Progress in the
Penal System (PIPS)

Executive Summary

Progress in the Penal System: 2018 examines Ireland’s progress in the penal system over the last year. PIPS 2017 set out a clear vision for the future of the penal system in Ireland as part of this overall project.[1] Standards were set, guided by international best practice and human rights frameworks. Our vision is that as a small wealthy nation, Ireland can go beyond minimum human rights frameworks and has the potential to be a leading model of international best penal practice.

In this respect, IPRT established a number of guiding principles of penal reform. These include:

  1. Imprisonment as a last resort
  2. Recognition of the harms and costs associated with imprisonment
  3. Deprivation of liberty is the punishment
  4. Balancing of security, safety and protection of prisoners while ensuring a humane regime
  5. Protection and promotion of human rights, equality and social justice
  6. Emphasis on rehabilitation and reintegration

Readers should reflect on these principles, in particular on how they should guide the work of the changemakers, as well as their relevance to the various standards.

The Changemakers

PIPS 2018 places emphasis on the changemakers of the penal system. This means identifying those who can play an operative role in achieving change in the system. Changemakers identified in the report include criminal justice professionals (such as the judiciary and probation). However, changemakers also exist beyond the criminal justice sphere. They include state departments in the areas of health, education, housing, employment and children. We also highlight the role of legislators and politicians, the relationship between media and public opinion, and how these actors significantly contribute to the shape of our penal system. In doing this we are looking beyond the prison system itself to examine how we prevent crime, punish and rehabilitate.

Outlined below is a general assessment of developments over the last year; we highlight progress as well as issues of concern, which, if addressed, could make a significant improvement to our penal system:

A. An Effective and Humane Penal System

1. Implementation of penal policy

In order to inform penal policy, good quality data and research is imperative. In this respect, one relevant development in 2018 has been the publication of the Data & Research Strategy 2018–2020[2] by the Department of Justice and Equality. This was an action recommended in PIPS 2017.[3]

IPRT also welcomes the 29 recommendations in the Report on Penal Reform and Sentencing[4] made by the Joint Committee on Justice and Equality in 2018.

While both of these actions are welcome developments in this area, further work must be done to ensure the continual monitoring, evaluation and implementation of penal policy.

2. Imprisonment as a last resort

In 2017, IPRT set a medium-term target to reduce our prison population to 50 per 100,000.[5] This target is far from being met. The current imprisonment rate in Ireland is 83 per 100,000 (July 2018).[6] This compares to 79 per 100,000 in May 2017,[7] demonstrating a net increase in the last year. The central roles of the judiciary (sentencing practice) and probation services (availability and effectiveness of community sanctions) in contributing positively to this goal are outlined in this section.

3. Safe custody limits

Safe custody limits are an important feature of any prison to ensure the safety of both prisoners and staff. If prison populations exceed safe custody limits, this in effect means the prison service will face significant challenges in fulfilling its duty of care[8] to prisoners. Overcrowding remained a feature in Irish prisons in 2018.

4. Smaller prisons

Small prisons (ideally holding a maximum of 250) are likely to be safer prisons and to experience reduced levels of violence. This is a relevant standard for meeting the Irish Prison Service’s mission of ‘providing safe and secure custody, dignity of care and rehabilitation to prisoners for safer communities.'[9]

5.& 6. Lower security settings and open provision

Ireland continues to have minimal low-security settings and open provision across the estate compared to current international leaders in penal systems. Open provision in Ireland remains at 6.7%.[10] This compares poorly to Scandinavian countries, see for example the Finnish rate of 40%.[11]

Women continue to have no access to lower-security prison settings.

B. Prison Conditions

7.& 8. Humane prison conditions

In order to assess prison conditions across the estate, it is of the utmost importance that reports are regularly published by external monitoring bodies.

A prison conditions monitoring index[12] is identified as an innovative international tool that may support and standardise assessment of prison conditions. Monitoring tools like this may highlight particular areas in need of action, as well as track progress that could be replicated across the prison estate.

