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IPRT Prison Law Bulletin: No. 3 – Autumn 2011

IPRT is committed to promoting and supporting the development of prison litigation in Ireland. Since 2009, we have co-hosted with the ICBA and the DSBA a series of law seminars. This series has provided CPD accredited expert seminars for barristers and solicitors on topical issues of prison law and also provided a platform for exchange of ideas and information between leading practitioners in this area.

We have also provided support and assistance for both barristers and solicitors involved in prison litigation. This has involved research on legal developments internationally or at the ECHR level, identifying potential expert witness, and directly providing expertise and information on the operation of the prison system. We will continue to provide this support and we would welcome contact from any practitioners who would like assistance with relevant litigation. we are also working with the Voluntary Assistance Scheme of the Bar Council and the Public Interest Law Alliance to explore further how both professions can become more involved in public interest prison work. We are very eager to involve practitioners more in all aspects of our work and would be delighted to have the involvement of more professionals as members of IPRT. Details about individual and company membership are available here.

This is the third prison law bulletin. The first bulletin was launched at Easter, followed by a second bulletin in the summer.IPRT envisages that the Legal Bulletin, produced on a quarterly basis, will be a source of prison-related case-law, identifying potential areas and issues for litigation and supporting lawyers already engaged in penal litigation.Should lawyers come across any interesting cases relating to penal law either in Ireland or abroad, IPRT would be grateful if you could email  research@iprt.ie to notify us of these developments so that we can possibly include them in future bulletins. Any suggestions on the format or content of this bulletin would also be greatly appreciated!


Among the highlights of this bulletin are two Court of Criminal Appeal cases involving sentencing of Section 15A drug possession offences – Wall and Ormonde; a new Scottish case Docherty et al on slopping-out; a potentially significant US Supreme Court decision on mandatory strip searching - even for people detained for minor offences and fine default - in Florence v Board of Chosen Freeholders of the County of Burlington & Others;and a large number of ECtHR decisions.

Outline of contents:

  • Irish Case-law
  • ECHR Case-law
  • UK Case-law
  • US Case-law

                                     Irish Case-Law

OM v Governor of Cloverhill Prison  [2011] IEHC 341           Date of Delivery: 01/08/2011

http://www.courts.ie/__80256F2B00356A6B.nsf/0/4518066E259D85FC8025791700514A96?Open&Highlight=0,Om,~language_en~

This case involved a man who was denied asylum on credibility grounds.He claimed to be Liberian, but according to the Refugee Applications Commissioner showed “a distinct lack of knowledge of Liberian history and geography.”He was denied subsidiary protection by the Minister for Justice in 2009 and a deportation order was made.In July 2011, an official from the Liberian Embassy in London met Mr Om and reached the conclusion that he was not Liberian and therefore refused to issue him with a travel document.When subsequently questioned about his nationality by GNIB officers, Mr Om persisted with his claim that he was Liberian and the officers formed the view that he was frustrating their attempts to progress his deportation from Ireland. He was arrested on 18 July 2011 and brought to Cloverhill prison.

Hogan J. in the High Court said that he had to determine whether the arrest of Mr Om was lawful, and if so, whether his continued detention was lawful.He held that the relevant Garda objectively speaking had a reasonable suspicion that the applicant intended to avoid removal from the State in the light of the Liberian Embassy Official’s conclusions following the interview in July. (para. 19)

Regarding the lawfulness of the applicant’s detention at Cloverhill, Hogan J. stated while there was no doubt that it was for the purposes of effecting his detention, the real issue was whether there “is any likelihood that he detention can actually be effecting within the remaining six weeks or so of the eight week detention period” permitted by law for immigration-related purposes.The judge took the view that the prospect of this was “quite unlikely” (para. 25), particularly in the light of the further investigations which were necessary to determine the applicant’s real nationality.Hogan J. drew attention to the fact that if it were established that the applicant were a national of a country other than Liberia “then it would be necessary for the Minister to consider the matter of refoulement afresh, since, by definition, Liberia will not be the receiving state.” (para. 27).Finally, the lack of any “real prospect” that the applicant would be deported within the remaining 6 weeks of the maximum statutory period of 8 weeks would violate the principles of Gutrani v The Governor of Wheatfield Prison and Minister for Justice (unreported, 19 February 1993), as applied by the Supreme Court in Re Article 26 and the Illegal Immigrants (Trafficking Bill) 1999 [2000] 2 I.R. 360.Hogan J. concluded that while the original arrest was of the applicant was lawful, his continued detention at Cloverhill was unlawful and directed his immediate release under Article 40.4.2 of the Constitution.

