Jason Whelan v Governor of Mountjoy Prison and Another
| Jurisdiction | Ireland |
| Judge | Ms. Justice Murphy |
| Judgment Date | 01 May 2015 |
| Neutral Citation | [2015] IEHC 273 |
| Court | High Court |
| Date | 01 May 2015 |
[2015] IEHC 273
THE HIGH COURT
BETWEEN
AND
The Prison Rules 2007 – Breach of prison discipline – Constitutional right to health and the ECHR
Facts: The applicant was serving a custodial sentence and was placed in a single occupancy cell, which remained locked for 23 hours. The provisions of the Prison Rules 2007 allowed a one hour of exercise in the open air each day for the inmate. The applicant now sought a declaration that the respondent failed to comply with the requirement of rule 32(1) of the Prison Rules 2007.
Ms. Justice Murphy held that the application for an order of mandamus for failure to comply with the requirement of rule 32(1) of the Prison Rules 2007 would be moot. The Court held that the decision that an exercise facility would be “open air” would not necessarily be a matter properly for the Governor's to decide. The Court held that the claim of the applicant would be moot as the applicant was not in the single occupancy cell at the date of the hearing. The Court concluded that the case came within the exceptions to the moot rule. The Court eventually ordered that the parties would be heard on the terms of the declaration to be made.
JUDGMENT of Ms. Justice Murphy delivered the 1st day of May, 2015
1. At all times material to these proceedings the applicant was a prisoner in Mountjoy Prison. His sentence commenced on 17 th October, 2012. Almost a year later on 10 th October, 2013 the applicant committed two serious breaches of prison discipline. In the first incident, the applicant threw a bucket of slop over a Prison Officer. In the second incident, the applicant caused damage to his cell by pulling the sink from the wall. Following a hearing, the respondent, as he was entitled to do, invoked the provisions of rule 62 of the Prison Rules 2007 and directed that the applicant not be permitted to engage in general or particular authorised structured activities, or participate in communal recreation, or associate with other prisoners, for a period of 56 days. On foot of this decision the applicant was removed from the general prison population and was placed in a unit known as CBU, the Challenging Behaviour Unit. While there, on 7 th November, 2013, he committed another breach of prison discipline when he threatened to assault a Prison Officer. He admitted the misconduct alleged and was given a further punishment of 28 days loss of privileges. This further punishment was to commence on the 8 th December, 2013, three days after the expiry of the punishment which he was then serving, which was due to expire on the 5 th December, 2013.
2. On the 8 th November, 2013, the day following the imposition of the second punishment, the applicant's solicitor wrote to the respondent complaining that he was not being provided with one hour of exercise in the open air each day as required by rule 32(1) of the Prison Rules. Rule 32(1) provides:-
"Each prisoner not employed in outdoor work or activities shall be entitled to not less than one hour of exercise in the open air each day, provided that, having regard to the weather on the day concerned, that is practicable."
3. On his client's instructions, his solicitor described the area in which the applicant was offered exercise to be a cage like structure which is not open to the sky. The applicant's solicitor also made complaint about other matters which are not relevant to this application. Having received no response to his initial letter, the applicant's solicitor wrote again on 12 th November, 2013. By letter of the same date, the first respondent replied setting out the reasons why the applicant was on a restricted regime and asserting that the regime under which he was being detained was compliant with the Prison Rules, including the rule relating to exercise. Two days later, on 14 th November, 2013, an application for leave to seek judicial review was brought before the President. A number of reliefs were sought but those relevant to the current application were the reliefs sought at 1 and 2, being :-
(i) an order of mandamus by way of application for judicial review, compelling the first named respondent to allow the applicant one hour of exercise in the open air every day, subject to the weather, pursuant to rule 32(1) of the Prison Rules 2007.
(ii) a declaration by way of application for judicial review that the offer of 1 hour of exercise in an enclosed yard which is not in the open air is not sufficient compliance with rule 32(1) of the Prison Rules 2007.
