Tort Law and Irish Prison System

This essay delves into the application of tort law within the Irish prison system, examining the state's duty of care towards prisoners. It discusses the challenges faced by the Irish prison system, including overcrowding, inter-prisoner violence, and inadequate living conditions. The essay analyzes relevant case laws and European conventions, highlighting the inconsistencies between legal standards and actual practices in Irish prisons. It emphasizes the need for prison reform and improved protection of prisoners' rights, concluding that the Irish state has failed to adequately discharge its duty of care to its prisoners.

TORT LAW
CIVIL LAW
Student
[Pick the date]

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Prisons can prove to be dangerous places, not because of the type of people who are detained in
them, but because of the fact that the authorities are not taking reasonable care to protect the
people who are locked in the prisons. It is expected from the prison authorities, that they take
care of the prisoners, their health, and also protect them from the attacks by the fellow prisoners.
In some cases, the authorities may have to adopt unduly repressive and inhumane measures with
the prisoners, but they have to balance this thing with the protective function that they need to
perform. The prisoners have the right to get the required degree of freedom and to maintain their
human dignity.
Thus, the assignment aims to discuss the approaches that are adopted by the Irish courts to take
care of their prisoners and determine that to what extent they are able to provide a good standard
of care to them. It is the responsibility of the state to discharge their duty of care that they owe to
the prisoners in the Irish prisons. For this, the law of tort will be discussed in relation to the
remedies that are available to the prisoners and various case laws will also be discussed.
Recently, Mr. Justice Michael Reilly, of the Irish Prisons Inspectorate, published a report which
highlighted the various issues that the prisoners in the Irish courts are facing. It was mentioned in
the report that the interior of the walls of prisons led to inhuman and degrading treatment to the
people1. Other reports have also been published that highlighted the issue of overcrowding in
three prisons of Ireland, namely Mountjoy Prison, Portlaoise Prison and St. Patrick's Institution2.
Just like the protection of the rights of minority groups like the disabled children, the Irish
judiciary has been reluctant in protecting the rights of the prisoners of Ireland. When talking
about the individual instances, the protection of the prisoners’ rights has been quite good in
Ireland because the courts intervene in the cases. But, when the judgments related to rights of
prisoners that have an effect on the entire penal service are required to be taken, then the
reluctance comes3. This reluctance can continue to curtail the freedom of the prisoners to an
unacceptable level and it can extend till the level of a ‘civil death’. But, the law of tort can be
practiced and applied in this scenario along with the Human Rights and it can help the prisoners
in getting justice if they feel that they have been attacked by the fellow prisoners but no measure
1 Hopkins C, 'Tort And The Treatment Of Prisoners' (1992) 51 The Cambridge Law Journal
2 'REPORT ON PRISONS AND PRISONERS IN IRELAND.' (1903) 162 The Lancet
3 DORFMAN A, 'Can Tort Law Be Moral?' (2010) 23 Ratio Juris

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has been taken to protect their security or if they feel that they are being treated in an inhumane
way.
Basically, there are a range of remedies that have been offered by the law of tort for all the
wrongs that are done to the prisoners. This law has been made and applied for the prisoners in
particular because they are treated as stigmatized group and when the verdicts have be
announced against the prison authorities, the courts tend not to go an extra mile when they have
to translate their entitlements4. With the tort law, the prison authorities and the courts have to
establish their duty f care and they have to show that, in addition to proximity of relationship and
foreseeability of damage, that it is just and reasonable to impose such a duty5.
In Europe, there is a convention for the Prevention Of Torture, Inhuman And Degrading
Treatment Or Punishment. There is a monitoring mechanism for this convention that applies to
the national prison services all over the Europe. There are many impartial and independent
experts that have been employed with this convention and they come from different
backgrounds6. Since its formation, there have been four visits in Ireland. The role of the visiting
committee is to visit the prison, observe the conditions of the prisoners and interview them along
with the staff deployed there. This visiting committee also consults thee conditions of the
prisoners with the law and the policy makers and they meet with the civil society in
consideration of the physical environment, the healthcare of prisoners, the regime etc. and they
aim to produce a conclusive report7. In addition to the inspections and formation of the report,
the national methods of the individual redress are inspected by the committee. This is basically a
reform on the penal service of the Europe at the community wide level but, this reform was not
applied and successful in the Irish Jurisdiction. This shows that in Ireland, the authorities are not
inviting the committees for inspecting their prisons. They may not be providing the adequate
level of care and safety to the prisoners due to which they feel that their inspection should not be
documented. So, one duty of care that the authorities owe to the prisoners is that they must allow
4 Fottrell, 'Ursula Kilkelly, The Child And The European Convention On Human Rights' (2000) 8 The International
Journal of Children's Rights
5 Muireadhaigh R, Stockman G and Hamilton J, 'The Irish Of Achill, Co. Mayo. Studies In Irish Language And
Literature, Vol. 2, Institute Of Irish Studies' (1975) 8 Seanchas Ardmhacha: Journal of the Armagh Diocesan
Historical Society
6 'Preventing Torture: A Study Of The European Convention For The Prevention Of Torture And Inhuman Or
Degrading Treatment Or Punishment' (1999) 37 Choice Reviews Online
7 Shany Y, 'The Prohibition Against Torture And Cruel, Inhuman And Degrading Treatment And Punishment: Can
The Absolute Be Relativized Under Existing International Law?' SSRN Electronic Journal