‘Slopping out’[13] still exists in two Irish prisons (affecting 39 men in Portlaoise and 19 men in Limerick)[14] despite IPRT’s call for the elimination of this practice by 2018 [15] and the Concluding Observations of the UN Committee against Torture (2017) “… modernize Limerick prison and ‘Block E’ of Portlaoise prison to eliminate the slopping out system completely”.[16]

9. Single-cell accommodation

The percentage of the prison population currently with access to single-cell accommodation is 52%.[17] IPRT has highlighted that choice of single-cell accommodation is an important feature of an effective and humane penal system. It is difficult to make provision for single-cell accommodation in the prison estate a reality without action in other areas, since prisoner numbers need to be reduced in order to achieve this goal.

10. Separation of remand prisoners from sentenced prisoners

Comparison of snapshot figures for the same day in 2016[18] and 2017[19] shows that there was an increase of 101 persons on remand in custody. Figures for July 2018 show that approximately 222 prisoners on remand were sharing cells with sentenced prisoners.[20] In 2017, the UN Committee against Torture[21] recommended the separation of remand prisoners from sentenced prisoners, as well as the provision to the Committee of information on the number of remand prisoners and the length of time prisoners are spending on remand. The Irish Prison Service committed to undertaking research and publishing data on lengths of time prisoners were spending on remand at the UNCAT hearing;[22] however, no such data has yet been published.

11. Family contact

IPRT welcomes a statement by the Minister for Justice and Equality (2018) that all prisons now have child friendly visiting conditions.[23] New measures introduced in 2018 include a new family visiting room in Limerick Prison.[24]

The Council of Europe’s Recommendation on Children of Imprisoned Parents[25] (2018) has been published in early 2018; changemakers should consider how this recommendation affects their work, in particular considering children’s rights and the ‘best interests’ of children when decisions are made.

12. Access to healthcare

IPRT notes the importance of transferring management of healthcare to the Department of Health, a global trend and a recommendation previously made by the Inspector of Prisons.[26] In mid-2017 the UN Committee observed that the State must urgently undertake an independent, fundamental review of the entire prison health-care system, in keeping with the recommendations of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment two years previously.[27] Little progress appears to be made with no publication of a review.

IPRT welcomes information received by the Irish Prison Service of the appointment of an Executive Clinical Lead in summer 2018,[28] however more visible progress in this area is needed in order to uphold the principles of a ‘continuum’ and ‘equivalence’ of healthcare for those in prison.

13. Mental health

29 persons with a severe mental illness were in prison awaiting transfer to the Central Mental Hospital in May 2018.[29] While data is not available on lengths of time individual prisoners wait for transfer, the Clinical Director of the Central Mental Hospital stated in May 2018:

“All of the people on the waiting list are urgent. All of them are severely mentally ill and should not be in prison. They have been on the waiting list for months and this is entirely unacceptable by any clinical standards”.[30]

IPRT identifies a need for more forensic mental health spaces to be made available in Approved Designated Centres.

Prisoners should also have access to a range of mental health supports based on need. In this section, IPRT discusses further options to be considered including increasing provision of High Support Units. However, there is an overall need for an increase in both forensic mental health spaces and adequate community mental health provision so that prisoners receive prompt treatment in an appropriate clinical environment.

14. Addiction and treatment

IPRT welcomes the identification of addiction as primarily a health rather than a criminal justice issue in the National Drugs Strategy 2017–2025.[31]

The European Monitoring Centre for Drugs and Drug Addiction[32] (EMCDDA) (2018) found:

  1. Opioid substitution treatment is protective against death in prison for opioid-dependent prisoners.
  2. Substitution treatment is also important in prison in reducing injecting risk behaviours.
  3. Continuity of treatment is recommended to prevent overdose death in the period directly following prison release.

More information is required in order to effectively assess this area, including availability and access to addiction services and treatment both within prison and upon release, waiting lists for treatment programmes such as residential and substitution treatment and evaluation of outcomes.

