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IPRT Prison Law Bulletin: No. 10 - January 2013

Introduction

Welcome to the tenth 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, we will continue to issue this Prison Law Bulletin on a monthly basis. This means that lawyers will receive shorter updates on Irish and international legal developments more frequently, 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:

  • Constantin Modarca v The Republic of Moldova - a judgment of the ECHR regarding prison conditions;
  • Media reports on older prisoners, temporary release and an inquest into the death of a heroin-addicted prisoner following ‘unstructured’ release.

A: Recent Irish Developments

1. Mc Auley v Governor of Mountjoy Prison

Date of Delivery: 29/11/2012

Keywords: Prison Rules

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/582b391e57afa20780257ac60055b2f0?OpenDocument

The appellant was the subject of two complaints, both of which are known in prison terminology as a “P 19”, (after the Form on which the complaint is written). They related to the possession of a mobile phone, which is a prohibited article for prison rule purposes. 

The appellant agreed that, in respect of each of the two admitted contraventions of prison rules he was liable to be sentenced to up to sixty days loss of privileges. However, he said that there was no power to defer the commencement of the fifty-six day period of loss of privileges imposed on the 11th September, 2012 to the 26th October of that year. He said that any power to defer a commencement of the period of loss of privileges would require having a specific and express statutory origin. He emphasised that the jurisdiction being exercised by the Governor was an entirely statutory jurisdiction and does not extend to any unspecified, unenumerated or implied powers.

The Supreme Court dismissed the appeal on the ground that the Governor’s action in deferring the commencement of the sanction is a necessary part of the jurisdiction he has as a result of Sections 12 and 13 of the Act of 2007. If necessary, the Supreme Court stated it would hold it to be a power implied by the nature and incidents of the powers he is expressly given under those provisions.

2. Allen v The Governor of St. Patrick’s Institution [2012] IEHC 517

Date of Delivery: 05/12/12

Keywords: Young Offenders, Sentencing

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/ed28bb58e3981f9880257ad7005b3741?OpenDocument

The Court was not satisfied that the applicant was lawfully detained in St. Patrick’s Institution as the District Court judge failed to comply with the statutory obligation to request a probation report. In this case, the District Court Judge was told by the solicitor for the applicant that the applicant would not cooperate with the Probation Service. Such information did not excuse the judge for failing to comply.

S. 99 of the Children Act 2001 imposes a mandatory obligation on a Court to obtain a probation report in respect of a child prior to imposing a sentence which involves a period of detention. In the absence of such a report, a court lacks jurisdiction to impose a custodial sentence. It was held that a probation report was an essential tool in formulating an appropriate sentence under the 2001 Act. It was further held that section 99 mandates the requesting of a report irrespective of the attitude or wishes of a child or his solicitor.

3. Kane v The Governor of the Midlands Prison [2012] IEHC 511

Date of Delivery: 10/12/12

Keywords: Procedural Policy

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/e7dd9ff04c497c3f80257ad100584e9a?OpenDocument

This case deals with the informal arrangement whereby prisoners are entitled to complain to the High Court as to their detention, or the conditions thereof. Under that procedure, if it is necessary, the High Court will make enquiries as to the circumstances of the prisoner and then issue a ruling. The major complaint of the applicant was that in order to initiate this procedure he must spend €40 on getting a commissioner for oaths to attest to the swearing of an affidavit. However, it was held that it was never the case that a sworn affidavit was required for this form of application. Instead, communications are made by way of letter and these are sometimes accompanied by a detailed written statement as to why the prisoner feels that his rights are being denied or that such benefit as he is entitled to under the prison rules are being withheld from him.

4. Media Reports on the fatal overdose of a man following his ‘unstructured’ release from prison and the inquest into his death

Dates: 30/11/2012 and 05/01/13

Keywords: Temporary Release

http://www.irishtimes.com/newspaper/ireland/2012/1130/1224327301285.html

http://www.independent.ie/national-news/addicts-forced-to-detox-at-greater-risk-of-overdose-warns-doctor-3342983.html

http://www.irishtimes.com/newspaper/ireland/2013/0105/1224328461319.html

These articles examine the case of homeless man with mental health problems who died shortly after his temporary release from prison. It was stated that he should not have been discharged in such an “unstructured” fashion. At the inquest, the practice of forced detoxification of heroin-addicted prisoners was also condemned on the basis that it increases their risk of relapse, overdose and death.

5. Media Report on how sniffer dogs have reduced the amount of drugs being smuggled into prison

Date: 03/12/12

Keywords: Prison Security

http://www.irishexaminer.com/ireland/sniffer-dogs-nose-out-smuggled-prison-drugs-215784.html

This piece highlights figures from the Irish Prison Service showing that fewer than 100 visitors to jails have been caught trying to smuggle drugs since the start of last year.

6. Media Report on Older Prisoners

Date: 04/01/12

http://www.irishtimes.com/newspaper/ireland/2013/0104/1224328422955.html

This article documents the stark rise in the number of older prisoners being held in Irish jails has (a 70 per cent increase over the past six years), which has resulted from the solving of more historical crimes by the gardaí and the imposition of longer sentences by the judiciary.

7. Media on Temporary Release at Christmas

Dates: 22/12/12 and 04/01/13

http://www.irishtimes.com/newspaper/ireland/2012/1222/1224328121633.html

http://www.herald.ie/news/all-prisoners-go-back-to-jail-after-release-for-christmas-3342491.html

These articles report on the increase in temporary release numbers over the Christmas period - 226 offenders, compared with 160 and 134 in the two previous years.