DPP v Brian Wall [2011] IECCA 45                                             Date of Delivery 29/07/2011

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/819c9c5e5b0fdce8802579270047e253?OpenDocument

Here the Court of Criminal Appeal (CCA) dismissed the DPP’s appeal against the leniency of a sentence for section 15A drug possession, stating that while the suspension of a six year sentence in its entirety was lenient, it was not unduly lenient and there had been no error of principle by the sentencing judge.

The respondent in question became involved in the distribution of drugs for financial gain after being out of work for approximately a month following a sports injury.In September 2007 he was caught by the drug squad in the Shanakiel area of Cork city placing an ounce of heroin at the base of an ESB pole.Following his arrest, a search of his home yielded a further ounce of heroin hidden in a video cassette player.The respondent admitted that he was a store man and distributer of heroin in Cork city.He also stated that he had received a kilo of heroin the previous week and made three separate drops, distributing 9 ounces of heroin before his arrest and was to receive €2,000 as payment. He did not reveal who he worked for or who owned the heroin, which had a street value of €146,000.He had no previous convictions and was not a drug addict.

During his trial, in which he pleaded guilty to a variety of drug possession charges including a charge under section 15A, he expressed remorse and asked the court for a second chance, stating that he regretted the event every day and the negative impact that it had on his parents and his partner.In giving the respondent a six year suspended sentence on the basis that there were exceptional circumstances in the case, Judge Patrick Moran was influenced by the respondent’s genuine remorse, as well the probation officer’s assessment that he was at the lowest possible level of re-offending.

Counsel for the DPP argued that the sentencing court erred in law and in fact in being unduly lenient in the weight it attached to the early guilty plea, the favorable probation report, the respondent’s remorse, his employment as a store man and delivery man of the €145,600 of heroin and the fact that “his motivation was entirely mercenary” (p. 6). Counsel also argued that the court erred in failing to take account of the respondent’s admission that he had previously engaged in the unlawful sale of drugs for payment of €2,000 and in considering the fact that the respondent was not addicted to drugs to be a mitigating factor, referring to the similar fact situation in the case of DPP v Rory Lernihan [2007] IECCA 21 (Unreported, Court of Criminal Appeal, 18th April, 2007), where the CCA quashed the sentence of 4 years imprisonment with the last two and half suspended as being unduly lenient in respect of possession of €72,000, and imposed a new sentence of 7 years imprisonment.

Here, the CCA held that “considerable deference must be shown to the decision of the trial judge” and that the DPP’s application could only succeed it there were “a substantial departure from what would be regarded as the appropriate sentence” (p. 9), agreeing with the statement of Murray CJ in DPP v McGinty [2007] 1 IR 633 at para. 35 that:

In an appeal of this nature it is not for the court to decide what sentence it would have imposed in the circumstances but whether the trial judge erred in principle that his sentence should be quashed as being unduly lenient.The onus is on the prosecutor to establish that this is the case.”

In McGinty the CCA dismissed the appeal on grounds of leniency in relation to a 5 year suspended sentence for a section 15A offence, holding that the rehabilitation of drug addicts “is an important part of penal policy since if successful it reduces dramatically the risk of repeating offences and imprisonment of addicts.” (at p. 642 of McGinty)

Here, Budd J also referred to the earlier case of DPP v Alexiou [2003] 3 IR 513, where the CCA dismissed the DPP’s appeal against the leniency of a four year suspended sentence for a section 15A offence on condition that the South African person in question leave Ireland immediately.The exceptional circumstances in Alexiou included the fact that the courier had a limited intellectual capacity, was highly dependent on his South African mother and was heavily indebted at the time he was approached to bring the package of drugs to Ireland.

