Prisoners’ Rights

Overview

Notwithstanding that a prisoner is deprived of liberty, he or she retains a range of other rights protected by the Constitution.  This includes the right of access to courts to challenge the legality of their detention.

Challenges to the legality of the conditions of detention may be permissible.  It is unlikely that any such challenge would lead to release from detention unless their health and safety was at immediate risk or torture or degrading treatment existed.

Formerly the Forfeiture Act prevented prisoners from taking legal action in civil cases.  Similarly, it prevented prisoners from transferring property or making contracts. This legislation was repealed in 1997.

The 1947 Prison Rules made provision for a prisoner to be brought to court in the custody of a prison officer for the purpose of litigation.  He was to be dressed in his own clothing.  See the separate articles on the modern rules, which include provision for video link to court.

A prisoner may be called as a witness, A special form of consent from a judge or Minister is required.  The expenses of conveying the prisoner to court must be tendered.

Access to Legal Advisers

Prisoners are entitled to see their legal advisers at reasonable hours in the sight but not in the hearing of a prison officer.  Prisoners must be allowed to communicate at reasonable times and be visited for such purposes.

Remand prisoners are entitled to see legal advisors on any weekday at a reasonable hour in the sight but not the hearing of a police officer.  The courts have indicated that they are entitled to a private consultation.

Written communications with legal advisers are generally entitled to confidentiality.  Difficult issues have arisen in relation to prison authorities’ claims to censor correspondence and the freedom to communicate with lawyers.

Communications

Prisoners have a general right to communicate with the outside world through correspondence and communication.  However, this is subject to rules in the interest of prison discipline and order. A prisoner may be permitted visits from relations and friends in person.

The prison rules permit correspondence to be read.  There have been various challenges to these rules based on the Irish Constitution and the European Convention on Human Rights.  The Irish courts indicate that the prisoner must be given reasons for censoring of correspondence.  Communications are subject to prison discipline and order.

Visitors

The rules limit the number of persons who may visit at one time.  A visiting permit may be lost for misconduct or breach of prison rules. Where a prisoner is eligible for a visit, the prison authorities shall notify friends and others who wish to visit him or allow him to do so.

Prison authorities are entitled to details of the visitor.  They may search visitors if there are grounds for suspicion.  Access may be denied if visitors refuse to submit to search.

If there is any suspicion that the person visiting is bringing any articles for improper purposes or contrary to rules or which otherwise might tend to subvert discipline or good order, the visit may be suspended and the person removed.

Members of a Garda Siochana may visit prisoners for the purpose of identification on the production of a court order or authority in writing of an officer of the rank of superintendent or above.  They may also, if authorised by such officer with the approval of the Minister for Justice, visit on matters concerned with police duty where the prisoner is willing to meet.

Investigation of Offences

The Criminal Justice Act 1999 makes provision for the arrest of persons in prison.  A member of a Garda Siochana may arrest a person in prison on the authority of a judge of the District Court on the basis that there are reasonable grounds for suspecting the prisoner has committed an offence other than that for which he or she is imprisoned.

The arrest must be necessary for the proper investigation of the offence.  The offence must be an arrestable offence, i.e., one bearing a potential sentence of five years or more.

The prisoner must be taken to a Garda Station and be dealt with as a detainee under the Criminal Justice Act 1984.  On termination of the detention, the person must be transferred back into the custody of the governor of the prison.

The power to discipline for breach of prison rules is vested in the governor or other officers appointed by him.  The procedure is not prescribed. Fair procedures must be followed. The modern rules make more specific provisions which embody fair procedures.

Prison Discipline

Breach of prison discipline may include disobedience of an order, treating officers with disrespect, refusal to work, swearing, cursing, insulting, threatening or improper language, assault, leaving the cell without permission, committing nuisance and possession of unauthorised articles.

A prisoner may be sanctioned by forfeiture or remission of up to 14 days, suspension of privileges for up to two months, or close confinement for up to three days. Sanctions may include stoppage of gratuity, restriction of visits and communications. See the new rules which provide a longer list of sanctions with varying degrees of due process. .

A Prisoner is entitled to basic fair procedures in relation to determinations concerning breach of prison rules.  A prison disciplinary hearing may potentially be subject to judicial review.  However, as with judicial review, generally, the challenge must be based on the fundamental legality of the process rather than on its merits.