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and invite the committee to inspect the policies and procedures that are being followed in the
prisons of Ireland. This will not only help in identifying the weakness of policies and standard of
care, but it will also help in analyzing that how can they be improved and as per the feedback
from the prisoners, what do they feel and expect from the authorities.
There are no minimum enforceable rules for the prisoners in Ireland and also there is no rule for
the vindication of their rights8. But, this obstacle is not very big. In Gilligan v. Governor of
Portlaoise Prison, it was held that the loss of the personal liberty of the prisoner will be legally
provided for the court and it will be inevitably attached to it, the abolition, albeit temporary, of
some rights and the curtailment or restriction of others9.
The prison authorities have the duty to protect the lives of the prisoners. But, the convention of
the European Court of Human Rights imposes some obligations on the prison authorities10. One
of the obligations is negative which directs the authorities that they cannot take the life of the
prisoners intentionally and negligently. The second obligation is the positive obligation that
directs the authorities to prevent the death and ill-treatments that is being given to the prisoners.
The third obligation is for the member states to all the citizens where it has been directed that the
citizens should not be tortured or they should not be a victim of the inhuman treatments or any
undue punishment. But, it has been observed that these obligations lead to breach of one another.
This is because some are based on the protection of life of people, some are based on the
conditions that are sufficiently improper and thus, there is a lot of confusion in them.
The causal factor for the death of the prisoners as well as for providing the less adequate
conditions of living is the inter-prisoner violence11. In the past, there have been many judgments
in the Ireland prisons that have been passed to deal with the issue of inter-prisoner violence and
for the duty of care that the prison services owe to their inmates. In Rebai v. France, it was held
by the European court that re public officials had the duty to protect the lives of the inmates
when they faced any real or the imminent risk. In Edwards v. UK, the death of an inmate
happened at the hands of another inmate who was mentally-ill. The mentally-ill inmate suffered
8 Danelius H, 'Torture And Cruel, Inhuman Or Degrading Treatment Or Punishment' (1989) 58 Nordic Journal of
International Law
9 STAFFORD M, 'Identity Theft: Laws, Crimes, And Victims' (2004) 38 Journal of Consumer Affairs
10 Ciuca A, 'Human Rights: Between The European Court Of Human Rights And The Court Of Justice Of The
European Communities' SSRN Electronic Journal
11 'REPORT ON PRISONS AND PRISONERS IN IRELAND.' (1903) 162 The Lancet

