Republican Prisoners’ Action Group
Submission to NIPS (Northern Ireland Prison Service) Consultation on Review of Separated Prisoners at Maghaberry Gaol
1. Republican Prisoners’ Action Group (RPAG)
1.1. RPAG is a non-governmental organisation formed to lobby on behalf of Republican prisoners. The group works closely with Republican prisoners, their families and political representatives.
1.2. RPAG was not consulted in the NIPS consultation on the review of the separated regime in Maghaberry Gaol. RPAG request that the group is consulted in any future consultations regarding separated prisoners.
2. Scope of Present Consultation
2.1. As stated above RPAG has not previously been consulted in the current process. It would also appear that no body dealing directly with Republican prisoners currently detained in Maghaberry Gaol has been consulted. Neither Republican Sinn Fein nor the Irish Republican Prisoners Welfare Association were not approached in the consultation process.
2.2. We note with concern that comments are only elicited by the NIPS in respect of a limited number of the recommendations of the review. We have not sought to limit this submission to the limited request for comments, but ask that this submission is fully considered.
3. Deficiencies in Review
3.1. The review does not address the fundamentally political nature of the imprisonment of Republican prisoners. We submit that until the political nature of Republican prisoners is acknowledged that any attempt to impose an appropriate regime will fail to meet the rights and needs of these prisoners.
3.2. The NIPS and the British government has had a protracted history of conflict with Republican prisoners. It is clear that the NIPS is not in a sufficiently independent position to be able to conduct this review or address this fundamental issue.
3.3. The vast majority of prison officers are from the Protestant/Unionist/Loyalist community. The inherent difficulties that such a body would have in implementing an impartial and independent regime in respect of Republican political prisoners is not recognised in the review.
3.4. RPAG calls for an independent and international review into the conditions of detention of Republican prisoners at Maghaberry Gaol.
3.5. RPAG calls for the implementation of measures to address the overwhelming imbalance in the religious and political background of prison officers in the NIPS.
4. Core Principles
4.1. We have serious concerns in relation to aspects of the ‘core principles’ as outlined in the review.
4.2. We submits that public confidence is not a valid consideration when considering the rights of separated prisoners. The primary concern must be to respect the rights of those involved and that the Service must not bow to extraneous public opinion. Confidence in the administration of justice should in any event flow from respecting fundamental rights and equality and treating prisoners with dignity and humanity.
4.3. NIPS has included in its core criteria that “separated prisoners should not benefit from a markedly better regime than their integrated counterpart”. This indicates an approach likely to result in separated prisoners being provided with a less favourable regime than the integrated population. RPAG is concerned that no counter balance is included in the core principles to state that separated prisoners should not be offered a markedly worse regime than their integrated counterparts.
4.4. The core principle dealing with the alleged risk of subversion is clearly based on a subjective analysis of the situation. We submit that this discloses a biased approach to the review in this regard. The NIPS “experience” in this regard is clearly tainted by a political view that seeks to restrict the rights of Republican prisoners.
4.5. While maintenance and good order of the prison are clearly matters within the remit of the NIPS we submit that elevating concerns of subversion to the level of a “core principle” is likely to pre-determine the result of any review.
4.6. We submit that the above demonstrates further supports its calls for an independent and international review.
4.7. RPAG calls on the NIPS to review its “core principles” and to remove irrelevant and subjective references.
4.8. RPAG calls on the NIPS to respect international standards of detention and international human rights law and not to permit themselves to be influenced by extraneous political or populist influences.
5. Background
5.1. Separation was introduced solely on the grounds of safety. It is clear that Republican prisoners were the only prisoners whose safety was compromised in the operation of the integrated regime in Maghaberry Gaol. While references were made in the Steele report of a need to avoid a return to the conditions which existed in Long Kesh Gaol the report was not prescriptive as to how this was to be achieved.
6. Selection Criteria
6.1. We submit that the current selection criteria are vague and unworkable and we welcome the opportunity for clarity and change in this regard.
