APPENDIX 14
Memorandum submitted by the Northern Ireland
Human Rights Commission
1. The Northern Ireland Human Rights Commission
(the Commission) is a statutory body created by the Northern Ireland
Act 1998. We have a range of functions including reviewing the
adequacy and effectiveness in Northern Ireland of law and practice
relating to the protection of human rights,[2]
advising on legislative and other measures which ought to be taken
to protect human rights,[3]
advising on whether a Bill is compatible with human rights[4]
and promoting understanding and awareness of the importance of
human rights in Northern Ireland.[5]
In all of that work the Commission bases its positions on the
full range of internationally accepted human rights standards,
including the European Convention on Human Rights (ECHR), other
treaty obligations in the Council of Europe and United Nations
systems, and the non-binding or "soft law" standards
developed by the human rights bodies.
2. The Commission met the review team led by
John Steele, and established to examine safety of staff and prisoners
in HMP Maghaberry, at Hillsborough on 20 August 2003. It undertook
to prepare a written submission outlining its views on the human
rights issues. Because of the severe time constraints under which
the review team was working, the submission was in the event provided
directly to the Secretary of State on 2 September 2003, for consideration
along with the Steele report.
3. This paper restates the substance of the
advice that was submitted to the Secretary of State. At the time
that advice was tendered in confidence because, with the pressure
on the review team and the Secretary of State to resolve the more
urgent issues, we thought that it would not be helpful to place
our advice immediately in the public domain. However, since the
Steele panel's recommendations exceeded what we were defining
as the minimum movement required in human rights terms, and were
fully accepted by Government, there is no longer the same degree
of sensitivity and we are content to share our views with the
Northern Ireland Affairs Committee and for it to publish them
should it choose to do so. The Commission is not seeking an opportunity
to submit oral evidence but it is of course happy to assist the
work of the Committee in any way.
4. The Commission was aware that the Steele
review was commissioned to address issues of the utmost urgency:
potentially issues of life or death. In that context it urged
the Secretary of State to give the most careful consideration
to the Steele report and to make an early announcement designed
not just to avert or delay an escalation of the then current protest,
but to affirm that the highest priority was given to safety issues.
5. The Commission therefore expected the response
to the report to make recommendations addressing the immediate
issues around the Maghaberry protests, and at least to identify
some avenues that may be worth exploring to assist with securing
staff and prisoner safety in the longer term. We advised that
an announcement that certain issues were to be studied further
might well help to increase the acceptability in some quarters
of a more limited package of initiatives, as well as reassuring
another audience that the changes were strictly within the context
of safety policy rather than a response to protest.
6. The Commission believes that the principal
consideration is to secure and maintain the safest possible regime
in the prison consistent with the human rights of prisoners and
prison staff, including the Convention rights—notably Article
2, on the right to life, and Article 3 on freedom from torture
and inhuman or degrading treatment-and the European Prison Rules.
It believes that the prison regime must be decent and humane,
and conducive to prison security, good order and rehabilitation.
7. It will be recalled that at the time of formulating
our advice, dissident republican prisoners were on a dirty protest
in pursuance of their demand for segregation. On the information
available to us the most urgent safety issues for the Maghaberry
establishment appeared to be (1) the risk of attacks on prison
officers outside the prison by loyalists; (2) the risk of attacks
by loyalist prisoners on dissident republican prisoners; (3) the
risk of a hunger strike by dissident republican prisoners within
Maghaberry, and (4) associated with that, the risk of attack on
prison officers outside the prison by dissident republicans. Points
2, 3 and 4 were clearly related. There were of course other risks
to health from the dirty protest, a potential risk to loyalists
from republicans and various other potential risks to staff and
to various categories of prisoner.
8. The security of prison staff outside the
prison is an important matter and we expect the police and other
agencies to take all reasonable steps to address it. We deal below
with the inter-related issues of the dissidents' perceived vulnerability,
their protest and the risk of its escalation within and outside
the prison, which is not to say that we regard the issue of loyalist
attacks on prison officers as any less vital. It is a separate
issue and certainly less susceptible to intervention by the prison
management than the other three issues.
