Irish Penal Reform Trust

IPRT Prison Law Bulletin: No. 4 – Winter 2011

5th December 2011

IPRT is committed to promoting and supporting the development of prison litigation in Ireland. Since 2009, we have co-hosted with the ICBA and the DSBA a series of law seminars. This series has provided CPD accredited expert seminars for barristers and solicitors on topical issues of prison law and also provided a platform for exchange of ideas and information between leading practitioners in this area.

We have also provided support and assistance for both barristers and solicitors involved in prison litigation. This has involved research on legal developments internationally or at the ECHR level, identifying potential expert witness, and directly providing expertise and information on the operation of the prison system. We will continue to provide this support and we would welcome contact from any practitioners who would like assistance with relevant litigation. We are also working with the Voluntary Assistance Scheme of the Bar Council and the Public Interest Law Alliance to explore further how both professions can become more involved in public interest prison work. We are very eager to involve practitioners more in all aspects of our work and would be delighted to have the involvement of more professionals as members of IPRT. Details about individual and company membership are available here.

This is the fourth prison law bulletin. The first bulletin was launched at Easter, followed by a second bulletin in the summer and a third in autumn. IPRT envisages that the Legal Bulletin, produced on a quarterly basis, will be a source of prison-related case-law, identifying potential areas and issues for litigation and supporting lawyers already engaged in penal litigation. Should lawyers come across any interesting cases relating to penal law either in Ireland or abroad, IPRT would be grateful if you could email to notify us of these developments so that we can possibly include them in future bulletins. Any suggestions on the format or content of this bulletin would also be greatly appreciated!

Among the highlights of this bulletin are two Irish cases related to immigration-related detention and one related to the concept of “guilty knowledge” in section 15A offences; a new UK case Imran Shahid v Scottish Ministers on the lawfulness of an extended period of segregation for safety purposes; and a large number of ECtHR decisions including Giszczak v Poland, which addressed the violation of a prisoner’s family rights under Article 8 of the ECHR and Štrucl & Others v Slovenia which dealt with prison conditions including overcrowding and poor sanitary conditions.


Outline of Contents:

  • Irish Case-law
  • ECtHR Case-law
  • UK Case-law

Irish Case-law

DPP v Sophie Malric [2011] IECCA 86                                           Date of delivery: 24/11/11

The applicant was appealing against her conviction for drug offences contrary to sections 3, 15 (a), 21 and 27 of the Misuse of Drugs Act 1977. She was convicted of possession of a controlled substance, namely cocaine, to the value of €210,119.00. Although the applicant accepted her guilt, she appealed on the grounds that she was unaware that the substance she was importing was cocaine as she had been informed that it was gold dust. In essence, she claimed that the trial judge had erred in charging the jury in relation to section 29 of the 1977 Act, which provides a defence based on guilty knowledge, shifting the burden of proof to the accused. Where such a defence is raised, the accused must prove that the mental element, or guilty knowledge, of possession of a controlled drug did not exist at the material time.

Justice Finnegan held that while the initial exposition by the trial judge of the nature of the burden resting upon the applicant after she had raised the defence provided for in section 29 was not sufficiently clear, in his further explanations to the jury the nature of the burden was clarified thus the jury was charged “adequately and appropriately”. Therefore, leave to appeal her conviction was refused.

G.E. v Governor of Cloverhill Prison [2011] IESC 41                  Date of delivery: 28/10/11

The applicant claimed that a detention order made against him was defective because it failed to show that the immigration officer had reasonable cause to believe he was unlawfully in the State for a period of three months or more and it failed to outline the grounds for refusing his leave to land. In essence, the applicant submitted that the warrant of detention failed to show on its face the basis of its jurisdiction. He therefore argued that his detention in Cloverhill prison was unlawful.

In determining the validity of the warrant, the Court referred to the case of Simple Imports ltd v Revenue Commissioner [2000] 2 IR 243, in which it was found that “a warrant cannot be regarded as valid which carries on its face a statement that it has been issued on the basis which is not authorised by the statute”. Therefore, a document, such as a warrant of detention, should contain clear information on its face as to the basis of its jurisdiction.

In the applicant’s case, the Court held that the detention order was defective because it did not state on its face the reason for the arrest and detention of the applicant. Furthermore, the detention order failed to state that the appellant had been refused permission to land and, as required by s. 5(1) of the Immigration Act of 2003, that the Immigration officer “with reasonable cause suspected” that the applicant had been “unlawfully in the State for a continuous period of less than three months” [para. 32]. For these reasons the applicant’s detention in Cloverhill was found to unlawful and he was released.

