Daniel Mcdonnell v Governor of Wheatfield Prison

• Jurisdiction: Ireland
• Judge: Mr Justice CREGAN
• Judgment Date: 20 March 2015
• Neutral Citation: [2015] IEHC 362
• Court: High Court
• Date: 20 March 2015

[2015] IEHC 362

HIGH COURT

[No. 87 JR/2015]

McDonnell v Governor of Wheatfield Prison (No.2)

JUDICIAL REVIEW

BETWEEN

DANIEL MCDONNELL

APPLICANT

AND

THE GOVERNOR OF WHEATFIELD PRISON (NO. 2)

RESPONDENT

Crime & Sentencing – The Prison Act – Solitary confinement – Violation of Constitutional rights

Facts: Following the judgment of the Court that there was a breach of constitutional rights of the applicant, the applicant now came to the Court for grant of an injunction restraining the respondents from further breaching the constitutional rights of the applicants having bodily and psychological integrity. The applicant sought an injunction directing the respondents to absolve the said constitutional rights while managing the conditions of the applicant's detention. The applicant contended that he was kept on solitary confined for 12 months contrary to the Prison Act and his request to associate with two other prisoners was declined.

Mr. Justice Cregan granted an injunction directing the respondent to allow the applicant two hours on an average per day (five days per week) social interaction and permission to have two family visits per week for approximately one hour each. The Court observed that the applicant being the most vulnerable prisoner within the Irish prison system, the respondent had to take utmost care and exceptional steps while ensuring vindication of applicant's constitutional rights. The Court concluded that the applicant could be allowed to interact with the two prisoners that the applicant wanted irrespective of the wishes of those two prisoners keeping in lieu of the deteriorating mental and psychological health of the applicant. The Court held that the confinement of the applicant in a cell for 12 months was a clear violation of s. 13 (1) (c) of the Prison Act which permitted that confinement only for three day, thus violated the constitutional rights of the applicant.

1 JUDGMENT of Mr Justice CREGAN delivered on the 20th day of March, 2015

Introduction:

2 1. This is an application brought by the Applicant pursuant to a previous judgment of mine, in McDonnell v The Governor of Wheatfield Prison Record No. 2014/ 636 JR (delivered on the 17 ^th February, 2015). In that case I held:

3 (1) That the Applicant had a constitutional right to bodily and psychological integrity.

4 (2) That there had been a breach of these constitutional rights.

5 (3) That such a breach was unlawful and neither necessary nor proportionate to the perceived threat to his person.

6 2. Subsequently, the same Applicant brought an application for further reliefs. The reliefs sought in this set of proceedings, as set out in the Statement of Grounds, dated 20 ^th February, 2015, are for:

7 (i) An injunction restraining the Respondent from further breaching the Applicant's constitutional rights to bodily and psychological integrity.

8 (ii) An injunction directing the Respondent to vindicate the Applicant's constitutional rights to bodily integrity and psychological integrity when managing the conditions of the Applicant's detention.

Summary of Affidavit evidence:

Applicant's Affidavit

9 3. In the affidavit of Ms Deborah Cody, sworn on the 20 ^th February, 2015, for and on behalf of the Applicant, it is deposed that:

10 (1) The Applicant has remained on 23 hour lock - up and there have been no changes to his condition of detention since the judgment was delivered.

11 (2) The Applicant's requests to associate with two other prisoners were declined by Governor Kavanagh.

12 (3) The Applicant has been attending the gym in East 2 on his own three times a week since the week of the 9 ^th Febmary - however, he would prefer it if he could go to the gym with other prisoners.

13 (4) The Applicant believes there are no issues between himself and another named prisoner and in that regard points to the fact that they were both brought down to the visiting area together one Tuesday and there was no tension or disagreement between them.

14 (5) The Applicant gave his solicitors express instructions that he wanted his solicitors to make any applications to the High Court they considered appropriate to vindicate his rights.

Respondent's Affidavit

15 4. In the affidavit of Patrick Kavanagh, Governor of Wheatfield Place of Detention, sworn on the 26 ^th February, 2015, it is averred that:

16 (1) The Applicant is currently detained under rule 63 pursuant to a decision made by the Governor that the Applicant be kept separate from other prisoners who are reasonably likely to cause him significant harm.

17 (2) The prisoner is being detained on the West 2 landing. (West 2 is a secure area to which other prisoners in the general population do not have access).

