Ireland

National context

The prison system in Ireland consists of 14 prisons and places of detention of varied security regimes. Seven of those are located in or close to Dublin, with the remaining seven serving different parts of the country outside of the capital. Ireland has only one high security prison in Portlaise, County Laois (male).[1] There are two open, low security prisons – Loughan House in County Cavan and Shelton Abbey in County Wicklow – for male prisoners. There is no open prison provision for women. Women prisoners are committed to the Dóchas Centre (part of the Mountjoy Prison Campus in Dublin) or to Limerick Prison. Whilst the Dóchas Centre is a purpose built, separate prison for women, in Limerick women are accommodated in a separate wing of an otherwise male establishment. A specialised Training Unit (part of the Mountjoy Prison Campus) is a semi-open low security prison for male offenders which focuses on education and training.[2]

St Patrick’s Institution (part of the Mountjoy Prison Campus) and Wheatfield Place of Detention in Dublin both hold 17-year-old male prisoners – the former those who are on remand, the latter those who are committed on sentence. As of 11th December 2015, there were no remand prisoners in St Patrick’s; however, thirteen 17-year olds were held in Wheatfield Place of Detention (an adult prison).[3]

The operational (bed) capacity of the Irish prison system as of 11th December 2015 was 4,116, with the number of prisoners in custody standing at 3,746.[4] According to the measurement by bed capacity (rather than design capacity), three prisons were overcrowded on that particular date: Mountjoy (female) at 104% capacity; Limerick (male) at 105% and Limerick (female) at 104%.

Whilst the number of prisoners in custody has fallen in recent years, the number of committals to prisons in Ireland is still very significant at 16,155 in 2014.[5] This was an increase of 2.7% on 2013.[6] Of those, 9,361 were for sentences of less than three months;[7] 8,979 people have been committed to prisons in 2014 for non-payment of fines.[8] Slightly over 90% of all committals to prison were for sentences of 12 months or less.[9] Finally, 407 committals (involving 390 detainees) in 2014 were effected on the basis of immigration law.[10]

While significant improvements have been made to the physical conditions in prisons in recent years, a number of concerns remain. As of October 2015, only slightly above half of prisoners were accommodated in single cells (55%).[11] Eight per cent of prisoners (284 individuals) were still required to ‘slop-out’ (a practice of disposing of human waste from buckets available in cells instead of having in-cell sanitation), while 37% of prisoners (1,367) were required to use toilet facilities in the presence of another prisoner.[12]

In October 2015, 389 prisoners were subject to a restricted regime.[13] The number of prisoners on 22 and 23-hour lock-up in October 2015 was 78.[14]

The most recent report of the European Committee for the Prevention of Torture (CPT) on their visit to Ireland in September 2014, acknowledged the considerable steps taken by the Irish authorities to improve conditions in prisons, including the reduction in overcrowding.[15] It has, however, noted a number of issues of concern, among those:

  1. the continuing use of slopping out by over 300 prisoners in the State at the time of the visit;
  2. the use of excessive physical force and verbal abuse by a small number of prison staff;
  3. the still-high levels of inter-prisoner violence;
  4. shortcomings in the investigations of deaths in prison, and in particular the lack of any internal review mechanism;
  5. shortcomings in the provision of healthcare in some of the prisons, with a recommendation that the Irish authorities should commission an independent body to review such provision;
  6. the continuing detention in prisons of persons with severe mental health problems, for whom care cannot be appropriately provided in the prison environment;
  7. issues regarding the separation of prisoners deemed a risk to others, with a recommendation from the CPT that clear rules and procedures are established to govern such segregation;
  8. the continued use in disciplinary proceedings of the sanction of a “loss of all privileges”, placing prisoners in conditions akin to solitary confinement for up to 56 days;
  9. the shortcomings in the implementation of the new Prisoner Complaints Policy, in particular with respect to prompt investigation and evidence collection relating to the most serious of complaints.

Bodies in charge of the prisoners’ complaints

A. Judicial protection

Protection of rights under the Irish Constitution (Bunreacht na hÉireann) 1937

A number of fundamental rights are explicitly protected in the Irish Constitution, Articles 40 to 44.[16] Of relevance to the current report, are the following rights:

  1. Equality before the law (Article 40.1);
  2. The right to life, protection of the person, their good name and their property (Article 40.1.2);
  3. The right to be free from arbitrary detention (Article 40.4.1);[17]
  4. Freedom of expression, assembly and association (Article 40.6.1);
  5. Protection of the family (Article 41.1.2);
  6. Freedom of conscience and religion (Article 44.2.1).

The constitutional jurisprudence in Ireland has long established – although not without controversy – that a number of unenumerated rights are also protected. In the case of Ryan v Attorney General,[18] it was held that the plaintiff enjoyed a constitutional right to bodily integrity, and that “the rights guaranteed by the Constitution were not confined to those to which the document extends express recognition”.[19] Since Ryan, the courts have recognised as many as twenty personal unenumerated rights, which include the right to privacy,[20] the right to bodily integrity, including the protection of mental health, and freedom from torture, inhuman and degrading treatment or punishment.[21] It is open for prisoners and their legal representatives to argue the protection of Constitutional rights in plenary summons proceedings or judicial review proceedings.

With respect to prisons, while the courts in Ireland have always been clear that prisoners retain certain rights under the Constitution, the doctrine of necessary limitations on the exercise of many of the rights due to the fact of imprisonment has been prevalent. This is expressed in the case of State (McDonagh) v Frawley where the court held that:

“…while …held as a prisoner pursuant to a lawful warrant, many of the applicant’s normal constitutional rights are abrogated or suspended. He must accept prison discipline and accommodate himself to the reasonable organisation of prison life laid down in the prison regulations”.[22]

However, the courts also recognise that any limitations on the exercise by prisoners of their constitutionally protected rights must be proportionate and that “those rights which are not necessarily diminished must continue to be upheld”.[23] This principle was expressed in the case of Mulligan v Governor of Portlaoise Prison, where the court held that any restrictions:

“… must be proportionate; the diminution must not fall below the standards of reasonable human dignity and what is expected in a mature society. Insofar as practicable, a prison authority must vindicate the individual rights and dignity of each prisoner.”[24]

In discussing the protection under the Constitution, it is important to add that the courts in Ireland have also traditionally allowed prison governors a wide margin of appreciation in relation to the application of prison rules, and in many instances subjugated the protection of the rights of prisoners to the protection of security and good order in prisons.

The Prison Rules 2007

The day-to-day operations of prisons are governed by the Prison Rules 2007 (2007 Rules) which outline the statutory basis for the treatment of prisoners while in the custody of the Irish Prison Service.[25] The 2007 Rules contain regulations concerning, amongst others:

  1. Reception and registration of prisoners (Part 2 of the 2007 Rules);
  2. Treatment of prisoners (Part 3), including amongst others regulations relating to accommodation, prison hygiene, clothing, bedding, food and drink, sanitary and washing facilities, out-of-cell time and structured activity, employment, support services, contact with the outside world (including visits, letters and telephone calls), privacy, searches, remission, transfer and release. This section also includes the rules relating to grievance procedures (complaints) described in more detail below;
  3. Control, discipline and sanctions (Part 4 of the 2007 Rules);
  4. Young prisoners (Part 5);
  5. Prisoners not serving a sentence (remand prisoners)(Part 6);
  6. Governors (duties and functions)(Part 7);
  7. Prison officers (duties and functions)(Part 8);
  8. Healthcare (Part 10);
  9. Education (Part 12);
  10. Vocational training (Part 13);
  11. Psychology service (Part 14) and
  12. Chaplains (Part 15).

While it is generally accepted that the 2007 Rules are justiciable and their breach may give rise to judicial review proceedings (with all the remedies described below available to the judges), it is not clear if such a breach can also be considered a breach of a statutory duty.[26] Additionally, the Rules give the prison authorities wide discretion in their implementation and many of the them are only implemented ‘as far as practicable’,[27] providing a gateway to limitations based on, for example, good order and security of the prisons.

Informal court complaint

Any prisoner in Ireland may write to the Central Office of the High Court and make a complaint regarding the basis or conditions of their detention.[28] These complaints are informal in nature and do not follow specific rules of the court. Where such complaint is made, the Court will investigate, including through asking for a report from the governor of the appropriate prison. A ruling on the complaint is given in open court and the procedure

“[…] is a highly effective means of ensuring that prisoners are not isolated and that they have an ultimate authority to which to turn on matters of law. The informality of the system is of core benefit to its administration. Nothing about that informal procedure disables any form of judicial review […]. Nor could that system undermine the entitlement of an interested party to apply for habeas corpus by way of an application to a judge of the High Court in the ordinary course. The procedure is in addition to other rights and procedures. It amounts to an exceptional means of access to the High Court that is for the benefit of prisoners.”[29]

This procedure is available to any prisoner, remanded or sentenced. It does not require the prisoner to have legal representation. It is unclear how often this procedure is used in practice.

