Charlotte Mulhall v The Irish Prison Service, The Governor of Limerick Prision, The Minister for Justice and Equality, Ireland and The Attorney General

• Jurisdiction: Ireland
• Judge: Mr. Justice Barr
• Judgment Date: 20 April 2021
• Neutral Citation: [2021] IEHC 267
• Docket Number: [Record No. 2020/618 JR]
• Court: High Court
• Date: 20 April 2021

Between

Charlotte Mulhall

Applicant

and

The Irish Prison Service, The Governor of Limerick Prision, The Minister for Justice and Equality, Ireland and The Attorney General

Respondents

[2021] IEHC 267

[Record No. 2020/618 JR]

THE HIGH COURT

Judicial review – Prison transfer – Extension of time – Applicant seeking leave to proceed by way of judicial review – Whether the applicant had established arguable grounds for an extension of time

Facts: The applicant, Ms Mulhall, applied to the High Court for leave to proceed by way of judicial review. She sought to challenge the decision made by the first respondent, the Irish Prison Service, to transfer her from the Dóchas Centre in Mountjoy Jail, Dublin to Limerick Prison, which decision was made on 24th December, 2018. She challenged that decision on a number of grounds: that in the circumstances of the case, the decision to transfer her was unfair, arbitrary and capricious; that the decision breached fair procedures in that she was not given an opportunity to object to its implementation; that insofar as it related to an incident on the evening of 22/23 December, 2018, when she was observed in what was described as “a compromising position” with a prison warder, it breached her rights to fair procedures, because she was not given any opportunity to explain that incident, which had she been afforded such opportunity, she would have explained was merely the administration of a beauty treatment by her to the prison warder; that insofar as the transfer constituted a punishment in respect of that incident, it was unjust, as she was never charged with any breach of prison regulations, nor was she given an opportunity to explain the incident. She also alleged that the decision to transfer her to Limerick Prison, coupled with a further decision, taken subsequently to cater for her “welfare”, whereby a decision was made on some unknown date that she would not be brought to Mountjoy jail in Dublin on temporary transfer for access visits with her son, but such access visits would instead only be facilitated in Limerick Prison; such decision was arbitrary, capricious and unjust and was taken in breach of her rights to fair procedures as provided for under the Constitution and in breach of her rights under Art. 8 of the European Convention on Human Rights, due to the fact that she was not told of that subsequent decision; which decision was taken against the background where the Child and Family Agency, which had care of her infant son, would not bring him to Limerick Prison to visit her and as a result, she had not had a physical visit with her son since 2019.

Held by Barr J that the applicant had not established arguable grounds for an extension of time as provided for under O. 84, r. 21(3) of the Rules of the Superior Courts. Accordingly, Barr J held that the applicant was out of time to challenge the decision to transfer her to Limerick Prison. Barr J was satisfied that there was an arguable case that the applicant may be entitled either to a transfer back to the Dóchas Centre so as to secure her visiting rights with her son, or that, at a minimum, she be provided with the access visiting arrangements previously in place, which were effected by means of temporary transfer to Dublin, as happened in May and July 2019. Barr J held that each of the parties had liberty to file further affidavits in the matter.

Barr J held that the court would grant leave to the applicant to proceed for the relief sought at paras. 2, 4 and 5 in her notice of motion.

Application granted in part.

Judgment of Mr. Justice Barr delivered electronically on the 20th day of April, 2021.

Introduction

1 This is an application for leave to proceed by way of judicial review, which has been brought on notice to the respondents. The applicant seeks to challenge the decision made by the first respondent to transfer her from the Dóchas Centre in Mountjoy Jail, Dublin to Limerick Prison, which decision was made on 24th December, 2018.

2 The applicant challenges that decision on a number of grounds: that in the circumstances of the case, the decision to transfer her was unfair, arbitrary and capricious; that the decision breached fair procedures in that the applicant was not given an opportunity to object to its implementation; that insofar as it related to an incident on the evening of 22/23 December, 2018, when the plaintiff was observed in what was described as “a compromising position” with a prison warder, it breached her rights to fair procedures, because she was not given any opportunity to explain that incident, which had she been afforded such opportunity, she would have explained was merely the administration of a beauty treatment by her to the prison warder; that insofar as the transfer constituted a punishment in respect of that incident, it was unjust, as the applicant was never charged with any breach of prison regulations, nor was she given an opportunity to explain the incident.

