Kane v The Governor of the Midlands Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Charleton
• Judgment Date: 10 December 2012
• Neutral Citation: [2012] IEHC 511
• Docket Number: No. 2229 SS/2012
• Court: High Court
• Date: 10 December 2012

[2012] IEHC 511

The High Court

No. 2229 SS/2012

Kane v Governor of the Midlands Prison

Between

Gerard Kane

Applicant

And

The Governor of the Midlands Prison

Respondent

CONSTITUTION ART 40.4

CONSTITUTION ART 40.4.2

TURNER v SAFLEY 1987 482 US 78

MCDONAGH, STATE v FRAWLEY 1978 IR 131

FOY v GOVERNOR OF CLOVERHILL PRISON UNREP CHARLETON 29.6.2010 2011/22/5739 2010 IEHC 529

Constitutional law - Habeas corpus - Procedure - Rights infringements - Costs - Adjournment of trial - Whether prisoner had raised valid complaints as to his detention

Facts: The plaintiff was a remand prisoner and complained inter alia as to charges for obtaining a commissioner for oaths to attest to the swearing of an affidavit and complained that his rights were being undermined and that his trial date had been adjourned from time to time.

Held by Charleton J. that there was no substantive complaint that the Court could uphold and was no material to suggest that his rights had been infringed. Other claims as to cost were untrue. The Courts were astute to the need to alter procedures for this type of application.

1 Mr Justice Charleton delivered on Tuesday the 10th day of December 2012

2 The applicant describes himself as a remand prisoner in the Midlands Prison. As recently as September of this year, Peart J ruled on a similar application made by a fellow prisoner pursuant to the informal arrangement whereby prisoners are entitled to complain to the High Court as to their detention, or the conditions thereof. Under that procedure, if it is necessary the High Court will make enquiries as to the circumstances of the prisoner and then issue a ruling. It has never been the case that a sworn affidavit is required for this form of application. Instead, communications are made by way of letter and these are sometimes accompanied by a detailed written statement as to why the prisoner feels that his rights are being denied or that such benefit as he is entitled to under the prison rules are being withheld from him.

3 The major complaint of the applicant is that in order to initiate this procedure he must spend €40 on getting a commissioner for oaths to attest to the swearing of an affidavit. This is not correct. Article 40.4 of the Constitution declares that no "citizen shall be deprived of his personal liberty save in accordance with the law." This provision is not empty and it is specifically buttressed by article 40.4.2 which allows an application testing the legality of their detention of any person within the State to be made to the High Court. A solemn duty is cast on each and every judge to whom such an application is made to "forthwith enquire into the said complaint". If the detention is unlawful then the High Court is required to "order the release of such person from such detention unless satisfied that he is being detained in accordance with the law." The Constitution is a law in itself as well as being the fundamental law of Ireland. The entitlement to this procedure is not to be adjusted or abridged by any form of rule which undermines the swift and direct right of anyone within the State to challenge the legality of any apparent case of wrongful imprisonment or detention. Therefore, on such an application the High Court may adopt...