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Items
Details
Author
Title
Prison law / by Mary Rogan.
Published
Haywards Heath, West Sussex : Bloomsbury Professional, [2014]
Call Number
KDK1831 .R64 2014
ISBN
9781780434711 (cloth)
1780434715 (cloth)
1780434715 (cloth)
Description
xxxix, 422 pages ; 26 cm
System Control No.
(OCoLC)888467204
Bibliography, etc. Note
Includes bibliographical references and index.
Record Appears in
Table of Contents
Foreword
v
Preface
vii
Contents
ix
Table of Cases
xvii
Table of Legislation
xxix
Table of Prison Rules
xxxv
ch. 1
The Prison System and its legal framework
Introduction
1
The Prison System in Ireland
1
Key concerns in Irish prison policy
2
Structures for ensuring accountability within the prison system
3
The Inspector of Prisons
4
OPCAT
7
The legislative framework
8
The Prisons Act 2007 and the Prison Rules 2007
8
Other pieces of legislation relating to prisons
9
International human rights norms regarding prisoners
10
ch. 2
Prison conditions and the law
Introduction
13
Prison conditions and the Constitution
13
The separation of powers and prisoners' rights
15
The test for a breach of constitutional rights
17
Cell conditions
19
The Prison Rules 2007
19
Irish case law on prison conditions
19
Mulligan v Governor of Portlaoise Prison
20
Summary of the applicable principles
22
The tort dimensions of constitutional rights claims by prisoners
23
Claims in tort arising out of prison conditions
24
Healthcare
25
Not an absolute right
25
Healthcare under the Prison Rules 2007
26
Food
27
Bedding
28
Religious, spiritual and moral life
28
Education
29
Activities and exercise
29
Clothing
29
The ECHR and prison conditions
30
Minimum space and overcrowding
31
Reasons for overcrowding irrelevant to the question of breach
32
What is the minimum space requirement?
32
The establishment of the standard of four square metres
33
Special accommodation needs
36
Hygiene
36
Slopping out and sanitary conditions
37
Use of the Convention in slopping out cases in other jurisdictions
40
Greens v Scottish Ministers
41
English case law
42
Northern Ireland
43
Healthcare
44
Smoking
47
Handcuffing during medical treatment
47
The question of release
48
Prisoners with mental illnesses
49
Thought, conscience and religion
51
Education
51
The use of `protection' or `isolation'
52
Grounds of order
53
Vulnerable prisoners
54
Special observation cells
54
Procedural fairness and decisions to isolate
55
English case law
62
Conditions during periods of separation
65
International standards and the use of isolation or separation
68
Convention cases
69
Multiple transfers and Article 3
72
The question of remedies
73
ch. 3
Contact with the Outside World
Introduction
75
Visits
75
The Prison Rules 2007
75
Incentivised regimes
76
Who may visit?
76
Regulation of visits
77
Screened visits
77
Refusing entry and banning visitors under the Prison Rules 2007
78
Searching visitors
78
Visits to prisoners committed in default of payment
79
Visits from legal advisers
79
Visits to foreign prisoners
79
Visits from probation officers
80
Visits from members of the Garda Siochana
80
Case law challenging restrictions on visits
80
Foy v Governor of Cloverhill Prison
81
Visits and Article 8 of the Convention
81
`In accordance with law'
82
Pursuing a legitimate aim and necessary in a democratic society
84
Bans
84
Physical restrictions on contact
86
Other jurisdictions and restrictions on visits
90
Challenging bans and restrictions on visits
92
Taking account of Article 8 rights and the rights of children
93
Searching of visitors
94
Natural and constitutional justice and decisions concerning visits
95
Denial of visits and disciplinary sanctions
97
Placement of prisoners far from their families and lawyers
97
Conjugal visits
99
Sending and receiving letters
100
Family and friends
100
The content of letters
102
The European Court of Human Rights and the right to correspond
103
Correspondence with legal advisers
104
The European Court of Human Rights and legal correspondence
104
Legal correspondence and cell searches
106
Letters and disciplinary sanctions
107
Telephone calls
107
Current affairs, sport and other developments
109
Freedom of expression and prisoners
110
Voting
112
ch. 4
Remission, Release and Transfers
Introduction
115
Types of release
115
The law governing remission
116
Restrictions on the entitlement to remission
125
Commutation
127
Parole
127
Article 5 of the Convention and decisions on release
130
When a review of detention is necessary
131
Where Article 5 is satisfied by the original processes for conviction and sentence
133
Fixed-term sentences
134
Whelan and Lynch
139
Independence under Article 5(4)
145
Equality and distinctions made between categories of prisoner
147
The application of Article 14 in case law from England and Wales
151
Parole Board hearings and natural and constitutional justice
152
Legal aid
156
Article 6 and decisions on release
157
Commutation
158
The law governing temporary release
158
The Criminal Justice Act 1960
159
Criminal Justice (Temporary Release of Prisoners) Act 2003
159
Granting temporary release is not the exercise of a sentencing power
162
Restrictions on the decision to grant temporary release
162
Treating prisoners as a category
164
Challenging restrictions on temporary release
165
Taking account of family rights
167
The rules of natural and constitutional justice
169
Revoking temporary release
169
Applications for temporary release
171
Article 6 and decisions to grant temporary release
173
The law governing transfers
175
The power to transfer
175
The application of the rules of natural and constitutional justice to decisions to transfer a prisoner
176
Case law from England and Wales on procedural fairness regarding decisions to transfer
180
The application of the Convention and decisions to transfer
184
The presence of a `civil right'
184
ch. 5
Discipline
Introduction
189
Breaches of Prison Discipline
189
Reporting of breaches of prison discipline
192
The conduct of a disciplinary hearing
192
Notice and the charge
193
Procedure and evidence
194
Natural and constitutional justice
195
Article 6 of the European Convention on Human Rights
196
What is a `criminal charge'?
