Deaths in Custody

In the last ten days two men have died in or following Garda detention. On Saturday Johnny Nevin (39) of Tipperary was detained in Templemore Garda Station, became unwell and was transferred to Nenagh Hospital, where he died. On the 20 April a 39 year-old man was found dead in his cell in Tallaght Garda Station. Both deaths are now being investigated by the Garda Ombudsman Commission under s.102 of the Garda Siochana Act 2005.

The circumstances and causes of these deaths are not known and we should be careful to avoid speculation at this point until the investigations have been completed. There is no suggestion as yet that either man was injured by Gardaí. That said, that two men in their thirties should die in or following Garda custody sould be of grave concern to all. For the time that they were detained they were in the care of the State. As the UK Joint Committee on Human Rights stated in its report on deaths in custody:

When the state takes away a person’s liberty, it assumes full responsibility for protecting their human rights. The most fundamental of these is the right to life.

In addition to the right to life protected under Article 2 of the European Convention on Human Rights, there are also protections against torture, ill-treatment, inhuman and degrading treatment, the right to privacy and the freedom from discrimination. The duty under Article 2 entails a positive duty to safeguard life, which requires not only that states take positive steps to protect the lives of individuals whose lives are at risk but also to adequately investigate any instances of deaths in custody. There is ample case law from the European Court on the right to life and it makes clear that, for instance, if a person is at a heightened risk, even where the threat eminates from themselves, the obligation on the State is even higher (see Keenan v. UK).

Little work has been done on deaths in custody in Ireland though names like Terrence Wheelock and Peter Matthews will be familiar to many (we’ve posted about Mr Wheelock’s death here, here and here). That two men should die in/following garda custody demands the most serious of attention, and the most serious of questions to be asked of the system – including why were they in custody? should they have been there? did the gardai assault either individual? were there any medical conditions at the time of the arrest? were the individuals supervised appropriately at the station? what was the response of officers at the station on realisation of the illness/death of the individual?

At the heart of this issue is the harsh reality of the status of people detained, which the Joint Committee on Human Rights expanded on:

…the majority of people entering custody are extremely vulnerable individuals. Many of those who die in custody are young. Most of those who die are vulnerable or sick, with histories of mental illness and drug and alcohol problems. It must be recognised that by taking people into custody the state takes upon itself a particular duty of care, because of their vulnerability, and a special responsibility to ensure their protection and to uphold their human rights… The multiple vulnerabilities of the people detained, the acute need for medical treatment and drug and alcohol detoxification facilities, low educational achievement and poor communication skills, and the high rate of mental illness, are all found to a greater or lesser extent in all forms of state detention.

This unfortunate reality enhances the need for every precaution to be taken when an individual is detained. It is suggested that these two deaths should prompt either GSOC or the Garda Inspectorate to conduct an investigation into this issue as it affects detention in Irish police stations. Two deaths in one week, a week in which the Governor of the Dochas Centre has resigned, due in part to the conditions in the prison, should be ringing the loudest of alarm bells in terms of the treatment of persons in detention centres in Ireland. Of great dissappointment is that, from the media reports, the GRA conference this week (which I will review tomorrow) has failed to address this issue.

Terence Wheelock and Garda Accountability

Mark Coughlan of TheSory.ie has this afternoon published an extensive and illuminating post on the version of the Terence Wheelock report that was released to the family. As we noted here and here, this version differs in some respects from the version that was publically released. In this post, Mark notes that one of the Gardaí involved in the Wheelock incident had previously been subjected to disciplinary procedures in respect of a strikingly similar set of events where a young man was physically assaulted upon arrest. A very interesting aspect of Mark’s post is his illustration of how difficult it is to get any information about disciplinary proceedings within an Garda Síochána or to ensure any level of transparency in this respect. Mark concludes as follows:

To the detriment of the public interest the Garda Siochana remains a closed, secretive, impenetrable organisation whose members are largely unaccountable to the public which they serve. Ashamedly our police force is the only one in western Europe which falls outside the Freedom of Information process.

