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IPRT Prison Law Bulletin: No. 6 – Summer 2012

Welcome to the sixth in the series of IPRT’s Prison Law Bulletins.  This series is aimed at assisting and supporting practitioners representing prisoner clients by providing information on current prison law developments in Ireland, in neighbouring jurisdictions and at the European Court of Human Rights. More generally, IPRT is committed to assisting practitioners working with prison clients in a variety of ways and we have recently produced a number of resources for prison lawyers which are available through our website. These include:

Following feedback from practitioners, from this point we will aim to issue this Prison Law Bulletin on a monthly basis, so you will receive more frequent shorter updates on developments, which we hope will be of greater use to you in your practice.  If you feel that IPRT can be of assistance to you in relation to any area of your prison work, please contact Liam Herrick at lherrick@iprt.ie

Some of the highlights of this bulletin include:

  • The lacuna which prevented a person with mental health difficulties being deemed ‘not guilty by reason of insanity’ in the District Court was considered in G v Murphy
  • The material which a parole board ought to be allowed to have access to was considered in the English decision of R (on application of McGetrick) v Parole Board
  • The European Court of Human Rights has once again returned to the issue of a prisoner’s right to vote in Scoppola v. Italy (no. 3) (Application no. 126/05)
  • The European Court’s judgment in the case of M.S v United Kingdom on the treatment of mentally ill-detainees could have far-reaching consequences on the treatment of detainees.

IPRT is particularly grateful to Matthew Kenny of Sheehan and Partners for editing this bulletin and to Edward Keegan of UCD and Thomas Mahon of NUI Galway for researching the legal developments included.  We are also grateful to the Public Interest Law Alliance for their support and assistance in this project.

Outline of Contents:

A.      Irish Case-law

B.     UK Case-law

C.      ECtHR Case-law 

D.      US Case-law

A.     Recent Irish decisions

1.         Kirby v The Governor of Limerick Prison [2012] IEHC 69

Date of Delivery: 27/01/2012                       

Key Terms: Visits


The applicant brought an application seeking judicial review on the basis that he would be required to submit to six months of ‘screen visits’. The applicant argued that Limerick Prison was the only prison to make such a rule and that the rule does not apply to other prisons in this jurisdiction. Mr Justice Feeney stated that the applicant failed to provide sufficient information or facts which could justify a court granting an order of certiorari. It was held that the applicant failed to identify the facts and circumstances which gave rise to the Governor imposing the sanction on the applicant under the relevant rules and regulations. The court stated that the applicant failed to identify any ground as to why the Governor may have acted in excess or in abuse of his jurisdiction, other than the fact that Limerick Prison is the only prison to impose such a rule.  Ultimately, the court felt that there was insufficient and inadequate information available to allow it to make a determination that the Governor made a decision that was in excess of the Governor’s jurisdiction or amounted to an abuse of jurisdiction.

2.         G v Murphy [2011] IEHC 445

Date of Delivery: 8/12/2011

Key Terms: Sentencing


The applicant was charged with sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990.  The Director of Public Prosecutions consented to the offence being disposed of under s. 13 of the Criminal Procedure Act 1967, which permits the District Court to deal with most indictable offences if the accused pleads guilty. The court must also be satisfied that the offence is fit to be tried summarily and that the accused understands the nature of the offence and the facts alleged.   In this case, there was medical evidence that the applicant was unfit to plead. Due to an apparent lacuna in s. 4 of the Criminal Law (Insanity) Act 2006, the question of the applicant’s fitness to plead could not be determined by the District Court.  Mr Justice Hogan decided that the appropriate remedy in this casewas to grant a declaration that if the applicant were found fit to plead in the Circuit Court and thereafter pleaded guilty, it would be unconstitutional to apply a maximum sentence greater than that which would have applied (12 months) if the applicant had been dealt with in the District Court under s. 13 of the Criminal Procedure Act 1967.

