Progress in the
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1.4 Accountability within the ‘closed world’ of prisons (2019)

Accountability and oversight structures have a different significance in the ‘closed world’ of prisons. Accountability in the prison system encompasses much more than the prevention of human rights violations behind closed doors: it involves ensuring the prison system meets its own mission to provide “safe and secure custody, dignity of care and rehabilitation to prisoners”[31] and that it does everything it can to minimise the harmful effects of imprisonment on people so held.

The ‘urgency’ of external scrutiny is underscored by international human right standards, including the UN Standard Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules), which highlight the important functions of both internal and external inspections in the penal system.[32] These rules set out: the importance of inspectors having due authority, including unlimited access to both prisoners and prisons; the necessity of having qualified individuals with expertise on the inspection team, including health-care professionals;[33] and reasonable timeframes as to whether recommendations made by inspectors will be implemented.[34] Similarly, the European Prison Rules state the importance of an independent monitoring body, whose findings on the treatment of prisoners should be made public.[35]

4.1 Systems of internal oversight

Accountability in the prison system must begin at institutional level. In Ireland, the Prison Rules 2007 state that governors should carry out daily inspections of prisons and should also make a number of unannounced visits to the prison at night.[36] To our knowledge, this is not monitored or reported anywhere.

IPRT has previously called for the establishment of the IPS as an independent prisons authority on a statutory basis. In July 2019, following publication of a report by the Inspector of Prisons, the Minister for Justice and Equality announced that a Prison Service Board will be established, with an independent chairperson.[37] Three committees, dealing with audit, risk and culture, will report to the Board, and an internal audit function will also be established to improve internal governance.[38] The Board (either itself or through its committees) will uphold professional standards of performance across all prison service activities, as well as develop and monitor ethical standards and organisational values.[39] This new development must be met by adequate resources in order to ensure the governance infrastructure has the capacity to monitor, review, report and evaluate.

4.2 Functions of external oversight

An effective system of external oversight should fulfil three distinct functions, which are summarised below.[40]

  1. Preventive function: An inspection regime should deter and prevent violations of rights inside the prisons. Oversight functions should be exercised at any time and without interference from Government.
  2. Improvement function: Bodies authorised to visit places of detention should have the power to make recommendations for improvement to practices found to be in breach of human rights standards or in breach of law governing the management of prisons on the national level.
  3. Individual complaints review function: The system of external oversight should include an easily accessible mechanism for external and independent review of individual complaints brought forward by prisoners.

4.3 Domestic systems of external prisons oversight

Office of the Inspector of Prisons
The Inspector of Prisons is responsible for the independent inspection of the 12 prisons in Ireland, as set out under the Prisons Act 2007.[41]Since 2012, the Inspector of Prisons (OiP) has also been responsible for conducting investigations into deaths occurring in custody (either in prison or on temporary release).[43] The Inspector also has an oversight role in investigations into category A (serious) complaints; however, it is unclear how effectively this has operated in practice.

IPRT is concerned that the resourcing of the OiP has not kept pace with its increasing remit. The most recent published report on an inspection of a closed prison remains a report on the Mountjoy Prison Campus, with particular emphasis on the Separation Unit there, which was published in 2014.[44] The most recent annual report published by the Inspector was in 2017, and related to combined years of 2015 and 2016.[45] The absence of published reports on recent inspections means that current prison conditions cannot be subjected to public scrutiny. This should be a matter of serious concern to everyone.

Reports made by the OiP are submitted to the Minister for Justice and Equality, who has powers to omit or redact any finding from the report before publication.[46] While redactions do not generally happen in practice[47], publication of reports is often delayed. In the case of reports on investigations into deaths in custody, significant delays may amount to a breach of Ireland’s obligations under the European Convention on Human Rights.[48]

Accountability in Ireland’s prison system must be improved through legislative amendments to empower the OiP to publish reports directly, and through adequate resourcing of the Office so that it can fulfil its important remit.

This should be met with an undertaking by Government that all of the Inspector’s recommendations will be implemented without delay, with progress on implementation of recommendations made public. Increased public scrutiny will result in improved accountability in prisons, which will consequently improve the lived experiences of everyone within the penal system.

Prison Visiting Committees
The system of monitoring prisons by Prisons Visiting Committees is governed by the Prisons (Visiting Committees) Act 1925.[49] Committee members are appointed by the Minister for Justice and Equality. Duties and powers of the Committees include visiting the prison frequently and reporting to the Minister on any abuses observed in the prison, or on any matters that the Committee feels needs to be brought to his or her attention.[50] A prisoner can also request a meeting with the Visiting Committee or an individual member of it through the governor. However, the Committees’ function does not include a formal power to adjudicate on individual complaints or to make any binding recommendations to the governor or any other member of the Prison Service.

