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Ebulletin #26

28th September 2005

VOICES RISING - Volume 3, Number 9

"Courts right victory for mentally ill prisoners" by Cormac O'Keeffe and Ray Managh, Irish Examiner

Legal history was made yesterday after a prison reform group won the right to take court action against the State on behalf of mentally ill prisoners.

If the Irish Penal Reform Trust (IPRT) is successful in its case, it paves the way for thousands of prisoners with psychiatric problems to sue the State for damages.

In a ground-breaking decision, the High Court ruled that the IPRT was entitled to represent mentally ill prisoners in legal proceedings against the State.

The IPRT is seeking a declaration from the courts that the detention of mentally ill prisoners in padded cells breached their constitutional rights and was contrary to human rights obligations.

Mr Justice Paul Gilligan also granted two former inmates of Mountjoy Prison the right to sue the State for damages and declaratory reliefs.

Their action is the first case of its type and will be heard together with the case taken by the IPRT.

IPRT chairwoman Claire Hamilton said: "These two former prisoners are looking for damages and declaratory relief. We're not looking for damages, but our case is being taken in tandem.

"We are there as a voice for other prisoners who may have gone through this regime. It's an unspecified number. Our estimation is we're not talking hundreds, we're talking thousands."

Ms Hamilton, who is also a barrister and lecturer at Dublin Institute of Technology, said that if the "substantive case" succeeded, these people could then sue the State for damages.

"Ultimately if we were successful, other prisoners who've gone through this padded cell regime and been subjected to inhuman and degrading treatment could certainly seek damages."

She claimed the use of padded cells were "degrading and debasing".

The IPRT showed research to the court claiming that 78% of prisoners put into padded cells had a mental illness.

Mr Justice Gilligan said the IPRT had the expertise and the financial ability to mount an effective action on behalf of prisoners. He said while prisoners might be theoretically capable of asserting their constitutional rights, he was not satisfied they were in a position to adequately assert them.

The governor of Mountjoy and the Minister for Justice said the IPRT did not have legal capacity to take proceedings on behalf of prisoners and that the two prisoners' action should be limited to their own specific circumstances.

Mr Justice Gilligan rejected the defence submissions.

He said that if the IPRT was denied standing, then those prisoners it represented may not have an effective way to bring the issues before the court.

© Irish Examiner

"Trust can now sue State on behalf of prisoners" by Carol Coulter and Ray Managh, Irish Times

The Irish Penal Reform Trust, has won the right to sue the State on behalf of prisoners with psychiatric problems. The trust is supporting their claims for damages for breaches of their constitutional rights.

Mr Justice Paul Gilligan handed down a reserved judgment yesterday declaring that the trust was entitled to represent mentally ill prisoners in legal proceedings against the State.

Two former inmates of Mountjoy Prison had also sought legal entitlement to sue the State for a number of reliefs.

The trust is a non-governmental organisation campaigning for the rights of people in prison and the reform of Irish penal policy.

This is thought to be the first time that an NGO has won the right to represent prisoners, and it could have far-reaching implication for the prison service and the Department of Justice.

A report published earlier this week found that a significant proportion of prisoners suffered from psychiatric problems, and that this was linked to homelessness. One in four of the 3,200 prison population was homeless on committal, and of these two-thirds had spent time in a psychiatric hospital and one-third was diagnosed with a mental illness.

Judge Gilligan said it was almost indisputable that prisoners with psychiatric problems were among the most vulnerable and disadvantaged members of society. Many were ignorant of their rights and might fear retribution if they challenged the authorities.

He felt claims could be more effectively litigated by the reform trust, which was in a position to identify and analyse systematic failings in the system.

Although a mentally ill prisoner might be theoretically capable of asserting his or her own constitutional rights, he was not satisfied they were in a position to adequately assert them. He said the reform trust had the expertise and financial ability necessary to mount an effective challenge to alleged systematic failings.

Judge Gilligan said the two prisoners involved in the application were people who suffered from psychiatric illness and both had been in Mountjoy men's prison.

The reform trust had been concerned for some time over what it saw as systematic deficiencies in the way such prisoners were treated in prison.

Research had revealed that 78 per cent of prisoners put into padded cells in solitary confinement had been found to be mentally ill. The trust believed the conditions in which such vulnerable prisoners were held was a matter of concern to the wider community.

It believed the conditions in Mountjoy had not complied with basic human rights standards.

The governor of Mountjoy and the Minister for Justice had filed a full defence to the prisoners' claims and argued that the trust did not as an entity have legal capacity or locus standi to maintain the proceedings on behalf of prisoners. The defendants also claimed the two prisoners had no standing to advance complaints about a failure to employ any qualified psychiatric nurses in prisons; or a failure to assess such prisoners on entry or place them in padded cells.

