Holland v Governor of Portlaoise Prison

• Jurisdiction: Ireland
• Court: High Court
• Judgment Date: 11 June 2004
• Date: 11 June 2004
• Docket Number: [2001 No. 779 JR]

Holland v. Governor of Portlaoise Prison

Patrick Holland

Applicant

and

Governor of Portlaoise Prison

Respondent

[2004] IEHC 208

[2001 No. 779 JR]

High Court

Constitution - Personal rights - Freedom of expression - Prisoners - Right to communicate - Letter - Visit - Constitutional rights of prisoners - When infringement or restriction on exercise of prisoners' rights justified - Whether infringement necessary to achieve objective - Whether necessary or essential to objective sought - Onus of proof - Proportionality test - Constitution of Ireland 1937, Article 40.3.1 and 40.6.1(1).

Criminal law - Prisoners - Access to media - Blanket ban - Grounds of security and prison discipline - Prison service policy - Value of investigative journalism in administration of justice - Right to communicate - Freedom of expression - Prison Rules 1947 (S.I. No. 320), rr. 59 and 63.

The applicant, who was serving a sentence of twelve years imprisonment, claimed he was the subject of a miscarriage of justice and sought access to members of the media by way of correspondence and visits in the hope of interesting and encouraging them to investigate the alleged miscarriage of justice. The respondent refused to permit any such communication.

The applicant was granted leave to seek judicial review of the respondent's refusal on the grounds, inter alia, that the refusal to grant access by prison visits to members of the media was based on general and non-specific policy considerations and not on an individual determination of the applicant's situation and that the Prison Rules 1947, as applied by the respondent, were in breach of the applicant's right to express freely his convictions and opinions and his right to have his rights vindicated by the State in the case of an alleged injustice done.

In reply the respondent contended, inter alia, that the denial of access to the media was reasonable and the respondent's refusal, applying the Prison Rules, was made on the grounds of security and good order within the prison; as a matter of policy the prison service did not permit prisoners to conduct campaigns through the media because of the potential to cause disruption within the prison and to cause upset to prisoner's victims and their families.

Held by the High Court (McKechnie J.), in granting the reliefs sought, 1, that the Prison Rules must be construed and applied in such a manner as respected and vindicated the constitutional rights of the prisoner and which upheld the principles of natural justice.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317 applied.

2. That, by virtue of a lawful sentence of imprisonment being imposed on and being served by a prisoner, that person, for the duration of his sentence, had to suffer not only interference with the exercise of his constitutional right to liberty but had to suffer such restrictions on other constitutional rights which were necessary in order to accommodate the serving of that sentence. However, all other rights survived a prisoner's incarceration and must be capable of exercise by him in the context of his incarceration.

The State (Fagan) v. Governor of Mountjoy Prison (Unreported, High Court, McMahon J., 6th March, 1978);The State (Richardson) v. Governor of Mountjoy Prison[1980] I.L.R.M. 82; Murray v. Ireland[1985] I.R. 532 andKearney v. Minister for Justice[1986] I.R. 116applied. Breathnach v. Ireland[2001] 3 I.R. 230distinguished.

3. That any infringement or restriction on the exercise of a constitutional right of a prisoner must be not more than what was necessary or essential for the protection of the interest or objective which grounded the justification for such interference or restriction in the first place.

Kearney v. Minister for Justice [1986] I.R. 116followed.

4. That, given that the right in issue was constitutionally based, any permissible abolition, even for a limited period, or any interference, restriction or modification on that right should be strictly construed with the onus of proof being on he who asserted any such curtailment.

5. That a test of proportionality was applied when considering constitutional rights.

Heaney v. Ireland [1994] 3 I.R. 593 followed.

6. That there was no provision within the Prison Rules which entitled the respondent to adopt a policy which enabled him, when dealing with the media, to refuse every prisoner, in all circumstances, every request no matter what the purpose of the intended communication was. The respondent was not entitled to apply that blanket policy but must give individual consideration to each request made by a prisoner either to write to or receive letters from members of the media and must likewise evaluate any application for a prison visit by members of the media.

7. That an agency such as investigative journalism was and could be a productive and probative vehicle in the overall administration of justice.

• R. v. Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C. 115 approved.

8. That, where the exercise of a fundamental constitution right such as the right to communicate was at the core of an application, the test of whether the decision maker had relevant material before him was neither proper nor appropriate.

The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642 and O'Keeffe v. An Bord Pleanála[1993] 1 I.R. 39 distinguished.