15. Privacy

We highlight the qualified right to privacy of those with convictions and in particular the importance of bodies such as the Press Ombudsman and the Broadcasting Authority in raising awareness of complaints processes and making those processes accessible to all.

The General Data Protection Regulation (GDPR)[33] came into force on 25th May 2018 and introduces the right to be forgotten which will be of particular relevance in the context of prisoner rehabilitation upon release from prison in some cases.

C. Regimes

16. Out-of-cell time

In 2018, the Oireachtas Joint Committee recommended a minimum of 12 hours’ out-of-cell time.[34]

The Irish Prison Service Census for July 2018[35] shows that there are currently 536 prisoners on a ‘restricted regime’,[36] which amounts to 13% of the prison population.[37] While data on the lengths of time individual prisoners spend on a restricted regime is not regularly published, a recent response to a parliamentary question (PQ) revealed more than 50 individual prisoners held on a restricted regime for more than a year.[38] Further work must be done to reduce the number of prisoners on a restricted regime.

17. Integrated sentence management

Integrated sentence management is important to ensure a constructive and holistic plan is in place for each prisoner. In September 2018, there were 23 ISM coordinators across the prison estate for the 2,533 prisoners eligible to engage with ISM (ie. those serving sentence of more than 1 year). An additional ISM coordinator was appointed in July 2018 dedicated to the sentence management of prisoners selected to participate in J-ARC, Community Support and Community Return Schemes. Regular publication of data on ISM engagement and caseloads of ISM coordinators is required.

18. Development of life skills

While there is often a focus on formal education and training, life skills are also an important component of rehabilitation including the development of tools that help prisoners in their daily lives; skills such as reflection, thinking and planning.[39] IPRT welcomes the progress made on the establishment of a third Independent Living Skills Unit (Mountjoy Prison), which is due to open in late 2018.[40]

19. Education

It is important that prisoners have access to ed- ucation as part of a purposeful and rehabilitative regime. There may be a number of reasons why prisoners participate in prison education such as learning new skills and personal development.[41] Figures provided in response to a PQ in April 2018[42] show frequent closures of education centres in certain prisons throughout the year. This issue must be urgently addressed.

20.& 21. Community involvement and civic and political participation

Community involvement in prison appears to be positive with many initiatives[43] attributed to the Irish Red Cross Programme.[44]

However voting in Irish prisons is low. For this year’s referendum on the 36th Amendment to the Constitution,[45] 58 prisoners out of the total of 3,897 voted.[46] Of these 55 were males and 3 were females. More work is required to encourage prisoners to participate in their civic and political rights.

D. Complaints, Accountability, Inspections and Oversight Mechanisms

22.& 23. Complaints system

There were 70 Category ‘A’[47] complaints made by prisoners in 2017 in total and 41 Category A complaints were made from January 2018 until the end of June 2018.[48] Of 61 investigations completed in 2017, 6 complaints were upheld. [49]

In order to ensure that both prisoners and staff have confidence in the complaints system, IPRT has long advocated for the establishment of a prisoner ombudsman or access to the existing Office of the Ombudsman. The Office of the Ombudsman assisted in the revision of the internal complaints system (following recommendations[50] made by the Office of the Inspector of Prisons), as well as facilitating a visit to the Office of the Prisoner Ombudsman in Northern Ireland.[51] CAT made a number of relevant Concluding Observations [52] to the State on this issue in mid-2017 including establishing a completely independent mechanism for the consideration of prisoner complaints and introducing greater involvement and oversight by an independent body.[53] CAT (2017) records state that the government’s timeline for establishing the Ombudsman’s oversight role in the complaints system was expected by the end of 2017.[54]

IPRT believes that the need for prisoner access to the Ombudsman to facilitate the appealing of complaints to an independent body is urgent.

