The principle that it is the loss of liberty that is the punishment is a core tenet of penal reform. An individual who is sentenced to prison loses their freedom, but they still retain their basic human rights. As outlined under Rule 1 of the UN Mandela Rules, “All prisoners shall be treated with the respect due to their inherent dignity and value as human beings.” Poor prison conditions and regimes should never be used as an additional form of punishment.
Prison conditions have been under the global spotlight during the pandemic. Prisons, and in particular poor prison conditions, such as overcrowding, cell sharing and a lack of access to proper hygiene standards, are high-risk environments for the transmission of infectious diseases. As highlighted by one expert report in England and Wales:
“Overcrowding, unsanitary conditions, poor ventilation in a prison will likely increase the speed with which an epidemic unfolded.”
Reducing prison numbers is essential to creating good prison conditions and regimes. (See Thematic Area 1, Prison as a last resort.) In 2019 and early 2020, overcrowded conditions in the Irish prison system saw people across the prison estate sleeping on mattresses on floors. The number of people sleeping on mattresses peaked at 75 in March 2020. However, this declined to single-digit numbers (to nine) within one month (13 April 2020) of the declaration of the pandemic. On the 1 June 2020, there was one man sleeping on a mattress in Cloverhill Prison. Alleviating overcrowding in prisons is essential to keeping people in custody safe not only during Covid-19 but at all times, given its adverse impact on the welfare of prisoners and its negative impact on prison conditions and regimes.
There have been no prison inspections or monitoring reports published in 2020. Therefore, there has been little insight into prison conditions and regimes during the pandemic-related restrictions, and the consequent impact on minimum rights. However, information contained in a letter from the Minister for Justice and Equality in April 2020 indicated that some prisoners were locked in their cells 24 hours a day while awaiting coronavirus test results, with no access to showers during this period. This does not meet minimum entitlements, as set out in the Prison Rules 2007:
“A prisoner shall be permitted to take a hot shower or bath as often as is reasonably practicable and shall be entitled to, and may be required to, take a hot shower or bath at least once a week.” 
Under Rule 19.4 of the European Prison Rules, it states that:
Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.
Ireland should be striving for better prison conditions with single-cell accommodation available to all, along with the provision of in-cell showers. In order to protect prisoners from Covid-19, ‘the first priority is to establish physical distance among prisoners. Reducing the prison population to IPRT’s target of 3,100 will make single-cell accommodation achievable, while supporting physical distancing and keeping prisoners
safe from Covid-19 (See Standard 9, Single-cell accommodation.)
A report on the experience of prisoners who were cocooning also offered valuable insight into the harshness of restrictions experienced by vulnerable cohorts in prison, and their concerns about deteriorating mental health: “the levels of despair across the journals made for very grim reading indeed”. The journals written by prisoners cocooning showed the mental health implications of the restrictions, and the impact on chronic physical disease. Prisoners missed social contact and the report highlighted the importance of positive staff-prisoner interactions during this time. There was limited access to purposeful activities such as education and employment. Yard time was particularly important to cocooners. One prisoner described feelings of punishment on this regime. The findings of the report are of relevance beyond ‘cocooners’ to the conditions experienced by all prisoners held on restricted regimes, and the recommendations should be implemented widely. Conditions for those quarantining or in medical isolation should not constitute solitary confinement.
Limited out-of-cell time has been a feature of the Covid-19 restrictions, with the general prison population locked up for an average of 19 or more hours a day in some prisons. (See Standard 16, Out- of-cell time; Standard 26, Solitary confinement.) Previous PIPS reports highlighted limited out-of-cell time and issues with accessing education and workshops due to staff shortages, but this has been exacerbated due to the pandemic.
Access to prison by community-based organisations has been absent or severely limited during the Covid-19 restrictions, and the restrictions have impacted on the number of people accessing daily temporary release, which plays an important role in rehabilitation. The State must now take steps to ensure that rehabilitation, a key objective of imprisonment, is not further diminished. If prison conditions during Covid-19 result in breaching the ‘deprivation of liberty’ principle, this may amount to disproportionate punishment and this should be considered by the Courts in sentencing and in increasing access to early-release schemes.
The right to family life and the rights of the child as set out under the Constitution and in international human rights obligations should also be taken into account when imposing restrictions on visits. (See Standard 11, Family contact.) Minimum entitlements of remand prisoners have been eroded beyond those of sentenced prisoners. Those newly remanded into custody were subject to quarantine for 14 days. Remand prisoners are entitled to receive a minimum of three 15-minute visits a week, and to make five phone calls a week. These minimum entitlements simply could not have been adhered to during the Covid-19 lockdown. Indeed, there is some evidence that visitation entitlements were not always adhered to prior to the pandemic. For example, a report by the Inspector of Prisons found that a remand prisoner on protection did not receive his visitation entitlements because of the high number of prisoners on protection with difficulties in scheduling safe visits. In response, the Inspector recommended that the Irish Prison Service ensure that prisoners receive the visitations they are entitled to under the Prison Rules, 2007.
