#Blog Dr Mary Rogan: ‘Judicial conceptions of prisoners’ rights’

2 Mar

Decisions of the courts have the potential to alter penal policies in radical ways. As the Plata litigation before the Supreme Court of the United States has shown,[1] judicial decision making can disrupt policies of penal expansionism, and even reshape how prison is conceived of.[2] While this is so, criminology has paid rather limited attention to litigation as an influence on the penal policymaking process, and also to judicial decision making as an indicator of a state’s penal culture.

The Irish experience of prison litigation is developing slowly, but a series of cases have determined the contours of how the judiciary conceives of the rights of prisoners. These statements are essential to the legal regulation of Irish prisons, but are also important sources of understanding about the nature of Irish penal culture and practice. This blog traces the development of judicial discussion of whether and how prisoners are holders of rights in Ireland.

Several decisions have held that, while imprisonment inevitably involves the deprivation of rights, those rights which are not necessarily diminished must continue to be upheld.

In Mulligan v. Governor of Portlaoise Prison[3] the High Court held:

 any attenuation of rights 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”.

In Murray v. Ireland[4] it was held that the rights which may be exercised by a prisoner are those which do not depend on the continuation of liberty, and which are compatible with the reasonable requirements of the Prison Service or do not impose unreasonable demands on it.

In Holland v. Governor of Portlaoise Prison[5] it was held that a prisoner is obliged to suffer such restrictions on constitutional rights as necessary to accommodate the serving of a sentence. Subject to this proviso however, McKechnie J held that all other rights should be capable of being exercised. McKechnie J also considered prisoners to have the right to free communication, the right to practice one’s religion, and the right to natural and constitutional justice, holding that this was not an exhaustive list.[6] The court reiterated that any restrictions on the constitutional rights of prisoners must be proportionate.

In Devoy v. The Governor of Portlaoise Prison[7] Edwards J recognised the broad discretion vested in each Governor, but held that:

the application of the Rules must be in a manner which is respectful of and intended to vindicate the constitutional rights of the prisoner to the extent that they are not abrogated or suspended by the very fact of his being sentenced to a term of imprisonment. Among the residual constitutional rights of a prisoner which are not abrogated or suspended is the right to be treated humanely and with human dignity.[8]

Perhaps some of the most uplifting language on the rights of prisoners is to be found in Connolly v. Governor of Wheatfield Prison where Hogan J held:

The obligation to treat all with dignity appropriate to the human condition is not dispensed with simply because those who claim that the essence of their human dignity has been compromised happen to be prisoners….

For even though prisoners may have strayed from the path of righteousness and even though …  they may have severely and wantonly injured other persons, the protection of the dignity of all is still a vital constitutional desideratum. This is because the Constitution commits the State to the protection of these standards since it presupposes the existence of a civilised and humane society, committed to democracy and the rule of law and the safeguarding of fundamental rights. …

All of us are, of course, sadly aware of the great failures of the past and the present where these rights seemed and seem like hollow platitudes. But this is not quite the point, since it is by upholding these values and rights that we can all aspire to the better realisation of the promise which these noble provisions of the Constitution hold out for us as a society.[9]

In Kinsella v. Governor of Mountjoy Prison the High Court had no difficulty in accepting that a prisoner has a right to bodily integrity and that this right encompasses a person’s psychological wellbeing.[10]

We may well see the judiciary becoming a more influential factor on penal policymaking. As Justice Kennedy in Plata held:

A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.

If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment [prohibiting cruel and unusual punishment] violation.

These statements are crucial indicators of our approach to the treatment of prisoners. They deserve greater attention within criminological scholarship. Furthermore, we must never lose sight of the fact that lawyers and judges engaged in prison law cases play an essential role in ensuring accountability and the upholding of the rule of law in places which are very far from public view.

[1] Brown v Plata, 131 S. Ct. 1910, 1923 (2011).

[2] See further, Simon, Mass Incarceration on Trial, The New Press, 2014.

[3] [2010] IEHC 269.

[4] [1991] ILRM 465.

[5] [2004] 2 IR 573.

[6] [2004] 2 IR 573, at p. 594.

[7] [2009] IEHC 288.

[8] [2009] IEHC 288, at paragraph  88.

[9] [2013] IEHC 334 Paragraphs  15-18. Internal citations omitted.

[10] [2011] IEHC 235.

Criminalising ten-year-olds is no way to run a justice system

23 Feb

By Nicola Carr Queen’s University Belfast

At age ten, children in England, Northern Ireland and Wales can be found guilty of a criminal offence. They can face trial and be placed in detention.

We don’t allow children of ten to hold a driver’s licence or get married or travel on a plane unaccompanied – we don’t even allow them to be left at home alone. Yet we treat them as responsible enough for their own actions – and indeed as significantly au fait with the law – to face court if they commit a crime.

Children of this age cannot consent to sex – for this you have to be 16. Yet our criminal laws mean that children from age ten upwards can be charged with a sexual offence. There is something very contradictory here.

The age of criminal responsibility in England, Northern Ireland and Wales is well below the average of other countries in the European Union – which is 14. In the Netherlands children cannot be charged with an offence below the age of 12. In France it is 13, in Sweden it is 15. In Belgium the age of criminal responsibility is 18.

Rare cases shouldn’t set the age

While the youth justice system operates separately from the adult criminal justice system, its processes largely mirror it. The consequences for a young person when they enter the criminal justice system mirror those of adults too.

In countries with a higher age of criminal responsibility, young people whose behaviour is causing concern are dealt with in the child protection and welfare system. This approach reflects wider social and cultural attitudes towards children and young people. The same goes for England, Wales and Northern Ireland.

Those who resist calls to raise the age invariably point towards the case of James Bulger, the toddler murdered by two ten-year-old boys in 1993. The crime provoked a strong public reaction and the boys eventually became the youngest convicted murders in modern English history. But the UK government was challenged in the European Court of Human Rights over the way it treated these young defendants.

While evoking understandable concern, incidents as serious as the Bulger murder are extremely rare. And where they do occur they are invariably symptomatic of deeper problems and need. They should not form the basis for setting the age of criminal responsibility.

Out and staying out

International evidence shows that offending by young people is best addressed by keeping them out of the criminal justice system. Once inside it, there are all kinds of negative consequences – not least being labelled a “young offender”.

What’s more, the range of circumstances under which a criminal record can be disclosed is widening and it is possible for criminal records acquired as a juvenile to follow a person for the rest of their life.

This has profound implications for a young person’s educational opportunities and employment prospects. We know that many of the young people that are processed through the youth justice system already suffer the consequences of this.

Groups are emerging to call for the age of criminal responsibility to be raised and I would argue that 16 is more in line with other responsibilities.

Suggesting that the age of criminal responsibility should be raised does not mean ignoring behaviours of concern. It means precisely the opposite. Rather than labelling and punishing children and young people, support should be provided to help them and their families.

This article was originally published on The Conversation.
Read the original article.

Funded PhD opportunities: ‘Exploring Pathways and Transitions between Juvenile and Adult Penal Institutions’

13 Feb


Fully funded ESRC/NWDTC PhD Studentship

Department of Sociology, Social Policy and Criminology, School of Law and Social Justice, The University of Liverpool in partnership with Her Majesty’s Inspectorate of Prisons

Exploring Pathways and Transitions between Juvenile and Adult Penal Institutions

Full details available athttp://www.jobs.ac.uk/job/AKK858/phd-case-3-studentship-exploring-pathways-and-transitions-between-juvenile-and-adult-penal-institutions/

Tender for Research – Ballymun STRIVE Integrated Offender Management Programme

2 Feb

Tenders are sought to undertake a process evaluation of the local implementation of Ballymun STRIVE Pilot Programme.

Ballymun STRIVE Programme is a designated, Opt-In Project (Integrated Offender Management Project) which is a joint agency response to crime between the Probation Service, an Garda Síochána and the Irish Prison Service in partnership with non-justice community/statutory organisations and groups.

Arising from concerns about serious offending and anti-social behaviour, in 2013 the Ballymun Local Drugs Taskforce, along with other relevant governmental agencies and organisations, began work on planning an Integrated Offender Management pilot project for the area of Ballymun. IOM seeks to bring various agencies together to tackle persistent offending (for a discussion of the IOM see a previous posting here). The resulting Ballymun STRIVE Programme is a 24-month pilot project aiming to implement the lessons learned from IOM elsewhere.

The closing date for tenders is Wednesday, 18 February 2015. For more information about the proposed research, please see here.

