Brennan v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Declan Budd
• Judgment Date: 01 January 1999
• Neutral Citation: [1998] IEHC 140
• Court: High Court
• Docket Number: 1222 SS/1997
• Date: 01 January 1999

[1998] IEHC 140

THE HIGH COURT

1222 SS/1997

BRENNAN v. GOVERNOR OF PORTLAOISE PRISON

STATE SIDE

IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40.4 OF THE

CONSTITUTION OF IRELAND

BETWEEN

MARCUS BRENNAN

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON

RESPONDENT

Citations:

RULES FOR THE GOVT OF PRISONS 1983 SI 135/1983

AG, PEOPLE V MCGOWAN UNREP SUPREME 14.10.1968

RICHARDSON, STATE V GOV OF MOUNTJOY PRISON 1980 ILRM 82

C, STATE V FRAWLEY 1976 IR 365

GREENE, STATE V GOV OF PORTLAOISE PRISON UNREP HAMILTON 20.5.1977 1977/4/730

CAHILL V GOV OF MILITARY DETENTION BARRACKS CURRAGH CAMP 1980 ILRM 191

CONSTITUTION ART 40.4.2

COMERFORD, STATE V GOV OF MOUNTJOY PRISON 1981 ILRM 86

PRISONS (IRL) ACT 1877 S13

MCCARTHY, IN RE UNREP BUDD 6.9.1996

CONSTITUTION ART 44.1

WALSH & MCGOWAN, STATE V GOV OF MOUNTJOY PRISON UNREP SUPREME 12.12.1975

BYRNE HOGAN & MCDERMOTT PRISONERS RIGHTS-A STUDY IN IRISH PRISON LAW 8

RULES FOR THE GOVT OF PRISONS 1976 SI 30/1976

INCORPORATED LAW SOCIETY OF IRELAND & MOORE V MIN FOR JUSTICE & AG UNREP MCWILLIAM 21.6.1978

PRISONS (IRL) ACT 1877 S12

PRISONS (IRL) ACT 1877 S57

O LAIGHLEIS, IN RE 1960 IR 93

NORRIS V AG 1984 IR 36

MCDONAGH, STATE V FRAWLEY 1978 IR 131

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 137(2)

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 172

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 173

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 174

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 175

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 176

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 177

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 178

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 179

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 180

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 181

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 182

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 183

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 184

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 185

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 186

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 187

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 188

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 124(1)

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 9

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 16

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 108

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 117

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 RULE 135

RULES FOR THE GOVT OF PRISONS 1947 S R & O 320/1947 PART V

EUROPEAN CONVENTION ON HUMAN RIGHTS (1953)

Synopsis

Prisons

Habeas corpus; prison conditions; treatment of detainee; applicant's fears for his own health and safety in prison; whether inhuman and degrading treatment or conditions such as to seriously endanger the life or the health of the applicant; whether there is compliance with the Prison Rules; whether the Prison Rules have become obsolete; whether there is over-crowding in the prisons; whether the practice of "slopping out" placed the applicant's health at risk; whether the applicant is at risk of contracting AIDS, HIV or Hepatitis; European Convention on Human Rights; Art. 40.4 of the Constitution Held: The conditions under which the Applicant is being held do not constitute inhuman or degrading treatment and do not seriously endanger his life or health (High Court: Budd J. 03/09/1998) - [1999] 1 ILRM 190

Brennan v. The Governor of Portlaoise Prison

The applicant had been sentenced to three and a half years' imprisonment for robbery. He complained that his health was at risk because of the conditions in Mountjoy and Portlaoise prisons. He claimed he was held in overcrowded cells, in unsanitary conditions, with prisoners who were drug users and suffering from AIDS and hepatitis. The prison services accepted that the prisons were overcrowded but said that, as a matter of policy, prisoners were not segregated.

It was accepted that the Prison Rules were now out of date and frequently not observed. But the court said that, for the most part, the Rules were only regulatory, and failure to comply with them did not invalidate acts or decisions.

While many of a prisoner's constitutional rights might be abrogated or suspended, his remaining rights might need to be vindicated. Breaches of the law or Rules which may be easily remedied would not entitle a prisoner to an order of habeas corpus; the appropriate remedy might be an order of mandamus.

