Breen v Ireland
| Jurisdiction | Ireland |
| Judge | MR. JUSTICESMYTH |
| Judgment Date | 24 March 2004 |
| Neutral Citation | 2004 WJSC-HC 1002 |
| Date | 24 March 2004 |
| Docket Number | 10831p/2000,[2000 No. 10831 P] |
| Court | High Court |
2004 WJSC-HC 1002
THE HIGH COURT
Citations:
RULES FOR THE GOVT OF PRISONS 1983 SI 135/1983
RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 REG 4
RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 REG 3
RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 PART III
RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 REG 192
RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 REG 124
RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 REG 191
MULDOON V IRELAND 1988 ILRM 367
KAVANAGH V GOVERNOR ARBOUR HILL PRISON & AG UNREP MORRIS 22.4.93
BOYD V AG UNREP BUDD 13.5.1993 1993/6/1580
BOLGER V GOVERNOR OF MOUNTJOY PRISON & ORS UNREP O'DONOVAN 12.11.1997 2000/1/254
BATES V MIN JUSTICE 1998 2 IR 81
Prisons - Assault - Whether the prison authorities were liable for an assault occasioned to one prisoner by a fellow prisoner- Rules for the Government of Prisons, 1947 (SI No. 320 of 1947) - Rules of Government of Prisons, 1983 (SI 135 of 1983)
Facts: The plaintiff was remanded to Cork Prison on foot of an extradition warrant. The plaintiff complained that a fellow prisoner, McDonagh assaulted him in his cell. The plaintiff's evidence was that he had informed the relevant prisoner officer before he was placed in a cell that he did not want to share a cell with Mr McDonagh. However the prison officer stated in evidence that no such request/objection was made to him. Subsequent to the assault the plaintiff was transferred to a different cell. The plaintiff submitted that the respondents were liable for the assault by virtue of the 1947 Rules as amended by the 1983 Rules.
Held by Smyth J. in dismissing the case:
1. That the plaintiff did not at any time prior to the incident complain, object or inform or put on notice that he did not wish to share a cell with Mr McDonagh.
2. That Mr McDonagh did not have a known propensity to violence and he had only attacked a fellow prisoner on one previous occasion.
3. That there was no evidence that the breach of the Regulations in any way contributed or caused the negligence. The attack in the present case was unprovoked and a sudden attacked of which no notice could in any way be attributable to the defendants and accordingly they were not liable for the assault.
Reporter: L.O'S.
MR. JUSTICESMYTHON WEDNESDAY, 24TH MARCH 2004
I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.
APPEARANCES
For THE APPLICANT
Mr. T. CREED SC
MR. J. O'DRISCOLL SC
MS. E. MURPHY BL
Instructed by:
MURPHY & CO.
For THE RESPONDENT
MR. M. GLEESON SC
MR. L. CROWLEY BL
Instructed by:
MR. F. LONG
RONAN DALY JERMYN
12 SOUTH MALL
CORK
COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone StenographyServices
| MR. JUSTICE SMYTH: | In February 1998, the Plaintiff was brought from |
Engand to Ireland, presumably on foot of an Extradition warrant for, in evidence unspecified, an alleged offence or offences. He was taken to the District Court in Kenmare and, on the decision of the District Judge, remanded to cork Prison.
His first evening in prison on this occasion (for he had been a prisoner in cork Prison previously in time (class of prisoner and offence alleged or proven unspecified) was spent in a holding cell with a number of other remand prisoners.
The next day, 11th February, the Plaintiff said in evidence that he was informed in the yard of the prison by another or other prisoner(s), name(s) and class unspecified, to beware of a prisoner, one McDonagh. The sense of what he understood was that McDonagh was to be avoided as either violent or that he was "trouble". Yet, in enquiries that preceded the trial, in a Notice for Particulars dated 10th April 2001, the Defendant asked: "Please indicate if the Plaintiff was familiar with the alleged assailant or assailants prior to the alleged assault and, if so, indicate in what way he was known to him." Thereply given on 22nd August 2001 was "no". I was left with the clear impression that the Plaintiff's evidence on this matter in the witness box was based on information received from the Defendant concerning McDonagh's "record" in the prison, not the hearsay to which he referred.
In the afternoon of that day, Mr. Tim Cremins, who was the prison officer for B landing in the prison and in whose charge were two holding cells (in one of which the Plaintiff was held) had a vacancy in Cell No. 7 and at approximately 4/4:15p.m. the Plaintiff was transferred from the holding cell to cell No. 7.
