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Conceptions Of Liberty Deprivation

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Abstract:

This article adopts a theoretical and comparative perspective on the prisoner's legal status in England and Wales. Applying the principles of human rights, legality and proportionality, it argues that the prisoner's legal status must rest on a divisible conception of liberty. Such a conception must distinguish clearly between the liberty lost, and the rights restricted, by the imposition of the custodial sentence as opposed to the administration of prisons (the key distinction). In order for this to be achieved, the conception of the prisoner's legal status must also establish the purpose or purposes of the custodial sanction as distinct from the purpose of prison administration. Through comparison with Germany, the article demonstrates that the common law concept of the prisoner's legal status is unstable. Vacillating between a divisible and indivisible conception of the prisoner's liberty, the English conception of the prisoner's legal status lacks a foundation firm enough to satisfy the principles of human rights, legality and proportionality.

Keywords: German Basic Law; German Federal Constitutional Court; Human Rights Act; prison law; prisoner's legal status; prisoners' rights

Document Type: Research Article

DOI: https://doi.org/10.1111/j.1468-2230.2006.00608.x

Affiliations: St. Anne's College, Oxford.

Publication date: 2006-09-01

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