Mr Justice Gilligan said he did not accept the defence submission that the two prisoners' claims were limited to their own personal circumstances. They sought constitutional remedies for systematic deficiencies in the way prisoners with psychiatric problems were treated in Mountjoy.

If the two prisoners named in the proceedings were to be denied standing, no other plaintiff would be in a position to challenge alleged deficiencies because it would be limited to their own personal circumstances.

© The Irish Times

Irish Times Opinion Piece: "McDowell must clear air on future of prisons"

Last month's prison inspector's report once again details the sorry state of the Irish prison system. Poor and overcrowded prisons , a lack of effective rehabilitation programmes, high levels of reoffending and the outrageous cost of incarceration are but a few of the problems identified, writes Rick Lines

The inspector makes many recommendations to address these failings, but one received particular attention - his support for prison privatisation. The inspector calls on Minister for Justice Michael McDowell to privatise "at least one prison", and suggests "private prisons may be essential for the further development of prisons".

The inspector bases his views on the claim that private prisons cost less than State-run prisons, and promote innovation and efficiency in prison regimes. Yet a detailed report, Inspecting Private Prisons, published last week by the Irish Penal Reform Trust (IPRT) exposes significant factual errors in the inspector's conclusions. Citing the most recent research from government and independent sources in the UK, US, Australia and elsewhere, the IPRT report shows:

There is no independent academic comparative research showing that private companies deliver prison services at less cost than the public sector. This claim is contradicted by reports from the US department of justice, the New South Wales department of corrective services, and the Florida department of corrections, among others. The British government - an enthusiastic booster of privatisation - claimed a cost saving of only about 1 per cent by contracted prisons last year (a figure whose calculation was not explained and therefore not independently verifiable). Government analysis in some countries has found private prisons to be more expensive than comparable public facilities. Even the Republican governor of Kentucky rejected prison privatisation earlier this year because it was not in "the best interest of the taxpayers".

The operational record of private prisons is - at best - mixed. A 2001 US department of justice study found "no definitive research evidence would lead to the conclusion that inmate services and the quality of confinement are significantly improved in privately operated facilities". In October 2003 western Australia's justice minister said of their experience: "It is clear that this privatisation delivered no benefit to the community."

There is no evidence that private prisons produce lower rates of reoffending.

The inspector's recommendation is based almost exclusively on information provided by the private prisons industry itself, or by business lobbyists supporting the privatisation of custodial services.

The official Department of Justice response to the IPRT report was as quick as it was predictable. According to the department, there is "no plan" for privatising prisons, and "the Minister's preference that prisons should be managed by public servants".

This position dates back to October 2003 when Mr McDowell told the Dáil: "I can state categorically . . . that there is no plan in my department to privatise the prison service".

That there is "no plan" for privatisation has been the official line ever since, yet its credibility is running a little thin.

For example, the Minister maintained there was "no plan" to privatise prisons at the same time as he was publicly preparing to contract out the operation of Loughan House and Shelton Abbey prisons. More recently, he was described in a report in The Irish Times as "prepared to order the wholesale privatisation of new jails being built at Spike Island, Cork and Thornton, Co Dublin". Indeed, the prison inspector's pro-privatisation recommendation was highlighted by the Minister in the press, following publication of the inspector's report.

Whatever Mr McDowell's "preference" and whether or not a concrete "plan" exists on paper, it is clear that a discussion about privatisation has been going on behind the closed doors of the Department of Justice for some time. To suggest otherwise is simply beyond belief.

The fact that Mr McDowell refuses to make a simple yet definitive statement that he will not privatise prisons clearly shows the "official line" to be a carefully crafted non-denial rather than a believable policy position.

The only rationale ever cited by Mr McDowell in support of privatisation was that of excessive prison officer overtime. This rationale has been removed by the recent contract agreement with prison officers. While the prison inspector is rightly appalled at the state of the prisons, his frustrations provide no justification for implementing privatisation policies that are not supported on the grounds of fiscal responsibility or effective correctional outcomes.

The Department of Justice clearly wishes public discussion of this issue to go away. The Minister can make that happen today with a clear and unequivocal statement that he will not privatise prisons during his term in office. If he will not make such a statement, the only conclusion is that privatisation is moving ahead behind closed doors, whatever claims to the contrary are made in public.

Rick Lines is the Executive Director of the Irish Penal Reform Trust.

© The Irish Times

Irish Examiner Opinion Piece: "Is locking prisoners out of the polls a crime?" by Rick Lines

Last week, Fine Gael TD and MEP Gay Mitchell called upon the Government to extend voting rights to prisoners.