Regarding Wall’s mercenary motives for engaging in the drugs trade, Budd J stated:

“It is clear that sympathy must be felt for individuals under financial pressure or necessity such as the respondent, however, this Court cannot condone engagement in illegal drug dealing activities in order to lessen financial pressure and as such the fact that the respondent’s motivation was of a financial nature should not be considered as a mitigating factor.” (p. 15)

In dismissing the DPP’s appeal, the CCA was satisfied that other exceptional and specific circumstances were indeed present in the instant case, including the respondent’s early guilty plea, his remorse and co-operation with the gardaí, his consistent employment record and good future prospects, his lack of previous convictions, as well the conclusion of the probation report that he was at the lowest possible level of re-offending. (p. 20) Budd J. concluded that: “the sentence imposed might be considered as lenient and in the hope of good future rehabilitation and prospects, however, the sentence in all the circumstances was not unduly lenient.The suspended sentence in this case has the value that it encourages the respondent not to re-engage in this activity.” (p. 21).

DPP v Brian Ormonde [2011] IECCA 46                                     Date of Delivery: 29/07/2011

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/a482ea9e34ba8af980257927004900df?OpenDocument

The Court of Criminal Appeal (CCA) held that a Circuit Court judge erred in principle when she imposed the presumptive mandatory minimum sentence of 10 years imprisonment for a section 15A drugs offence - possession of €90,000 worth of heroin with intent to supply - on the basis that she failed to make it clear that her decision had not been influenced by “background matters” – namely the applicant’s admissions that he sold heroin on previous occasions, since such admissions had not been the subject of any charge.In June 2007, the applicant had been caught “red handed” by the gardaí with heroin and related paraphernalia, including weighing scales, glucose and tick lists in his apartment and immediately admitted that he had the drugs for the purpose of sale.He subsequently pleaded guilty to the s. 15A offence.The applicant who was addicted to cocaine claimed that he began dealing heroin to pay off a drug debt.He had eight minor criminal convictions, mainly for public order type offences.In terms of mitigation, the applicant argued that his early guilty plea and co-operation with the gardaí, as well as the progress he had made in tackling his addiction since being in custody should have qualified as “exceptional and specific circumstances”, thus meriting a sentence of less than 10 years.

The respondent argued that the trial judge had been entitled to take into account the value and nature of the drugs found, the drug-related paraphernalia, the fact that the applicant owned the drugs and was selling it for profit (irrespective of the existence of a drug debt), in addition to the applicant’s previous sale of heroin.

Influenced by Macken J’s comments in The People (DPP) v Patrick Long [2006] IECCA 49 (Unreported, Court of Criminal Appeal, 7th April, 2006), the Court stated that while judges in matters of sentencing are entitled to have regard to all background matters, which clarify or explain the context of the crime, such as any admissions by accused regarding previous dealing to clear a drug debt, the accused must not be sentenced in respect of offences with which he was neither charged nor convicted.Budd J. stated at p. 7: 

“This Court is concerned that the sentencing judge did not clearly and unambiguously hold that the admissions of the applicant to other offences, which were not charged in this indictment, did not influence the sentence which she imposed. … The learned judge should have made clear that she was not influenced by the background matters when sentencing by being specific about what she was sentencing for, and then excluding such matters which were extraneous to the specific courts to which the accused had pleaded guilty.”

While noting that where an accused is caught red handed, the guilty plea is of less value than in other cases (p. 8), the Court nonetheless stated that the applicant’s co-operation with the gardai and guilty plea were useful, since the prosecution was thereby relieved of the burden of having to adduce evidence of his sale of heroin, apart from his own admission in this regard.In holding that the trial judge erred in principle in failing to give due consideration to the early admissions, guilty plea and lack of previous convictions of the applicant, the CCA substituted the 10 year sentence for one of 7 years, with the last two years suspended, “on terms which will encourage the applicant to overcome his habit of using drugs” (p. 9).

