Barry v Governor of Midlands Prison

JudgeMs. Justice Faherty
Judgment Date11 May 2018
Neutral Citation[2018] IEHC 279
Docket Number[2017 No. 7 J.R. P.]
CourtHigh Court
Date11 May 2018

[2018] IEHC 279



Faherty J.

[2017 No. 7 J.R. P.]




Constitution – Arts. 40.3.1 and 40.3.2 of the Constitution – Medical illness – Supply of essential items – Executive discretion

Facts: The applicant sought an order of mandamus for directing the respondents to return to the applicant his medically required duvets and large towels; and install a toilet/shower curtain and/or door in the toilet/shower section of the applicant's cell. The applicant contended that the removal of the shower/toilet curtains from the cells was a clear breach of his and all the inmates' rights under arts. 40.3.1 and 40.3.2 of the Constitution.

Ms. Justice Faherty denied the relief sought by the applicant. The Court held that the applicant had failed to show that the removal of the shower screen and extra duvets by the first respondent was arbitrary and capricious. The Court observed that due deference must be afforded to the first respondent in the management of the prison, particularly in regard to the exercise of her discretion as to how she addressed issues such as the observation of prisoners for the purposes of preventing against self-harm, and the health and safety issues which governed the prohibition of excess bedding and towels, save in exceptional circumstances.

JUDGMENT of Ms. Justice Faherty delivered on the 11th day of May, 2018

By order of O'Hanlon J. on 15th December, 2017, the applicant was granted leave to apply for judicial review for, inter alia, an order of mandamus directing that the respondents:-

(a) return to the applicant his medically required duvets;

(b) return his medically required large towels; and

(c) install a toilet/shower curtain and/or door in the toilet/shower section of the applicant's cell.


The background to the within proceedings is as follows: The applicant is detained in the Midland's Prison. On 7th November, 2017, at approximately 2:15pm, a routine operational search of G Division, which included the applicant's cell, was commenced. The purpose of this search was to recover contraband, prohibited articles and any excess bedding and/or laundry materials. According to the respondents, this type of search occurs at regular intervals in the Midland's Prison. On the day in question, the three landings of G Division were searched by prison staff including all cells, sluice rooms, recreation and communal areas. A substantial amount of excess bedding, towels and mattresses was removed from G Division including items removed from the applicant's cell, namely, two duvets, two shower/bath towels and a makeshift privacy screen which covered the shower/toilet area in the applicant's cell. The applicant retained one duvet (and duvet cover), one sheet and one shower/bath towel.

The case made by the applicant for the mandatory relief sought in the within proceedings


In his statement of grounds, the applicant set out the reason he had three duvets. He asserts that in or around 2014 he attended the then Midland Prison's doctor, Dr. McFadden, and informed her that he was awaiting a double hip replacement and that he had severe back pain due to an arthritic pelvis. He asserts that Dr. McFadden instructed prison staff to provide him with an extra mattress and two extra duvets for him to lie on at night. An extra mattress was given to the applicant along with two extra soft duvets. According to the applicant, this made the world of difference to his sleeping pattern. Since the removal of the extra duvets, he now has only the double mattress and a sheet to lie on.


The applicant also asserts that when he was provided with his single cell in July 2016, there was a already in situ a makeshift but functional and sufficient shower curtain. This provided privacy for him from prison officers who check on inmates randomly via the observation hatch located in the cell door. The shower curtain not only provided privacy when showering but also when the applicant was using the cell toilet. This was of particular relevance to the applicant. He asserts that he is a registered disabled person, suffering from a debilitating, very personal and often embarrassing illness – Crohn's Disease. He asserts that the first named respondent was aware of his illness from previous correspondence from him and his solicitor. He states that because of his illness, he has to use the toilet much more often because of his severe and serious symptoms in terms of bowel dysfunction. He also uses toilet facilities for the application of medication which he lists in his statement of grounds.


The applicant asserts that on the day of the search, when the cells re-opened, he inquired of other inmates as to whether their makeshift shower curtains had been removed. All the other inmates informed him that none of their shower curtains had been removed. According to the applicant, there are 35 cells on each of the three landings, totalling 105 cells and approximately 160 inmates. He asserts that he was the only inmate to have his toilet /shower curtain removed.


