Devoy v Governor of Portlaoise Prison and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 22 June 2009
• Neutral Citation: [2009] IEHC 288
• Court: High Court
• Date: 22 June 2009

Devoy v Governor of Portlaoise Prison & Ors

BETWEEN

DEREK DEVOY

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON, THE IRISH PRISON SERVICE, AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM

RESPONDENTS

[2009] IEHC 288

[No. 165JR 2009]

THE HIGH COURT

Abstract:

Criminal law - Prisons - Certiorari - Treatment of prisoner - Decision of Governor - Transfer to isolation - Withdrawal of privileges - Whether transferral was unlawful - Prison Rules 2007

Facts: The applicant was sentenced to seven years imprisonment for possession of a firearm in 2007. In 2009 the applicant was transferred without prior notice to Portlaoise maximum security prison purportedly on foot of a Ministerial order without his clothes or personal effects and placed in isolation. The application argued that he was isolated and denied privileges unlawfully and sought certiorari of the decision to detain him in isolation.

Held by Edwards J. That the evidence did not support the contention that the applicant was in isolation and rather that he regularly had visitors. There was no evidence to suggest that his detention was inhumane. Rule 62(2) of the Prison Rules required “maintenance of good order” and a purposive interpretation of the Rule was required. The first named respondent’s decision to restrict the applicant’s association other than in accordance with Rule 62 was unlawful and a declaration would be so granted by the Court. However, the decision would not be quashed generally. It would be inappropriate to grant such relief. The Court would hear arguments as to costs.

Reporter: E.F.

FIREARMS ACT 1964 S27A

FIREARMS ACT 1964 S15(1)

FIREARMS ACT 1925 S15(A)

RSC O.84

CANNON, STATE v KAVANAGH 1937 IR 428

MCDONAGH, STATE v FRAWLEY 1978 IR 131

RICHARDSON, STATE v GOVERNOR OF MOUNTJOY PRISON 1980 ILRM 82

CAHILL v GOVERNOR OF MILITARY DETENTION BARRACKS CURRAGH CAMP 1980 ILRM 191

COMERFORD, STATE v GOVERNOR OF MOUNTJOY PRISON 1981 ILRM 86

CONSTITUTION ART 40.4.2

McCORMACK v GARDA SIOCHANA COMPLAINTS BOARD 1997 2 IR 489

O'LEARY v MIN FOR TRANSPORT & ORS 2000 1 ILRM 391

HYNES v WICKLOW CO COUNCIL 2003 3 IR 66

O'SIODHACHAIN v IRELAND UNREP SUPREME 12.02.2002 2002/23/5819

SHINE v MEDICAL COUNCIL UNREP SUPREME 14.7.2008 2008 IESC 41

COX v ESB (NO2) 1943 IR 231

WILDGUST v BANK OF IRELAND 2001 1 ILRM 242006 1 IR 570

O.84 r23(2)

PRISON RULES SI 252/2007 ART 75(1)

PRISON RULES SI 252/2007 ART 75 (7)

PRISONS ACT 2007 S35(1)

PRISONS ACT 2007 S35(2)

PRISONS ACT 20072007 PART 3

PRISONS ACT 2007 S12

PRISONS ACT 2007 S13

PRISONS ACT 2007 S12(2)

PRISONS ACT 2007 S12(3)

PRISONS ACT 2007 S12(1)

PRISONS ACT 2007 S12(3)

PRISONS ACT 2007 S12(4)

PRISONS ACT S13(1)

PRISONS ACT S13(7)

PRISON RULES SI 252/2007 PART 3

PRISON RULES SI 252/2007 PART 4

PRISON RULES SI 252/2007 ART 27

PRISON RULES SI 252/2007 ART 32

PRISON RULES SI 252/2007 ART 35

PRISON RULES SI 252/2007 ART 36

PRISON RULES SI 252/2007 ART 45

PRISON RULES SI 252/2007 ART 62

PRISON RULES SI 252/2007 ART 75

PRISON RULES SI 252/2007 PART 7

PRISON RULES SI 252/2007 ART 32(1)

PRISON RULES SI 252/2007 ART 32(2)

PRISON RULES SI 252/2007 ART 35(8)

PRISON RULES SI 252/2007 ART 35(9)

PRISON RULES SI 252/2007 ART 36(1)

PRISON RULES SI 252/2007 ART 36(4)

PRISON RULES SI 252/2007 ART 36(5)

PRISON RULES SI 252/2007 ART 36(6)

PRISON RULES SI 252/2007 ART 36(7)

PRISON RULES SI 252/2007 ART 36(8)

PRISON RULES SI 252/2007 ART 36(9)

PRISON RULES SI 252/2007 ART 43(1)

PRISON RULES SI 252/2007 ART 45(1)

PRISON RULES SI 252/2007 ART 45(2)

PRISON RULES SI 252/2007 ART 46(1)

PRISON RULES SI 252/2007 ART 46(2)

PRISON RULES SI 252/2007 ART 46(7)

PRISON RULES SI 252/2007 ART 46(8)

PRISON RULES SI 252/2007 ART 62

PRISON RULES SI 252/2007 ART 75(1)

PRISON RULES SI 252/2007 ART 75(2)

PRISON RULES SI 252/2007 ART 75(3)

PRISON RULES SI 252/2007 ART 75(5)

PRISON RULES SI 252/2007 ART 75(7)