"Giving votes to prisoners would not only acknowledge their rights but it would also underline their responsibility for themselves and to society," Mr. Mitchell said.

His call is to be welcomed and follows 18-months of inaction on this issue by various government ministers.

On 30 March 2004, in the case of Hirst v. The United Kingdom, the European Court of Human Rights ruled that denying prisoners the right to vote was in breach of Article 3 of Protocol 1 of the European Convention on Human Rights.  In that decision, the Court upheld the principle that voting is a fundamental right of citizenship in a constitutional democracy, not a privilege that exists at the discretion of an individual government or minister.

In making its decision, the Court refuted the main arguments made against voting rights for prisoners.  

Some argue that disenfranchisement is a legitimate part of a person's punishment. The Court rejected this.  The Justices said that taking away a person's vote forms no part of the sentencing process in criminal cases, and they found no evidence that removing voting rights either deters crime or improves rehabilitation.

Opponents of prisoner voting also argue that loss of the vote is a fair and proportional sanction. The Court disagreed, finding it completely arbitrary because it affects citizens more or less severely depending on when they are incarcerated. To illustrate this point, a person serving one week in prison for a petty conviction such as the non-payment of a fine would lose their right to vote if incarcerated on election day, while a person sentenced to 3 or 4 years for a much more serious offence would be able to vote if their period of imprisonment fell between elections.  

Governments have argued that this is a policy matter best left to the discretion of elected officials. The European Court disagreed, and referred to a 2000 decision of the Canadian Supreme Court which concluded that this isexactly the kind of issue that demands careful judicial review since it involves stripping citizens of their most fundamental democratic right.

In the weeks following the Court's decision in 2004, Parliamentary Questions on this issue were put to Minister McDowell by both Aengus Ó Snodaigh and Jim O'Keefe, the justice spokespersons for Sinn Féin and Fine Gael respectively.  In answering these questions, the Minister stated that Irish prisoners are not prohibited in law from voting.  Instead the Government chooses not to provide them with the means to vote come election day. According to the Minister, "The Supreme Court . . . has held that the State is under no constitutional obligation to facilitate prisoners in the exercise of that franchise."  

The European Court's decision effectively rubbishes this position.

How can the Government claim not to deny imprisoned citizens the right to vote when it will not give them a ballot on election day? The fundamental denial of rights is the same in effect.  Indeed, the European Court examined the Irish Supreme Court's ruling, and found it was not compelling as it ruled on only a single narrow point of law, rather than address the totality of issues involved.

As stated by the Canadian Supreme Court, and cited in the European Court's ruling, "The legitimacy of the law and the obligation to obey the law flow directly from the right of every citizen to vote." Permitting "elected representatives to disenfranchise a segment of the population finds no place in a democracy built upon principles of inclusiveness, equality, and citizen participation."

According to Gay Mitchell, "The issue is about treating people humanely and expecting people to take their responsibilities as well as protecting their rights." Yet while prisoner voting is the norm in most of Western Europe, eighteen months after the European Court's decision there has been no action by the Government to ensure that all Irish people are guaranteed their most basic right of citizenship.

In his response to Deputies Ó Snodaigh and O'Keefe, Mr. McDowell said he would be consulting the Attorney General and the Minister for the Environment, Heritage and Local Government on the implications of the Court's judgment.

This was the same response received by the Irish Penal Reform Trust in correspondence with the relevant Ministers and Attorney General in April and September 2004. 

A year and a half later, one might ask what the result of this consultation has been?

Rick Lines is Executive Director of the Irish Penal Reform Trust

"SNP set to back call for cut in Scotland's jail population" by Ian Swanson, The Scotsman

Scottish Nationalists were today expected to back a call for prison to be used only for serious offenders while petty criminals are given sentences in the community.

A motion to the SNP annual conference in Aviemore which got under way today says instead of building more jails, the focus should be on tackling criminal behaviour through community-based sentences and addressing social problems like drink, drugs and deprivation.

The motion, in the name of party justice spokesman Kenny MacAskill, is one of the first to be debated at the conference, which was beginning this afternoon.

Speaking before the four-day conference began, SNP leader Alex Salmond said the party's target was to win 20 more first-past-the-post seats at the next Scottish Parliament elections.

He said the party had made "significant electoral progress" over the past year and the "winning habit" would stand it in good stead for the 2007 contest.

The motion on prisons policy says the need for prisons is a "regrettable aspect of society", but argues their use should be restricted in the main to "the protection of society from dangerous offenders and the punishment of serious offences".