196
The special case of loss of remission
199
The civil limb of Article 6
200
Challenges to changes to legal aid in England and Wales
202
Legal representation at disciplinary hearings
203
Fitness for adjudication
205
The standard of proof
205
Bias
205
Sanctions for breaches of prison discipline
206
Prohibited sanctions
207
Suspension of a penalty
208
Petitions and appeals
208
When is a hearing not a disciplinary hearing, or an action not a disciplinary sanction?
209
Double jeopardy
210
Control
211
Restraints
211
Searches of prisoners
212
Articles found in searches
213
Prohibited articles
213
Taking photographs, fingerprints and palm prints
214
Testing for drugs and alcohol
214
The European Convention on Human Rights
216
Canadian case law and expectations of privacy
219
S and Marper
222
ch. 6
Deaths of Prisoners
Introduction
225
Deaths in Irish prisons
225
Deaths in custody under Irish law
226
Article 2 of the European Convention on Human Rights
228
The duty to investigate deaths
230
Powers of an enquiry and compliance with Article 2
232
Independence and findings
232
Promptness
233
Public scrutiny
234
Involving the family
234
Developing the duty to investigate
235
The nature of the inquiry required by Article 2
235
Public inquiries
236
Types of investigations into the death of a prisoner in Ireland
239
Who must be notified of a death?
239
Handing over the remains of the prisoner
239
Inquests
240
Narrative verdicts and Article 2
240
Compellability and disclosure
243
Legal aid
244
Investigations carried out by the Inspector of Prisons
246
Investigations by the prison authorities
248
Commissions of Investigation
248
The Commission of Investigation into the death of Gary Douch
249
Compliance with Article 2
251
Article 2 and non-fatal incidents
252
ch. 7
Incidents giving rise to serious harm in prison
Introduction
255
The duty in tort law to prevent incidents giving rise to serious harm
255
The potential for litigation under the Constitution
259
The duty to prevent harm under the Convention
261
The approach of the European Court of Human Rights
262
Injuries and Article 3
262
The standard of proof required
264
The liability of prison authorities
264
The duty to investigate incidents giving rise to harm
268
The duty to investigate under the Prison Rules (Amendment) 2013
269
Investigations and Article 3 of the Convention
273
Case law from England and Wales
277
The compliance with Article 3 of the Irish approach
280
The duty to investigate in tort law
281
Conclusion
283
ch. 8
The position of particular groups in the prison population
Introduction
285
Women in prison
285
Pregnancy and women with children under the age of 12 months
286
Mother and baby units
287
Challenging policies of separation
288
Gender discrimination and release
289
Gender identity
290
International human rights instruments and women prisoners
290
Older people in prison
291
International human rights norms
294
Foreign prisoners and those from ethnic minorities
294
Language issues
295
Religion and diet
296
Contact with the outside world
298
Challenging prison practices on the grounds of religious or cultural objections
298
Racist incidents
299
Conclusion
299
ch. 9
Practical issues for prison law practitioners
Introduction
301
The possible causes of action
301
Repeated applications under Article 40
306
Judicial review and the discretionary nature of the remedies
307
Factors to be considered when deciding on a cause of action
308
Establishing the rights of prisoners
309
The test for a breach of a prisoner's constitutional rights
311
The separation of powers and prison cases
313
Prisoners being produced in court in civil proceedings
314
Swearing affidavits
315
Mootness
315
Gathering evidence
318
Expert evidence
320
HC57 Letters
320
Prisoners representing themselves
321
Using the European Convention on Human Rights
321
Breaches of constitutional rights and the law of tort
324
Damages in the case of ultra vires actions
326
Standing of interested parties
327
Teaching Prison Law
329
Being a prison law practitioner
329
Appendix: Prison Rules 2007-2014
331
Index
409