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IPRT Prison Law Bulletin: No. 11 - February 2013

Introduction

Welcome to the eleventh 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:

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:

  • Irish media report on prisoners granted leave by the High Court to challenge various decisions of the Irish Prison Service, the first case relating to alleged wrongful punishment and unjust procedures and the second aimed at reversing the transfer from Arbour Hill prison to Wheatfield prison.
  • An English case – Tancock – in which a child sex offender on an indeterminate life sentence claimed that the Secretary of State for Justice failed to make reasonable adjustments to provide him with an appropriate offending behaviour course on account of his learning disability.
  • A ECtHR “pilot judgment” in the case of Torregiani, where the applicants successfully established a breach of Article 3 of the ECHR against the Italian authorities due to overcrowding, inadequate personal space, lack of hot water and inadequate lighting in the cells.
  • UK media reports on the over-use of imprisonment for women offenders, the likely closure of vital women’s centres and the recent decision of the Court of Appeal on the the lack of proportionality in current scheme for retaining criminal records.

A: Recent Irish Developments

1. Media Report on the granting of leave to challenge the Governor of Wheatfield Prison and the Irish Prison Service, seeking an order quashing the decision to punish him

Date: 15/01/13

Keywords: Prison Punishment Process, Lack of Fair Procedures

http://www.independent.ie/national-news/courts/prisoner-says-fellow-inmate-forced-him-to-particpate-in-disturbance-3354469.html

This article reports that a prisoner at Wheatfield prison was granted leave at the High Court to challenge the punishment (including loss of phonecalls, loss of recreation time and loss of all visits except for professional visits for a period of 42 days) imposed on him following his alleged involvement in a riot on Christmas Day. He claimed that he was wrongly and unfairly punished and given no opportunity to put forward his version of events at the prison disciplinary hearing.

2. Media Report on a convicted sex offender who brought a High Court challenge aimed at reversing the decision to transfer him from Arbour Hill prison to Wheatfield prison

Date: 16/01/13

Keywords: Sex Offender Programme, Prison Transfer, Lack of Fair Procedures

http://www.independent.ie/sport/sex-offender-challenges-decision-to-transfer-him-to-another-prison-3355543.html

This article reports that a prisoner serving a 20-year sentence for aggravated sexual assault has been granted leave at the High Court to challenge his transfer from Arbour Hill Prison where he was participating in the Building Better Lives sex offender programme to Wheatfield prison. Arbour Hill is the only prison with a dedicate sex offender programme. In his action against the Irish Prison Service and the Minister for Justice, the applicant is seeking an order quashing the decision to transfer him from Arbour Hill to Wheatfield, as well as various declarations from the court including that the decision to transfer him breaches his rights to natural and constitutional justice, and that he is entitled to reasons for his transfer.

B. United Kingdom

1.  R (on the application of Tancock) v the Secretary of State for Justice [2012] EWHC 3225 (Admin)

Date of Delivery: 24/10/2012

Keywords: Learning Disabilities, Indeterminate Life Prisoners, Reasonable Adjustments, Sex Offenders

http://www.crimeline.info/case/r-tancock-v-secretary-of-state-for-justice-2012-ewhc-3225-admin

The claimant argued that the Secretary of State had failed to make reasonable adjustments in relation to the claimant's learning disability, pursuant to the Equality Act 2010, and that such a failure is a breach of the defendant's public law duty to provide the claimant with the means by which he might demonstrate a reduction in the risk he poses to the public.

The issue was whether the claimant was being denied access to appropriate offending behaviour treatment or courses by virtue of the imposition of a provision that requires him to be capable of working in a group setting.

The claim was dismissed as it could not be demonstrated that the Secretary of State was failing to make reasonable adaptations to the arrangements made for delivering such offending behaviour treatment to someone in a position of the claimant or was falling short of the public law duty.