It is important to ensure that basic prisoner entitlements are not eroded during a public health emergency. The UK Parliament Human Rights Committee examined issues for the rights of people in detention and recommended that lockdown restrictions in these settings must be subject to a reasoned and transparent proportionality assessment, used for the minimum time necessary. It also recommended that the Ministry of Justice should carry out a full evaluation of its Covid-19 policy in prisons. In Ireland, IHREC has previously called for a Joint Oireachtas Committee on Human Rights to be established. In this respect, IPRT advocates that an Oireachtas Committee on Human Rights and Equality be established, and its programme for work should include an examination of the human rights implications of responses to the pandemic for people in prison, as well as their children and families.
The Department of Justice should also carry out a full evaluation of its Covid-19 policy, not only in prisons but also in all areas of the criminal justice system, examining the responses of the Courts and the Probation Service, to inform planning for the near and longer-term future. Covid-19 has created serious concerns related to rights, regimes and conditions in prisons – but it also presents a real opportunity to progress penal policy and practice.
United Nations Office on Drugs and Crime, The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), p.2 https://www.unodc.org/documents/justice-and-prison-reform/Nelson_Mandela_Rules-E-ebook.pdf
Coker, R. Expert Report: Covid-19 and prisons in England and Wales, p.2 https://howardleague.org/wp-content/uploads/2020/04/2020_04_01_COKER_Report_HL_PRT.pdf
Progress in the Penal System (2019) Humane Prison Conditions, https://pips.iprt.ie/progress-in-the-penal-system-pips/part-2- measuring-progress-against-the-standards/b-prison-conditions/7-humane-prison-conditions/
The Irish Times, Inmates with Covid-19 symptoms kept in 24-hour lock-up, https://www.irishtimes.com/news/crime-and-law/inmates-with-covid-19-symptoms-kept-in-24-hour-lock-up-1.4236286
Irish Statute Book, Prison Rules, 2007, Section 25 (2) http://www.irishstatutebook.ie/eli/2007/si/252/made/en/print
Council of Europe, Recommendation Rec(2006)2-rev of the Committee of Ministers to member States on the European Prison Rules, https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=09000016809ee581
Irish Prison Service, Prisoner Population on Tuesday 27 October 2020, https://www.irishprisons.ie/wp-content/uploads/documents_pdf/27-October-2020.pdf
Open Justice Society Initiative, The Right to Health Care in Prison during the COVID-19 Pandemic, p.4 https://www. justiceinitiative.org/uploads/7696dcfd-12e1-4ace-8f28-2a37f4a3c26b/brief-access-to-health-care-in-prisons-07082020.pdf
Office of the Inspector of Prisons and Maynooth University (2020) Ameliorating the impact of cocooning on people in custody – a briefing, p.5 https://www.oip.ie/wp-content/uploads/2020/07/Ameliorating-the-impact-of-cocooning-on-people-in-custody-a-briefing.pdf
See Standard 19 Education, Progress in the Penal System (PIPS), A framework for penal reform (2018), https://www.iprt.ie/site/assets/files/6470/pips2018.pdf
Houses of the Oireachtas, Dáil Éireann debate-Wednesday, 15 July 2020, https://www.oireachtas.ie/en/debates/debate/dail/2020-07-15/23/
Irish Statute Book, Prison Rules, 2007, http://www.irishstatutebook.ie/eli/2007/si/252/made/en/print#article46
Office of the Inspector of Prisons, Investigation Report into the circumstances surrounding the death of Mr.H, http://justice.ie/en/JELR/Office_of_the_Inspector_of_Prisons_Death_in_Custody_Investigation_Report-Mr_H_2018.pdf/Files/ Office_of_the_Inspector_of_Prisons_Death_in_Custody_Investigation_Report-Mr_H_2018.pdf
UK Parliament Committees, The Government must urgently consider the human rights implications of Covid-19 measures, says Joint Committee on Human Rights, https://committees.parliament.uk/work/218/the-governments-response-to-covid19-humanrights-implications/news/119291/the-government-must-urgently-consider-the-human-rights-implications-of-covid19-measuressays-joint-committee-on-human-rights/. The report is available from here: https://publications.parliament.uk/pa/jt5801/jtselect/ jtrights/265/26502.htm
RTÉ News, Recommendations on upholding human rights during Covid-19 crisis, https://www.rte.ie/news/2020/0427/1134967-human-rights-covid-19/