6.2. RPAG however has serious concerns in respect of the proposed new criteria.
6.3. The proposed criterion that a prisoner is to be a member or supporter of a proscribed organisation connected with the affairs of Northern Ireland is seriously flawed. Membership or support of a proscribed organisation is contrary to British law and punishable by imprisonment.
6.4. Only a properly constituted court of law can determine whether a person is a member of a proscribed organisation. We submit that using this as a criterion is unworkable. We submit that the use of this criterion could have serious legal effects for prisoners applying for separation. The concerns are considerably greater in respect of remand prisoners who have not been convicted of any offence.
6.5. We submit that the potential adverse legal effect could have a deterrent effect on prisoners whose safety and security may nevertheless be compromised by being detained in the integrated prison population.
6.6. RPAG reminds the NIPS that the separation of prisoners is carried out on safety grounds and submit that the criteria should include an obligation on the Secretary of State to remove a prisoner from the integrated population who has made an application if there is cause to believe that his safety would be compromised.
6.7. We submit that the seven day timeframe is not sufficiently quick to ensure the safety and security of prisoners at all times. We see no reason why an application cannot be considered promptly as part of the initial reception process.
6.8. The Secretary of State is not sufficiently independent to assess applications for separation. As a member of the British government the Secretary of State is open to bring political factors into his consideration of any application.
6.9. The PSNI and other intelligence and security agencies which will no doubt inform the Secretary of State are not likely to provide an independent fair and accurate assessment of an applicant’s situation.
6.10. The provision for the Secretary of State to have regard to “such material as he considers relevant and credible” is vague.
6.11. We submit that as a matter of procedural fairness that prisoners should have the right to access and comment upon any material relied upon by the Secretary of State which is adverse to their application for separation.
6.12. We submit that separated prisoners possess useful information and perspectives in respect of the application process and it would be appropriate for them to consulted in any application for separation.
6.13. RPAG calls on the NIPS to review the criteria for selection to the separated regime.
6.14. RPAG calls on the NIPS to remove the criterion requiring an applicant to be a member or supporter of a proscribed organisation.
6.15. RPAG calls for the appointment of an independent and international body such as the International Committee of the Red Cross to consider applications for separation.
6.16. RPAG calls on prisoners to be given access to material which is considered adverse to their application for separation.
6.17. RPAG calls on existing separated prisoners to be consulted in respect of applications for separation.
6.18. RPAG calls on the NIPS to expedite the process of selection.
7. Security
7.1. The review appears to have at the outset ruled out major change to the search strategy and practice. This would appear to indicate a closed mind to the issue.
7.2. From the statistics provided by the NIPS in the review it can be seen that out of the 48 finds that only 3 related to finds in Roe House where Republican prisoners are located. We submit that this discloses a fundamental difference between Republican and Loyalist prisoners that ought to be reflected in developing relevant policy.
8. Strip Searching
8.1. We cannot agree with the assertion that a prisoner is never naked during a full search. While it is generally the case that during a full search a prisoner is first asked to remove his upper garments and then subsequently his lower garments it is evident that during the search that a prisoner is naked (either from the waste down or from the waste up). While the prisoner’s lower garments are being searched the prisoner’s genitals are exposed. We submit that use of strip searching is humiliating.
8.2. We understand that the strip search procedure is used considerably less frequently within the integrated prison population.
8.3. We have been informed by prisoners of cases where individual prisoners are singled out for a significantly increased number of searches.
8.4. We have also been advised of full searches which do not appear to have been recorded in accordance with Prison Service Orders. Failure to accurately record searches undermines the effectiveness of the monitoring process and the transparency of the search regime.
8.5. We submit that the use of strip searching is unnecessary, disproportionate and contrary to international standards of detention and international human rights law.
8.6. We note with concern the recommendation of the review that a facility for strip searching be purpose built on the landings. We are concerned that this will encourage further use of strip searching.
8.7. RPAG calls on the NIPS to desist from its practise of strip searching.
8.8. RPAG calls on the NIPS to ensure that any searches conducted are conducted respecting prisoners’ dignity and are only used when necessary and proportionate.
