Trial lecture - time and Place
Adjudication committee
- Professor Ragnhild Hennum, University of Oslo (leader)
- Professor Ragna Aarli, University of Bergen (1. opponent)
- Professor emeritus Christian Diesen, Stockholm University (2. opponent)
Chair of defence
Supervisors
Summary
Solitary confinement – legislation and human rights
The Norwegian use of solitary confinement for remand prisoners has been controversial, and has been criticized by human rights monitoring bodies, such as the European Committee for the Prevention of Torture (CPT) and the UN Committee against Torture (CAT).
Is the use of solitary confinement a breach of human rights? Should the Norwegian legislator amend Norway’s legislation due to recommendations from such monitoring bodies? If so, how can this be done?
Risk assessment
In solitary confinement remand prisoners are isolated from all other prisoners. The purpose is to prevent the prisoner from making use of other prisoners in attempts to influence statements of witnesses or accomplices or to remove or destroy evidence. Thus, solitary confinement is a means to reduce the risk of tampering with the evidence, and the judge has to assess this risk. Does the existing legislation provide a sound basis for this risk assessment?
One problem is that legislation and judicial practice only focus on the probability of manipulating the evidence, and not on the consequences of such manipulation. The probability-approach also leads judges to reach their decision without considering the amount and quality of information – or the lack of such – used for the risk assessment. Existing legislation seems to be based on the pragmatic idea that one would always gets the best result if only the judge is left with a wide discretion to make the decision based on whatever facts that might be available in each and every case. This is problematic: Decisions on remanding prisoners in solitary confinement are often made in a very early phase of the investigation, when the police do not know much about what evidence exists, how the prisoner may possibly influence on the evidence that might exist, and how this would eventually influence the investigation. Also, in Norway, the tradition is that remand decisions should be dealt with in summary proceedings. On the basis of psychological decision theory one could also argue that there is a possibility that judges’ decisions can be influenced by irrelevant factors. If so, one should be cautious about the large amount of trust that the legislation puts in the judges risk assessments, to the detriment of a more principled approach.
Pragmatism versus a more principled approach
A historical review of this area of law show that tradition and culture are powerful factors that greatly influence the way the legislation actually works, and that “law in action” tends to deviate from “law in books”. This traditional legal pragmatism leaves less room for a more principled approach. Thus, if one wants to influence on how the law actually works, there is clearly a need of strong legislative guidelines. On this basis, the thesis argues that the legislator could well be clearer on important issues of principles, and leave less to the judicial discretion on a case-to-case-basis. If this is so, human rights sources clearly support that the point of departure for the legislator should be that solitary confinement can only be used when it is “strictly necessary”.
A better model for the risk assessment?
Based on this point of departure the thesis discusses a possible model for judicial risk assessment. The model implies that the judge should make an overall assessment of the probability that the prisoner would succeed in influencing evidence, the need to prevent this, as well as the amount and quality of information used for the risk assessment (reflecting Keynes’ notion of “weight of arguments”). Based on this assessment the judge could reach the conclusion that there is a sufficiently strong risk to conclude that solitary confinement is really “strictly necessary”. If so, the individual risk assessment would be of sufficient weight to deviate from the point of departure which is based on a more principled approach.
Aside from calrifying why an d how risk assessment could be improved, this thesis also points out several additonal possible amendments of legislation and practical routines that would contribute to reduce the problem of solitary confinement of remand prisoners.