B. United Kingdom

1. Media Report on whole-life prison sentences

Date: 05/12/12

Keywords: Sentencing

http://www.guardian.co.uk/law/2012/dec/05/whole-life-prison-sentence-human-rights

In light of three British lifers launching an appeal to the European Court, this article examines whether whole-life prison sentences could be seen as an infringement of human rights.

C. Northern Ireland

1. Media Report on bullying claims not being probed

Date: 20/11/2012

Keywords: Prison Conditions

http://www.independent.ie/breaking-news/national-news/prison-bullying-claims-not-probed-3300322.html

This article highlights an inquiry which found that prison officials did not adequately investigate the bullying of a remand prisoner in Northern Ireland, accused of sex offences involving a minor, who took his own life.

2. Media Report on body scanners being proposed for prisons

Date: 27/11/2012

Keywords: Prison Security

http://www.independent.ie/breaking-news/national-news/body-scanners-proposed-for-prisons-3308770.html

This article discusses how full body scanners using X-ray radiation could be introduced in Northern Ireland's prisons as a UK first.

D. European Developments

1. Constantin Modarca v The Republic of Moldova (Application no. 37829/08) 

Judgment Date: 13/11/2012

Relevant Article: 3

Keywords: Prison Conditions

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114519#{%22itemid%22:[%22001-114519%22]}

The applicant claimed a breach of Article 3 of the Convention in respect of the conditions in a Moldovan prison. The applicant alleged, in particular, that there was severe overcrowding, combined with a lack of in-cell ventilation and poor quality food. The Court found that, as the various cells in which the applicant was held offered less than 4m sq. living space, combined with the fact that the applicant was confined to his cell for 23 hours a day, there had been a breach of Article 3. As the applicant had not claimed any damages, but rather a wish to be released from prison so that he could care for his parents, he was awarded no compensation by the Court.

2. Ciorap (no. 3) v. the Republic of Moldova (Application no. 32896/07)

Judgment Date: 4/12/2012

Relevant Article: 3

Keywords: Prison Conditions

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115006#{%22itemid%22:[%22001-115006%22]}

The applicant claimed a breach of the Convention in respect of Article 3. The applicant had previously succeeded in a claim before the Court in respect of the conditions in which he had been imprisoned. The applicant alleged, in particular, that those conditions had persisted in the year following the judgment of the Court. The applicant further alleged that the State had failed to supply him with food necessitated by his dietary requirements. The Court found that the failure of the State to supply the applicant with even the minimum level of food necessitated by his dietary requirements had put the health of the applicant at risk, and was in contravention of the States obligations under Article 3. Further, as there was no evidence that the conditions in which the applicant had been held following the original judgment of the Court had changed, this also constituted a breach of Article 3. The applicant was awarded no compensation as his claim for just satisfaction had been received after the expiry of the time-limit to do so. 

3. Kasperovičius v. Lithuania(Application no. 54872/08)

Judgment Date: 20/11/2012

Relevant Article: 3

Keywords: Prison Conditions

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-114653#{%22itemid%22:[%22001-114653%22]}

The applicant alleged a breach of the Convention in respect of Article 3. The applicant alleged, in particular, that he had been detained in a cell without proper ventilation and only a bucket for a toilet. The Court found that, despite the fact the applicant had only been held in these conditions for seven days, the conditions reached the minimum level of severity required to find a breach of Article 3, distinguishing the case from the earlier judgement in Karalevičius. In the Karalevičius case, the Court had found that six days imprisonment in poor conditions could not reach the minimum level of severity required to find a breach of Article 3. The Court found that, in the immediate case, the in-cell sanitary conditions combined with a lack of ventilation in this case meant that a 7 day period would be sufficient so as to reach the minimum level of severity required by Article 3. The applicant was awarded EUR 3,000 in non-pecuniary damages.

4. Crowding and austerity strain Portugal’s prisons

Date: 26/11/2012

http://www.nytimes.com/2012/11/27/world/europe/prison-hardships-rise-in-portugal-as-economic-crisis-drags-on.html

The New York Times reports that the economic downturn experienced in Portugal over the past five years has put a massive strain on the Portuguese prison system. This has not only been the result of Government spending cuts, but also a sharp increase in the number of people being imprisoned. According to the report, the resultant overcrowding in deteriorating prisons has made life inside Portuguese prisons intolerable. According to inmates, this has led to an increase in the abuse of prisoners by guards, while the president of one of the Guards unions, Júlio Rebelo, claims that assaults on guards have risen 200% in the past three years.

5. Georgian Presidential Election Overshadowed by Prison Scandal

Date: 02/10/2012

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

The Moscow Times reports 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.

E. United States of America

1. Media Report on New York State being sued over use of isolation in its prisons

Date: 06/12/12

Keywords: Solitary Confinement

http://www.nytimes.com/2012/12/07/nyregion/new-york-state-sued-over-use-of-isolation-in-prisons.html?ref=prisonsandprisoners&_r=1&

New York's largest civil liberties group filed a federal lawsuit against state corrections officials on behalf of a convicted rapist who spent 26 months in solitary confinement after a non-violent offence in his cell.

2. Media Report on the use of compassionate release

Date: 08/12/12

Keywords: Sentencing

http://www.nytimes.com/2012/12/07/nyregion/new-york-state-sued-over-use-of-isolation-in-prisons.html?ref=prisonsandprisoners&_r=1&

The 1984 Sentencing Reform Act gives federal courts the power to reduce sentences of federal prisoners for “extraordinary and compelling reasons,” like a terminal illness. This article highlights a new report that the Bureau of Prisons and the Justice Department, which oversees the bureau, have not just failed to make use of this humane and practical program, but have crippled it.

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