H [a minor] v HSE [2011] IEHC 297                                             Date of Delivery: 18/07/2011 

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/bf7f46aa1317b303802579020047db71?OpenDocument

This civil detention case, similar to DG v Ireland (39474/98 [2002] ECHR 447 (16 May 2002)) was described by the Hogan J. in the High Court as “sad and tragic”.It concerned GH, a boy of 16 with oppositional defiance disorder and ADHD who was in the care of the HSE since he was three years old.  His parents were both chronic drug addicts and his grandparents tried to take care of him until two years ago when his behaviour grew unmanageable.  Evidence was given that GH was “an exceptionally violent and very dangerous young man.”  He had been placed with a specialised team in a house but the placement came to an end on 13th July 2011.  The responsible authority, the National Admissions and Discharge Committee identified a secure placement in Scotland, but because it would involve a cross-border transfer consent would take 4-8 weeks.  On 15th July he was placed at a HSE Unit with a dedicated social work team, agreeing not to assault staff or be abusive.  The following day his behaviour degenerated and he was brought to Naas Garda Station.

Hogan J. held a special sitting of the High Court on the night of 16th July, where the HSE informed him that its staff could no longer treat GH.  Hogan J decided that the “least worst option” under the circumstances was to exercise the Court’s inherent jurisdiction and to order the civil detention of GH in St. Patrick’s institution in order to safeguard his welfare, stressing that such detention was for “therapeutic purposes” - “not for the purposes of punishment or the prevention of crime (para.20).The civil detention would be limited in duration and subject to constant review.

Brady v Governor of Midlands Prison [2011] IEHC 295                                Date of Delivery: 18/07/2011 

http://www.courts.ie/__80256F2B00356A6B.nsf/0/83EC1FE288E61590802578F0004F9E72?Open&Highlight=0,Brady,~language_en~

In this case, a man convicted of indecent assault, sought an inquiry under Article 40.2 of the Constitution into the lawfulness of his detention in the Midlands Prison, arguing that he should not have been prosecuted under s.6 of the Criminal Justice Act 1935, having regard to the provisions if s. 10(2) of the Criminal Law (Rape) Act 1981 and that the Circuit Criminal Court had neither power nor jurisdiction to try, convict or sentence him to two years of imprisonment under s.6 of the 1935 Act, due to s. 10(2) of the 1981 Act.  He also sought declarations that: (a) a previous habeas corpus application was not dealt with by the High Court, thus breaching his constitutional and ECHR rights; (b) the committal order and warrant of his conviction was invalid due to being “fraudulent, vague and void for uncertainty, and (c) his detention at the Midlands is unlawful because the warrant of conviction only permitted his detention at Mountjoy. Irvine J dismissed all Brady’s arguments. On the issue of the warrant for his detention at Mountjoy, Irvine J. stated that he was not being unlawfully detained by virtue of being held at the Midlands prison, noting: “The transfer of prisoners from one prison to another is a matter to be exercised by the Minister for Justice, Equality and Law Reform pursuant to s. 17 of the Criminal Justice Administration Act 1914, and in such circumstances the Governor of the prison to which the transfer is made becomes his new custodian.  There is no evidence before this Court that a transfer order was not made in accordance with the said provision.” (para. 12)

                           Other Irish Developments

In a recent rape trial Garrett Sheehan J. imposed a three year custodial sentence due to the lack of a guilty plea and remorse shown by the Flanagan brothers from Laois.Sheehan J made a number of interesting statements about Irish prison conditions, namely that they are overcrowded and “in some cases an affront to human dignity.” (see http://www.eecho.ie/news/ireland/laois-brothers-jailed-for-raping-woman-in-hotel-523528.html)

                    European Court of Human Rights

Lăutaru v Romania 13099/04[2011] ECHR 1727                     Date of Delivery: 18/10/2011 

http://www.bailii.org/eu/cases/ECHR/2011/1727.html

The applicant alleged inhuman and degrading conditions of detention in Colibaşi Prison, Romania. He argued that the overcrowded conditions, inappropriate food, lack of appropriate medical treatment, lack of drinking water during the day, extreme heat in his cell, overcrowded conditions of transport to court hearings and lack of exercise had damaged his health (at the time he was imprisoned he had been clinically healthy but during detention he had been diagnosed with various conditions and with a Category 2 disability).