B. Non-judicial protections

Prisoners’ Complaints under Prison Rules 2007

Following their enactment in 2007, the Rules contained only very general provisions regarding a grievance procedure (complaints mechanism) available to prisoners, introducing three avenues for complaints:

  1. A meeting with a governor (Rule 55);
  2. A meeting with the Visiting Committee (Rule 56) and
  3. A meeting with officer of the Minister (for Justice, Rule 57).

Under Rule 55(1), if the prisoner so requests, the governor should meet with the prisoner as soon as is practicable. Where at such a meeting the prisoner makes a complaint, the governor should (again, as soon as practicable) inform the prisoner of an outcome of such a complaint.[30] In accordance with Rule 55(3), the governor should record the time and date at which the initial meeting with the prisoner took place, the nature of the complaint and record any decision taken in relation to the complaint. Even lesser procedural detail is provided with regard to meetings with a Visiting Committee, where Rule 56 states only that the Governor should pass on the prisoner’s request for such a meeting to the Committee “without undue delay”.[31]

A meeting with an officer of the Minister (other than the governor, a prison officer or another person working in the prison[32]) can be used by a prisoner to make a complaint or to appeal a decision made by a governor on a complaint already lodged.[33] A prisoner has to make a request in writing for such a meeting, and the Governor, without undue delay, should pass on such request to the Director General of the Prison Service.[34] An officer of the Minister is then required to meet with the prisoner as soon as possible to hear their complaint.[35] Where at the meeting a prisoner makes a complaint, or appeals a decision on a previous complaint, and where an action by a governor is required, the officer of the Minister can make a recommendation to the governor or advise the prisoner to make a complaint to the governor.[36] The officer of the Minister also has the power to direct a governor to comply with any such recommendations.[37] Under Rule 57(6), a record is kept by a governor of the name of the prisoner who requested the meeting, the date of the request, the date on which such a request was forwarded to the Director General of the Prison Service, the date of the meeting, any recommendation or direction made under Rule 57 and any action taken by the governor as a result of such a recommendation or direction.

The Prison Rules (Amendment) Act 2013 (the 2013 Act) introduced a more detailed procedure for the investigation of the most serious categories of complaints.[38] Under new Rule 57A(1), any allegation by a prisoner to a prison officer or a member of staff of the Irish Prison Service that an act has been committed which may constitute a criminal offence, must be notified to the governor and to the police. The governor must, on such notification, record the name of the complainant and the date and time when the complaints was made, the details of the complaint, the time of the notification to the appropriate governor, the time and date ofnotification to the police and the name of the police officer who received the notification. On notification of any such complaint, the governor must preserve any evidence relating to it (such as CCTV records), arrange for the prisoner to be examined and any injuries recorded, and arrange for the names of all potential witnesses to be recorded (this may include prisoners, staff and others).[39]

Notwithstanding any investigation under the new Rule 57A (as outlined above), an internal report now has to be made on any complaints alleging:

  1. Assault or use of excessive force against a prisoner and
  2. 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.[40]

Where such complaints of serious misconduct are made, the relevant prison officer or other person to whom the complaint is made, has a duty to inform the appropriate governor, and the governor then records the relevant details.[41] The prisoner should be provided with assistance to record his complaint in writing and given assurance by the relevant governor that he or she will take steps to protect the prisoner from victimisation.[42] As with any complaints made under Rule 57A, the appropriate governor should preserve any evidence relating to the complaint and record the names of witnesses. Additionally, she or he should inform the prisoner that the complaint is being investigated and explain to them any relevant procedures.[43] The complaint then needs to be notified to the Director General of the Prison Service and the Inspector of Prisons within 7 days.[44] Complaints made under the new Rule 57B are independently investigated by persons not connected to the particular prison,[45] and the prisoner must be made aware of their identity and contact details.[46] The independent investigators then advise whether there are any grounds for the complaint and make recommendations on the future management of serious complaints or on their subject matter.[47] Normally, a report on the investigation should be provided within three months,[48] including the reasons for any final outcome.[49] If the prisoner is not satisfied with the outcome of the investigation, he or she may write to the Inspector of Prisons or the Director General of the Prison Service.[50] This, however, does not constitute a formal appeal, a fact confirmed by the Irish authorities to the European Committee for the Prevention of Torture.[51]

The Irish Prison Service “Prisoner Complaints Policy”

The Irish Prison Service Prisoner Complaints Policy (the Policy) was published in June 2014,[52] following over 20 years of sustained criticism and national and international pressure to improve the internal and external systems of protection of prisoners’ rights.[53] The Policy outlines the modes of investigation of different levels of complaints (including those made under Rules 55, 57A and 57B of the 2007 Rules as described above), categorised according to their seriousness and/or according to the addressee of the complaint.

In accordance with the Policy, Category A complaints are those defined in section 57B (1) of the Prison Rules 2007 and, to reiterate, include “Assault or use of excessive force against a prisoner or ill treatment, racial abuse, discrimination, intimidation, threats or other conduct against a prisoner of a nature and gravity likely to bring discredit on the Irish Prison Service”.[54] The procedure for the investigation of Category A complaints is prescribed in the Prison Rules 2007, Rules 57A and 57B, as outlined in the preceding section of this report.

In accordance with the Policy, Category B complaints are complaints of a serious nature, which do not fall under any other category. These may include, for example, complaints about verbal abuse of prisoners by staff or inappropriate searches.[55] Category B complaints are investigated by a Chief Officer and an outcome can be appealed to the Governor, and then further be subject to a review by the Director of the Irish Prison Service.[56] Any such complaint should be investigated within 28 days,[57] and the prisoner has to be notified of the outcome within 7 days of the investigation being completed.[58]

Category C complaints are described by the Policy as “basic service level complaints” which may include issues around visits, phone calls, missing clothes, etc.[59] These are investigated by Class Officers (senior officers) and may result from both a verbal or written complaint.[60] While a reply or acknowledgment of a Category C complaint has to be provided to the prisoner within 24 hours, there is no actual limit on how long the resolution may take. The relevant prisoner should be kept aware of any development relating to his or her complaint, and be notified when the complaint is resolved.[61] There is no formal appeal for Category C complaints should a prisoner not be satisfied with how his or her case has been dealt with.[62]

Category D complaints concern any issues that arise from the provision of professional services, such as healthcare and legal advice. While the Policy states that these should be resolved locally, the prisoner may also be informed of the possibility to complain to relevant professional bodies.[63]

Category E complaints are those made by the visitors to the prison. The Policy is extremely brief in respect of those, stating that relevant forms will be made available in relevant areas of the prison. While stating that these “will be investigated”, the Policy is silent on who will be investigating them and what the process is.

Finally, Category F complaints relate to the decisions taken by the Irish Prison Service (Headquarters) about, for example, the granting of temporary release or prison transfer.[64] If a prisoner raises any queries relating to such decisions, requests for information should normally be dealt with within 7 days, with response to complaints about decisions taken having a time limit of four weeks.[65]

While the introduction of a more transparent prison complaints policy is a welcome development, its complexity can potentially create a barrier to prisoners who wish to complain. Additionally, it is of concern that complaints falling into categories C to F do not have an appeal mechanism, and in some cases the procedure for investigation is extremely vague.

C. External national accountability mechanisms.

Inspector of Prisons

The Office of the Inspector of Prisons was established in 2002, and placed on a statutory footing by the Prisons Act 2007. The Inspector is appointed by the Minister for Justice and Equality but acts independently from Government.[66] In accordance with Sections 31(1) and 31(2) of the Prisons Act 2007, the Inspector is obliged to carry out regular inspections of all prisons, and for that purpose enjoys unfettered access to any prison establishment; can request any documents held in the prison, as well as bring any issues of concern to the prison Governor, the Director General of the Irish Prison Service or the Minister for Justice.[67] The Minister for Justice can additionally ask the Inspector to investigate any matter relating to the management or operation of a prison, and report to her/him on any such investigation.[68] The Prisons Act 2007 outlines the general areas on which the Inspector is obliged to report in respect of any prison. These include:

  1. the general management of the prison, including the level of its effectiveness and efficiency;
  2. the conditions and general health and welfare of prisoners detained there;
  3. the general conduct and effectiveness of persons working there;
  4. compliance with national and international standards, including in particular the Prison Rules;
  5. programmes and other facilities available and the extent to which prisoners participate in them;
  6. security, and discipline.[69]

All reports by the Inspector are presented to the Minister for Justice, who then presents them to the Dáil (the lower house of the Irish Parliament) and publishes them.[70]

The Inspector of Prisons is expressly excluded from investigating or adjudicating on individual complaints from prisoners, although he or she may examine the circumstances relating to such complaint where necessary for the performance of the Inspector’s functions.[71] Since the amendment of the Prison Rules 2007 in 2013, to include a mechanism for investigation of Category A complaints (as outlined above), the Inspector of Prisons also oversees all investigations of such complaints.[72] The initial remit of inspection and monitoring of prisons by the Inspector was extended in January 2012 to include all investigations into deaths in custody of the Irish Prison Service (those include deaths on temporary release).[73] In addition to conducting announced and unannounced inspections of all prisons, the Inspector also publishes an Annual Report, and thematic reports, such as the Report of an Investigation on the Use of ‘Special Cells’ in Irish Prisons in 2010.[74] All reports into deaths in custody are also made publicly available.[75]

The current Inspector of Prisons in Ireland is Judge Michael Reilly, appointed to the Office in 2008. Following his appointment, Judge Reilly set out a number of Standards for the Inspection of Prisons in Ireland, with the general Standards and those for the inspection of juvenile facilities published in 2009, and further Standards for women’s prisons published in 2011.[76] All Standards were developed taking account of the legal obligations to prisoners, imposed by both domestic and international law, including by the European Convention on Human Rights (ECHR). It is interesting to note that one of the main reasons, as outlined by the Inspector, to provide such a set of standards is the threat of litigation under both the national and international legislation. Currently, however, those standards are non-enforceable and remain simply guidance on the rights and obligations of prisoners.