8.9. In the event that strip searching continues RPAG calls for the enforcement of the Prison Service Orders requirements for recording searches and calls on the NIPS to publish statistics on searching regularly to ensure transparency.
8.10. To avoid potential discrimination RPAG calls for the NIPS to initiate an Equality Impact Assessment of the search policy in conjunction with the Equality Commission and other international and national bodies.
9. Rub Down Searches
9.1. We welcome the recommendation that the current policy of excessive rub down searches to be discontinued.
10. Cell Searches
10.1. The review does not give any justification for the decision not to permit prisoners to be present during cell searches. The presence of prisoners at a cell search provides essential scrutiny over the search process.
10.2. We have been made aware of regular searches in which items of prisoners have been damaged.
10.3. We are particularly concerned at searches reported to RPAG where items and in particular newspapers of a political nature have been damaged or removed from prisoners’ cells. The removal of political items especially newspapers is a serious breach of the right to free association and expression of political opinion and constitutes discrimination contrary to international legal principles.
10.4. RPAG calls on the NIPS to permit prisoners to be present during cell searches.
10.5. RPAG calls on the NIPS to respect Republican prisoners’ rights to freedom of association and expression of political opinion.
11. Drugs Dog
11.1. Republican prisoners have raised repeated concerns that the use of the drugs dog is unnecessary, ineffective and used without any effective independent scrutiny.
11.2. Reference in the review to the drugs dog are only made in respect of the visiting regime and in cell searches. The NIPS will be aware that the drugs dog is also used on prisoners returning from periods of temporary release.
11.3. The evidence obtained by the NIPS themselves discloses that the misuse of drugs is not an issue which affect Republican prisoners. This has been the case throughout the history of Republican prisoners. The use of drugs dogs in respect of Republican prisoners and their visitors would therefore appear unnecessary. The fact that visitors to Republican prisoners continue to be stopped by the drugs dogs raises further questions as to the integrity of the drugs dog system.
11.4. The effectiveness of the drugs dogs is clearly called into question. There are no further searches conducted on visitors who are indicated by the dog and therefore their contact with drugs cannot be confirmed. Likewise it is clear that drugs are being smuggled into the prison by Loyalists and integrated prisoners. The opportunity for innocent contamination during the visitors’ reception process leaves open the distinct possibility of false positive indications by the dog.
11.5. There is no independent scrutiny over the drugs dog procedure. This leaves the system open to potential abuse. Visitors are unaware of exactly how the dog allegedly shows a positive indication and is unable to question the prison officers’ judgment in the matter.
11.6. The blanket policy of refusing open visits when stopped by the dog leads to an arbitrary system that does little to discourage visitors from attempting to introduce drugs into the prison.
11.7. The other security arrangements provided for visitors, ie CCTV monitoring, personal monitoring by staff and the opportunity for further searches allow for a fairer and more effective system.
11.8. It is clearly unfair that when one visitor is stopped by the dog that the whole group is prevented from proceeding with an open visit. We reject the justification raised in the review. Should a visitor be able to heavily contaminate himself or herself to distract the dog, this raises further concerns about the effectiveness of the entire system. In any event we reiterate the position that drugs are not an issue that effect Republican prisoners.
11.9. We have has similar concerns in relation to the use of the drugs dogs on prisoners returning from periods of temporary release. We submit that use of Rule 32 to restrict a prisoners’ association for a period of 48 hours is wholly disproportionate especially given the evidence that Republican prisoners have demonstrated that they are not involved with the introduction of drugs into the prison. We are unaware of any case where the use of Rule 32 has subsequently resulted in the finding of drugs on a prisoner returning from a period of temporary release.
11.10. We have similar concerns in relation to the use of the drugs dog in cell searches.
11.11. RPAG calls on the NIPS to confirm that they do not consider Republican prisoners at risk of introducing drugs to the prison.
