Crosbie v The Governor of Mountjoy Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice Niamh Hyland |
| Judgment Date | 13 March 2020 |
| Neutral Citation | [2020] IEHC 158 |
| Docket Number | 2018 No. 1099 JR |
| Court | High Court |
| Date | 13 March 2020 |
[2020] IEHC 158
Niamh Hyland J.
2018 No. 1099 JR
THE HIGH COURT
Order of mandamus – Declaratory relief – Right of access to justice – Applicant seeking an order of mandamus compelling the respondent to inform the applicant’s solicitor of reasons for the applicant being subject to confinement in a special observation cell and of the proposed duration of the same – Whether the applicant’s right of access to the court was undermined
Facts: The applicant, Mr Crosbie, by order of the High Court (Pilkington J), was refused leave for certain reliefs but was granted leave to apply, inter alia, for the following reliefs: (2) an order of mandamus compelling the respondent, the Governor of Mountjoy Prison, to inform the applicant’s solicitor of reasons for the applicant being subject to confinement in a special observation cell and of the proposed duration of the same; and (6) a declaration that the provisions of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (GDPR) [2016] OJ L 119/1 and of implementing legislation in the State do not prevent the respondent from informing the applicant’s solicitor of the reasons for the applicant being subjected to confinement in a special observation cell and of the proposed duration of the same. The matter came on for hearing on 28 January 2020. The core of applicant’s case was that there was an unlawful refusal to provide his solicitor with the information requested, with the consequence that he could not challenge, in a timely fashion, the legality of the Governor’s direction to transfer the applicant to the special observation cell. It was asserted that this failure had the potential to interfere with the applicant’s constitutional right of access to justice, one of the unenumerated rights under Article 40.3 of the Constitution. According to this argument, the fact that the applicant himself might have been aware of the reasons for the transfer was insufficient to vindicate his rights, as he might not identify breaches in the way his lawyer could; therefore, the only effective way for the applicant to have his constitutional rights vindicated was for the respondent to provide his legal representatives with the information sought.
Held by Hyland J that no efforts were made by Mr Collier, solicitor, to obtain the information through the avenues open to him and nor had he explained in affidavit evidence why he chose not to avail of those avenues. Hyland J identified the lack of any evidence from the applicant supporting the assertion that his rights were affected. In all the circumstances, Hyland J did not consider that the refusal of the prison staff to give out information in relation to the applicant to Mr Collier over the phone, without proof of identify or an authorisation, adversely affected the applicant’s rights or undermined his right of access to the court. Accordingly, Hyland J found that neither Mr Collier on behalf of the applicant, nor the applicant himself, had standing to advance the claim brought, either in respect of the order for mandamus or for declaratory relief.
Hyland J held that she would refuse the reliefs sought by the applicant.
Reliefs refused.
The applicant was a prisoner in Mountjoy Prison (the “Prison”) in December 2018. Due to an incident on 18 December 2018, he was transferred to what is referred to by the applicant as a “padded cell,” by the respondent as a “close supervision cell” and by Rule 64 of the Prison Rules, 2007 (S.I. 252 of 2007) (“ Prison Rules”) as a “special observation cell”. For the purposes of this judgment I will refer to it as a special observation cell. The applicant was held in this cell from 18.45 on 18 December 2018 until 11.00 on 23 December 2018 under Rule 64 of the Prison Rules.2. The applicant's mother was informed by the respondent that her son was in a special observation cell. She requested reasons for this transfer and was apparently informed she could not be told of same although there is no affidavit from her to that effect or any material exhibited to substantiate this account. She phoned Mr. Collier, solicitor, to tell him this on 22 December 2018. Mr. Collier telephoned the Prison that day and requested reasons for the transfer of the applicant to a special observation cell.
Mr. Collier was informed by a staff member at the Prison that this information could not be given to him due to GDPR constraints. Mr. Collier informed the staff member that this was a misinterpretation of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“GDPR”) [2016] OJ L 119/1 and that the applicant's family and solicitor were entitled to information concerning his personal welfare.