Liu v Governor of Dóchas Centre [2011] IEHC 372                     Date of delivery: 06/10/11

The applicant, a Chinese national, was being detained in the Dóchas Centre for failure to produce a valid passport or other form of identification to a member of the Gardaí. It was accepted by the prosecution that the charge sheet contained two defects however it is the second of these defects with which Hogan J. was concerned. In effect, the particulars of the charge mirrored the language of a section of the Immigration 2004 Act which was found to be unconstitutional (Dokie v. Director of Public Prosecutions [2011] IEHC 110). This section (section 12) made it impossible to segregate the actus reus of the offence from any possible defense. Consequently, the applicant in this case had been charged with a non-existent and unconstitutional offence. Therefore, it was held that her detention was not in accordance with law and she was released.

Other relevant developments

The 2010 annual reports of the Prison Visiting Committees for Arbour Hill, Castlerea, Cloverhill, Cork, Dochas, Limerick, Loughan House, Midlands, Mountjoy, Portlaoise, Shelton Abbey, St. Patrick's Institution, the Training Unit and Wheatfield were published on 18 November 2011. Many concerns are raised in the reports.

Of particular concern were revelations contained in the Dóchas centre report, which stated that the ethos of the prison had deteriorated considerably in recent times, with overcrowding a persistent problem.  The report includes reference to two serious incidents at the prison:  (i) the report recounts an incident where a woman was forcibly ejected from the prison in circumstances which seriously violated her human rights; (ii) the Committee also expressed great concern about an incident of forced strip searching of women which it alleges took place in the presence of male officers and where women were given inadequate material to cover themselves.  The report also alleges that the security system in the prison resulted in some women being delighted basic commodities such as clean underwear and toiletries.

ECtHR Case-law

Giszczak v Poland 40195/08 [2011] ECHR 1984                          Date of delivery: 29/11/11

The applicant in this case, a prisoner in Tarnowskie Góry prison, complained that the refusal to allow him to visit his critically ill daughter in an intensive care unit and, following her death, the refusal to allow him to attend her funeral in normal clothes, breached his rights under Article 8 of the ECHR. The Court found that the reasons for refusing to allow the applicant visit his dying daughter, based on his behaviour toward prisoner officers and the grave nature of his offence, were ill-founded as any concerns could have been addressed by an escorted leave. The refusal was not “necessary in a democratic society” and accordingly, there had been a violation of the applicants Article 8 rights.

In relation to compassionate leave to attend his daughter’s funeral, the Court noted that the applicant had not been informed in time and in a clear and unequivocal manner about the conditions of his compassionate leave. This resulted in him refusing to go as he was worried about causing disruption by turning up handcuffed, in prison clothes and accompanied by uniformed officers. Furthermore, he did not receive the written decision to grant him compassionate leave until four days after the funeral had taken place. This amounted to a further violation of the applicants Article 8 rights. The Court ordered that Poland pay the applicant €2000 in compensation for violation of his Convention rights.

Schönbrod v Germany 48038/06 [2011] ECHR 1074                 Date of delivery: 24/11/11

The applicant complained that his preventative detention in Aachen prison violated his rights under Article 5 of the ECHR as he was no longer a threat to society given his advanced age of 72 years and poor state of health (he had injuries to his knee and hip which caused a walking disability).

The applicant completed his sentence in June 2005 but was kept in preventative detention thereafter to prevent him from committing further serious offences. Although relevant proceedings had started at this time, a decision by the Court to execute the preventative detention order (which was originally issued in 1978) was not made until March 2006. The applicant remained in detention for this 9 month period.

The Court held it was satisfied that the grounds for the applicant’s preventative detention were reasonable because despite his age and his state of health he remained a threat to society, capable of committing serious offences and had failed to prove otherwise. However, the Court found that detaining the applicant for nine months without a Court order after he had fully served his sentence was in breach of his Article 5 rights. It was held that this significant delay in securing a Court order had to be considered arbitrary and had interfered with the applicant’s right to liberty. He was therefore awarded €5000 in compensation.

