Connolly v Governor of Wheatfield Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hogan
• Judgment Date: 16 July 2013
• Neutral Citation: [2013] IEHC 334
• Court: High Court
• Date: 16 July 2013

[2013] IEHC 334

THE HIGH COURT

[No. 5 SSP/2013]

Connolly v Governor of Wheatfield Prison

IN THE MATTER OF AN INQUIRY PURSUANT TO ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN/

SAMUEL CONNOLLY

APPLICANT

AND

GOVERNOR OF WHEATFIELD PRISON

RESPONDENT

CONSTITUTION ART 40.3.2

CONSTITUTION ART 40.4.2

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4(1)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S2

PRISON RULES 2007 SI 252/2007 RULE 63

KINSELLA v GOVERNOR OF MOUNTJOY PRISON 2012 1 IR 467 2011/31/8437 2011 IEHC 235

CREIGHTON v IRELAND & AG UNREP SUPREME 27.10.2010 2010/9/2048 2010 IESC 50

RICHARDSON, STATE v GOVERNOR OF MOUNTJOY PRISON 1980 ILRM 82

CONSTITUTION ART 5

CONSTITUTION ART 15

CONSTITUTION ART 34

Crime – Prisoners - Violent offences – Legality of detention - Application for release under Article 40.4.2 of the Constitution - Restrictive regime - Closed prison regime - Preservation of dignity - Protection from unjust harm - Prison Rules 2007 - Fatal Offences against the Person Act 1997 - Constitution of Ireland

Facts: The applicant was charged and convicted of offences contrary under the Non-Fatal Offences against the Person Act 1997 and subsequently committed to Mountjoy prison in June 2010 for seven years (with the final two years suspended). On the 24 ^th September 2011, the applicant claimed he was violently raped by his cellmate. The matter was reported to prison authorities and an investigation was launched. The investigation was still ongoing at the time of this judgment. In the meantime, the applicant was moved to Wheatfield prison. He was moved back to Mountjoy prison a month later, but returned to Wheatfield prison to a closed prison regime in February 2013. In April 2013, the applicant was moved to a single occupancy cell at his own request. The applicant also sought protection from the general prison population fearing, that as a homosexual and being HIV positive, he would be targeted. He was therefore detained pursuant to Rule 63 of the Prison Rules 2007 in a restricted regime with 23 hours of lock up per day.

The applicant brought an application for release claiming that his right to the protection of the person in Article 40.3.2 of the Constitution was being violated. It was his case that the restricted regime that was offered by the respondent was too stringent and in breach of this constitutional right, but that he had no choice to adhere to it as entry into the general prison population would leave him susceptible to unjust attack. The respondent was of the view that his safety was not threatened if readmitted into the general prison population. The applicant”s argument that the restricted regime was a breach of his rights under Article 40.3.2 of the Constitution was also rejected.

Held by Hogan J that despite the fact the applicant was currently imprisoned, he was nevertheless entitled to preservation of his dignity and protection from unjust harm, especially in light of his vulnerability. The respondent was therefore expected to ensure that these constitutional rights were being protected even in the often difficult circumstances of a prison regime. In Kinsella v. Governor of Mountjoy Prison [2011] IEHC 235, it was held that applying Article 40.3.2 of the Constitution to the case of prisoners involved upholding the integrity of their personalities which included sufficiently meaningful use of sight, sound and speech. Use of a television and reading material were noted as examples.

Considering the present application, it was held that it was noteworthy that the respondent did not believe the applicant should be under a closed prison regime and only agreed to such an arrangement at his own express request. If the applicant was held under this regime for a long period of time, there would be no doubt that this would be in breach of his rights under Article 40.3.2 of the Constitution. However, the applicant had only been under the restricted regime for a period of 3 months. Also, the professional psychologists available to the applicant had shown him considerable care and attention with his case being constantly reviewed. In those circumstances, it was held that the conditions the applicant was under could not be regarded as in breach of Article 40.3.2 of the Constitution at that particular time. This was not to say that such a violation would not occur at a future date if the regime was to continue.

Application refused.

