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

 

NOTES

 

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)

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

What an exciting event this should be.

 

Tickets available from http://www.abbeytheatre.ie

The Old Triangle

A celebration for the benefit of the Irish Penal Reform Trust

Sunday, 26th February 2012 at 8pm

Abbey Theatre, Dublin 1

A celebration of music and words for the benefit of the Irish Penal Reform Trust, The Old Triangle seeks to raise awareness of the need for penal reform and the place of prison and prisoners in society. Many of the artists taking part in this celebration have worked in prisons, and we are mindful of the important role the arts and artists have to play in the life of our prisons.

The featured musicians and writers, all of whom are waiving fees for the night, are:

Christy Moore

Nuala Ní Dhomhnaill

Peter Sheridan

Karan Casey & Niall Vallely

Tony Curtis

Shaz Oye

GREENSHINE
(Noel Shine, Mary Greene & Ellie Shine)

Leanne O’Sullivan

Jimmy Kelly & friends

The artist Eddie Cahill, introduced by Brian Maguire

The event is hosted by Paula Meehan and Theo Dorgan. IPRT is very grateful for the financial support from Poetry Ireland in this event.

We are all aware that there is a huge debate going on in Ireland right now about what kind of civil society we should be striving for. Artists are as much part of the debate as anyone, and conscious of the need to make this debate as inclusive and wide-ranging as possible.” – Paula Meehan, Patron of IPRT

We very much hope you can join us on the night for what will, we are sure, be a memorable event – and we hope you can bring a friend or two along as well!

Booking details

Tickets are €20 (standard) with a limited number at €40 (premium supporters).

Tickets can be booked online at www.abbeytheatre.ie or by calling the Abbey Theatre box office on (01) 87 87 222. (The Box Office is open Mon – Sat from 10.30am – 7pm.)

 

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)

Judgment from High Court of England and Wales on Slopping out

A decision of the English High Court on slopping out can be found here.

Delivered today, it holds that using a bucket is not of itself inhuman or degrading treatment. All of the circumstances of the slopping out and conditions of detention must be taken into account. This is in keeping with ECHR jurisprudence, but is to be contrasted with the recent Scottish decision of Greens.

Judgment from High Court of England and Wales on Slopping out

Prison Law Seminar: ‘Creative Use of Legal Instruments’ | Irish Penal Reform Trust (IPRT)

From http://www.iprt.ie:

Prison Law Seminar: ‘Creative Use of Legal Instruments’ | Irish Penal Reform Trust (IPRT).

Irish Penal Reform Trust, Irish Criminal Bar Association
and Dublin Solicitors Bar Association

With the Generous Support of the
Irish Research Council for the Humanities and Social Sciences

The 8th in our series of Prison Law Seminars, co-hosted with the DSBA and the ICBA, on ‘Creative Use of Legal Instruments’ will take place at 5.30pm on Thurs 8th December, 2011 at the Distillery Building, Church St, Dublin 7. The seminar will be presented by Caoilfhionn Gallagher BL, leading prison law practitioner with Doughty Street Chambers in London, the Chambers of Geoffrey Robertson QC and Edward Fitzgerald QC.

Event details:

  • Date & Time: 5.30-7.30pm on Thurs 8th December, 2011
  • Venue: Distillery Building, Church St, Dublin 7.
  • Fee: €20 (€10 students; no fee for former prisoners)
  • Register online here. Alternatively, contact Mary Gaffney at 01-8741400 or email: info@iprt.ie

This Prison Law Seminar will be followed by a mulled wine and mince pie reception – so we hope you can start the Christmas celebrations early with IPRT!

About the Speaker:

Caoilfhionn Gallagher BL is a leading prison law practitioner with Doughty Street Chambers in London, the Chambers of Geoffrey Robertson QC and Edward Fitzgerald QC. Caoilfhionn is a human rights and civil liberties specialist, and has particular expertise in prison law and community care for children and vulnerable adults.  She is a Council of Europe expert on Articles 10 and 11 ECHR and she has co-authored a number of books, including the best-selling Oxford University Press textbooks, Blackstone’s Guide to the Human Rights Act (4th and 5th editions, 2007 and 2009), and Children in Need: local authority support for children and families (Legal Action Group, 2011).

Caoilfhionn’s practice is exclusively on the claimant side.  She is ranked as a ‘leading junior’ in public, administrative and civil liberties law by the UK legal directories, with particular mention given to her human rights work for adults and children in prison.  She has recently acted in a number of high-profile and sensitive prison cases, including a successful judicial review challenge to the Parole Board’s policies for Learco Chindamo, who was convicted of the murder of headteacher Philip Lawrence when a teenager; and civil claims for suicidal and self-harming prisoners ‘ghosted’ between prisons in 2009 to avoid them speaking to the Chief Inspector of Prisons.

Her prison cases cover all aspects of imprisonment and resettlement, including prison discipline and segregation, healthcare and disability, sentence miscalculations, homeless children leaving custody, deaths in custody, separation of mothers and babies, and ‘outsourcing’ of Ministerial obligations to private sector organisations such as SERCO and G4S.  She also regularly takes prison cases to Strasbourg, and acts for prisoners wishing to transfer jurisdiction (including many UK-based Irish prisoners who wish to serve the remainder of their sentences in Ireland).

Outside the prison context Caoilfhionn has recently represented bereaved families at the 7/7 inquests.  She is also currently acting in a series of test cases against police forces and other state bodies on behalf of the families of women killed by their ex-partners.

This seminar is part of an ongoing Legal Knowledge Exchange Project, run by the Irish Penal Reform Trust and Dublin Institute of Technology, and funded with the generous support of the Irish Research Council for the Humanities and Social Sciences.

Would you like to support the work of IPRT?

Annual membership is just €10 for students, €40 for individuals, €80 for organizations/firms, and free to prisoners and their families. We can’t promise you lots of free stuff, but by becoming a member of IPRT you will be expressing your support for urgent penal reform in Ireland.

Why not consider becoming an IPRT member now?

 

Prison Law Seminar: ‘Creative Use of Legal Instruments’ | Irish Penal Reform Trust (IPRT)