Daniel McDonnell v Governor of Wheatfield Prison

• Jurisdiction: Ireland
• Judgment Date: 31 July 2015
• Neutral Citation: [2015] IECA 216
• Date: 31 July 2015
• Court: Court of Appeal (Ireland)

[2015] IECA 216

THE COURT OF APPEAL

The President

Birmingham J.

Hogan J.

[90/2015]

[160/2015]

Daniel McDonnell v Governor of Wheatfield Prison

BETWEEN

DANIEL McDONNELL

RESPONDENT

AND

THE GOVERNOR OF WHEATFIELD PRISON

APPELLANT

Prisoner – Mandatory injunction – Breach of constitutional rights – Respondent seeking injunctions against restrictions imposed by prison authorities – Whether the applicant had established any continuing breach of his constitutional rights

Facts: The respondent, Mr McDonnell, is serving a life sentence in Wheatfield Prison. In two judgments, the High Court gave urgent, careful consideration to the conditions in which the respondent is serving his sentence: McDonnell v Governor of Wheatfield Prison [2015] IEHC 112, [2015] 2 ILRM 38. He has been the subject of successive orders to keep him separate from other prisoners who may pose a threat to him. The High Court accepted that he was in danger and needed protection but held that the resulting restrictions which had been imposed by the prison authorities were unnecessarily oppressive and breached his constitutional rights. The Court granted injunctions intended to alleviate the most isolating and potentially injurious features of the regime. The appellant, the Governor of Wheatfield Prison, appealed to the Court of Appeal on a number of grounds, including that the applicant had not established any continuing breach of his constitutional rights, having regard to the Prison Rules, the Constitution and relevant case law, and that it was not appropriate for the trial judge, Cregan J, to exercise his discretion to grant a mandatory injunction in the circumstances of the case.

Held by the Court that the trial judge fell into error in making the declarations and orders in these cases; in holding that there was a continuing breach of Mr McDonnell”s constitutional right to bodily integrity because of the conditions of his detention, having regard to all the circumstances; that there was an obligation on the Court to remedy the breach as far as possible and that the Court was in a position to do so by granting an injunction specifying minimum facilities for association with two other prisoners. The declaration that Mr McDonnell was being kept in solitary confinement in breach of his constitutional rights was held to not reflect a sufficient or correct analysis of the complex issues in the case because: 1) the nature of the threat to Mr McDonnell was grave; 2) the only purpose of the conditions was protection; 3) these arrangements were temporary; 4) the authorities wished to alleviate conditions as much as they could and as soon as was possible; 5) the situation was reviewed constantly; 6) the actual conditions, although harsh, were not intolerable; 7) Mr McDonnell did have contact with other persons besides prison officers, for example, listeners and family, as well as legal advisers, medical personnel, psychology and psychiatry services; 8) opportunities for prisoner social contact on that wing were limited because of the circumstances consigning them to that location; 9) part of the problem was in the control of Mr McDonnell himself, which was not a matter of blame but recognition of a fact, because of his own status and his relationship with the other two suitable fellow occupants of the wing; 10) there was no element of punishment; and 11) the Governor accepted that the situation was difficult and harsh and was endeavouring to improve conditions. The Court noted that the High Court did not have accurate, up to date evidence of the prisoner”s mental health because he had exercised his entitlement to withhold it. In the absence of that information, the Court held that the High Court was not justified in deducing an incipient deterioration of Mr McDonnell”s mental condition by reason of the conditions of detention.

The Court held that the appeals would be allowed and that the orders of the High Court would accordingly be set aside.

Appeal allowed.

1 JUDGMENT of the Court delivered on 31st July 2015

Introduction

2 1. In two judgments that are the subject of these appeals, the High Court gave urgent, careful consideration to the conditions in which Mr. Daniel McDonnell is serving a life sentence in Wheatfield Prison: see McDonnell v. Governor of Wheatfield Prison [2015] IEHC 112, [2015] 2 I.L.R.M. 38. He has been the subject of successive orders to keep him separate from other prisoners who may pose a threat to him. The High Court accepted that he was in danger and needed protection but held that the resulting restrictions which had been imposed by the prison authorities were unnecessarily oppressive and breached his constitutional rights. The Court granted injunctions intended to alleviate the most isolating and potentially injurious features of the regime. The Governor appeals on a number of grounds, including that the applicant had not established any continuing breach of his constitutional rights, having regard to the Prison Rules and the Constitution and relevant case law, and that it was not appropriate for the trial judge, Cregan J., to exercise his discretion to grant a mandatory injunction in the circumstances of the case.