The Standards as published by the Inspector are used as benchmarks in his announced and unannounced inspections of all prisons. The procedure for inspection, outlined in the Annual Report 2009 is based on a consultative approach, with inspections of particular prisons extending over a number of months. Detailed inspections begin with an unannounced visit which lasts for a minimum of two days.[77] A notice is then issued to the Governor relating to any matters which are of concern to the inspector, who then in turn works with the Governor to address them.[78] A full, announced inspection is then carried out two to three months after the initial visit, with other, shorter visits taking place in between.[79] The process of inspection, therefore, results in a report which reflects the situation in a particular prison over time rather than at one particular moment.[80]

Outside of the detailed inspections, the Inspector of Prisons can also undertake ad-hoc visits.[81] The general consultative approach to detailed inspections does not apply to situations where the Inspector finds serious and immediate issues to be addressed, in which case he informs the Minister immediately rather than by inspection report.[82]

Visiting Committees

Every prison and place of detention in Ireland has its own Visiting Committee, operating under the Prisons (Visiting Committees) Act 1925 (the 1925 Act) and the Prisons (Visiting Committees) Order 1925 (the 1925 Order). Each Committee consists of a number of independent members (between six and twelve),[83] appointed for a three-year term by the Minister for Justice and Equality.[84] Under the 1925 Act, the Visiting Committees must visit prisons regularly and can hear complaints from prisoners;[85] report to the Minister for Justice on any abuses observed in a prison;[86] report to the Minister on any repairs which the Committee considers the prison to require urgently;[87] and report to the Minister on any other matter which the Committee considers to be necessary.[88]

Members of Visiting Committees enjoy unfettered access to all parts of the prison[89] and can access all prison documentation.[90] Under Section 56 of the Prisons Act 2007, a prisoner can also request a meeting with the Visiting Committee or an individual member of it through the governor of any prison. The Visiting Committees report annually to the Minister for Justice and Equality. All reports are made available on the Department of Justice and Equality website.[91]

Eleven of the 14 Visiting Committees published their Annual Reports for 2014.[92] The Annual Reports are of differing length and format, and also tend to be very descriptive, rarely containing any critical commentary on prison conditions or prisoner complaints. Only three of those give an indication of the nature of complaints or requests brought by prisoners to the Visiting Committees; these are outlined below:

  1. Mountjoy Prison: the Committee noted that the number of complaints from prisoners has shown a slight reduction on the previous year (2013), it does not however provide any numbers. The Committee states that complaints referred to a number of areas, including contact with children and family, personal security, screened visits, loss of clothing, speed of mail handling, temporary release, access to medical services, dental services and library books.
  2. Midlands Prison: there, the Committee met with 38 prisoners during the year. Main areas of complaints concerned missing property, healthcare issues, inter-prison transfers, issues with the tuck-shop, remission requests and requests about work or training.
  3. Limerick Prison: with very little detail provided, the Committee refers to complaints about transfers to other prisons; access to healthcare and medication; and positive indications by drug dogs.

No other reports provide any detail of the prisoners’ concerns brought to the attention of the Visiting Committee.

Remedies

Procedural requirements – judicial protections

Proceedings concerning the protection of constitutional rights (which would normally be connected to an alleged breach of the Prison Rules) can be instituted by way of plenary summons proceedings (with pleadings and hearing of oral evidence) or judicial review proceedings in the High Court. Plenary proceedings have the advantage of the prisoner and their legal representatives being able to call evidence and cross-examine witnesses,[93] while judicial review is normally a much speedier procedure.[94] Plenary proceedings may “offer more room to examine the issues, and are often more appropriate when prison conditions are the cause of complaint”.[95]

Depending on the relief sought in either of the type of proceedings, the Court has a number of options regarding the issuing of relevant orders:

  1. An order of certiorari is an order quashing or cancelling a decision (in this case, of the prison authorities) on the basis that it was illegal or unconstitutional. Successful application for an order of certiorari means that any decision will be deemed null and void. The court may also issue an order of prohibition that prevents a decision from being taken in the first place.
  2. An order of mandamus is an order issued by the court to a public authority (such as the Prison Service) for the authority to perform some specific act (or to refrain from doing something) to fulfil its statutory duty. As per Ananyev v Russia,[96] such order will be regarded as a preventative remedy, designed to improve the material conditions of detention. In Ireland, judges have traditionally refrained from interfering with the duties of the executive (separation of powers) and, as mentioned previously, have given Governors considerable latitude regarding the management of prisons. In light of this, “Mandamus is a difficult remedy to obtain in a prison context, but may be given in an appropriate case”.[97] In the case of Mulligan,[98] the court held that in an appropriate case it has

    “[…] jurisdiction to actually direct improvements in prison conditions where warranted to vindicate a constitutional right, and where the vindication of such right is not constrained by boundaries such as practicability. […] The protection and vindication of that right might then have to be balanced against other constitutional provisions.”

    The above quote illustrates, however, that even where there exists a possibility of obtaining such a court order, any action required of the Prison Service would be judged against practical considerations of what is possible within the prison context.

  3. In judicial review proceedings, the court may also award damages to the applicant (a compensatory remedy) provided that the applicant includes in a statement grounding his application a claim for such damages.[99]

Habeas Corpus proceedings

Habeas Corpus proceedings are a non-general remedy, accessible only to those who are subject to detention. Such detention may, however, be non-related to criminal proceedings (for example, detention on account of mental health difficulties). Habeas Corpus application (under Article 40.4 of the Constitution) is an application for release in situations where the plaintiff argues his or her conditions are such that they endanger their life or health.

The burden of proof lies with the plaintiff (the prisoner) and has two apparent parts: one, to prove that the conditions of detention are such that they render the detention unlawful and two, that the prison authorities are unwilling or unable to appropriately remedy the conditions.[100] A judge can also convert judicial review proceedings into an Article 40.4 inquiry (and vice-versa) should they decide that, in the circumstances of a particular case, habeas corpus proceedings would be more appropriate.[101]

The question in habeas corpus proceedings is “whether the conditions are so poor that immediate release is warranted”.[102] This would only happen in very exceptional circumstances “where the conditions under which a prisoner is being detained can invalidate a detention which is prima facie legal and authorised by a warrant”.[103] The Irish courts have consistently held that normally, prisoners should seek remedies by way of other forms of procedure, i.e. a constitutional complaint in plenary proceedings or judicial review.[104] Habeas corpus, it is held, “is a unique and important remedy, which may be sought swiftly to enable an inquiry into the detention of a person. The relief sought is the release of that person. It does not have a wider ambit. It is not a judicial review, nor it is a plenary summons’.[105] As such, not only is it an exceptional remedy, it is also very unlikely to succeed in situations where the person has been convicted of a criminal offence, and is being held on the basis of a lawful warrant.

Civil action

Another avenue for prisoners of taking cases against the prisons is civil action. Such actions can be taken in cases where it can be argued that the Prison Service and/or the individual prison had a duty of care towards the prisoner, and that duty was breached. Examples of possible avenues include:

  1. Cases under the Occupiers’ Liability Act 1995: these are cases where it can be argued that the Prison Service owed a duty of care to a particular prisoner as a ‘visitor’ to their premises (the prison). Examples of issues considered under this legislation include the case of Power v Governor of Cork Prison[106] in which the judge found in favour of the applicant who slipped on a wet floor in the prison toilet, sustaining head injury. In the particular circumstances of the case (where it was clear that the plaintiff did not contribute to the fall), the judge stated the prison owed a duty of care to prisoners to provide them with a safe environment. In the case, the judge awarded the plaintiff substantial compensation.
  2. Cases concerning the duty to protect prisoners from attacks by other prisoners: these are cases where a liability can be established due to the prison’s “failure to take due care to protect prisoners in their charge from being injured by other prisoners”.[107] In Creighton v Ireland & Ors,[108] Peter Creighton was attacked by another prisoner and seriously injured while waiting to be provided with a dose of Methadone in the Medical Centre in Wheatfield Prison. Amongst other arguments pursued, Creighton argued that the prison should have provided more staff in the particular part of the waiting area holding a large number of prisoners, to prevent the attack. While the judge disagreed that more staff would have necessarily prevented the attack, he stated that presence of staff among the prisoners would have resulted in a speedier intervention and the break up of the assault. The judge ordered that Peter Creighton be paid €40,000 in damages in respect of the serious injuries sustained to his face, his scalp, his flank posterior and his abdomen. Following an appeal, the Supreme Court stated that certain evidential issues should have been considered by the High Court judge in greater detail, and sent the case back for consideration in that Court, setting aside the original compensation order.[109] The case was finally resolved in 2013,[110] when the judge in the re-trial stated that the practice of congregating large number of prisoners in the same area at the Medical Clinic breached the prison’s duty of care towards the prisoners, including Peter Creighton and ordered €150,000 in general damages to be paid to him at the conclusion of the case.[111]
  3. Cases taken under the Safety, Health and Welfare at Work Act 2005, certain provisions of which apply to prisons (subject to considerations of safe custody, good order and security).[112]

