1st October 2012
Introduction
Welcome to the seventh 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.
Over the past 18 months, we have produced a quarterly Prison Law Bulletin. Following feedback from members, we have now decided to move to a monthly Bulletin format to be issued at the start of each month (during the legal terms), which is made possible by the commitment of Matthew Kenny of Sheehan and Partners (editor), and Edward Keegan of UCD and Thomas Mahon of NUI Galway (contributors). We are also grateful to the Public Interest Law Alliance for their continuing support and assistance producing the Prison Law Bulletin series.
As we flagged in our last Bulletin, IPRT has recently produced a number of resources for prison lawyers which are available through our website. These include:
More generally, 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
A: Recent Irish decisions
1. Louise Joyce v The Governor of The Dochas Centre – IEHC 326 of 2012
Date of delivery: 11th July 2012
Keywords: Procedure
This judgment of Mr. Justice Hogan discusses the right of an applicant for habeas corpus to apply before more than one judge of the High Court should their initial application be refused. It is an interesting judgment for historical and procedural reasons.
2. Caffrey & Coughlan v Minister for Law Reform, Ireland and the AG [2012] IEHC 313
Date of Delivery: 20th July 2012
Keywords: Parole
http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/fdb30ee4137d44ac80257a55004a288a?OpenDocument
This case concerned two prisoners who were jailed for murder and transferred from prisons in the UK to serve out their sentences in this jurisdiction. The prisoners sought orders compelling the State to put in place a review on their sentences and detention by a competent, impartial and independent tribunal. They also sought an order prohibiting the Parole Board as currently constituted taking any further steps in reviewing their detention. They sought a declaration that the Parole Board in this jurisdiction, as currently constituted, and the mechanism for reviewing sentences, were contrary to the State’s obligations under the European Convention on Human Rights. The prisoners submitted that the failure to provide a proper independent and impartial review of their detention left them in a state of indefinite uncertainty, potentially for the rest of their lives.
In his judgment, Mr. Justice Kearns held that a sentence of life imprisonment in this jurisdiction was on wholly punitive grounds and no part of it was for preventive purposes. The Learned Justice asserted the decision by the Minister for Justice whether to exercise his discretion to release either of the two men was not a judicial function but wholly administrative in nature. The European Convention on Human Rights also conferred no general right to release or to have a sentence reviewed by an organ of the State.
3. Butcher v The Minister for Justice and Equality 2012 IEHC 347
Date of Delivery: 30th July 2012
Keywords: Prisoner Transfers
http://www.courts.ie/Judgments.nsf/09859e7a3f34669680256ef3004a27de/ce6282d5eeb219ee80257a6f00343b95?OpenDocument
The High Court quashed a decision to refuse the transfer of a prisoner to the UK to be closer to his elderly mother, on the grounds that his family circumstances should have been taken into account before the decision was made.
4. Irish media report on the early release of prisoners in a bid to reduce re-offending.
Date: 10/09/2012
Keywords: Recidivism
http://www.independent.ie/national-news/prisoners-released-early-in-bid-to-reduce-reoffending-3225532.html
This report discusses how prisoners are now being released early to work out their time in the community rather than spending it in prison. This initiative is open to prisoners serving terms of between one and eight years after they have completed at least half of their sentence.
5. Irish media report by The Irish Examiner of the release of Malcolm MacArthur.
http://www.irishexaminer.com/ireland/macarthur-release-was-held-up-by-politics-208092.html
The Irish Examiner reports upon the release of long-term serving prisoner Malcolm MacArthur. This reports discusses the views of the former Governor of Mountjoy as to the political pressure former politicians may have felt in allowing the release of Mr MacArthur.
B: Northern Ireland and UK Cases
1. Re Conway [2012] NICA 11
Date of Delivery: 14th May 2012
Keywords: Body-searching
http://www.bailii.org/nie/cases/NICA/2012/11.html
In this case, the Northern Ireland Court of Appeal allowed a judicial review appeal on whether the discretionary policy of full body-searching of prisoners was practiced in an inflexible manner.
2. R (on the application of Foley) v The Parole Board for England and Wales & The Secretary of State for Justice [2012] EWHC 2184
Date of Delivery: 27th July 2012
Keywords: Parole
In this judgment the Court held that that there was no reason to apply a more stringent test for the early release of long-term prisoners under a determinate sentence who had reached the half-way point of their sentence than to prisoners under an indeterminate sentence at the expiry of the tariff.
3. UK media report – a judge rules in favour of Polish prison conditions
Date: 17th August 2012
Keywords: Prison Conditions
The Daily Mail reports that a Judge in the United Kingdom has reportedly dismissed a number of appeals of Polish nationals who wish to avoid deportation and imprisonment in Poland on the basis of Article 3 of the Convention. The appellants’ claim that were they to be imprisoned in Poland the conditions to which they would be exposed are of such a standard that it would constitute ‘inhumane and degrading’ treatment.
