Foy v Governor of Cloverhill Prison

JurisdictionIreland
CourtHigh Court
JudgeMr. Justice Charleton
Judgment Date29 June 2010
Neutral Citation[2010] IEHC 529
Docket Number[2009 o. 1316 JR]
Date29 June 2010

[2010] IEHC 529

THE HIGH COURT

[No. 1316JR/2009]
Foy v Governor Of Cloverhill Prison

BETWEEN

JOHN FOY
APPLICANT

AND

THE GOVERNOR OF CLOVERHILL PRISON
RESPONDENT

CONSTITUTION ART 41

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 8

PRISONS ACT 2007 S35

PRISON RULES 2007 SI 252/2007 RULE 35

PRISON RULES 2007 SI 252/2007 RULE 35(5)

PRISON RULES 2007 SI 252/2007 RULE 36

PRISON RULES 2007 SI 252/2007 RULE 72

PRISON RULES 2007 SI 252/2007 RULE 36(7)(A)

PRISON RULES 2007 SI 252/2007 RULE 36(7)(B)

MURRAY v IRELAND & AG 1985 IR 532 1985/9/2561

FAGAN, STATE v GOVERNOR OF MOUNTJOY PRISON UNREP MCMAHON 6.3.1978 1978/4

TURNER v SAFLEY 1987 482 US 78

CONSTITUTION

Family rights

Prisoner - Remand prisoner - Conditions of detention - Visitation - Physical contact - Reasonable management and governance of place of detention - Whether governor could restrict visitations with physical contact - Whether visitation policy violated family rights - Whether decision of prison governor relating to management of prison amenable to challenge - Whether decision arbitrary, discriminatory or wholly unreasonable - Murray v Ireland [1985] IR 532 applied; Turner v Safley (1978) 482 US 78 considered - Prison Rules 2007 (SI 252/2007) - Prisons Act 2007 (No 10) - Constitution of Ireland 1937, Article 41 - Relief refused (2009/1316JR - Charleton J - 29/6/2010)

Foy v Governor of Cloverhill Prison

Facts The applicant, who is serving a lengthy sentence of imprisonment for armed robbery was at the time of the events in question on remand in Cloverhill Prison. The applicant having sought reasons for the denial of physical contact during family visits was informed by the respondent that it was the policy of the prison. However, the respondent invited the applicant to apply for a box visit, which was a visit in a small room permitting physical contact. The applicant applied for and was granted one box visit. The applicant herein submitted that for the respondent to deprive him, as an innocent person, of physical contact with his family was to undermine his rights under Article 41 of the Constitution of Ireland and under Article 8 of the European Convention on Human Rights. The respondent set out on affidavit the reason for his policy of permitting screened visits only and in particular he stated that "the logic of screened visits is to prevent the unlawful or unauthorised smuggling into the prison of drugs or other prohibited articles or substances. I am aware that this problem is acute in a remand prison where pressure is brought to bear on young, inexperienced and vulnerable prisoners to facilitate such smuggling". Box visits were granted at the discretion of the respondent.

Held by Charleton J. in refusing the application: That prisons are operated by the Prison Service, under the general direction of the Minister for Justice, Equality and Law Reform. The Prison Rules 2007 (S.I. No. 252/2007) which were made under s. 35 of the Prisons Act 2007 govern the conduct of prisoners and prison authorities. Rule 36 of the 2007 Rules provides that every prison within the State is entitled to require visits, whether for remand prisoners or convicted prisoners, to take place without physical contact. It is a matter for the discretion of the Governor of each prison to permit physical contact during visits. Furthermore, pursuant to rule 72, the governor of a prison has general authority to manage the prison. The fact of imprisonment, of necessity, curtails the exercise of the rights guaranteed to the family under Article 41 of the Constitution. Exercising the balance between the rights of prisoners and the proper management of prisons are matters for prison governors. However, decisions made by governors are subject to judicial review. The court is entitled to interfere with a decision of a prison governor on the issue of prison governance and discipline only where there is proof of such unreasonable conduct by a prison governor which has the result of undermining the reasonable and practicable exercise of such constitutional rights as survive imprisonment and which flies in the face of fundamental reason and common sense as to the balance which the decision strikes. Such unreasonable conduct has not been proved to exist in this case. Having regard to the respondent's affidavit, there were weighty factors to justify the restriction on physical contact between prisoners and family members and those factors were not contradicted by the applicant by way of expert evidence or otherwise.

