Barry v The Governor of the Midlands Prison

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 23 July 2019
• Neutral Citation: [2019] IEHC 594
• Court: High Court
• Docket Number: [2018 87 JR]
• Date: 23 July 2019

[2019] IEHC 594

THE HIGH COURT

JUDICIAL REVIEW

Donnelly J.

[2018 87 JR]

BETWEEN

PETER BARRY

APPLICANT

AND

THE GOVERNOR OF THE MIDLANDS PRISON

AND

THE IRISH PRISON SERVICE

RESPONDENTS

Judicial review – Conditions of detention – Breach of fundamental rights – Applicant seeking judicial review – Whether the applicant’s claims reached the threshold required to prove a breach of his fundamental rights

Facts: The applicant, Mr Barry, in judicial review proceedings, claimed relief related to the conditions of his detention by the respondents, the Governor of the Midlands Prison and the Irish Prison Service, in so far as they concerned his cell accommodation, his health care and his diet. Having been granted leave to apply for judicial review on the 5th February, 2018, the applicant sought the following reliefs: (i) an order of certiorari of a decision of the first respondent, by letter dated 20th November, 2017, that the respondents would not provide an unqualified assurance that the applicant would be detained in a single cell for the duration of his imprisonment; (ii) a declaration that as a result of a recognised medical condition, being Crohn’s disease, he was rendered unsuitable for shared cell detention and a resultant injunction; (iii) an injunction directing that he should be provided with medically dependent dietary requirements; (iv) a declaration that the respondents failed to provide him with an adequate and appropriate diet during his detention and as a result he had been exposed to risk and harm amounting to a breach of his right to bodily integrity and dignity; (v) an injunction directing that the respondents provide to the applicant all necessary medication for the proper management and control of his Crohn’s disease. The applicant claimed his treatment was in breach of his rights to privacy, dignity and not to be subjected to inhumane and degrading treatment as guaranteed by Article 40.3.1 and 40.3.2 of the Constitution and Articles 3 and 8 of the European Convention on Human Rights.

Held by the High Court (Donnelly J) that the applicant’s claims did not reach the threshold required to prove a breach of his fundamental rights.

Donnelly J held that the applicant was not entitled to the reliefs sought by him in these judicial review proceedings.

Reliefs refused.

JUDGMENT of Ms. Justice Donnelly delivered on the 23rd day of July, 2019

Introduction

1 In these judicial review proceedings, the applicant is claiming relief related to the conditions of his detention by the respondents in so far as they concern his cell accommodation, his health care and his diet. The applicant is serving a custodial sentence and is under the direct care of the first named respondent in the Midlands Prison. The second respondent is an executive agency with responsibility for prisons. The applicant has a diagnosed medical condition, namely Crohn's disease; a debilitating ailment that affects the intestine causing various distressing and uncomfortable symptoms including fatigue, intestinal ulcers and severe pain which can result in the intestine being emptied with frequent bouts of diarrhoea.

2 Having been granted leave to apply for judicial review on the 5th February, 2018, the applicant seeks the following reliefs: -

(i) an order of certiorari of a decision of the first named respondent, by letter dated 20th November, 2017, that the respondent's will not provide an unqualified assurance that the applicant will be detained in a single cell for the duration of his imprisonment;

(ii) a declaration that as a result of a recognised medical condition, being Crohn's disease, he is rendered unsuitable for shared cell detention and a resultant injunction;

(iii) an injunction directing that he should be provided with medically dependent dietary requirements;

(iv) a declaration that the respondents failed to provide him with an adequate and appropriate diet during his detention and as a result has been exposed to risk and harm amounting to a breach of his right to bodily integrity and dignity;

(v) an injunction directing that the respondents provide to the applicant all necessary medication for the proper management and control of his Crohn's disease.

3 The applicant claimed his treatment was in breach of his rights to privacy, dignity and not to be subjected to inhumane and degrading treatment as guaranteed by Article 40.3.1 and 40.3.2 of Bunreacht na hÉireann (‘the Constitution’) and Articles 3 and 8 of the European Convention on Human Rights (‘ECHR’). The applicant canvassed his claims in extensive affidavits. His case can be broken down into three substantive issues; the applicant's cell accommodation, diet and medical treatment.

