Irish Penal Reform Trust

IPRT Prison Law Bulletin: No. 9 - December 2012

28th November 2012


Welcome to the ninth in the series of IPRT’s Prison Law Bulletins and our third monthly bulletin. In the past month, IPRT has seen a significant increase in the number of solicitors and barristers contacting us in relation to ongoing legal actions. We are greatly encouraged that this reflects a growing volume of prison litigation. If you feel that IPRT can be of assistance to you in relation to any area of your prison work, or if you would like to keep us informed about important current litigation, please contact Liam Herrick at

On 19th November 2012, the Ombudsman for Children, Emily Logan launched IPRT’s new research report "Picking Up the Pieces": The Rights and Needs of Children and Families Affected by Imprisonment. The Report details the rights, needs and experiences of families and children of prisoners. It follows extensive consultations with children, families, support services and relevant agencies. The report makes key recommendations, directed at:

  • Government
  • An Garda Síochána
  • Courts and Courts Service
  • Irish Prison Service
  • Media
  • Department of Education
  • State and Academic Institutions.

The Report is available at

Once again we would like to thank 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.

Some of the highlights of this bulletin include:

  • Access to medical treatment for serious illness in McMenamin v Governor of Wheatfield Prison
  • A claim against the the Secretary of State for not following the recommendation of the Parole Board to transfer the claimant to open (Category D) conditions in the UK Wilmot case
  • The  judicial review of the parole commissioners decision to revoke the claimant’s licence in the Northern Ireland case of McAuley.

A: Recent Irish decisions

1.      McMenamin v Governor of Wheatfield Prison [2012] IEHC 431

Date of Delivery: 29/06/2012

Keywords: Prison Conditions, Medical Treatment

The applicant sought leave to bring judicial review proceedings against the respondent. He wished to have access to a hospital and a liver specialist for treatment of what he describes as an extremely serious illness. It is implicit that he alleges that the respondent is not facilitating such access.

In granting leave for an enquiry the Court reiterated the law as established in O’Reilly v The Governor of Wheatfield Prison (unreported The High Court of June 2007).  It held that it is well established that inadequate medical treatment can amount to a breach of a prisoner's constitutional rights to bodily integrity, cruel and unusual punishment and negligence on the part of the prison staff. However, the prisoner is not entitled to the medical treatment of his choice. For example, he is not entitled to demand that his illness is treated by any particular type of medication or indeed by any medication at all. Further, the Prison Service is not under a duty to provide the best medical treatment available.

This judgment sets out the approach to be taken where there is a possibility that the prison authorities are failing to provide the necessary medical treatment to a prisoner (and some enquiry is called for). This approach must be followed in order to ensure the Court does not make an order that would amount to an interference with the jurisdiction of the prison authorities.

2. Media Report on Rampant Phone Trade in St. Patrick’s Institution

Date: 12/11/2012

Keywords: Young Offenders, Mobile Phones

The article brings attention to figures supplied to Labour TD Tommy Broughan revealing a rampant trade in mobile phones in St. Patrick’s Institution.

3. Media Report Arguing for the Introduction of Sentencing Guidelines

Date: 19/10/2012

Keywords: Sentencing

In this article Carol Coulter opines that the recent suspension of a sentence for a violent sexual assault highlights the absence of sentencing guidelines in Ireland.

B. United Kingdom

1. The Queen (on the application of Wilmot) v Secretary of State for Justice [2012] EWHC 3139 (Admin)

Date of Delivery: 09/11/2012

Keywords: Parole

The claimant is a discretionary life prisoner who was sentenced in 1987. He received four life sentences with a tariff set at 10 years. That tariff expired in 1996. He has been in prison for over 25 years and is 15 years over tariff and is currently detained in closed conditions at HMP Whatton.

The claimant sought to challenge the decision of the Secretary of State not to follow the recommendation of the Parole Board that the claimant be transferred to open (Category D) conditions.

The claim failed. It was held that the Secretary of State was entitled to conclude that the Board in their express reasoning had failed to properly engage with the “significant” body of evidence that the claimant was not ready for transfer to open conditions and, in particular, with the large number of outstanding risk factors suggesting he was a continuing risk of serious harm to the public.  This judgment reiterated the legality of the Secretary of State refusing to ratify a decision of the Parole Board if such a decision is rational.

2. The Queen (on the application of Whiston) v Secretary of State for Justice [2012] EWCA Civ 1374

Date of Delivery: 25/10/2012

Keywords: Parole

This case raises the question whether the revocation by the Secretary of State of a decision to release a prisoner on licence pursuant to the home detention curfew scheme is compatible with Article 5(4) of the European Convention on Human Rights.

The Court was not persuaded that the release on home detention curfew is to be viewed as the restoration of liberty sufficient to engage Article 5 if/when the prisoner is recalled to prison. The purpose of granting such freedom to the prisoner is to help him integrate into society. In the Court’s view, it is to be seen as a modified way of performing the original sentence imposed by the judge; the recall simply restores the primary way in which it was assumed that the sentence would be served. The judgment helpfully restates the ‘De Wilde’ principle which states that when a court imposes a sentence the necessary Article 5(4) supervision is incorporated into the decision as a ‘basic rule’.