Mr. Collier wrote to the respondent via email on 22 December 2018 at 14.43 in the following terms:
“ Dear Governor,
I confirm that I act for Brandon Crosbie, I revived [sic] a call this afternoon from his mother who is concerned to be informed by the prison that Brandon is in a padded cell. She requested reasons for this and was informed that she could not be told.
I telephoned the prison and a staff member stated that details cannot be conveyed given GDPR constrains. I advised the staff member that this is a misinterpretation of GDPR and that a family member and a prisoners [sic] solicitor are absolutely entitled to information concerning a prisoners [sic] personal welfare.
Ms Crosbie can be contacted at [phone number given]. I would be obliged if you would State [sic] your position in relation to the release of personal information concerning the welfare of Brandon Crosbie.
In order not to take you short in any way it is my view that a failure to disclose this information is an over reach by the Prison and if the information is not disclosed, I will make an application to the high court this weekend for an emergency judicial review.
Yours sincerely
Tony Collier”
The respondent replied to Mr. Collier through a Ms. Boshell PHEO of the Prison Service some seven minutes later at 15.00, In the following terms:
“ Good afternoon
Your correspondence has been passed on to Prison Management as requested, and as advised by telephone conversation 22/12/18 non-disclosure of sensitive information due to an inability to confirm an individual over the phone enforces the GDPR process so to protect the named prisoner.
The prisoners [sic] safety and family members [sic] worries are of great concern to the Prison Service and the Governor on duty will take your enquiry as a matter of urgency.
Regards
Barbara Boshell PHEO”
On the same day, Mr. Collier subsequently phoned the respondent and spoke to a Chief Byrne who informed Mr. Collier that he would not give him Information relating to the applicant due to GDPR constraints. Mr. Collier said that this was a misinterpretation of GDPR. Chief Byrne agreed to respond to Mr. Collier prior to 20.00 on 22 December 2018. This did not occur. The applicant's mother later Informed Mr. Collier that she had not received any communication from the respondent. Again there was no affidavit evidence in this respect, or indeed in any respect, from the applicant's mother.
Mr. Collier wrote to the respondent via email on 22 December 2018 at 17.40 acknowledging the reply from Ms. Boshell as follows:
“ Dear Sirs,
We acknowledge receipt of your reply and note that at the time of this email we have not received a substantive reply concerning the reason why Brandon Crosbie has been placed in a padded cell.
We also provided a telephone number for Brandon's mother and she confirms that she has not yet received a call despite you being provided with the number at 3pm today.
Unfortunately a follow up call to Chief Byrne, was unfruitful. He informs that the staff member I was dealing with earlier is no longer on duty. This is obviously very unsatisfactory.
To be clear, the reliance on GDPR by the IPS in this situation is erroneous and the failure of the IPS to provide details concerning Brandon's placement in a padded cell is wholly inadequate.
As discussed on the phone, we have instructions from Brandon's mother to seek the intervention of the high court if the requested information is not provided by 8pm tonight.
Yours sincerely,
Tony Collier”
On 23 December 2018, the applicant was transferred from the special observation cell to the challenging behavioural unit at 11:00. The applicant attempted to ring Mr. Collier on 23 December 2018 and 24 December 2018 without success. Assistant Governor Flynn attempted to phone the applicant's mother three times on the 24 December 2018 without success.
Assistant Governor Flynn wrote to Mr. Collier via email on 24 December 2018 at 12.34 informing Mr. Collier of these efforts to make contact with the applicant's mother. This email was not responded to by Mr. Collier although It appears there is some question mark as to whether Mr. Collier received this email or not.
Mr. Collier then sought leave to bring judicial review proceedings ex parte on 24 December 2018 and obtained some but not all of the reliefs sought. Following the grant of ex parte leave (described below) on 24 December 2018, Mr. Collier and the applicant spoke via telephone on 27 December 2018 at 12.20. A visit between the applicant and his mother was facilitated between 11.00-11.30 on the 28 December 2018.
The applicant only swore an affidavit verifying the Statement of Grounds on 11...
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