11.12. RPAG calls on the use of the drugs dog to be discontinued.
11.13. RPAG calls on the use of closed visits to be discontinued.
11.14. RPAG calls on the use of Rule 32 on prisoners returning from temporary release to be discontinued.
11.15. Alternatively RPAG calls for the introduction of recorded CCTV footage of the drugs dog to provide effective and independent scrutiny over the process.
11.16. Given the lack of current scrutiny RPAG calls on the NIPS to conduct an equality impact assessment on the use of the drugs dog in conjunction with the Equality Commission and other international and national bodies.
12. Controlled Movement
12.1. The Steele report indicated that a return to the conditions previously existing at Long Kesh should be avoided. The conditions currently in place at Maghaberry Gaol can in no way be compared to the conditions at Long Kesh where prisoners had 24 hour unlock and control of the wings. Prisoners in Maghaberry are locked up for up to 23 hours a day and are not permitted to be on landing more than three at a time. We respectfully submits that the two situations are at the opposite extremes of detention practice.
12.2. The NIPS appear to have a fear that even small relaxations in the regime could constitute a gradual slip towards Long Kesh conditions. We respectfully submit that this idea is unfounded and irrational. This approach is unnecessarily preventing serious consideration by NIPS to removing the overly restrictive controls on movement which have been implemented.
12.3. Periods of unlock and association with other prisoners are instrumental in breaking the monotony of prison life and are necessary to ensure that the psychiatric and psychological effect of detention is not aggravated unnecessarily. The NIPS review does not appear to have considered the potential psychological effect of “controlled movement” on the separated prisoners.
12.4. Periods of free association with other prisoners is a fundamental right of political prisoners. It is noted that free association on landings throughout the integrated prison appears to work without serious security issues.
12.5. It is a widely accepted international legal principle that the only rights which a prisoner loses are those necessarily lost by his incarceration. We submit that the system of “controlled movement” currently in place in Maghaberry Gaol is unnecessary and contrary to international legal standards of detention.
12.6. While it is accepted that there does not exist any comparable prison regime with the UK it is concerning that comparisons have been made in the review with the SSU regime in England. The SSU regime has been heavily criticised by human rights groups and international bodies concerned with the prevention of torture and inhuman and degrading treatment.
12.7. The decision to separate Republican prisoners was taken solely on safety grounds. A regime comparable to the SSU regime was not deemed necessary prior to separation and we submit that it has not been demonstrated by NIPS that it is necessary now.
12.8. It is clear that separated prisoners are being treated less favourably than integrated prisoners in this respect. There are a wide range of alternative security measures available to the Prison Service which would enable the provision of a regime comparable to the integrated prison population. We submit that the difference in treatment cannot be justified and constitutes discrimination.
12.9. RPAG calls on the NIPS to implement a regime that respects the rights of Republican prisoners to associate freely with one another.
12.10. RPAG calls on the NIPS to implement a regime that does not treat them less favourably than the integrated prison population.
12.11. RPAG calls on the NIPS to respect international human rights standards and to protect the physical and mental integrity of Republican prisoners.
13. Regime
13.1. RPAG does not accept that the regime as published in the review is accurate. Republican prisoners often spend up to 23 hours in their cells.
14. Meals in Cell
14.1. We do not accept that there is any justification for refusing to permit Republican prisoners from eating communally. We submit that the current practice constitutes inhuman and degrading treatment contrary to international human rights law. We submit that the practice is contrary to health and safety principles.
14.2. RPAG calls on the NIPS to permit prisoners to eat together in a humane and social fashion.
15. Availability of Exercise
15.1. Republican prisoners welcome the proposed extension of exercise space and extra showers. We are however concerned that the exact details of the expansion have not been made available in the review and are concerned that the extension may still fall short of an acceptable standard.
15.2. RPAG calls on the NIPS to make available the details of the proposed extension available.
16. Constructive activity
16.1. We welcome the recognition by NIPS that it is under an obligation to offer all prisoners constructive roles and activities. However we are concerned that the contents of the Prison (Northern Ireland) Rules (Amendment) Order 2004 introduced specifically as a result of the introduction of separation do not reflect this obligation.