On the day of the search, the applicant was informed by other inmates that their sweeping brushes had been confiscated. A number of these inmates requested the return of the brushes. This request was agreed to by Class Officer Murray. As the applicant was standing in close proximity to Class Officer Murray, he informed him that his toilet/shower curtain had been confiscated and he requested the return of the item. The applicant also informed Chief Officer Lydon of the situation. The latter's response was to inquire whether the shower/toilet curtain was a prison issue, to which the applicant replied in the negative, advising that the shower curtain was a converted duvet cover on a line of two shoelaces. The applicant asserts that Chief Officer Lydon's response to this was to state that he would ensure that all such items were removed from all cells by the weekend. According to the applicant, this did not, in fact, happen.


The applicant submits that the response of Chief Officer Lydon was to expose other inmates to a lack of privacy while at the same time failing to sort out his particular situation. He had informed Chief Officer Lydon of his disability, in particular, his bowel disorder but this was ignored.


The applicant also maintains that since the removal of his privacy screen, he is forced to shower and apply his medications in a hurried fashion, for fear of spot checks by Prison Officers when he is carrying out such activities.


On 9th November, 2017, the applicant initiated his prisoner application. It was received by the High Court Central Office on 27th November, 2017.


The applicant explains that following the making of his application, he put up a temporary toilet/shower curtain in his cell which he put together from a redundant duvet cover provided to him by a fellow inmate and with the aid of some old shoelaces by way of a line to support the new curtain. This provided him with the privacy, dignity and protection he required. The applicant considered this a temporary comfort only as he was by then aware that the second curtain could be removed by staff at any time. The temporary shower curtain was erected on or around 11th November, 2017. According to the applicant, no action was taken in respect of this until 7th January, 2018. Prior to that, on 6th January, 2018, the applicant received O'Hanlon J's order and judgment by way of postal delivery.


The applicant describes his receipt of these documents in the following terms: On the afternoon of 6th January, 2018, he was informed by a Prison Officer that he was to collect legal mail. He went to the G1 Class Office where A.C.O. McDonald handed him two envelopes. One was a brown A4 size envelope which had already been fully opened. The other mail was a standard size envelope which the applicant deduced from the window text and post mark was from his solicitor. The applicant was asked to sign the duty mail book which is standard practice. When doing so, he documented that the A4 envelope containing O'Hanlon J.'s order and judgment had been opened, which, the applicant asserts, was contrary to Rule 44 of the Prison Rules 2007-2017. The applicant asserts that the envelope containing the order and judgment had a harp on it which clearly indicated that it was from a State body. Accordingly, the envelope should only have been opened in the applicant's presence, as per Prison Rule 44(4).


The applicant states that he was asked by A.C.O. McDonald to open the smaller white envelope in her presence. He did so and allowed her to glance at the document, as per the Prison Rules. He then returned to his cell and read the court documents and his solicitor's correspondence.

The applicant states that his delight at being granted leave for judicial review was short-lived. He asserts that on 7th January, 2018, the day after he received the court documents, Class Officer Chandlers informed all cell occupants that later on that day he would clarify whether all shower curtains were to be removed from all cells on G wing as Chief Officer Lydon had ordered that this was to be done on E wing.


The applicant states that on 7th January, 2018, three prison officers were duly ordered to remove the makeshift shower/toilet curtains in all cells. This bolstered the applicant's belief that his court documents had been opened in his absence and that the prison authorities had advance notice on 6th January, 2018 of the order and judgment of O'Hanlon J., particularly in circumstances where O'Hanlon J. had specifically referred to the applicant's makeshift shower curtain. The applicant maintains that it was thus more than sheer coincidence that all shower/toilet curtains in all cells were ordered to be removed on 7th January, 2018, that...

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3 cases
  • Barry v The Governor of the Midlands Prison
    • Ireland
    • High Court
    • July 23, 2019
    ...his cell. His application was refused by the High Court (see Barry v Governor of Midlands Prison and Minister for Justice and Equality [2018] I.E.H.C. 279). On behalf of the applicant, it was accepted that this application was not a ‘rerun’ of that decision. Part of the claim in that case ......
  • McMorrow v The Governor of The Midlands Prison
    • Ireland
    • High Court
    • December 21, 2018
    ...Cloverhill Prison [2010] IEHC 529. The matter was also recently considered by Faherty J. in Barry v. Governor of Midlands Prison & Anor [2018] IEHC 279 in a judgment of the 11th May 2018. It is noted that in Barry, similar claims were made to that in the instant matter, save that Mr. Barr......
  • Barry v The Governor of the Midlands Prison
    • Ireland
    • High Court
    • December 7, 2018

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