete breakdown in order and all other interventions have failed, either individually or collectively, can use of force be justified as a legitimate method of restoring order. This must be the last resort. Because prisons are closed communities in which abuse of authority can easily occur in such circumstances, there has to be a specific and transparent set of procedures for use of force. This issue is also referred to in chapters 3 and 4.Use of force
as a last resort
The balance
between
security
and social
reintegration
programmes
I
nternational instruments define the purpose of imprisonment as being to protect society against crime not simply by removing offenders from society but by trying to ensure, as far as is possible, their rehabilitation. In order for this to happen, prison administrations need to achieve an appropriate balance between security and those programmes which are designed to enable prisonersto reintegrate into society. This balance is more likely to be achieved if there is a clear set of procedures which define the appropriate level of security for the prison and for individual prisoners.
What the international instruments say
Nelson Mandela Rules, Rule 4:
1. The purposes of a sentence of imprisonment or similar measures deprivative of a person’s liberty are primarily to protect society against crime and to reduce recidivism. Those purposes can be achieved only if the period of imprisonment is used to ensure, so far as possible, the reintegration of such persons into society upon release so that they can lead a law-abiding and self-supporting life.
Nelson Mandela Rules, Rule 47:
1. The use of chains, irons or other instruments of restraint which are inherently degrading or painful shall be prohibited.
2. Other instruments of restraint shall only be used when authorized by law and in the following circumstances:
(a) As a precaution against escape during a transfer, provided that they are removed when the prisoner appears before a judicial or administrative authority;
(b) By order of the prison director, if other methods of control fail, in order to prevent a prisoner from injuring himself or herself or others or from damaging property; in such instances, the director shall immediately alert the physician or other qualified health-care professionals and report to the higher administrative authority.
Nelson Mandela Rules, Rule 51:
Searches shall not be used to harass, intimidate or unnecessarily intrude upon a prisoner’s privacy. For the purpose of accountability, the prison administration shall keep appropriate records of searches, in particular strip and body cavity searches and searches of cells, as well as the reasons for the searches, the identities of those who conducted them and any results of the searches.
Nelson Mandela Rules, Rule 52:
1. Intrusive searches, including strip and body cavity searches, should be undertaken only if absolutely necessary. Prison administrations shall be encouraged to develop and use appropriate alternatives to intrusive searches. Intrusive searches shall be conducted in private and by trained staff of the same sex as the prisoner.
2. Body cavity searches shall be conducted only by qualified health-care professionals other than those primarily responsible for the care of the prisoner or, at a minimum, by staff appropriately trained by a medical professional in standards of hygiene, health and safety.
Nelson Mandela Rules, Rule 76 (1):
Training referred to in paragraph 2 of rule 75 shall include, at a minimum, training on: (a) Relevant national legislation, regulations and policies, as well as applicable
international and regional instruments, the provisions of which must guide the work and interactions of prison staff with inmates;
(b) Rights and duties of prison staff in the exercise of their functions, including respecting the human dignity of all prisoners and the prohibition of certain conduct, in particular torture and other cruel, inhuman or degrading treatment or punishment;
(c) Security and safety, including the concept of dynamic security, the use of force and instruments of restraint, and the management of violent offenders, with due consideration of preventive and defusing techniques, such as negotiation and mediation;
(d) First aid, the psychosocial needs of prisoners and the corresponding dynamics in prison settings, as well as social care and assistance, including early detection of mental health issues.
Nelson Mandela Rules, Rule 89:
1. The fulfilment of these principles requires individualization of treatment and for this purpose a flexible system of classifying prisoners in groups. It is therefore desirable that such groups should be distributed in separate prisons suitable for the treatment of each group.
2. These prisons do not need to provide the same degree of security for every group. It is desirable to provide varying degrees of security according to the needs of different groups. Open prisons, by the very fact that they provide no physical security against escape but rely on the self-discipline of the inmates, provide the conditions most favourable to the rehabilitation of carefully selected prisoners.
Nelson Mandela Rules, Rule 93:
1. The purposes of classification shall be:
(a) To separate from others those prisoners who, by reason of their criminal records or characters, are likely to exercise a bad influence;
(b) To divide the prisoners into classes in order to facilitate their treatment with a view to their social rehabilitation.
2. So far as possible, separate prisons or separate sections of a prison shall be used for the treatment of different classes of prisoners.
Basic Principles for the Treatment of Prisoners, Principle 4:
The responsibility of prisons for the custody of prisoners and for the protection of society against crime shall be discharged in keeping with a State’s other social objectives and its fundamental responsibilities for promoting the well-being and development of all members of society.
European Prison Rules, Rule 68:
This rule adds the following conditions to SMR 33: 68.1 The use of chains and irons shall be prohibited.
68.2 Handcuffs, restraint jackets and other body restraints shall not be used except: a. if necessary, as a precaution against escape during a transfer, provided that they shall be removed when the prisoner appears before a judicial or administrative authority unless that authority decides otherwise; or b. by order of the director, if other methods of control fail, in order to protect a prisoner from self-injury, injury to others or to prevent serious damage to property, provided that in such instances the director shall immediately inform the medical practitioner and report to the higher prison authority.