Holland v Governor of Portlaois Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice William M. McKechnie
• Judgment Date: 11 June 2004
• Neutral Citation: [2004] IEHC 97
• Court: High Court
• Date: 11 June 2004

[2004] IEHC 97

THE HIGH COURT

[2001 No. 779 J.R.]

HC 208/04

HOLLAND v. GOVERNOR OF PORTLAOISE PRISON

JUDICIAL REVIEW

BETWEEN

PATRICK HOLLAND

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISION

RESPONDENT

Citations:

CRIMINAL PROCEDURE ACT 1993

RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 RULE 59

RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 RULE 63

CONSTITUTION ART 40.6.1

CONSTITUTION ART 40.3.2

MCDONALD V BORD NA GCON 1965 IR 217

GLOVER V BLN LTD 1973 IR 388

HEANEY V IRELAND 1994 3 IR 593

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

CONSTITUTION ART 40.3.1

IRISH TIMES V MURPHY 1998 1 IR 359 1997 2 ILRM 541

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 10

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORP 1948 1 KB 223

DESMOND V GLACKIN ROI 1992 ILRM 490

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE LEECH 1993 4 AER 539

R V SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE SIMMS 1999 3 AER 400

KEARNEY V MIN JUSTICE & ORS 1986 1 IR 116

PROCUNIER V MARTINEZ 1973 416 US 296

HOLLAND V MIN JUSTICE UNREP SUPREME 9.7.1993 2000/10/3782 (EX TEMPORE)

MCDERMOTT PRISON LAW 141

HUTCHINSON V DEPARTMENT OF JUSTICE UNREP SUPREME 16.10.1992 1999/14/3899

O'KEEFFE V AN BORD PLEANALA 1993 1 IR 39

R (HIRST) V SECRETARY OF STATE FOR THE HOME DEPT 2002 1 WLR 2929

CONSTITUTION ART 34

CONSTITUTION ART 40

DUFF V MIN AGRICULTURE (NO 2) 1997 2 IR 22

EAST DONEGAL CO-OPERATIVE LIVESTOCK MART LTD V AG 1970 IR 317

KEEGAN, STATE V STARDUST COMPENSATION TRIBUNAL 1986 IR 642

ASSOCIATED PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORP 1948 1 KB 223

COUNCIL OF CIVIL SERVICE UNIONS V MIN FOR CIVIL SERVICE 1985 AC 374

STATE (MURRAY) V GOVERNOR LIMERICK PRISON UNREP DARCY 23.8.1978 1978/9/

AG V PAPERLINK LTD 1984 ILRM 373

MURPHY V IRTC 1999 1 IR 12

MURRAY V AG 1985 IR 532

CONSTITUTION ART 40.3

STATE (MCDONAGH) V FRAWLEY 1978 IR 131

STATE (FAGAN) V GOVERNOR MOUNTJOY PRISON UNREP MCMAHON 6.3.1978 1978/4

STATE (RICHARDSON) V GOVERNOR MOUNTJOY PRSION 1980 ILRM 82

WOLFF V MCDONNELL 1973 418 US 539

GILLIGAN V GOVERNOR OF PORTLAOISE PRISON UNREP MCKECHNIE 12.4.2001

GALLAGHER V DIRECTOR OF THE CENTRAL MENTAL HOSPITAL (NO 2) 1996 3 IR 10

RE ART 26 & THE EMPLOYMENT EQUALITY BILL 1996 1997 2 IR 321

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 8.2

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 9.2

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 10.2

EUROPEAN CONVENTION ON HUMAN RIGHTS ART 11.2

RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 RULE 59.1

RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 RULE 59.2

RULES FOR THE GOVT OF PRISONS 1947 SR & O 320/1947 RULE 59.4

MISHRA V MIN JUSTICE 1996 1 IR 189

BREATHNACH V IRELAND 2001 3 IR 230 2001/2/399

CONSTITUTION ART 40.1

DRAPER V AG 1984 IR 277

MURRAY & MURRAY V IRELAND 1991 ILRM 465

PRISON ACT 1952

ABRAMS V US 1919 250 US 616

Synopsis:

- [2004] 2 IR 573

Facts: the applicant, a prisoner in Portlaoise prison, requested that the respondent allow a journalist interview him about an alleged miscarriage of justice concerning his conviction. His request was refused outright by the respondent on the basis that it was contrary to rules 59 and 63 of the Prison Rules 1947 not to have visits or communication between prisoners and members of the media. He obtained leave to apply by way of judicial review to quash that refusal and seek declarations that the refusal was ultra vires and void on the grounds, inter alia, that the refusal was based on general and non specific policy considerations and that the rules were applied in a rigid manner which amounted to an unlawful fettering of discretion. It was submitted that the prison rules had to be interpreted and applied in a manner consistent with, and which respected, the constitutional rights of the applicant. The respondent submitted that the policy and rules relied on were based on the interests of security and good order within the prison and there could be no scope for individualisation in their application because of the absolute requirement of consistency of treatment between all prisoners.

