Committee Reports > List of Committees > Joint > 2000 > Committee on Justice, Equality, Defence and Women's Rights > Report - Sub-Committee on Crime and Punishment - Alternatives to Fines and the Uses of Prison

Tuarascáil ón bhFochoiste um Choireacht agus Pionósú

den Chomhchoiste um Dhlí agus Ceart, Comhionannas, Cosaint agus Cearta na mBan ar

Mhalairtí ar Fhíneálacha agus Úsáid an Phríosúin

Report of the Sub-Committee on Crime and Punishment

of the Joint Committee on Justice, Equality, Defence and Women’s Rights on

Alternatives to Fines and the Uses of Prison

March 2000

Report of the Sub-Committee on Crime and Punishment

of the Joint Committee on Justice, Equality, Defence and Women’s Rights on

Alternatives to Fines and the Uses of Prison

Contents

Report of the Sub-Committee on Crime and Punishment

of the Joint Committee on Justice, Equality, Defence and Women’s Rights on

Alternatives to Fines and the Uses of Prison

INTRODUCTION

1.This is a time of unprecedented activity within the criminal justice system. The role and functions of the various criminal justice agencies are under review¹; a major expansion of the prison system is under way; the Crime Forum has completed its deliberations and submitted a report to the Minister; and legislation to establish a Prisons Authority on a statutory basis is in preparation. The Department of Justice, Equality and Law Reform’s strategic plan for the three years 1998-2000, which built on the two discussion documents produced in recent years by the Department – The Management of Offenders: A Five Year Plan (June 1994) and Tackling Crime (May 1997) – has meant that, more than ever before, targets have been identified and progress made in meeting them can be measured.

2.Alongside these developments certain aspects of the juvenile justice system are being reviewed², and the particular problems of drug related crime³ and sexual offending⁴ are coming under scrutiny.

3.This activity takes place at a time when the available evidence suggests that the Irish crime rate is among the lowest in Europe (see Table 1).

Table 1

Crimes recorded per 100,000 population (1996 & 1998)

[SOURCES: 1996—An Garda Síochána Annual Report 1997, page 44; 1998—International Criminal Police Organisation (INTERPOL)]

4.Although comparatively low, the crime rate has fallen in recent years. In 1996 the Gardaí measured a decline of 2 per cent⁵. This was followed by a more substantial drop of 10 per cent in 1997⁶ and a further drop of 6% in 1998.

5.Much crime is petty and involves property damage or theft rather than violence. In 1997 less than two per cent of all recorded crime fell into the Garda category ‘offences against the person’, which includes murder, wounding, rape, sexual assault, kidnapping and other serious matters. The greatest number of indictable offences fell within the categories of burglary and larceny from unattended vehicles, which between them accounted for almost half of the total. Most property offences were relatively minor. In the majority of larcenies, burglaries and robberies recorded in 1997 the value of the property taken was under £300.

6.It is undoubtedly the case that there is a relationship between the level of serious crime and the extent to which there is recourse to imprisonment. Ireland, while having one of the lowest levels of serious crime in Europe, uses prison extensively, as illustrated by the following table:

Table 2

Prison population per 100,000 recorded crimes (1996)

[SOURCE: Home Office Criminal Statistics for England and Wales 1996, page 23]

PRINCIPAL CONCLUSIONS AND RECOMMENDATIONS

Greater recourse to imprisonment is not the only way in which the problem of crime can be addressed. [paragraph 8].

Fines are much less likely to be used in Ireland than in England and Wales, in particular for indictable offences [paragraph 14].

Those without financial means are more likely to receive an immediate sentence of imprisonment than a fine [paragraph 15].

There should be a full means enquiry in every case where a financial penalty is being considered and, as a general rule, fines should be payable within one year [paragraph 17].

Widening the range of enforcement options and requiring courts to consider them all before imposing a penalty for non-payment is likely to yield results [paragraph 23].

The Courts should not be limited to imposing a term of imprisonment in the event of [paragraph 24].

Before a sanction for non-payment can be imposed, all of the available enforcement measures should be considered by the courts [paragraph 27].

A package of measures should be formulated to increase the use of fines and reduce the number of fine defaulters going to prison [paragraph 28].

The Sub-Committee is of the opinion that the number of prison places ‘required’ to protect society is to a large extent a political calculation. The Sub-Committee also believes that, despite popular belief to the contrary, imprisonment rates have a very small impact on crime rates and can be lowered significantly without exposing the public to serious risk [paragraph 33].

Statistical models should be designed to show how many prison spaces would be required under different sets of prevailing conditions, based on a detailed analysis of sentencing practice around the country as the judiciary has a crucial role in determining the size of the prison population [paragraph 45].

Ireland is in the happy situation of lagging behind other countries which have experimented with the increased use of imprisonment. The opportunity should be used to ensure that we learn from other countries’ mistakes and ‘design out’ of Irish penal policies unintended but foreseeable consequences [paragraph 48].

Future prisons should be designed to give effect to an environment which promotes an appropriate level of security and control, but holds these elements in balance with justice [paragraph 56].

For the future,

•prisons constructed should be flexible, arranged around self-contained units.

•prison regimes should be programme-driven and open to the possibilities of individual change.

•prisoners should be encouraged to take responsibility for their lives by preparing their own food, eating together and, as far as possible, looking after their own affairs [paragraph 58]

The new women’s prison embraces these ideas and new prisons for men should be designed along similar lines [paragraph 59]

The option of hostels and remand centres for those denied bail by the courts should be explored [paragraph 60]

Before building additional stock, a ‘security audit’ of existing accommodation should be underrtaken [paragraph 61].