Although some Visiting Committees function well, there is a lack of independence in the appointment of committee members. In addition, there is no standardisation of Visiting Committee reports in terms of structure and quality of content.[51] IPRT has observed that years of Visiting Committee reports on St Patrick’s Institution failed to identify the culture of impunity that existed in that prison, as identified by the Inspector of Prisons in 2012[52] and previously highlighted in successive prison chaplaincy reports.[53]

It is clear that overall reform of the system of Visiting Committees is needed. This will require a Government review of the existing functions and powers of the Visiting Committees, as well as the appointments and reporting process, with a view to strengthening their role as a lay monitoring mechanism; this should comprise multi-disciplinary expertise, including in relevant human rights standards. To further enhance accountability, IPRT proposes that a reformed Prison Visiting Committee system adopt a ‘citizens’ assembly’ approach whereby committee members are representative of all Irish society.

This would be a valuable step towards improving accountability in the system, and involving all citizens in oversight of what is, after all, done in our name.

External complaints mechanism
A key element in prisons accountability is a functioning internal complaints system, combined with an easily accessible mechanism for independent external review, such as a prisoner ombudsman or access to the general ombudsman. Although there are commitments to extend the remit of the Ombudsman to include prisoner complaints appeals, there is currently no independent body in Ireland to which individual prisoners can make complaints[55], and confidence in the internal complaints system is low.[56] As noted above, Visiting Committees can hear complaints made by prisoners; however, they have little access to remedy to resolve complaints made by prisoners.[57]

The importance of prisoners being able to access an external complaints mechanism should be considered in the context of Ireland’s dark history of coercive confinement where many human rights violations occurred in these institutional settings.[58] It is of critical importance that every measure possible is taken to ensure that people who are deprived of their liberty – and most especially those held in restricted regimes or who have specific needs such as disabilities – have confidence in their access to making a complaint safely, including a supportive prison culture where staff and prisoners alike feel able to raise concerns.

The benefits to both staff and prisoners were previously highlighted by former Northern Ireland Prison Ombudsman, Pauline McCabe, who outlined how complaints are “important opportunities for addressing difficulties, encouraging constructive behaviour and attitudes and helping to keep prison safe.”[59] She went on to describe how there are “many instances where our reports and recommendations are very helpful to members of staff trying to do a good job in circumstances where prison policy or custom and practice is not fit for purpose.”[60]

In short, a robust and functioning complaints system in which staff and prisoners have confidence will support better management of prisons – through identifying systemic problems that need to be addressed – and ultimately better outcomes for everyone in the prison system.

4.4 International systems of external prisons oversight

A number of international treaties and monitoring processes hold the State to account in its treatment of people in detention and across the wider criminal justice system. Of particular relevance to the deprivation of liberty are the UN Convention against Torture (UNCAT) and the European Convention on Human Rights (ECHR). Ireland’s compliance with UNCAT was reviewed by the UN Committee against Torture in July 2017[61] and, prior to that, in 2011.[62] These two periodic reviews identified serious concerns, including overcrowding, lack of in-cell sanitation, the imprisonment of children (2011), solitary confinement and gaps in prisons oversight (2017). IPRT acknowledges the active engagement of the Irish State in these processes, and also the significant progress made on responding to the 2011 Concluding Observations in particular. Holding Ireland to account on the international stage remains an important lever for reforms.

Since 1993, the Council of Europe Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) has also held Ireland to account through undertaking unannounced visits to places of detention approximately every four years. The mandate of the CPT focuses not only on potential ill-treatment of people detained but also on the result of organisational failings or inadequate resources.[63] After each visit, the CPT sends a report to the State and requests a detailed response to the issues highlighted. The CPT last visited Ireland in 2014; the report on its visit –published in November 2015 – remains the most recent published inspection report of a closed prison in Ireland.[64] The CPT is due to visit Ireland again in 2019.

In the absence of a fully resourced and functioning prisons inspectorate at domestic level, Ireland is effectively dependent on international oversight of our prisons in learning about what takes place behind prison walls. This means ratification of the Optional Protocol for the Convention against Torture (OPCAT), which Ireland signed in 2007, is even more urgent. Ratification of the OPCAT would both improve domestic oversight, through the creation of a national preventive mechanism (NPM), and add an additional level of international oversight, by way of inspections by the UN Sub-Committee against Torture.[65] It is of critical importance that Government meets its restated commitments to ratify the OPCAT during 2019.

References:

Irish Penal Reform Trust

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