Held by McKechnie J that a right to communicate was a basic constitutional right which, however, was not absolute and its exercise could be subject to lawful conditions, restrictions or limitations. Apart from the rights, the exercise of which could be suspended, abrogated or otherwise interfered with, being those which necessarily followed from the prisoner having to serve a term of imprisonment and from the requirements of the prison to sustain security and good order therein, all other constitutional rights survived a prisoner’s incarceration. Any permissible abolition or any interference, restriction or modification on that right should be strictly construed with the onus of proof being on he who asserts any such curtailment. There was nothing in the rules relied on by the respondent which would entitle him to refuse every prisoner, in all circumstances, every request to communicate with members of the media. Moreover, a person who had a discretion in making certain decisions could, by means of policy, guidelines or other indicative means, guide the implementation of that discretion. However, the existence of such guidelines could not be such as to disable or deprive that person of meaningfully adjudicating on a particular issue and of exercising his discretion with regard to the decision ultimately arrived at. Accordingly, the respondent had to give individual consideration to each request made by a prisoner to communicate with members of the media and by not properly considering and evaluating the applicant’s request the respondent violated the legal restraint on a decision-maker who is vested with a discretion not to fetter his discretion.

Reporter: P.C.

1 Mr. Justice William M. McKechnie delivered on the 11th day of June 2004.

2 1. Patrick Holland, the above named applicant in these judicial review proceedings was convicted by the Special Criminal Court on 29 ^th November, 1997 of certain offences relating to the possession and sale and supply of drugs. He was, by that court on that date, sentenced to 20 years imprisonment. Having appealed both conviction and sentence, the Court of Criminal Appeal on 15 ^th June, 1998 affirmed his said conviction but reduced the imposed sentence from one of 20 years to one of 12 years. He is currently serving this sentence in Portlaoise Prison.

3 2. Mr. Holland claims that he is the subject matter of a miscarriage of justice, in that it is alleged by him that certain members of An Garda Síochána deliberately withheld vital documents from both the Special Criminal Court and the Court of Criminal Appeal which documents, if produced, would have demonstrated in his opinion, that the main prosecution witness called against him committed perjury and secondly that certain "alleged" admissions made by him whilst in garda custody were forged and concocted by one or more members of the an Garda Síochána which members were the same as those who "collaborated with other Gardaí, in the McBrearty case in Donegal". This latter reference is to events and circumstances involving, inter alia, some members of the Gardaí in Donegal whose alleged activity is presently being inquired into by a tribunal inquiry presided over by Mr. Justice Morris. The applicant, therefore, seeks access by way of correspondence to and with, and by way of visits from the media whom he hopes to interest, and therefore encourage to investigate, by means of their chosen profession, this alleged miscarriage of justice. If successful he hopes by this and other means to gather sufficient evidence which would merit a serious review of his case under the Criminal Procedure Act, 1993. It is the outright refusal of the respondent Governor to permit any communication, by either means with him, at Portlaoise Prison that gives rise to this application.

4 3. It should, immediately, be said that what has been urged by Mr. Holland is and remains solely at allegation stage and is set in the context of a conviction by a court of first instance and the rejection of his appeal by the appellate court. There are also a set of circumstances in which the alleged members of the An Garda Síochána have not been either identified or given any opportunity to refute or otherwise comment on these suggestions. Accordingly, this court expresses no view whatsoever on the truthfulness or accuracy of these allegations and wishes to say that no adverse imputation should be attributable to any of the Gardaí in question. Subject to such observations, however, and purely for the purposes of setting out the background and establishing the foundation for this application, it must be noted that no suggestion has been made on behalf of the respondent that the activity of the applicant lacks bonafides or is designed for some criminal or illegal purpose or is driven by a desire to create unrest whether the prisoner or otherwise has some ulterior motive.

5 4. On 11 ^th April, 2001 the applicant sought permission from the Governor to communicate by way of letter with RTÉ in respect of a Prime Time programme on the "arms trial" which dealt with an allegation of non-disclosure of documents in that historic case. His request was refused and the intended letter returned to him. On 5 ^th or 6 ^th November of the same year, with the precise date not being relevant, and which I am taking as the 6 ^th, the applicant also requested permission to again send a letter to the same television programme broadcast by RTÉ. Mr. Thomas Dormer, Deputy Governor acting on behalf of the respondent, refused this request and noted the same in the Governor's book. The relevant entry under the column "Decision" simply recorded the word "refused".

6 5. Mr. Holland, who originally appeared in person, obtained leave from Ó Caoimh J. on 5 ^thDecember, 2001 to seek various...