Ivantov and Others v Moldova and Russia 23687/05 [2011] ECHR 1915                                    Date of delivery: 15/11/11

This case concerned the continued detention of two alleged terrorist’s in the unrecognised State of the ‘Moldovan Republic of Transdnistria’ (MRT) despite a Court order in 2004 to secure their release. The applicants complained that they were unlawfully detained and that the conditions in which they were detained violated their rights under Articles 3, 5, 8 and 13 of the ECHR. Two of the applicants were not prisoners but were relatives of the detainees. They argued their Article 8 rights had also been violated due to interference with contact and correspondence with the detainees.

The prisoners, Mr. Ivantov and Mr. Popa, were detained in solitary confinement without any explanation. Mr. Ivantov was detained in Tirapsol prison. Mr. Popa was detained in a cell in Hlinaia prison which contained a metal cage inside of which was a metal bed and a table. They were both confined to their cells for 23 hours a day and were only allowed a 1 hour walk daily. They had no access to a gym or other facilities. The applicants were only permitted one shower a week. The cells were never heated and there was a permanent lack of natural light. There was a lack of appropriate and regular medical treatment despite both applicants suffering from medical conditions. They had very limited contact with family and there was a complete absence of contact with their lawyers. Correspondence was censored without legal basis.

The Court held that there had been no violations of the Convention concerning Moldova, as the Moldovan authorities had consistently attempted to secure the applicants release, often seeking help from international organisations. However, due to a lack of control over the MRT, these attempts proved unsuccessful.

Russia, on the other hand, was found to be in breach of Articles 3, 5, 8 and 13 of the Convention. Russia had maintained a close relationship with the MRT, often providing political and economic support to the country [para. 20] and therefore had some level of responsibility toward the applicants.

The Court found that the conditions in which the two prisoners were detained could be qualified as inhumane and degrading in direct violation of Article 3. Furthermore, it was held that the applicant’s detention was unlawful within the meaning of Article 5 as the Court had already ordered the immediate release of the two men in 2004 (they were still in custody in 2007 when applications were made to the ECtHR). The Court also found a breach of Article 8 due to the severe restrictions on correspondence and visits with family members and close relatives. The Court therefore ordered Russia to pay the applicants compensation ranging from €20,000 (to the two family members) - €60,000 (to the detainees) for breaches of their rights under the ECHR.

Al Hanchi v Bosnia and Herzegovina 48205/08 [2011] ECHR                            Date of delivery: 15/11/11

The applicant was appealing against his deportation to Tunisia where he claimed he would be detained as a suspected terrorist because of his association with the foreign mujahedin. Relying on Article 3 of the ECHR, the applicant alleged that his removal would expose him to a real risk of ill-treatment due to political instability in Tunisia, the ingrained culture of violence and impunity within the security forces and the judiciary, and the dire prison conditions in that country.

Dismissing the applicants claim, the ECtHR acknowledged that Tunisia has acceded to the OPCAT which has a preventive system of visiting places of detention. It has also adopted the Optional Protocol to the International Covenant on Civil and Political Rights recognising the competence of the UN Human Rights Committee to hear individual cases alleging ill-treatment. This demonstrated the determination of the Tunisian authorities to eradicate the culture of violence and impunity and bring detention conditions in line with international standards. Consequently, the Court decided the applicant was not at risk of ill-treatment and therefore Article 3 was not violated.

Ahorugeze v Sweden 37075/09 [2011] ECHR 1829                   Date of delivery: 27/10/11

The applicant alleged that his extradition to Rwanda to stand trial on charges of genocide and crimes against humanity would violate Articles 3 and 6 of the ECHR.

He complained that he would be unable to access adequate healthcare for his heart problem and he would be subjected to ill-treatment due to the poor conditions in Rwandan prisons. The Court held that the applicant’s heart problems could not be considered so serious as to raise an issue under Article 3. Furthermore, the Rwandan authorities’ maintained that the applicant would be detained temporarily in Kigali Central prison and would serve a possible sentence in Mpanga prison. The Court noted that conditions in these two facilities were seen to meet international standards following assessments carried out by the ICTR, the Netherlands Government and the Oslo District Court. As an additional safeguard, Rwandan authorities invited the Swedish Government to monitor the applicant’s detention as proof that the conditions were adequate. Assurances were also made that the applicant would not be transferred to a different facility where conditions might fall below standards. In light of this, the Court held that the applicant’s extradition to Rwanda would not breach Article 3 of the ECHR.