16.2. In particular the Order specifically purports to remove the right of separated prisoners to spend their time constructively.
16.3. RPAG calls on the British government to amend the 2004 Order to bring it into line with international standards of detention.
17. Education
17.1. As well as the inherently fundamental function of education in the general population education has historically played an important role in respect of political prisoners in Ireland. Republican prisoners especially have demonstrated a dedicated commitment to education. It has been clearly shown that education assists in conflict resolution and is crucial in the political and personal development of Republican prisoners.
17.2. Republican prisoners raised serious concerns with RPAG that when the separated regime was first implemented that the educational facilities available were minimal.
17.3. However we recognise that moves have been made since the implementation of the regime to increase the level of education available to Republican prisoners. However the level of education available has not yet reached an acceptable level or a level comparable to that available to integrated prisoners.
17.4. We reiterate the importance of distance learning courses to facilitate education that cannot be provided through the normal prison education system. We seek clarification that access to distance learning will be facilitated upon request and will not be restricted unnecessarily. We support calls from prisoners that self-education materials are provided such as text books and white-boards.
17.5. It is acknowledged that Irish language classes are offered and have been expanded. However we have concerns in relation to wider cultural educational facilities such as access to Irish political and musical materials.
17.6. We are informed by prisoners that the selection of books in the library is poor and that the stated request system is not seriously entertained by the Prison Service in particular when the subject matter touches political or Irish cultural issues.
17.7. RPAG calls on the NIPS to provide a level of educational facilities at least comparable to that provided to the integrated prison population and that will enable Republican prisoners to continue their historical commitment to education.
17.8. RPAG calls on the NIPS to ensure that educational facilities and resources are provided without restriction based on political or cultural values.
17.9. RPAG calls on the NIPS to conduct an Equality Impact Assessment in relation to the Educational facilities offered in conjunction with the Equality Commission and other international and national bodies.
18. Crafts
18.1. There are similar concerns that restrictions on crafts are based on political and cultural sensitivities of prison officers. We submit that this is in an improper approach and that any restriction on the production of overtly political craftwork would constitute discrimination on grounds of political opinion.
18.2. RPAG calls on the NIPS to ensure that craft facilities are provided without restriction based on political or cultural values.
18.3. RPAG calls on the NIPS to conduct an Equality Impact Assessment in relation to the issue of production of political crafts in conjunction with the Equality Commission and other international and national bodies.
19. Regime levels and Discipline
19.1. The review notes “there have been no serious incidents or disturbances within Bush and Roe House since separation”. We submit that this cannot solely be attributed to the control procedures and that Republican prisoners in particular have demonstrated that they are able to maintain a level of behaviour commensurate with their political status.
19.2. We submit that the introduction of a regime system for Republican prisoners is wholly unnecessary.
19.3. We reiterate our earlier submission in relation to the absence of drugs from the Republican landings. Republican prisoners do not accept the need for drugs testing to be implemented for Republican prisoners.
19.4. We have concerns in relation to the existing disciplinary procedures introduced in the Prison (Northern Ireland) Rules (Amendment) Order 2004. The Order re-introduced the availability of an award of loss of remission as a punishment for separated prisoners. We do not accept that extra disciplinary powers are necessary for Republican prisoners and submit that the introduction of the powers solely for separated prisoners constitutes potential discrimination.
19.5. We have further serious concerns in relation to the powers given to Prison Service in Section 13 of the Justice (Northern Ireland) Act 2004 to transfer prisoners to prison establishments outside Ireland. We submit that any forced transfer of an Irish Republican prisoner to a prison in the United Kingdom would constitute a serious breach of international standards of detention and international human rights law.
19.6. RPAG calls on the additional powers contained in the Prison Rules and the Justice Act to be removed.
20. Visits
20.1. We have already raised our concerns in relation to the use of the passive drugs dogs at visits.
20.2. Republican prisoners also have serious concerns in relation to the bio-metric system implemented recently for visitors to Maghaberry Gaol. The retention and access to personal data of visitors by prison staff and associated civilian workers poses a security risk in particular given the history of proven allegations of links between individual prison officers and Loyalist paramilitaries. Republican prisoners have no confidence in the procedures which seek to reduce any security risk which exists. We submit that the system is an unnecessary and disproportionate interference with visitors right to privacy.