A note on the European Convention on Human Rights Act 2003

The European Convention on Human Rights has been incorporated into the Irish domestic legal system through the introduction of the European Convention on Human Rights Act 2003 (the 2003 Act).[113] The decision to incorporate the Convention largely stemmed from the provisions of the Belfast (Good Friday) Agreement 1998, ending hostilities in Northern Ireland. The Agreement, signed by British and Irish Governments, included a commitment to strengthening the protection of human rights in both jurisdictions, including through the incorporation of the ECHR.[114]

The 2003 Act provides for an interpretative incorporation of the Convention at a sub-constitutional level[115] and creates a number of obligations for the courts and “organs of the State”:[116]

  1. In accordance with Section 2(1) of the 2003 Act, the courts should – in interpreting and applying any statutory provision or a rule of law – in so far as is possible do so in a manner which is compatible with the State’s obligation under the Convention.
  2. In interpreting and applying the Convention provisions, the courts should take notice of any declaration, decision, advisory opinion or judgment of the European Court of Human Rights, the former European Commission on Human Rights and the Council of Ministers (in areas where it has relevant jurisdiction), and take due account of the principles laid down in such decisions in their judgments (Section 4 of the 2003 Act);
  3. In accordance with Section 3(1), subject to any statutory provision (other than 2003 Act) or rule of law, every organ of the State should perform its functions in a manner compatible with the State’s obligations under the Convention.

Two avenues of redress are specifically created by the 2003 Act:

  1. A tortious action (civil action) for a breach of statutory duty by the “organs of the State” under Section 3 of Act, for which damages or other equitable relief may be awarded. This action will be available only in cases where no other remedy exists;
  2. A declaration of incompatibility (of a statutory provision with the Convention; Section 5(1) of the 2003 Act) which may provide grounds for an ex gratia award of damages.[117]

Litigation with reference to the 2003 Act is a non-specific remedy (i.e. it can be accessed by everyone rather than being specific to prisoners).

Simplicity/accessibility of procedures

Internal complaints procedures – IPS Prisoner Complaints Policy

Since the introduction of the new Prisoner Complaints Policy in 2014, all prisons should have accessible complaints forms and boxes. The complaint form is quite simple, and requires the prisoner to give their name; prison number and their location (location of their cell), as well as provide the details of the complaint and names of any witnesses.[118] The Governor is obliged to assist any prisoner who may have a difficulty completing a form (for example, because of literacy issues or disability).[119] The form is then left in a complaint box, which is to be emptied every day and form collected centrally. Each is recorded, photocopied (with a copy provided to the prisoner in question in a sealed envelope), and then categorized by the Governor.[120] Complaints are then investigated according to the procedure outlined for a specific category.

The most serious complaints fall under Category A and Category B. For Category A complaints, it is a duty of the Governor to collect and preserve evidence relating to the complaint.[121] On being notified of the complaint, the Governor has to: preserve all relevant material, including CCTV recordings; arrange for the prisoner to be medically examined and their injuries recorded and photographed if any physical use of force was alleged; arrange for the names of all witnesses to be recorded and inform the complainant that their complaints is being investigated and of the procedures involved in such an investigation.[122] The evidence then must be provided to the Director General of the Prison Service within 7 days of the complaint being notified to the Governor. When the complaint is referred to external investigators under Rule 57B of the Prison Rules 2007 (Cat. A complaints), the investigating team may gather further evidence, interview relevant persons and take statements.[123] The time limit for such investigation is 3 months.

For Category B complaints, the evidence is gathered by the Chief Officer appointed by the Governor to investigate the complaint.[124] Such investigation must end within 28 days. On conclusion of the investigation, the Chief Officer makes a decision (with reasons). For Category C, there may be an investigation by an officer of a rank not lower than Class Officer, but there are no evidence gathering rules prescribed.[125]

Courts

As stated above, proceedings concerning the protection of rights can be instituted by way of plenary summons proceedings (with pleadings and hearing of oral evidence) or judicial review proceedings in the High Court. Plenary proceedings have the advantage of the prisoner and their legal representatives being able to call evidence and cross-examine witnesses,[126] while judicial review is normally a much speedier procedure. Judicial reviews focus on analysis of sworn affidavits, which in certain cases may be amended after the Court has made itself familiar with the case.[127] Plenary proceedings may “offer more room to examine the issues, and are often more appropriate when prison conditions are the cause of complaint”,[128] but will take longer as a procedure.

The procedure for judicial review has two stages. First, the applicant will seek permission (leave) for judicial review, telling the court what remedy is being sought and on what grounds. The application should be supported with sufficient written evidence (in the form of sworn affidavits) from witnesses relevant to the case. In judicial review, affidavits may also come from expert witnesses (these will normally be organized by a solicitor). Application for leave happens without the involvement of the respondent. When leave is granted, affidavits supporting the application are then served on the respondent who can provide written sworn evidence to counter-argue the case. A date of the hearing is then set. Judicial review proceedings usually happen without oral evidence, and arguments are based on the affidavits submitted by both sides.[129]

Additionally, as mentioned before, any prisoner in Ireland may write to the Central Office of the High Court and make a complaint regarding the basis or conditions of their detention.[130] These complaints are informal in nature and do not follow specific rules of the court. Where such complaint is made, the Court will investigate, including through asking for a report from the governor of the appropriate prison. A ruling on the complaint is given in open court. This procedure is available to any prisoner, remanded or sentenced. It does not require the prisoner to have legal representation. It is unclear how often this procedure is used in practice.

Legal Aid in prison cases

There is nothing in the law in Ireland that requires that prisoners be represented in cases relating to their treatment in detention. Prisoners can represent themselves, and can instigate habeas corpus proceedings, as well as judicial review or plenary proceedings, through direct petition.[131] The complexity of proceedings, including of evidential requirements, makes representation important, if not necessary.

Ireland has a number of legal aid schemes, administered by the courts and by the Legal Aid Board.[132] Of importance to this report is the Legal Aid – Custody Issues Scheme which is an ex gratia scheme which covers certain types of cases taken by prisoners. Those include: habeas corpus applications, High and Supreme Court Bail Motions, certain types of judicial review, and extradition and European Arrest Warrant (EWA) applications.[133] Judicial reviews covered by the Scheme are those which: include application for an order of Certiorari, Mandamus or Prohibition and concerning criminal matters or matters where the liberty of the applicant is at issue.[134] The Legal Aid Board administers the Scheme, and the budgetary responsibility for it lies with the Department of Justice.[135]

Access to the Scheme is not automatic, and the applicant must satisfy the Court that s/he is not able to retain a solicitor using her or his own funds. The application for legal aid should be made at the commencement of the proceedings.[136] The Court then makes a recommendation to the Legal Aid Board as to whether the applicant should be given access to the Scheme,[137] and where the Court is satisfied that assignment of a counsel/solicitor is warranted by the nature of the case.[138] Representation paid from the Scheme is limited only to the remit of the Scheme, so for example, if a prisoner wanted to take civil action (while in custody) alongside a habeas corpus application, only representation for the latter would be funded from the Scheme. Proceedings covered by the Scheme must be taking place in the High Court or the Supreme Court. Where there is more than one applicant, but only one matter is at issue before the Court, the solicitor and the counsel assigned shall represent all the applicants.[139]

The solicitor on record in the case can engage the services of an interpreter and claim the costs of such assistance, provided that interpretation or translation are deemed essential to the preparation and conduct of their client’s case.[140] Where the costs of interpretation or translation are in excess of €2,000, the solicitor must obtain three different price quotes and provide proof of such quotes with the final claim.[141] Similar rules apply to services of expert witnesses which may be covered provided that such services are essential to the proper preparation and conduct of the case.[142]

Legal aid is also available for civil cases. This is means tested, taking into consideration both the person’s income and capital.[143] The person applying for civil legal aid must also show that their case has merit before being awarded the financial support. In nearly all cases, a financial contribution has to be made by the applicant.[144] The Legal Aid Board can recover the cost of legal aid from any monies that are awarded as a result of the case taken with their support.[145]

Procedures regarding disciplinary issues

Disciplinary sanctions

Disciplinary procedure in Ireland is outlined in Part 3 of the Prisons Act 2007 and Rules 66 to 68 of the Prison Rules 2007. The Governor of the individual prison conducts the initial inquiry into an alleged breach of discipline.[146] The decision to hold such an inquiry lies with the Governor and he or she may choose not to hold one, in which case they need to record the reasons for such a decision.[147]