While the ECtHR noted that there was no European Committee for the Prevention of Torture and Inhumane or Degrading Treatment (CPT) report concerning Colibaşi Prison, a Romanian NGO visited the prison in April 2007 and published a report which revealed that on the basis of the information submitted by the authorities, the total cell area was 1,170 sq. m., a quarter of the minimum area recommended by the CPT, which is 4 sq. m per detainee. According to the report, the lavatories at Colibaşi were in a bad state of repair, unhygienic, etc. (para. 78)

The ECtHR stressed that when assessing conditions of detention, the cumulative effects of these conditions in conjunction with particular allegations made by the applicant must be evaluated (see Dougoz v. Greece, no. 40907/98, § 46, ECHR 2001-II), as well as the duration of the detention in the particular conditions (see Alver v. Estonia, no. 64812/01, 8 November 2005).  A serious lack of space in a prison cell will also weigh heavily as a factor to be taken into account for the purpose of establishing whether detention conditions described are “degrading” under Article 3. The Court referred to previous cases where applicants had less than 3 sq. m of personal space where it held that the overcrowding was so severe as to justify of itself a finding of a violation of Article 3 of the Convention (see Brânduşe v Romania, no. 6586/03, § 50, CEDH 2009).  In cases where the overcrowding was not so severe as to raise in itself an issue under Article 3 of the Convention, other aspects of the physical conditions of detention are relevant to the Court in assessing compliance with that provision such as the availability of ventilation, access to natural light or air, adequacy of heating arrangements, compliance with basic sanitary requirements and ability to use the toilet in private. (para. 95)

The ECtHR concluded that even at the occupancy rate put forward by the Government, the applicant’s living space for almost eleven years spent in Colibaşi Prison seemed to have been consistently below 3 sq. m and sometimes even below 1.6 sq. m (para. 99), well below the standards imposed by the Court’s case-law. Moreover, the applicant’s description of the overcrowded conditions corresponded to the general findings by the CPT in respect of Romanian prisons. The Court also concluded that the evidence suggested that the applicant had been deprived of the ability to maintain adequate bodily hygiene in prison. While there was no indication that there was a “positive intention to humiliate or debase” the applicant, the Court nonetheless held that the conditions of his detention caused him suffering that exceeded the unavoidable level of suffering inherent in detention and that there was a violation of Article 3 of the Convention, for which it granted the applicant €16,000 in damages.  The applicant’s additional complaints relating to lack of proper medical treatment and infringement of his rights to correspondence to individual petition with the Court were dismissed.

Bădilă v Romania 31725/04 [2011] ECHR 1514                         Date of Delivery: 04/10/2011 

http://www.bailii.org/eu/cases/ECHR/2011/1514.html

The applicant claimed that he was held in grossly overcrowded cells in certain Romanian prisons and had been unable to maintain proper hygiene. He referred to the 2008 CPT report confirming his allegations of chronic overcrowding.  The Court noted that the applicant’s personal space seemed to have been consistently below four square metres, falling short of the standards imposed by the ECtHR case-law (e.g. Orchowski v. Poland, no. 17885/04, § 122, ECHR 2009). Based on the government’s occupancy figures the applicant had less than one square metre available to him as personal space, during the period he spent in Jilava Prison in 2004. (para. 75)

The applicant spent most of his detention in Giurgiu Prison.Even though there were no CPT reports concerning this specific establishment, the ECtHR had recently analysed the conditions of detention in this prison for similar time period’s to the applicant’s detention (see Iamandi v Romania, no. 25867/03, §§ 56-62, 1 June 2010 and Bragadireanu v Romania, no. 22088/04, §§ 92-98, 6 December 2007), concluding that the applicants had been held in overcrowded cells, with less than three square metres of personal space, and the inability to maintain adequate bodily hygiene in prison. Here, the Court concluded that the applicant, Bădilă, was similarly deprived of the possibility of maintaining adequate bodily hygiene. Awarding him €6,000 in damages, the Court held that he had been subjected to degrading treatment under Article 3 even though there was no indication that had been “a positive intention to humiliate or debase” him, since the conditions of his detention “caused him suffering that exceeded the unavoidable level of suffering inherent in detention”. (para. 79)

The Court rejected the applicant’s complaint concerning the alleged lack of medical treatment for his health issues, in addition to the complaints concerning the alleged infringement of the his right to respect for his correspondence under Article 8, and the alleged breach of his right to access to information under Article 10, due to non-exhaustion of domestic remedies.