Grendon Prison in England has operated as a therapeutic community since it opened in 1962. Grendon works successfully on a number of levels. It is a safe, controlled environment where prisoners are challenged about their offending. There is also a growing body of evidence to show that it reduces recidivism. This is particularly impressive given the difficult nature of the prisoners held there. Consideration be given to the development of similar therapeutic communities within the Irish prison system [paragraph 66]

In the interests of justice there should be clarity about how much time each prisoner will spend in custody [paragraph 69a]

Unsupervised Temporary Release should be abolished [paragraph 69b].

A structured system of early release should be introduced so that prisoners know what proportion of their sentence will be spent in custody and what proportion under supervision in the community [paragraph 69c]

The criteria for early release should be clear and prisoners should have targets to work towards [paragraph 69d]

A Parole Board should be created by statute with the power to order release rather than simply to make a recommendation to the Minister [paragraph 69e]

Early release should be conditional on criteria such as making adequate progress in treatment and having a viable resettlement plan [paragraph 69f]

The Sub-Committee recommends that the concept of ‘positive sentence management’ introduced in the Management of Offenders be developed to ensure that the needs of individual prisoners are not submerged by institutional imperatives [paragraph 70]

Positive sentence management should begin as soon as an inmate arrives in custody [paragraph 71]

A proper system of prisoner categorisation should be developed [paragraph 72]

Where segregation is considered necessary, this should be accompanied by targeted treatment programmes [paragraph 73]

A prison sentence should be seen as an opportunity to prepare offenders for their reintroduction to society [paragraph 74]

The Prisons Authority should include a head of function responsible for resettlement and rehabilitation to ensure that the sentence planning process extends beyond release [paragraph 76].

A mission statement for the Irish prison service should be developed [paragraph 78].

CONTEXT OF THIS REPORT

7.The current context of falling crime rates and widespread review of the operation of the criminal justice system presents an opportunity for reflection and planning. The climate of fear and outrage which governed responses to crime after the murders in June 1996 of journalist Veronica Guerin and Garda Jerry McCabe no longer obtains. The conditions are now in place for constructing an approach to crime and punishment which is guided by principles of effectiveness, efficiency, economy and justice.

8.The Sub-Committee is of the view that greater recourse to imprisonment is not the only way in which the problem of crime can be addressed. Other initiatives are available which either compliment current sentencing policy or, in some cases, offer more efficient alternatives. Even the best-designed modern penal system can have only a limited impact on crime rates. It is important not to overestimate the extent to which punishment, in isolation, will create safer societies. Crime rates have a great deal to do with social factors, economic trends and opportunities to offend.

9.Thus, strategies to tackle crime must be broadly based, encompassing initiatives designed to reduce the opportunities to offend (situational crime prevention); halt the development of criminality in young people (social crime prevention); and address the economic correlates of crime. Special measures may be required for persistent or high-risk offenders. The Sub-Committee proposes to consider and make recommendations in these areas in the coming months.

10.In this Report, the Sub-Committee proposes to address issues relating to the treatment of offenders in relation to which it considers that critical attention is required. The first of these involves the enforcement of financial penalties. The second relates to the use of prison and the management of prisoners. In this report, the Sub-Committee confines itself to indicating why it considers these issues to be pressing and to recommending ways in which they might be resolved.

ENFORCING FINANCIAL PENALTIES

Current situation

11.The Sub-Committee notes that in 1994 (the latest year for which figures have been published), 2,173 committals to prison were for non-payment of fines. However in reply to a parliamentary question in February, 1999, the Minister for Justice, Equality and Law Reform indicated that the number of committals to prison for this offence had declined. The trend is shown in Table 3.

Table 3

The use of prison for fine defaulters

[Source: Annual Reports on Prisons and Places of Detention]

* figures supplied in reply to Parliamentary Question

12.The Sub-Committee is of the opinion that the jailing of fine defaulters raises a number of difficult issues. First of all, these are individuals whose original offences were not serious enough to merit custody, but who went to prison anyway due to their inability or unwillingness to pay. Second, such a sanction impacts most severely on those without means, giving the impression that justice discriminates against the poor. Third, the imprisonment of large numbers of fine defaulters, albeit for short periods, exacerbates the already chronic overcrowding at the committal prisons, especially Mountjoy⁷. Fourth, the imposition of a prison term means the fine goes uncollected. Not only is revenue lost in this way but there are significant costs associated with incarceration – the average cost per prisoner per day in 1996 was £126⁸, increasing by more than 16% to aproximately £146.50 in 1998⁹. The Sub-Committee is of the opinion that such a state of affairs is neither in the interests of justice nor of sound financial management.

13.For the above reasons, financial penalties are used less frequently in Ireland than in other jurisdictions. Using information collected by the Central Statistics Office in Dublin and the Home Office in London, one can compare in aggregate terms how broadly similar categories of offence are dealt with by the lower courts (Magistrates’ Courts in England and Wales and District Courts in Ireland). It appears to the Sub-Committee (see Table 4) that fines are much less likely to be used in Ireland, in particular for indictable offences.

Table 4

Patterns in Sentencing (1996)

[Source: CSO Statistical Abstract 1997, p. 254. Home Office Criminal Statistics for England and Wales 1996, p. 163]

14.The Sub-Committee understands that those without financial means are more likely to receive an immediate sentence of imprisonment than a fine. In this context, the Sub-Committee wishes to draw attention to a study of sentencing practice in the Dublin District Court which revealed that defendants from the more deprived areas of central Dublin were 50 per cent less likely to be fined but 50 per cent more likely to be sent to prison¹⁰. Thus it appears to the Sub-Committee that the poor are doubly disadvantaged. They are more likely to be jailed than fined in the first instance, but even if fined they may end up in custody anyway in the event of non-payment.

