Kinsella v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Hogan
• Judgment Date: 12 June 2011
• Neutral Citation: [2011] IEHC 235
• Docket Number: [2011 No. 1125 SS]
• Date: 12 June 2011

Kinsella v Governor of Mountjoy Prison

IN THE MATTER OF ARTICLE 40.4.2 OF THE CONSTITUTION

BETWEEN

WAYNE KINSELLA

APPLICANT

AND

GOVERNOR OF MOUNTJOY PRISON

RESPONDENT

[2011] IEHC 235

[No. 1125 SS/2011]

THE HIGH COURT

CONSTITUTIONAL LAW

Legality of detention

Personal rights - Inquiry - Jurisdiction of court - Convicted prisoner - Minimum grounds for remedy - Prison conditions - Separation of powers - Whether breach of constitutional rights having occurred - Whether breach of constitutional rights sufficiently serious as to vitiate lawfulness of detention - The State (McDonagh) v Frawley [1978] 1 IR 131 approved; Brennan v Governor of Mountjoy Prison [1999] 1 ILRM 190, N v Health Service Executive [2006] IESC 60, [2006] 4 IR 374 considered; The State (Richardson) v Governor of Mountjoy Prison [1980] ILRM 82 and JH v Russell [2007] IEHC 7, [2007] 4 IR 242 approved - Constitution of Ireland 1937, Article 40 - Relief refused (2011/1125SS - Hogan J - 12/6/2011) [2011] IEHC 235

Kinsella v Governor of Mountjoy Prison

CONSTITUTION ART 40.4.2

IRELAND v UNITED KINGDOM 1979-80 2 EHRR 25

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 3

CONSTITUTION ART 40.3.2

N v HEALTH SERVICE EXECUTIVE 2006 4 IR 470

H (J) v RUSSELL 2007 4 IR 242

STATE (MCDONAGH) v FRAWLEY 1978 IR 131

BRENNAN v GOVERNOR OF MOUNTJOY PRISON 1999 1 ILRM 190

MENTAL HEALTH ACT 2001

CONSTITUTION ART 40.4

STATE (RICHARDSON) v GOVERNOR OF MOUNTJOY PRISON 1980 ILRM 82

1 1. The applicant, Wayne Kinsella, is currently a prisoner in Mountjoy Prison. Mr. Kinsella is presently serving a five month sentence for theft, but he is also currently on remand awaiting trial for murder. That trial date is currently scheduled to take place in the Central Criminal Court in May, 2012. In these proceedings Mr. Kinsella applies for his release under Article 40.4.2 of the Constitution on the basis that his constitutionalrights have been infringed by reason of the prison conditions which he has been required to endure and that his detention is said thereby to have become unlawful.

2 2. Mr. Kinsella's conviction for theft took effect on 1 ^st June, 201 J, following his decision on that day to withdraw an appeal in the Circuit Court against a District Court conviction. Prior to that point he had been a remand prisoner at Cloverhill Prison, where he had shared a cell with three other prisoners. The conditions at Cloverhill Prison (which is principally a remand prison) would appear to have been humane and civilised. The prisoners had their own clothes, access to recreation facilities and a library. They could listen to radio and a television was supplied by the prison authorities. There were two bunk beds in a cell, together with lockers and wardrobes.

3 3. This all changed following the conviction of the applicant, whereupon his status changed from being that of a remand prisoner to that of a sentenced prisoner. Following conviction on 1 ^st June, 2011, Mr. Kinsella was then conveyed to Mountjoy Prison. Although the fundamental complaint here relates to the particular conditions which he has experienced since his detention in Mountjoy Prison, I must here digress slightly to record the critical dilemma currently confronting the prison authorities having regard to the fact that Mr. Kinsella is a protected prisoner. It is common case that his life would be in danger were he to be allowed to mix freely with the majority of other prisoners. This stark fact imposes real constraints on the authorities, as they must at all times take effective security precautions to protect Mr. Kinsella on the occasions when he is permitted to leave his cell.

4 4. Returning now to the conditions which Mr. Kinsella is currently experiencing, it is not in dispute but that he was brought to the basement section of the prison and placed in an observation cell. This cell is entirely padded and it contains nothing beyond a mattress. It is approximately three metres by three metres and there is a small window providing some natural light in the cell. There is, however, a shutter on the window and there is a dispute as to whether the shutter is presently working. Mr. Kinsella maintains he was provided with no reading material and that he has no access to a radio or a television. The sanitation facilities - if this is really the correct term in the circumstances -simply consists of a cardboard box.

5 5. Nor is disputed but that Mr. Kinsella has spent virtually all of the last eleven days confined to this padded cell, although he has been afforded the opportunity to make one short telephone call of six minutes duration every day. While Deputy Governor Joyce agreed in evidence that Mr. Kinsella should have been allowed one hour of recreational exercise and an opportunity to shower, he was not in a position (given that he was absent on official business over the last few days) to controvert the applicant's evidence that these facilities had not actually been afforded to him. Even if Mr. Kinsella were to have been allowed one hour's recreation, this would have only marginally ameliorated these conditions. The Deputy Governor did not otherwise dispute the applicant's account of the cell conditions and he very fairly accepted that the present state of affairs was unsatisfactory. These padded cells are designed as a temporary exigency for disturbed prisoners who need to be protected from self-harm or who pose an immediate threat to other prisoners. It is acknowledged that Mr. Kinsella does not come within either category of prisoners.

6 6. It is clear that the prison authorities are wholly motivated by a desire to protect Mr. Kinsella from harm and that they bear him no ill-will. The real problem is the shortage of single cells within the prison system given that, unfortunately, Mr. Kinsella is not the only prisoner who needs to be protected in this fashion. I further accept Deputy Governor Joyce's evidence to the effect that the prison authorities have regularly and consistently sought alternative accommodation in other prisons for Mr. Kinsella, bearing these real constraints in mind.

Whether the present conditions meet constitutionally acceptable minimum standards?

7 7. Article 40.3.2 of the Constitution requires the State by its laws to:-

"protect as best it may from unjust attack and, in the case of injustice done, to vindicate the life, person, good name and property rights of every citizen."

8 8. So far as the present application is concerned, it is the State's duty to protect and vindicate the person of Mr. Kinsella which is principally engaged here, although I do not overlook the fact that the applicant's present conditions of confinement also arise, in part, at least, from the State's duty to protect his right to life and, perhaps, the life of other persons as well. Yet it is undeniable that detention in a padded cell of this kind involves a form of sensory deprivation in that the prisoner is denied the opportunity of any meaningful interaction with his human faculties of sight, sound and speech - an interaction that is vital if the integrity of the human personality is to be maintained. I use the term "a form of sensory deprivation" advisedly, because it is only fair to say that confinement in such conditions as Mr. Kinsella has had to experience is nonetheless veryfar removed from the "five techniques" of sensory deprivation - such as intentionally subjecting the prisoner to constant "white" noise, sleep deprivation and...