Lalić and others v Slovenia 5711/10 [2011] ECHR 1620        Date of Delivery: 27/09/2011 

http://www.bailii.org/eu/cases/ECHR/2011/1620.html

The applicants unsuccessfully complained that the conditions of their detention in Dob Prison, Slovenia amounted to a violation of Articles 3 and 8 of the ECHR on the basis that severe overcrowding led to a lack of personal space, poor sanitary conditions, inadequate ventilation and high temperatures in the cells, as well as excessive restrictions on out-of-cell time, inadequate health care and psychological assistance, insufficient efforts to rehabilitate drug addicts and exposure to violence from other inmates due to poor security. The applicants argued that they had been held in multi-occupancy cells as one of fourteen to seventeen inmates detained in such a cell.  They also complained of restrictions on visits, telephone conversations and correspondence.

The ECtHR accepted the Slovenian government’s submission that the majority of cells in Dob prison had been unlocked for most of the day and that the applicants had enjoyed freedom of movement around the wing and had access to a hallway, a TV room, and a sanitation area located in their respective wings between being woken up at 6.00 a.m. and lock-in at 11 p.m.  The Court noted that it was undisputed that the applicants had the chance to use an outside yard for at least two hours per day. The Court also noted that, according to the information supplied by the Government and not contested by the applicants, all bar two of the applicants worked, some of them doing so for eight hours per day, or were engaged in other educational or leisure activities, which reduced the time they spent in their cells.  Accordingly, the Court found that the situation as regards personal space allocated to each applicant in his cell and restrictions on his movement outside the cell did not raise an issue under Article 3 of the Convention. 

The Court held that there was no evidence that ventilation of the cells and the temperature thereof in summer was incompatible with Article 3. As regards sanitation, the Court stated that although all the prisoners held in one large cell had to share one toilet, which “might have caused a certain discomfort”, the applicants had not established that the situation was so severe as to raise an issue under Articles 3 or 8 of the Convention.  Regarding the claims about the negative impact of overcrowding on security and healthcare, the Court stated that applicants failed to provide information about any incident involving violence or the threat of violence which might have affected them, nor did they give details of any inadequately satisfied need for medical or psychological assistance.

In declaring inadmissible the applicant’s Article 8 claims in respect of interference with their contact with the outside world, the Court stated that they failed to supply any concrete evidence supporting their claim that they had been unable to use prison telephones in accordance with the law. Likewise, their allegations concerning interference with their written correspondence, as well as their dissatisfaction with visiting arrangements, were deemed to be substantiated.

Musiałek and Baczyński v Poland 32798/02                            Date of Delivery: 26/08/11 

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=888794&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

The applicants complained that their rights under Article 3 of the ECHR were breached by subjection to detention in very poor prison conditions, in particular by overcrowding in prison and lack of adequate medical care in the case of the first applicant who suffered from a medical condition which causes the hands and fingers to become bent in a claw like position but can be treated by releasing the tendons through surgery.  Although he received surgery for this, he claimed it was not carried out correctly. He also claimed that he was refused further surgery to his hand. Other claims related to prisoner voting entitlements and prison education. The Government sought to have the case dismissed under Article 37 of the Convention, but the ECtHR rejected this request, holding that there was a violation of Article 3 of the ECHR in respect of the first applicant’s first period of detention.  The application of the second applicant was rejected under Article 35 §§ 1 and 4 of the Convention on the basis of non-exhaustion of domestic remedies. (This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.)

Jelcova v Lithuania 16913/04                                                        Date of Delivery: 19/08/2011 

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=888322&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

The applicant made claims for breaches of the ECHR under Article 3 in relation to the prison conditions to which he was subjected and the lack of medical treatment in prison. The applicant had been diagnosed with both tuberculosis and hepatitis C and claimed that these had arisen due to the poor conditions of his detention, and that further to this he had not received sufficient treatment for these conditions while in prison. He also made claims under Article 6 of the Convention in relation to a lack of access to a tribunal within a reasonable time, as he was not afforded legal aid affecting his challenge of the lawfulness of his detention, and in relation to the lack of equality of arms afforded to him in domestic proceedings.  The ECtHR held that there has been a violation of Article 6.1 of the Convention due to the State’s failure to allow the applicant to take part in the Supreme Court hearing in his murder trial and that Articles 6.1 and 3 were breached on account of failure to provide the applicant with legal assistance to prepare his appeal on the points of law, in the context of the criminal proceedings for robbery.

