Bunreacht Behind Bars: The Irish Prison System in its Constitutional Context

• Author: Alan Eustace
• Position: Senior Sophister LLB candidate and Scholar
• Pages: 89-108

© 2018 Alan Eustace and Dublin University Law Society

BUNREACHT BEHIND BARS: THE IRISH PRISON

SYSTEM IN ITS CONSTITUTIONAL CONTEXT

ALAN EUSTACE*

Introduction

Constitutional documents are aspirational in outlook. A nation’s founders

typically give more thought to ‘the august destiny to which they are

called,’

1

‘the dignity and freedom of the individual’,

2

‘l’idéal commun de

liberté, d’égalité et de fraternité’,

3

and how to ‘form a more perfect Union,

establish Justice… and secure the Blessings of Liberty’

4

than to the inner

workings of the criminal justice system, and what to do when this liberty

is abused. Nonetheless, it is possible to construct a constitutional vision of

the prison and the prisoner in society, based on protections for prisoners’

human rights in the text of Bunreacht na hÉireann itself and judicial

attitudes towards these rights and towards prison life. This paper will

examine the constitutional position of Irish prisoners in these terms. The

practical requirements of constitutional standards will be considered.

Finally, the paper will assess to what extent the Irish prison system

complies with the demands of the constitutional vision.

Constitutional rights are all the more important to those who are

deprived of the liberty their constitution boldly proclaims. People in prison

are in a uniquely vulnerable position in their relationship with the State.

Not only do they need a bulwark against regressive and overly punitive

State action, but equally they need protection against the consequences of

State inaction, and the indifference of society to their suffering. The

constitutional duty on the State has been expressed in the following terms:

‘the obligation to treat all with dignity appropriate to the human condition

is not dispensed with simply because those who claim that the essence of

their human dignity has been compromised happen to be prisoners.’

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* Senior Sophister LLB candidate and Scholar. The author wishes to thank Dr Mary Rogan

for her insightful comments, Eoin Hennessy for his tireless patience, and past and present

members of the Editorial Board for their support.

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Proclamation of the Irish Republic, 1916.

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Preamble to Bunreacht na hÉireann.

3

Preamble to the Constitution of the French Fifth Republic.

4

Preamble to the Constitution of the United States of America.

5

Connolly v Governor of Wheatfield Prison [2013] IEHC 334 [15] (Hogan J).

90 Trinity College Law Review [Vol 21]

Anything less than the dignity of all persons, even prisoners, falls short of

the duty imposed by our Constitution on society.

This paper will consider the impact of the Constitution on the Irish

prison system, and how the courts have dealt with claims by prisoners that

their constitutional rights were breached. Despite recent judicial

pronouncements favourable to prisoners, there remain a number of issues

of serious concern. One very recent case, Simpson v Governor of Mountjoy

Prison,

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brought many of these to the fore, and may have significant

consequences for the State in compensating prisoners whose rights have

been violated, and in the standards that will be expected of Irish prisons in

future. The trenchant criticism of the conditions in the Simpson judgment

suggests that the reality of prison life has long fallen short of the vision of

prison demanded by the Constitution.

I. Constitutional Rights of Prisoners

A. Constitutional Text

The Irish prison system operates under the influence of a number of

articles of the Constitution.

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Article 40.4.1˚ establishes the right to

‘personal liberty’. No person may be deprived of such ‘save in due course

of law’. Article 40.4.2˚ is essentially a reproduction of the common law

writ of habeas corpus.

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It is the mechanism by which it is ensured that a

prisoner is only detained on foot of legal authorisation, such as a sentence

handed down by a judge in a criminal trial, or a valid order of committal

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[2017] IEHC 561.

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Some of these apply to the criminal process generally, and will have been relevant to the

trial and conviction on foot of which the person was committed to prison. Article 34.1

provides that ‘no person shall be tried on any criminal charge save in due course of law.’

Precisely what the phrase ‘in due course of law’ requires of the criminal process is discussed

at length elsewhere and is only relevant to this paper to the extent that it must be followed

for detention to be lawful under Article 40.4. See, for example, Oran Doyle, Constitutional

Law: Text, Cases and Materials (Clarus Press 2008) ch 2.

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State (C) v Frawley [1976] IR365. The Article reads: ‘Upon complaint being made by or on

behalf of any person to the high court or any judge thereof alleging that such person is being

unlawfully detained, the High Court and any and every judge thereof to whom such

complaint is made shall forthwith enquire into the said complaint and may order the person

in whose custody such person is detained to produce the body of such person before the High

Court on a named day and to certify in writing the grounds of his detention, and the High

Court shall, upon the body of such person being produced before that court and after giving

the person in whose custody he is detained an opportunity of justifying the detention, order

the release of such person from such detention unless satisfied that he is being detained in

accordance with the law.’