3 The applicant also alleges that the decision to transfer her to Limerick Prison, coupled with a further decision, which appears was taken subsequently to cater for her “welfare”, whereby a decision was made on some unknown date that she would not be brought to Mountjoy jail in Dublin on temporary transfer for access visits with her son, but such access visits would instead only be facilitated in Limerick Prison; such decision was arbitrary, capricious and unjust and was taken in breach of her rights to fair procedures as provided for under the Constitution and in breach of her rights under Art. 8 of the European Convention on Human Rights, due to the fact that she was not told of that subsequent decision; which decision was taken against the background where the Child and Family Agency, which had care of her infant son, would not bring him to Limerick Prison to visit her. As a result, she has not had a physical visit with her son since 2019.

4 In response the respondents allege that the applicant is out of time to challenge the decision to transfer her to Limerick Prison, as no step was taken by the applicant to even consider challenging same, until the first letter from her solicitor sent on 7th August, 2019 and where the ex parte application was not moved until 14th September, 2020. It was submitted that in these circumstances the applicant's challenge to that decision was well outside the time prescribed by O.84 of the Rules of the Superior Courts and furthermore, the applicant had not provided any grounds on which the court could extend the time pursuant to O.84, r.21(3).

5 Without prejudice to the objection taken that the proceedings were out of time, it was submitted that the fist respondent enjoyed a wide discretion under s.17 of the Criminal Justice Administration Act, 1914, as amended, which states:

“Prisoners shall be committed to such prisons as the Minister for Justice and Equality may from time to time direct; and may on the like direction be removed therefrom during the term of their imprisonment to any other prison.”

6 It was submitted by the respondents that the court could only interfere with such a decision where it had been established by the applicant that the prison authorities had acted arbitrarily, capriciously or unjustly: see Nash v. Chief Executive of the Irish Prison Services & Ors. [2015] IEHC 504 and Murray v. Ireland [1991] ILRM 465. It was submitted that on the evidence presented to the court on the present application, the applicant had not presented an arguable case that the decision under challenge had been taken by the first respondent in an arbitrary, capricious or unjust way.

7 It was submitted that in this case, where the evidence before the court was that on the evening of 22nd/23rd December, 2018, where there was evidence that the applicant had been found in a “compromising position” with a female prison warder, the first respondent was entitled in the interests of the proper management of the prison to make the transfer order. It was noteworthy that the applicant admitted the essential elements of the incident, although she described it as involving the administration of a beauty treatment. It could not be argued that the applicant was unaware of the basis on which the transfer had been made, as she was aware of the existence of that incident on the preceding evening.

8 It was submitted that insofar as the applicant complained that she was not consulted prior to making the transfer order, the evidence before the court was that the prison authorities did not consult prisoners prior to directing their transfer from one prison to the other, due to the security risks that that would involve. It was submitted that in the circumstances the applicant had not presented an arguable case that in making the decision to transfer her to Limerick Prison, the first respondent had acted arbitrarily, capriciously or unjustly.

9 It was denied that the transfer of the applicant from Mountjoy jail to Limerick Prison was a punishment, as alleged by the applicant. The applicant was never charged with any breach of prison rules arising out of the incident on the night 22nd/23rd December, 2018. It was submitted that the decision to transfer her was made by the first respondent for operational reasons connected with the proper management of the prison.

10 In relation to the issue of access visits to her son, the applicant had been facilitated with two temporary transfers back to Dublin for access visits with her son in May 2019 and July 2019. In addition, there had been one access visit with her son in Limerick Prison subsequent to July 2019 and prior to October 2019.

11 A decision had been made by the second respondent not to have further temporary transfers to Dublin for such visits, because as the second respondent, Mr. Kennedy had averred in his affidavit sworn on 8th March, 2021, subsequent to each such visit, the...