Evaluation of Le Cheile Restorative Justice Project

29 Jan

Yesterday saw the launch of an evaluation of Le Cheile’s youth restorative justice project in Limerick. This is the first and, as yet, the only non-statutory youth restorative justice scheme running in Ireland. The scheme is available to young persons engaged with the Probation Service.

The evaluation provided very positive findings regarding outcome, with almost €3 return for every €1 spent. The benefits extended beyond the young person, to the families and victims of offences committed by the young person, providing a positive indicator of the holistic benefits of restorative justice as a means of tackling youth crime. Crucially, the young persons experienced the project as better than the traditional mechanisms of the criminal justice system, shoring up the legitimacy and therefore effectiveness of the scheme.

The research was carried out by Quality Matters, and the report was launched by the Director of the Probation Service, Vivian Geiran (read his speech here), Chairperson of UCC’s Child Law Clinic Prof Ursula Kilkelly, and the Mayor of Limerick, Kevin Sheehan.

Read the Executive Summary of the report here.

Youth Justice in Ireland North and South – Special Journal Issue

2 Dec

Youth justice systems and practices in Ireland have been shaped by the socio-political context, impacted by religious and moral imperatives and prolonged political conflict. The criminal justice systems and the response to children and young people in conflict with the law in the Republic of Ireland and Northern Ireland have common antecedents and many shared historical legacies – including a shared legislative framework (Children Act 1908) and the reformatory and industrial school system (which has been the subject of recent historic inquiry on both sides of the border). Partition under the Government of Ireland Act (1920) ultimately led to the establishment of two separate jurisdictions. In what was to eventually become the Republic of Ireland, there was a significant period of policy stagnation with new legislation to replace the 1908 Act only introduced in 2001 (Children Act 2001).The development of the state response to young people in conflict with the law within Northern Ireland has broader parallels with other UK jurisdictions (particularly England and Wales) up until the 1960s, but is overlaid by the subsequent security/criminal justice response to civil and political conflict from this period onwards.  Edited by Nicola Carr and Siobhán McAlister the special issue of Youth Justice focusses on the some of the legacies of the past on the patterning of the present configuration of youth justice in Ireland North and South. The edition includes the following articles:

Ursula Kilkelly – Diverging or Emerging from Law? The Practice of Youth Justice in Ireland

Deena Haydon  – Early Intervention for the Prevention of Offending in Northern Ireland

Siobhán McAlister and Nicola Carr – Experiences of Youth Justice: Youth Justice Discourses and Their Multiple Effects

Mary-Louise Corr –  Young People’s Offending Careers and Criminal Justice Contact: A Case for Social Justice

Ken Harland and Sam McCready -Rough Justice: Considerations on the Role of Violence, Masculinity, and the Alienation of Young Men in Communities and Peacebuilding Processes in Northern Ireland


Analysis of Submissions to National Strategy on Domestic, Sexual and Gender-Based Violence

20 Nov

A report released today, from the University of Limerick School of Law, provides an analysis of the submissions for the final review of the National Strategy on Domestic, Sexual and Gender-Based Violence 2010-2014.

The report, written by Dr Eimear Spain, Sarah Gibbons and Professor Shane Kilcommins, provides an overview of the submissions prepared by stakeholders with experience of the National Strategy. The responses were gleaned from questionnaires created by Cosc.

The following key themes were identified:

  • leaving situations of violence – dangers presented, risk of homelessness, particularly acute in the current housing stock crisis, inadequately understood link between domestic violence and child abuse
  • cohorts of concern – the groups most at risk (Travellers and Roma, migrants, persons involved in prostitution, persons with a disability, persons identifying as LGBT, pregnant women, young people, those with an addiction, older persons, those with a mental illness)
  • service provision – enhanced co-operation needed
  • legal – need for emergency legal orders available outside court hours, concern about restriction of barring orders, issues with legal aid, delays in judicial proceedings and re-victimisation of persons through the investigative and legal process, attrition rates, inappropriate sanctions
  • prevention – aware-raising of what constitutes violence and supports available, with a tailored approach for groups such as Travellers and Roma
  • resources – under-funding and cuts

The report in full is available here.

Women’s Aid today held an event in Dublin to raise awareness of violence against women and children. A vigil was held outside Leinster House in memory of 78 women, as well as 10 children, killed by their current or former partners since 1996.


Get every new post delivered to your Inbox.

Join 47 other followers