custody – Sensory Criminology

Elaine Webster and Natasa Mavronicola

Infliction of physical pain, non-consensual touch, slopping out, subjection to loud noise, social isolation – these are all experiences within penal settings of subjection to, or deprivation of, certain sensations, smells and sounds which are deeply relevant for understanding the nature of dignity violations. From our perspective as researchers analysing the interpretation of the right not to be subjected to torture, inhuman or degrading treatment or punishment, in particular in European human rights law, we reflect on how a human rights lens has potential to illuminate why those involved in the governance and/or oversight of penal institutions should be concerned with the sensory. At the same time, we reflect on what those of us engaged in illuminating and concretising human rights can learn from bringing the sensory into focus; on how it can deepen our understanding of what is actually going on at the level of individual experience, and in turn shape our understanding of what falls within the purview of a legal norm such as the right not to be subjected to torture or inhuman or degrading treatment or punishment.

The way that individuals experience dignity respect or disrespect is a core concern in the penal context. In human rights doctrine, dignity language is particularly prominent in relation to the experience of prisoners and other detainees, including in immigration detention. The Nelson Mandela Rules, dealing with the treatment of prisoners, state in the very first sentence of the very first rule that “all prisoners shall be treated with the respect due to their inherent dignity and value as human beings.”

This is a powerful, if uncertain, red line. A challenge for working with the dignity idea is that it doesn’t possess a neatly labelled, off-the-shelf meaning in human rights discourse (or any other discourse). International agreements and human rights treaties are not philosophical works; they only try to capture and convey a sense of shared, social values. To understand the substance of dignity from a human rights perspective then, we have to piece together fragments of these shared understandings with the texts, with the pronouncements of monitoring bodies about the circumstances before them, and with theoretical accounts of dignity’s meaning. When we do so, we see patterns and gain insight into connections between sensory experience and dignity, respect and disrespect, as we outline below.

While the idea of dignity may be associated with metaphysical properties, it is a multi-faceted notion and contemporary accounts embrace its richness. It is widely recognised that human dignity is bound up with embodiment, and that dignity violations are socially-embedded experiences. Besides the ways the sensory can play a key role in the distress and harm that certain circumstances can occasion, sensory experience can also form part of actual and symbolic communication of a person’s perceived exclusion from the human community.

The sensory dimensions of physical torture in detention, perhaps the prototypical violation of human dignity, are well documented in testimony and scholarship. One example is Elaine Scarry’s landmark study in the 1980s, The Body in Pain, which connected the wrongness of torture, not only to physical sensation but also to loss of voice; a perverse substitution of ‘voice’ with ‘sound’ (chapter 1). Scarry explains how this perversion becomes a key dimension of the experience, devised to impact not only the person subjected to torture but also those subjected to hearing it.

Eventually the pain so deepens that the coherence of complaint is displaced by the sounds anterior to learned language. The tendency of pain not simply to resist expression but to destroy the capacity for speech is in torture renanacted in overt, exaggerated form. Even where torturers do not permanently eliminate the voice through mutilation or murder, they mime the work of pain by temporarily breaking off the voice, making it their own, making it speak their words, making it cry out when they want it to cry, be silent when they want it’s silence, turning it on and off, using its sound to abuse the one whose voice it is as well as other prisoners (p. 54).

As Oliver describes it in discussing Scarry’s account alongside survivor testimony, enforced “linguistic paralysis” becomes an act of exclusion (Oliver 2011, p. 92).

The connection between sensory experience and inhuman and degrading treatment or punishment is not as well documented. This is partly because these wrongs have been subject to less attention than the prototypical experience of torture; they are often seen as less ‘severe’ and thereby less concerning. These forms of treatment, however, should not be seen as being of lesser importance or impact on those who are subjected to them, and sensory experience can be integral to what makes treatment or punishment inhuman or degrading in character.

