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27 February 1997 Edition

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Equality of treatment for the 40-year men

Since 31 January the 38 republican prisoners in Portlaoise Prison have been on a non-co-operation protest. The issue of the 40-year men is not new but one which has been simmering for many years. Mícheál MacDonncha looks at the background and the demands of the prisoners which could bring a speedy resolutiion.
 
     
  This is a political decision. There is no legal barrier to equality for the 40-year men. The minister should act now finally to resolve this issue.  
Sinn Féin Vice-President
Pat Doherty


In 1990 the mother of republican prisoner Brian McShane died. He applied for compassionate parole to attend her funeral. He was refused. Four years later the nightmare loomed again. His father was terminally ill. McShane again applied for parole. No reply to this application had been received by him when he was told the news that his father had died. No parole was granted and McShane had to mourn a second parent in the confines of Portlaoise Prison.

Events such as this effect the whole republican section of the prison. The solidarity of political prisoners is such that an injury to one is an injury to all. Over the years many efforts have been made to avoid such tragedies. A mountain of paper has accumulated in the Department of Justice, in the form of letters from the individual prisoners and their representatives, as well as submissions from the republicans collectively. But nothing has happened.

Then on 28 January this year the issue came to a head. Elizabeth McPhillips, mother of republican prisoner Pat McPhillips died on that day. He applied for compassionate parole to attend the funeral; the Governer of Portlaoise Prison recommended that the parole be granted. The Minister for Justice Nora Owen refused. Three days later on 31 January the republican prisoners began their non-co-operation protest. Bins have not been used, non-perishable rubbish has been scattered around the wing; the normal routine and relatively stable relationship between the republican prisoners and the prison authorities has been disrupted.

A silent consensus about the need for special punishment cuts across more progressive ideas about imprisonment which have brought changes to Irish prisons.
 
It is ironic that the protest is happening at a time when there has never been such debate about the prison system in the 26 Counties. The prisons have been opened to the media for the first time. RTE has just finished screening a series of documentaries on Mountjoy. Openess has been displayed by the Department of Justice - except in relation to the republican prisoners and specifically the 40-year men whose plight has led to the first major protest in Portlaoise since the mid-80s.

Last week RTE was allowed into Portlaoise but in contrast to the `Joy no prisoners were seen. Security Correspondent Tom McCaughren was allowed into the workshop where crafts are made and a cursory item was broadcast. The reason for the protest and the refusal of access to the republican landing was not explained.

When the death penalty for `ordinary' murder was abolished in the 1960s it was retained for `capital murder' which included the killing of gardai. Pressure from the gardai ensured that the ultimate penalty remained on the statute books throughout the 1970s and 1980s, even though in the handful of cases where people were convicted of `capital murder' the mandatory death sentence was commuted to life by the president on the orders of the government.

In 1990 the death penalty for `capital murder' was abolished and replaced with a 40-year sentence with normal remission of 25%. Therefore someone serving 40 years would be expected to serve 30. The four republicans at the centre of the current protest - the 40-year men - are Brian McShane, Pat McPhillips, Tommy Eccles and Peter Rogers. All were sentenced before 1990.

On parole the 1990 Act states that temporary release could be granted only in cases where there are ``grave reasons of a humanitarian nature''. But the death of Brian McShane's father that year was not regarded as sufficiently ``grave'' by the Department of Justice to grant the prisoner compassionate parole to attend the funeral.

There is no release procedure for these men in place. In 1989 the Long Sentence Review Board (LSRB) was set up to deal with life sentence prisoners (lifers) and others who had served over seven years. The 40 year men were specifically excluded from this, again in response to a strong Garda lobby. However, there is no legal bar to these men being released in exactly the same way that lifers are released at the present time.

With the exception of two lifers released during the IRA's 1994-1996 cessation (under Offences Against the State Act i.e. emergency legislation) all lifers released in the 26 Counties are released on ``continuing temporary release''. They are released under conditions of having to report to parole officers on a regular basis, technically for the rest of the released prisoner's life. A life sentence in the 26 Counties is for natural life, any release is at the discretion of the State as no lifer can receive remission. So the lack of remission is no bar to release. The 40 year men could be released on ``continuing temporary release'' in the same way that lifers are.

