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IPRT Prison Law Bulletin: No. 12 - March 2013

Introduction

Welcome to the twelfth 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:

  • The Irish case of Byrne which concerns access to appropriate medical treatment in the prison context.
  • The amendment to the Prison Rules 2007, which outlines the procedures to be followed with regard to the investigation of ‘Category A’ complaints.
  • The publication of the Report of an Investigation into the circumstances surrounding the death of Shane Rogers at Cloverhill Courthouse Complex by the Inspector of Prisons.

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A: Recent Irish Developments

1. Byrne v Governor of Mountjoy Prison [2013] IEHC 33

Date of Delivery: 28/01/2013

Keywords: Prison Conditions, Medical Treatment

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/11e99db5060ed47780257b0a00342394?OpenDocument

The prisoner claimed that his medical condition was critical and that the response of the prison authorities was so inadequate that it endangered his health to the point of putting his life in peril. The applicant applied to be released under article 40.4.2 of the Constitution.

The prisoner had undergone a surgical laparotomy for bladder augmentation which has resulted in the consequence of adhesions in the bowel and digestive complications.

According to the Court, a person confined to prison, whether on remand or under sentence, is obliged to suffer the deprivations that necessarily follow from that loss of liberty but is entitled to reasonable medical attention such that will enable him or her to be treated for whatever physical or psychological condition that would be treated were the person at large in the community.

In this case, the parties indicated that they had reached certain arrangements for the care of the prisoner and that the application for habeas corpus was being withdrawn. The Court refused to look at these arrangements or approve the details as this would go beyond the function of the High Court when hearing an application for habeas corpus. 

2.  Amendment to the Prison Rules 2007 regarding ‘Category A’ complaints

Date: 22/01/13

Keywords: Prison Rules, Category A Complaints, Independent Investigation

http://www.justice.ie/en/JELR/S.I.%20No.%2011%20of%202013%20-%20Prison%20Rules%20%28Amendment%29%202013.pdf/Files/S.I.%20No.%2011%20of%202013%20-%20Prison%20Rules%20%28Amendment%29%202013.pdf

On 22 January 2013 an important amendment to the Prison Rules 2007 was published, detailing the new way in which ‘Category A’ complaints by prisoners will be addressed by external investigators who report to the Inspector of Prisons.  Category A complaints are defined as “ill treatment, racial abuse, discrimination, intimidation, threats or any other conduct against a prisoner of a nature and gravity likely to bring discredit on the Irish Prison Service” in Rule 57B(1)(ii).  The amendments contain considerable detail with regard to the steps to be taken in documenting the complaints, preserving the evidence, (Rules 57A +B), identifying witnesses, the timeline for investigation, the requirement of all persons (prisoner, prison staff, governor etc) to co-operate with the investigative team and the way in which a finding by the investigating team may be used in disciplinary proceedings against a prison officer or prisoner (Rule 57 B 10(d)).

In relation to Category A complaints, it is significant that Rule 57B (2) imposes a duty to report as follows, including on prisoners to whom a complaint e.g. of assault or intimidation is made: “It shall be the duty of every prisoner, prison officer and other member of prison staff whether engaged under a contract of employment or a civil servant, to whom a complaint is made, to notify the Governor of any such complaint to which this Rule applies.” Rule 57B 6 (p 5) provides that disciplinary proceedings may be instituted before appointment or report of the investigation team. Significantly, Rule 57B 10 (f) provides that the “reassignment of duties or suspension from duty on full pay shall not be regarded as a disciplinary action.”

Rule 57B (5) which deals with the issue of “vexatious” complaints: “The Director General may decide not to appoint an investigation team if he or she is satisfied that the complaint is vexatious, without foundation or falls outside the scope of this Rule. If such a decision is made the Director General shall document the reasons for the decision and arrange for the complainant, the Governor and the Inspector of Prisons to be advised of the decision and the reasons for the decision.”

3. Publication of the Inspector of Prisons’ investigation into the death of Shane Rogers at Cloverhill Courthouse

Date: 24/01/13

Key Words: Death in custody, Vulnerable prisoners, Suicide, Prison Procedures

http://www.justice.ie/en/JELR/Pages/PB13000026

On 24 January 2103, the Minister for Justice published the Report of an Investigation into the circumstances surrounding the death of Shane Rogers at Cloverhill Courthouse Complex by the Inspector of Prisons, Judge Michael Reilly. The death by suicide of the prisoner who was charged with murder occurred while he was in prison custody at Cloverhill Courthouse in December 2011. The Inspector’s Report found failure to communicate about the vulnerability of the deceased (due to expressions of suicidal thoughts) between the prison officers at Cloverhill and the escort division and failure to monitor him every 15 minutes in accordance with established procedures.

