Access To Courts
What type of cases have prisoners brought before the courts in the past?
Prisoners, in Ireland and abroad, have successfully challenged the lawfullness of their prison conditions. Where this has happened:
- prisoners have received financial compensation; or
- they’ve been granted a court order to make the prison in question change something, for example, the:
- protection regime, or
- education and training facilities.
You may consider that your rights under either the Irish Constitution or the European Convention on Human Rights have been violated. Under Irish and ECHR law, you have the right:
- for your health not to be put at risk
- to have your right to life protected
- to be free from inhuman or degrading treatment
- to a certain degree of privacy
Prisoners have brought many cases under the European Convention on Human Rights.
When deciding if a prisoner has been subjected to inhuman or degrading treatment, a court must look at all of the conditions of your detention like:
- your living accommodation
- the size of your cell
- out-of-cell time
They then decide if, all together, they are inhuman or degrading.
For example, in 2019, the Irish Supreme Court found that a prisoner's constitutional right to protection of his person was violated because of the poor prison regime he was exposed to. This involved:
- 23 hours being locked up
- an overcrowded cell
- a requirement to ‘slop out’ (emptying your human waste).
The prisoner in this case was awarded compensation. However, there are no minimum specific requirements set out in relation to prison conditions. This means each case will likely be assessed on its individual merits.
Each case is different, and it is important to seek legal advice about your own circumstances. In most circumstances, you will be able to take your case to the European Court of Human Rights only after it has gone through Irish courts or another appropriate legal process. If you still consider (after final decision) that your rights were not protected you can take your case further.
If there is a problem with my detention and I want to access the courts, how do I do so?
You can get your solicitor to bring an action for you. This could be an order to:
- release you from custody, or
- directing the Governor to change something about the conditions of your detention.
Sometimes you may be able to ask for damages (compensation) from the Irish courts.
You can bring an application for an order for your release. (This is called a ‘habeas corpus’.)
You can do this if, for example, there was:
- no legal authority for your detention, for example, if you are held in prison without a valid warrant or court order, or
- a serious breach of your rights (particularly the deliberate breach of your rights by the prison authorities), or
- a serious error in the order authorising your detention, or
- a serious error in the procedure leading to your detention.
You can make a habeas corpus application:
- by writing a letter to the President of the High Court, or
- more usually, by your solicitor bringing an application to the High Court on your behalf.
In less urgent or less extreme situations, you can apply to the High Court looking for an order directing the prison authorities to change something about your detention, like the prison in which you are held.
How do I apply for legal aid?
If you want to apply for legal aid, contact the Governor and you will get the necessary forms.
How can I get a solicitor, if I do not have one already?
If you don’t have a solicitor, you can contact the Free Legal Advice Centres listed in the contacts section of this website. Contacts Section
If you are a foreign national or have language barriers, you should be able to access an interpreter during discussions with your solicitor. You should ask for an interpreter if you are concerned that otherwise you will have substantial difficulty in communicating with your legal advisor. (Rule 38)
How do I appeal my conviction or my sentence?
If you want to appeal your conviction or sentence, you must generally appeal to a higher court to the one you were convicted in. For example, if you were convicted in the District Court, you have a right to appeal to the Circuit Court within 14 days of your sentence.
If you want to appeal your conviction or sentence, tell the Governor when you are being committed and your Class Officer will give you the relevant forms. Once you have filled in the forms, return them to your Class Officer and they will make sure that they are sent to the court immediately. You should be kept informed of the progress of your appeal.
|Courts where you were sentenced||District Court|
|Court When You Can Appeal||Circuit Court||Court of Appeal (established in 2014)|
|Time You Have To Appeal||14 days from the date of sentence||28 days from date of sentence|
|Do I have a right to appeal or do I need permission to appeal?||You have a right to appeal||You have a right to appeal|
|Is it possible to get extra time to appeal?||You can apply for extra time to appeal. The court will decide whether or not to grant your application||You can apply for extra time to appeal. The court will decide whether or not to grant your application|
What can the Appeal Court decide?
The Appeal Court can:
- dismiss the appeal,
- overturn your conviction and release you,
- overturn your conviction and order a retrial,
- overturn your conviction and decide you are guilty of some other lesser offence.
If they decide you are guilty of a lesser offence, the Appeal Court can substitute a verdict and impose a sentence which is less severe than the original one.
The Appeal Court can also:
- reduce your sentence,
- increase your sentence,
- leave the sentence as it is.
Can the Appeal Court increase my sentence?
Yes. As above, the Appeal Court can increase your sentence.
If your trial took place in the Circuit, Central Criminal or Special Criminal Court, the Director of Public Prosecutions (DPP) can also appeal your sentence if they believe that it was “unduly lenient” (too light). If the Appeal Court agrees with the DPP’s legal arguments, it can increase your sentence.
Is it possible for me to change my mind and drop my appeal?
Yes, you may apply to drop your appeal. If you decide to drop your appeal, you should complete a ‘Notice of Abandonment’ form. Your solicitor can also apply in person at the appeal hearing for permission to withdraw your appeal. The court may or may not allow you to stop your appeal.