Mackin and Another v O'Brien and Another

• Jurisdiction: Ireland
• Court: High Court
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 01 February 2024
• Neutral Citation: [2024] IEHC 109
• Docket Number: [RECORD NO. 2021 / 768 JR]

Between:

John O'Brien

Applicant

and

Governor of Cork Prison, Minister for Justice and Equality, Ireland and Attorney General

Respondents

Irish Human Rights and Equality Commission

Notice Party

[2024] IEHC 109

[RECORD NO. 2021 / 768 JR]

THE HIGH COURT

JUDICIAL REVIEW

RULING of Ms. Justice Siobhán Phelan, delivered on the 1st February 2024.

INTRODUCTION

1 . These Judicial Review proceedings commenced in August, 2021 and concern the rejection of the Applicant's claim under a non-statutory compensatory scheme for prisoners subjected to a practice of “ slopping out” i.e. having no in-cell sanitation which claim relates to a period of detention ending in 2014 [hereinafter “the Scheme”]. The claim was rejected under the terms of the Scheme on the basis that the claim was statute barred. The matter came before me on the 29 ^th of January, 2024 on application on the Applicant's behalf pursuant to Order 84, rule 23 of the Rules of the Superior Court, 1986 for leave to amend his Statement of Grounds.

BACKGROUND

2 . The practice of slopping has been condemned by the European Court of Human Rights in contributing to findings of breaches of Articles 3 and/or 8 of the European Convention on Human Rights (hereinafter “the Convention”) in a number of cases (see, inter alia, Peers v. Greece (Application No. 28524/95, 19th of April, 2001), Kehayov v Bulgaria (Application No. 41035/98, Judgment of 14th of April 2005), Bakhmutsky v Russia (Application No. 36932/02, Judgment of 25th of June, 2009) and Orchowski v. Poland (Application No. 17885/04, 22nd of October, 2009. In the Scottish case of Napier v. The Scottish Ministers [2004] S.L.T. 555, a combination of slopping out and prison overcrowding led to findings of inhuman and degrading treatment under Articles 3 and 8 of the Convention.

3 . In Mulligan v. Governor of Portlaoise Prison [2010] IEHC 269 a claim was advanced both on constitutional and Convention grounds. The High Court rejected the claim on both grounds following a detailed consideration of the evidence and the caselaw. The High Court found that the Strasbourg jurisprudence did not support the proposition that the practice of slopping-out per se was necessarily inhuman and degrading for the purposes of Article 3 or unlawful under Article 8 in all places and at all times. Whether a breach of Articles 3 and/or 8 was established was found to depend on all the circumstances of the case. It was concluded that the cumulative effect of the conditions of detention required to be considered noting that in the successful cases relied upon from both Strasbourg and other jurisdictions there were found to be few if any counterbalancing positive factors as to the prison regime. In rejecting the claim, it appears to have been material to the Court's considerations that the applicant in Mulligan did not have to share a cell at any stage and did not make significant complaints as to the manner in which the staff dealt with the sanitation issues on a day-by-day basis in his case. It was accepted, for example, that insofar as possible requests to go to the toilet were accommodated.

4 . A fundamental issue which goes to the heart of these proceedings is whether the decision in Mulligan, which was not appealed, should be read as establishing that there was no remedy in Irish law for those subjected to a practice of slopping out whilst in detention when that case was decided or whether it should be read as a decision on the facts and evidence in that case which did not preclude an action for breach of constitutional rights in all cases where persons in detention were subjected to a slopping out regime.

5 . In Simpson v Governor of Mountjoy Prison [2019] IESC 81; [2020] 3 I.R. 113; [2020] 1 I.L.R.M. 81 (“ Simpson”) it was found in the judgment delivered in November, 2019 that the practice of slopping out evidenced in that case infringed the personal rights of the citizen guaranteed by Article 40.3 of the Constitution. Damages were awarded in that case in the sum of €7,500 for breach of personal rights protected under Article 40.3 of the Constitution measured with reference to conditions of detention occurring in the six-year period prior to the commencement of the proceedings (proceedings had issued in 2014 in respect of a period of detention occurring between February and September 2013). It is also relevant that the claim for damages for breach of rights under Articles 3 and 8 of the Convention advanced under s. 3 of the European Convention of Human Rights Act, 2003 [hereinafter “the 2003 Act”] was found to be largely statute barred insofar as it related to periods of detention occurring more than one year previously. This finding was not appealed, and it was observed by McMenamin J. in the Supreme Court (para. 24) regarding the decision not to appeal that “ this was a prudent and correct decision.”