In the European Court of Human Rights’ (ECtHR) case law we find inhuman and degrading treatment and punishment often characterised by subjection to humiliation and/or suffering through manipulation of, or insensitivity towards, sensory experiences. We see this in noise subjection or sensory destabalisation through hooding as part of interrogation practices, such as the ‘five techniques’ of interrogation (hooding, noise subjection, stress positions, deprivation of sleep and deprivation of food and drink) that were the subject of a finding of inhuman and degrading treatment in Ireland v. United Kingdom (Ireland v. United Kingdom, 5310/71, 18 January 1978). Concretely, the continuous use of a dark hood as part of the “five techniques” served to cause not only substantial discomfort and disorientation, but also profound distress; Survivors of these ‘five techniques’, who are often referred to as the ‘Hooded Men’ have recounted having a a hood placed over their heads and being thrown off flying helicopters, not knowing that the helicopters were flying only a short distance from the ground. The debilitating implications of such ‘techniques’ have more recently been recognised in findings of torture in the context of CIA rendition and co-called ‘standard interrogation’ and ‘enhanced interrogation’ practices (e.g. Al Nashiri v. Poland, 28761/11, 24 July 2014) and the enduring image of the Hooded Man in Abu Ghraib. We also see a recognition of the significance of sensory experience in the ECtHR’s attention to such things as the cumulative effects of airplane noise and constant loudspeaker announcements on a child in immigration detention (see A.B. and others v France, 11593/12, 12 July 2016), or carelessness regarding the impact of not being able to hear or to see as a result of impairment (Ābele v Latvia, 60429/12, 5 October 2017; Slyusarev v Russia, 60333/00, 20 April 2010). Moreover, non-consensual physical impingement on one’s body is a recurring concern in case-law, from a slap on the face (Bouyid v. Belgium, 233380/09, 28 September 2015) to the performance of full body searches (Valašinas v. Lithuania, 44558/98, 24 July 2001). Further, the ECtHR has repeatedly underlined, in the context of the imposition of segregation in penal settings, that “complete sensory isolation, coupled with total social isolation can destroy the personality and constitutes a form of inhuman treatment” (Onoufriou v. Cyprus, 24407/04 10 December 2009, para. 69). Sensory experience does not constitute the full picture of dignity violations, but it can be a key aspect of treatment that reflects or communicates dignity and disrespect.

Recognising this is beneficial for furthering our understanding of dignity and its concretisation from within a human rights law perspective. In the context of human rights law – both legal instruments and case law – individual and communal experiences are filtered into the legal form, of proscriptive abstract statements and narratives retold for the purpose of judicial decision-making. As such, the totality of particular experiences is not – and cannot be – conveyed or appreciated in this forum. For this reason, we’ve found it interesting to reflect on how attention to sensory experience can help shape the delineation of dignity-respecting treatment beyond its partial rendering in legal texts, through a richer understanding of what is really going on at the level of an individual’s experiences of violations of the prohibition of torture, inhuman or degrading treatment or punishment.

Notably, there is substantial scope within the ECtHR’s case law on inhuman and degrading treatment for the recognition of the way in which (cumulative) sensory experiences, or lack thereof, may communicate, often in diffuse fashion, distinct from the “fanfare” (Luban 2014, p. 129) of torture, a denial of equal humanity; and how they may serve, intentionally or not, to wear someone down, or even break their spirit. Often this recognition is present, but goes unspoken – the sensory dimensions of one’s subjection to profound powerlessness, severe distress, or loss of hope, are often to be found between the lines of the Court’s reasoning – for example, when the Court sets out an acceptable square metres per person to avoid overcrowding (e.g. Muršić v. Croatia, 7334/13, 20 October 2016), or when it deems detention conditions to be ‘insanitary’ (e.g. Kalashnikov v. Russia, 47095/99, 15 July 2002), or describes prolonged solitary confinement as “one of the most serious measures which can be imposed within a prison” (e.g. A.B. v. Russia, 1439/06, 14 October 2010), para. 104, 112).

In a sphere of judicial decision-making where empathy can play a significant role (Heri 2021, chapter 7), it is worth asking: what would be the impact if human rights doctrine were to accommodate a more immersive sensory experience of the places and circumstances faced by individuals? How might such an approach inform judicial responses to carceral settings in particular? The “vividness of imagined experiences” (Webster 2018, p. 71) within judicial reasoning might be enhanced by a greater appreciation of sensory dimensions. While there seems to be something particularly relevant from a dignity perspective about the social gaze, the way that individuals see themselves, and the presence of onlookers in judgments surrounding torture, inhuman and/or degrading treatment or punishment, the significance of seeing need not negate the significance of sensing more broadly. There is space for these broader perspectives to enrich context-sensitive assessments (see discussion in Mavronicola 2021, p. 93-105) of when particular experiences fall within the scope of the prohibition of torture, inhuman and/or degrading treatment or punishment.

Foregrounding the sensory within human rights law perspectives could constitute a valuable resource, just as connecting the sensory to the language of dignity within criminological perspectives could constitute a valuable resource. And it goes without saying that, in scrutinising the experience of persons in detention, there is a continued need to engage creatively with all the resources we have available.

Gemma

I came across sensory criminology fairly recently whilst browsing social media, completely distracted from what I should have been reading. I found it fascinating, not least because it helped me to identify and make sense of some of my experiences whilst conducting prison research. However, what I was not expecting was the power this perspective has given me to really consider and understand my own position – transporting me back to pain, revealing scars I didn’t realise existed and considering what this taught me about the prison.

To give some context then, between the ages of 12 and 15 I was in and out of police custody. I was never sent to secure[1] (although almost ‘for my own protection’) but I regularly spent periods of confinement in cells, often for full weekends when they had nowhere else to send me. This was during the mid to late 90s so pre-YOT[2] and the YJB[3] and, as a female, the police would often tell me I was better off in a cell than on the streets anyway.