B: Recent UK Developments

1. Children’s Rights Alliance for England v Security of State for Justice [2013] EWCA Civ 34

Date of Delivery: 07/02/2013

Keywords: Young Offenders, Training Centres

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Civ/2013/34.html&query=Children%27s+and+Rights+and+Alliance+and+for+and+England&method=boolean

In this case, young offenders had been subjected to unlawful restraint techniques while detained in secure training centres. It had been found that the unlawful use of bodily restraint techniques on the offenders had been widespread, officers having used the techniques in the mistaken belief that they were entitled to do so in order to maintain good order and discipline. The young offenders were not aware that the techniques were unlawful.

At issue was whether or not the judge should have ordered the respondent to provide information about the unlawful use of restraint techniques in secure training centres.  It was found that the Secretary of State was under no obligation to tell the young offenders that they had been unlawfully restrained so as to enable them to seek legal redress.

2. The Queen (on the application of M) v the Parole Board and Secretary of State for Justice [2013] EWHC 141 (Admin)

Date of Delivery: 05/02/2013

Keywords: Open Prisons, Parole Board, Recommendations

http://www.bailii.org/ew/cases/EWHC/Admin/2013/141.html

This judgment held that a Parole Board was entitled to refuse to recommend the transfer of a prisoner serving sentences for three murder offences to open prison conditions. A key component to this decision was the risk he might pose to others if transferred. The prisoner had long-standing difficulties in interpersonal relationships. In particular, the Board was concerned with how he formed relationships and dealt with setbacks arising from them.

The Court ruled that the prisoner was sufficiently alerted to the fact that the board was concerned about his difficulties in relationships and that he had failed to answer those concerns adequately to persuade the board that his transfer was appropriate.  This judgment categorises in a helpful manner the broad legal principles to be considered by the English parole board in determining if a tariff expired mandatory life prisoner should be released.

3. Media Report on Appeal Court ordering the release of a severely disabled prisoner

Date: 08/02/2013

Keywords: Medical Treatment, Prisoners with Disabilities, Prison Conditions

http://www.guardian.co.uk/society/2013/feb/08/appeal-court-release-disabled-prisoner

This article expresses the opinion that the English appeal court had shown "exceptional mercy" to a severely disabled prisoner, releasing him from prison early after his lawyers argued the prison service could not meet his complex medical needs.

C. Recent developments in Northern Ireland

1. The Queen (on the application of Parratt) v Secretary of State for Justice [2013] EWHC 17 (Admin)

Date of Delivery: 16/01/2013

Keywords: Parole Board, Delay

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2013/17.html&query=Parratt&method=boolean

The claimant applied for judicial review and damages for a four-month delay by the Secretary of State and the Parole Board in holding a post-tariff review. The claimant had been convicted of causing grievous bodily harm with intent in 2007. He was sentenced to imprisonment for public protection with a minimum term that expired in January 2010. His post-tariff review could not be held at that time due to a lack of resources and took place in May 2010. The claimant submitted that his rights under Article 5(4) of the European Convention on Human Rights (ECHR) had been infringed by the unlawful delay of four months in holding the post-tariff review. The Parole Board conceded liability for that delay.

The Court found that the claimant offender was entitled to a declaration that his rights under Article 5(4) had been infringed by a four-month delay by the Parole Board in holding his post-tariff review, but his claim for damages was dismissed as there were too many imponderables to enable a conclusion that this delay caused a delay in his eventual release.

2. Re Corey’s Application for Judicial Review [2012] NICA 57

Date of Delivery: 21/12/2012

Keywords: Parole Board, Revoking Licence

http://www.bailii.org/cgi-bin/markup.cgi?doc=/nie/cases/NICA/2012/57.html&query=corey&method=boolean

This judgment overturned the original decision of Justice Treacy that a revocation of an offender’s licence based on ‘closed material’ was unlawful and in breach of the offender’s rights under Article 5(4) of the ECHR.  On appeal it was held that the panel of Parole Commissioners had acted lawfully in its review of the revocation of an offender's licence.

The respondent had been sentenced to life imprisonment in 1973 and released on licence in 1992. In 2010, the Secretary of State requested a recommendation to the commissioners that the respondent's licence be revoked on the basis of intelligence indicating that he was involved in dissident republican activity and presented a risk of serious harm to the public. Background information was provided, but some of the intelligence was certified as confidential under the Parole Commissioners’ Rules (Northern Ireland) 2009. The revocation was issued, and a notice of revocation was sent to the respondent, explaining that the reason was because he presented a risk of serious harm to the public.

The Appeal Court declared that although the decision to recall him to prison had been based to a decisive degree on closed material, the panel had provided sufficient information to enable him to effectively challenge the allegations made against him.

3. Re McVeigh’s Application for Judicial Review [2012] NIQB 101

Date of Delivery: 20/12/12

Keywords: Transferred Prisoners, Concurrent Jurisdiction, Life Prisoners

http://www.bailii.org/cgi-bin/markup.cgi?doc=/nie/cases/NIHC/QB/2012/101.html&query=McVeigh&method=boolean

It was found that the High Court in Northern Ireland did not have jurisdiction to hear an application for judicial review by a restricted transfer prisoner transferred from England, challenging a decision of the Secretary of State for Justice of England and Wales not to seek advice from the Parole Board as to his suitability for open conditions.