MURRAY v IRELAND 1991 ILRM 465

RICHARDSON, STATE v GOVERNOR OF MOUNTJOY PRISON 1980 ILRM 82

BOYLE, STATE v GOVERNOR OF CURRAGH MILITARY DETENTION BARRACKS 1980 ILRM 242

HOLLAND v GOVERNOR OF PORTLAOISE PRISON 2004 2 IR 573

MURRAY v IRELAND 1985 IR 5321985 ILRM 542

DPP v SHAW 1982 IR 1

DPP v DELANEY 1997 3 IR 453

D v DPP 1994 2 IR 465

GALLAGHER, STATE v GOV OF PORTLAOISE PRISON UNREP FINLAY 18.5.1977 1977/4/656

DELANY JUDICIAL REVIEW OF ADMINISTRATIVE ACTION 2ED 2008

JOHNSTON v McDONNELL & DPP UNREP CHARLTON 23.5.2008 (EX TEMPORE)

CONSTITUTION ART 40.3

MURPHY v INDEPENDENT RADIO & TELEVISION COMMISSION 1999 1 IR 12

HEANEY v IRELAND 1994 3 IR 593

DPP v SHAW 1982 IR 1

PRISON RULES SI 252/2007 R 62(2)

1 Judgment of Mr. Justice John Edwards delivered on the 22nd day of June, 2009.

Background to the proceedings

2 The applicant in this matter is a prisoner who is currently serving two sentences at Portlaoise Prison. On 9 ^th March, 2007 he was sentenced to seven years imprisonment at Dublin Circuit Criminal Court on a charge of being in suspicious possession of a firearm contrary to s. 27A of the Firearms Act, 1964 (as amended). The final two years of that sentence were suspended for a period of five years after his release date. This sentence was back dated to the 3 ^rd May, 2006. Further, on the 6 ^th of February, 2008 he was sentenced to seven years imprisonment at Dublin Circuit Criminal Court on a charge of being in possession of a firearm with intent to endanger life, contrary to s. 15(1) of the Firearms Act, 1925 as amended. This sentence was also back dated to the 3 ^rd May, 2006.

3 Both warrants were issued to the Governor of Mountjoy Prison and consequently the applicant was lodged in Mountjoy Prison on 9 ^th March, 2007.

4 On 20 ^th January, 2009 the applicant was transferred without prior notice to Portlaise maximum security prison, purportedly on foot of a ministerial order. However, neither his clothes nor his personal effects were transferred with him to Portlaoise Prison. Upon his arrival at Portlaoise Prison he was placed in isolation in a cell in the segregation unit there. He contends that he is being denied access to education and leisure facilities, that his visiting entitlements have been restricted to non contact and screened visits and that he is being provided with extremely limited opportunities to avail of telephone facilities. He further states that he has not been charged with, never mind been convicted of, any breach of prison discipline such as might justify his isolation or a withdrawal of privileges. The applicant claims to have sought reasons as to why he has been transferred and is now being isolated in a segregation unit and denied privileges, and he claims that no satisfactory explanation has been given to him. In the circumstances he then instructed the firm of Fahy Bambery McGeever, Solicitors to take the matter up on his behalf.

The initial application seeking leave to apply for judicial review - pleadings, affidavits and procedural issues

5 According to an affidavit of a Mr. Declan Fahy, a solicitor in that firm, sworn on 11 ^th February, 2009 the said firm of solicitors entered into correspondence with the Governor of Portlaoise Prison with a view to obtaining an explanation for the applicant's sudden transfer and for the change in the conditions of his detention. As no satisfactory explanation were forthcoming, an application was made to the Court on 16 ^th February, 2009 for leave to apply by way of an application for judicial review for diverse reliefs as set out in Part D of a draft Statement Required to Ground an Application for Judicial Review prepared in accordance with Order. 84 of the Rules of the Superior Courts. The reliefs sought, as pleaded in Part D of that document, are in the following terms:-

6 2 "1. An order of mandamus directing the first named respondent to remove the applicant from isolation and to effect his return to the ordinary prison population.

7 2. An order of mandamus directing the first named respondent to provide the applicant with the grounds upon which a decision has been taken to detain him in isolation from other prisoners, to deny him access to education and leisure facilities, to restrict him to non-contact and screened visits and to limit his telephone usage.

8 3. An order of mandamus directing the second named respondent to provide the applicant with the grounds upon which a decision has been taken to detain him in isolation from other prisoners, to deny him access to education and leisure facilities, to restrict him to non-contact and screened visits and to limit his telephone usage.

9 4. An order of mandamus directing the third named respondent to provide the applicant with the grounds upon which a decision has been taken to detain him in isolation from other prisoners, to deny him access to education and leisure facilities, to restrict him to non-contact and screened visits and to limit his telephone usage.

10 5. An order of certiorari quashing the decision of the second named respondent to detain the applicant in isolation.

11 6. An order of certiorari quashing the decision of the third named respondent to detain the applicant in isolation.

12 7. A declaration that the decision to detain the applicant separately from other prisoners was made other than in accordance with the requirements of natural and constitutional justice.

13 8. A declaration that the decision to detain the applicant separately from other prisoners was made other than in accordance with the Prison Rules 2007, as enacted in S.I. No. 252 of 2007.

14 9. A declaration that the failure to provide the applicant with any reasons for his being detained separately from other prisoners is other than in accordance with the requirements of natural and constitutional justice.

15 The said reliefs were sought upon the following grounds as...