Jonathan Abraham v The Governor of Cloverhill Prison

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Nuala Jackson
• Judgment Date: 11 August 2024
• Neutral Citation: [2024] IEHC 518
• Docket Number: Record No. 2024/1179 SS

In the Matter of An Application Pursuant to Article 40.4.2 of the Constitution of Ireland 1937

Between:

Jonathan Abraham

Applicant

and

The Governor of Cloverhill Prison

Respondent

[2024] IEHC 518

Record No. 2024/1179 SS

THE HIGH COURT

Unlawful detention – Release – Article 40.4.2 of the Constitution – Applicant seeking release from detention – Whether detention was unlawful

Facts: The applicant, Rabbi Abraham, appeared before Dublin District Court on the 1st August 2024 charged with an offence namely that on the 30th July 2024 at an address in Dublin 15 in said District Court Area of Dublin Metropolitan District, he did perform a surgical procedure to wit a male circumcision on a child without being a registered medical practitioner contrary to ss. 37(1)(a) and 41(1)(a) of the Medical Practitioners Act 2007. Bail was refused at that time and the applicant was remanded in custody. He argued that the conditions upon which he was being detained were such as to render such detention unlawful in consequence of which he should be released under Article 40.4.2 of the Constitution. The challenge to the conditions of detention related to the failure to provide Kosher food and the failure to provide access to the Tefillin for prayer time. He accepted that the issue concerning the Tefillin had been resolved.

Held by the High Court (Jackson J) that a deficiency in compliance with the Prison Rules had occurred; the importance of respect for the dietary dictates of a religion are amply and rightly recognised in the Prison Rules. However, she did not believe that this deficiency brought the matter into the category of wrong which goes to the unlawfulness of the applicant’s detention. Having referred to The State (Richardson) v The Governor of Mountjoy Prison [1980] ILRM 82, she found that, on the basis of the evidence before her, it could not be said that the prison conditions constituted such a conscious and deliberate violation of constitutional rights, or inhumane or degrading treatment or that they seriously endangered life or health. She held that there were other remedies which might well arise. She referenced potentially mandamus or mandatory injunctions. She held that, in any event, the authorities supported the detaining authority being given an opportunity to correct matters and address the wrong arising; the respondent, the Governor of Cloverhill Prison, had done so. Jackson J found that the Assistant Governor’s evidence, oral and on affidavit, had been genuine and open, had acknowledged the shortcomings and indicated how those were to be addressed in a very comprehensive manner in respect of both issues arising. Jackson J found it clear that the requisite resources were being deployed to do so. She did not find that there was a requirement for her to exercise any residual jurisdiction such as is referenced by Hogan J in Kinsella v Governor of Mountjoy Prison [2011] IEHC 235.

Jackson J held that circumstances requiring a release from detention under Article 40.4.2 did not arise. She held that the lawfulness of the detention had been proved and the conditions of detention were not such as required the applicant’s release. She was satisfied that the shortcomings in the application of the rules of detention had been recognised and addressed by the respondent but should further default occur, Jackson J was satisfied that there were remedies (not being Article 40.4 remedies) available to the applicant.

Application refused.

EX TEMPORE Judgment of Ms. Justice Nuala Jackson delivered on the 11 ^th August 2024:

1 This matter comes before me by way of an Inquiry pursuant to Article 40.4 of Bunreacht na hÉireann. I have before me three Affidavits, two in support of the Applicant's position being the Affidavit of Michael Staines, solicitor for the Applicant, sworn on the 8 ^th day of August 2024 and the Affidavit of Rabbi Wieder, Chief Rabbi of Ireland sworn on the 9 ^th day of August 2024.

2 I directed an Inquiry following the ex parte application made by the Applicant on the 9 ^th August 2024 and a short period of time was afforded to the Respondent to submit a replying Affidavit. Such Affidavit was sworn by Paul O'Neill, Assistant Governor at Cloverhill Prison, and was sworn on the 10 ^th August 2024.

3 These Affidavits were of very considerable assistance in setting out the factual circumstances pertaining to this application.

4 In addition to the Affidavits aforementioned, I heard oral testimony from the Applicant, from Rabbi Wieder, the Chief Rabbi of Ireland, and also from Paul O'Neill. I will set out the evidence below. In truth, there is little dispute between the parties in relation to the factual circumstances arising.

