Principle at stake in prison tapes revelations is 'legal privilege'

LATE on Wednesday evening came the news that Justice Minister Alan Shatter had requested Judge Michael Reilly, Inspector of Prisons, carry out an urgent independent investigation into the announcement that conversations between 139 prisoners and their solicitors had been “inadvertently recorded” on prison phone lines since 2010.

So what is at stake?

The principle at stake in these revelations is “legal privilege” — the protection of communication between lawyer and client from disclosure without the client’s express permission. In fact it is not a “privilege” at all: it is a sacrosanct pillar of our justice system. We all have the right to seek legal advice in complete confidence and without fear of disclosure to third parties and/or risk of potential prejudice to our position. Behind the prison gates a fundamental right like legal privilege assumes even more importance. Prisons are by their nature closed and hidden away from public or media scrutiny. Prisoners, (a group already disproportionately affected by educational disadvantage and mental illness) are, by very reason of their incarceration, completely dependent on the facilities provided by the Irish Prison Service to make such calls in confidence. For prisoners with literacy difficulties access to a phone line is even more important. It is of especial significance for prisoners in Ireland who currently do not have access to an independent complaints mechanism or a Prisoner Ombudsman (an office which exists in Northern Ireland, England and Wales). When the telephone line to your lawyer is compromised, an independent complaints mechanism is not available to you and there is no Prisoner Ombudsman to turn to, there are limited avenues to justice left open for the prisoner trying to vindicate his or her rights.

Importantly, the proposed investigation into the “prison tapes” will in fact have a different legal basis to the investigation into the “Garda tapes”. In the wake of Garda tapes revelations, the Government stated that implications were “potentially of such gravity” that a statutory Commission of Investigation was warranted under the 2004 Act.

Commissions of Investigation have statutory powers to direct witnesses to attend; cross-examine on oath; direct preservation of documents; and indeed to apply to the court to ensure co-operation with the investigation, if it is not forthcoming.

The minister would be obliged to publish the commission’s final report in full unless he considers that such publication might prejudice any criminal proceedings in progress, in which case he would have to apply to a court for further directions.

In contrast, the prison tapes will be investigated by the Inspector of Prisons under s.31 of the Prisons Act 2007. Under that section, the Inspector can both enter the prison and request and obtain documents. Governors, prison officers and prison staff must “as far as reasonably practicable” comply with the inspector’s requests for information but there are no express powers under the section to compel or cross-examine witnesses. The inspector will first provide his report to the minister, who may choose to omit any matter from the report before publishing it where he is of opinion that its disclosure “may be prejudicial to the security of the prison or of the State, or that its disclosure would be contrary to the public interest, or may infringe the constitutional rights of any person”.

Let there be no doubt: the news that the investigation is expected to be concluded as soon as possible is to be warmly welcomed and there is no suggestion whatsoever that the current Inspector of Prisons will approach this investigation with anything other than complete independence, dedication and diligence within the parameters of his powers and the resources available to him. However, the powers of the Inspector to conduct such an investigation and the resources available to him are limited — much more limited than those which would apply to a Commission of Investigation. Comprehensive investigation of an apparent failure to protect fundamental rights is vital to ensure that the legitimacy (and perceived legitimacy) of detention in appropriate cases, is upheld. In practice, that means that the Inspector should be fully resourced and afforded powers of investigation commensurate with those of a Commission of Investigation.

Where enormous power differentials exist and an independent complaints mechanism is absent, accountability is lacking. The reforms suggested above would go a long way to restoring the confidence of prisoners in the system and of the public, in whose name they are run. These events have yet again underlined the need for reform of existing monitoring structures and the establishment of an oversight mechanism fully independent of both the Irish Prison Service and the Minister for Justice. If there is to be any realistic hope of restoring confidence in the system, the time has come for the Department of Justice to give such proposals very serious consideration.

* Deirdre Malone is executive director of the Irish Penal Reform Trust.