C. Recent ECHR developments

1. Mitic v. Serbia (Application No, 31963/08)

Judgement Date: 22/01/2013

Relevant Article(s): 2

Keyword(s): Prison Suicide

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-116064

The applicants alleged breaches of the ECHR in respect of the substantive and procedural limbs of Article 2. The applicants alleged, in particular, that the Serbian prison authorities had failed in their duty to protect the life of their son, who had committed suicide while in prison. They further claimed that the investigation into his suicide was inadequate. The Court found that, while there is a positive obligation on prison authorities to protect inmates who pose a risk of suicide, where there is no evidence of such a risk there can be no finding of a breach of Article 2. In this case, the applicants’ son had been in frequent contact with the prison medical staff and there was no indication that he was a suicide risk or had suicidal tendencies. As a result, there was no breach of the substantive limb of Article 2. The Court also found no breach of Article 2 in respect of its procedural limb.

2. D.G. v. Poland (Application no. 45705/07)

Judgement Date: 12/02/2013

Relevant Article(s): 3

Keyword(s): Prison Conditions

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-116410

The applicant claimed a breach of Article 3 of the ECHR in respect of his conditions of imprisonment. The applicant alleged, in particular, that the prisons in which he had been detained were ill-equipped to deal with his medical conditions. The applicant is a paraplegic in a wheelchair and also suffers from incontinence.  The Court found that the imprisonment of the applicant in conditions where he did not have unrestricted access to a shower; an unlimited and continuous supply of incontinence pads and catheters; was unable to keep himself clean without the greatest of difficulties; or access a shower without the assistance of his cell mates reached the minimum level of severity required to find a breach of Article 3 of the Convention. The applicant was awarded €8,000 in damages.

3. Gurenko v. Russia (Application No. 41828/10)

Judgement Date: 05/12/2013

Relevant Article(s): 3

Keyword(s): Medical Treatment

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-116328

The applicant alleged a breach of the European Convention in respect of Article 3. The applicant alleged, in particular, that the Russian prison authorities had failed to provide him adequate medical treatment for a serious heart condition. The applicant claimed he had never been examined by a cardiologist and had only been treated by prison medical staff for problems that were symptomatic of his heart condition. The Court found that the Russian prison authorities had failed to properly manage the applicant’s condition and had exposed him to suffering reaching the minimum threshold required to find a breach of Article 3. The applicant was awarded €15,000 in non-pecuniary damages.

4. UK Human Rights Blog Report that European Court Awards Damages to Prisoner after Parole Board Backlog

Date: 15/02/2013

http://ukhumanrightsblog.com/2013/02/15/european-court-awards-damages-to-prisoner-after-parole-board-backlog/

It has been reported by the UK Human Rights Blog that the European Court of Human Rights has found the delays created by a parole board backlog in the United Kingdom to be a breach of Article 5 (4) of the European Convention. The applicant, Mr Samuel Betteridge, was serving an indeterminate sentence with a tariff of at least 3 ½ years before his first parole hearing. This was originally scheduled for May 2009 but was delayed for nine months. In those 9 months a British administrative court heard Mr Betteridge’s case and, despite finding a breach of Article 5(4) of the Convention, did not push forward a parole hearing for him. The European Court found that while it would have been unfair to prioritise the case of Mr Betteridge or any other prisoners who sought judicial review; the applicant had been subject to a continuing violation attributable to the UK government. He was awarded €750 in damages.

5. CPT Press Release Welcomes Publication of Anti-Torture Committee Report on the Russian Federation

Date: 24/01/2013

http://www.cpt.coe.int/documents/rus/2013-01-24-eng.htm

A report by the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has raised a number of concerns over the treatment of prisoners in the Russian Federation. The report is from a 2011 visit of the CPT to the North Caucasian region of the Russian Federation. Amongst the concerns raised include the inhuman treatment of detainees and the ineffectiveness of investigations into any such complaints. Despite the seriousness of the allegations contained in the report, the Council of Europe has welcomed its publication as a major achievement. This is amongst the first reports of the CPT that the Russian Federation has allowed to be published. The head of the CPT has announced that it signals a new openness in the Russian Federation towards the work of the CPT. 

6. Factsheets Released on the Case-Law of the European Court in the Area of Prisoners’ Rights

Date: January 2013

http://www.echr.coe.int/ECHR/en/Header/Press/Information+sheets/Factsheets/

The Council of Europe has released a number of fact sheets on the case law of the European Court of Human Rights. These thematic sheets relate to a number of issues including the treatment of prisoners. The prison related sheets are split into four sub themes. These are ‘Detention and Mental Health’, ‘Detention Conditions and Treatment of Prisoners’, ‘Prisoners Health Rights’ and ‘Prisoners’ Right to Vote’. Each report contains a synopsis of the most important and up to date case-law in that area. The sheets provide a valuable introduction into the area of prisoners’ rights under the European Convention of Human Rights.

Research Centre