At the conclusion of an inquiry into an alleged breach of discipline, the Governor will make a finding related to the allegation.[148] If the Governor decides that a breach of discipline took place, he or she can impose a range of sanctions outlined in Section 13 of the Prisons Act 2007. These include, inter alia, a caution; a reprimand; confinement to a cell for a period not exceeding 3 days; prohibition (for a specified period not exceeding 60 days) of taking part in certain activities, or having visits or letter/phone contact with persons from outside; loss of up to 14 days remission. The Governor can suspend the execution of those sanctions, subject to conditions, for a period not exceeding 3 months.[149]

If the Governor holds an inquiry, and imposes a sanction for a breach of discipline, the prisoner against whom a sanction was imposed may, within 7 days of its imposition, send to the governor, for transmission to the Minister, a petition concerning the finding or sanction or both finding and sanction.[150] In practice, the appeal is dealt with by the Director General of the Prison Service, and is therefore not structurally independent of the Prison Service. If petitioned by a prisoner against whom a finding of a breach was made, the Minister may, after consulting the governor, affirm, modify, suspend (subject to any specified terms or conditions) or revoke the sanction and cause the petitioner to be notified accordingly.[151]

A different appeals procedure is in place in cases where the sanction imposed on the prisoner includes loss of remission. In those cases, prisoners could appeal the finding or the sanction, or both the finding and the sanction to a specially established Appeals Tribunal.[152] Under the Prisons Act 2007, the Tribunal was to be independent in the performance of its functions, although it would be appointed by the Minister for Justice.[153] So far, however, the Tribunal has not been established.

Powers of the Appeals Tribunal (when established):

On hearing the appeal, the Tribunal is empowered to:

  1. uphold or quash a finding that the prisoner has committed the breach of prison discipline concerned,
  2. affirm or quash the sanction imposed by the governor,
  3. vary the period of remission to be forfeited, subject to the period, as so varied, not exceeding 14 days, or
  4. where it quashes the sanction, substitute for it any other sanction provided for in the Prisons Act 2007.[154]

Prisoners’ rights protection and early release / alternative measures’ procedures

Implementation of sentences (information relating to remission; temporary releases and parole)

In Ireland, there are three mechanisms for early release of prisoners; these are: remission, temporary release/parole and the power to commute/remit a sentence.[155]

Remission is a statutory measure and is envisaged in Rule 59 of the 2007 Prison Rules. Once the prisoner is granted remission, s/he is released unconditionally. Standard remission (Rule 59(1) of the 2007 Prison Rules) allows a prisoner to earn up to a quarter of her/his sentence off for good behaviour. While remission is supposed to be ‘earned’, in practice standard remission is automatic if the prisoner committed no further offence while in prison.[156] Enhanced remission of up to a third off a sentence (Rule 59(2)) is available to those prisoners who show “engagement in authorised structured activity to such an extent as to satisfy the Minister for Justice and Equality that they are less likely to reoffend and will be better able to reintegrate into society.” Enhanced remission is rarely used (in fact, up to 2010 only one prisoner was so released[157]), and that prisoners who would otherwise qualify are more often released on temporary release (with conditions attached).[158] Either kind of remission applies to prisoners whose sentence is of more than a month, but certain categories of prisoners are excluded: life sentenced prisoners, debtors and those sentenced for a contempt of court. Decisions on enhanced remission are taken by the Minister for Justice, and there is no formal review mechanism by the courts.

Temporary release is a discretionary measure, with the decision lying with the Minister for Justice. The Criminal Justice Act 1960 (as amended by the Criminal Justice (Temporary Release of Prisoners) Act 2003) allows the Minister to grant such release to prisoners at any time before they qualify for standard remission, and to life-sentenced prisoners who are not given remission. The Minister will consider a number of factors in his/her decision, including “the offence committed, the individual’s circumstances, attitude to rehabilitation and employment and training skills”. [159] Temporary release is a form of release on licence

Certain categories of prisoners do not qualify for temporary release; these are: persons convicted of a murder of a diplomat, a Garda or a member of the Irish Prison Service. These prisoners can only be granted temporary release if there are “grave humanitarian reasons” to do so.[160] Such restrictions also apply for certain categories of drug and firearms offences. The system of temporary release in Ireland has been criticized for being non-transparent when it comes to decision-making process, and prisoners not being provided with clear reasons in cases of refusal.[161]

Parole is a temporary release of long-term prisoners, in effect a release on licence.[162] In 2001, the Minister for Justice established the Parole Board on an administrative, rather than statutory basis. The Board reviews the implementation of sentences for all prisoners on sentence of eight years or more, at specified intervals. The review by the Board includes an interview with the prisoner, as well as collecting evidence/information about their behaviour in prison, their engagement with appropriate rehabilitative services, their progress, and so on.[163] The prisoner cannot be legally represented at the individual interview (which will take place in prison), but there is an opportunity for submissions to be made by their solicitor to the Board in writing,[164] and the prisoner is also given an opportunity to provide their comments in writing. After review, the Board makes non-binding recommendations to the Minister for Justice, who makes the final decision on release. It is important to note here that in 2014, the Strategic Review of Penal Policy recommended that a) the Board is put on a statutory basis; b) that the newly established Board makes final recommendation on release and c) that legal representation is provided at Board hearings.[165] The main issue with the disciplinary process in Ireland is the lack of an independent appeal mechanism. The Appeals Tribunal, which is yet to be established, would only deal with appeals regarding the loss of remission, leaving other disciplinary issues to the decision of the individual Governors and the Minister (or, in practice, the Director of the Irish Prison Service). This lack of appeal and independent oversight may have a bearing on parole proceedings in particular, as opinions and evidence are sought by the Parole Board regarding the prisoners’ disciplinary record from the relevant Governor. As much of the parole process in non-transparent, it is difficult to assess how much the prisoners’ disciplinary record has a bearing on Parole Board recommendations.

The power to commute or remit any sentence (also known as ‘special remission’) is outlined under Article 13.6 of the Constitution of Ireland which reads:

“The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may also be conferred by law on other authorities.”

This power has been delegated to the Minister for Justice by virtue of Criminal Justice Act 1951.[166]

Protection of prisoners’ rights: effectiveness of the judicial and non-judicial protection

Judicial protection

It was the view of legal practitioners interviewed in Ireland, that the demand for prison litigation here is substantial – as one of them put it, the demand is “far exceeding [the] firm’s capacity” (Interview 1), while another added that cases are being worked on “constantly” (Interview 2). Lawyers get “a lot of queries from prisons” (Interview 3) and those are often forwarded weekly.

Legal practitioners confirmed that one of the big difficulties in effecting change through prison litigation is the traditional reluctance of judges to intervene in the running of the prisons. The day-to-day management of prisons is viewed as the domain of individual governors and while there have been some examples of cases where judges did direct the Prison Service to take or refrain from taking certain actions (with the most recent example, the High Court decision in McDonnell v the Governor of Wheatfield Prison), the reluctance to intervene is still prevalent. Concerns were also raised that cases may be compromised by “credibility issues” (Interview 2) and the fact that when two versions of the same events are presented, judges are more likely to side with the prison authorities. As one legal practitioner put it, “prisoners do not have a level playing field” (Interview 2).

It was the view of some of the legal professionals that there is a tendency in the system to look for solution of prison cases by way of mediation or settlement. In those cases, changes to the individual prisoner’s circumstances are negotiated with the prison administration. Legal practitioners also commented on the fact that some cases do not get to conclusion as prisoners are released and do not wish to continue with the case (or the case becomes moot due to the fact of release). Generally, while there may be a lot of queries coming from prisoners, “not many cases are successful” (Interview 2).

The consideration of financial and human resources in taking prison cases was also of concern to lawyers and their clients. While legal aid is available for most prison law cases, the level at which it is provided (the amount) is often not sufficient to cover the costs of litigation.[167] The time commitment to prison cases is substantial – not just due to often complex legal issues, but also due to practical considerations of time spent on correspondence with the prison authorities; legal visits to clients; uncovering of evidence, and so on. Costs can only be recovered if the case is successful, and even then these are not always recovered in full. While legal practitioners “try to litigate” (Interview 4) prison cases, restrictions on legal aid play a significant part in the decision-making process regarding the taking of such cases. “There is no money to be made” (Interview 4) on those, and it may therefore be difficult to attract lawyers to litigate in this area.

Other than issues with financing, in some instances it may be difficult to establish a case at all or access the necessary evidence. One of the practitioners gave an example of issues with disciplinary proceedings in prisons as being “difficult to pierce” (Interview 1). While disciplinary processes in prisons can be seen as ‘quasi-tribunals’, there is no right for prisoners to be legally represented at the hearings.[168] If issues arise with disciplinary proceedings, evidence can be difficult to obtain to challenge any decisions. Practitioners also expressed frustration at how prisons respond to their queries which are sometimes either ignored, responses are delayed or only partial answers are provided.