15.The Sub-Committee is of the opinion that there is a pressing need to introduce reform in relation to the system of fines, both in the interests of justice and also with a view to relieving the pressure on prison accommodation generated by the current system

Strategic options

16.What appears to be a modest fine in the eyes of the court might be an impossible burden for someone in straitened circumstances. To ensure that fines are explicitly tailored to the defendant’s ability to pay, the Sub-Committee recommends that

(A)there should be a full means enquiry in every case where a financial penalty is being considered; and

(B)as a general rule, fines should be payable within one year.

17.Strong arguments could be made in favour of the introduction of a ‘unit’ or ‘day’ fine system to relate the penalty more precisely to the defendant’s income. Such schemes have operated in other European jurisdictions for many years¹¹. Their guiding philosophy is that fines should have ‘equal impact’. In other words, rich defendants are fined more than poor defendants who have been convicted of the same offence. However both pay the same proportion of their income so the hardship they experience is equivalent. Fines are variable but equitable.

18.A unit fine system was introduced in England and Wales in 1992¹². There were two stages to be followed before the fine could be imposed. First, the court assessed the seriousness of the offence on a scale from one to fifty units. Then, the offender’s weekly disposable income was calculated in order to ascertain the value of the unit, from a minimum of £4 to a maximum of £100. The fine was calculated by multiplying the number of units by the individual’s disposable income.

19.In other countries the value of the unit is set as a fraction of the offender’s gross annual income (say one five-hundredth or one one-thousandth). The range can be from one unit to several hundred units and sometimes no maximum unit value is specified by statute¹³.

20.When the scheme was introduced on a pilot basis in England and Wales it was reckoned to be a success. It was welcomed by magistrates, fines were perceived to be fairer and, because they had been calibrated according to the defendant’s means, there were fewer committals to prison in default. However the unit fine system was repealed seven months after its introduction in the context of a media campaign which highlighted a number of seemingly outrageous judgments, such as an individual who was fined £1,200 for throwing a crisp packet on the ground; the widely-publicised complaints of a small number of magistrates; and a major ‘toughening’ of penal policy after the murder in February 1993 of two-year-old James Bulger by two ten-year-olds.

21.Once the amount of a fine has been set, it must be collected. To allow this requires providing a range of enforcement options for courts. These could include some or all of the following:

•reviewing the level of fine, with remittance in whole or in part if there is a change in circumstances

•payment by instalments

•attachment of earnings (for those in employment)

•deduction from state benefits (for those not in employment)

•supervised payments

22.Widening the range of enforcement options and requiring courts to consider them all before imposing a penalty for non-payment is, the Sub-Committee believes, likely to yield results. For example, in 1994 in England and Wales, 24,000 people were imprisoned for defaulting on their fines¹⁴. This comprised one in four of all committals under sentence. By 1996 this had dropped to 8,500. The change was due to a High Court ruling which reinforced the statutory requirement for courts to state, before sending a defaulter to jail, why each enforcement measure had failed or not been used.

23.The Sub-Committee recommends that courts should not be limited to imposing a term of imprisonment, currently the only penalty available for defaulters, if a fine remains unpaid after a full means enquiry and a comprehensive attempt at enforcement

24.The range of sanctions could, for example, include:

•curfew

•community service

•suspended committal

•immediate imprisonment

25.All of the above involve different degrees of restriction on liberty and would, the Sub-Committee believes, allow a more flexible (and proportionate) response by the courts.

26.The Sub-Committee recommends that, before a sanction can be imposed, all of the available enforcement measures should be considered by the courts.

Summary

27.The Sub-Committee recommends the formulation of a package of measures to increase the use of fines and reduce the number of fine defaulters going to prison, to include

•a structured means enquiry in every case;

•the introduction of a day fine system;

•a wide range of enforcement options for the courts; and

•a selection of penalties which could be invoked in cases of non-payment.

The Use of Prison

Current situation

28.Ireland has a small prison population but a high turnover of prisoners. This is explained by factors such as the large number of short sentences imposed by the courts, the brief duration of many remands in custody, and the ‘revolving door’ caused by the use of temporary release. On the other hand, sentence lengths seem to be increasing for serious offences. This will lead in coming years to a build up in the long-term prisoner population.

29.Most prisoners are held in closed conditions and their time is loosely structured. There is uncertainty about how much of their sentence prisoners will actually serve. Rehabilitative services are limited and physical conditions are poor, although a substantial programme of refurbishment and rebuilding is underway. For the most part, prisoners are marking time rather than using it productively.

30.Very little has been written about the Irish prison system. In other countries valuable insights can be gained from sources as varied as the autobiographies of former prisoners, memoirs of governors and retired civil servants, and the findings of empirical research. In Ireland such sources are not available. There is no university department of criminology and few accounts of prison life based on the experiences of prisoners or officials. To make matters worse, the official statistics are published several years in arrears. The absence of such basic data places policymakers in the invidious position of having to make important strategic decisions without the benefit of informed debate. That having been said, the Sub-Committee notes that the research budget for the Department of Justice, Equality and Law Reform has been increased in each of the last the last two years and acknowledges and welcomes this as a positive development.