Therefore, in such cases Article 5 is inapplicable.

3. Media Report on a Security Company losing Wolds Prison Contract

Date: 08/11/2012

Keywords: Prison Conditions, Prison Regimes

This article discusses how G4S, a private company, has lost its contract to run Britain’s first private prison. The Ministry of Justice said the management of the Wolds prison in east Yorkshire would go back to the public sector next July. The decision follows a critical report in August by the chief inspector of prisons which highlighted high levels of illegal drug use and significant prisoner idleness.  However the report also highlights the privatisation of five prisons.

4. Media Report on How Sentencing Reform Could Still Reduce Prison Population

Date: 01/11/2012

Keywords: Sentencing

This article highlights that the UK’s former justice secretary and current Minister without portfolio Ken Clarke’s sentencing reforms will reduce the prison population in the UK by 2,000 according to official projections. It is reported that Ken Clarke has succeeded in arresting the rise in prison numbers during his period as justice secretary and prison numbers have stabilised over the past 12 months at the 86,300 mark.

5. Media report on prison mentoring service for post-release short-term prisoners

Date: 08/11/2012

Keywords: Sentencing, rehabilitation

This article discusses the progressive idea of UK Justice Secretary Christopher Grayling’s proposals for a post-release prisoner mentoring service.  The proposal is reported to be in its infancy but is welcomed by the UK Guardian newspaper.

6. Media report on prison mentoring and post-release supervision for short-term prisoners

Date: 20/11/2012

Keywords: Sentencing, rehabilitation and prison conditions

This article is a follow on to the article of 8th of November.  It is reported that the post-release prisoner mentoring service is to be legislated upon and made mandatory.  The legislation is reported to be part of the UK Government’s ‘rehabilitation revolution’.  The article also reports upon Government efforts to prevent the use of mobile phones and the availability of Sky Television for prisoners.

7. Media report on UK Government approach to ECHR ruling in favour of prisoner’s right to vote

Date: 21/11/2012

Keywords: Prisoner’s right to vote

This article opines on the efforts of the UK Government to refuse to give effect to the ECHR rulings on prisoner’s right to vote.  The article compares the arguments of the UK Government on this issue to those other European state’s on issues to which the ECHR has reprimanded them upon.

8. Media report on UK Government confirmation it will legislate for the ECHR ruling in favour of prisoner’s right to vote.

Date: 22/11/12

Keywords: Prisoner’s right to vote

This article reports upon the announcement by the UK Government that it will draft legislation  on the issue of prisoner’s right to vote.  The draft legislation may be rejected in time by the Parliament.  It is reported that there is little parliamentary support to the right of prisoners to vote.

9. Media reports on life without the possibility of parole

Date: 21st November 2012

Keywords: Sentencing, parole.

These article reports upon the ruling of Court of Appeal that whole-life tariffs can be lawful.  It is reported that the judgment of the Lord Chief Justice Lord Judge, held that such sentences did not offend Article 3 of the ECHR. 

C: Northern Ireland

1. McCauley (James) Application [2012] NIQB 74

Date of Delivery: 12/10/2012

Keywords: Parole, Sex Offenders

The claimant prisoner, a convicted sex offender, sought judicial review of a decision of the defendant parole commissioners to revoke his licence. In November 2009, he was released on licence after being assessed as no longer posing a risk of serious harm to the public, but was recalled to prison in March 2011. Following his recall, a single commissioner undertook a further review under the Criminal Justice (Northern Ireland) Order 2008 art.28 and provisionally directed that he should be released. In error, the prisoner was then released on licence on July 6, 2011 without his case being considered by a panel of commissioners, as required by the Parole Commissioners' Rules (Northern Ireland) 2009 r.6(3)(a). The error came to light on October 2, 2011 and a panel of commissioners was convened on December 15, 2011. On January 11, 2012 the panel decided that the licence should be revoked. The prisoner was returned to custody on January 13.

The prisoner submitted that (1) the decision of January 11, 2012 was tainted by illegality; (2) he had acquired a legitimate expectation of release; (3) the decision was irrational as it focussed on the risk assessment at the point of recall in March 2011, thus excluding consideration of the six months when he had been released without incident. The application was refused.

D. United States of America

1. Media Report on the Narrow Loss of California’s Death Penalty Referendum

Date: 09/11/2012

Keywords: Sentencing, Death Penalty

California's Proposition 34 – the anti-death penalty ballot initiative – was narrowly defeated by a vote of 52.8% to 47.2%. The loss is a setback for the death penalty abolition movement, but a temporary one, according to this article. This article highlights how California's “death machine” is irreparably broken, as is the state's larger criminal justice system, making the abolition of capital punishment inevitable.

2. Media Report on the Softening of Three-Strikes Law in California

Date: 09/11/2012

Keywords: Sentencing

This article reports how California’s voters softened one of the nation’s most severe sentencing policies when they approved a ballot initiative revising the infamous three-strikes law of 1994, which imposes a life sentence for any felony conviction - no matter how minor - if the defendant has two previous serious convictions.  The amendment allows for a life sentence on a ‘third- strike’ if the third offence is serious or violent.

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