Exceptionally, a prisoner held in unlawful conditions might apply for an order of habeas corpus. But, to justify his release, an applicant would have to show that the prison conditions constituted inhuman or degrading treatment, or seriously endangered his life or health - and that the authorities were unwilling or unable to rectify the conditions. In this case, the crowded conditions and departures from the Rules had not seriously endangered the applicant's life or health or subjected him to inhuman or degrading treatment.

1 JUDGMENT of Mr Justice Declan Budddelivered on the 3rd day of September 1998

2 In a Ruling made on 28th January, 1997 Carney J. found that the Applicant had made significant complaints in respect of his situation as a prisoner in the Irish prison system. The Applicant was convicted on a plea of guilty at Carlow Circuit Court on 19th June, 1996 of robbery and was sentenced to a term of 3½ years imprisonment. The kernel of the Applicant's case is that he fears that his ???al and mental, have been and are at risk because of the condition ???oise Prisons. He says that he is a healthy person who has nev???he conditions in prison which he has to endure, and the compa???eep, are putting his health at risk. He also complains that the prison authorities are ignoring and flouting the Prison Rules 1947 in particular Rules 9, 16, 108, 117, 135, 137(2) and 143 and Rules 172 to 188 inclusive (the entire of Part V), being the part of the prison rules in respect of the duties of the Medical Officer.

3 It is conceded by the Respondent that many of these Rules are obsolete and are not observed. Doctor Enda Dooley, the Director of the Prison Medical Services, made it clear that there is now no full time doctor in any of the prisons. Accordingly, the 1947 Rules, which were drafted on the basis of a Medical Officer being resident at the prison and having a supervisory role with regard to hygiene and the kitchens, are obsolete. Specifically, Rule 16, which requires every prisoner to be examined by the Medical Officer before being removed to any other prison and before being discharged from prison, is now impractical and not observed. Both Doctor Dooley and Doctor Anthony Reeves, the leading medical officer at Portlaoise Prison, were candid and clear witnesses. Doctor Anthony Reeves made it clear that he and his colleagues do not regard the 1947 Rules as good guidelines for medical practice. His contract with the Department of Justice is at complete and utter variance with the 1947 Rules and the Rules do not relate to modern medical practice. He said that the Rules were antiquated, out of date and in appropriate to present practice. Consultancy work with regard to sanitation in kitchens and such matters as expert psychiatric advice were not appropriate for a general practitioner engaged on contract to provide primary medical care. I mention this at the outset as the obsolescence of the Rules and the ignoring of the Rules by the authorities (often because they are outmoded and impractical) are common case. Times change and so has medical practice but apparently the Rules have not kept pace despite the strictures of the Courts in a number of cases.

4 On 21st July, 1997 a conditional Order of Habeas Corpus was made by Kinlen J. on foot of the Affidavit sworn on the 16th July, 1997 of the Applicant. This was supplementary to his previous Affidavit sworn on 11th December, 1996 in which the Applicant had expressed his fears of contracting HIV or Hepatitis due to lack of medical examinations involving compulsory blood testing. On 13th August, 1997 Flood J. gave liberty to the State to file replying Affidavits in respect of the Applicant's complaints as being necessary in addition to the production of the committal warrant from Carlow Circuit Court.Steps were taken to narrow the issues by way of a Notice to admit facts and a reply thereto together with the production of the Applicant's medical files by way of voluntary discovery. Eventually the matter came before this Court on 10th June, 1998 and ensuing days when evidence was adduced not just on Affidavit but also by verbal testimony of both the Governors of Portlaoise and Mountjoy Prisons as well as the Medical Director of the prison service and the Medical Officer from Portlaoise Prison and the Chief Prison Officer from Mountjoy.

A SYNOPSIS OF THE EVIDENCE

5 The Applicant states that in April 1996 when he arrived in Mountjoy as a remand prisoner no medical examination was carried out on him and this was contrary to Rule 9 of the 1947 Rules which requires:-

6 2 "9. Every prisoner shall, as soon possible after his admission, be separately examined by the Medical Officer, who shall record the state of health of the prisoner, and such other particulars as may be directed"

7 He maintains that he is of good health and has never taken illegal drugs. He says that he was obliged to share a cell in the basement area with four other prisoners who were injecting themselves with drugs and this was in a very confined space, he became fearful because of the overcrowding and the drug abuse and made complaints to prison officers. He further complained that from 18th June, 1996 to October 1996 he was held in a double cell on a landing with twelve...