Legal practitioners assessed the systemic impact of successful prison litigation as relatively minimal. While there are numerous cases being taken, despite the practical issues identified above, there is a “dearth of published judgements” (Interview 1) which makes the assessment of a systematic impact of litigation even more difficult. Generally, once the situation of an individual prisoner is resolved – for example, the person is given access to a particular service, having previously faced difficulties – it was the view of legal practitioners that it is unlikely that the issue will also be addressed on a system-wide level. There was some optimism expressed, though, that the raising of issues and the threat of litigation does have an indirect result in pushing for more systemic changes.

Non-judicial mechanisms

At the moment, there is still no fully independent mechanism for prisoners’ complaints in Ireland. The Irish Prison Service Complaints Policy introduced in 2014 includes a provision for an investigation of the most serious complaints (Category A) by external investigators. Twenty investigators with different professional backgrounds (for example, legal, medical, ex-police and ex-probation officers) have been appointed to provide the investigatory capacity, although not all those persons would be involved in investigations all the time (Director of the IPS). While there is no formal role for the Inspector of Prisons to oversee the internal complaints system, the Office provides such oversight on the basis of an agreement with the Irish Prison Service (Director of the IPS). The Inspector reviews all Category A complaints (the most serious) and can ask that they are reinvestigated by a different member of the panel of investigators. The Director of the IPS may also take such a step should the initial decision on a complaint be appealed to him.

It was the view of the Director General of the Irish Prison Service that the current system of investigation of the most serious complaints is far from ideal. The Irish Prison Service, which also pays fees for time spent on investigations, appoints the panel of investigators and so “The panel is working for you” (Director of the IPS). Whilst acknowledging that the new system is still being embedded, the Director’s view was that ideally, Category A and B complaints should all be investigated externally. “[…] we need an Ombudsman” he stated, “we really need to take that next step”.

In the current system, prisoners appear reluctant to use the internal mechanisms. In 2014, the Inspector of prisons outlined the reasons why prisoners do not want to complain as follows:

  1. prisoners have no confidence in the complaints system;
  2. they are ‘encouraged’ not to complain;
  3. they are concerned with negative consequences for their situation in prison, should they complain;
  4. prisoners fear they will be transferred to another prison if they complain;
  5. in cases of serious complaints, they fear for their safety;
  6. they fear that they will not be protected from adverse consequences should they complain and
  7. they fear they may not be granted temporary release should they raise a complaint.[169]

Legal practitioners interviewed in Ireland stated that many prisoners are still not aware of the internal complaints mechanisms. Apart from a lack of awareness, prisoners also face practical barriers to engagement with the process, such as issues with literacy and numeracy, as well as facing “chill factors” (Interview 1) such as concerns about victimisation by staff and the consequences of being branded a ‘problematic’ prisoner. The recently introduced system of ‘incentivised regimes’ where prisoners gain certain entitlements in return for ‘good behaviour’ also contributes to the prisoners’ reluctance to complain. Those factors result in a situation where ‘‘prisoners put up with a lot and tolerate a lot” (Interview 3) before making a complaint or taking a court case. While there is nothing in the law to state that prisoners cannot be legally represented while making a complaint using the internal process, representation is often refused when asked for. “They should have the right to advocacy” (Interview 3) but such right is not guaranteed by the current procedures. This was seen as a significant barrier to the prisoner engagement with the complaints process. Lastly, it was the view of some of the legal practitioners that even if a complaint is lodged, prisoners will often make a “pragmatic decision” (Interview 1) to drop it once some improvements to their situation – for example, access to a certain service – is negotiated in the process of the resolution of the complaint. Those prisoners who do decide to take a legal case against the Prison Service would have “usually thought through taking cases very carefully” (Interview 4).

The first external assessment of the new complaints system came in the recent European Committee for the Prevention of Torture’s (CTP) report on their visit to Ireland in 2014.[170] On the positive side, the CPT acknowledged that complaint forms for all categories of complaints were now freely available in the visited prisons, and that complaints boxes were emptied every day and complaints categorised by a Governor.[171] Focusing on Category A – i.e. the most serious of complaints – the CPT noted, however, significant issues with their investigation. As so in Mountjoy Prison, the CPT stated that while the record of complaints was “meticulous”, the quality of investigations varied considerably. The Committee noted that in cases of some investigations, evidence was not properly collected and that significant delays occurred in the external investigations.[172] Delays were also noted in Midlands Prison,[173] and in Limerick women’s prison.[174] The CPT commented that “such delays might have a negative impact on the whole investigation and the new complaints system risks losing its credibility.”[175] As stated earlier, the Irish authorities also acknowledged that there is currently no mechanism for an appeal; an issue which they undertook to rectify.[176]

In light of those comments, it is difficult to assess the probability of a complaint under the internal procedure being successful. Additionally, no details of complaints are publically available, so it is also difficult to assess how much the new procedure is being accessed. The legal practitioners’ experience was that the new system is significantly underused and one of the interviewees stated that “Unless you are in the top 5% of prisoners aware of their rights, you won’t complain” (Interview 3). There is no particular system in prisons of providing information to prisoners about Prison Rules, and what prisoners are entitled to. While some progress has been made, also due to the involvement of organisations such as the Irish Penal Reform Trust and Irish Council for Civil Liberties, in making information available at least in some prisons, there was general consensus amongst the respondents that levels of awareness of prisoners’ rights remain low.


[1] Cloverhill Prison in Dublin has a high security unit within an otherwise medium security remand prison.

[2] For more information, see: http://www.irishprisons.ie/index.php/joomlaorg.

[3] Irish Prison Service (2015) Prisoner population on Friday 11 December 2015 [on-line] (available at: http://www.irishprisons.ie/images/dailynumbers/11_december_2015.pdf).

[4] Ibid.

[5] Irish Prison Service (2015) Annual Report 2014, Longford: IPS (available at: http://www.irishprisons.ie/images/pdf/ar2014_english.pdf), p.19.

[6] Ibid. See also: Irish Prison Service (2014) Annual Report 2013, Longford: IPS (available at: http://www.irishprisons.ie/images/pdf/ar_2013.pdf), p.1.

[7] Irish Prison Service (2015) Annual Report 2014, Longford: IPS (available at: http://www.irishprisons.ie/images/pdf/ar2014_english.pdf), p.19.

[8] Ibid. This was an increase of 10.6% on the previous year.

[9] Ibid.

[10] Ibid.

[11] Irish Prison Service (2015) Census Prison Population October 2015 – Cell Occupancy – In-cell sanitation [on-line] (http://www.irishprisons.ie/images/monthlyinfonote/oct15_incell.pdf).

[12] Ibid.

[13] Irish Prison Service (2015) Census of restricted prisoners October 2015 (available at: http://www.irishprisons.ie/images/monthlyinfonote/oct15_restrict.pdf).

[14] Irish Prison Service (2015) Census of restricted prisoners October 2015 (available at: http://www.irishprisons.ie/images/monthlyinfonote/oct15_restrict.pdf).

[15] Council of Europe (2015) Report to the Government of Ireland on the visit to Ireland carried out by the European Committee for the Prevention of Torture, and Inhuman or Degrading Treatment of Punishment (CPT) from 16 to 26 September 2014, Strasbourg: CPT (available at: http://www.cpt.coe.int/documents/irl/2015-38-inf-eng.pdf).

[16] Available at: http://www.irishstatutebook.ie/en/constitution/index.html#part13

[17] Habeas Corpus proceedings are covered by Article 40.4.2-4.

[18] [1965] I.R. 294 (H.C. & S.C.).

[19] Keane, R. (2004) ‘Judges as Lawmakers: The Irish Experience”, Judicial Studies Institute Journal, Vol.4, Issue 2, p.10.

[20] The Constitutional Review Group (1996) Report of the Constitution Review Group, Dublin: The Stationery Office (available at: http://archive.constitution.ie/reports/crg.pdf), p.188.

[21] Rogan, M. (2012a) Prison Conditions Under Irish Law and the European Convention on Human Rights, Dublin: Irish Penal Reform Trust (available at: http://www.iprt.ie/files/The_law_on_Prison_Conditions.pdf), pp.4-5.

[22] State (McDonagh) v. Frawley [1978] I.R. 131 at para. 135.

[23] Rogan, M. (2012a) Prison Conditions Under Irish Law and the European Convention on Human Rights, Dublin: Irish Penal Reform Trust (available at: http://www.iprt.ie/files/The_law_on_Prison_Conditions.pdf), p.4.

[24] Mulligan v Governor of Portlaoise Prison, [2010] IEHC 269, at para. 14. See also: Rogan, M. (2012a) (op.cit. above), p.4.

[25] Available at: http://www.justice.ie/en/JELR/prison%20rules%202007.pdf/Files/prison%20rules%202007.pdf. Prison Rules 2007 are a statutory instrument (not an Act of Parliament) and were published by the Minister for Justice under the power given to him by Section 35 of the Prisons Act 2007.