The Court also rejected the applicants claim concerning an alleged violation of Article 6. According to the principles set out in Soering v United Kingdom 14028/88 [1989] 11 EHRR 439, there must be a risk that the applicant would suffer a ‘flagrant denial of justice’ in order to make a successful Article 6 application. The applicants claim in this case was found to be unsubstantiated as amendments had been made to Rwandan legislation to improve legal practice and allow witnesses residing outside of Rwanda to testify via video link, thus ensuring as fair a trail as possible. Additionally, amendments to sentencing practices now prevent the Rwandan authorities imposing a life sentence to be served in isolation. Therefore, the applicants claim was dismissed as a flagrant denial of justice was unlikely to occur.

Ushakov v Russia 10641/09 [2011] ECHR 1800                          Date of delivery: 25/10/11

The applicant successfully argued that his detention on remand in prison no. IZ/63/2 in the Samara Region and his detention in disciplinary cell no. 2 in correctional colony no. IK-13 in the Samara Region contravened his rights under Article 3 of the ECHR.

The applicant claimed that he was detained in severely overcrowded cells which were hot and stuffy causing dirty condensation to accumulate and drip down the walls. Due to insufficient bed space the inmates had to take turns sleeping which often provoked conflict. The lights were constantly left on and there was very little natural light as the windows were covered with metal bars both inside and out. There was no artificial ventilation and dining tables were located just 1.2 - 1.8 meters from the toilets, which often reeked. Moreover, inmates were confined to their cells for most of the day, with only one hour of exercise outside the cells daily.

The Court held that the applicant had been subjected to stress and hardship of an intensity exceeding the unavoidable level inherent in detention “which aroused in him feelings of anguish and inferiority capable of humiliating and debasing him” (para. 45). The Court therefore concluded that Article 3 had been violated on account of the conditions of the applicant’s detention in both prisons and awarded him €9,000 in damages.

Štrucl & Others v Slovenia 5903/10 [2011] ECHR 1785            Date of delivery: 20/10/11

The applicants complained that conditions in Ljubljana prison amounted to a violation of their rights under Articles 3, 8 and 13 of the ECHR on the basis that severe overcrowding had led to a lack of personal space, poor sanitary conditions and inadequate ventilation. Furthermore, they claimed that there were excessive restrictions on out-of-cell time, high temperatures in the cells, inadequate health care and psychological assistance, and exposure to violence from other inmates due to insufficient security.

The ECtHR held that the severe overcrowding in Ljubljana prison (which was often double the official capacity), combined with excessively high temperatures in cells in the summer (28˚C +), no functional ventilation, a lack of out-of-cell-activities and inadequate facilities amounted to a violation of Article 3. It was found that the distress and hardship endured by the applicants “exceeded the unavoidable level of suffering inherent in detention and went beyond the threshold of severity under Article 3, therefore amounting to degrading treatment.” (para. 89) However, the complaints relating to inadequate healthcare, psychological assistance and insufficient security measures in the prison were rejected by the Court, as were the allegations relating to poor sanitary conditions.

The Court found a violation of Article 13 due to the lack of an effective remedy under domestic law under which the applicants could complain about their detention conditions.

In rejecting the claim that the applicants Article 8 rights had been violated due to restrictions on contact with the outside world, the Court stated that they failed to submit any concrete evidence to support their claim that visits, telephone conversations and correspondence had been interfered with. The Court instead accepted the government’s argument that the restrictions were necessary to maintain order and “uphold the prison regime.” (para. 96)

The applicants were all awarded compensation of €6000 - €7000 on account of the poor conditions in which they were contained during their detention.

 Goginashvili v Georgia 47729/08 [2011] ECHR 1510                Date of delivery: 04/10/11

The applicant unsuccessfully complained that a lack of adequate medical care in Rustavi prison amounted to a breach of his rights under Article 3 of the ECHR.  He was treated in the prison hospital for numerous renal disorders, Hepatitis C Virus (HCV) and chronic bronchitis. However, he claimed that the State had failed to protect his health and wellbeing in prison and that he should therefore be released on health grounds. The applicant had been transferred to the prison hospital on several occasions and following medical examinations, it was recommended that his treatment should be continued under the supervision of a nephrologist. Although the prison medical staff did not include a nephrologist the prison undertook that if the applicant’s condition deteriorated, one would be called in immediately.