My life has changed significantly since then and in both work and voluntary roles I have revisited criminal justice sites and institutions with relative emotional ease. However, this was challenged during my time conducting research in a prison and it is these challenges that shall be the focus of my writing. In particular, I found there were three experiences that acutely activated and revealed what I feel are sensory scars – that is sites of old wounds revisited via: the smell, the cell, and leaving the prison.

The Smell

I was, and still am, surprised that the smell of the cleaning fluid activated emotion. That chemical disinfectant, that I’m assuming must be standard for communal areas in cold, soulless institutions with hard blue and green floors. It took me straight back. This smell is only around at certain points in the day so conducting research, rather than visiting, meant more opportunities to connect with it. That cheap, sterile, cold smell – it reminded me so much of being escorted down the corridor often by men twice my size, just a body, chucked in a cell and kept until another place or person knew what to do with you. I suppose that was the message, the ‘we don’t know what to do with you’ smell – you’re an inconvenience to society, it doesn’t know what to do with you so we’ll contain you for a bit in this building, disinfecting human traces.

The Cell

I was given a small office to work from during my research. It was an old cell, small with cream walls and no natural light. It was similar to the cells I had been held in when I was a child, but without the window made from thick square panes of glass and set with concrete. I didn’t hold keys during my research and I couldn’t leave this office unlocked. This meant that I had to, or felt like I had to, wait for a prison officer to relieve me. I was very appreciative of the space I’d been given and didn’t want to add to the workload of prison staff and so sometimes I could be waiting a while – it was this that revealed the second sensory scar. The sounds while waiting…footsteps walking down the corridor, keys jangling and that feeling of relief that someone is coming. You think it’s time for you to go…only for the sounds to tail off at someone else’s door. It’s not your turn so there’s that sinking feeling. Then, waiting longer, and again, the same process repeated. You’re enclosed and powerless with nothing to do, convinced you’ve been forgotten about. Life is buzzing onwards and you’re left, no one is coming and you don’t matter. You’re forgotten.

Leaving

The act of leaving the prison each day reminded me of how it felt every time I left police custody. Switching from the dull, still, confined space, with stale air and limited natural light to a heightened awareness of the outside world and that feeling of being free. The crisp, clean fresh air hitting your face after feeling nothing but stillness, demanding some consciousness. Having to wait a few seconds while your eyes adjust to the brightness, waking you up from the dull artificial gloom. The sounds of cars, birds and people walking past on the pavement. It made me feel so grateful that I could leave behind the emptiness of confinement and this time, step towards life.

Reflecting upon these sensorial experiences has provided me with a source of insight and understanding around some of the experiences of prison and social control. This is particularly with regard to the dehumanising nature of these institutions and the act of confinement. Perhaps the most pertinent aspect of this is reflected in my reaction, when discussing this blog, to someone using the word child. That really hit me… the idea that I was a child. I’d never thought of myself as a child. I certainly didn’t feel like a child at the time and over 20 years on, I still needed to be reminded that I was one. That is probably a testament to the long term damage dehumanising spaces have on our bodies and sense of self and it is the etching sensory scars that lay dormant ready to be raised to remind you of that.

[1] “Secure” here refers to secure children’s homes (SCH’s) which offer full time residential care for children aged 10-17 (14 if referred for custody). 43% of placements were those commissioned by the Ministry of Justice in 2020 (80 children): https://explore-education-statistics.service.gov.uk/find-statistics/children-accommodated-in-secure-childrens-homes For more information see Howard League for Penal reform, (2016) Future insecure: secure children’s homes in England and Wales. Available here: https://howardleague.org/wp-content/uploads/2016/05/Future-Insecure.pdf

There are three types of custody for children in England and Wales (who mysteriously become “young people” when criminalised): Secure children’s homes (SCH’s) – run by local councils for children 10-14, Secure Training Centres (STC’s) – for children up to 17, run privately by for-profit organisations, and Young Offender Institutions (YOIs) – for children and young people 15-21 (termed “people” on the government website), run by the prison service and private companies https://www.gov.uk/young-people-in-custody/what-custody-is-like-for-young-people).

England and Wales has the lowest age of criminal responsibility (10 years old) and the highest rates of child incarceration in Western Europe. Most children in custody are held in prison, (YOI’s). For some comparison, in December 20/21 60 were held in SCH’s, 94 in STC’s and 454 in YOI’s (figures taken from gov.uk: https://www.gov.uk/government/statistics/youth-custody-data).

[2] YOT refers to “Youth Offending Team”. Set up following the 1998 Crime and Disorder Act, with an emphasis on “protecting the public” (and reducing reoffending as their principle aim) See HMIP (2017) “The work of youth offending teams to protect the public”: https://www.justiceinspectorates.gov.uk/hmiprobation/wp-content/uploads/sites/5/2017/10/The-Work-of-Youth-Offending-Teams-to-Protect-the-Public_reportfinal.pdf

[3] YJB refers to the “Youth Justice Board”, also established in the wake of the 1998 Crime and Disorder Act, to monitor and promote good practice. In 2000 they assumed responsibility for commissioning custodial places (taken from www.beyondyouthcustody.net)