Human Rights in Irish Prisons

• Author: Claire Hamilton - Ursula Kilkelly
• Position: Barrister and Lecturer in Criminology at the School of Social Sciences and Law, DIT - Senior Lecturer at the Faculty of Law, University College Cork and Chair of the Irish Penal Reform Trust
• Pages: 58-85

Judicial Studies Institute Journal [2008:2

58

HUMAN RIGHTS IN IRISH PRISONS

CLAIRE HAMILTON* AND URSULA KILKELLY**

INTRODUCTION

The Irish prison system is currently undergoing significant

reform. Old and dilapidated prison buildings are finally being

replaced with new ones at Thornton Hall in Dublin and Kilworth

in Cork, and while they have many problematic elements, not

least the scale and location of what is proposed, the new prisons

will bring improved conditions for those detained there.

The revision of the Prison Rules and the establishment of the

Prisons Inspectorate on a statutory basis are also welcome

developments, insofar as they aim to introduce greater regulation

and accountability into this much neglected area of Irish law.

Ireland is bound by several international instruments in the

area of prisoners’ rights and penal policy, and the ongoing reform

in the Irish prison system means that the time is opportune to

consider the extent to which these legal obligations are currently

met, and to evaluate what needs to be done to ensure greater

compliance. The aim of this article is thus to examine Ireland’s

record in prisoners’ rights against international standards, and to

determine where reform needs to take place in order to ensure full

respect for the rights of prisoners in Irish law, policy and practice.

It begins with a commentary on the importance of international

standards.

I. THE IMPORTANCE OF INTERNATIONAL STANDARDS

International law on prisoners’ rights and penal policy is

wide in scope and detailed.1 From an Irish perspective, four

_____________________________________________________

* Claire Hamilton is a Barrister and Lecturer in Criminology at the School of

Social Sciences and Law, DIT. She is former Chair of the Irish Penal Reform

Trust.

** Dr Ursula Kilkelly is a Senior Lecturer at the Faculty of Law, University

College Cork and Chair of the Irish Penal Reform Trust.

1 See further Owen, MacDonald and Livingstone (deceased), Prison Law, 4th

ed. (2008).

2008] Human Rights in Irish Prisons 59

treaties create binding obligations relevant to the treatment of

prisoners: the European Convention on Human Rights (ECHR),

the Convention for the Prevention of Torture and Inhuman and

Degrading Treatment from the Council of Europe, the

International Covenant on Civil and Political Rights (ICCPR) and

the Convention against Torture (CAT) from the United Nations.

Each has been ratified by Ireland, meaning that the State is

required legally to implement and observe its provisions.

The ECHR is the only instrument of these four to have effect in

Irish law, by virtue of the ECHR Act, 2003, and as a result, its

standards have added value in the domestic legal system.

Also important are the Council of Europe European Prison Rules,

not binding per se, but nonetheless an important source of

detailed and comprehensive guidance in this area also.

Each of these instruments is enforced in different ways,

although the most popular method used is monitoring by an

expert committee, such as the Human Rights Committee which

monitors the ICCPR, or the Committee for the Prevention of

Torture (CPT), which monitors the Convention for the Prevention

of Torture. These processes offer the Government an important

opportunity to engage with international experts in a constructive

and co-operative manner, with a view to achieving greater

implementation of the relevant standards concerned. While this

method enjoys varying degrees of success in bringing about

change, however, it does not offer a remedy to individual

complainants, making these instruments difficult to enforce in

legal terms.

In this regard, it is welcome that the ECHR, and the

Optional Protocols to the ICCPR and the CAT, offer a remedy to

individual prisoners whose rights have been infringed.

These remedies are limited to the terms of the individual treaty,

and in all cases they require that domestic remedies be exhausted

prior to an application at international level. Despite the

importance of making such international remedies available to

prisoners, therefore, these limits, and the fact that such

mechanisms are slow, mean that they offer only residual

protection. Even in the case of the more effective systems of

individual complaints, like the European Court of Human Rights

(ECtHR), international mechanisms are no substitute for ensuring