24. & 25. Monitoring, inspections, and investigations

IPRT welcomes the appointment of the Inspector of Prisons Patricia Gilheaney in May 2018.[55] In 2018 there has been no prison inspection report published and 13 Deaths in Custody reports published.[56]

IPRT also welcomes the announcement by the Minister for Justice and Equality that legislation will be brought forward to ratify the Optional Protocol to the Convention against Torture (OPCAT) by the end of 2018.[57] Ireland and Belgium are the only remaining EU states which have not ratified OPCAT.[58] Ratification of OPCAT would mean all places where people are deprived of their liberty would be subject to independent inspection by a national body as well as subject to inspection by the Sub-Committee for the Prevention of Torture.[59]

E. Safety and Protection in Irish Prisons

26. Solitary confinement

In 2017 there were a number of positive steps taken by the State to reduce the number of prisoners in solitary confinement. The Irish Prison Service published its Elimination of Solitary Confinement[60] policy while there was also an amendment made to the Prison Rules[61] entitling all prisoners to a minimum of two hours’ out-of-cell time for ‘meaningful human contact’.

A Concluding Observation made by CAT to the State (2017) enjoined the State to “ensure that solitary confinement remains a measure of last resort, imposed for as short a time as possible, is never applied to juveniles, is under strict supervision and judicial review with clear and specific criteria for its use, and that prolonged and consecutive disciplinary sanctions of solitary confinement are strictly prohibited”.[62]

In 2018, IPRT launched its report on solitary confinement, Behind Closed Doors: Solitary Confinement in the Irish Penal System,[63] making a number of recommendations. On the launch of the report, the Minister for Justice and Equality made a statement welcoming the report, stating it would “take some time to consider the report and recommendations therein.”[64]

In April 2018[65] the number of prisoners in solitary confinement was 12, while in July 2018 the figure had increased to 35.[66]

27. Violence in Irish prisons

Figures provided to IPRT by the Irish Prison Service over a five-year period suggests that there has been a decrease in prisoner-on-prisoner assaults from 715 in 2012 to 417 in 2017. The number of prisoner-on-staff assaults has fluctuated over the same period, with 107 recorded in 2012, 151 recorded in 2014 and 104 recorded in 2017. CAT (2017) had a number of relevant Concluding Observations[67] to the State on addressing violence in prisons including (i) undertaking thorough and impartial inquiries into all acts of violence committed in prisons (ii) enhancing measures to prevent and reduce inter-prisoner violence by improving prison management and the ratio of staff to prisoners, and strengthen the monitoring and protection of vulnerable prisoners and those presenting disciplinary issues and (iii) provide training to prison staff and medical personnel on communication with and managing of inmates, including juveniles, and on detecting signs of vulnerability and disciplinary issues.

The Irish Prison Service has developed a new therapeutic unit intended to address prisoners exhibiting the most violent and challenging behaviour.[68] The new unit will be co-led between Psychology and Operations.[69]

This section of the report provides some good examples on how violence can be addressed through conflict-centred strategies and restorative justice practice.

28. Prisoners under escort

A review into prison escort services conducted by the Department for Justice and Equality in 2017 has yet to be published.[70] CAT (2017) made the following Concluding Observation relevant to this issue: “Ensure that prisoners who are transferred between facilities are not injured during transportation and ensure that handcuffing is used only as an exceptional measure, after appropriate risk assessment.”[71] In 2018 the Committee for the Prevention of Torture (CPT) published a factsheet[72] on this issue.

Ratification of OPCAT in 2018 would mean that all places of detention, including prison escort services, which are not currently inspected, will be subject to independent inspection.

29.& 30. Staff training, relationships and culture

The role and profession of a prison officer can be poorly defined.[73] Careful selection of, as well as support for staff is essential, including training and regular refresher training on human rights. CAT (2017) made a strong recommendation on this, calling for the State to make training on the provisions of the Convention and the absolute prohibition of torture, as well as on non-coercive interrogation methods, mandatory for public officials, in particular police and prison staff.[74]

It further recommended the systematic collection of information on training and the development and implementation of specific methodologies to assess its effectiveness and impact on the reduction of the incidence of torture.[75]

This section discusses the importance of relationships between management, staff and prisoners including proposing the need for independent research on this issue.

