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IPRT Prison Law Bulletin: No. 8 - November 2012

Introduction

Welcome to the eighth in the series of IPRT’s Prison Law Bulletins and our second monthly bulletin. In the past month, IPRT has seen a significant increase in the number of solicitors and barristers contacting us in relation to ongoing legal actions. We are greatly encouraged that this reflects a growing volume of prison litigation. If you feel that IPRT can be of assistance to you in relation to any area of your prison work, or if you would like to keep us informed about important current litigation, please contact Liam Herrick at lherrick@iprt.ie

This month, we would particularly like to thank Gareth Noble of KOD Lyons for providing the note on his two recent cases concerning St. Patrick’s. We would be delighted to receive any information about cases that you have been involved in that may be of more general interest to colleagues.

IPRT also held the latest in our series of Prison Law Seminars on October 22nd on the theme of Parole Reform, with presentations by Tony Kelly of Taylor Kelly in Glasgow and James Mehigan BL of Tooks Chamber in London. IPRT also launched our Position Paper on Parole Reform at that event. Full details and papers are available here. Following that seminar, we have been contacted by a number of practitioners about current cases relating to the parole and temporary release systems and we believe that this areas is likely to be subject of significant litigation in the near future.

Once again we would like to thank Matthew Kenny of Sheehan and Partners (editor), and Edward Keegan of UCD and Thomas Mahon of NUI Galway (contributors). We are also grateful to the Public Interest Law Alliance for their continuing support and assistance producing the Prison Law Bulletin series.

A: Recent Irish decisions

1. The Attorney General v O’Gara [2012] IEHC 179

Date of Delivery: 01/05/2012

Keywords: Prison Conditions (in United States)

http://www.bailii.org/ie/cases/IEHC/2012/H179.html

The Respondent argued that his extradition would amount to a breach of his constitutional rights and/or his rights under the European Convention on Human Rights in that the requesting State, the United States, does not observe the same norms as this jurisdiction in relation to the treatment of prisoners. In particular, it was argued that the conditions of imprisonment in the requesting state include the systematic use of prison rape by other prisoners and that if extradited the respondent will be exposed to an unacceptable risk of being raped whilst in custody. It was also argued that the conditions of imprisonment in the requesting state include an unacceptable exposure to violence and death within the prison system largely by virtue of the existence of prison gangs within the prison system of the requesting state.

Mr. Justice Edwards found that this case could be characterised as being based upon general criticism of the American prison system and its human rights record with regard to the treatment of prisoners, particularly as it is perceived in some quarters both in the USA and on this side of the Atlantic. According to the Court, that alone is not enough to justify that the respondent is at real risk. The Court claimed it was disposed in all the circumstances to dismiss the objections to the respondent's extradition.


2. St. Pats Cases (October)

Keywords: Young Offenders

Following on from the highly significant report into prison conditions in St Patrick's by Judge Reilly (see below, Gareth Noble of KOD Lyons Solicitors acted in the High Court on behalf of two young people detained in St Patrick's Institution by way of Article 40 illegal detention proceedings, both of which were ultimately settled by the State.

The first challenge arose out of the prison's interpretation of committal warrants holding the Applicant which referred to consecutive sentences being imposed, but which referred to proceedings on a date in which the Applicant had not been before the District Court. The prison's view was that they would interpret the sentence as dating from the day on which the sentences were imposed. It was later accepted by the State that the warrants were bad on its face and not capable of any alternative interpretation. The case reaffirms the importance of the principle that any person being detained can only be done on foot of clear and unambiguous authority from the courts and that it is not open to prison officials to attempt to fill any gaps which may exist in relation to such difficulties. Mr Justice Hogan ordered the release of the Applicant as he had valid sentences imposed by the District Court.

The second matter involved a seventeen year old Applicant detained by the Circuit Court and sent to St Patrick's Institution. Upon arrival the Applicant had given the prison his age as being eighteen years old and notwithstanding the fact that this was contradicted by the warrants from the court and by correspondence from his solicitor Mr Noble on his behalf, he was placed and maintained in a cell with an adult prisoner. Of much more significance however was the fact that he was placed in a protective regime which meant he was locked in his cell for twenty three hours a day with little access to education or other facilities. No basis for placing him in protection had been given to him or his legal advisers. The Applicant, a member of the travelling community, had never been in St Patrick's previously and there was no suggestion that he was either a risk to himself or others, or that anyone had been deemed a risk to him. The matter didn't proceed to full hearing in circumstances where the State agreed to remove him from protective custody. The case highlights once again the unsuitability of placing children in an adult prison setting and also the criteria by which detainees are placed on protection without clear and valid reasons for so doing.