Mr MacAskill said: "We are in the shameful position of heading towards having the highest percentage of people in prison in the whole of Europe. Yet we are not by any means bad people. We are no better but no worse than other nations in that regard.

"It is a regrettable fact of life that there is a need for prison in any society. Prison should be a place for serious offences and dangerous offenders.

"In Scotland, prison is full of fine defaulters and many who are victims as much as perpetrators in terms of drink, drugs and deprivation."

He said he regarded assault and breaking into people's houses as serious offences which should be punished with a jail sentence. But he said petty criminals and people who committed minor offences to feed a drink and drug habit were better dealt with outside prison.

"In these cases, it is better for them and cheaper for us to tackle the underlying problems."

Mr MacAskill said jailing offenders for 30 days or less was a waste of time. "There must be a way of addressing their problems, and indeed punishing them, within the community."

And he continued: "We need to recognise that there is a need for prisons, but that too many Scots are in them and too many who are in them should not be addressed there but treated elsewhere."

He said that, despite continual promises, Labour had totally failed to deliver on tackling the causes of crime.

"Individuals need to accept responsibility for their actions. Scotland in turn needs to accept responsibility for all its communities."

Tomorrow, the conference will debate a controversial bid to lift the SNP's boycott of the House of Lords.

© The Scotsman

"Prisoners to have choice of smoking in their cells" by Hamish MacDonnell, The Scotsman

Prison cells will soon be designated as "smoking" or "non-smoking" and criminals will be given a choice of rooms when they are convicted, it emerged yesterday.

The details of the smoking ban, which is expected to be in place by next spring, were published by the Scottish Executive and showed which areas will be exempt from the ban and which places will be covered by the legislation.

Oil rigs, designated hotel bedrooms and parts of police stations will be exempt from the ban, but almost every other place used by the public will have to enforce a total ban.

All pubs, restaurants, offices, factories and sports centres will have to be smoke-free as will all hospitals - although the elderly and the terminally ill will still be able to smoke in their own rooms in residential homes and hospices.

However, one of the areas not covered by the ban will be prisons, but a Scottish Executive spokesman confirmed that ministers will change prison legislation to ban smoking in every part of Scottish prisons except individual cells.

This means that prisoners will continue to be able to smoke in their cells, but they will have to choose whether they want "smoking" or "non-smoking" rooms.

This drew a derisory response from critics of the smoking ban.

A Tory spokesman said: "The only people who are going to be given a real choice in Jack McConnell's Scotland are the ones who break the law and end up in prison."

And Paul Waterson, of the Scottish Licensed Trade Association, said: "These proposals are farcical, the plans are starting to look more and more like the back end of a pantomime horse."

The list of exempted areas published yesterday will be open to consultation, but it will take an extremely convincing argument to get ministers to change their minds.

The smoking ban will affect a whole range of different organisations in different ways.

Football supporters, for instance, will still be able to smoke in the stands, but only if their seats are in the open to the air and not covered on every side. They will not be able to smoke anywhere else in the stadiums where the space is enclosed by walls on each side, such as in foyers or in hospitality boxes.

Film-makers will also have to make changes to the way they produce movies. Smoking will be prohibited on all film sets, even if it is done by an actor as part of a role.

There were suggestions that this might dissuade film-makers from producing movies in Scotland but Ginnie Atkinson, from the Edinburgh International Film Festival, said she did not think it would prove a problem, because actors could use fake cigarettes.

The Executive spokesman conceded that police stations would remain one of the few public places to allow smoking, but insisted this had been done to help police officers during interrogations.

"This would help in quietening suspects and preventing them from turning to violence," he said.

Andy Kerr, the health minister, said: "The regulations out for consultation today set out exactly what we intend to be the effect of the bill and clarify the very few places which we think should be exempt.

"We welcome comments on these, but, I have made it perfectly clear in the past that we intend that exemptions would only be made on humanitarian grounds and in respect of people's homes.

"This legislation needs to be as comprehensive as possible in order to be effective."

Areas where smoking will be banned:

Restaurants, hotels bars and pubs. Shops and shopping centres. Libraries, museums and galleries, cinemas, concert halls, theatres, bingo halls, casinos, dance halls and discos.

Film or broadcasting studios.

Public halls, public toilets and private clubs. Offices, factories and work premises including vehicles containing more than one employee. Educational institutions, secure accommodation. Hospitals, children's hospices and health centres, crèches, day nurseries and day centres.

Churches, sports centres, airports, public transport facilities and vehicles.

The areas exempted from the ban will be:

Private homes, adult care homes and adult hospices, psychiatric hospitals and units, oilrigs, private vehicles, specific hotel bedrooms, certain police rooms, and designated prison cells.

© The Scotsman

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