Celebrity intellectuals Jean Paul Sartre, Angela Davis and Herbert Marcuse were amongst those who backed leftist calls for an international tribunal on British crimes in Ireland to be convened in London. Davis had a deep interest in the maltreatment of black American prisoners and spent eighteen months in jail prior to her June 1972 acquittal of aiding a bloody courthouse escape bid in August 1970.14 Sartre had condemned the conditions imposed on Red Army Faction (RAF) members in West Germany’s Stammheim Prison in 1974.15 Despite evoking the scorn of the politically ‘sectarian’ revolutionary left, British MPs Joan Maynard, Tom Litterick, Dick Kelly, Arthur Latham and Maureen Colquohon declared their support, as did Irish-based moderates, media, trade unionists, socialists and constitutional republicans Dr Noel Browne, Eddie McAteer, Bernadette McAliskey (nee Devlin), Matt Merrigan, John Mulcahy and Michael Mullen. Numerous additional public figures promised solidarity. Among the litany of essentially rhetorical questions posed were requests for information from the authorities in London concerning ‘allegations of abuse and assault on Irish prisoners in British, including English, jails’.16 Sinn Féin correctly interpreted this development as one of the salient ‘issues for 1978’ and expected the England dimension to be raised in Strasbourg.17
In Britain, the Government’s legal position appeared, superficially, to have been rendered more secure. Recent domestic court cases, primarily Becker v The Home Office, had confirmed that the Prison Rules were ‘regulatory’ and not subject to ‘civil claim’, even if found to have been breached.18 Prisoners effectively had no rights, merely privileges, which governors were entitled to either suspend or modify without external consultation and statutory oversight. Moreover, the High Court in London had ruled in 1977 that the adjudications of Board of Visitors were ‘separate and immune from ordinary judicial procedure and review’.19 BOVs were fundamental to the adjudication of discipline within the jails where they operated on an individual basis. They exercised responsibility for administering often significant penalties for infractions of locally observed rules. The disparity between their function and actual legal capacity was found to be in breach of Article 13 in March 1983.20
An important and unexpected development arose in the Court of Appeal in London in October 1978 relating to the suppression of the Hull Riot of 31 August–2 September 1976. Lord Justice Shaw, in R v Hull Prison Board of Visitors, ex parte St. Germain, found that BOVs performed a quasi ‘judicial role’, contrary to the sense of an earlier judgment in the High Court. As such, while BOV rulings were not subject to standard external appeal mechanisms, they were open to ‘judicial review’, during which the integrity of decision-making processes could be reassessed and outcomes potentially ‘set aside’.21 Prisoners could contest BOV punishment. The Home Secretary retrospectively, in October 1983, described the St. Germain ruling as strategically significant in that it initiated a novel process whereby ‘the [Queen’s Bench] Divisional Court [of Appeal] began, in 1978, to exercise its supervisory jurisdiction over the [prison] system’. This inspired inconveniently imaginative implications for ‘what kind of adjudications’ could reconcile ‘effective determination’ of disciplinary cases with ‘safeguards for the prisoner’. This perennial conundrum of insecure political elites informed the agenda of the Prior Report which the Home Office commissioned from the Committee on the Prison Disciplinary System. Personnel were selected in the emergency environment of May 1984. Eventual publication of the Prior Report in October 1985 followed serial acts of subversion by numerous IRA prisoners in England, as well as non-republican militants, which profoundly altered the tenor of life in the Dispersal System.22
The well-informed Home Office evidently anticipated a spate of tactical reverses. In November 1983, the Divisional Court ruled in R v Secretary of State for the Home Department and Board of Visitors of Albany Prison, ex parte Tarrant and others, that BOVs must properly consider a prisoner’s request for legal representation if they were facing serious charges. This progressive reform gravely weakened the virulent potency of both in-house Governor dictations and BOV prescribed adjudications.23 It did not go unanswered by the Prison Department of the Home Office in St. Anne’s Gate, London. Justice Webster accurately predicted in late 1983 that ‘charges of mutiny’, amongst the most detrimental to any prisoner proved guilty of the offence, could be ‘referred to the criminal courts’.24 Webster, in fact, advised that any BOV proceedings involving possibly severe repercussions for transgressors should be tried within ‘the normal criminal justice system with all the rights and protections which automatically go with such [a]process’.25
The 1985 Prior Report also recognised the complaint taken to the European Court of Human Rights (ECHR) in Strasbourg by IRA prisoners Sean Campbell and Fr Patrick Fell which was ‘adopted’ on 12 May 1982.26 Campbell and Fell had initiated their historic action in 1978, arising from the illegal manner in which they were treated during and following their assault by prison staff in Albany in September 1976.27 From January 1984, the cumulative effect of Tarrant and Campbell and Fell was that prisoners not alone received legal advice from outside lawyers but enjoyed their actual representation at adjudications if basic reasonable criteria applied. The ‘implication’ of this breakthrough for the Home Office, according to the Prior Report, encompassed nothing less than ‘the whole question of the proper limits of the disciplinary system’.28 Unwelcome judicial attention into the often secretive affairs of the Prison Department occurred in tandem with extraneous political developments which altered the physical structure of the Dispersal System during years of Conservative Party governance. The IRA inside and outside the prisons in England played a notable part in stimulating this far-reaching reconsideration between 1978 and 1985. Indeed, the Prior Report claimed: ‘In the context of the prison disciplinary system, the most important [ECHR] case … is that of Campbell and Fell’.29
The IRA had featured prominently in the strategic planning of the Prison Department since the early 1970s. Home Office writer Roy Walmsley highlighted the importance of the 8 March 1973 London explosions for contemporary prison policy-makers. The first car bomb attacks in Britain had raised the prospect of ‘future similar incidents’ and a generation of ‘new candidates for [special security] unit places’ in England. The IRA had inadvertently disrupted Home Office projections at a critical juncture and halted the abolition of the SSUs, which the influential Mountbatten Report had regarded as uncivilized in 1966.30 According to Walmsley:
It was immediately clear that Irish republican bombers, once detained and convicted, would pose a serious new threat to security, and there was real doubt as to whether they could be held safely within the dispersal