18 (3) The Governor is of the belief that all of the other prisoners on West 2 are reasonably likely to cause significant harm to the Applicant.

19 (4) Five prisoners have remained on West 2 for longer than is normal; three, (including the Applicant) are there due to a serious threat to their lives.

20 (5) Although the Applicant states he can mix with certain prisoners, the Governor does not deem it safe for him to associate with any of them at this time.

21 (6) The Applicant was transferred to Wheatfield Place of Detention from Mountjoy prison in February 2014 for safety reasons.

22 (7) Upon his arrival in Wheatfield, the Applicant was originally associating with two other prisoners; however, the Applicant fell out with these in June 2014 and did not then associate with other prisoners. Due to the fluid nature of the population on West 2 and the serious threat against Daniel McDonnell, he has been unable to associate with other prisoners on the landing.

23 (8) The Applicant has, in total, 89 disciplinary reports, the most serious of which are assaults on staff and prisoners, attempted assaults on staff and prisoners and threats to staff.

Oral Evidence of the Respondent

24 5. Governor Kavanagh gave oral evidence in relation to this matter. Mr. Kavanagh joined the Irish Prison Service in 1989 and has 26 years experience in the Prison Service. He spent 19 years in Mountjoy Prison and various times in other prisons. He spent three years as Governor of Loughan House Prison. Three years ago he was appointed as one of the governors in Wheatfield and he is now the operational governor in Wheatfield. He gave evidence about the exact conditions on the West 2 landing in which the Applicant is currently imprisoned.

25 6. There are ten ordinary cells on this landing. At paragraph 10 of his replying affidavit, Mr. Kavanagh had stated that all the other prisoners on the West 2 landing were reasonably likely to cause significant harm to the Applicant. Mr. Kavanagh gave evidence to expand upon this averment. The position in relation to the ten cells is as follows

26 (1) The Applicant is in one cell.

27 (2) Prisoner 2 is in another cell. This prisoner is also in the r. 63 detention for his own protection because there is, the Governor believes, a serious threat to his life also. Indeed he has already been the subject of one assault. There are issues between the Applicant and prisoner 2 and they apparently have fallen out. The Applicant believes however that he could associate with this prisoner. This prisoner does not pose a threat to the Applicant.

28 (3) The prisoner in cell number 3 (prisoner 3) does not wish to associate with the Applicant. However, he does not pose a threat to the Applicant.

29 (4) The prisoner in the fourth cell is a prisoner with mental health issues and a propensity for violence. He has committed numerous assaults on staff and prisoners. He has also made a specific threat against the Applicant. Therefore the Respondent is of the view that it would not be in the Applicant's interest or safety to associate with this prisoner.

30 (5) The prisoner in cell 5 is also a volatile and violent and dangerous prisoner. There are numerous incidents within the prison where he has assaulted other prisoners or prison officers. Again the Respondent has fears for the Applicant's safety if he associates with this prisoner.

31 (6) The prisoner in the sixth cell is a prisoner who has 65 offences for assaults on staff and other prisoners. He has a propensity to violence. In the Governor's view it is not safe to risk the Applicant in his company. The Applicant has indicated a wish to associate with this prisoner but the Respondent is of the view that it is not safe to risk the Applicant in this prisoner's company.

32 (7) The above are all the longer term prisoners in West 2 under r.62 or r.63. In addition, in the seventh cell, there is a prisoner awaiting a bed in the Central Mental Hospital and the Respondent is of the view that it would not be appropriate for the Applicant to associate with him.

33 (8) In the eighth cell there is a prisoner from Portlaoise who is the subject of a disciplinary procedure within Portlaoise Prison and who has been sent to Wheatfield. However either of these prisoners could be removed from West 2 Wing at any stage.

34 (9) In relation to the eighth cell there is one person who is there on r.62 - for disciplinary offences and the Governor is of the view that this person also is not an appropriate person with whom the Applicant could associate.

35 (10) Cells 9 and 10 - prisoners in these cells have assaulted prison officers and the Respondent is of the view that it would be dangerous for the Applicant to associate with these prisoners also.

36 7. Again and again Governor Kavanagh stated emphatically that the Applicant was at serious risk in Wheatfield Prison of suffering harm to his life or his health by virtue of attacks from other prisoners. Moreover Mr. Kavanagh stated that, based on his long experience in prisons, it is his view that...