2. David Oakes and Others v R [2012] EWCA Crim 2435

Date of Delivery: 21/11/2012

Keywords: Sentencing, Life Imprisonment

http://www.bailii.org/ew/cases/EWCA/Crim/2012/2435.html

Three out of five of the appellants had been convicted of murder and two of rape. In four of the cases whole life terms were ordered, and in one of the cases of murder the minimum term was assessed at 30 years. The appellants all argued that a whole life order could never be appropriate; alternatively, that the sentence imposed had been inappropriate in their cases.

Until relatively recently, the Secretary of State decided the minimum term to be served by a defendant who is subjected to a sentence of life imprisonment. This is now a matter for the sentencing judge whose jurisdiction is conferred by the Criminal Justice Act 2003, which allows judges to order a whole life minimum term, a jurisdiction of last resort in cases of exceptional criminality.

It was held that the imposition of whole life orders for extremely serious crimes, under the Criminal Justice Act 2003 Sch. 21 para. 4 did not contravene the European Convention on Human Rights 1950.

It was stated that the Strasbourg Court has allowed for different answers to the question of what constitutes a just and proportionate punishment. Provided that the sentencing court has reflected on mitigation properly available to the defendant, a whole life order imposed as a matter of judicial discretion as to the appropriate level of punishment and deterrence following conviction for a crime of utmost seriousness does not constitute “inhuman or degrading punishment” for the purposes of Article 3.

3. X (South Yorkshire) v Secretary of State for the Home Department [2012] EWHC 2954 (Admin)

Date of Delivery: 24/10/2013

Keywords: Reintegration, Penology, Sex Offenders Register

http://www.bailii.org/ew/cases/EWHC/Admin/2012/2954.html

The offender had twice been convicted of sex assaults against children. He was on the sex offenders register for life subject to a future right to seek de-registration. In this case, the offender challenged the Government’s Child Sex Offender Disclosure Scheme (CSOD), which is a non-statutory scheme police forces in the UK have been free to adopt since 2010.   The court granted a declaration that the Guidance be amended to incorporate a requirement that the decision maker consider, in the case of any person about whom disclosure might be made, whether that person be asked if he wishes to make representations.

4. Media Report on disabled prisoner securing injunction to prevent his return to jail

Date: 02/01/2013

Keywords: Medical Treatment, Prison Conditions

http://www.guardian.co.uk/society/2013/jan/02/disabled-daniel-roque-hall-injunction-return-prison

This article highlights how a severely disabled convicted prisoner who requires round-the-clock treatment won an injunction preventing the prison service from returning him to jail. The applicant had been sentenced to three years' imprisonment in July of 2013 after admitting smuggling 2.5kg of cocaine in his wheelchair back from a holiday in Peru.

5. Media report on prison capacity in England and Wales

Date: 10/01/13

Keywords: Conservatives Prison Policy, UK Prison Capacity

http://www.guardian.co.uk/commentisfree/2013/jan/10/chris-grayling-probation-jails

This article opines upon the change of direction of the UK Government on the issue of prison reform.  The former policy of the Conservative Government that prisons in their current form do not work for either victim, society or offender appears to be replaced by rhetoric that prisons work and large prisons should be built.

6. Media Report of a serving prisoner being provided with a lie detector test and allowed to post his taking of the test on You-Tube to assist in his bid to over-turn a conviction.

Date: 13/01/13

Keywords: Lie Detector Test, You-tube

http://www.independent.co.uk/news/uk/crime/convicted-killer-filmed-passing-lie-detector-test-8449900.html

This article reports that the Scottish Prison Service permitted a serving prisoner to take a lie detector test and film it and post it on You Tube.  It is reported to be the first time a prisoner has taken such a test in a British prison and indeed posted same on You Tube.