The level of procedural fairness in a prison disciplinary hearing would be significantly less than that for a criminal hearing.  Greater informality, unsworn evidence and hearsay would be permissible. However, there is an overriding requirement for basic procedural fairness.

The prisoner should receive notice of the alleged misconduct.  This is not required if the person knows the case against him.  The prisoner must be given an opportunity to be heard in relation to the accusation against him.  It is likely that he has a right to call witnesses in his defence.  There are likely to be limitations on the right to call witnesses.

The prisoner may be entitled to cross-examine witnesses who give evidence. In some cases, the prisoner may be entitled to legal representation where there is a potentially serious sanction, such as loss of remission. However,  legal representation is not generally required. See the new Prison Rules, which make specific provisions for legal representation in some serious cases.

Civil Wrongs

The prisoners enjoy the same rights as citizens generally in respect of civil wrongs. In civil claims for damages by prisoners arising from assault by fellow prisoner, prison authorities will not be liable automatically or even generally. The prison authorities need only take reasonable care to prevent such incidents.  However, in some circumstances, such as where they are aware of a violent propensity or facilitate access to weapons, et cetera, they may be found to be negligent in the circumstances.

In a number of cases, the prison authorities have been found not liable in relation to relatively sudden unprovoked attacks, even where prisoners have managed to obtain weapons in breach of prison rules. In cases where the prison fails to follow its own procedures, which are specifically designed to prevent incidents, then the possibility of a finding of liability for negligence is greater.

Where a prisoner is particularly vulnerable to attack, the authorities may have a higher duty to protect him from this risk.  However, they do not have a duty to ensure safety at all times.  Ultimately, it is usually impracticable to separate prisoners.

Prison Conditions

There have been a number of cases on prison conditions and treatments.  The prison rules require that cells may not be used unless they are certified by the Department of Justice to be of a size, lighted, warmed, ventilated and fitted in such manner as may be prescribed.  They should have a means of communication with a prison officer.

The rules require that each prisoner should have a cell by himself unless the governor of the presence is of the opinion that accommodation is insufficient to enable each prisoner to have his own cell.  This should only last for so long as the insufficient accommodation continues.  European prison standards provide that accommodation at night should be in individual cells except where there are advantages in sharing accommodations.

Prisoners have a right to be free from torture and inhuman and degrading treatment.  A detention where a person is subject to torture, inhuman or degrading treatment may be rendered. However, cases brought in respect of Irish prisons, even where the conditions have been found to be appalling, have not been sufficient to constitute inhuman and degrading treatment.  There have been cases of prisoners with particular needs and vulnerabilities where the courts have held that the prison authorities are not obliged to build and equip specialist units for them, the detention unlawful.

The prison rules forbid a business from being subject to mechanical restraint as a punishment.  A prisoner may be put in irons or mechanical restraint by the governor in cases of urgent necessity.  No prisoner may be kept in irons or mechanical restraint for more than 24 hours without an order in writing from a member of the visiting committee specifying due cause.

Remand prisoners should be kept separate from convicted prisoners.  This is provided by the Prisons (Ireland )Act 1877.  The 1947 prison rules made provision for remand prisoners. The courts may order the release of a prisoner for breach of this condition. If a remand prisoner is injured in an attack by a convicted prisoner, the authorities are more likely to be found liable.

Health

Prisoners have a Constitutional right to have their health protected.  The State has a corresponding Constitutional duty to protect the prisoners\’ health.

The prison rules require that prisoners be examined by the medical officer at reception.  It requires prisoners should not be transferred unless they are certified fit for removal.  Where they are found to be suffering from infectious or contagious diseases, steps must be taken to prevent the spreading of the disease.

The prison rules contemplate the provision of a proper place for the reception of sick prisoners. Prisoners must follow directions regarding washing, hygiene, bathing, and haircutting as may be prescribed for the protection of health and cleanliness.

The medical officer is obliged to examine inmates engaged in labour from time to time.  Labour must cease if the medical officer certifies that the prisoner is no longer fit for employment.  Prison officers are obliged to notify the governor of any prisoner who appears ill, even if the complaint is not made.

The governor of the prison must call for the attention of a medical officer where prisoners’ physical or mental condition appears to be required.  The governor must carry into effect the instructions of the medical officer.  The governor must provide daily list of prisoners reported sick and notify them to the medical officer.

The prison doctor may reduce the diet of prisoners, certify if they are fit to be punished by close confinement, and specify food and living conditions.  Medical officers must attend to sick prisoners as well as officers and other employees of the prison.

He must see prisoners upon complaint of illness.  He must examine washing places, bath facilities, and sanitation and report deficiencies to the governor. He has general care of the health of prisoners.

The courts have been extremely reluctant to review prison conditions.  Ultimately the courts are reluctant to direct the executive and governmental authorities to allocate resources in a particular way.  Most of the deficiencies in large prisons result from a lack of resources.

Prisoners are not entitled to their choice of doctor.  Nor are they necessarily entitled to the best treatment available.

Education

In so far as reasonably practicable, a broad and flexible programme of education shall be provided to meet the needs of prisoners by helping them to cope with imprisonment, achieve personal development, prepare for life after release, and establish the appetite and capacity for lifelong learning.

Each prisoner shall, insofar as practicable, be permitted to participate in education provided in the prison. Programmes may be provided in partnership with community-based education bodies.

In so far as possible, a library and information service are to be provided including access to a wide range of informational, educational and recreational resources catering for the needs and interests of prisoners. Each prisoner is to be entitled to avail of the library service at least once a week and to be actively encouraged to make full use of it.

A broadly based programme of vocational and pre-vocational training shall, as far as is practicable, be provided to assist prisoners in occupying their time, achieving personal development, preparing for life after release, developing vocational skills and improving their prospect of employment.

Persons providing educational and library services must comply with prison rules and requirements, treat prisoners with dignity and respect, and cooperate with the prison authorities and prison officers.

Spiritual & Psychological Services

Arrangements are to be made for psychological services at prisons. Chaplin may visit prisoners who are recorded as belonging to his denomination and who are willing to be visited or request a visit. Chaplaincy services are to be undertaken in accordance with the Rules.

If a person wishes to receive a chaplain visit, this is to be communicated by the governor. A chaplain shall be entitled to visit a prisoner at any time subject to Rules and in any part of the prison.

A chaplain shall inform the governor in writing if he is of the opinion that the spiritual, moral, emotional and physical state of the prisoner is being significantly impaired by his continued imprisonment and shall keep a record of the prisoner’s name, the information the governor.  Each chaplain is to make an annual report to the Director General of Prisons.

Prisoners may not be required to attend religious services of a persuasion to which they do not belong.  Adequate provision must be made for the religious requirements of a prisoner.  However, a person is not entitled to a particular regime to suit his religion.

Right to Marry & Procreate

There have been a number of cases concerning specific types of prison rights.  Prisoners may have rights to marry under certain circumstances.

In the case of prisoners with long sentences, it may be necessary to afford a right to marry.  A substantial delay in the exercise of the right to marry may result in the denial of this right, which is protected by the Constitution and European Convention on Human Rights.

In the Murray case, a couple convicted of the capital murder of Garda and sentenced to 40 years sought to establish a right to procreate.  The Supreme Court decided that the right to procreate was one of the rights circumscribed by imprisonment.

Politics & Association

Until 1963, convicts had no right to vote.  In practice, however, despite a number of challenges, prisoners have not succeeded in exercising the right to vote.

Freedom of association is greatly circumscribed by imprisonment.  Prisoners may be permitted to communicate with one another while at work or recreation if the interaction is in an orderly manner and does not impede the work in which the prisoners are engaged.  It may be withdrawn as a privilege if necessary, in the interests of good order.

The right to privacy is circumscribed by the exigencies of the prison lifestyle and the requirements of the prison environment.

Search

Criminal legislation permits prison officers to search prisoners at any time.  Under certain circumstances, strip searches may be justifiable in order to maintain the security of prison.

The Forfeiture Act provided that a curator could be appointed to a convict’s property and affairs.  This rule is because no legal action is to be taken for the recovery of property, debt or damage by a convict while he was subject to legislation, nor could he transfer a property.  This legislation was repealed in 1997.