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#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.


Postgraduate Criminology Conference, Dublin

10 Nov

n 2004, a landmark book was published: Crime, Punishment and the Search for Order in Ireland (Kilcommins et al). This book was a milestone for Irish academia as it was the first Irish Criminology monograph. The importance of this was noted in the book’s opening line which described Criminology as Ireland’s ‘absentee discipline’. The adoption of this phrase, which had first been used by Tomlinson and Rolston in 1982, speaks to the under-development of the discipline.

The publication of Crime, Punishment and the Search for Order in Ireland came at a time of resurgent interest in Criminology in Ireland, marked by an increase in Irish Criminological enquiry. In 2001, an Institute of Criminology was established by University College Dublin, and taught and research postgraduate degrees are now offered at a growing number of institutions. September 2014 has also seen the introduction of Ireland’s first Criminology undergraduate degree in University College Cork, and in 2015 the first Routledge Handbook of Irish Criminology will be published.

The growing interest in Criminology in Ireland has seen greater numbers of postgraduate students conducting Irish research within the discipline in Ireland, Northern Ireland and further afield. These students are researching issues across the broad spectrum of criminology and the volume and scope of this work speaks to a demand for a forum in which research, ideas and approaches can be disseminated. Moreover, criminology is a ‘rendezvous’ discipline, drawing together work from sociology, history, philosophy, law, economics, politics and psychology to explore fundamental issues of crime and punishment. Criminology’s multi-disciplinary variety makes it an exciting and important social science as it provides new frameworks for deciphering and advancing our understandings of Irish historical, cultural, social and political life more broadly.

The rapid mushrooming of this academic area suggests that we are at the beginning of what is to become a significant disciplinary field in Ireland and as such this is an important time to generate a constituency of Irish researchers interested in Criminological questions which can begin to take stock of the Irish Criminological enterprise. The inaugural Postgraduate Criminology Conference presents an opportunity to begin such a task.

Call for papers deadline: Friday 19 December 2014
Poster abstract deadline: Friday 13 February 2015
Register attendance via eventbrite

Contact the organisers at

Changing Mindsets, Changing Minds: Conference on the Rights of Children of Offenders

6 Nov

Children whose parents have been incarcerated have often been referred to as “invisible victims of crime and the penal system”. It is well accepted that the absence of a parent for a prolonged period of time will affect the physical and mental wellbeing of all family members including children. Moreover, it can affect the academic performance of children and may trigger bullying and social exclusion. It will inevitably impact negatively on the family’s finances.  At the same time, evidence shows that supporting prisoner’s families has positive outcomes for them as well as the wider community with prisoners being more likely to successfully reintegrate as a result.

UCC School of Law are hosting a one day international Conference of an interdisciplinary nature highlighting the rights of children affected by family imprisonment. The aim of this innovative event is to bring together key professionals, researchers as well as those actively working in this area to share best practice and knowledge. Key note speakers will include the world renowned Justice Albie Sachs, a former Judge from the South African Constitutional Court.   Other international experts in this area will share their specialist expertise such as Ben Raikes, Senior Lecturer in Social Work, University of Huddersfield, Shona Minson, University of Oxford, and Lucy Gampell, Director of Children of Prisoners Europe. This event will also provide a platform for the NGO sector as well as those directly affected by family imprisonment. International practice perspectives will be drawn from England, Northern Ireland and Europe more generally, while national experiences and initiatives will also be highlighted. The impact of family imprisonment will be dealt with via the sharing of family experiences in panel discussions as well as a unique Children’s Art exhibition, to be hosted in Jennings Art Gallery UCC, which will provide attendees with a critical insight into the views of children and young people affected by imprisonment in Ireland.

The event is kindly supported by the Irish Research Council, UCC Strategic Research Fund, UCC College of Business and Law and the Centre for Criminal Justice and Human Rights, UCC.

For further information concerning this event please see here

For registration details: please contact School of Law, Events Manager: Noreen Delea; 021 4903220.

To Book follow the link here

For event information please contact the conference convenors: Dr Fiona Donson ( /Dr Aisling Parkes (

5 CPD points available

Beyond Crime: Pathways to Desistance

28 Feb

From the 11th-14th of June Queen’s University Belfast is hosting the 8th International Conference of the Beyond Desistance European Forum for Restorative Justice, Beyond Crime: Pathways to Desistance, Social Justice and Peace Building. Keynote speakers include Prof John Braithwaite, Prof Shadd Maruna, Prof Joanna Shapland, Porf Kieran McEvoy, Dr Tove Hansen Malloy and Brunilda Pali.