7. Media Report on the Conservative Government’s proposals for ‘Super-Prisons’ in England and Wales.

Date: 13/01/13

Keywords: Conservative’s Prison Policy, Local Prisons v. Super Prisons

http://www.guardian.co.uk/commentisfree/2013/jan/13/penal-policy-chris-grayling-titanic-distraction

This article compares the views of the Conservative Party whilst in opposition to ‘Super-Prisons’ and their views now that they are the Government.  It reports that the Conservatives appear to have changed their view that small local prisons are more suitable to large prisons with a capacity of approximately 2,500.  In opposition the Conservatives stressed that the crucial rehabilitative function of prisons was "most unlikely to be achieved in enormous Titan prisons".

8. Media Report on the reading group in Wandsworth jail which offers offenders a welcome escape from their restricted lives

Date: 15/01/2013

Keywords: Reading Group, Rehabilitation

http://www.guardian.co.uk/society/2013/jan/15/wandsworth-prison-reading-group

This article reports that two academics, Jenny Hartley and Sarah Turvey, run a volunteer reading group in a number of prisons. The report discusses the healthy interaction between prisoners and volunteers within the context of the reading group and how the prisoners learn to respect others' opinions, to express themselves, and to overcome aggression.

9. Media Report on failure of UK to comply with international obligations regarding women prisoners

Date: 27/01/2013

Keywords: Women offenders, UN Bangkok Rules

http://www.guardian.co.uk/society/2013/jan/27/women-wrongly-imprisoned

This article reports that Women in Prison issued a report about how the UK which signed up to the Bangkok Rules, the UN standards for the treatment of women offenders continues to imprison large numbers of women who pose no threat to society, failing to take into account the human rights of children affected by their mothers' imprisonment.

10. Media Report on the importance of women’s centres and their planned cuts

Date: 27/01/2013

Keywords: Women offenders, Women’s Centres, UK Criminal Justice Policy

http://www.guardian.co.uk/society/2013/jan/27/women-in-prison-rehabilitation-chris-grayling

This article reports that the Ministry of Justice's women's strategy unit has been dismantled, the inter-ministerial group has been axed, a proposed women's justice board has not materialised, funding for vital women’s centres is short term and the fragile network of community support is under threat.

11. Media Report on the potentially “landmark” decision about current scheme for retaining criminal records

Date: 29/01/2013

Keywords: Criminal Records, Proportionality

http://www.guardian.co.uk/commentisfree/2013/jan/29/criminal-records-appeal-court-ruling

This article reports that the Court of Appeal held that the current criminal record checks procedure in the UK, which requires all convictions and cautions to be revealed, is disproportionate to the legitimate policy aim of protecting children and vulnerable adults. The Home Office is appealing the decision to the Supreme Court.

C. European decisions and media reports

1. Čuprakovs v. Latvia (Application No. 8543/04)

Judgement Date: 18/12/12

Relevant Articles: 3

Keywords: Prison Conditions

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115301#{%22itemid%22:[%22001-115301%22]}

The European Court of Human Rights has recently ruled against Latvia under Article 3 of the Convention. The applicant alleged a number of breaches of Article 3 of the Convention in respect of the conditions to which he was exposed over a period of six months in the Prison Hospital at Central Prison in Riga. The conditions complained of included overcrowding, inadequate lighting, draughts creating low temperatures in the cell and inadequate sanitary conditions. The Court found that the cumulative effects of these conditions created a breach under Article 3 of the Convention. The applicant was awarded EUR 4,000 in non-pecuniary damages.

2. Jashi v. Georgia (Application No. 10799/06)

Judgement Date: 08/01/13

Relevant Articles: 3

Keywords: Medical Treatment

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115850%20#{%22itemid%22:[%22001-115850%22]}

The European Court of Human Rights has recently ruled against Georgia under Article 3 of the Convention. The applicant alleged two breaches of Article 3 of the Convention, claiming that he was not provided treatment for mental health issues, or treatment for cardiac and hepatic problems. The Court found that there had been no violation of Article 3 in respect of the treatment for cardiac and hepatic problems. The Court did, however, find a breach of Article 3 in respect of the failure of the Georgian authorities to provide the applicant with any meaningful psychiatric treatment. As a result, over a period of eight months, after the authorities had learnt of his psychiatric illness, the applicant had attempted numerous suicide attempts. He was awarded EUR 3,000 in non-pecuniary damages.

3. Torreggiani and Others v. Italy (Application no. 43517/09) not final

Judgment Date: 08/01/2013

Relevant Article: 3

Keywords: Overcrowding, Cell Size, Prison Conditions

http://hudoc.echr.coe.int/sites/eng-press/pages/search.aspx?i=003-4212710-5000451#{%22itemid%22:[%22003-4212710-5000451%22]}

This yet to be finalized “pilot judgment” of the ECtHR concerned the systematic problem of overcrowding in Italian prisons. With regard to the conditions in two specific prisons, Busto Arsizio and Piacenza, the applicants alleged that he had shared a 9 sq. m cell with two other prisoners, leaving them with 3 sq. m of personal space each. They complained of a lack of hot water and inadequate lighting in the cells.

The ECtHR found that the applicants’ living space had not conformed to the standards deemed to be acceptable under its case-law, referring to the standard recommended by the Committee for the Prevention of Torture in the case of Ananyev and Others v. Russia, nos. 42525/07 and 60800/08, 10 January 2012, in terms of living space in cells was 4 sq. m per person (§§ 144 and 145).

The lack of space endured by the applicants had been exacerbated by the lack of hot water over long periods, and inadequate lighting and ventilation in Piacenza prison. All these shortcomings, although not in themselves inhuman and degrading, amounted to additional suffering.  Although there was no evidence of any intention to humiliate or debase the applicants on the part of the State, the ECtHR held that owing to the length of their imprisonment the conditions of detention meant that they were subjected to “hardship of an intensity exceeding the unavoidable level of suffering inherent in detention.” There had, therefore, been a violation of Article 3 of the Convention.

The pilot-judgment procedure was “aimed primarily at ensuring the speedy and effective resolution of a systemic dysfunction and the introduction of effective domestic remedies in respect of the violations in question.” The ECtHR noted that overcrowding in Italian prisons did not affect the applicants alone, but rather the structural and systemic nature of overcrowding was evident from the declaration of a national state of emergency issued by the Italian Prime Minister in 2010.

While the Court was mindful that it was beyond its remit to dictate to States “their choice of penal policy or how to organise their prison systems, it nonetheless stressed the Recommendations of the Committee of Ministers of the Council of Europe inviting States “to encourage prosecutors and judges to make use of alternative measures to detention wherever possible, and to devise their penal policies with a view to reducing recourse to imprisonment, in order to tackle the problem of the growth in the prison population” (Rec(99)22 and Rec(2006)13).

The ECtHR called on the authorities to put in place, within one year, a remedy or combination of remedies providing redress in respect of violations of the Convention resulting from overcrowding in prison. It also ordered Italy to pay the applicants a total of 99,600 euros (EUR) in respect of non-pecuniary damage.

4. Mitrofan v The Republic of Moldova (Application No. 50054/07)

Judgment Date: 15/01/2013

Relevant Articles: 3, 6, 13

Keywords: Prison Conditions, Complaints Procedure

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-115874#{%22itemid%22:[%22001-115874%22]}

The ECtHR has recently ruled against Moldova under Articles 3, 6 and 13 of the Convention. The applicant in the case alleged that the conditions in which he was imprisoned were in breach of Article 3 of the Convention. The conditions complained of included overcrowding, a lack of ventilation and a lack of adequate food and a presence of parasitic insects. The applicant further alleged a breach of Article 13, alleging that there existed no effective domestic remedy where he could complain of the above conditions. Finding in favour of the applicant, the Court granted him EUR 5,000 in non-pecuniary damages and EUR 1,500 in costs and expenses. 