Huseyn and others v Azerbaijan35485/05, 45553/05, 35680/05 and 36085/05                                 Date of Delivery: 26/07/2011

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=888788&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

This case involved members of political parties in Azerbaijan who were charged with “organising public disorder” and “use of violence against State officials” under Articles 32.2, 220.1 and 315.2 of the Criminal Code, following disturbances arising from the outcome of the presidential election.  The applicants alleged violation of Article 3 of the ECHR during their time in custody, in relation to ill-treatment, prolonged isolation without books, newspapers or writing material, as well as threats of physical abuse to the men themselves and their families.  They also claimed violations of Article 6 stemming from the domestic court proceedings which impinged on their right to a fair trial and the presumption of innocence. The ECtHR held that the applicants’ rights under Article 6 of the Convention had been breached, but declared that the arguments regarding Article 3 were not sufficiently backed up by evidence for the Court to be able to declare a violation.  NGO reports of widespread ill-treatment alone were not enough evidence for the court.

Budakov v Russia 23294/05                                                           Date of Delivery: 19/07/2011 

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=888332&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649

The applicant claimed violation of article 6 due to a lack of trail within a reasonable period of time. His detention on remand was extended on several occasions on the basis of the gravity of his alleged offences, including gang membership, organised burglaries and possession of weapons. He also claimed a breach of Article 34 as the prison had failed to post a letter of his to the Court.  The Court acknowledged that it took the domestic authorities approximately three years and two months to examine the case at two levels of jurisdiction and reiterated that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the applicant’s conduct and the conduct of the competent authorities. However, in view of the complexity of the case and the lack of any visible misconduct on the part of the authorities, the ECtHR concluded that there had been no breach of the “reasonable time” requirement in the case. However, regarding Article 34 of the Convention the respondent State was deemed to have failed to comply with its obligations, stating that “the prison administration’s failure to send the first application form with its voluminous attachments was serious enough to interfere with the proceedings before the Court and may even be perceived as discouraging the effective exercise of the right of individual petition by the applicant (para. 49).

Kondratishko and others v Russia 3937/03                           Date of Delivery: 19/07/2011 

http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=888312&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649+

In July 2002 the five Russian applicants were all convicted of offences including robbery, unlawful deprivation of liberty and banditry and were given prison sentences varying from six to 23 years. The applicants complained, in particular, about the excessive length of the criminal proceedings against them.  The first applicant further complained about the conditions of his pre-trial detention – notably on account of overcrowding (30-40 people per cell who had to take turn sleeping, due to insufficient beds), poor ventilation and hygiene facilities - and the third applicant alleged that he had been subjected to threats and beatings while in police custody in an effort to extract a confession from him.  The ECtHR held that there were violations of Article 3 of the Convention on account of the conditions of the first applicant’s pre-trial detention (awarding €15,000) and on account of the third applicant’s ill-treatment by the police officers and the failure of the domestic authorities to carry out an effective investigation (awarding €18,000).  However, the Court held there has been no violation of Article 6 of the Convention on account of the length of the criminal proceedings against the first four applicants.

                                  Scottish Case-Law

Docherty et al v The Scottish Ministers [2011] CSIH 58    Date of Decision: 02/09/11 

