Governor of Dóchas Centre resigns

The Governor of the Dóchas centre, the main female prison in the state has resigned because of the “serious undermining” of her position and an “overall lack of respect by senior personnel in the Irish Prison Service”.

The first hand evidence given by Ms McMahon of the degree of overcrowding and its effects on rehabilitative regimes and simple day-to-day living gives an insight into the reality of what we have known for some time. Overcrowding is becoming chronic in the Irish prison system and that this is leading to increased tensions, diminished services and fewer opportunities to facilitate those imprisoned to change their lives. As the former Governor notes, what had been a flagship, progressive regime will be replaced by one in which tensions, self-harm and bullying would reappear, and in which health, educational and training facilities would become overloaded.

While this is extremely worrying, particularly as there appears to be no concerted strategy to deal with the issue of growing prison numbers in the short, medium and indeed long term, there is a concern arising out of Ms McMahon’s description of life in Dóchas which is a new one and perhaps even more significant and disquieting.

Ms McMahon states that the relationship between those in charge of the day to day regime within the Dóchas Centre and officials from the Irish Prison Service had deteriorated because of unannounced visits and lack of consultation in operational decisions, such as that to place bunk beds in rooms designed for one prisoner.

Guest Post: Griffin on the Final Report of the National Commission on Restorative Justice

We are pleased to welcome this guest post from Diarmuid Griffin, Lecturer in Law at NUI Galway. You can read more about Diarmuid on our Guest Contributors Page.

The National Commission on Restorative Justice published its final report in December 2009. The Commission, announced in March 2007, was set up to examine the wider application of restorative justice within the criminal justice system.  The Commission was established following the report of the Joint Committee on Justice, Equality, Defence and Women’s Rights which recommended the development of a restorative justice programme for adult offenders in the Irish criminal justice system.

Restorative justice programmes can already be seen in operation in Ireland for juvenile offenders through the Garda Diversion Programme or a court-referred Probation Service Conference and ad hoc programmes dealing with adult offenders in Nenagh and Tallaght.  While there are various different models of restorative justice, the practice generally involves the bringing together of the victim, offender and, where possible, members of the community to negotiate the outcome for the offending behaviour.  For example, rather than sentencing an offender to a traditional term in prison a judge may refer an offender into a restorative programme where such a negotiation may occur.

In its final report, the Commission recommends the national implementation of restorative justice for adult offenders.  The Commission believes that such a programme “will make a positive contribution to the lives of all citizens, and particularly to those more closely connected to the offending behaviour.”  Having conducted an extensive examination of the use of restorative justice in Ireland and in other jurisdictions, the report attempts to provide a workable framework for the development of restorative justice that is mindful of both economic and criminal justice realities.

‘Slopping Out’ Action in the High Court

RTE reported yesterday evening that a former prisoner has begun an 8 day High Court action in which he seeks compensation for the humiliation and degradation which he endured during his time at Portlaoise Prison as a consequence of the practice of ‘slopping out’. The phrase refers to the practice whereby prisoners are denied in-cell sanitation and are provided with chamber pots instead. The IPRT says that just over 30% of Irish prisoners ‘slop out’. The Irish Times has further details  this morning. The Human Rights Committee expressed concern about the prevalence of the practice in its 2008 examination of Ireland. We will have comprehensive commentary as and when more details of the case emerge. Until then, this article in the 2008  Judicial Studies Institute Journal by Dr. Ursula Kilkelly and Claire Hamilton (from p. 74 especially) is an excellent guide to the human rights issues involved.

Fine defaulters and Irish Prison Policy

In the Irish Times yesterday, Conor Lally informs us that the number of people jailed for not paying fines is likely to double this year, bringing the numbers of committals for non payment of fines up to one quarter of all committals to prison. 2,520 people were committed to jail for non payment of a fine in 2008.

This should not come as a surprise as economic difficulties worsen. What is difficult to understand is why policy makers have been slow to impose what would be a very easy partial solution to our overcrowding problems. Those who cannot pay fines should not end up in prison. Those who are not deemed enough of a risk or whose offending is not serious enough to warrant a prison sentence should not be taking up much needed space in our jails.