3.         Media Report of the Privacy Action taken by Nicola Pelley

Date of Report: 15th May 2012                   

Key Terms: Privacy; Prisoner Correspondence


The applicant is the partner of Joe O'Reilly, who is serving a life sentence for killing his wife. The applicant sought an injunction, damages and declarations against the Irish Sun over the publication on 19-21 March 2011 of private correspondence between her and Mr O'Reilly after he began serving a life sentence in 2007 for the murder of his wife Rachel in 2004. Ms Pelley claimed the copies of her letters were reproduced by the paper without her knowledge or consent. She stated her right to communicate and correspond freely had been wrongfully denied to her due to fears that her private correspondence would be published in a newspaper or via some other medium.

As well as seeking an injunction restraining the paper from publishing further such information, the applicant sought a declaration that her right to privacy under the Constitution and under Article 8 of the European Convention on Human Rights was breached by the publication of her letters.  Senior Counsel for Ms Pelley told Mr Justice Roderick Murphy in the High Court that the action had been settled on terms as agreed between the parties. It is understood Ms Pelley is to receive a payment of €75,000 along with her costs and that the Sun has undertaken not to publish any of her private letters, emails or other communications in the future.

B.      Recent decisions of England and Wales

1.         R (on the application of McGetrick) v Parole Board[2012] EWHC 882 (Admin)

Date of Delivery: 4th April 2012                        

Key Terms: Parole


This case raised the question of whether it is lawful for the Parole Board, when deciding whether to release a prisoner on licence, to take into account material provided by the Secretary of State containing factual allegations about the prisoner's pre-trial conduct, which formed part of the original prosecution case against him, but for which he was never convicted. The applicant had been released on licence but recalled to prison for breach of his licence conditions. The parole board was given a dossier by the Secretary of State which contained several factual allegations, which formed part of the original prosecution against him, for which no indictment had been pursued and the applicant had not been convicted.

The applicant submitted that the board misdirected itself in concluding that it had no power to exclude untried material. The court refused the application. The board's function was to assess the risk created if a prisoner were released on licence, so it had to take into account hearsay evidence and other evidence of misconduct or criminal offences, whether the conduct took place before, after or at the same time as the offending for which he was sentenced. Similarly, the board had to take into account evidence of the relevant good conduct of the prisoner whenever it took place.

2.         Shutt & Anor, R (on the application of) v Secretary of State for Justice [2012] EWHC 851 (Admin)

Date of Delivery: 11th April 2012

Key Terms: Assessment, Prison Training


The claimant prisoners, in conjoined applications for judicial review, challenged refusals of their respective prison governors to give them enhanced status under the prison incentives and earned privileges (IEP) scheme. Both men were serving substantial determinate sentences in the Isle of Wight after having been convicted of serious sexual offences against children. They had both been assessed as suitable for a sexual offences training programme, and were willing to undertake it, but had been deemed ‘not ready’ because of their continuing denial of the offences. The court had to consider whether that amounted to a blanket ban, and if so, whether it was unlawful.  The court found that the Isle of Wight local policy which, by reason of a points system, includes a blanket ban on attaining enhanced status for any offender who is suitable for the training programme but is unready because of denial of guilt is an unlawful policy. However, the court also found that there had been no injustice to either claimant from that unlawful policy.

3.         R (King) v Secretary of State; R (Bourgass and another) v Secretary of State for Justice [2012] EWCA Civ 376

Date of Delivery: 27th March 2012                       

Key Terms: Freedom of Association, Solitary Confinement


The Court of Appeal found that, for the purposes of article 6 of the European Convention on Human Rights, there was no civil right derived from domestic and common law to associate with fellow prisoners. Consequently, an administrative decision to segregate or continue segregation of a prisoner was not a determination of such a right. The appeals of the prisoners against a refusal of their applications for judicial review were, therefore, dismissed.

All three appellants claimed that the decisions to place and/or keep them in cellular confinement or segregation were unlawful, principally (but not wholly) by reference to article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms.  The European Court of Human Rights’ case law did not unequivocally establish, as a matter of Convention law, such a right. Nor did the Young Offender Institution Rules 2000 or the Prison Rules 1999 expressly confer a right to associate with other prisoners. The court found that association with other prisoners was a ‘normal privilege’ rather than a right and that it was subject to withdrawal in accordance with the Rules, particularly those permitting cellular confinement or segregation, which invested governors with discretionary powers.