[26] Rogan, M. (2012b) Taking Prison Law Cases: A Practical Approach, Dublin: Irish Penal Reform Trust (available at: http://www.iprt.ie/files/Taking_Prison_Law_Cases.pdf), p.4.

[27] Ibid.

[28] See Walsh and Ors v Governor of Midlands Prison and Ors [2012] IEHC 229.

[29] Ibid.

[30] Rule 55(2) of the 2007 Rules.

[31] Please refer to section III of this report for further detail of the role of Visiting Committees in the handling of prisoner complaints.

[32] This would usually be a civil servant from the Irish Prison Service Headquarters.

[33] Rule 57 of the 2007 Rules.

[34] Rule 57(1) of the 2007 Rules.

[35] Rule 57(2) of the 2007 Rules.

[36] Rule 57(4) of the 2007 Rules.

[37] Rule 57(5) of the 2007 Rules.

[38] These are now referred to as ‘Category A’ complaints and the process of investigation was informally introduced in 2012. In its reply to the List of Issues during examination of Ireland’s Fourth Periodic Report under the ICCPR, the Government stated that between November 2012 and February 2014, 79 ‘Category A’ complaints were received by prison authorities (see: UN Human Rights Committee (2014b) List of issues in relation to the fourth periodic report of Ireland. Addendum: Replies of Ireland to the List of issues [on-line] (available at: http://www.ccprcentre.org/doc/2014/07/G1443170.pdf), pp.15-16 and p.34.

[39] Rule 57A(2) of the 2007 Rules.

[40] Rule 57B(1) of the 2007 Rules. In some cases, investigation of such a complaint will fall under the new Rule 57A, in which case nothing that is done under Rule 57B can prejudice or interfere with the police investigation (Rule 57B(1)(c)).

[41] Rule 57B(2)(a) and (b).

[42] Rule 57B(2)(c).

[43] Rule 57B(3)(d).

[44] Rule 57B(4).

[45] Rule 57B(5) of the 2007 Rules. Investigation teams may include persons from outside of the Irish Prison Service and a call for a pool of independent investigators was publicly advertised in 2013.

[46] Rule 57B(8) of the 2007 Rules.

[47] Rule 57B(6) of the 2007 Rules.

[48] Rule 57B(10)(a) of the 2007 Rules.

[49] Rule 57B(10)(b).

[50] Rule 57B(11) of the 2007 Rules.

[51] Council of Europe (2014a) Report to the Government of Ireland on the visit to Ireland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 16 to 26 September 2014, Strasbourg: CoE (available at: http://www.cpt.coe.int/documents/irl/2015-38-inf-eng.pdf), p.49.

[52] Available at: http://www.irishprisons.ie/images/pdf/complaints_policy.pdf.

[53] For more detail on the criticism of the complaints system, see sections III and IV of this report.

[54] Prisoner Complaints Policy, p.5.

[55] Ibid, p.9.

[56] Ibid, see Note 2; the Chief Officer appointed to investigate the complaint must be other than the Officer in charge of the area where the incident allegedly occurred or the area where the prisoner bringing the complaint is accommodated. The investigating Officer may also not have been present at any time when the alleged incident took place.

[57] Prisoner Complaints Policy, p.9.

[58] Ibid, p.10.

[59] Ibid, p.13.

[60] Either have to be appropriately recorded; Prisoner Complaints Policy, p.13.

[61] Ibid.

[62] Arguably, the prisoner can then use any of the process outlined in Rules 55 or 57 of the 2007 Rules, i.e. complain to the governor or request a meeting with the officer of the Minister, although this is not made clear in the Policy.

[63] Prisoner Complaints Policy, p.14.

[64] Ibid, p.15.

[65] Ibid.

[66] Section 30(5) of the Prisons Act 2007.

[67] Section 31(1) of the Prisons Act 2007.

[68] Section 31(2) of the Prisons Act 2007.

[69] Section 32(2) of the Prisons Act 2007.

[70] Section 32(3) of the Prisons Act 2007.

[71] Section 31(6) of the Prisons Act 2007.

[72] Rule 57A(12) of Prison Rules 2007 (as amended in 2013).

[73] Inspector of Prisons (2013) Office of the Inspector of Prisons Annual Report 2012, Nenagh: Inspector of Prisons (available here: http://www.inspectorofprisons.gov.ie/en/IOP/Pages/PB13000004), pp.11-12.

[74] Available here: http://www.inspectorofprisons.gov.ie/en/IOP/Pages/PB10000007.

[75] The investigations include deaths that occurred while a prisoner was on Temporary Release. See: http://www.inspectorofprisons.gov.ie/en/IOP/Pages/WP14000001

[76] See: http://www.inspectorofprisons.gov.ie/en/IOP/Pages/standards?opendocument&start=0&year=2009

[77] Inspector of Prisons (2009) Office of the Inspector of Prisons Annual Report 2008, Nenagh: Inspector of Prisons (available at: http://www.inspectorofprisons.gov.ie/en/IOP/Pages/iop_annual_rpt_2008), p.18.

[78] Ibid, p.19.

[79] Ibid, p.19.

[80] Ibid, p.20.

[81] Ibid, p.18.

[82] Ibid, p.20.

[83] Although on occasion, these have had fewer than six members.

[84] Section 2 of the 1925 Act.

[85] Section 3(1)(a) of the 1925 Act.

[86] Section 3(1)(b) of the 1925 Act.

[87] Section 3(1)(c) of the 1925 Act.

[88] Section 3(1)(d) of the 1925 Act.

[89] Section 3(2) of the 1925 Act.

[90] Section 3 of the 1925 Order.

[91] See: http://www.justice.ie/en/JELR/Pages/Publications_prisons_and_probation

[92] All reports are available at: http://www.justice.ie/en/JELR/Pages/PB15000153

[93] Rogan, M. (2014) Prison Law, Dublin: Bloomsbury Professional, p.308. Judicial reviews focus on analysis of sworn affidavits, which in certain cases may be amended after the Court has made itself familiar with the case (Rules of the Superior Courts, Order 84, Rule 23(2); available at: http://www.courts.ie/rules.nsf/0/a53b0f76ffc6c5b780256d2b0046b3dc?OpenDocument).

[94] An application for leave to apply for judicial review needs to be made “promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is certiorari, unless the Court considers that there is good reason for extending the period within which the application shall be made.” (Rules of the Superior Courts, Order 84, Rule 21(1)). A notice of motion or summons, must then be served within 14 days after the grant of leave, or within such other period as the Court may direct (Rule 22(3)).

[95] Ibid.

[96] Ananyev and others v Russia, 10 January 2012 (Applications No. 42525/07 and 60800/08), para.97.

[97] Rogan, M. (2014) Prison Law, Dublin: Bloomsbury Professional, p.16.

[98] Mulligan v Governor of Portlaoise Prison, [2010] IEHC 269, at para. 99.

[99] Rules of the Superior Courts, Order 84, Rule 24(1)(a) (available at: http://www.courts.ie/rules.nsf/0/a53b0f76ffc6c5b780256d2b0046b3dc?OpenDocument).

[100] Rogan, M. (2014) Prison Law, Dublin: Bloomsbury Professional, p.18.

[101] See for example, Devoy v Governor of Portlaoise Prison [2009] IEHC 288.

[102] Rogan, M. (2014) Prison Law, Dublin: Bloomsbury Professional, p.302.

[103] State (Richardson) v Governor of Mountjoy Prison [1980] ILRM 82, at para. 90.

[104] Rogan, M. (2014) Prison Law, Dublin: Bloomsbury Professional, pp. 304-305.

[105] JW (a Minor) v The Health Service Executive [2014] IESC 8, at para.17. The case concerned a care order in respect of a child, rather than a prison situation. Nevertheless, the principle expressed in this passage applies equally to prison-related inquiries.

[106] [2005] IEHC 253.

[107] Binchy, W. (nd) Prisoners and the Law of Tort [on-line] (available at: http://www.iprt.ie/files/Prisoners_and_the_Law_of_Tort.pdf), p.8.

[108] [2009] IEHC 257.

[109] [2010] IESC 50.

[110] See the full judgment here: http://bnsolicitors.ie/index.php/peter-creighton-v-ireland-attorney-general-the-minister-for-justice-equality-and-law-reform-and-the-governor-of-wheatfield-prison/.

[111] While this case was successful, a significant number of cases before Creighton were decided in favour of the prison authorities. For a comprehensive summary of those cases, see: Binchy, W. (nd) Prisoners and the Law of Tort [on-line] (available at: http://www.iprt.ie/files/Prisoners_and_the_Law_of_Tort.pdf).

[112] Binchy, W. (nd) Prisoners and the Law of Tort [on-line] (available at: http://www.iprt.ie/files/Prisoners_and_the_Law_of_Tort.pdf).

[113] Available at: http://www.irishstatutebook.ie/pdf/2003/en.act.2003.0020.pdf.

[114] See Part 6 of the Agreement (available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/136652/agreement.pdf). This is not to say that incorporation of the ECHR into domestic Irish legal system was not considered prior to the Agreement. For example, the 1996 report of the Constitutional Review Group (available here: http://archive.constitution.ie/reports/crg.pdf) discussed the pros and cons of incorporation, and the 1998 Agreement specifically referred to the work of the Group as a basis of furthering discussions on the strengthening of human rights protections in Ireland.