31.Prison has some value as a deterrent in the sense that people do not become involved in crime for fear of the consequences. It is also a factor in offenders’ decisions to desist from criminal activity. However the deterrent power of prison (and punishment more generally) is often overestimated. Hard questions must be asked about what functions the prison is expected to discharge on behalf of society; its position with regard to non-custodial penalties; and the extent to which the experience of prison can be rendered positive, or at the very least neutral. In many ways what is required is a fundamental reappraisal of the role of the prison.

Strategic options

Finding a balance between prison and other punishments

32.There is no such thing as the ‘correct’ level of imprisonment. The Sub-Committee is of the opinion that the number of prison places ‘required’ to protect society is to a large extent a political calculation. The Sub-Committee also believes that, despite popular belief to the contrary, imprisonment rates have a very small impact on crime rates and can be lowered significantly without exposing the public to serious risk¹⁵. There is little substance to what might be called the ‘hydraulic theory’ that as sentences go up, crime goes down. The former head of the Home Office Research and Planning Unit in London measured the strength of the association between rates of crime and imprisonment¹⁶. He found that to achieve a one per cent reduction in the rate of recorded crime would require a 25 per cent increase in the size of the prison population.

33.This means that if widespread use of incarceration becomes the primary strategy for crime control, there will be little impact on the overall level of crime¹⁷. The Sub-Committee stresses that this is not to say that there is no need for prisons. There are some categories of offence which are so serious that they should be marked with a prison sentence and there are some individuals who present such a risk to society that they must be held in secure conditions until they are safe to release. However, there is little doubt that the extent to which we use prison to respond to crime is largely a political decision¹⁸.

34.The size of the prison population is driven by the level of crime, the conviction rate, sentencing practice and the wider legislative context. It is also influenced by public disquiet about crime (often based on lack of understanding¹⁹) and the political response that this fear evokes. In theory it would be possible to set an upper limit to the prison population and to deal with occasional surges in demand by way of adjusting the flow of prisoners into custody or the rate of release, rather than increasing the stock of available prison places.

35.At present the balance of resources is skewed heavily towards prisons. Prison should be seen in the context of the wider penal system, of which it is but one essential part. Punishment in the community should be the norm, with prison as an alternative to be used sparingly and only in exceptional cases. Most Irish prisoners receive short sentences, which suggests to the Sub-Committee that they could be dealt with by way of rigorous and meaningful community sanctions. (In 1994, almost half of all adults sent to prison received sentences of less than three months and in three quarters of all cases the sentence was less than one year²⁰).

36.It is possible that prison is widely used because there is an insufficient range of alternative penalties which are attractive to the courts and perceived as tough and effective by the public. Under these circumstances it is difficult to establish the right emphasis to place on prison. The true demand for prison will only emerge when a proper range of alternatives is in place²¹. There is a growing international interest in restorative justice as an alternative model of dealing with offenders. For a discussion, see Bowen and Consedine (1999), Restorative justice: contemporary themes and practice.

37.Prison has little deterrent value, poor rehabilitative potential, and is enormously expensive. It is stigmatising, disrupts the offender’s ties with family, employer and community and can confirm individuals in their criminal careers. It could be described as “an expensive way of making damaged people worse”²².

38.There is little evidence that a high use of imprisonment makes society safer or people less fearful. At best it provides a temporary measure of protection through incapacitation. Short terms of imprisonment are particularly unsatisfactory as they do not even allow time for prisoners to take advantage of educational or other programmes that might be on offer within an institution.

39.While the international trend in recent times has been towards increased incarceration, the Sub-Committee is of the opinion that this is not the only way in which to proceed. In the late 1960s, West Germany was in a similar predicament to Ireland today. Frequent use was being made of short periods of imprisonment but there was a growing realisation that this type of penalty was an expensive failure²³. As a result, in 1970 the German legislature amended its penal code so that sentences of less than six months could only be imposed under exceptional circumstances.

40.This simple legislative change had a sudden and dramatic impact. In 1968 184,000 short sentences were handed down by the courts. In 1970, after the introduction of the new law, there were 56,000. By 1989 this had dwindled a little further to 48,000. A different way of looking at this is to consider the proportionate use of custody – that is, the fraction of all convictions which led to a prison sentence. In 1968 one in four offenders convicted in German courts received a sentence of immediate imprisonment. By 1989 this had dropped to one in twenty. These changes took place in the context of a growing crime rate²⁴.

41.Another country which tackled the bias towards prison is Finland, where a consensus emerged that the country’s high rate of imprisonment was a disgrace by international standards and could be reduced without significantly exacerbating the crime situation²⁵. Article 6 of the 1976 Penal Code enshrined proportionality as the primary rationale for sentencing. Since the adoption of this statute, sanctioning levels have fallen significantly. Between 1976 and 1992 the incarceration rate fell by 40 per cent.“

42.In Finland the use of prison dropped precipitously even though the crime rate was increasing and the gravity of offences had not changed. The imprisonment rate declined because policy makers decided that it should decline.

43.It would be possible to decide an acceptable level of incarceration and then to place a legally enforceable cap on the number of inmates in each institution (based on single cell occupancy). If prisons filled to capacity, a combination of the following strategies could be employed:

•Weekend prison (a custody option for those in employment);

•Waiting lists (individuals sent to prison in turn as spaces become available);

•Home detention (possibly enforced by electronic monitoring);

•Increased remission (for example, from 25 per cent to 33 per cent for all prisoners)

•Supervised temporary release for categories of prisoner currently ineligible

•Parole (replacement of sentence review group with a parole board)

Establishing the demand for additional prison places

44.Given that the principle of restraint in the use of custody is well established, the provision of extra cells requires strong justification. The Sub-Committee recommends that statistical models be designed to show how many prison spaces would be required under different sets of prevailing conditions, based on a detailed analysis of sentencing practice around the country as the judiciary has a crucial role in determining the size of the prison population. Although such models are not available, the Department of Justice, Equality and Law Reform has produced several estimates of the number of additional prison cells required. These are shown next.

