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

AuthorAlan Eustace
PositionSenior Sophister LLB candidate and Scholar
© 2018 Alan Eustace and Dublin University Law Society
Constitutional documents are aspirational in outlook. A nation’s founders
typically give more thought to ‘the august destiny to which they are
‘the dignity and freedom of the individual’,
l’idéal commun de
liberté, d’égalité et de fraternité,
and how to ‘form a more perfect Union,
establish Justice… and secure the Blessings of Liberty’
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.’
* 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.
Proclamation of the Irish Republic, 1916.
Preamble to Bunreacht na hÉireann.
Preamble to the Constitution of the French Fifth Republic.
Preamble to the Constitution of the United States of America.
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
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.
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.
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
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.
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.’

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