Obiter dictum: In circumstances where it was assumed that the prisoner's requests were properly considered by the respondent but that his response was, that on grounds of security and prison discipline, he was justified in coming to the conclusion that every request by every prisoner for communication with the media should be refused, such a blanket ban would be disproportionate to the objective which the respondent sought to maintain and as a result would be unlawful.

Cases mentioned in the report:-

Abrams v. United States (1919) 250 U.S. 616.

Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223.

Attorney General v. Paperlink Limited [1984] I.L.R.M. 373.

Breathnach v. Ireland [2001] 3 I.R. 230.

Council of Civil Service Unions v. Minister for the Civil Service [1985] A.C. 374; [1984] 3 W.L.R. 1174; [1985] I.C.R. 14; [1984] 3 All E.R. 935.

Desmond v. Glackin (No. 1) [1993] 3 I.R. 1; [1992] I.L.R.M. 490.

Draper v. The Attorney General [1984] I.R. 277; [1984] I.L.R.M. 643.

Duff v. Minister for Agriculture and Food (No. 2) [1997] 2 I.R. 22.

East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

The Employment Equality Bill, 1996 [1997] 2 I.R. 321.

Application of Gallagher (No. 2) [1996] 3 I.R. 10.

Gilligan v. Governor of Portlaoise Prison (Unreported, High Court, McKechnie J., 12th April, 2001).

Glover v. B.L.N. Ltd. [1973] I.R. 388.

Heaney v. Ireland (S.C.) [1996] 1 I.R. 580; [1997] 1 I.L.R.M. 117; (H.C.) [1994] 3 I.R. 593; [1994] 2 I.L.R.M. 420.

Holland v. Minister for Justice (Unreported, Supreme Court, 9th July, 1993).

Hutchinson v. Minister for Justice [1993] 3 I.R. 567; [1993] I.L.R.M. 602.

Irish Times Ltd. v. Ireland [1998] 1 I.R. 359; [1998] 2 I.L.R.M. 161.

Kearney v. Governor of Mountjoy Prison (Unreported, Supreme Court, 9th July, 1993).

Kearney v. Minister for Justice [1986] I.R. 116; [1987] I.L.R.M. 52.

McDonald v. Bord na gCon [1965] I.R. 217; (1965) 100 I.L.T.R. 89.

Mishra v. Minister for Justice [1996] 1 I.R. 189.

Murphy v. I.R.T.C. [1999] 1 I.R. 12; [1998] 2 I.L.R.M. 360.

Murray v. Ireland [1985] I.R. 532; [1985] I.L.R.M. 542.

Murray and Murray v. Ireland [1991] I.L.R.M. 465.

O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39; [1992] I.L.R.M. 237.

O'Neill v. Beaumont Hospital Board [1990] I.L.R.M. 419.

Procunier v. Martinez (1973) 416 U.S. 296.

R. v. Secretary of State for the Home Department, ex parte Leech [1994] Q.B. 198; [1993] 3 W.L.R. 1125; [1993] 4 All E.R. 539.

R. v. Secretary of State for the Home Department, ex parte Simms [2000] 2 A.C. 115; [1999] 3 W.L.R. 328; [1999] 3 All E.R. 400.

R. (Hirst) v. Secretary of State for the Home Department [2002] EWHC 602, [2002] 1 W.L.R. 2929.

The State (Fagan) v. Governor of Mountjoy Prison (Unreported, High Court, McMahon J., 6th March, 1978).

The State (Keegan) v. Stardust Compensation Tribunal [1986] I.R. 642; [1987] I.L.R.M. 202.

The State (McDonagh) v. Frawley [1978] I.R. 131.

The State (Murray) v. Governor of Limerick Prison (Unreported, High Court, Darcy J., 23rd August, 1978).

The State (Richardson) v. Governor of Mountjoy Prison [1980] I.L.R.M. 82.

Wolff v. McDonnell (1973) 418 U.S. 539.

Judicial review

The facts have been summarised in the headnote and are more fully set out in the judgment of McKechnie J., infra.

The applicant obtained leave to seek various reliefs by way of judicial review from the High Court ( Ó Caoimh ó caoimh J.) on the 5th December, 2001. The application was heard by the High Court (McKechnie J.) on the 2nd and 3rd April, 2003.

Cur. adv. vult.

McKechnie J. 11th June, 2004

1 The applicant in these judicial review proceedings was convicted by the Special Criminal Court on the 29th November, 1997, of certain offences relating to the possession, 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 the 15th June, 1998, affirmed his said conviction but reduced the imposed sentence from 20 years to twelve years. He is currently serving this sentence in Portlaoise Prison.

2 The applicant 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...