Practitioners, researchers, RJ trainers, legal professionals, and policy makers are invited to submit a  proposal for one of the following types of presentations:
Paper presentation – 20 min + 10 min Q&A
Training session – 90 min
Panel discussion – 90 min
Dialogue session – 90 min
Movie/documentary and discussion – 120 min

The deadline for submissions is the 14th of March 2014. For further details please see the conference flyer attached here: International RJ Conference

9th North South Criminology Conference

31 Jan

The Committee of the 9th North South Irish Criminology Conference welcomes submissions for this year’s conference which takes place at the Western Gateway Building, University College Cork on the 20th & 21th June, 2013. The Conference will also incorporate the Centre for Criminal Justice and Human Rights (CCJHR) Postgraduate Conference that is held annually at UCC.

The aim of the conference is to provide a forum for academics, post-graduate researchers, community activists, practitioners and policy makers in the fields of criminology, criminal justice and human rights to come together to exchange ideas and disseminate research. Papers from early career researchers are encouraged.

The general theme of the conference is: Rights, Responsibilities, and Wrongdoings: Continuity and Change. Sub themes include but are not limited to:

  • Criminal Justice Processes
  • Victims and the Criminal Justice System
  • Human Rights
  • White Collar Crime
  • Prisons and Penal Policy
  • Young People, Crime and Justice
  • Policing, Regulation and Surveillance
  • Alternatives to Prison
  • Restorative Justice
  • Gender and Criminal Justice
  • Globalisation, Migration and Immigration
  • Social Exclusion
  • Media and Crime
  • The policy value of Criminology
  • Criminal Law and Criminal Procedure

Please forward an abstract (no more than 300 words) of the proposed paper for consideration, including a working title, name and institutional affiliation to by 28th of March 2013. Notification of acceptance will be provided by the 26th of April 2013. Presenters will not be required to submit a version of the paper. Enquiries may also be sent to

If you would like to attend the conference without giving a paper, please email Noreen Delea at by 31 May 2013. Alternatively you can contact Noreen on 021 4903220. Registration is free of charge. If you have had a paper accepted at the conference, there is no requirement to register.


For updates and information, like us on facebook (Center for Criminal Justice and Human Rights Postgraduate Conference),  follow us on twitter @CCJHRlawucc and see the CCJHR website

Member Focus: New publication

16 Nov

Irish Criminology Research Network member Dr. Claire Hamilton recently published her new book, Irish Social Work and Social Care Law.

Claire is currently a lecturer in the Dept. of Sociology, Social Policy and Social Work in Queen’s University Belfast. However the motivation for the book came from Claire’s time and experience teaching in DIT. Dr. Hamilton found that the lack of any central text in the area of law and social care a frustrating hurdle. Given the sensitivity of so much social work it is surprising that a textbook which outlines the overarching legal framework didn’t exist already. At the book launch Claire recalled ‘the difficulty involved in teaching law to social care students- I think most students approach law with a mixture of angst and trepidation – were compounded by the fact that was no one single accessible textbook to guide them through the module. I knew from others who taught law to social workers in their institutions that they faced similar problems. So, hopefully the book will serve to plug this gap in the literature if nothing else; bringing together in one place what I would call the architecture of the law relating to social care and social work as well as the substantive law dealing with more specialised areas: child protection, adoption, mental health, etc.’

‘I also think that now more than ever, it is important for social care practitioners to positively engage with the law. It’s easy for students to dismiss law as an irrelevant add-on to core modules such as professional practice or to see it as something that can be easily delegated to HSE solicitors and legal counsel if the need for legal advice arises. But while practitioners need not be made into lawyers, they do need to think enough like lawyers to practice preventatively or to keep themselves out of legal trouble and also to know when to seek professional legal help. The harsh reality is that increasingly in the social care and indeed early child care arena, every decision they will take as professionals is a potentially legal and litigable one’.

The book is now available from Gill and Macmillan. 

Coercive Confinement in Post-Independence Ireland

25 Sep

A new publication by Eoin O’Sullivan and Ian O’Donnell appears to making an impact outside academia, with a very favourable review from the Irish Times, and a further article from Fintan O’Toole in which he describes it as a ‘a very important book’.

In Coercive Confinement in Post-Independence Ireland O’Sullivan and O’Donnell develop an integrative framework to explain how and why Ireland maintained such a huge ‘carceral archipelago’. Rather than focus on prison as the main place of incarceration they chart the staggering numbers of people coercively confined in a web of institutions such as Magdalen laundries, industrial schools and psychiatric hospitals. They find that along with the Church and State the family was a fundamental part of the explanation which prior to this publication had been sidelined.

A further feature of the book is the use of contemporary rather than reflective articles discussing these various institutions of confinement. These challenge the retrospective belief that these institutions were clandestine, operating below the radar of society.

The authors kindly joined The Differential Association recently to discuss their book, a review of which describes it as having important lessons for Ireland and Criminology alike.


Read more here: