21 years of the Irish Penal Reform Trust: civil society and law reform

The Irish Penal Reform Trust (IPRT), Ireland’s leading NGO working for progressive reform of the penal system, is celebrating twenty one years in existence.

I was privileged to chair IPRT between 2010 and 2014. Meeting current and former staff and board members at Áras an Uachtaráin, at a reception hosted by IPRT Patron, President Michael D. Higgins, and Sabina Higgins, brought home to me once again the importance of well resourced, professional civil society organisations. The use of evidence and the creation of constructive and concrete proposals for reform have also been hallmarks of the work of IPRT. It was also very evident that NGOs require a wide variety of strategies and tactics, and the support and input of a wide variety of actors. The photograph of those attending the event shows the diversity of interests and talents which have combined to make IPRT the authoritative organisation it has become.

The question of strategy and the role of NGOs was also very evident at the most recent seminar in the ‘Changing Ireland, Changing Law’ project, which I am co-directing with Professor Ivana Bacik of Trinity College Dublin. It is funded by the Irish Research Council, and will produce an edited collection with contributions from former litigants, lawyers, academics and NGOs, in 2016. This project works with the Public Interest Law Alliance as its lead partner. The project examines how litigation has acted to shape social policy in Ireland and models of change adopted by NGOs. It wishes to document and share the experiences of the individual litigants behind the cases which have shaped law reform in Ireland. Our first seminar was with the National Women’s Council of Ireland, and explored women’s rights and social change in Ireland. Our second was with the Gay and Lesbian Equality Network, and looked at the transformative effect of cases taken by Senator David Norris, and Senator Katherine Zappone and Dr. Ann Louise Gilligan. Our most recent seminar involved us partnering with the Immigrant Council of Ireland, to hear about the pressing need for reform in the area of immigration and asylum. The Mallak v Minister for Justice, Equality and Law Reform decision was a key point of discussion in this seminar. This case, which has fundamentally altered administrative law in Ireland, held that there is a right to reasons even when a decision is entirely within the discretion of a Minister, when fundamental rights are affected.

The Mallak case has a lot of potential in the area of prison law. The right to reasons has potential application across a wide variety of areas. It is central to a truly accountable prison system.

The Irish Penal Reform Trust has worked hard to reform the penal system in Ireland. Its work on accountability in particular remains urgent and critical to the development of better penal and social policy in Ireland.

21 years of the Irish Penal Reform Trust: civil society and law reform

Accountability in our prisons: Blog for Justicia +

I was delighted to be invited to write a blog for Justicia +, an organisation based in Mexico, on the globally relevant concept of accountability in our prisons. The English version is below, and the original (in Spanish) can be found here.

Accountability and the rule of law take on particular importance in the prison context. International human rights norms emphasise the need for independent monitoring, proper record keeping, and fair procedures in decisions which affect the fundamental rights of prisoners, such as family rights in the case of family visits and transfers, as well as procedural justice during disciplinary hearings. It is well established that fair procedures enhances the legitimacy of prisons, and the role of staff in these processes is essential. As the Association for the Prevention of Torture has said about the Optional Protocol to the United Nations Committee on the Convention against Torture has stated, the ‘basic premise is that the more open and transparent places of detention are, the lesser the risk for abuse’. The rule of law is upheld through clarity in prison regulations, the application of the rules equally, and with fair procedures, recourse to a process of appeals, and respect for rights. These principles are of fundamental importance in places where State power is at its most potent.

Prisons are places of power, which flows in a variety of crucial ways. State power is exercised by means of the imposition of punishment; power flows through relationships between staff and prisoners, out to prisoners’ families, amongst prisoners themselves, between oversight bodies, staff and prisoners, and between various grades of staff. At the same time, prisons are eminently rule-bound institutions, subject to local regulation, national legislation, regional legal instruments and human rights norms, and international obligations. These act as checks on unrestrained power, regulating prison conditions, forms of disciplinary sanction, and contact with the outside world, and are crucial aspects of legitimate penal regimes, as the work of Ben Crewe, Alison Liebling and Sparks and Bottoms has shown.

Two essential elements of the rule of law in prisons are avenues of complaint for prisoners which are independent of the person or body making a decision about a prisoner, and mechanisms for inspection and monitoring on a regular basis. The European Prison Rules emphasise the importance of mechanisms for responding to complaints by prisoners and the possibility of an independent appeals process, while the Committee for the Prevention of Torture has stated that “effective grievance and inspection procedures are fundamental safeguards against ill-treatment in prisons” (2nd General Report). The European Court of Human Rights has also laid down the basic elements which any investigation into the death of a prisoner must comply with. In order to vindicate the procedural element of Article 2, which contains the right to life, an investigation into the death of a person in prison must be instigated by the state, be capable of establishing responsibility for any wrongdoing, involve the family of the deceased prisoner, be independent, and prompt. The Court has also emphasised the importance of effective investigations when allegations that a person has been the subject of torture (see, for example, Makhashevy v Russia). These are principles which transcend national borders.

Clarity and certainty in the law are also essential requirements of a system which is governed by the rule of law. The kinds of behaviour which might result in a disciplinary sanction must be clear to prisoners, and the circumstances in which a prisoner might be refused a visit with a family member or friend must also be readily understandable and have a basis in a law which is accessible to prisoners. In Moiseyev v Russia the European Court of Human Rights held that in matters which affected fundamental rights, it would be contrary to the rule of law that limitations on those rights would be subject to the exercise of unfettered discretion (see further Rogan, 2014).

Accountability in prisons is a critical concept for the safe running of prisons and the vindication of the rights of prisoners. It is also important that we learn more about how accountability mechanisms feel to both prisoners and staff, in order to advance our understanding of what accountability means, and why it is important in the prison context.

Accountability in our prisons: Blog for Justicia +

Prison Law at Dublin Institute of Technology

We are delighted that the School of Languages, Law and Social Sciences is the first academic institution to offer a module in Prison Law anywhere in Ireland.

I developed this module, and it first ran in 2014/15. The level of interest and engagement from students was heartening, and bodes well for the future of the subject, the legal profession and the prison system.

As Sharon Dolovich of UCLA has written so persuasively, prison law is an essential topic for law students. Our traditional courses tend to stop at the moment of conviction or sentencing. It is very rare for law students to examine what happens post-sentencing, and yet prisons are a hugely important source of public law. Classic administrative law decisions such as St Germain developed from a prison law issue.

This should come as no surprise. Prisons are places where the rule of law can be in peril, and the fairness of decision-making has important consequences for penal legitimacy. The good order of prisons is intimately connected with feelings of justice and fairness, amongst both prisoners and staff. Reasons for decisions, and opportunities to seek external redress are two critical elements in a prison system which upholds the value of the rule of law.

Prisons can also be important sources of human rights principles, and family law, particularly where visiting rights are at issue. As Hogan J has written in Connolly v Governor of Wheatfield Prison:

While due and realistic recognition must be accorded by the judicial branch to the difficulties inherent in the running of a complex prison system and the detention of individuals, many of whom are difficult and even dangerous, for its part the judicial branch must nevertheless exercise a supervisory function to ensure that the essence of these core constitutional values and rights – the dignity of the individual and the protection of the person – are not compromised … 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. …

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. …

Prisons can test the limits of the universality of human rights principles, and the application of those principles in prisons teaches us much about human rights norms.

I look forward to seeing a generation of lawyers trained in prison law transforming jurisprudence on prison law and enhancing the accountability of the prison system. I hope our module on Prison Law will play a small part in that process.

More information on studying Prison Law as a CPD option can be obtained from: l.aw@dit.ie

Prison Law at Dublin Institute of Technology

The definition of a ‘sentence’ and the Callan decision

The decision of Callan v. Ireland and the Attorney Generawas handed down by the Supreme Court this afternoon. Two judgments, one by Hardiman J, the other by Clarke J, were delivered, in which the rest of the five-judge court concurred. The decision contains an important examination of the definition of the term ‘sentence’ for the purposes of benefitting from remission. Though the number of prisoners impacted is small, the implications for the plaintiff of the decision are very significant.

Mr Callan had been sentenced to death in 1985 for the murder of a Garda. In 1986 the Government recommended to the President that this sentence be commuted to one of forty years’ imprisonment. The then President exercised his powers of commutation under Article 13.6 of the Constitution.  There was apparent confusion regarding the precise details of this commutation, and it had originally been thought that the commutation contained the condition that there would be no remission for Mr Callan, but it transpired during the course of the hearing of the case that, in fact, no such restrictions had been placed upon it.

Mr Callan argued that he was entitled to remission of his sentence, which currently stands at one quarter of the time imposed, with the possibility of earning one third remission. This only applies to a person serving a sentence of imprisonment of one month or more. The Prison Rules 2007, specifically Rule 59(2)permits up to one-third remission for prisoners who have shown further good conduct by “engagement in authorised structured activity to such an extent as to satisfy the Minister for Justice and Equality that they are less likely to reoffend and will be better able to reintegrate into society”. The State argued that he was not so entitled. At the Supreme Court hearing the State put forward the position that Mr Callan was serving a “commutation” rather than a sentence of imprisonment.

This argument was roundly rejected by the Supreme Court. It held that the commutation had substituted one form of sentence (a death sentence) for another (originally penal servitude, but then imprisonment, as the concept of penal servitude was abolished in 1997). Hardiman J engaged in an interesting analysis of the Irish language provisions on the power of commutation. Both judgments had no difficulty in finding that the commutation had substituted Mr Callan’s sentence of death to one of imprisonment, and, as such, the rules of remission were applicable.

The State had also argued that a decision of Carney v. Ireland [1957] IR 25 was on point. It had held that the rules of remission did not apply to persons serving a sentence of penal servitude. The prison authorities, had, it seems, effectively ignored this decision and allowed such prisoners the benefit of remission under the Rules. Again, the Supreme Court, particularly Hardiman J was highly critical of this argument, considering that the State could not pick and choose how it would apply decisions of the courts.

Mr Callan had put forward other arguments including an interesting one (and one rejected decisively by the High Court) regarding the discriminatory treatment between him and those sentenced for ‘capital murder’ under section 3 of the Criminal Justice Act 1990. The rules of remission do apply to such individuals. The Supreme Court did not consider it necessary to deal with this aspect of the case. This is a pity given the views expressed by the High Court on the matter. Hanna J held:

in examining whether the plaintiff has been discriminated against, it would be anomalous to compare him to persons sentenced for murder under s. 3 of the Act of 1990, as he was not sentenced under that Act. In determining whether discrimination has occurred, the plaintiff can only properly be compared with those persons sentenced to death under the Offences Against the State Act 1861 (hereafter “the Act of 1861”), as amended by the Criminal Justice Act 1964, whose sentences have been commuted to imprisonment. The plaintiff has not been treated unequally, nor has he been subjected to unfair discrimination. The plaintiff has not identified any one person who was convicted of capital punishment prior to 1990 who has had his/her sentence commuted and has subsequently been given the benefit of remission.

Hanna J also held:

Article 40.1 of the Constitution guarantees equality before the law. However, the plaintiff has not been treated unequally simply because there is a difference between his remission entitlements and those of persons sentenced under the Act of 1990; and nor has the plaintiff been subjected to unfair discrimination. It is the nature of legislation that it changes the legal landscape and the fact that the Act of 1990 altered the remission entitlements of people who had yet to be convicted and sentenced simply reflects the prospective nature of the legislation, and cannot amount to discrimination.

This analysis is in contrast to that of the European Court of Human Rights in the decision of Clift v. United KingdomThe traditional approach under Article 14 of the Convention was to refuse to apply ‘other status’ to prisoners alleging a difference in treatment which was grounded in the State’s view of the seriousness of an offence. In Clift the differential treatment at issue concerned release provisions for those serving determinate sentences compared to those serving indeterminate sentences. The usually restrictive approach of the Court to Article 14 and differences in treatment arising out of the views of States on matters concerning offences and sentences was softened somewhat. The Court considered that where an early release scheme applies differently to prisoners depending on the length of their sentences, there is a risk that, unless the difference in treatment is objectively justified, it will run counter to the very purpose of Article 5. In Clift the applicant was able to prove that he had “other” status and, moreover, that the differential treatment was in breach of Article 14.

It would have made for most interesting analysis were the Supreme Court required to grapple with the question of whether Mr Callan was treated differently to those convicted under section 3 in a manner which breached his right to equality under the Constitution. Such analysis would have important implications for other differences in treatment such as the rules on temporary release.

With respect to temporary release, the Criminal Justice (Temporary Release of Prisoners) Act 2003  states that the Minister for Justice may direct the temporary release of a prisoner who is serving a sentence of imprisonment. The Supreme Court has now indicated its view that Mr Callan is serving such a sentence.

Update: 20/7/13.

A piece in today’s Irish Times quotes Liam Herrick from the Irish Penal Reform Trust indicating that, to date, only one person has ever benefitted from the enhanced remission provisions of the Prison Rules, 2007.

The definition of a ‘sentence’ and the Callan decision

Using the European Convention on Human Rights in prison law cases: Lessons from Scotland | Irish Penal Reform Trust (IPRT)


The Irish Penal Reform Trust and Dublin Institute of Technology are pleased to announce that Tony Kelly, leading Scottish human rights and prison law solicitor, will speak to the topic: Using the European Convention on Human Rights in prison law cases: Lessons from Scotland.

The seminar takes place on Wednesday, May 30th, 2012 from 6-7.30pm in Room 5034 (fifth floor), Dublin Institute of Technology, Aungier Street, Dublin 2 (for directions see: http://www.dit.ie/tools/locations/).

The event will be followed by a reception.

Tony Kelly, partner in Taylor & Kelly, solicitors, Scotland, has been involved in some of the most high-profile and difficult human rights cases in the United Kingdom. Tony Kelly is also a part-time Professor of Law at the University of Strathclyde.

Taylor & Kelly have been forefront of prisoner’s litigation since their inception some 12 years ago.  The firm took forward, on behalf of petitioner Robert Napier, proceedings which challenged the conditions in C Hall in HM Prison Barlinnie.  Mr Napier was successful in obtaining an interim order transferring him out of the appalling conditions. Taylor and Kelly also successfully argued that Mr. Napier should receive damages as a result of being subjected to conditions which breached Article 3 of the European Convention in Human Rights.  Taylor & Kelly also represented the petitioners in Greens, Stanger and Wilson, where it was successfully argued that the slopping out of chemical toilets was in breach of Article 8 of the European Convention on Human Rights. Taylor & Kelly have also been involved in landmark cases concerning the voting rights of prisoners and segregation in prisons. Chambers, a highly regarded guide in the legal profession, gives Taylor & Kelly a ranking of 1 in civil liberties. Chambers has also consistently recognised Taylor & Kelly as being at the cutting edge of human rights work, through its involvement in litigation on behalf of prisoners and also in representing Abdelbaset Ali Mohmed Al Megrahi in his high profile appeal.

A certificate of attendance will be provided for those wishing to claim CPD points. Please contact mary.rogan@dit.ie if you require such a certificate. 

This seminar is funded by the Irish Research Council for the Humanities and Social Sciences, as part of its Research Development Initiative. It is part of a collaborative project between Dublin Institute of Technology and the Irish Penal Reform Trust. See: http://www.irchss.ie/awrads/rdi



Using the European Convention on Human Rights in prison law cases: Lessons from Scotland | Irish Penal Reform Trust (IPRT).

Using the European Convention on Human Rights in prison law cases: Lessons from Scotland | Irish Penal Reform Trust (IPRT)

NI Prisoner Ombudsman to speak on Prisoner Complaints and Investigations into Prison Deaths | Irish Penal Reform Trust (IPRT)

REMINDER: NI Prisoner Ombudsman to speak on Prisoner Complaints and Investigations into Prison Deaths | Irish Penal Reform Trust (IPRT).


The Irish Penal Reform Trust (IPRT) is delighted to welcome Northern Ireland Prisoner Ombudsman, Pauline McCabe, to Dublin as keynote speaker at a seminar and launch event taking place this Friday, 30th March 2012 at 11am in the Chester Beatty Library, Dublin Castle.