9. In each of these safety concerns there is
the possibility, to put it no more strongly, of psychological
as well as physical harm. The Commission is of the view that it
is not only the actual risk of attack that needs to be considered:
prisoners should not be kept in a situation where they have a
reasonable fear of assault or murder. While all prisoners are
likely, from time to time, to find themselves in uncomfortable
or even dangerous situations, and to suffer insult and intimidation,
it is the duty of the prison management to keep these instances
to the minimum, and there is certainly a duty to avoid holding
a person for lengthy periods in a situation where he or she is
at fear of imminent and serious assault. To fail to comply with
these duties could, in some circumstances, cause anxiety producing
actual psychological harm and/or could reach the threshold of
inhuman and degrading treatment.
10. The Commission quite understands the view
of the Prison Service that a return to the fully segregated regime
operated in HMP Maze would create additional risks to safety,
in terms of exposing vulnerable prisoners to violence, coercion
and control, and facilitating joint action and conspiracy against
prison security and discipline. It also understands the practical
difficulties of offering educational, recreational and rehabilitative
services in a segregated context.
11. The approach hitherto followed at Maghaberry
seemed to be to house prisoners in wings integrated to an artificially
high level, in the sense that alternate cells on a landing were
occupied by loyalists, republicans and "ordinary criminals".
In practice this meant that individual dissident republicans were
not only heavily outnumbered but were surrounded by their sworn
enemies. It had been pointed out to us from several quarters,
and was plainly the case, that no such integration existed anywhere
outside the prison. That approach forced into very close proximity
people who would strenuously avoid contact on the outside. This
could easily be justified if it were shown to contribute to reconciliation
and rehabilitation, but we are not aware of any evidence of attitudinal
change. On our visits to the prison the impression formed was
of, at best, wary tolerance, at least among the politically motivated
prisoners. We noted that some "ordinary" Catholic and
Protestant prisoners were sharing cells, and this may be evidence
of a more confident attitude, but of course no-one should have
to share a cell.
12. The protesting prisoners, and their families
and supporters, represented to us that an immediate and substantial
risk existed to the safety of those prisoners. They gave instances
of attacks and intimidation, and after our meeting with the Steele
review team at least one further such incident took place.
13. The Prison Service maintains that the level
of what it terms sectarian violence at Maghaberry is in fact fairly
low. We are concerned that the statistics which it cites for assaults
may understate the problem by recording only incidents resulting
in serious injury, and that in any case some prisoners may not
report incidents of intimidation or minor assault because they
lack confidence in the prison staff.
14. We suggested that the review should recommend
adoption of the criteria used by the Prison Service in England
and Wales, which should lead to the recording of all incidents
that would amount to assault in the criminal law. Prisoners should
be encouraged to report all relevant incidents and it might help
if there were some confidential and perhaps independent mechanism
for receiving such complaints. This was proposed as a longer-term
measure but we felt that an announcement that something on these
lines was to be considered might help to build confidence around
safety issues.
15. We suggested that the issue of confidence
might also be addressed by recommending urgent consideration of
the extension to Northern Ireland of the remit of the Prisons
and Probation Ombudsman, or the creation of an equivalent office
outside the Prison Service. Since our submission we have been
giving more thought to that matter and we will make further representations.
16. The core demand of the dissident republicans
was of course for segregation, and this was subsequently taken
up by some loyalist groups. The dissident republicans have expressed
other demands but it was our hope that movement on the primary
one would, at least for the present, end their protest and remove
the risk of hunger strike and associated violence outside.
17. It was suggested by some who contributed
to the Steele review that there might have been room for a compromise
that would maintain the overall policy of keeping the prison integrated,
while permitting those prisoners who perceive a risk to their
safety to be housed in the same part of a wing or wings. We thought
that this approach was worth exploring. It would mean that, for
example, a small number of dissident republicans could be grouped
or clustered at one end of a landing, with the rest of the landing
containing "ordinary" or loyalist prisoners. In the
event, of course, the review recommended a greater degree of separation.
Addressing the "clustering" notion we said that this
might be called a face-saving solution in that it would allow
the Prison Service to say that the landing was integrated, while
allowing prisoners who had claimed to be at risk solely because
of their isolation to have the relative security of having their
comrades as neighbours.
18. The Prison Service, we believed, would be
alert to the possibility that anything interpreted as a concession
to the protesting prisoners would lead to corresponding demands
from prisoners at the other end of the political spectrum. However
it was not immediately apparent that it should be any more difficult
to manage a wing or landing in which a finite number of loyalist,
republican and "ordinary" prisoners are accommodated
in clusters of cells than it would be to manage the same prisoners
in the same wing or landing in an alternating sequence of cells.