3. Media Reporting on St. Patrick’s

Keywords: Young Offenders

Date: 19/10/2012
A summary of coverage on the Inspector of Prisons report on St. Pats is available on the IPRT web site at http://www.iprt.ie/contents/2438

Date: 28/09/2012
www.irishexaminer.com/ireland/30-of-st-pats-inmates-on-protection-and-locked-up-for-over-20-hours-a-day-209177.html
This article brings attention to the fact that almost one third of young offenders in St. Patrick’s Institution are "on protection" and most of those are locked up for more than 20 hours a day.

Date: 20/09/2012
http://www.irishexaminer.com/ireland/young-offenders-prison-is-nations-most-violent-jail-208202.html
This article reports that St. Patrick’s has more than twice the number of inter-prisoner assaults as Mountjoy, despite having a population only one third of the size.

4. Media Report on conviction in prison riot case

http://www.breakingnews.ie/archives/2012/1025/ireland/five-sentenced-for-part-in-violent-mountjoy-riot-571870.html

Date: 26/10/2012

Key words: Prison Discipline; Protection; Solitary Confinement
This article reports on a recent trial relating to a riot in Mountjoy, but also includes interesting information on how one prisoner’s previous legal challenge to conditions of detention was taken into account in sentencing.


5. Media Report on Mandatory Sentences Bill

http://www.irishtimes.com/newspaper/breaking/2012/1005/breaking29.html

Date: 5/10/2012

Keywords: Sentencing

This article discusses the Government’s rejection of Fianna Fáil’s Bill to impose mandatory prison sentences on people convicted of assault on emergency workers while on duty.


6. Media reporting sentencing

http://www.irishexaminer.com/ireland/ad-hoc-rules-need-reform-208785.html

Keywords: Sentencing

Date: 26/09/2012

This article opines that the discrepancies in the lengths of sentences which Judges deliver leads to a reported lack of faith in the justice system from some.


B. United Kingdom case law

1. R (on the Application of NM) v Secretary of State for Justice [2012] EWCA Civ 1182

Date of Delivery: 12/09/2012

Keywords: Inhuman or degrading treatment; Investigations; Disability; Sexual Assault

http://www.bailii.org/ew/cases/EWCA/Civ/2012/1182.html

The Court of Appeal (Civil Division) found that a judge had correctly concluded that a prison had conducted an adequate investigation into a sexual assault on a prisoner with learning difficulties where the prisoner had been adequately assisted throughout the investigation and had the option of bringing criminal proceedings against the perpetrator or civil proceedings against the state.


2. R (on the application of Adetoro) v Secretary of State for Justice [2012] EWHC 2576

Date of Delivery: 26/09/2012

Keywords: Parole Board; Prisoner Transfer; Life Imprisonment

http://www.bailii.org/ew/cases/EWHC/Admin/2012/2576.html

It was decided that where the Secretary of State had made a decision accepting the Parole Board's recommendation that a Category A prisoner should be moved to open conditions, he could not thereafter issue a different decision, absent any change in circumstances or any new evidence, without inviting submissions from those affected.


3. Media Report on Abu Hamza’s Final Attempt to Avoid Extradition

http://www.guardian.co.uk/world/2012/oct/05/abu-hamza-loses-extradition-appeal

Date: 05/10/2012

Keywords: Extradition

It has been reported by the Guardian that the High Court of the United Kingdom has denied Abu Hamza and four other individual’s final attempts at avoiding extradition to the United States, where they are facing terrorism charges. The appeal came after a recent decision of European Court of Human Rights not to grant the five an appeal in respect of a previous judgement of the court, in which it was ruled that conditions in a supermax prison in the United States did not constitute a breach of Article 3 of the European Convention of Human Rights. Lawyers for the five had appealed to the High Court on a number of grounds, all of which were denied. This cleared the path for the five to be extradited to the United States immediately thus ending an eight year saga.


4. Media Report on deaths in custody

http://www.guardian.co.uk/uk/2012/oct/01/deaths-custody-lesson-ignored-charity

Date: 01/10/2012

Keywords: Prison Conditions

Deaths in custody in English and Welsh prisons are rising, with the annual number of fatalities climbing from 155 in 2006 to 189 last year. This article discusses how coroners reports aimed at preventing further deaths have little impact as there is no official body to enforce them.


5. Media Report on homophobia being rife in UK prisons

http://www.guardian.co.uk/society/2012/sep/25/homophobia-rife-uk-prisons

Date: 25/09/2012

Keywords: Prison Violence

This article outlines how gay prisoners face a constant threat from homophobic prison culture and often receive little support from the authorities. While it is noted that attitudes have changed, a “macho culture” can still prevent staff helping victims of homophobic abuse in prison.