Strengthening Accountability Behind Bars: Prisoner Rights and Prisoner Complaints will outline the rights of prisoners while they are in custody, whilst also examining the structures that need to be in place in order to protect these rights. A new publication, the Know Your Rights Your Rights as a Prisoner, produced jointly with the Irish Council for Civil Liberties, will be launched at the event.


Pauline McCabe has established her office at the cutting edge of prison accountability internationally and she will speak about her work investigating prisoner complaints and deaths in custody, and will address wider themes of accountability within the prison system in Northern Ireland.


A panel discussion, chaired by Gráinne McMorrow SC, will follow the address. Panellists will include:


  • Mr Jimmy Martin, Assistant Secretary of the Department of Justice and Equality
  • Brian Murphy, Deputy Director, Operations, Irish Prison Service
  • Mr John Clinton, General Secretary, Prison Officers Association


A former prisoner will also speak about his experiences.


For all media enquiries, interviews with speakers, and images, please contact: Fíona Ní Chinnéide: T: (01) 874 1400; M: 087 181 2990; E: communications@iprt.ie


This publication and seminar are funded by the Irish Research Council for the Humanities and Social Sciences, as part of its Research Development Initiative. It is part of a collaborative project between Dublin Institute of Technology and the Irish Penal Reform Trust. See: http://www.irchss.ie/awrads/rdi




1. NI Prisoner Ombudsman | www.niprisonerombudsman.com


The Prisoner Ombudsman is appointed by the Minister of Justice for Northern Ireland and is completely independent of the Northern Ireland Prison Service (NIPS). The Prisoner Ombudsman investigates complaints from prisoners held in Northern Ireland who remain unhappy with how their complaint has been responded to by the Prison Service. The Prisoner Ombudsman also investigates all deaths in Prison Service custody in Northern Ireland. The current Prisoner Ombudsman is Pauline McCabe. She is supported in her work by a team of investigators and other support staff.


2. Know Your Rights: Your Rights as a Prisoner


Produced jointly by the ICCL and IPRT, the Your Rights as a Prisoner pack aims to help prisoners understand the rights they have while in prison. It is written in everyday language and is informative and easy to use. Following its launch on Friday 30th March, the booklet will be available online at www.knowyourrights.ie and www.iprt.ie; it will also be available in print on request from IPRT (01-8741400 or info@iprt.ie) Your Rights as a Prisoner will be available in audio format and in translation from summer 2012.


3. IPRT Position Paper 7: Complaints, Monitoring and Inspection in Prisons


This Position Paper assesses the current complaints and investigation structures in Ireland against international human rights standards and obligations, and makes a series of recommendations for the improvement of current mechanisms, including a call for the establishment of an Office of Prisoner Ombudsman to deal with individual complaints. Download the paper here.


4. Irish Penal Reform Trust (IPRT) | www.iprt.ie


IPRT is Ireland’s leading non-governmental organisation campaigning for the rights of everyone in prison and the progressive reform of Irish penal policy, with prison as a last resort.


5. Know Your Rights | www.knowyourrights.ie


The Irish Council for Liberties (ICCL) Know Your Rights public information project is designed to inform people in clear and accessible language about their rights under various key areas of the law in Ireland. Topics covered in Know Your Rights booklets include: Criminal Justice and Garda Powers, Privacy and the European Convention on Human Rights (ECHR).

NI Prisoner Ombudsman to speak on Prisoner Complaints and Investigations into Prison Deaths | Irish Penal Reform Trust (IPRT)

The Old Triangle: A Celebration for the Benefit of IPRT | Irish Penal Reform Trust (IPRT)

The Old Triangle: A Celebration for the Benefit of IPRT | Irish Penal Reform Trust (IPRT).

President Michael D. Higgins will join artists including Christy Moore, Karan Casey, Peter Sheridan, Shaz Oye, GREENSHINE, and Nuala Ní Dhomhnaill for an evening celebrating arts in prison and prison in arts.

The celebration takes place this Sunday night (26th February) at 8pm in the Abbey Theatre.

Hope to see you there!

The Old Triangle: A Celebration for the Benefit of IPRT | Irish Penal Reform Trust (IPRT)