45.Part of the reason for a tenfold increase in the scale of the prison building programme over a four year period when the level of crime fell steeply, lies with the desire to eradicate overcrowding. The Sub-Committee welcomes this commitment to modern uncrowded prisons. However, it is a matter of concern to the Sub-Committee that new estimates were produced despite the lack of data to show that the old ones were adrift.

46.The current plan to provide 2,000 additional places will entail massive capital costs²⁶. If the unit cost per prisoner place remains the same the annual running costs will be around £92m²⁷. Over the next ten years this will amount to more than £1bn in today’s money. This is a heavy commitment of national resources.

47.Ireland is in the happy situation of lagging behind other countries which have experimented with the increased use of imprisonment. The Sub-Committee recommends that the opportunity should be used to ensure that we learn from other countries’ mistakes and ‘design out’ of Irish penal policies unintended but foreseeable consequences.

48.The experiment with increased incarceration has had shocking results. For example, in 1996 the United States, which has led the world in the rush to incarcerate, held 1.7 million of its citizens in prison (compared with 500,000 in 1980)²⁸. The American enthusiasm for locking people up has taken a savage financial toll. An analysis carried out in California showed that for every 1,000 bed prison built, the state lost 8,800 teachers; 90,000 children were deprived of the opportunity of intensive educational support in what are known as Head Start programmes; and 57,000 families could not be lifted out of poverty²⁹.

49.The scale of prison building is obviously greater in the USA but the parallels are clear: money spent on prisons must lead to cutbacks in other areas. Often, these cutbacks affect the kind of social expenditure that has a role in preventing crime. In other words, if more prisons are built the conditions for more crime are created.

50.The British government has also realised the consequences of the Conservative Party’s ‘prison works’ agenda. The prison population in England and Wales has risen from 40,600 at the end of 1992 to over 65,000 and is expected to climb above 82,000 within the next seven years. It is proving extremely difficult to reverse this upward spiral³⁰.

51.If there is one lesson to be learned from the experience overseas it is not to embark on a prison building programme without appreciating the huge financial and social costs which will inevitably accompany it³¹.

Exploring the ideas about prison regimes which underlie the design of new prisons

52.As well as a sound statistical basis for the prison building programme being desirable, the Sub-Committee believes that it is important to consider the suitability of sites for new prisons. Modern penological thought stresses the importance of maintaining prisoners’ family ties. To enable this, they should be kept in prisons close to home, and if custody is to be a potentially positive experience, then institutions must be small in scale. It would seem that the current programme of expansion contravenes both of these principles. Large prisons are being constructed in parts of the country (e.g. Castlerea and Portlaoise) where there is no local demand for them. It is possible that the locations of these new developments are based on factors associated with administrative convenience rather than good penal practice.

53.Security considerations are accorded over-riding importance in the design of new prisons. There is no doubt that the first priority of any prison service must be to prevent escapes. However, security is only one element of prison design. The Sub-Committee is of the opinion that it is important to look beyond locks and bars to the development of relationships between staff and inmates which are based on mutual respect and understanding.

54.In April 1990 a riot broke out at Strangeways prison in Manchester and was quickly followed by disturbances in twenty other institutions across England. Lord Justice Woolf investigated the causes of this major breakdown in order and his formidable report was published the following year³². The central finding was that the stability of a prison system depends on the balance between security, control and justice. These elements were defined in the following terms:

“‘Security’ refers to the obligations of the Prison Service to prevent prisoners escaping. ‘Control’ deals with the obligation of the Prison Service to prevent prisoners being disruptive. ‘Justice’ refers to the obligation of the Prison Service to treat prisoners with humanity and fairness, and to prepare them for their return to the community, in a way which makes it less likely that they will re-offend”. (Para 9.20 Woolf Report)

55.The Sub-Committee recommends that future prisons should be designed to give effect to an environment which promotes an appropriate level of security and control, but holds these elements in balance with justice. The type of regime and the philosophy underpinning imprisonment should be clearly worked out before the first block is put in place. Prison buildings should be the articulation, in bricks and mortar, of a coherent penal philosophy. They should embody the minimum standards set out by the Council of Europe in its Prison Rules and honour our international human rights obligations.

56.At a very basic level, if prison regimes are to uphold human rights and offer opportunities for change they must be clean and hygienic. The Sub-Committee welcomes the fact that the current building programme will make good conditions a reality for many prisoners.

57.The Sub-Committee recommends that, for the future,

(A)prisons constructed should be flexible, arranged around self-contained units.

(B)Regimes should be programme-driven and open to the possibilities of individual change.

(C)Prisoners should be encouraged to take responsibility for their lives by preparing their own food, eating together and, as far as possible, looking after their own affairs.

58.The new women’s prison embraces these ideas and the Sub-Committee recommends that new prisons for men should be designed along similar lines.

59.Many prisoners are held in conditions which are unnecessarily secure, given the nature of the crimes they have committed, their escape potential, and the threat they would pose to public safety should they escape. A greater priority should be given to matching prisoners to appropriate institutions. A “one size fits all philosophy” is not appropriate. There is a need for different mixes of restriction and supervision. The Sub-Committee recommends that the option of hostels and remand centres for those denied bail by the courts should be explored.

