ABSTRACT
Deprivation of liberty, and of all the personal freedoms it necessarily diminishes, is qualitatively different from any other civilised form of punishment. It is recognised as such by Article 5 of the ECHR. Notably, it can occur both in a penal context and a therapeutic one. Its peculiarity stems in part from the series of other intrusions and deprivations of the most profound kind it brings in its wake: deprivation of contact with one’s family, lack of control over one’s future and, potentially, the pains of indeterminacy (which may itself be damaging to mental health). Its qualitative difference is recognised by those who send offenders to custody in a purely penal context. As one Scottish Sheriff remarked:
Tagging and community service are supposed to be equivalent but they’re not. Shutting the door and locking someone up is not the same. Jail is reserved for when you have tried everything else. There’s something awful about taking away someone’s liberty. People don’t understand just how severe a punishment prison is.
