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IPRT Prison Law Bulletin: No. 13 - October 2013

 Welcome to the latest 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 Kavanagh which successfully argued that certain prisoners serving sentences in relation to the supply of drugs were eligible for Temporary Release.
  • The Irish case of Hui which also held that the same group of prisoners are eligible to apply for 1/3 remission.
  • Callan v Ireland held that capital murder prisoners are eligible for1/4 remission and should also be able to apply for 1/3 remission.

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A.         Irish Cases

1.         Connolly v Governor of Wheatfield Prison [2013] IEHC 334

Date: 16/07/2013

Keywords: Solitary Confinement

http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/695df1d36ab3cacf80257bac004deeec?OpenDocument

Mr. Justice Hogan held that the detention of the Applicant in solitary confinement for all but one hour of the day, did not manifest a contravention of the State’s duty to protect the person under Article 40.3.2 of the Constitution, such as would entitle him to immediate release. Mr. Justice Hogan noted that the Applicant’s circumstances of requesting protection whilst in custody due a previous attack and the Applicant’s amenities whist in custody. Mr Justice Hogan stated that the placing of prisoners must be regarded as exceptional measure, requiring monitoring and regular review and that if the Applicant’s detention under these conditions were to continue for an extended period months, there may come a point where his constitutional guarantees would be compromised and violated.

2.         David Kavanagh v The Minister for Justice and Equality 2013/320 JR

Date: 5th September 2013

Keywords: Temporary Release

This case related to where the Applicant had applied for remission of a sentence arising from a conviction under Section 15 (a) of the Misuse of Drugs Act, 1977, as amended (the 1977 Act). Mr. Justice White held that where ambiguity arose in relation to a sentence received under Section 27 of the 1977 Act, that any such ambiguity should be judged in favour of the Applicant (the prisoner). In this instance where the trial Judge had sentenced the Applicant but had not specified as to whether the sentence was under Section 27 (3B) or (3C) of the 1977 Act, the latter allowing for remission for a sentence for a conviction under Section 15 (a) of the 1977, Act.

3.         David Hui v The Governor of the Midlands Prison, the Irish Prison Service and the Minister for Justice and Equality 2013/325JR

Date: 31st July 2013

Keywords: Remission

This case relates to the Applicant obtaining the right to be eligible for one third remission under Rule 59(2) of the Prison Rules 2007, having being convicted of an offence under Section 15(a) of the 1977 Act. An order of certiorari was granted by Mr. Justice Hedigan holding that Section 27 (3F) of the 1977 Act, which holds that any temporary release will not be applied for a conviction for a offence under Section 15(a) of the 1977 Act, if the trial judge sentenced the Defendant under Section27 (3D) of the 1977 Act, is not a restraint on a prisoner applying for one third remission under Rule 59(2) of the Prison Rules 2007. 

4.         Callan v Ireland, Supreme Court [2013] IESC 35

Date: 18th July 2013

Keywords: Remission

http://www.courts.ie/Judgments.nsf/bce24a8184816f1580256ef30048ca50/1878c36406474e2480257bac0057e17f?OpenDocument

The applicant was serving a 40 year sentence for capital murder, which had been commuted from a death penalty sentence (he was sentenced pre- the 1990 Act).  He sought an order that he should be treated as having a fixed sentence of 40 years and would thereby be entitled to 1/4 standard remission under the Prison Rules.  Hardiman J (and Clarke J in a separate judgment) held in Callan’s favour based on the nature and of the legal instrument to commute the sentence. He went on to state that, given Callan’s engagement with treatment in prison, he should also be eligible to apply for enhanced remission

B.         United Kingdom

1.      R (on the Application of Tabbakh) v Strafordshire and West Midlands Probation Trust [2013] EWHC  2492 (Admin)

Date: 09/08/2013

Keywords: Release on Licence

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2013/2492.html&query=tabbakh&method=boolean

The procedural requirements under the European Convention on Human Rights 1950 art.8 had been met in the case of a prisoner upon whom additional conditions for release on licence had been imposed.  The offender was able to make significant representations through his offender manager at the meetings to discuss the conditions that would apply to him when he was released.

2.      R (on the application of Richards) v Teesside Magistrate Court [2013] EWHC 2208 (QB)

Date: 30/07/2013

Keywords: Electronic Monitoring

http://www.bailii.org/ew/cases/EWHC/QB/2013/2208.html

A variation to a sexual offences prevention order, which required the subject to wear an electronic tagging device whenever he was away from his registered address, was a prohibition, not a mandatory requirement for positive action, and was therefore a valid measure under the Sexual Offences Act 2003 s. 107 and s. 108.

3.      R (on the application of Foster) v Secretary of State for Justice [2013] EWHC 1951 (Admin)

Date: 17/07/2013

Keywords: Return to Custody

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2013/1951.html&query=title+(+foster+)&method=boolean

The Court declared that justice did not dictate that the claimant prisoner should have been allowed an oral hearing as part of his return to custody after he had been released on home detention curfew.

4.      R (on the application of McIntyre) v Parole Board [2013] EWHC 1969 (Admin)

Date: 9/10/2013

Keywords: Parole

http://www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWHC/Admin/2013/1969.html&query=title+(+McIntyre+)&method=boolean

The court was required to determine the extent of the parole board's obligation to make, maintain and make available a record of proceedings before it.

C.         European Cases

1.      Vinter v United Kingdom (66060/09)

Date: 09/07/2013

Keywords: Sentencing

http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-122664#{"itemid":["001-122664"]}

For a sentence of life imprisonment to be compatible with the European Convention on Human Rights 1950 art.3, there had to a possibility of review and a possibility of release. In introducing "whole life orders", which meant that the prisoner could not be released other than at the discretion of the secretary of state on compassionate grounds; the United Kingdom had violated art.3.

D.         US Cases

1.      McQuiggin v Perkins 569 U.S. _ (2013)

Date: 28/05/2013

Keywords: Challenging Convictions

http://www.supremecourt.gov/opinions/12pdf/12-126_lkgn.pdf

The Supreme Court ruled that a one year deadline for federal reviews of state court convictions may be relaxed in some cases, making it easier for inmates to challenge their convictions. 

Learn more