60.The Sub-Committee recommends that, before building additional stock, a ‘security audit’ of existing accommodation should be undertaken. It may be that what is needed is an increase in open or semi-open facilities. The open centres do not have a clearly defined role and are underutilised. Even with the incentive of 50 per cent remission, prisoners are reluctant to go to them. They could be an integral part of a prisoner’s sentence and an important staging point on the way back to society.

Devising prison regimes which tackle offending

61.Accepting that highly secure custody is necessary in a small number of cases, the Sub-Committee is of the opinion that such periods of confinement must provide genuine opportunities for change. Therapeutic facilities at present are severely limited. The prison psychology service is over-stretched. In the opening paragraph of its annual report for 1996, the Service described the small number of personnel available to it – six psychologists based in Dublin – and stated that: “…the task of providing a comprehensive psychological service to the prison system with such limited resources is impossible”.

62.Medical and psychiatric services have come in for harsh criticism from individual prisoners, visiting committees and international human rights groups such as the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. It is difficult to know how problems identified by these parties were actually dealt with as annual reports of the Director of Prison Medical Services have not, in the past, been published. Such lack of information makes evaluation difficult and may generate concerns which are without foundation. In this regard, the Sub-Committee welcomes the fact that, in future years the annual report of the Director will to be published. The Sub-Committee also welcomes the publication, at the request of the Government, of the Report of the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) of its second visit to Ireland and of the Government’s response to that report. The Sub-Committee trusts that this greater openness and transparency will serve to stimulate a culture of critical enquiry, evaluation, openness and review.

63.It is fair to say that an ethos of treatment does not pervade Irish prisons, as indicated by the fact that the ratio of psychologists to prisoners currently stands at 1:500. Despite the complex psychological and medical needs of prisoners we spend far less than other European countries on prison health care and few specialist staff are employed³³.

64.To remedy this situation requires the provision of a range of programmes for sex offenders, drug users, violent offenders and others with special needs in addition to enhanced opportunities for education, work and training. As well as discrete programmes there is a need to promote the idea of therapeutic communities within institutions or even the establishment of a therapeutic prison.

65.Grendon Prison in England has operated as a therapeutic community since it opened in 1962. Grendon works successfully on a number of levels. It is a safe, controlled environment where prisoners are challenged about their offending. There is also a growing body of evidence to show that it reduces recidivism³⁴. This is particularly impressive given the difficult nature of the prisoners held there. The Sub-Committee recommends that consideration be given to the development of similar therapeutic communities within the Irish prison system. In this context, the Sub-Committee notes that a review of the prison psychology service is currently under way and trusts that this will result in a significant increase in resources and in the services available to prisoners as a consequence.

Sentence planning

66.One mechanism for controlling the size of the prison population is early release. At present the system of temporary release (TR) brings the system into disrepute as it means that for short sentence prisoners, there is a poor correlation between the sentence of the court and the time actually served. This is unjust and makes sentence planning unreasonably difficult. TR is usually unsupervised, so what could be a useful way of re-introducing a prisoner to society functions as little more than a safety valve to keep overcrowding within limits. It is unplanned and reactive.

67.For long-sentence prisoners and lifers the situation is also unsatisfactory. After serving seven years such individuals may apply to have the administration of their sentence considered by the Sentence Review Group. However the SRG cannot direct release. It is limited to making recommendations to the Minister, with whom the final decision resides in every case. There are no explicit criteria towards which prisoners can work to maximise the chances of a successful review. Some categories of prisoner (sex offenders) are denied any early release whatsoever. They are held until the end point of their sentence (less remission) and then discharged, unsupervised and unsupported, back into the community³⁵. In this regard, the Sub-Committee welcomes the publication of the Sex Offenders Bill, 2000.

68.The Sub-Committee is of the view that this situation is unacceptable and makes the following recommendations:

(A)In the interests of justice there should be clarity about how much time each prisoner will spend in custody.

(B)Unsupervised Temporary Release should be abolished.

(C)A structured system of early release should be introduced so that prisoners know what proportion of their sentence will be spent in custody and what proportion under supervision in the community.

(D)The criteria for early release should be clear and prisoners should have targets to work towards.

(E)A Parole Board should be created by statute with the power to order release rather than simply to make a recommendation to the Minister.

(F)Early release should be conditional on criteria such as making adequate progress in treatment and having a viable resettlement plan.

69.The concept of ‘positive sentence management’ was introduced in the Management of Offenders. The Sub-Committee recommends that it be developed to ensure that the needs of individual prisoners are not submerged by institutional imperatives. A policy of sentence management would require individually tailored programmes, regular reviews, an emphasis on personal responsibility, and agreed short- and long-term targets. It would enhance the role of prison staff, involving them in observation and close work with inmates. If such a policy is to work it will require a redefinition of the traditional staff-inmate relationship with implications for the nature and duration of staff training

70.The Sub-Committee recommends that positive sentence management should begin as soon as an inmate arrives in custody. In general terms, a period of induction should be followed by assessment and allocation to a suitably secure institution. A contract should be drawn up to indicate what the prison expected of the individual and what they might reasonably expect in return. Every element of a sentence should have meaning. Time should be planned and purposeful and seen as a series of stages, with more responsibility returned to prisoners, and more expected of them, as they work through their sentence.

71.As things stand, remand and sentenced prisoners are held together; young offenders are kept in the same institutions as adults; and those serving long sentences for violent crime may be housed alongside fine-defaulters. None of this is in the interests of promoting law-abiding behaviour. Prison regimes must be designed to cater for the differential needs of these vastly different categories of prisoner. The Sub-Committee recommends the development of a proper system of prisoner categorisation.