Reporter: L.O'S

Mr. Justice Charleton
1

Has a remand prisoner, presumed in law to be innocent of the offence for which he has been remanded, an entitlement under the Constitution, or under the European Convention on Human Rights, to physical contact with his family when they come to visit him?

2

John Foy, the applicant, is now a convicted prisoner. He is serving a lengthy sentence for armed robbery. At the time of the events of which he complains, he was a remand prisoner in Cloverhill Prison. He was therefore presumed to be innocent of any offence. His subsequent plea of guilty indicates that he was not in fact innocent of the offences for which is now serving a sentence. For the purposes of this judgment, however, he was then entitled to the presumption of innocence in law.

3

Cloverhill Prison has a general policy of allowing visits by relatives to prisoners only in closed circumstances. This means that the prisoner is ushered into the area for the visit and sits at a counter. His family is brought to the other side. Between them there is a screen. This prevents any physical contact between the visitor and the prisoner. In addition to a screened visit, as so described, there is the possibility of a box visit. This colloquialism refers to a visit which may be allowed a prisoner whereby he, and his family, are all allowed to be present together in one small room. In contrast to the screened visit, in the box visit there is physical contact. The prisoner can hug his wife and children, hold hands, or sit his off-spring on his knee. Both kinds of visits are observed by prison officers, who can also hear what is said; unlike in a lawyer and prisoner consultation, which is private and is only observed visually through a window. It is likely that a prison officer, in both a box visit and a screened visit, will be expected to observe several sets of visits by relatives to prisoners.

4

Some people refer to what prisoners call a box unit as an open visit. Visits where contact can be made are the norm, as I understand the submissions of counsel, in most Irish prisons at the present time. Cloverhill Prison is, in the main, a remand prison; though there are a few sentenced prisoners there also; for various administrative or security reasons.

5

John Foy claims that to deprive him, as an innocent person, of physical contact with his family is to undermine his rights under Article 41 of the Constitution and under Article 8 of the European Convention on Human Rights.

6

A number of issues have arisen between the parties. This has resulted in an exchange of alleged fact on affidavit. I will give some basic detail in relation to this.

7

On 23rd September 2009, John Foy's solicitors wrote to the governor of Cloverhill Prison. They complained that John Foy was visited every day by his wife but that she was only entitled to a screened visit; one without the possibility of physical contact. Reasons were sought for this situation. The governor replied, by letter dated 25th September 2009, that the policy of the prison was that visits were to be without physical contact. When a further protest, of a more detailed kind, was raised by John Foy's solicitors by letter dated 28th September 2009, the governor reiterated, in his reply of the 29th September 2009, that all visits were screened and without the possibility of physical contact. The letter went on to state, however, that a box visit, the kind involving physical contact within a small room, could be applied for by John Foy. Since this had not been applied for, the governor suggested that should such an application be made, he would review it on its merits.

8

When John Foy was first imprisoned on remand, a circular dated the 16th April 2001, seems to have governed box visits. It allowed prisoners to apply for a box visit and stated that such applications would be considered by the governor. This circular required prisoners to be inmates for not less than six months before a box visit might be allowed. A contact visit would only be granted on a Sunday and only nominated people would be allowed into the room. Shortly after the governor invited such an application, John Foy made one. It was allowed. A box visit took place a short time afterwards.

9

For reasons which appear to me to be coincidental with anything to do with the issues in his case, the governor of Cloverhill Prison, in or about this time, was becoming increasingly concerned with the regulation of visits. He decided to issue a visitor nomination form to each prisoner. This contained eight spaces in which the name of the proposed visitor, together with their address, relationship to the prisoner, and phone number could be entered. This nomination form required those attending to produce an acceptable form of identification with photograph. I am satisfied that most of the remand prisoners in Cloverhill Prison accepted this new system. In addition to the nomination of prisoners, it also provided for remand prisoner visits to be reduced from six fifteen minute visits per week, to four half an hour visits per week. This was a more efficient system and most of the prisoners accepted it, perhaps because it allowed more visiting time overall.

10

Possibly because John Foy had been upset by the insistence of the...

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