No evidence prison review will establish if torture has occurred in CSU

THE Criminal Justice Inspectorate has failed to confirm if its upcoming review will establish whether or not stays of over 15 consecutive days in our prisons' Care and Supervision Units constitute a form of torture.

The terms of reference document for this review, published earlier this month, states the review will take place following "online reports in October and November 2020 that raised concerns about the operation of the supervision units including the use of solitary confinement”.

Previously, The Detail reported on prisoners in Northern Ireland staying longer than 15 consecutive days in Care and Supervision Units (CSUs) on over 600 occasions during a three-year-period.

Following this report the Justice Minister, Naomi Long, ordered a CSU review to be undertaken by the Criminal Justice Inspectorate (CJINI).

A subsequent report questioned positions taken by the Northern Ireland Prison Service (NIPS), Minister Long and Prisoner Ombudsman Lesley Carroll – each of whom stated that staying in the CSU does not constitute solitary confinement.

When asked by The Detail, neither the minister nor the ombudsman were able to outline how the specific circumstances of detention in the CSU differ from the United Nations' (UN) definition of solitary confinement.

Meanwhile, former Prisoner Ombudsman Tom McGonigle previously told The Detail: “I know what it is. It’s solitary confinement for up to 23 hours a day.”

The UN Mandela Rules define solitary confinement as the ‘confinement of prisoners for 22 hours or more a day without meaningful human contact’.

Firsthand testimony about the CSU, provided to The Detail by a former prisoner who recently stayed in the unit in Maghaberry, fits the UN definition of solitary confinement.

The Mandela Rules state that over 15 consecutive days spent in solitary confinement is a 'prolonged' period, constituting a form of torture.

Our journalism highlighted that between November 1, 2016 and October 31, 2019, there were 611 occasions when prisoners in Northern Ireland spent 15 consecutive days or longer in CSUs.

Given this reporting preempted the CSU review being announced, The Detail asked the CJINI if it could confirm that the review will establish:

• whether or not prisoners staying in the CSU are in their cells for 22 hours or longer a day;
• the exact types of contact that prisoners have during the times they are in their cells in the CSU and whether or not any of these types of contact constitute meaningful human contact, in keeping with internationally agreed standards and
• whether or not stays of over 15 days in the CSU breach the UN Mandela Rules on prolonged solitary confinement i.e. are considered a form of torture as defined by the UN.

However, the CJINI failed to confirm that any of these issues will be addressed in the review. The review's aims, as stated on its terms of reference document, also say nothing about these matters.

The CJINI told us: “The review is at the initial evidence gathering stage and it would be inappropriate to comment on the specific detail of what this work will involve.

“As outlined in the terms of reference the review will examine current policies, practices and procedures relating to the operation of the CSUs and assess the impact on prisoner treatment, well-being and conditions.

“As part of the evidence gathering, the inspection team will review information, data, case files and records and will also speak with prisoners, stakeholders and staff."

The Detail also asked the CJINI to explain how Minister Long’s predetermination, prior to the review being called – that Northern Ireland prisons don’t hold people in solitary confinement – does not prejudice the review from the outset, given she personally announced the review and the CJINI comes under the Department of Justice's remit.

The CJINI responded by stating it is an “independent inspectorate” with an “established reputation of undertaking thorough inspections and reviews, and producing impartial evidence-based reports that are available to the public”.

We were also told that the CJINI “carries out its inspection and review work without fear or favour and makes recommendations across the criminal justice system for improvement and better services”.

The CJINI added that it will report “independently and impartially following a thorough consideration of the evidence gathered during this review” and that when finished “the review will be published”. The report is due to be published in June this year.

In partnership with the CJINI, the review is also set to be undertaken by the Regulation and Quality Improvement Authority and the Education and Training Inspectorate.

Meanwhile, the Northern Ireland Human Rights Commission (NIHRC) Chief Commissioner, Les Allamby, told The Detail his commission welcomed the review as it “is concerned at the figures for prolonged solitary confinement and the extent of its use within Northern Ireland prisons” and he referenced how “prolonged solitary confinement is a breach of international human rights standards”.

The NIHRC is a statutory body with the powers to launch investigations into prisons in Northern Ireland.

We, therefore, asked if in recent times, the NIHRC had assessed whether the NIPS is fulfilling its responsibilities with regards to international human rights expectations, for instance, the Mandela Rules.

