Hunger Strikes in Prison: The Legal Issues Oct 2020
‘Hunger Strikes in Prison: The Legal Issues’, Conference Paper at conference, "Terence MacSwiney, Cork Men’s Gaol, and the Political Hunger Strike, 1920-2020", School of History, University College Cork, October 2020
Hunger Strikes in Prison: The Legal Issues Oct 2020
Hunger Strikes in Prison –
The Legal Issues
School of Law, University College Cork
Terence MacSwiney, Cork Men’s Gaol, and the Political
Hunger Strike, 1920-2020
School of History, UCC, October 2020
Motivations for hunger strikes
Different motivations for / causes of food
refusals in prison
• Food Refusal (FR)/ Hunger Strike (HS) as a form of
• FR/HS as a deliberate act of self-harm,
• FR/HS related to a mental illness (e.g. depression /
psychosis / eating disorders) and/or
• FR/HS as an attempt to ‘frustrate’ a prison sentence.
Right to Self-
Freedom from torture /
inhuman or degrading
Criminal law concerning suicide
Ireland – crime of suicide abolished by Criminal Law (Suicide)
Aiding and abetting suicide continues to be a crime.
Suicide is still contrary to public policy (Humphreys J. in A.B. v
In UK – crime of suicide abolished by Suicide Act 1961, but
aiding and abetting a suicide continues to be a crime
Relevant Legislation if there are
mental health or capacity issues:
• Criminal Law (Insanity) Act 2006
• Prisoners can be transferred to
Central Mental Hospital,
• Mental Health Act 2001
• Provisions in ss.56-60 apply if
detained person does not have
Photograph by Dara Mac Dónaill from Irish Times
Leigh v Gladstone, 1909
Prison governors had a duty to
preserve the health of prisoners, a duty
which extended to force feeding.
Thus, they were permitted to force-feed
hunger striking suffragettes at a time
when suicide was illegal.
Photograph By LSE Library - https://www.flickr.com/photos/lselibrary/35720938521/ , No
Secretary of State for Home
Department v Robb, 1995
• UK Case
• It was lawful for the prison authorities not to intervene if a
prisoner with capacity was on hunger strike.
• It is not suicide to refuse to consent to treatment, which then
leads to one’s death.
• Mr R. had personality disorder but had capacity
R. v Collins ex parte Brady, 2000
If a hunger striking prisoner was also
detained under the Mental Health Act and
lacked capacity, he could be force-fed.
Force feeding could be a medical
treatment within the Mental Health Act
Hunger strike was a manifestation of his
It was common ground that force feeding
was medical treatment.
Nevmerzhitsky v Ukraine, 2006
European Court of Human Rights
Mr N. did not have a psychiatric diagnosis.
Force-feeding a prisoner on hunger strike was not
a breach of the Convention, provided there was a
“medical necessity” and the method used was
The Ukrainian government did not respond to the
On the facts – there was not a medical necessity
(it was arbitrary) and the method was inhumane,
so art. 3 had been breached.
Governor of X Prison v McD. (2015)
Prisoner refusing food; had full capacity.
Prison could lawfully withhold medical and nutritional assistance.
The autonomy to choose medical treatment derives from the right to
The right to life includes a right to die with dignity.
Mr McD. had borderline Personality Disorder but not mental disorder.
Court held that Mr McD’s advance directive (a letter) was important
and ought to be respected by those with care of the person.
A.B. v C.D. (2016)
• Irish case. Not a hunger striking case.
• Prisoner had self-inflicted injury to neck.
• He was assessed as lacking capacity to refuse treatment.
• Court did not make finding on capacity.
• A prisoner in custody under a court order is not entitled to
refuse treatments where this would either directly or
ultimately put his life at risk and thereby frustrate the court’s
verdict and order.
• Prisoner cannot “cheat justice”.
• But court did not disagree with outcome in McD. as
executive had discretion – governor had chosen to
• In this case – Court granted declaration authorising the
prison to administer all medical and/or surgical treatment
that might be recommended by its medical staff in the
interests of the defendant's medical welfare.
• (referred to by Baker J. in Governor of
X Prison v McD.)
• Fasting, or going without food, for the
purposes of extracting justice or
redressing a wrong has had a long
history in Ireland and indeed it could be
said to be a particularly Irish form of
• Video on Troscud - (Kevin Flanagan,
Brehon Law Academy) :
• Mary Leigh – see Leigh v
Gladstone, referred to earlier
Unknown author, Public Domain - https://commons.wikimedia.org/wiki/File:Force-
Grace Roe and Nellie Hall – 1914
• Arthur Barnett, the clerk of Arthur Marshall, the solicitor of the Women’s
Social and Political Union, was observed passing a small packet to
• When examined, the packet was found to contain six small tablets. The
tablets caused vomiting.
• Barnett was convicted under the Prisons Act 1865 for his attempts to
smuggle in the drugs.
William Murphy - https://histprisonhealth.com/2016/12/08/the-health-of-suffragette-prisoners-force-
Prisoners (Temporary Discharge
for Ill Health) Act 1913
“The Cat and Mouse Act”
Museum of London Poster -
Events in 1974-1975
• Dolours and Marian Price force-fed in English
• Michael Gaughan died while on hunger strike
in the Isle of Wight. He had been force fed a
number of times.
• Roy Jenkins, Home Secretary, announced that
hunger strikers would no longer be force-fed
• 1975: Word Medical Association declared that
hunger strikers with capacity should not be
Photograph from independent.co.uk
H Blocks Hunger
• Force feeding was not used
• European Commission on
Human Rights involvement
• Some hunger strikers elected
• UK: Representation of the
People Act 1981 – Prisoners
could no longer be nominated