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from schizophrenia and violent outbursts. The personnel of the prison were aware of this fact but
then also they placed the victim in a cell which was shared by that perpetrator. So, it was held
that the duty of care by the prison authorities was neglected and there was failure of the
protective mechanism that had to be in place by the courts12. This means that the Ireland prisons
are poor in performing their duty of care and they must take care of this fact. It is their
responsibility to protect the inmates from the attacks of the fellow inmates. For this, the
authorities must take care while placing two prisoners in same cell. They must determine the
mental condition of both the prisoners and they must keep a continuous check on them so that
they do not harm each other. The monitoring system should be strong in the prisons. Whenever
the authorities know about any risk which is real or immediate in relation to the life of any
prisoner i.e. there is a risk of getting the life of a prisoner affected due to the acts of any third
party, the authorities of the Ireland prisons must take measures within the scope of their powers
to avoid that risk. This duty or avoidance of the risk is not only for the members of the prison
authorities, but it is also for the other official bodies like the courts and the cops. They must
communicate all the relevant and important information about the people to the Prisons Service.
This calls for another measure that the prison authorities must implement in Ireland. This is the
need for segregation in the prisons. The prisoners forms gangs in the prisons and they should be
kept apart from each other. This will provide an absolute protection from the inhuman and the
degrading treatment to the prisoners (because when they will be segregated, they will create less
mischief and problems for the prison authorities and hence the authorities will not take strict
measures with them or treat them in inhuman way) and to the fellow inmates (because they will
not hurt or impose threat to the life of any other prisoner as a gang).
Another issue that is one of the single most threatening problems to the lives and the rights of the
prisoners is the issue of overcrowding in the prisons of Ireland13. The overcrowding impacts the
education of the prisoners, their visiting rights, their healthcare etc. There are forty five European
states but the country Ireland has the fourth lowest rate of committal14. There has been rise in
these figures too. The role of judiciary in the problem of overcrowding is indirect. The implicit
factor in this is the lack of alternatives to the custodial sentence. For this, the prison authorities of
12 Smith R, 'The State Of The Prisons. What Are Prisons For?' (1983) 287 BMJ
13 Naylor B, 'Prisons, Overcrowding And Rights' SSRN Electronic Journal
14 Loucaides L, 'QUESTIONS OF FAIR TRIAL UNDER THE EUROPEAN CONVENTION ON HUMAN RIGHTS' (2003) 3
Human Rights Law Review

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Ireland must go for the legislative breakthroughs in the area of the community justice, the
punishment that is non-custodial and the restorative justice too. The prisoners are not able to
exercise their rights due to overcrowding. For example, the in-cell sanitation is poor when more
number of prisoners is living in the same cell and his deteriorates their living conditions in the
prisons. They have a right to live with dignity even in the prisons but poor sanitation snatches
away their rights. In Orchowski v. Poland and Sikorski v. Poland, it was found that the serving
prisoners had less than 3 sq. meter of space which was less than the space that is to be given to
the prisoners’ statutorily15. Thus, the court held that not only this was a breach to the privacy of
the people, but it was also making them live in unhygienic conditions. Thus, the prison
authorities must take care of the fact that when the prisoners are not overcrowded and the
prisoners live in sanitary environment, they tend to be more healthy and free from disease. So,
their life becomes longer. But if the authorities are not concerned about this fact, then it means
they are negligently and intentionally posing a threat to the lives of the people.
From the above discussion, it can be seen that with respect to the position of the Irish courts and
the European Court of Human Rights, there is an injustice to the approaches that they are
following and there is a lot of inconsistency between the achievement of the objective of
protecting the safety of prisoners and the risks of adopting unduly repressive and inhumane
measures. Though Ireland is a part of Europe but there is an inconsistency between the laws of
Europe regarding the protection of prisoners and the actual practice that is being followed in
Ireland. In all the circumstances that have been discussed above, the standard of care that was
required to be followed by the State of Ireland has not been followed and it has failed to
discharge its duty of care that they owe to the prisoner kept in the Irish prisons. Firstly, it has
been identified that the major issue is of the overcrowding that is causing the problems related to
education of the prisoners, their visiting rights, their healthcare etc. There are forty five European
states but the country Ireland has the fourth lowest rate of committal secondly, another major
issue is the risks are neglected by the Irish authorities of the prisons. If they keep the two
prisoners in one cell, they do not determine their condition or the health and this poses a risk to
the health of others in the prisons.
15 Ciuca A, 'Human Rights: Between The European Court Of Human Rights And The Court Of Justice Of The
European Communities' SSRN Electronic Journal

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It is understandable that the running and maintain the prisons is not an easy task, because there
are limited public resources and the number of prisoners are very large. But, it is also true that
none of the facts can be accepted when it comes to degradation of the human rights and denying
of the human rights, as well as the life and the risk to the life of the prisoners cannot be
compromised with in any circumstances.