[115] O’Connell, D., Cummiskey, S., Meeneghan, E. with O’Connell, P. (2006) ECHR Act 2003: A Preliminary Assessment of Impact, Dublin: Dublin Solicitors Bar Association (available at: http://www.lawsociety.ie/documents/committees/hr/echr/echrreport18oct06.pdf), p.10.

[116] Defined as “a tribunal or any other body (other than the President or the Oireachtas or either House of the Oireachtas or a Committee of either such House or a Joint Committee of both such Houses or a court) which is established by law or through which any of the legislative, executive or judicial powers of the State are exercised” (Section 1(1) of the 2003 Act). This definition does, therefore, include the Minister for Justice and the Irish Prison Service.

[117] O’Connell, D., Cummiskey, S., Meeneghan, E. with O’Connell, P. (2006) ECHR Act 2003: A Preliminary Assessment of Impact, Dublin: Dublin Solicitors Bar Association (available at: http://www.lawsociety.ie/documents/committees/hr/echr/echrreport18oct06.pdf), p.13.

[118] A copy of the form is available here: http://www.irishprisons.ie/images/pdf/complaints_form.pdf.

[119] Irish Prison Service (2014) Prisoner Complaints Policy, Longford: IPS (available at: http://www.irishprisons.ie/images/pdf/complaints_policy.pdf), at point 4.1.2.

[120] Ibid, at point 4.1.4.

[121] Prisoner Complaints Policy, p.5.

[122] Ibid.

[123] Prisoner Complaints Policy, p.6.

[124] Prisoner Complaints Policy, p.9.

[125] Prisoner Complaints Policy,> p.13.

[126] Rogan, M. (2014) Prison Law, Dublin: Bloomsbury Professional, p.308.

[127] Rules of the Superior Courts, Order 84, Rule 23(2); available at: http://www.courts.ie/rules.nsf/0/a53b0f76ffc6c5b780256d2b0046b3dc?OpenDocument).

[128] Rogan, M. (2014) Prison Law, Dublin: Bloomsbury Professional, p.308.

[129] More information about the process of judicial review in Ireland is available here: http://www.lexology.com/library/detail.aspx?g=188cae15-57ab-4198-b5f9-0ee1354ec117

[130] See Walsh and Ors v Governor of Midlands Prison and Ors [2012] IEHC 229.

[131] Rogan, M. (2014) Prison Law, Dublin: Bloomsbury Professional, p.321.

[132] JUSTICIA (nd) Snapshot of the legal aid system in ten European Countries [on-line] (available at: http://www.eujusticia.net/images/uploads/pdf/Snapshot_of_the_legal_aid_system_in_ten_EU_Member_States.pdf).

[133] Legal Aid Board (2013a) Legal Aid – Custody Issues Scheme. Scheme Provisions and Guidance Document, Dublin: Legal Aid Board (available at: http://www.legalaidboard.ie/lab/publishing.nsf/650f3eec0dfb990fca25692100069854/8a16115334c3af8a80257b7a00322754/$FILE/Legal%20Aid%20-%20Custody%20Issues%20Scheme%20Provisions%20&%20Guidance%20June%202013.pdf), Part 1, point 2.

[134] Ibid, Part 1, Point 4.

[135] Ibid, Part 1, Point 2.

[136] Ibid, Part 2, Point 9.

[137] Ibid, Part 1, Point 3.

[138] Ibid, Part 2, Point 9.

[139] Ibid, Part 2, Point 10.

[140] Ibid, Part 2, point 12.

[141] Ibid.

[142] Ibid, Part 2, Point 15.

[143] With some exceptions – for example, the person’s home is not included as capital under the scheme. For details see: Legal Aid Board (2013b) Civil Legal Aid, Dublin: Legal Aid Board (available at: http://www.legalaidboard.ie/lab/publishing.nsf/650f3eec0dfb990fca25692100069854/804c220cf90aa7f9802571fd0038044b/$FILE/Leaflet%201%20-%20Civil%20Legal%20Aid.pdf).

[144] Ibid. This contribution is between €30 and €150.

[145] Ibid.

[146] Section 12(1) of the Prisons Act 2007 and Rule 66(2) of the Prison Rules 2007.

[147] Ibid.

[148] Section 12(4) of the Prisons Act 2007.

[149] This does not apply to the loss of remission. However, under Section 13(5) remission may be reinstated for good behaviour over a period of time or where in the Governor’s opinion, the prisoner has performed “an exceptionally meritorious act”.

[150] Section 14(a) of the Prisons Act 2007.

[151] Section 14(b) of the Prisons Act 2007.

[152] Section 15(1) of the Prisons Act 2007.

[153] Section 16 of the Prisons Act 2007.

[154] Section 15(6) of the Prisons Act 2007.

[155] Irish Penal Reform Trust (2012) IPRT Position Paper No.9: Reform of Remission, Temporary Release and Parole, Dublin: IPRT (available at: http://www.iprt.ie/files/IPRT_Position_Paper_Reform_of_Remision_TR_Parole_Oct_2012.pdf).

[156] Irish Penal Reform Trust (2012) IPRT Position Paper No.9: Reform of Remission, Temporary Release and Parole, Dublin: IPRT (available at: http://www.iprt.ie/files/IPRT_Position_Paper_Reform_of_Remision_TR_Parole_Oct_2012.pdf), p.4.

[157] Irish Penal Reform Trust (2012) IPRT Position Paper No.9: Reform of Remission, Temporary Release and Parole, Dublin: IPRT (available at: http://www.iprt.ie/files/IPRT_Position_Paper_Reform_of_Remision_TR_Parole_Oct_2012.pdf), p.4, fn.11.

[158] Strategic Review of Penal Policy. Final Report, July 2014, (available at: http://www.justice.ie/en/JELR/Strategic%20Review%20of%20Penal%20Policy.pdf/Files/Strategic%20Review%20of%20Penal%20Policy.pdf), p.81.

[159] Irish Penal Reform Trust (2012) IPRT Position Paper No.9: Reform of Remission, Temporary Release and Parole, Dublin: IPRT (available at: http://www.iprt.ie/files/IPRT_Position_Paper_Reform_of_Remision_TR_Parole_Oct_2012.pdf), p.6.

[160] Irish Penal Reform Trust (2012) IPRT Position Paper No.9: Reform of Remission, Temporary Release and Parole, Dublin: IPRT (available at: http://www.iprt.ie/files/IPRT_Position_Paper_Reform_of_Remision_TR_Parole_Oct_2012.pdf), p.7.

[161] Ibid.

[162] In practice, as there is no statutory definition of ‘parole’ in Ireland.

[163] The criteria for review, and the nature of the information sought, is further explained in the guidelines published in 2013 – see: Parole Board (2013) A Guide to the Parole Board: Information for Prisoners (available at: http://www.justice.ie/en/JELR/Parole%20Board%20Guide.pdf/Files/Parole%20Board%20Guide.pdf).

[164] Ibid. It is important to note that in the case of Lynch and Whelan v Ireland (2014), the ECtHR stated that the proceedings before the Parole Board do not fall within the scope of Article 6, as they do not have the function of determining a criminal sanction.

[165] Strategic Review of Penal Policy. Final Report, July 2014, (available at: http://www.justice.ie/en/JELR/Strategic%20Review%20of%20Penal%20Policy.pdf/Files/Strategic%20Review%20of%20Penal%20Policy.pdf), p.88.

[166] Irish Penal Reform Trust (2012) IPRT Position Paper No.9: Reform of Remission, Temporary Release and Parole, Dublin: IPRT (available at: http://www.iprt.ie/files/IPRT_Position_Paper_Reform_of_Remision_TR_Parole_Oct_2012.pdf), p.9.

[167] One of the practitioners stated that a ‘standard’ judicial review brings around €1,500 of legal aid.

[168] Although there is no rule to state that they cannot be represented, it is difficult to obtain permission of the prison administration for the lawyers to attend.

[169] Inspector of Prisons (2014) Office of the Inspector of Prisons Annual Report 2013/2014, Nenagh: Inspector of Prisons (available at: http://www.inspectorofprisons.gov.ie/en/IOP/Pages/Inspector_of_Prisons_Annual_Report_2014), p.11.

[170] Council of Europe (2014a) Report to the Government of Ireland on the visit to Ireland carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 16 to 26 September 2014, Strasbourg: CoE (available at: http://www.cpt.coe.int/documents/irl/2015-38-inf-eng.pdf), pp.49-52.

[171] Ibid, p.49.

[172] Ibid, p.50.

[173] Ibid, p.51.

[174] Ibid, p.64.

[175] Ibid, p.51.

[176] Council of Europe (2014b) Response of the Government of Ireland to the report of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) on its visit to Ireland from 16 to 26 September 2014, Strasbourg: CoE (available at: http://www.cpt.coe.int/documents/irl/2015-39-inf-eng.pdf), pp.53-55.