http://www.scotcourts.gov.uk/opinions/2011CSIH58.html

3 former prisoners of HMP Barlinnie in Glasgow were given leave to pursue damages by the Court of Session on the basis that the conditions of detention in that prison prior to 2002 breached their rights under Articles 3 and 8 of the ECHR.  On 15 September 2006 the Scottish Prison Service made a public statement about “doubled up slopping out conditions”, namely that Article 3 of the ECHR was breached when two prisoners were detained in a relatively small cell for a large part of the day and had to perform bodily functions in each other’s presence in that shared cell and that such prisoners would generally be entitled to damages.  The appellants maintained that had been held in such conditions.  While the respondents acknowledged breach of the appellants’ rights under Article 3 by May 2010, they argued that the claims for damages were time-barred (as the prisoners did not bring their actions until 2006 and 2007) and that the appropriate avenue for legal redress was judicial review, rather than an ordinary action.  The men's claims were initially heard at Glasgow Sheriff Court where the sheriff ruled that they were time-barred under the Prescription and Limitation (Scotland) Act of 1973. The Appeal Court allowed the appeal and remitted the case to the sheriff.  It is thought that the ruling may add around £3.5 million to the Scottish bill for compensating prisoners who have endured slopping out.

                                     US Case-Law

Ongoing Supreme Court Appeal from Florence v Board of Chosen Freeholders of the County of Burlington & Others, Nos. 09-3603 & 09-3661, 21 September 2010  

http://www.ca3.uscourts.gov/opinarch/093603p.pdf

See also: http://edition.cnn.com/2011/10/10/justice/scotus-strip-searches/?hpt=ju_c2  

The case of Florence arose when a New Jersey state trooper stopped Albert Florence’s car in 2005, when he his family were on their way to his mother-in-law’s to celebrate their new home.  He was handcuffed and arrested in front of his pregnant wife and young son, because of a warrant that said he was wanted for failure to pay a court fine dating from 1998.  In fact, he had paid the fine years before.  He spent seven days in jail, during which time he was strip-searched twice.  At Essex prison, Florence claimed that he and other men being admitted were forced to “open their mouths, lift their genitals, turn around, squat and cough.”  According to Essex court papers, guards observed inmates disrobing and taking a shower and search their clothes for contraband.

Florence commenced a class action lawsuit (others were detained for offences such as driving with a noisy muffler, failing to use a turn signal, and riding a bicycle without an audible bell) challenging a policy in two New Jersey detention facilities, whereby arrestees are strip-searched before entering the general prison population.  The policy permits strip searches of every arrestee, no matter how minor the offence charged. Upholding the policy against a Fourth Amendment challenge in September 2010, the U.S. Court of Appeals for the Third Circuit quoted the district court’s description of the searches in one facility:  “[The policy] entails a complete disrobing, followed by an examination of the nude inmate . . . by the supervising officer, which is then followed by a supervised shower with a delousing agent.”  

In the lead up to Florence, Federal courts of appeals have been reviewing similar blanket strip search policies for quite some time.  Ten of the courts originally ruled that people charged with minor offenses had a Fourth Amendment privacy right to be free from such searches, unless there is a reasonable suspicion that the arrestee was concealing a weapon or drugs. More recently, however, two of the ten courts—the U.S. Courts of Appeals for the Ninth and the Eleventh Circuits—overruled their earlier precedents and upheld the blanket strip search policies. With eight Circuits on one side and three on the other, the Supreme Court understood the issue was ripe for review and granted certiorari in Florence.

The Supreme Court has previously upheld a policy of strip searches of detainees in Bell v Wolfish 441 U. S. 520 (1979), where all detainees, regardless of their offence, had to undergo a visual body-cavity search after every contact visit between the detainee and an outsider, even where there was no reason to suspect that drugs or other contraband were concealed on an inmate’s body.  This meant that detained people awaiting trial for minor offences could not expect Fourth Amendment protection against the humiliating strip searches.  Despite the fact that such searches had discovered contraband in only one instance, the Supreme Court held that detention facilities have a special need for heightened security, and that in evaluating Fourth Amendment rights a balance had to be struck between the inmates’ privacy interest against the institution’s need for security.  The jails’ security interests outweighed individual privacy rights.

In Florence, lawyers for the prisons have argued that Florence’s contention that a reasonable suspicion should be required to strip-search people detained minor charges would in practice create a route for those intent on smuggling weapons or contraband into jails.  However, as Florence argued, he had not been planning his arrest and detention, he “vigorously protested it”. 

This month (October) the Supreme Court is hearing oral arguments on the constitutionality of the strip searching of people detained on minor offences such as Florence, in the absence of suspicion that they are in possession of contraband.  A ruling is likely to be published early 2011.