4. The President directed that the application for leave be brought on notice to the respondents. The application came before Hedigan J. on 22 nd November, 2013. On that date, the Court had before it the grounding affidavit of the applicant's solicitor and the replying affidavit of the first respondent in which inter alia he set out the dimensions of the exercise area in issue and exhibited photocopied photographs of its exterior. Hedigan J. gave leave to the applicant to apply by way of application for judicial review for:-
(1) an order of mandamus by way of application for judicial review, compelling the first named respondent to allow the applicant one hour of exercise in the open air every day, subject to the weather, pursuant to rule 32(1) of the Prison Rules 2007 and
(2) a declaration, by way of application for judicial review that the offer of one hour of exercise in an enclosed yard which is not in the open air is not sufficient compliance with rule 32(1) of the Prison Rules 2007.
4. The grounds upon which leave was granted were as follows:-
(i) The instant case concerns the detention of the applicant. The applicant is currently serving a custodial sentence in Mountjoy Prison. In or about the 4 th October, 2013, the applicant was sanctioned for a breach of prison discipline. The sanction imposed was 56 days loss of privileges.
(ii) Since the imposition of this punishment the applicant has been detained in a single occupancy cell which is locked for 23 hours of every day.
(iii) The applicant has been offered exercise every day. However, the area in which the applicant has been offered exercise is not outdoors. He describes it as a cage like structure with no natural light other than that which comes through vents. It is not open to the sky.
(iv) The applicant frequently refuses to go to this area for exercise as he views it as no different to his cell. Rule 32(1) of the Prison Rules 2007 provides: "each prisoner not employed in outdoor work or activities shall be entitled to not less than one hour of exercise in the open air each day provided that having regard to the weather and the day concerned that is practicable."
(v) The failure to afford the applicant exercise in the open air everyday is contrary to the Prison Rules 2007, the applicant's constitutional right to health and the ECHR.
5. On that date, the 22 nd November 2013, the second respondent was discharged from further participation in the proceedings. The matter was remitted for hearing to the 4 th December, 2013. The matter was not heard on that date. Two days later according to the supplemental affidavit of the respondent, on the 6 th December 2013, the applicant was released from detention in the CBU and returned to the general prison population. The second period of 28 days punishment, imposed for the breach of prison discipline on 7 th November, 2013, does not appear have been carried into effect.
6. A statement of opposition was filed by the first respondent on 14 th July, 2014, accompanied by a supplemental affidavit. The respondent has essentially advanced two grounds of opposition to the applicant's claim, one procedural and one substantive. The procedural ground of opposition is mootness. The respondent contends that the application is moot in circumstances where the applicant is no longer in the Challenging Behaviour Unit but has been returned to the general prison population. The substantive ground of opposition is the contention that the exercise yard attached to the Challenging Behaviour Unit is in compliance with rule 32(1), being an exercise area appropriate to the type of prisoners detained in the Challenging Behaviour Unit who according to the respondent's supplemental affidavit are "high risk" or "misbehaving inmates". In this context, the respondent contends that the decision on what constitutes appropriate open air exercise is a matter for his discretion as provided for in rule 75 of the Prison Rules 2007 and in particular rule 75(3) which provides that:-
"The Governor shall develop and maintain a regime which endeavours to ensure the maintenance and good order, the safe and secure custody and personal well-being of the prisoners"
7. In his original replying affidavit the respondents sets out the dimensions of the exercise area at paragraph 12. He states:-
"I say that the applicant is permitted one hour exercise in the open air daily, in accordance with rule 32 of the Prison Rules. I say that this exercise takes place in an area which measures 6.88 metres (22.5 ft) by 5.32 metres (17.5 ft). I say that this yard has a height of 7. 2 m (23.6 ft) sloping to 5.8 metres (19 ft) and is roofed for security reasons and so as to facilitate exercise notwithstanding inclement weather. I say that 180 sqft of the yard perimeter is open to the air and the remainder is covered in sheet metal in order to allow privacy to those inmates using it for exercise."
8. These bare dimensions do not convey the nature of the area as vividly as...
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