The exercise of those powers and the process of review by the segregation review boards were amenable to judicial review which, among other things, would secure Convention rights such as those under articles 3 and 8. For these reasons, his Lordship considered that article 6 was not engaged at these stages of the administrative decisions. It concluded that the availability of judicial review at later stages of the process meant that the process as a whole was Article 6 compliant. The court noted that it would be ‘very reluctant’ to require key areas of prison discipline to be subjected to external determination.

C.      Recent decisions of the ECtHR

1.         Shumkova v. Russia (Application no. 9296/06)

Judgement Date: 14th February 2012           

Keywords: Medical Treatment, Prisoner Complaints Procedures

Relevant Articles: 2


The applicant claimed a breach of the State’s positive obligation under Article 2 of the Convention (to protect the right to life). The claimed breach related to the suicide of the applicant’s son, Mr Shumkova, who had been diagnosed with a psychiatric disorder with self-harm tendencies. The Court ruled that the Prison authorities had breached Article 2, both in terms of the positive and procedural obligations it places on them. The breach in relation to the positive obligation owed first to the failure of the Prison authority to ensure that the blade used by Mr Shumkova to commit suicide was disposed of after it had been used only 3 days prior to his suicide in an act of self-mutilation; and also on the prison guards’ failure to administer first aid prior to the arrival of a doctor, on the basis of Mr Shumkova’s verbal refusal. This was owing to the authorities’ prior knowledge of Mr Shumkova’s psychiatric disorder. The Court then ruled that the investigation into the circumstances surrounding Mr Shumkova’s suicide failed to meet the procedural obligation under Article 2. This was owing to the lack of independence in the initial investigation carried out by the Prison Governor, and the delays in the later investigation carried out by the Office of the Prosecutor General. These failures were compounded by the superficial nature of the two investigations, with the authorities failing to interview key witnesses. The applicant was awarded €24,000 in damages and €150 in costs and expenses.

2.         Shchebotov v. Russia (Application no. 21731/02)

Judgement Date: 10th April 2012                  

Keywords: Medical Treatment, Prisoner Complaints Procedures

Relevant Articles: 2, 3, 13 and 34


The applicant claimed a number of breaches of the Convention in respect of Articles 2, 3, 13 and 34 on the basis that he had contracted HIV and tuberculosis in custody and had no effective remedy in respect of his complaints over his health, and that his correspondences with the Court had been allegedly hindered by the Russian authorities. He was unsuccessful on all counts on the facts.

3.         Salikhov v. Russia (Application no. 23880/05)

Judgement Date: 03rd May 2012                  

Keywords: Prison Conditions, Prison Violence

Relevant Articles: 3, 6 and 34


The applicant alleged a number of breaches of Article 3 relating to his conditions of detention, his treatment by police officers, and the investigation by the authorities into his treatment by the officers. The alleged breaches of Article 6 and 34 related to his trial and a claim that the Russian authorities had hindered his communications with the Court respectively. The Court found that the sanitary conditions in the detention facility in which the Applicant was kept consisted of a breach of Article 3 of the Convention. The Court referred to the fact that the inmates within the facility had to relieve themselves in a bucket – in the presence of other inmates – as evidence of this breach, describing the practise as degrading. There was also found to be a lack of bedding, restricted access to running water, no provision for outdoor exercise, and an inadequate supply of food.  The Court found a further breach of Article 3 in respect of the applicant’s treatment by Police officers when he was being removed from his cell. Owing to a number of deficiencies in the investigation of the events surrounding the applicant’s treatment by the authorities the Court also found a breach of Article 3 in respect of its procedural limb. The applicant was awarded €20,000 in damages and €1,000 in costs and expenses.