20.3. We welcome the recommendation of an introduction of a van to transport prisoners to legal visits in a secure manner. This has been a demand of Republican prisoners for some considerable time and we are concerned that it has taken this length of time to effect a policy which is instrumental in providing a safe and secure environment for prisoners.
20.4. We welcome the prospect of expanding the provision of visits for political representatives. However extending the facility only to councillors could be overly restrictive. As the NIPS will no doubt be aware Irish Republicans do not accept British sovereignty over any part of Ireland and are opposed to participating in any form of government that does not stem from the will of the Irish people acting as an independent and sovereign nation. This belief currently precludes Irish Republicans from acting as councillors, MLAs or MPs. We submits that a similar arrangement as proposed for elected political representatives be implemented for Republican political organisations which do not necessarily participate in the electoral process. We specifically submit that this facility be extended to members of Republican Sinn Fein as a long established political organisation clearly representing the interests of Republican prisoners.
20.5. We submit that an extension of the political visits should also be introduced for prison welfare organisations. RPAG submit that these groups provide invaluable services for prisoners and their families providing advice and support often analogous with that provided by legal representatives. We submit that it would be appropriate for such groups to be afforded similar visiting rights to solicitors.
20.6. We repeat calls from prisoners for the resumption of private visit to facilitate family and marital relationships and also in the event of a family death.
20.7. RPAG calls on the NIPS to discontinue the use of the drugs dog on visitors.
20.8. RPAG calls on the NIPS to discontinue the use of the current bio-metric system
20.9. RPAG calls on the NIPS to implement political visits for Irish Republican political organisations and in particular to implement political visits for Republican Sinn Fein.
20.10. RPAG calls on the NIPS to implement prison welfare visits for prisoner welfare groups and in particular requests that RPAG be permitted such visits.
21. Temporary Release
21.1. The issue of temporary release was not covered in the review. Temporary release and the maintenance of family ties is an important human rights and equality issue and one that should be considered central to the implementation of any prison regime.
21.2. RPAG is aware of a number of cases of Republican prisoners being refused periods of temporary release despite a clear absence of any risk of absconding or of breaching conditions of temporary release.
21.3. It is generally accepted that Republican prisoners have a long history of honouring conditions of temporary release.
21.4. The existing Prison Service temporary release schemes do not adequately permit prisoners to maintain family ties in the early years of their sentence. We submit that this period of time is particularly crucial in ensuring that the effects of imprisonment on the prisoner and on his family and children may have are minimised.
21.5. The use of the general discretion in Rule 27 of the Prison Rules is not commonly exercised to allow periods of temporary release for prisoners to attend family occasions outside of the existing Prison Service temporary release schemes.
21.6. There is no benefit in refusing short periods of temporary release to prisoners who do not pose any risk of breaching conditions of temporary release. We submit that consideration should be given to granting temporary release for significant dates in the lives of prisoners’ children.
21.7. RPAG calls on the NIPS to consider extending the temporary release schemes available to prisoners with families and in particular those with children.
22. Accommodation
22.1. We are concerned in relation to the comments in the review which indicate the possibility of regime facilities being restricted in the event of there being more than 60 Republican prisoners at Maghaberry Gaol. We submit that every effort should be made to maintain a regime level that respects international standards and that does not discriminate against separated prisoners.
23. Equality
23.1. For the reasons stated above RPAG does not have any confidence in the suggestion made in the consultation document that the issues surrounding the regime available for Republican prisoners do not engage section 75 of the Northern Ireland Act 1998. RPAG calls on the NIPS to conduct a full Equality Impact Assessment in respect of the regime in conjunction with the Equality Commission and other international and national bodies to ensure that the review is compatible with Equality provisions of national and international law.
Republican Prisoners Action Group