C: ECHR decisions
1. James, Well & Lee v The United Kingdom
Keywords: Rehabilitation, Parole and Article 5
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-113127
This ECHR decision discusses the correct reasoning that a national court ought to utilise when the competing interests of prisoner rehabilitation and the protection of the public interest are challenged by a prisoner. The United Kingdom’s ‘Indeterminate sentences for Public Protection (IPP)’ were the impugned statutory scheme which the three UK prisoners sought to challenge. The ECHR held for the prisoners in agreeing that their continued detention under this scheme without making proper provision for rehabilitation schemes was in breach of the UK’s obligations under Article 5 (1) of the ECHR.
2. Razvyazkin v. Russia (no. 13579/09)
Date of Judgement: 3rd July 2012
Keywords: Prison Complaints Procedures, Prison Conditions
Relevant Articles: 3, 6 and 13
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-111837
The applicant alleged a number of breaches of the Convention in respect of Articles 3, 6 and 13. The complaints related to the applicants placement in solitary confinement for an almost continuous period covering 3 years, the conditions of a civil trial held in the prison colony and the alleged inadequacies of domestic remedies.
3. Iacov Stanciu v. Romania (no. 35972/05)
Date of Judgement: 24th July 2012
Keywords: Prison Conditions, Medical Treatment
Relevant Articles: 3, 4 and 6
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-112420
The applicant claimed a number of breaches of the Convention in respect of Article 3, relating to time he spent in various Romanian prisons. The applicant claimed that the overcrowding in the impugned prisons was such as to reach the minimum level of severity required to find a breach of Article 3, that the material conditions in the various prisons were of such a low standard to constitute a breach of Article 3, and that the medical treatment he received after developing a number of serious illnesses in prison fell below the standard required by Article 3. The Court also looked under Article 46 at whether these breaches were particular to the applicant’s experience, or whether they were representative of a structural problem in Romanian prisons.
4. Kostov v. Bulgaria (II) (no. 13801/07)
Date of Judgement: 24th July 2012
Keywords: Prisoner Complaints Procedure
Relevant Articles: 6, 8, 10
http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-112306
The applicant claimed a number of breaches of the Convention in respect of Articles 6, 8 and 10. The applicant alleged that, in connection with three separate disciplinary actions taken against him, the domestic court had interfered with his right to a fair trial and the prison authorities had interfered with his right to privacy and free expression. The Court also considered whether there was a violation of Article 10. It deemed that, as the applicant had been punished for sending a complaint to the public prosecutor, this constituted an interference with his freedom of expression, one that could not be deemed necessary in a democratic society.
5. European media report- Spain Determined to Fight Recent Judgement of the European Court of Human Rights
Date: 9th August 2012
Keywords: Parole
The New York Times reports that the Spanish Government has reacted angrily to a recent judgement of the European Court of Human Rights. The judgement, delivered last month, overturns a Judgment of the Spanish Supreme Court which allows retroactive lengthening of prison sentences. The Spanish Government have publicly stated that they will be appealing the decision.
6. Research finds that Violence in German Prisons is Endemic
Date: 19th August 2012
Keywords: Prison Violence
http://www.dw.de/dw/article/0,,16178415,00.html
A recent study of violence in German Prisons, conducted by the Criminological Research Institute of Lower Saxony, has found that adult and youth facilities in Germany are plagued by violence. The research has been challenged by a number of state ministries.
D: United States of America
1. A media report on a Boston Judge ordering a sex change for a prisoner.
Date: 5th September 2012
Keywords: Eighth Amendment
http://www.nytimes.com/2012/09/05/us/massachusetts-sex-change-is-ordered-for-inmate.html?ref=prisonsandprisoners and The Wall Street Journal blog at; http://blogs.wsj.com/law/2012/09/04/judge-orders-sex-change-operation-for-federal-prisoner/
Federal judge in Boston, ordered the Massachusetts Department of Correction to provide an inmate with a sex change, which will be financed with state taxes. In his decision, the Judge found that the denial of the surgery amounted to a violation of the Eighth Amendment, which prohibits cruel and unusual punishment.
2. Media report on video units replacing in-person visits
Date: 7th August 2012
Keywords: Visits
This New York Times article discusses the District of Columbia’s switch to video visitation, which took place on the 25 July 2012, and is a growing trend in the corrections field. Visitors and prisoners now sit in separate buildings at computers equipped with web cameras.
Critics, including prisoner advocates and corrections officers concerned with how prisoners fare once they are released, fear that the video visits allow less meaningful contact with family and could hurt inmates' morale.
Respect for rights in the penal system with prison as a last resort.