Background

3 2. The applicant was born on 4 ^th October 1994 and is now 20 years of age. On 24 ^th January 2014, the applicant was convicted of the murder of Ms. Melanie McCarthy McNamara. Following his conviction, he was sentenced to life imprisonment and began to serve his sentence in Mountjoy Prison. The prison authorities in Mountjoy became aware of a threat to his safety in that prison and he was transferred to Wheatfield Prison. The Governor of that prison was still very concerned that Mr. McDonnell was at risk and he made a series of orders that he be kept separate from other prisoners. Since his arrival in Wheatfield in February 2014, the applicant has been subject to repeated and continuous directions under r. 63 of the Prison Rules 2007. The respondent has made these directions because he is in possession of credible evidence of a threat to the applicant's safety within the prison from persons connected to the murder victim.

4 3. Under r. 63 of the Prison Rules 2007, a prisoner may be kept separate from other prisoners who are reasonably likely to cause harm to him. This may happen because the prisoner requests it or when the Governor considers it necessary. In this case, the Governor of Wheatfield Prison considers it necessary for Mr. McDonnell to be kept separate from almost all of the other prisoners under his control. The evidence presented to the High Court was that Mr. McDonnell is the prisoner who is most at risk within the entire prison system. Because of the extreme danger that Mr. McDonnell is in, extreme measures have had to be taken by the authorities to ensure his safety. He is detained in a cell on the most secure wing in the prison where other potentially endangered prisoners (include persons who testified for the prosecution against their former associates) are housed. Even on this specially protected landing, the prisoners do not associate among themselves, again for reasons of prisoner safety. They have different reasons for being housed in that location.

5 4. Mr. McDonnell's situation is worsened by two factors. One is his status at basic level as a prisoner because of disciplinary issues. This means that he is not entitled to certain privileges. The other factor is that he fell out with the only two prisoners with whom he might be able to associate and they have said that they do not want to associate with him.

6 5. It is clear on any view of the evidence that the applicant is in difficult, isolated protective custody that is very hard for a young man to cope with or to consider might be his fate for a long time to come. The details of his custody were in dispute to some degree and one of the issues raised in these appeals is whether the High Court judge was able or entitled to attempt resolution of conflicting affidavit testimony. Having said that, whichever version of the details of Mr. McDonnell's custody one were to accept, the situation in which he finds himself is, indeed, deeply troubling for any observer to contemplate and extremely onerous for the unfortunate prisoner himself.

7 6. Some reference to the evidence in the High Court will illustrate the background to these judicial review applications that are the subject of the present appeals. The most comprehensive and direct evidence was tendered by Governor Kavanagh of Wheatfield Prison. The trial judge set it out very fully in his judgment of 20 ^th March 2015. It is perhaps regrettable that this comprehensive exposition of the situation and of the position of the Governor was not before the Court in the first application. That may account for some of the issues that have given rise to controversy.

Procedural History

The First Set of Proceedings

8 7. In judicial review proceedings [2014 No. 636 J.R.], Cregan J. found that the circumstances of solitary confinement imposed on the applicant amounted to a violation of his constitutional rights. He came to this conclusion based solely on affidavit evidence. The evidence for the applicant was in the affidavit of his solicitor, Ms. Deborah Cody. The replying affidavit was by Mr. Sean O'Reilly, Assistant Governor of Wheatfield Prison.

9 8. The judgment in the first application cites, and the judge accepts, Ms. Cody's affidavit as follows:-

"The applicant's conditions of detention in Wheatfield Prison under these r. 63 directions are extremely restricted. He is, in effect, in solitary confinement. He has been on '23 hour lockup' for almost a year. He is effectively isolated from all other prisoners within the prison not just those prisoners who are considered likely to...