Similarly whenever the men sought parole an argument was sometimes used which stated that there was no legislation allowing for parole for these prisoners who had been originally sentenced to death, the sentence later being commuted by the president to 40 years without remission. This argument was nonsense as parole (or temporary release as it is officially designated) is not remission and unless specifically restricted by legislation the Minister can grant temporary release to any prisoner. As with any legal phrase this has to be interpreted each time a decision is made.

In March 1994 the Portlaoise prisoners made a detailed submission to the Department of Justice on the issue of compassionate parole and sentence reviews for the 40-year men. The prisoners described it as ``one of the major and most pressing issues on our agenda at present''. ``By taking our proposals on board we feel another progressive step will be taken towards humanising the system'' they said. Recognising the need for sensitivity, the prisoners told the Department:

``It is accepted that the men in question have been sentenced to long terms of imprisonment arising out of actions in which a member of the security forces has been killed. Nobody, least of all republicans, would seek to downplay a death such as this and the tragedy it has involved for the families concerned... We understand the suffering and loss involved.''

Five months after the prisoners made their submission the IRA cessation was announced. A changed political climate saw a number of early releases of republican prisoners. The political nature of their imprisonment was never so clear.

During the cessation two of the 40 year men in Portlaoise received temporary release on compassionate grounds. Peter Rogers was released for 24 hours to attend the funeral of his father-in-law, and Brian McShane was granted retrospective temporary release to visit the graves of the parents' whose funerals he had not been allowed to attend before the cessation. The phrase ``grave reasons of a humanitarian nature'' was interpreted by the Minister for Justice as applying for these paroles during the cessation.
     
The death of his father was not regarded as sufficiently ``grave'' by the Department of Justice to grant the prisoner compassionate parole to attend the funeral.

After the cessation the unequal treatment of the 40-year men continued. Unlike other republican prisoners they have been denied compassionate parole. This is in spite of what is known as the ``republican guarantee''. Throughout the present phase of struggle since 1969 compassionate parole has never been broken by republican prisoners. Their discipline has ensured that this unwritten contract with the authorities is kept. The Department of Justice accepts this - except in the case of the 40-year men. This is despite the fact that the republican prisoners have made clear that ``there is no difference or distinction between the prisoners on this level... It is our contention that these men should be treated in every respect like their fellow prisoners.'' (1994 submission).

So what is the obstacle to equal treatment for the 40-year men?

It is purely political. There are no legal barriers to either compassionate parole - the immmediate and central issue in the current protest - or the longer-term issue of release. Successive Ministers for Justice have been highly sensitive to the lobby from the ranks of the Garda Síochána against equal treatment for those convicted of `capital murder'. This silent consensus about the need for special punishment cuts across more progressive ideas about imprisonment which have brought changes to Irish prisons. For example the landmark Whittaker Report on prison reform said that the denial of release dates ``adds immeasurably to the penalty of imprisonment''; this was taken into account in 1989 legislation but again the 40-year men were excluded.

Addressing the political motivation for the inequality of treatment for the 40-year men, and the silent lobby behind it, the Portlaoise prisoners said in their 1994 submission:

``Any element of vengeance or retribution beyond the loss of liberty which comes with the impositioon of a prison sentence can only serve to dehumanise those involved.''

Successive Dublin governments are on record as complaining to the British for treating republican prisoners harshly and yet if the 40-year men were imprisoned in Long Kesh they would be serving life with a recommended 30 years and would receive the same release and parole facilities as all other republican prisoners.

When the republican prisoners were invited to make their submission on the 40-year men by the Department of Justice in 1994 the prisoners said it ``brought a ray of hope and light where once there was only despair and darkness''. Three years on the light has been switched off again.

This weekend the prisoners in Portlaoise will be a month on protest. The Department of Justice knows how the issue can be resolved; it is simply a matter of granting equality of treatment to the 40-year men. No republican will complain if Nora Owen finally lays this issue to rest and claims the credit.
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