72.Some categories of offender are already segregated (for example sex offenders). This is said to be for their protection. However, concentration has the serious disadvantage of creating an environment where distorted ways of thinking about crime, such as denial and victim blame, might be reinforced rather than challenged. It is crucial to prevent such a culture emerging by developing an ethos based on tackling offending behaviour. Such an approach should be rooted in a wider effort to promote positive regimes across the system. The Sub-Committee recommends that segregation is accompanied by targeted treatment programmes.

73.The Sub-Committee is of the opinion that a prison sentence should be seen as an opportunity to prepare offenders for their reintroduction to society, a period before normal life is resumed. It is important to build links between institutional and community programmes so that there is continuity in services and treatment following release. The concepts of throughcare and resettlement are very important. The management and treatment of sex offenders is a case in point. At present, they benefit from no TR and no early release. It would be preferable if supervised early release was an option for those who responded well to treatment and satisfied a risk assessment. This is in the interests of community protection, as ex-offenders could be supported and kept under surveillance as they returned to normal life.

74.The same is true for drug users, many of whom serve numerous short sentences during their chaotic criminal careers. Prison may lead to stabilisation and detoxification. These gains are soon lost after release if prisoners are discharged, unprepared, into an unchanged environment. To help ex-prisoners live within the law, it is crucial to ensure that any improvements within prison are sustained after release. The Department of Justice, Equality and Law Reform’s draft action plan on drug misuse and drug treatment in the prison system, sets out a timetable for a more comprehensive drug treatment programme.

75.One way of ensuring that the sentence planning process extends beyond release would be to appoint a senior officer with responsibility for Resettlement and Rehabilitation. The Sub-Committee recommends that the Prisons Authority should include a head of function to cover this area of activity.

A mission statement for prisons

76.The Sub-Committee considers that the establishment of a Prisons Authority provides an opportunity to consider a number of key questions concerning the structure and administration of prisons. Agreement on aims and objectives is a prerequisite for developing a coherent strategy and a set of policies to give effect to it. At present penal practice is driven by immediate operational concerns, rather than a clear sense of direction. There needs to be a central vision and strong leadership.

77.The Sub-Committee is of the opinion that it is time to develop a mission statement for the Irish prison service. This should set out the values which underpin the use of custody and inspire those working within the system with a sense of common purpose. At the very least we need to ensure that prison has a null effect — in other words that prisoners are no worse after their release than before they were incarcerated. The scale of imprisonment in Ireland is such that there is an opportunity to lead the way in innovative and effective penal practice, rather than copying failed models from other jurisdictions.

78.A key feature of the Prisons Authority is that decision-making in relation to matters of administration has been delegated to enable Ministers free themselves from day-to-day matters and concentrate on strategic planning and the formulation and review of policy. Such a development has presented an opportunity for clarification of the mechanisms of accountability within the penal system.

79.This presents the opportunity for a radical re-think of the purposes of imprisonment, and enable a dialogue on the values that should underpin the use of custody. This could provide an opportunity to define the vision and goals appropriate for a modern prison service.

80.The prison system is poorly monitored. It must be opened to independent scrutiny. To achieve this involves a redefinition of the work of Visiting Committees and the appointment of a prisons inspector. There have been regular calls down the years for an independent inspector of prisons. Such an office could be filled on a part-time or full-time basis. The key is that it must be independent, properly resourced and have the powers to make recommendations and publish reports.

Summary

81.One approach to prison overcrowding is to build more prisons. However there are other options. The flow of prisoners into custody could be adjusted by changing the way fine defaulters are dealt with and substituting community punishments for short prison sentences. The flow of prisoners out of the system could be controlled using supervised and planned temporary release, remission and parole. Occasional surges in demand could be responded to by way of weekend prison or the addition of a convicted individual’s name to a waiting list. These techniques would have swift and predictable effects on prison populations. They would be much less of a burden on the public purse than building and maintaining additional prisons. A stable prison population will enable sentence planning and better structuring of prisoners’ time. It will allow space for reflection about the aims of imprisonment and the development of a sense of purpose. In turn this will reduce the risk of re-offending and contribute to the creation of a safer society.

82.The Sub-Committee recommends that these options be more fully explored.

16 February, 2000

(Signed) Jim Higgins, T.D.,

Chairman of the Sub-Committee

¹ The future shape of the administration of the courts is outlined in the reports of the Working Group on a Courts Commission. An independent prisons authority with responsibility for the day-to-day management of the prison service has been established. A final report on the establishment of an independent Probation and Welfare Agency is imminent. An Garda Síochána is reviewing its efficiency and effectiveness within the context of the Strategic Management Initiative. The first report of the review group is expected to go to Government shortly.

² A Children Bill is likely to propose the radical overhaul of many elements of youth justice. A Working Group has been set up to consider why there, “appears to be an increase in the numbers of children coming before the courts”.

³ The Criminal Justice Act 1999 provides for mandatory minimum ten year prison sentences for possession of drugs valued at more than £10,000. The Minister for Justice, Equality and Law Reform introduced specialist Drugs Courts on a pilot basis in 1999. A Planning Committee, of all the interested agencies, was set up on the 9th February, 1999. Their report is expected shortly.

⁴ The law on sexual offences is under review and the desirability of a ‘paedophile register’ is being debated. Government approval was given for drafting the 1st Bill in June and it is hoped to have this legislation enacted by the end of the year. Procedural changes in the management of rape cases including the possibility of separate representation for victims have been highlighted in a joint study by Trinity College and the Rape Crisis Centre.