C. ECHR Cases

1. Bortkevich v. Russia (no. 27359/05)

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113544

Judgment Date: 02/10/2012

Relevant Article(s): 6

Keywords: Prisoner complaints procedure

The applicant alleged a breach of the Convention in respect of Article 6 (1). The applicant alleged that the domestic courts had failed to ensure his presence at hearings in civil proceedings he had brought in respect of the conditions of his detention. The Court found in favour of the applicant, ruling that the failure was in fact a breach of Article 6(1) of the Convention. He was awarded EUR 1,500 in non-pecuniary damages.

2. Titarenko v. Ukraine

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113273

Judgment Date: 20/09/2012

Relevant Article(s): 3, 5, 6, 8, 13

Keywords: Prisons Conditions, Prison Visits

The applicant, who was a remand prisoner, alleged a number of breaches of the Convention in respect of Article’s 3, 5, 6, 8 and 13. He alleged, in particular, that the conditions of the detention facility were of such a low standard they constituted a breach of Article 3. He further claimed that during the time of his criminal proceedings, he had been denied family visits, in contravention of Article 8 of the Convention. The applicant also alleged breaches of Article 13 on the basis that he had no effective remedy under domestic law for the alleged breaches under Article’s 3 and 8. The Court found in favour of the applicant in respect of his claims under Article 3, Article 8 and Article 13 in conjunction with Article 3. He was awarded EUR 10,000 in non-pecuniary damages and EUR 1,000 in costs and expenses.

3. Dochnal v. Poland

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113139

Judgment Date: 18/09/2012

Relevant Article(s): 5, 8

Keywords: Prison Visits

The applicant, who was a remand prisoner, alleged a number of breaches of the Convention in respect of Article’s 5, 8 and 18. In particular, the applicant claimed that the prosecuting authorities had effectively blocked his contact with his family. It was found by the Court that the prosecuting authorities had repeatedly denied the requests of the applicant’s wife to visit him, without giving any reasoning or an opportunity for appeal. The court further held that after she was a witness in a case involving the applicant the prison had blocked any attempts by her to visit him on this ground. The Court ruled that this constituted a breach of the applicant’s rights under Article 8. The Court also found a number of breaches of the Convention in respect of Article 5. The applicant was awarded EUR 8,800 in non-pecuniary damages and EUR 3,300 in costs and expenses.

4. Georgian Presidential Election Overshadowed by Prison Scandal

http://www.themoscowtimes.com/news/article/georgia-votes-in-election-overshadowed-by-prison-scandal/469105.html

Date: 02/10/2012

It has been reported in the Moscow Times that the recent presidential election in Georgia has been overshadowed by a scandal concerning the treatment of Georgian prisoners. In the build-up to the election two Georgian news channels had broadcasted footage of the torture, physical abuse and sexual abuse of prisoners by prison guards. This led to mass protests taking place in Georgia, and calls for the current President to stand down. It has been reported that many of those who had voted for the opposition had done so in reaction to the videos, stating they could not vote for a regime that had allowed this abuse to occur.

5. Turkish Prison Guards Receive Life Sentence over the Death of Activist 

http://www.upi.com/Top_News/World-News/2012/10/02/Prison-guards-get-life-for-torture/UPI-77671349196712/

Date: 02/10/2012

It has been reported by UPI.com that two prison guards and their superior are facing life in prison for torturing and murdering an inmate. The inmate was Engin Ceber, a former human rights activist in Turkey. A number of other guards, police officers and a physician, who had been found to falsify medical reports, are also facing prison over the death of Ceber. Amnesty International has welcomed these convictions, stating that, in Turkey, public officials are rarely brought to justice for the role they play in such abuse.

D. United States of America

1. Report on the private prison business

http://www.guardian.co.uk/commentisfree/2012/sep/27/lawmakers-lobbyists-keep-lock-private-prison-business?INTCMP=SRCH&goback=.gde_4000389_member_169644297

Date: 27/09/2012

Keywords: Prison Regimes

This article reports that America's three largest private prison companies, the Corrections Corporation of America (CCA), GEO Group, Inc. and Management and Training Corp. spent about $45 million over the past 10 years in lobbying state and federal governments. This has resulted in their profits soaring after scoring more government contracts.

2. Media Report on how Pennsylvania is going to handle life terms for juveniles

http://www.post-gazette.com/stories/local/state/other-states-watch-how-pennsylvania-handles-life-terms-for-juveniles-654537/ 

Date: 23/09/2012

Keywords: Sentencing; Young offenders

In light of the U.S. Supreme Court decision in Miller v Alabama (an abstract of this case can be found in the Sixth edition of this Bulletin) in June that struck down lifetime sentences for minors, Pennsylvania’s Supreme Court must determine how to deal with the 470 people who are serving life without parole sentences for crimes they committed before their 18th birthday.