New slant on familiar battle to get prison report

AT THIS time every year I engage in what has now become a familiar ritual with the Department of Justice. I ask for a committee copy of the report of the Visiting Committee of Mountjoy Prison and it comes up with some reason for refusing to give it to.

Several years ago I instituted a legal action against the Department to oblige it to release a report of the visiting committee. Previously it claimed, illegally, that such reports were confidential. I won the action and the court obliged the Department to release it.

But every year since then the Department seeks new ways to frustrate its clear legal obligations. Two years ago the excuse was that all the visiting Committee reports were to be made available together, and as the reports from the other visiting committees would not be available until later in the year, the Mountjoy report would not be released until then. When another legal action was threatened the Department relented.

Last year, the report could not be issued until the Minister had "studied" it and God only knew when the busy Minister would get around to it. The report was released after threat of legal action.

This year, there has been a new tack. Last Wednesday week the Department said "The Department is concerned about the content from a libel point of view of people outside the Department, Legal advice is being sought from the Attorney General's office prior to publication.

I put it to the Department that this was just another excuse that, manifestly, there could not be a libel problem with it because it is protected by what is known as "qualified privilege".

The response was "The Department is not clear on how the defence of qualified privilege would arise in this situation, but, no doubt, the AG will consider this.

"The Department is not offering an excuse. The reason the report is not being published at the moment is because there may be libelous material in it and it would be wrong for a Government Department to knowingly publish such a libel. The report will be published if and when it is cleared by the AG."

They don't know about "qualified privilege" in the Department of Justice?

"Qualified privilege" is a substantial defence in some libel cases. The Defamation Act 1961, Section 24, states that the material specified in the Second Schedule is protected by "qualified privilege". And among those materials specified in the Second Schedule covered by "qualified privileged" are "a copy or fair and accurate report or summary of any notice or other matter issued for the information of the public by or on behalf of any Government Department Why, incidentally, "qualified privilege" would not also extend to the Madonna House report and the Kelly Fitzgerald report I have no idea.

But quite apart from the "qualified privilege" issue, there is nothing in the 1995 report that wasn't substantially in the 1993 and 1994 reports and since, manifestly, these did not give rise to libel actions, there is no cause for worry about the 1995 report.

In any event even if there were not qualified privilege protecting the report and even if there were substantially new material which gave rise to new imputations against individuals, what could be there that could not he shown to be true?

This is just another excuse and it is becoming dreary.

The extracts of the report published here last week, dealing with the medical services in the main prison, are, yet again, a devastating indictment of the Department of Justice. But there is even more devastating material in the report than that section. Herewith a few more choice morsels

. "In many respects the 20th century has passed Mountjoy by...

"Ireland's failure to provide separate remand facilities for prisoners' is in breach of the 1966 UN Convention on Civil and Political Rights (which requires separate remand facilities, except "in exceptional circumstances")..

. "The psychological services are totally inadequate... No long term counselling and psychotherapy can be offered on a regular basis...

. "The inadequacy of the psychiatric services in Mountjoy Prison is such that prisoner assessment is exceptionally slow. It may take up to seven days for a prisoner to be fully assessed within Mountjoy Prison."

. "According to Dr C. Smith, medical director of the Central Medical Hospital, the result of the inadequate psychiatric system also means that psychologically ill prisoners are being put into padded cells in Mountjoy for many days at a time..."

. "Drugs are a serious problem in the women's prison and it is salutary to note that many of the women prisoners who had been in Mountjoy are now dead from drugs..."

. "Mountjoy Prison, with its chronic overcrowding, unhygienic conditions and grim surroundings, has everything to contribute to and little to alleviate the stress on those who are potentially suicidal..."

. "In almost every annual report undertaken by the visiting committee to Mountjoy Prison over the last 20 years, reference has been made to the inhuman and degrading exercise of slop, ping out which still exists in the main prison.

. "The close proximity of toilets to the cells and their appalling unhygienic condition leave a great deal to be desired..

. "Certain names of officers persistently come up during these complaints [of verbal abuse and rough handling], and it is acknowledged by the authorities that with respect of these names there is likely to be substance to the prisoners' complaints. The CPT reports that the Governor of Mountjoy, with respect to inhuman treatment of prisoners, has said that he has no effective control in matters of staff discipline and that, as a result, he was unable to dispense with their services.

John Lonergan, the governor of Mountjoy, has complained bitterly about the 1995 report, especially on its estimation of the extent of drug abuse within the jail. He is right in that critique there is no reliable evidence on which the visiting committee could have made its calculations. But apart from that critique, does John Lonergan disagree with any of the main criticisms?

It is not remotely surprising that the Department's first impulse on getting this report would be to find a way of deferring its publication. No other Department is found, year in year out, to be so thoroughly incapable of managing a crucial area of its responsibilities.

The key recommendation of the Whitaker Committee 11 years ago was that "the day to day administration of the prisons should be placed by statute in the hands of a director of the Prison Service, who would be chairman and chief executive of a separate executive agency or board and be the manager responsible for the efficient functioning of the prison system".

This should now be done, if not by the Minister for Justice, then by the Government and if not by the Government by the Dail. The Dail can do things, can't it?