5. Media Report about concern of the Council of Europe Concerned over Cypriot Prisons

Date: 06/12/12

Keywords: Prison Conditions, Overcrowding, Ill-treatment

http://www.cyprus-mail.com/central-prisons/council-europe-concerned-over-central-prisons/20121206

It has been reported in the Cyprus Mail that a report of the Committee for the Prevention of Torture (CPT) of the Council of Europe, compiled in 2008, has recently been released. The report, which was highly critical of the Cypriot authorities’ attempts to respond to a number of recommendations following a 2004 visit, release was delayed by the Cypriot government. Such a delay is permitted by the rules guiding the work of the CPT, under which States have a final say on the publication of reports. The criticisms aimed at the Cypriot government included rampant overcrowding and ill-treatment. While the contents of the report are somewhat outdated, owing to the delay in its release; the Cyprus Mail reports that conditions have not improved. According to the Cyprus Mail, while Nicosia Prison housed 520 inmates at the time of the visit of the CPT in 2008, its current capacity is 700. This is despite the fact that its stated maximum capacity is 340. 

6. Media Report on Russia’s efforts to improve detainee rights record under ECHR guidance

Date: 09/01/2013

Keywords: Russian Prison Conditions, Pre-trial Detention, Overcrowding

http://rapsinews.com/judicial_analyst/20130109/265853623.html

A recent report by RAPSI has attempted to measure the progress made by the Russian authorities in response to a “pilot judgment” delivered by the European Court of Human Rights in 2012. The judgment, in response to a large volume of complaints over prison conditions in Russia, contained a number of recommendations to address the “recurrent structural problem” in Russia. These included less reliance on pre-trial detention, the introduction of realistic maximum capacities, improving in-cell sanitation and the introduction of effective preventative and compensatory remedies. The actions so far undertaken by the Russian authorities have centred on the pre-trial detention recommendation. This has included the establishment of a working group and a number of legislative initiatives. In addition, the Russian authorities have pledged to build 26 new remand centres by 2017, so as to alleviate overcrowding. Despite these plans, experts have questioned whether they will do anything to alleviate the inhumane conditions to which a large number of Russian prisoners are exposed on a daily basis. 

7. Media Report on a prisoner amnesty in Georgia.

Date: 13/01/13

Keywords: Ill-treatment, Prisoner Amnesty

http://www.bbc.co.uk/news/world-europe-21002185

This media report by the BBC illustrates the political division between the new Government in the opposition.  It is reported that the prisoner amnesty is a result of ill-treatment of prisoners during the previous administration.  The amnesty is reported to divide public opinion.

D. United States of America

1. Henderson et al. v Thomas et al.

Date of Delivery: 21/12/2012

Keywords: Discrimination, Health, Prison Conditions

http://www.aclu.org/hiv-aids-prisoners-rights/henderson-et-al-v-thomas-et-al

In this case, a federal judge ruled that the Alabama Department of Corrections can no longer discriminate against prisoners living with HIV by housing them separately from all other prisoners and categorically denying them equal access to prison rehabilitative programs. This ruling will allow prisoners living with HIV to have access to needed and appropriate services, and to the classes and training available to other prisoners.

2. Media Report on obese prisoner being granted clemency

Date: 17/12/2012

Keywords: Cruel and Unusual Punishment, Death Penalty

Click here to link

This article discusses how the Ohio Governor, John R. Kasich, avoided a decision about whether an inmate was too fat to be humanely executed by sparing him on the ground that he had poor legal representation in his original trial.

3. Media Report on plans to raise cap on prison numbers in California

Date: 16/01/13

Keywords: Prison Overcrowding, Law and Order Rhetoric

https://www.wsws.org/en/articles/2013/01/16/pris-j16.html

 This opinion piece discusses the gross over-crowding in prisons in California, comparing the political rhetoric of Governor Brown with the reported facts of prison over-crowding.  The report discusses dangers to prisoner safety that are an inevitable consequence and the law suits which follow.    It also discusses spiralling costs of enforcing such political rhetoric.

viewed here