4.         J.L. v. Latvia (Application no. 23893/06)

Judgement Date: 17th April 2012                  

Keywords: Prison Violence, Medical Treatment, Prisoner Complaints Procedures

Relevant Articles: 3


The applicant claimed a breach of the Convention in respect of Article 3 from the refusal of the prison authorities to investigate his physical ill-treatment by fellow prisoners. The applicant claimed that upon arrival at the Central Prison he was physically attacked and raped by fellow inmates. He was examined by a Central Prison doctor who refused to draw up a medical report on the attack. A prison guard also refused to initiate an investigation into the alleged assault. The applicant later complained to the Ombudsman, who upon investigation found no record of the applicant’s complaint about the alleged assault, or any information relating to the applicant’s ill-treatment. The Court found that the applicant’s complaint was admissible despite the fact that the alleged ill-treatment was not attributed to State officials. And, while the investigation required may not have to be the same as if the ill-treatment was committed by State officials, the Court ruled that it should contain the core requirements of an effective investigation. As the investigation by the authorities could not be considered independent or effective in this case, it was found that this obligation had not been satisfied. As a result a breach of Article 3 was found. The applicant also claimed a breach of Article 3 on the basis that the authorities had sent him to a prison where he alleged he would be unsafe. The Court found this claim was inadmissible as he had failed to make his allegations specific, either to the domestic authorities or before the Court. The applicant was awarded €10,000 in damages by the Court.

5.         Babar Ahmad and Others v United Kingdom (Application nos. 24027/07, 11949/08, 36742/08, 66911/09 and 67354/09)

Judgement Date: 10th April 2012                  

Keywords: Prison Conditions

Relevant Articles: 3


The applicants, all of whom were facing extradition to the United States on charges relating to terrorism, alleged that the conditions to which they would be exposed in the detention facility, Florence ADX, and the length of the sentence they potentially faced breached Article 3. Before ruling on these issues, however, the Court first dealt with the contention of the United Kingdom that Article 3 allowed for a balancing act in extradition cases, where the alleged treatment would not constitute torture. The Court ruled that the principle enshrined in Chahal v. United Kingdom applied to any treatment of the severity required to constitute a breach of Article 3, including inhumane or degrading treatment, and in as much would not allow for a contracting party to extradite. The Court then ruled that while the conditions in Florence ADX are restrictive, they do not constitute complete sensory isolation or total social isolation and allowed for contact between inmates and their families through social visits and regular phone calls. Further, inmates were able to communicate amongst one another through ventilation shafts between cells. Inmates were also able to interact during recreation periods. Even within their solitary cells inmates were afforded with stimulation through television, radio and other services going beyond what was available in many European Prisons. Also, as there were safeguards against administrative arrangements being imposed indefinitely, there was no breach of Article 3. The Court also ruled that the sentences the applicants may face upon conviction, discretionary life sentences, could be shown to serve a legitimate purpose and as such could not be determined to be in breach of Article 3.

6.         M.S v. United Kingdom (Application no. 24527/08)

Judgement Date: 03rd May 2012                  

Keywords: Medical Treatment

Relevant Articles: 3, 13


The applicant claimed a breach of the Convention in respect of Article 3. The applicant alleged that the failure of the authorities to transfer him to an appropriate facility “during a period of acute mental suffering” did not respect his human dignity as required by Article 3. The applicant was detained while in an agitated state and it was clear to the authorities that the applicant was suffering from some form of mental illness and that a doctor would be required. Upon assessment it was declared by a psychiatrist that the applicant should be detained in a hospital in the interest of his health and the safety and protection of others. He waited three days to be admitted, beyond the 72 hour limit laid down by the Mental Health Act 1983. Despite the fact that there had been no intention to degrade the applicant, the Court found a breach of Article 3 in respect of his treatment throughout custody. The applicant was awarded €3,000 in damages and €7,500 in costs and expenses.

7.         Belyaev and Digytar v. Ukraine (Applications nos. 16984/04 and 9947/05)

Judgement Date: 16th February 2012           

Keywords: Prison Conditions, Medical Treatment

Relevant Article: 3, 8 and 34


The applicants claimed a number of breaches of the Convention in respect of Articles 3, 8 and 34. The applicants alleged that their conditions of imprisonment were in contravention of Article 3, that their correspondences had been monitored in contravention of Article 8, and that they had been hindered from freely communicating with the Court in contravention of Article 34. The Court found there to be breaches of Articles 8 and 34. The applicants were each awarded €7,000 in damages.

8.         Melnitis v. Latvia (Application no. 30779/05)

Judgement Date: 28th February 2012                       

Keywords: Prison Conditions

Relevant Articles: 3


The Court ruled that the conditions to which the applicant had been exposed for five months in Valmiera Prison were ‘incompatible with human dignity’, and that the distress caused by these had reached the minimum level of severity required to find a breach of Article 3. The applicant was awarded €7,000 in damages.