Cell No. 7 had at one time in the past been used as two separate cells or, rather, two separate cells at one time had been converted into one cell with two doors, one only of which was capable of being used as a door. The dimensions of the cell were 15". 5" x by 11"5" and its height, 9" 3". There were three bunks in the cell and some four tables and chairs. There were four prisoners in the cell in the afternoon in question, which had a capacity to hold six prisoners. one of the prisoners in the cell was McDonagh.
The Plaintiff's evidence was, and he was emphatic on this, was that he had told Officer Cremins before he was put in the cell that he did not want to be put ina cell with McDonagh. This evidence was critical to the Plaintiff's case because of an event or events that took place later in the evening. The Plaintiff had a number of opportunities of conveying his sense of apprehension, fear or misgivings about being placed in the same cell asMcDonagh:
1. On first being brought to the cell, and before being put into thecell;
2 2.At tea time -- when prisoners went out on the landing to collect their tea, contact could have been made by a prisoner with prisonstaff;
3. During a recreation period from 5:30 to 7:30, prisoners would have an opportunity to contact prison staff;
4. At lock up time.
Officer Cremins was clear in his evidence that had the Plaintiff made his complaint, objections or apprehensions known to him (Mr. Cremins) about McDonagh, the Plaintiff would have been put back in the holding cell. Mr. Cremins left the prison that evening at 7:45p.m.
While under cross-examination, the Plaintiff sought to convey to me that even at Lock Up time he asked not to be put back in the cell with McDonagh. He then said "I think it may be after tea".
Where the evidence of the Plaintiff and that of Mr. Cremins differs on the question as to whether the Plaintiff had made known to the prison authorities in the person of Mr. Cremins his complaint, objection, apprehension, fear or misgivings of sharing a cell with McDonagh, I prefer the evidence of Mr. Cremins, whom I found to be a truthful and reliable witness, whereas in this regard I found the Plaintiff an unreliable witness. I am satisfied and find as a fact that the Plaintiff did not at any time prior to the incident that gave rise to this action complain, object, inform or put on notice at the time he said or at any other occasion that he did not wish to be put in the cell withMcDonagh.
I am satisfied and find as a fact that if the Plaintiff did know of McDonagh's "record" as interpreted at the trial, which I do believe he did not, he did not put the Defendants on notice in any way prior to the assault of which he has complained in theseproceedings.
McDonagh, from the records of the Defendants admitted in the action, show that he was not a model prisoner. He was truculent, insolent, threatened prison officers over a period from April 1997 to December 1997 when he was a prisoner in A landing. However, Mr. Cremins had no trouble with him on B landing as from early 1998. It was sought by thePlaintiff'scounsel to portray Mr. McDonagh as a man with a known propensity to violence. I do not accept that as a true description. He had once only attacked a fellow prisoner in May 1997 and the dispute (over a game of cards), though leading to blows in the exercise yard (there is no evidence or record as to who struck the first blow or if there was provocation in that incident involved) -- the prisoners, were by the next day, reconciled to each other.
While the present Assistant Governor of the prison, Mr. James O'Sullivan, and Mr. Cremins effectively agreed that there are problems in trying to deal with 260 or 270 prisoners or, as Mr. Collins said, perhaps 280 prisoners in a prison originally designed for 150 prisoners, nevertheless I am satisfied and find as a fact that even if the allegation of overcrowding were made out, it did not in the instant case cause or contribute to the Plaintiff's accident.
The evidence of the Plaintiff was that he was quietly reading a book in the lower bed of a bunk, the top of which was unoccupied, and that some very vague chat arose concerning a missing pillow, for which he denied responsibility. At or about the time of lights out, the plaintiff said that out of the blue he received one or more blows with what he thought was a sock within which was some hard object or solid item(s) -- it may have been a battery or batteries.
While the Plaintiff was not sure if more than one person was involved, he Swears McDonagh struck the blow or blows which broke his left cheekbone and left lower jawbone. He said he did not raise the alarm because he felt afraid for his life and that he was told that it would take 30 minutes to get a response to an alarm call, by which time he could be hit several more times. While accepting that he may well have been totally intimidated in the circumstances, I am satisfied from the evidence that (a) trustee prisoner could not have been on duty to receive an alarm call...
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