Clarke -v- The Health Service Executive & Ors, [2014] IEHC 419 (2014)

Docket Number:2014 46 JR
Party Name:Clarke, The Health Service Executive & Ors
Judge:Birmingham J.






JUDGMENT of Mr. Justice Birmingham delivered the 4th day of September 2014

  1. The applicant who is 69 years of age is currently serving a prison sentence at the Midlands Prison. He is imprisoned there on foot of orders of the Circuit Court dated the 11th January, 2013, (Judge O’Hagan sitting at Monaghan Circuit Court) and the 24th March, 2014, (Judge McCabe sitting at Dundalk Circuit Court).

  2. On the 11th January, 2013, he was sentenced in respect of two sexual assaults to which he had pleaded guilty to a term of five years imprisonment, the sentence was backdated to the 10th of September, 2011 and provision was also made for seven years post release supervision. The applicant has lodged an appeal against the severity of the sentence, but the appeal has yet to come on. The sentence hearing of the 24th March, 2014, was consequent on his conviction in September 2013, on two counts of sexual exploitation of a child contrary to s. 3 of the Child Trafficking and Pornography Act 1998, the facts being that he had approached two twelve year old girls in September 2011 and offered them €5 to engage is sexual activity. A sentence of five years imprisonment with the last three years suspended was imposed, but the order of the court on this occasion left his release date of the 9th June 2015 unaltered.

  3. The essential case made on behalf of the applicant is that prison is not an appropriate environment for him. Indeed, that it is inappropriate to the extent that his incarceration gives rise to a breach of his rights under the Irish Constitution and his rights under the European Convention on Human Rights.

  4. The background against which the complaints in relation to the circumstances surrounding his incarceration are laid, is that it is reported that some 30 years ago he was diagnosed as being schizophrenic. The diagnosis is said to have been made in the aftermath of a road traffic accident that the plaintiff had been involved in and in which he suffered a head injury. It does not appear that the reported diagnosis of schizophrenia was ever actively followed up on. More recent diagnosis has focused on the frontal lobe dementia process, possibly linked to the road traffic accident, and the suggestion of schizophrenia has receded.

  5. The applicant has a long history of sexually inappropriate behaviour. For a period while he was living with his brother, a degree of restraint and supervision was brought to bear. Unfortunately his brother suffered a stroke and entered a nursing home and has subsequently died in early 2012. .

  6. The level and intensity of the applicant’s sexually inappropriate behaviour intensified when his late brother ceased to be in a position to exercise influence.

  7. Since 2007, the applicant has spent periods of time in prison on a number of occasions, usually on foot of remands in custody. In June 2011, the applicant commenced a course of anti-androgen therapy, designed to decrease libido by reducing levels of male hormones. On the 27th July, 2011, he was released on bail in the care of his elderly sister. However, on foot of an allegation that he re-offended in September 2011, he went back into custody, this appears to be one of the two matters dealt with by the Circuit Court in Monaghan on the 11th January, 2013 and involved an incident with a 10-year old child in a public place. The applicant was first committed to Castlerea prison, and was then transferred to Arbour Hill prison in February 2012, but after just one day there he was transferred to Cloverhill prison following an incident with a female staff member. When sentenced in January 2013, he was moved to Wheatfield prison and was transferred from there to the Midland prison in September 2013. During his period in custody, the applicant has been the subject of eight prison disciplinary reports or P19 reports, all but one of which were for inappropriate behaviour towards female prison staff.

  8. From the perspective authorities, he has not been an easy prisoner to deal with. While in Wheatfield, he was placed on the “West 2” area of the prison, a protection area within the prison and segregated from the general prison population. This would seem to have been for his own safety, but also the Governor issued a direction that under no circumstances were female staff to be with the applicant, and where only female nursing staff were available, that two male prison officers were to be present at all times.

  9. Following his transfer to the Midlands prison, he has been dealt with as a vulnerable prisoner and has been held on the “C 1” wing for his protection and safety. While in the Midlands, he has been under regular review by the prison psychiatric team and has been placed on a waiting list for transfer as an in patient to the Central Mental Hospital pursuant to the provisions of s. 15 of the Criminal Law (Insanity) Act 2006. It is the view of both Dr. Conor O’Neill, Consultant Forensic Psychiatrist at the Central...

To continue reading