6 . Following the decision in Simpson a Scheme of Settlement [hereinafter “the Scheme”] was introduced in February, 2020. It was a term of the Scheme that compensation in amounts measured under the Scheme would be payable on compliance with conditions of the Scheme including in material part that the claim, or at least part of it, is not statute barred.

7 . The Applicant made two applications under the Scheme in respect of a period of detention in Cork Prison between March, 2013 and April, 2014 when he was required to share a single cell with at least one other prisoner without in cell sanitation in consequence of which he was obliged to engage in the practice of “ slopping out”. His first application was presented through a former solicitor in November, 2020 and was refused on the 17 ^th of November, 2020 on the basis that he was statute bared. On the 4 ^th of March, 2021, the solicitors for the Applicant in the within proceedings applied afresh. By letter dated 27 ^th of May, 2021 his application was again rejected on the basis that his claim was statute barred. The Applicant seeks to quash this decision or in the alternative seeks relief arising from the exclusion of the Applicant from the scope of the Scheme.

8 . The application for leave to proceed by way of judicial review was opened ex parte on the 11 ^th of August, 2021. By order made on the 22 ^nd of November, 2021, the Applicant was granted leave to seek relief in the terms identified in the Statement of Grounds on the basis of the grounds there set out. I do not propose to recite these in full save to observe that the primary relief was an order of Certiorari quashing the decision to exclude the Applicant from the Scheme and Declaratory Relief to the effect that the exclusion of the Applicant from the said scheme violated his rights under Articles 3, 8 and 13 of the Convention contrary to s. 3 of the 2003 Act. The sole identifiable legal ground advanced in the Statement of Grounds is that at paragraph E(6) namely that the effect of the decision is that the Applicant, having suffered an admitted breach of his rights under Article 40.3 of the Constitution and Articles 3 and 8 of the Convention suffered a breach of his right to an effective remedy under Article 13 of the Convention by reason of his exclusion from the Scheme. The basis for the assertion that there has been an admitted breach of Articles 3 and 8 of the Convention is not specified. It is not expressly pleaded that there was no effective remedy in Irish law when the Applicant was in custody albeit the factual grounds recited refer to the decision in Simpson, without asserting that it established a remedy in Irish law for the first time. Damages were not claimed in the Statement of Grounds on foot of which leave was granted. It is striking that while Article 13 of the Convention is referred to, no reference is made to a right to an effective remedy protected under the Constitution.

9 . In the Statement of Opposition separately filed in February, 2022, it is admitted that during periods of the Applicant's detention in the 2013–2014 he shared a single prison cell with at least one other prisoner without in cell sanitation. It is admitted that by reason of his detention on a regime without in cell sanitation that a breach of his rights protected under Article 40.3 of the Constitution occurred. It is further admitted that this breach is actionable and capable of giving rise to a claim in damages. It is pleaded, however, that any such action is statute barred by reference to s. 11 of the Statute of Limitations Act, 1957 (as amended) (hereinafter “the 1957 Act”), which provides for a six-year limitation period.

10 . Notably, it is not admitted that the Applicant suffered a breach of his rights under Articles 3 and/or 8 of the Convention by reason of his prison conditions. The only admitted breach is a breach of Article 40.3 of the Constitution. Further reliance is placed by the Respondents on s. 3(5) of the 2003 Act which identifies a one-year limitation period for damages claims under that Act, albeit with a power to extend time.

11 . Although this case was originally listed for hearing in March, 2023 it was adjourned on the Respondents' application pending the determination of the Supreme Court appeal in McGee v. Governor of Portlaoise Prison & Ors. (on appeal from the decision of the High Court in that case [2022] IEHC 210). The net issue in that case was whether a so-called pure Meskell claim is one which is “ founded on tort” so that the provisions of s.11(2) of the 1957 Act (as amended) apply, an issue with obvious implications for the case made on behalf of the Applicant.

12 . The judgment of the Supreme Court was delivered in May, 2023 ( McGee v. Governor of Portlaoise Prison & Ors. [2023] IESC 14, [2023] 1 I.L.R.M. 305. Following an extensive review of the caselaw the Supreme Court found that where vindication of constitutional rights takes the shape of permitting a claim for damages against other wrongdoers, then such a claim is properly...