Kearney v Minister for Justice

Judgment Date01 January 1987
Date01 January 1987
Docket Number[1984 No. 7680P]
CourtHigh Court

High Court

[1984 No. 7680P]
Kearney v. Minister for Justice
David Kearney
The Minister for Justice, Ireland and the Attorney General

Cases mentioned in this report:—

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

Murray v. The Attorney General [1985] I.R. 532; [1985] I.L.R.M. 542.

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

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

Solosky v. The Queen (1980) 1 S.C.R. 821.

Golder v. United Kingdom [1979-80] 1 E.H.R.R. 524.

Silver v. United Kingdom (1983) 1 E.H.R.R. 524; (1983) 5 E.H.R.R. 347.

Byrne v. Ireland [1972] I.R. 241.

Rookes v. Barnard (1964) A.C. 1129; [1964] 2 W.L.R. 269; [1964] 1 All E.R. 367.

Constitution - Personal rights - Plaintiff prisoner - Prison Rules - Inspection and censorship of plaintiff's mail - Whether breach of constitutional right to communicate - Whether plaintiff entitled to damages for non-delivery of letters addressed to him - Rules for the Government of Prisons, 1947 (S.I. No. 320) - Constitution of Ireland, 1937, Article 40.

Plenary Summons.

The plaintiff issued a plenary summons on the 9th October, 1984, seeking a declaration that rule 63 of the Rules for the Government of Prisons 1947, was invalid having regard to the provisions of the Constitution; he also sought an injunction restraining the defendants from inter aliainterfering with his correspondence.

Article 40, s. 3, sub-s. 1, of the Constitution of Ireland, 1937, provides:—

1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen."

Rule 63 of the Rules for the Government of Prisons, 1947, provides for inter alia the compulsory inspection and, if the contents are objectionable, the censorship of prisoners' letters.

The plaintiff was a convicted prisoner. As a result of certain unauthorised actions taken by prison officers in the prison, certain letters which were addressed to the plaintiff, and the contents of which were agreed not to have been objectionable, were not delivered to the plaintiff. The plaintiff sought inter alia a declaration that rule 63 was invalid having regard to the provisions of the Constitution and damages for breach of his constitutional rights. The plaintiff also sought an injunction restraining the defendants from opening, reading, destroying or interfering with his correspondence.

Held by Costello J., 1, that when a citizen is lawfully deprived of his liberty one of the consequences is that he is deprived of the right to exercise many constitutionally protected rights and that the constitutional rights that may still be exercised are those which do not depend on the continuance of his personal liberty and which are compatible with the reasonable requirements of the place of imprisonment.

The Attorney General v. Paperlink Ltd. [1984] I.L.R.M. 373 and Murray v. The Attorney General[1985] I.R. 532, applied.

2. That Article 40, s. 3, sub-s. 1, of the Constitution includes the right to communicate as one of the unspecified personal rights included in that article but that right is not an absolute one and its exercise may be regulated by law. Prison security is endangered by unrestricted correspondence and the evidence established that, in practice, the only matters which were regarded by the prison authorities as being subject to rule 63, were matters relating to security; therefore the restriction on the right to communicate, could reasonably be justified and was not contrary to the provisions of the Constitution.

Solosky v. The Queen (1980) 1 S.C.R. 821 considered.

3. That the plaintiff suffered an unjustified infringement of his constitutional right to communicate as certain letters which had been passed under the Prison Rules were not delivered to him but he would be awarded nominal damages only as he had suffered no pecuniary loss and there was insufficient evidence that an award for exemplary damages would be justified.

4. That the State is vicariously liable for the wrongful actions of the prison officers in respect of the non-delivery of correspondence to the plaintiff which was found to be unobjectionable under the Prison Rules, because although unauthorised, the wrongful act was performed within the scope of the prison officers' employment.

Byrne v. Ireland [1972] I.R. 241 followed.

Quaere: Whether the State may be liable for acts of a servant of the State which amount to an infringement of a right protected by the Constitution even though performed outside the scope of the State's servant's employment.

Cur. adv. vult.

Costello J.

The plaintiff is a prisoner...

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