⁵ An Garda Síochána Annual Report 1996, page 29.

⁶ An Garda Síochána Annual Report 1997, page 44.

⁷ The short duration of time in custody for many fine defaulters means that on any given day they represent only 1 or 2 per cent of the prison population.

⁸ Report of Prison Service Operating Cost Review Group, 1997, p. 67.

⁹ Figure supplied by Department of Justice, Equality and Law Reform. Information for 1999 not yet available.

¹⁰ I. Bacik et al. “Crime and poverty in Dublin”, Irish Criminal Law Journal, 1997, p.124.

¹¹ For an overview see, for example, Law Reform Commission (1991: section 3 and 4) The Indexation of Fines

¹² Criminal Justice Act 1991, s. 18.

¹³ S. Shaw “Monetary penalties and imprisonment: the realistic alternatives”. In: P. Carlen and D. Cook (eds) Paying for Crime, 1989.

¹⁴ D. Moxon and C. Whittaker, Imprisonment for Fine Default. Home Office Research Findings No. 35, 1996. Enforcing Financial penalties, Home Office Research Study No. 165, 1997.

¹⁵ In 1983 Sweden instituted new rules, requiring mandatory release on parole for most inmates after they had served half of their sentence. The prison population fell by 13 per cent in the space of one year, yet the impact on crime rates was marginal (T. Mathiesen, “The argument against building more prisons”. In: J. Muncie and R. Sparks (eds) Imprisonment: European Perspectives, 1991.)

¹⁶ R. Tarling, Analysing Offending: Data, Models and Interpretations, 1993.

¹⁷ In a study carried out on behalf of the Department of Justice by Dr. Paul O’Mahony, published in June, 1997, in a sample of prisoners in Mountjoy Prison, 77% had spent some time in St. Patrick’s Institution for Juvenile Offenders. A majority had also spent some time in an Irish Open Prison. One in three felt it was quite likely or very likely that they would return to prison at some stage in the future. The annual statistics of Prisons and Places of Detention (1994) show that 57 per cent of those committed to prison in 1994 had served a previous prison sentence.

¹⁸ For example, the prison population in England and Wales surged when the government of the day advocated the principle that ‘prison works’ and promoted a philosophy of ‘understanding less and condemning more’. In an extraordinary reversal of years of penal policy, Home Secretary Michael Howard announced that, “We shall no longer judge the success of our system of justice by a fall in the prison population” (M. Cavadino and J. Dignan, The Penal System, 1997, p. 297).

¹⁹ For a comprehensive account of the public’s poor understanding of sentencing practice see: Attitudes to Punishment, Home Office Research Study No. 179, 1998.

²⁰ Annual Report on Prisons and Places of Detention 1994, Tables 7A and 7B.

²¹ For a review of alternatives to prison, see for example Home Affairs Committee (1998), Alternatives to prison sentences.

²² quotation is from a lecture by Brendan O’Friel based on a British Government White Paper of 1990 which said that prison was an expensive way of making bad people worse

²³ T. Weigend, “Germany reduces use of prison sentences”. In: M. Tonry and K. Hatlestad (eds) Sentencing Reform in Overcrowded Times, 1997.

²⁴ It must be said that although the flow of prisoners through the system was curtailed substantially, the impact on the average daily prison population was much less dramatic. This was due to a growing tendency to impose longer sentences on offenders convicted of serious crimes.

²⁵ S. Proband, “Success in Finland in reducing prison use” In: M. Tonry and K. Hatlestad (eds) Sentencing Reform in Overcrowded Times,1997. See also Andrew Ashworth’s chapter in Von Hirsch and Ashworth (1992: page 285 ff), Principled sentencing.

²⁶ In the Management of Offenders the capital cost per place was put at £110,000 (p.29).

²⁷ The costs of imprisonment are disproportionately high in Ireland. This is because many prisoners are held in conditions of excessive security; there is an unusually high ratio of prison officers to prisoners; work rosters are inflexible; and there is a deeply entrenched culture of overtime working. In 1997 one prison officer received £38,000 in overtime payments alone.

²⁸ S. Donziger (ed) The Real War on Crime, 1996, p. 34.

²⁹ H. Hoelter “Lessons learned from America: Stopping the incarceration binge”. Lecture in Trinity College Dublin, February 1998.

³⁰ In a report published in July 1998 by the House of Commons Home Affairs Committee, the urgent need to tackle the emphasis on prison is spelled out in some detail.

³¹ If the proposed programme goes ahead, the design capacity of the Irish prison system will almost double. The increase in the number of prisoners will be less marked when additional places come on stream if they are used to give effect to a policy of one prisoner per cell.

³² H. Woolf and S. Tumim, Prison Disturbances, 1991.

³³ In Ireland 1 per cent of the prison budget is spent on health care. This compares with 6 per cent in England and Wales and 9 per cent in Scotland (K. Tomasevski, Prison Health: International Standards and National Practices in Europe, 1992).

³⁴ M. Newton “Changes in measures of personality, hostility and locus of control during residence in a prison therapeutic community”. Legal and Criminological Psychology, 1998, 209-223. B. Dolan (ed), “Therapeutic communities for offenders”. Special Issue of Therapeutic Communities, 1994.

³⁵ Another factor that complicates the calculation of release dates is the issue of court-ordered reviews. Judges may build a review date into a long prison sentence and make early release conditional on a satisfactory review.