9.         Verbint v. Romania (Application no. 7842/04)

Judgement Date: 3rd April 2012                   

Keywords: Medical Treatment, Prisoner Complaints Procedures

Relevant Articles: 3


The applicant alleged that a domestic court had delayed for seven months in deciding on his application to have his sentence suspended on medical grounds. The court ruled that there had been a breach of Article 3 in respect of its procedural limb, based on the failure of the domestic mechanism to deal with the applicant’s submissions in a timely manner. The applicant was awarded €7,500 in damages.

10.       Geld v. Russia (Application no. 1900/04)

Judgement Date: 27th March 2012                Keywords: Prison Conditions

Relevant Articles: 3


On the basis of the evidence on overcrowding and the failure of the Russian Government to refute the claim that the applicant did not have a permanent sleeping space, the Court found a breach of Article 3. The Court found a number of further, aggravating factors including a failure to separate smokers from non-smokers, the availability of exercise only one hour a day, the availability of showers only once a week and a lack of ventilation and natural light in the cell. The applicant was awarded €7,500 in damages.

11.       Hadji v Moldova (Applications nos. 32844/07 and 41378/07)

Judgement Date: 14th February 2012                       

Keywords: Prison Conditions

Relevant Articles: 3


The applicant claimed breaches of the Convention in respect of Article 3.  The Court found that the conditions reached the minimum level of severity required to find a breach of Article 3. The applicant was awarded €3000 in damages and €100 in costs and expenses.

12.       Piechowicz v. Poland (Application no. 20071/07)

Judgement Date: 17th April 2012                  

Keywords: Prison Conditions

Relevant Articles: 3, 5 and 8


The applicant alleged that the cumulative effect of the restrictive prison regime to which he had been exposed constituted a breach of Article 3, that the restrictions placed on his communication with his lawyer and his family constituted a breach of Article 8, as well as a number of breaches of Article 5 relating to his trial. The applicant had been placed in a cell which was constantly monitored by CCTV; segregated from other prisoners; strip searched every time he left his cell; placed in shackles every time he left his cell; and allowed only one hour of exercise a day. The Court found that while special prison regimes are not incompatible with Article 3 per se, they must be compatible with human dignity. The Court found that the cumulative effect of these various measures and their prolonged imposition were likely to arouse feelings of humiliation within the applicant, going beyond that usually associated with detention, constituting a breach of Article 3. In respect of the applicant’s claim under Article 8, while the Court recognised that in cases involving organised crime certain restrictions may be required; those imposed in this case were found to go beyond what could be justified. The Court also found a number of breaches of Article 5 in relation to the length of the applicant’s pre-trial detention and his access to important documents during trial. The applicant was awarded €18,000 in damages.

13.       Boulois v. Luxembourg (Application no. 37575/04)

Judgement Date: 3rd April 2012                 

Keywords: Prisoner Complaints Procedures; Early Release

Relevant Articles: 6


The applicant claimed a breach of the Convention in respect of Article 6. The applicant alleged that he had been deprived of his right to a fair hearing and his right of access to a court under Article 6 in connection with administrative decisions refusing his requests for prison leave. The applicant claimed that the refusal of the Administrative Courts to accept jurisdiction over the repeated decisions of the Prison authorities to refuse his applications for prison leave had caused this breach. The subject matter of the case before the Grand Chamber was whether access to a court in respect of decisions over prison leave is a right covered by Article 6 of the Convention. The Court had previously ruled that Article 6 did cover prison leave, but this had been challenged by the State and referred to the Grand Chamber on this basis. In answering this question, the Grand Chamber analysed the applicable law in Luxembourg, under which prison leave was treated as a privilege, rather than a right. The Grand Chamber also looked at its own jurisprudence, under which prison leave had previously been treated as a right covered by Article 6; this was only so because the applicants could point to decisions of a national judicial body to this effect. As a result, when this could not be shown, it could not be said that the right immediately existed. Further, looking at the applicable laws in Member States it was deemed that there had been no convergence on the issue at stake. As a result of these various considerations the Grand Chamber ruled in favour of the State, effectively ruling that judicial review of decisions over prison leave was not a right covered by Article 6 of the Convention unless prison leave is treated as a right under domestic law.