In dismissing his claim, the Court reiterated (as was held in Aleksanyan v Russia 46468/06 [2008] ECHR 1380) that Article 3 cannot be interpreted as laying down a general obligation to release a prisoner on health grounds. It was held that the prison was able to cope with the applicant’s serious health problems “rendering his early release redundant” (para. 79). Therefore, the Court concluded that the prison authority had shown a sufficient degree of due diligence in providing the applicant with prompt and systematic medical care. Accordingly, there had been no violation of Article 3.

 Other relevant developments

Both the UN Special Rapporteur on Torture and the Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) have recently called for a ban on the practice of holding prisoners in 'prolonged solitary confinement' (defined as 22+ hours lock up, for more than 15 days).

See and for further information.

UK Case-law

Imran Shahid v Scottish Ministers [2011] ScotCS CSOH 192    Date of delivery: 18/11/11

In 2006, the applicant was convicted of the racially motivated murder of a 15 year old boy. Following numerous threats made against the applicant’s life in prison, a decision was taken to place him in segregation to ensure his safety. In this case, the applicant sought a judicial review regarding this decision to segregate him. He complained that the segregation was illegal because of a failure to comply with time limits in applying for extending the segregation orders, as required under Rule 94 of the Prison Rules. The applicant also argued that segregating him for four years and 8 months amounted to inhuman and degrading treatment contrary to Article 3 of the ECHR and that if there was no breach of Article 3, the interference with his right to private life, inherent in segregation, was not in accordance with law under Article 8.

Lord Malcolm rejected the applicant’s complaint relating to the legality of the late orders made to secure his segregation, as the periods of time involved were insignificant and “insufficient to warrant any form of relief”. [para. 45]

In considering whether Article 3 had been violated, Lord Malcolm held that the factors to be considered included the purpose of the segregation, the conditions and general regime, the state of the prisoner’s health and the existence of adequate procedural safeguards. It was accepted that the primary reason for the applicant’s continued segregation was to ensure his safety. In relation to the length of time the applicant remained segregated, Lord Malcolm considered the finding of the ECtHR in Ramirez Sanchez v France 59450/00 [2006] ECHR 685 in which segregation of a prisoner for 8 years was found not to be indicative of a violation of Article 3 as it was a necessary and proportionate response. In the applicant’s case, it was held that the lengthy period of segregation was necessary and the response of the prison service was proportionate therefore could not be considered a violation of Article 3.

In terms of the applicant’s health and the conditions of his regime in segregation, it was found that his mental and physical welfare were monitored at regular intervals. The applicant was detained in satisfactory conditions which did not fall below the level required for a successful Article 3 application. He had reasonable access to the gym, shower facilities and the telephone. His case was continuously reviewed and he was always kept informed by attending monthly meetings, with records showing the goal was to end segregation and return the petitioner to mainstream.

While recognising that the petitioner was segregated for a lengthy period, it was held that it was necessary to ensure his safety, that the conditions under which he was detained and the procedural safeguards in place were adequate and therefore there was no violation of his rights under Article 3.

Regarding the applicants Article 8 rights, Lord Malcolm found that his segregation was legitimate and in accordance with law as he was kept fully informed, his health was monitored, he remained entitled to visits from family/friends and had access to his lawyers. The judge rejected the submission that the measures taken were not proportionate to the threat to the applicants safety, noting the “substantial body of evidence that the petitioner would be in danger from the general prison population” [para. 123]. Therefore, it was held that there was no violation of Article 8 and the applicants claim for judicial review was refused.

Irwin, Re: Judicial Review [2011] NIQB 107                                Date of delivery: 15/11/11

The applicant sought a declaration that the Northern Irish Prison Service (NIPS) policy of carrying out head-counts and body-checks on prisoners in their cells in HMP Magilligan on a two hour basis between 10.00pm and 7.00am is unlawful and ultra vires. He argued that these checks were not justified on health and security grounds and amounted to disproportionate interference with his rights under Article 8 of the Convention.

The applicant argued that these headcounts are intrusive as noise is made when the observational flaps in the cells are opened. Furthermore, he claimed that the prison guards often turn on the cell lights when carrying out the checks causing him sleeplessness for which he now must take medication. The applicant contended that this level of scrutiny is unnecessary as he is not a prisoner at risk, nor has he ever been.

In finding that the interference with Article 8 was justified, Treacy J. held that the Court has a limited role in reviewing measures which are “intended to discharge the legitimate aim of securing the safety and security of inmates and staff within NIPS establishments” [para. 26].  The checks carried out by the prison authorities to ensure prisoner safety and security are therefore proportionate and in accordance with law.

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