The family of Terence Wheelock are calling for a full and open investigation into the circumstances of his death. As we noted here, Vicky‘s new book (The Blue Wall of Silence: The Morris Tribunal and Police Accountability in Ireland) is released this week and deals also with accountability in policing in Ireland. These difficulties of accountability and transparency are recurring in respect of the Gardaí and investigative journalism such Mark’s as well as scholarship such as Vicky’s are fundamental to trying to break down that ‘Blue Wall of Silence’.

Policing the Shell to Sea Campaign

I’ve blogged previously about the policing of the Shell to Sea Campaign but a number of developments of late are worth noting. Last week 9 activitists were in court on charges of public order but had the charges struck out as the court held that they had been unlawfully held for 27 hours in Garda custody before being brought before a judge.

Indymedia explain that one of the nine cases was used as a test case, that of Eoin Lawless. Mr Lawless was arrested at 2.20pm on 28th June last year, on a public road. He was detained at the Shell site for two hours, before being brought to a police station. He was charged at 9.15pm. He was not brought before a court until 5.30pm the next day. The Supt at court offered the explanation that there insufficient officers at hand to deal with prisoners, but this of course is not a satisfactory reason to deny a person their right to liberty.

Gardai work to rule

Today the Gardai begin their first offical day of work to rule. Described by the GRA as a ‘withdrawal of goodwill’ the Gardai will not be using their own phones, cameras or laptops in the course of their work. They will no longer take work phone calls during personal time, which will disrupt the much relied on scheme of rostering Gardai at short notice. Further, they will not participate in a voluntary scheme of attending at court as witnesses without being summonsed which could pose significant problems to criminal trials.

Stern Review into the handling of rape cases in the UK

Today saw the publication of Baroness Vivien Stern’s review into the handling and reporting of rape cases in England and Wales. Baroness Stern (pictured left) is a Senior Research Fellow at the International Centre for Prison Studies (ICPS) at King’s College, London, and there is much in her review that is relevant to those involved in criminal justice and law reform debates surrounding the offence of rape throughout the legal systems of the UK and Ireland. This post provides a short overview of the focal points of the review.

Terence Wheelock

As Yvonne noted yesterday, the Garda Siochana Ombudsman Commission have published their report into the death of Terrence Wheelock. They found no evidence that Mr Wheelock had been phsyically or sexually assaulted in custody but did make a number of recommendations as regards Garda procedure, which Yvonne has detailed. The Wheelock family remain dissatisfied and have announced that they are seeking a full public inquiry and have threatened to take a case to the European Court of Human Rights.

At this point a number of observations can be made about the both the findings contained in the report but also the procedure adopted by the Commission.

Garda Síochána Ombudsman Commission issue Report on the Death of Terence Wheelock

The Garda Síochána Ombudsman Commission (GSOC), established in May 2007, has today issued its first report carried out under s.102(4) of the Garda Síochána Act 2005. This provision allows for GSOC to initiate an investigation, without receiving a specific complaint, if it appears that a member of An Garda Síochána may have committed an offence or behaved in a manner that would justify disciplinary proceedings, and such an investigation seems “desirable in the public interest”.  This first report is based on an investigation into the death of Mr. Terence Wheelock on September 16, 2005, following a period of detention at Store Street garda station (Report: Press Release). Terence Wheelock was arrested on June 2, 2005 and was found, later that same day, unconscious in a cell at Store Street garda station. He never regained consciousness and died at the Mater Hospital on September 16, 2005.

The GSOC investigation, which began in July 2007, set out to establish whether or not any act or omission of any member of An Garda Síochána caused the death of or serious harm to Terence Wheelock. Prior to the GSOC investigation, an internal Garda inquiry into the matter was carried out and an inquest found (with a jury verdict of 4:3) that Mr. Wheelock had died as a result of suicide by hanging.

DNA database developments in the UK

Following the European Court of Human Rights decision in the Marper case, the UK have been required to reconsider their approach to the holding of profiles on the DNA Database. The system which the ECHR rejected involved the indefinite holding of samples from suspects of crimes, unless authorisation for destruction was granted, which it rarely was. The previous UK plans, discussed here, proposed retention of samples for up to six years, without any limitations to serious offences.