D.     Recent decisions of the United States of America

1.         Miller v Alabama; Jackson v Hobbs 576 US (2012)

Date of Delivery: 25th June 2012                 

Key terms: Parole, Sentencing


The United States Supreme Court ruled by a 5-4 majority that states can no longer impose mandatory life sentences on juveniles convicted of homicide crimes. Justice Elena Kagan stated that ‘such a scheme prevents those meeting out punishment from considering a juvenile’s lessened culpability and greater capacity for change’. The decision, therefore, has returned discretion to the judiciary to make individual determinations about each youth who stands before them, based on that youth’s particular qualities and degree of blameworthiness.  A key factor for the Court was that mandatory life sentences without parole for juveniles preclude consideration of his chronological age and ‘its hallmark features- among them, immaturity, impetuosity, and failure to appreciate risks and consequences’. Justice Breyer, in a concurring opinion, would have gone a step further and prohibited life without parole sentences for all juveniles who did not actually kill or intend to kill the victim.

2.         Florence v Board of Chosen Freeholders of the County of Burlington 566 US ­­­­­­­­­ (2012)

Date of Delivery:  2nd April 2012            

Key Terms: Strip searches


In this case, the applicant was detained on suspicion of having committed a road traffic offence. The relevant police officer discovered an outstanding warrant for the applicant. The applicant had in fact paid this fine but the computer system had erroneously listed an outstanding warrant. Custody officers conducted a visual inspection of his body, instructing him to open his mouth, lift his tongue, lift his arms, and then lift his genitals. The applicant was quickly released when he came before a judge and the true facts emerged.

It was argued by the applicant that prison officials must have reason to suspect concealment of weapons, drugs or other contraband before such searches could be carried out. A federal judge agreed. On appeal, the Third Circuit Court of Appeals reversed the decision, holding that the jail’s interest in safety and security outweighed the privacy interests of detainees – even those convicted of minor crimes.  A 5-4 majority of the Supreme Court ruled that officials may strip search individuals who have been arrested for any crime before admitting the individuals to jail, even if there is no reason to suspect the individual is carrying contraband. The majority opinion was written by Justice Anthony Kennedy.

3.         Media report on a Mentally Ill Inmate’s Action to Get out of Solitary Confinement

Date of Report: 17th May 2012

Key Terms:  Solitary Confinement, Prison Discipline


The applicant is a mentally ill inmate currently in isolation at the Colorado State Penitentiary and has been deemed for more than a decade to be too dangerous to be amongst other offenders. The applicant contends that prolonged solitary confinement is making his psychiatric conditions worse, which results in misbehaviour that warrants further punishment.Despite administrative segregation including up to 23 hours a day alone in a cell, the practice has been defended as a fundamental part of security by prison officials. However, prisoners' rights advocates assert that putting mentally ill inmates in long-term solitary confinement amounts to cruel and unusual punishment and that isolation practices do not work. The applicant has appeared before a federal judge in Denver to ask for better medication for conditions said to lead to panic attacks and to be let outside three times a week.  Judgment is awaited in this case.

4.         Media Report on Virginia Inmates on Hunger Strike to Protest Prison Conditions

Date of Report: 23rd May 2012                   

Key Terms: Prison Conditions


A number of prisoners at Virginia’s only super-maximum prison (Red Onion State Prison) began a hunger strike this May, demanding an end to what they call poor conditions, on-going abuse and the practice of solitary confinement.  Attorneys and groups that represent the inmates say their clients resorted to the strike because no changes were made by the state after complaints about the use of isolation were lodged with the prison and the courts. Red Onion State prison has responded by stating that it ‘has always operated constitutionally and protected the Eighth Amendment rights of offenders, and has been nationally accredited by the American Correctional Association’ and ‘is continually looking at ways to improve its operations and to enhance management of offenders by applying science as it evolves in the field of corrections’. The hunger strike comes months after a group of lawmakers visited the prison and called on officials to stop the use of solitary confinement, especially for the mentally ill. Nearly 500 inmates at Red Onion spend 23 hours a day in a cell, do not shower daily and have limited recreation. Some prisoners, including those with mental illnesses, have been kept in isolation for years, inmates and lawyers say.

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