We did not venture to suggest the optimum number for a cluster,
which was a matter for prison management, but in order to achieve
the human rights objective of increasing safety and reducing anxiety
it was not necessarily the case that this had to involve all prisoners
of one group being housed in one place; it might be that clusters
of four or six might provide a sufficient sense of security. This,
we stressed, was a management issue and the impact of any change
would need to be monitored and evaluated; responsibility for safety
lay with the prison management and if any new arrangement did
not prove adequate an alternative approach would have to be adopted.
19. The Commission acknowledged that it did
not have the expertise nor the experience to make suggestions
about other measures that might be helpful in reducing tension
or improving community relations within the prison. It expected
the Prison Service to investigate and take any initiatives that
it deemed appropriate. The Commission would like to see some evidence
that the Prison Service has policies and practices in place actively
to further its "good relations" duty, under section
75(2) of the Northern Ireland Act 1998, in relation to the prison
population. Rather more attention seems to have been paid to this
area in relation to prison staff. In fact we have not been able
to establish that any relevant policy or activity exists, from
the Service's website, from the NIO Equality Scheme or from inquiries
made to the Prison Service Policy Branch.
20. A final point we made to the Secretary of
State concerned the relatively rare circumstances in which it
may be necessary to segregate an individual prisoner for his safety,
ie when there is reason to believe that there is a strong possibility
of attack by other prisoners. One of the presentational difficulties
with the Prison Service's approach before Steele was that certain
loyalist prisoners had been assigned on arrival to segregated
accommodation for their own protection, while (according to the
information available to us) dissident republicans who maintained
that their lives were at risk had only been able to secure separation
from loyalists by behaviour that resulted in their removal to
the SSU (or "punishment block") for disciplinary offences
such as dirtying their cells. That is, the protesters maintained
that they were obliged to infringe the rules in order to secure
their removal to what they perceived as a place of safety, they
ceased their protest while in the SSU, were of good conduct while
there in that they were not (as far as we know) charged with other
disciplinary offences, and they resumed the protest only after
they were returned to their former cells. The prison authorities
did not acknowledge that in their case removal to the SSU was
a response to safety concerns, and would not, for example, remove
someone to the SSU on the basis of his own claim that his life
was at risk.
21. Of course, if the prison authorities did
acknowledge that safety was the reason for moving any prisoner
to separate accommodation, it would be undesirable to hold that
person on a basic regime in cellular confinement in what is essentially
a punishment block. Any separation ordered for safety reasons
should allow the affected prisoner a regime as close as possible
to that which would otherwise apply, including the facility to
associate with other prisoners who did not present a risk to him.
22. In any event, we said, it ought to be the
case that the risk to each and every prisoner was individually
assessed and that the decision to segregate for personal safety,
as opposed to for punishment, was made on identical, fair and
objective criteria. The Prison Service should be able to demonstrate
that this is its policy and practice.
23. That concludes our re-statement of the advice
given to the Secretary of State on foot of the Steele review.
The Commission, it will be seen, did not call for full separation
measures, since in this as in all instances it strives to base
its advice on established human rights principles. Equally, it
should be noted that nothing in our assessment went against the
determination by Steele that separation was the optimum solution.
24. We have not specifically reviewed the pace
or outcome of the implementation of the Steele recommendations
but we do, of course, welcome any measures that improve safety
within and outside the prison and reduce the likelihood of violence.
We have a continuing interest in the human rights of prison staff,
prisoners and all other members of society. We have frequent contact
with the Prison Service and will continue to monitor, to the extent
possible within the many other calls on our resources, the human
rights impact of the separation policy and the other issues that
gave rise to the Steele review. The Commission appreciates the
very difficult conditions under which the Northern Ireland Prison
Service operates, and the particularly stressful time that its
staff are currently experiencing. It would expect Government to
ensure that any additional resource implications arising from
separation be addressed in a way that maintained the overall security
and quality of the prison regime, without discrimination among
or between paramilitary and non-paramilitary prisoners.
12 November 2003
2 Northern Ireland Act 1998, s.69(1). Back
3
Ibid, s.69(3). Back
4
Ibid, s.69(4). Back
5
Ibid, s.69(6).6 / Back
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