It has been announced today that the Home Affairs Select Committee has rejected these proposals, arguing that there is no need to keep samples for more than three years, particularly when consideration is given to the low number of cases in which such DNA evidence is probative. This Committee states a maximum of three years should apply. The House of Commons will vote on the government proposals today and the Guardian reports that the House of Lords is expected to reject the proposals. It is also expected that a new agency will be established to determine when samples should be destroyed, removing this power from Chief Constables.

Again, given the on-going debates in Ireland, these debates will be watched intensly here.

Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010

The Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010 (as examined previously by Yvonne) was debated at second stage yesterday and referred to the Select Committee.

The Bill provides for the taking of various categories of samples, both for purposes of establishing or ruling out involvement in the commission of a specific offence, and for the creation of DNA profiles to be kept on the newly established statutory DNA database.

As regards taking DNA samples from arrestees, the Bill limits the range of relevant offences to serious crimes, such as firearms offences, and those which have a minimum punishment of five years. Thus, the proposed Irish approach to sampling in terms of its scope complies with and in fact surpasses the demands of the Grand Chamber in S. and Marper v UK which found the English scheme of blanket sampling and retention of DNA from arrestees for any recordable offence to be in breach of Article 8.

Moreover, the power under the Bill to take a sample from a detainee for the reference index of the Database does not apply to children below the age of 14, again indicating that the drafters are treading cautiously due to the statement in S. and Marper that that the retention of unconvicted persons’ data may be especially harmful in the case of minors “given their special situation and the importance of their development and integration in society”.

However, the procedures in Part 10 concerning the destruction of samples and profiles and the removal of profiles from the Database ought to be revised. The “default destruction period” for samples taken from detainees or offenders in the context of investigations is three years from the taking of the sample, and the same period applies to evidential samples when proceedings are not instituted, or after acquittal or discharge. However, these default destruction periods may be extended by the District Court. The equivalent Scottish law, as cited in S. and Marper, permits a similar extension by the Sheriff Court but for two years only (Criminal Procedure (Scotland) Act 1995, s. 18A), and a similar limiting qualification should be added to the Irish Bill.

New Forensic Evidence and DNA Database Bill published

On Tuesday, the Minister for Justice, Equality and Law Reform, Dermot Ahern, published the Criminal Justice (Forensic Evidence and DNA Database System) Bill 2010. This Bill repeals the Criminal Justice (Forensic Evidence) Act 1990 in its entirety. It provides for the taking of three categories of samples: (1) non-intimate and (2) intimate samples from persons arrested and detained in garda custody in order to prove or disprove their involvement in the commission of a particular offence, and (3) samples for the purpose of creating a DNA profile to be kept on the DNA database. Samples in this third category may not generally be taken from children under 14 years of age. The Bill also provides for the taking of samples from volunteers and others.

The Bill goes on to provide for the establishment of a DNA database – one part of which will retain DNA profiles for the purposes of criminal investigations, and a second, separate part of which will retain DNA material in order to assist in tracing and identifying missing or unknown persons. These two parts of the database are not to be cross-referenced. The database will be administered by the Forensic Science Laboratory, which is to be renamed in Irish – Eolaíocht Fhóiréinseach Éireann – and hold the initials EFÉ.

As reported in the Irish Times, the Minister in introducing the Bill said that all persons serving sentences for serious offences when the new law comes into force will be required to give a sample for the database. This will include people in prison and anyone on temporary release or on suspended sentences, as well as anyone on the sex offenders’ register.

Following the recent jurisprudence of the European Court of Human Rights (S and Marper v UK) the Bill provides that only persons convicted of serious offences will have their DNA material held indefinitely. Persons who are acquitted or against whom no proceedings are instituted will have their DNA material removed on application to the Commissioner of An Garda Síochána (with further appeal to the District Court). Where no application is made, the default periods for destruction of the material are 10 years in the case of a profile and three in the case of a sample.

Mark Kelly, director of the Irish Council for Civil Liberties (ICCL), has said that the ICCL will review the Bill in order to establish whether it strikes the right balance between catching criminals and protecting private life.