1 JUDGMENT of Mr. Justice Hogan delivered on the 16th day of July, 2013

2 1. Is the detention of the applicant under conditions of what amounts to solitary confinement for all but one hour in the course of a day such a manifest contravention of the State's duty to protect the person under Article 40.3.2 of the Constitution such as would entitled him to immediate release? That, in essence, is the question posed in the course of these Article 40.4.2 proceedings. The issue arises in the following way:

3 2. This applicant, Mr. Connolly, is currently serving a sentence of seven years' imprisonment (with the final two years suspended) following his conviction in June 2010 for causing serious harm under s. 4(1) of the Non-Fatal Offences against the Person Act 1997 ("the 1997 Act"). The applicant was also convicted of offences of assault causing harm contrary to s. 3 of the 1997 Act and another count of assault contrary to s. 2 of the 1997 Act. These latter two sentences were directed to run concurrently with the principal offence.

4 3. These sentences were back-dated in their operation to March, 2010 in order to take into account time spent in custody. As matters stand, Mr. Connolly is currently scheduled for release in December, 2013.

5 4. Mr. Connolly is homosexual and is HIV positive. He also suffers from epilepsy. On 24 ^th September, 2011, while then detained in Mountjoy Prison, Mr. Connolly maintains that he was the victim of a violent rape by a cellmate who used a makeshift knife for this purpose. The attacker - who Mr. Connolly has named - then slashed Mr. Connolly and warned him against making any complaint in respect of it. Although the Director of Public Prosecutions decided in September, 2012 not to press charges in respect of this incident, there has been no suggestion at all that this event did not occur in the manner described by Mr. Connolly. I propose, therefore, to proceed on the basis that Mr. Connolly was raped in the manner alleged.

6 5. Following this incident, an investigation was commenced by the prison authorities but that investigation has not yet been concluded. Mr Connolly was transferred to Wheatfield Prison in February, 2012. A month later he was transferred to the Training Unit in Mountjoy Prison. Following an incident with another prisoner, disciplinary action was taken against him and he was then returned in February, 2013 to the closed prison regime in Wheatfield Prison. For the first two months he shared a cell with another prisoner of his acquaintance.

7 6. His own personal experiences since this sexual violation have made him wary of sharing a cell. At his request, therefore, he was moved to a single occupancy cell at the end of April, 2013.

8 7. On his return to Wheatfield, the applicant sought protection from the general prison population as he feared that he would be subjected to homophobic victimisation. The respondent took the view that his safety was not threatened if he were placed within the general prison community. As Mr. Anthony Hickey, as an assistant principal with the Irish Prison Service has explained in an affidavit sworn on 19 ^th June, 2013, Mr. Connolly:

"is currently being held in Unit 2G, which is a unit that has a 23 hour lock-up regime. As [previously] averred, the applicant is on this unit at his own request and has requested protection from other prisoners. He is housed in a single cell due to an alleged incident in Mountjoy Prison. Management has reviewed the prisoner's lock up status monthly. However, the applicant refuses to come off lock-up. He is on standard regime and he presents no management issues."

9 It is clear from the records supplied that Mr. Connolly is currently being detained pursuant to Rule 63 of the Prison Rules 2007 which provide:-

10 2 "63.(1) A prisoner may, either at his or her own request or when the Governor considers it necessary, in so far as is practicable and subject to the maintenance of good order and safe and secure custody, be kept separate from other prisoners who are reasonably likely to cause significant harm to him or her.

11 (2) A prisoner to whom paragraph (1) applies may participate with other prisoners of the same category in authorised structured activity if the Governor considers that such participation in authorised structured activity is reasonably likely to be beneficial to the welfare of the prisoner concerned, and such activity shall be supervised in such manner as the Governor directs.

12 (3) The Governor shall make and keep in the manner prescribed by the Director General, a record of any direction given under this Rule and in particular

13 (a) the names of each prisoner to whom this rule applies,

14 (b) the date and time of commencement of his or her separation,

15 (c) the grounds upon which each prisoner is deemed vulnerable,

16 (d) the views, if any, of the prisoner,

17 (e) the date and time when the separation ceases."

18 8. It is equally clear from these documents that Mr. Connolly has opted for this regime (known as the "restricted regime") because of his own personal concerns for his own safety. Rule 63 of the 2007 Rules requires that the circumstances of persons who are subjected to this regime must be reviewed regularly and that the reasons for its application to any given prisoner must be documented.

19 9....