Recent research by Professor Ian O’Donnell, Professor Eric Baumer and Nicola Hughes of University College Dublin has also found that fine defaulters who are sent to prison are the most likely of all offenders to return to prison. 85% of those sent to prison for fine default end up back in jail within 4 years. This is a startling statistic and, as the authors note, removing fine defaulters from the prison system altogether would significantly reduce recidivism rates and the numbers of released prisoners would fall, reducing the burden on the communities to which ex-prisoners return. This is quite apart from the alleviation of the administrative burden on the Irish Prison Service which comes with fine defaulters sent to prison, many of whom remain for a short period of time.

The Fines Bill 2009 will allow fines to be paid by instalments. Judges will also be able to impose Community Service Orders instead of fines. This Bill should be enacted without delay.The Oireachtas should also take this opportunity to re-examine our system of punishment and the use of Community Service Orders more generally.

Irish Prisons and Article 3 ECHR

Agnieska Martynowicz of the IPRT has an excellent article in today’s Irish Times about the relationship between the right to freedom from inhuman and degrading  treatment protected under Article 3 of the European Convention on Human Rights and structural overcrowding in prisons. Liz has blogged about the overcrowding problem in Irish prisons and the Inspector of Prisons Annual Report here and Agnieska draws attention in her article to the view which the European Committee for the Prevention of Torture has taken on Ireland’s prisons:

In 1998, it assessed the problems of overcrowding in Irish prisons as “endemic”. It repeated its concerns in 2002 and in 2006 the committee identified overcrowding as an exacerbating factor for other systemic problems such as poor cell conditions, poor regimes and inter-prisoner violence. The committee is also very clear that expanding the prison estate is not a solution to the problem.

The recent cases of Orchowski -v- Poland (Application No 17885/04) and Norbert Sikorski -v- Poland (Application No 17599/05) concerned prisoners who, on a number of occasions were held in cells shared with other prisoners and had less than the statutory three square metres of living space to each person. They were able to  establish beyond reasonable doubt that for substantial periods of time, the applicants had not been provided with the minimum “humanitarian” amount of space. The court held that the distress and hardship endured by the applicants had exceeded the unavoidable level of suffering inherent in detention. Article 3 of the European Convention on Human Rights was, accordingly, violated.

Agnieska provides an astute assessment of the consequences of the ECtHR Article 3 jurisprudence for Ireland:

While to date there has been no case decided in Irish law specifically challenging prison conditions as inhuman and degrading, the European Convention on Human Rights Act 2003, requiring public bodies to act in compliance with the European Convention on Human Rights, adds another legal basis for possible challenge.

Under the Act, the courts are also under a duty to interpret Irish law in a manner compatible with the convention as interpreted by the European court.

Considering the fast-developing human rights standards in this area, future challenges at the domestic level under the Constitution or the European Convention on Human Rights Act 2003 can be anticipated.

The two judgments against Poland signify that the European court may well look favourably on cases brought against Ireland in similar context.

While the urgency of the current overcrowding crisis is clear in human rights terms, there may also be significant financial consequences for State inaction in terms of payment of any damages ordered in successful cases.

This possibility and the wider consequences of a successful challenge should be considered by the Irish Government in their handling of the issue.

Ending Imprisonment for debt is only the first step in reshaping our prison policy

The Law Reform Commission’s Consultation Paper on Personal Debt Management and Debt Enforcement, published recently, provisionally recommended that imprisonment should not be an option for debt recovery. The Commission’s position, based on a thorough assessment of current Irish and international practice, is a sensible and welcome one. While there are many sound reasons against using imprisonment for debt, our Government recently reaffirmed it as a possible sanction for debtors, albeit one which is now more difficult to impose. The Enforcement of Court Orders (Amendment) Act 2009 was rushed into law following a High Court case which struck down the constitutionality of the original legislation allowing debtors to be jailed. That decision did not say that imprisonment for debt was impermissible in all circumstances. Rather, the High Court stated that there needed to be procedural protections in place before a person could be jailed for debt.

Instead of taking the opportunity presented by the judgment to eliminate imprisonment for debt in all cases, the Oireachtas decided to put in place these procedural protections, but retain the ultimate sanction of imprisonment for those who wilfully refuse to pay and there are no goods in the debtors possession which could be taken in fulfilment of the debt.