5 I should say at the outset that the Respondent has certified in writing the grounds for the detention of the Applicant. I have been provided with a certificate signed by Paul O'Neill, Assistant Governor of Cloverhill Prison, stating that the Applicant is held in custody in Cloverhill Prison, Cloverhill Road, Clondalkin, Dublin 22 pursuant to Warrant dated the 6 ^th August 2024. The said Warrant is a Committal Warrant (Remand) issued by the Dublin Metropolitan District Court dated the 6 ^th August 2024 and mandates the detention of the Applicant until the 20 ^th August 2024 being the date to which the criminal proceedings against the Applicant have been adjourned before the District Court. No issue has been taken by the Applicant in respect of the said Warrant or the certification of the Applicant's detention.

6 The matter at issue herein is whether the conditions upon which the Applicant is being detained are such as to render such detention unlawful in consequence of which the Applicant should be released under Article 40.4.2 of the Constitution. The Applicant argues that such unlawfulness arises. The Respondent disputes this.

FACTUAL BACKGROUND

7 The Applicant is a Rabbi and is a most committed member of the Jewish faith. It is undoubtedly the case that Rabbi Abraham is most dedicated to his faith and it is the bedrock of his life. It is amply clear from the evidence that he is most learned in this faith and that his commitment is a long standing one. He impressed as a most devout and faithful person.

8 The Applicant is a married person and ordinarily resides in England with his wife and children. He was on a temporary sojourn in Ireland at the time of the events giving rise to his currently being charged with a criminal offence in Ireland. The evidence which Rabbi Abraham gave to the court whereby he indicated that he has never before had any encounter with the criminal law has not been disputed.

9 The Applicant appeared before Dublin District Court on the 1 ^st day of August charged with an offence namely that on the 30 ^th July 2024 at an address in Dublin 15 in said District Court Area of Dublin Metropolitan District, he did perform a surgical procedure to wit a male circumcision on a child without being a registered medical practitioner contrary to Section 37(1)(a) and 41(1)(a) of the Medical Practitioners Act 2007 as amended. Bail was refused at that time and the Applicant was remanded in custody with the matter adjourned to the 6 ^th August 2024. The matter was further adjourned on that date to the 20 ^th August 2024. It would appear that the Applicant has appealed the refusal of bail by the District Court and this bail application is listed before this Court on Tuesday 13 ^th August 2024.

10 The Affidavit of Michael Staines makes it clear that there are two bases upon which it is asserted that the conditions of the Applicant's detention are such as to make it unlawful. The first relates to the failure on the part of the prison authorities to provide food to the Applicant which accords with the fundamental requirements of his religion. That this failure has occurred is not disputed by the prison authorities. There is no doubt that this failure has caused considerable and understandable distress to the Applicant. Mr. Staines deposes to the Applicant being a member of the Jewish faith and to the fact that one of the tenets of that faith is that he may eat only Kosher food, prepared in accordance with the Jewish Bible, Talmud and Rabbinic codes. This is not disputed. It is clear from the evidence before me that, while some effort was made by the prison authorities to provide food which was in compliance with the religious beliefs concerned, there would appear to have been a lack of understanding of the requirements to be fulfilled for food to be properly described as Kosher, as is required by the tenets of the Applicant's religion. These requirements go far beyond simply the culinary preparation of such food, to the production methods adopted in respect of individual ingredients used in such culinary activities. While the Applicant's evidence indicated that a limited amount of the foods provided to him while in prison was compliant with Kosher traditions and practices, the failure on the part of the prison authorities has resulted in his having an extremely restricted diet and also with food being provided to him which, although described as Kosher by the prison authorities, was not in fact compliant.

11 The second basis upon which it is asserted that the Applicant's conditions of detention are such as to make it unlawful result from the failure of the prison authorities to permit him access to a Tefillin during daily prayers. Mr Staines in his Affidavit deposes to it being a further tenet of the Applicant's religion that he must [have] certain religious clothing and objects during prayer. In his oral testimony before me, the Applicant indicated that he had been given access to a prayer shawl. The evidence of Mr. O'Neill that the Applicant had been permitted to have copies of his religious books was not contested. I further note the evidence of the Chief Rabbi that a member of the Jewish faith can pray without a...