While The Detail was informed that the commission has not done this, a spokesperson said: "All public bodies must comply with human rights law and standards in Northern Ireland."

Director of Amnesty International in Northern Ireland, Patrick Corrigan, previously told The Detail that the Justice Minister “must ensure” that the NIPS has not permitted “extended use of solitary confinement to go beyond what is necessary for the safety of prisoners and staff, and to become a breach of international human rights standards”.

He added: “Prolonged solitary confinement is cruel, but in Northern Ireland it is all too usual.”

Justice Committee

The CSU review was discussed at the Justice Committee last week. The Green Party's North Down MLA Rachel Woods asked Minister Long: "Was an instruction given to CJINI on whether stays of over 15 days would be in breach of the UN's Nelson Mandela rules? Was that part of the terms of reference or instruction given to CJINI?"

The minister responded: "The Nelson Mandela rules apply to solitary confinement. A CSU is not solitary confinement, so the rules are not a relevant consideration.

"I did not give instruction to CJINI. I asked it to inspect the CSUs and it drafted the terms of reference. I did not tell it what to include or exclude."

Sinn Féin's Linda Dillon responded: "There is some disagreement on whether a CSU is or is not solitary confinement. From the description of it that you laid out, I do not think that you would agree that it is.

"Maybe that could be addressed by the review and we could raise it with CJINI?

“It has been described by a number of organisations, particularly human rights organisations, and by a previous Prisoner Ombudsman as solitary confinement. Just so that there is clarity on that, I would appreciate an answer."

However, Minister Long remained adamant that the CSU was not solitary confinement.

She referenced how prisoners "are engaged throughout their time by others who work with them, whether they are members from the health trust or from other bodies there in support of them".

The minister added: "I spoke to officers who work in the unit. Over a period, they spend time with each prisoner in order to engage with them, find out what their needs are and ensure that, if there are issues of concern or stress, they are properly managed."

She also said that prisoners in the CSU are "constantly engaged throughout the day by prison officers and other members of the prison staff team".

Conaill McErlean was let out of Maghaberry a few months ago. During his time in Northern Ireland’s largest prison, he spent a number of days in the CSU.

Mr McErlean told The Detail that when the NIPS staff are doing the checks on people in the CSU “they don’t come into the cell, they just open the flaps, look in and walk on” and that the nursing staff “just come around to give all the meds out”.

He continued by saying that none of this constitutes “real engagement with staff”. When asked whether any of this felt like meaningful human contact he said “no”.

Previously, The Detail asked the Justice Minister if she accepted that this is consistent with what happens in the CSU and whether she believed that any of this constitutes meaningful human contact, but she did not address the specifics of these questions.

At the Justice Committee, last week, the minister also referred to an exercise area where she said prisoners can exercise or "can be taken for walks by prison officers" who can "spend time with each prisoner".

Mr McErlean, however, told us that the NIPS gives prisoners in the CSU an hour out of their cell per day “if you're lucky”.

He said: “If you don’t go because you’re not ready then you miss your chance to exercise and shower. It’s not really your choice. Sometimes you don’t even get to go out because there’s not enough time.”

The Detail asked the minister if this is an accurate account of what happens in the CSU and if she understood that prisoners in the CSU having leisure, washing, exercise or human interaction – during an hour or two when they’re out of their cells – in no way means that the UN definition of solitary confinement is not applicable to the unit.

However, again, Minister Long did not address the specifics of either of these two questions.

The three respective Independent Monitoring Boards (IMBs) for each of Northern Ireland’s prisons – Maghaberry, Magilligan and Hydebank Wood – have a role with regards to the CSUs.

IMB members, whose work is voluntary and unpaid, are drawn from the general public and ‘act as independent observers of all aspects of the prison regime’.

Previously, when The Detail reported on prisoners spending prolonged periods in CSUs, a spokesperson for the IMB said such periods of “solitary confinement” were “not acceptable”.

Ms Woods also questioned Minister Long, the Alliance Party leader, at the Justice Committee – about the role of the IMB on the review and about the potential impact of Covid-19.

She told The Detail her questions "came from a place of concern" and that the Justice Committee will be writing to the CJINI seeking clarity on these issues.

The Green Party MLA added that she looks forward "to receiving more detail in due course from CJINI".