4 The applicant averred that having to share his cell, the difficulties associated with his diet and the deficiencies in receiving prescribed medication adversely impacted upon his daily life within the prison. He claimed that he had exhaustively sought to have these issues resolved prior to taking the proceedings.

The Evidence and Submissions

The applicant: cell accommodation

5 The applicant's principal complaint about his cell accommodation was that the first respondent refused to give him an unqualified undertaking that he would not be required to share a cell with another inmate in the future. Since July, 2016, the applicant has been a sole occupant of a double occupancy cell save for a period of 41 days between September and November, 2017.

6 The applicant complained that on or around the 1st September, 2017, another prisoner was placed in his cell. The applicant said that he wrote a number of communications internally and externally through his solicitor with the prison which complained that he had been exposed to an uncomfortable, embarrassing and undignified environment in terms of the practicalities of his living conditions. The applicant said that the side effects of his medical condition is such that exposure to another person in a confined environment was deeply embarrassing. The applicant also said that the nocturnal habits of the prisoner placed in his cell meant that he could not sleep which he said left him feeling weak and exhausted.

7 It should be noted that the applicant had taken a previous judicial review application complaining about the physical condition of 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 had been that certain conditions in his cell had been in retaliation for the successful compromise of separate proceedings in his favour. Insofar as the applicant sought to make the claim here that his conditions were imposed as a ‘ covert campaign of reprisal against the applicant due to his institution and success in settling earlier judicial review proceedings’, this Court is satisfied that this general claim was already heard by the High Court and rejected in the decision in Barry decision above. No material has been put before the Court which could permit the Court in these proceedings to interfere with that earlier finding.

8 The applicant relied upon Mulligan v Governor of Portlaoise Prison [2010] I.E.H.C. 269 to argue that the degree of invasion of his right to privacy was severe as he was required to engage in toileting and personal hygiene routines in the presence of any cell companion. The applicant also relied upon Simpson v Governor of Mountjoy Prison [2017] I.E.H.C. 561 to submit that he enjoys a right to privacy during the currency of his detention and that interference and invasion of this right can be easily and appropriately remedied by the respondents guaranteeing him a single cell. The applicant also relied upon Kinsella v Governor of Mountjoy Prison [2011] I.E.H.C. 235 to support his submission that his detention should not breach the basic tenets of his constitutional rights.

The respondents: cell accommodation

9 The affidavit of Assistant Governor Desmond O'Shea averred that no other prisoner in the Midlands Prison has ever been given an undertaking of the kind sought by the applicant. Assistant Governor O'Shea averred that the nature of the applicant's offences dictated that he had to be housed with other prisoners who have been convicted of similar type offences so as to ensure his safety and the safety of other prisoners. Assistant Governor O'Shea averred to further challenges that effectively restricted the options open to the respondent when determining the accommodation available to prisoners. Assistant Governor O'Shea said that the governor required the power to house prisoners as he sees fit in order to ensure the smooth running of the prisons. Assistant Governor O'Shea said that at all material times the respondents have attempted reasonably to provide the applicant with single cell accommodation and will continue to do so as long as the operational needs of the prison allows for that.

10 An affidavit was sworn by Dr Sohail Rasool, a doctor employed at the Midlands Prison. Dr Rasool confirmed that the applicant had engaged with him in a multiplicity of communication about his personal history and medical needs, and on at least one occasion he relayed a message to the prison authorities about applicant's request for a single cell accommodation. Dr Rasool averred that it was his opinion that a single cell accommodation had no direct therapeutic effect on the management of Crohn's disease but acknowledged that it may be helpful in terms of the applicant's privacy.

11 The respondents relied upon Simpson to argue that prison authorities are afforded a wide margin of appreciation in respect of how they implement any prison regime and that the fact of imprisonment will curtail the rights of the imprisoned. The respondents also relied...