31. Use of force

There is little published data on the use of force in Irish prisons. This information is currently not centrally recorded. The Irish Prison Service has developed a protocol, Conflict Management Operations and Training,[76] which aims to minimise force. In this section of the report, restorative justice practices in other jurisdictions are outlined as alternative approaches aimed at minimising use of force.

32. Cohorts at risk of discrimination

Implementation of the s.42 duty[77] in Irish prisons is vital to promoting equality and preventing discrimination. Pilot projects[78] have been carried out in the two women’s prisons on the implementation of the public sector duty.

There have also been commitments made in the Irish Prison Service and Probation Service Strategic Plan 2018–2020 to develop innovative responses to certain groups of offenders such as young adults.[79] The Irish Prison Service has been working with Pavee Point,[80] a Travellers’ rights organisation, to amend their Census to include an ethnic identifier.[81] A strategy on older prisoners is currently being finalised,[82] and an older person’s facility is being established.[83] However the LGBT policy has not been published and there is no explicit reference made to developing strategies for other cohorts at risk of discrimination including prisoners with disabilities or foreign-national prisoners.

32.1 Women who offend

Women who offend are more likely to have committed non-violent offences and have a distinct set of needs and therefore a gender-sensitive response is essential.

A snapshot review of the Irish Prison Service, 2018 Prison Populations figures demonstrate (on the first published date of every month in 2018), women’s prisons have been consistently above capacity, peaking at 175% for Limerick prison and 139% for Dóchas on the 1st June 2018.[84]

CAT urged Ireland to continue efforts aimed at reducing overcrowding and improving material conditions in all places where women are detained.[85]

The judiciary and the Probation Service play a vital role in reducing the number of women in custody through sentencing practice and the availability of gender-specific community sanctions.

The lack of a step-down facility or open provision which would support a gradual release back into society is a continuing significant concern. Despite policy commitments, there have been delays in achieving this goal and in fully implementing the Joint Probation–Prison Service Strategy 2014–2016, An Effective Response to Women Who Offend.[86]

IPRT welcomes the most recent commitment by the Irish Prison Service and the Probation Service in their Joint Strategic Plan 2018–2020 to ‘develop a range of responses for female offenders to afford them more opportunity and help realise their potential.’ [87]

E. Reintegration

33. Parole

While IPRT welcomed the Parole Bill 2016,[88] we highlight a number of concerns including a shift from seven years to twelve years for parole candidates to have their first review. Parole should not be a political issue and therefore placing of the Parole Board on a statutory footing is required. This has yet to happen.

34 & 35. Barriers to reintegration

In order for individuals to successfully reintegrate a number of barriers must be overcome. Effective spent convictions legislation has a major role to play in removing barriers to the reintegration of former offenders and prisoners who have demonstrated that they have moved on from past offending behaviour. It was our view that the Criminal Justice (Spent Convictions and Disclosures) Act 2016 is limited and we welcome the recommendation of the Joint Committee on Justice and Equality in February 2018 that the legislation be reviewed.

Inter-agency co-operation between all relevant bodies is vital for successful reintegration, with various bodies in the areas of housing, health and education all having a role to play. In this respect, we welcome the First Report of the Interagency Group for a Fairer and Safer Ireland.[89] Effective rehabilitation and reintegration reduces the risk of re-offending which benefits all in society.

Conclusion

In order to ensure that the Irish penal system is effective and humane, the current prison population must be reduced as a first step. While there has been some welcome improvement within the last year, progress is minimal towards meeting the vision to which this project aspires. There are a number of changemakers that can lead the way in making this vision a reality. In 2018, we hope that by identifying the ‘changemakers’ in the penal system and explicitly recognising their role and potential impact we will encourage reflection, action and ultimately implementation of these standards for the benefit of all.


References:

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