McD v Governor of X Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 01 November 2018 |
| Neutral Citation | [2018] IEHC 668 |
| Court | High Court |
| Docket Number | [2015 No. 2712 P] |
| Date | 01 November 2018 |
[2018] IEHC 668
THE HIGH COURT
Baker J.
[2015 No. 2712 P]
Declaratory relief – Prison conditions – Negligence – Plaintiff seeking declaratory and other relief in regard to the conditions of his detention – Whether the prison authorities were negligent
Facts: The plaintiff applied to the High Court seeking declaratory and other relief in regard to the conditions of his detention in X Prison. Counsel for the plaintiff focused on events leading up to the plaintiff’s hunger strike which commenced in February 2015, and the two grievances which the plaintiff alleged led him to choose that extreme form of protest. The plaintiff claimed that the prison authorities were negligent and that the plaintiff’s conditions of detention were a breach of his constitutional rights and those derived from international instruments. Counsel for the defendant, the Governor of X Prison, cross-examined the plaintiff in regard to his long and complex personal life, his history of incarceration in England, and to the four years he had spent in X Prison.
Held by Baker J that the entire context created by the plaintiff’s stay in X leading up to the hunger strike was relevant to the defence. Baker J held that the plaintiff failed in his claim that his prison conditions were in breach of his rights under national and/or international law. However, there was, in Baker J’s view, a failure to deal reasonably and with expedition with his complaints, that failure was negligent, it did not cause the plaintiff to go on hunger strike but made his protest much harder than a fleeting and transient one.
Baker J held that she would propose awarding the plaintiff €5,000, but she stressed that this sum was not intended to do any more but mark damages in respect of a matter for which the plaintiff was primarily responsible, but where the inaction of the defendant led to the circumstances becoming far more grave and dangerous than those even the plaintiff himself intended in the early days of the hunger strike.
Relief granted.
The plaintiff is now in his late 40's and has spent almost all of his adult life in prison, mostly in England. He has, since 7 December 2011, been a prisoner in X Prison having been convicted and sentenced to twelve years in prison for burglary and the assault of a 97-year-old woman in her home. His sentence was increased on appeal by the Court of Appeal from the previous sentence of nine years.
The plaintiff had a most troubled childhood and early adulthood and, on his own admission, commenced abusing glue-like substances when he was eight years of age, drinking alcohol at around twelve, started taking cannabis at twelve, and, as he himself put it, ‘worked my way up’ to an abuse of hard drugs, including LSD, crack, cocaine, and other proscribed substances. He has also developed a dependence on prescription drugs.
The plaintiff had a serious injury following a road traffic accident when he was six years of age, and this has resulted in chronic back pain and the loss of his spleen which he asserts has made him particularly vulnerable to infection.
The plaintiff has a complex psychiatric history and was long since diagnosed as suffering from a borderline personality disorder. He has engaged in many episodes of self-harm and has little or no social or family emotional support.
In or around February 2015, the plaintiff commenced a hunger strike as a protest against his prison conditions. On 31 March 2015, I delivered judgment in Governor of X Prison v. McD. [2015] IEHC 259, [2016] 1 ILRM 116, where the question for determination was the plaintiff's capacity to give directions regarding his medical care in the course of the hunger strike, and whether his expressed wish not to be fed involuntarily was to be respected, even should he fall into coma.
Following the hearing of the application on 25, 27, and 30 March 2015, I delivered a judgment on 31 March 2015, in which the following three declarations were made, at para. 131:
‘(a) A declaration that the defendant's decision to refuse medical and nutritional assistance is valid.
(b) A declaration that the defendant's wish and direction should remain operative in the event that the defendant becomes incapable of making a decision whether to accept such treatment.
(c) A declaration that the plaintiff is entitled to give effect to the defendant's wishes not to be fed and not to receive medical assistance.’
As is apparent from the postscript to the judgment, at paras. 131 and 132, the plaintiff, at the conclusion of the hearing, indicated a willingness to commence nutrition treatment in hospital on the basis that he had instructed his lawyers to commence proceedings to seek declaratory and other relief in regard to his prison conditions. The present judgment is directed to the relief sought in those proceedings commenced by plenary summons on 8 April 2015.
Counsel for the plaintiff opened the trial on the basis that the claim was narrow, and focused on events leading up to the plaintiff's hunger strike which commenced in February 2015, and the two grievances which the plaintiff alleges led him to choose that extreme form of protest. The plaintiff claims that the prison authorities were negligent and that the plaintiff's conditions of detention were a breach of his constitutional rights and those derived from international instruments. Notwithstanding the attempt by counsel for the plaintiff to keep the focus narrow in scope and time, the oral evidence lasted sixteen days and counsel for the defendant cross-examined the plaintiff over 6 days in regard to his long and complex personal life, his history of incarceration in England, and to the four years he had spent in X Prison. I consider that the entire context created by the plaintiff's stay in X leading up to the hunger strike was relevant to the defence, and counsel for the defendant is not to be faulted for long cross-examination.
The plaintiff described himself as a ‘model prisoner’ but the evidence, as it evolved, showed that this description was far from the truth, and that the management of the plaintiff in a prison environment has been difficult and testing for the prison authorities having regard to his personality and psychological condition, and the difficulty that this has caused for prison personnel.
The plaintiff seeks various declaratory orders relating to the conditions of his detention in X Prison, and the focus of his claim is the events leading up to his decision, in or around February 2015, to commence a hunger strike. The statement of claim pleads that the plaintiff has been detained in ‘solitary confinement’ from December 2011, and it is common case that he has, since his admission to X Prison on 7 December 2011, been detained pursuant to r. 63 (‘Rule 63 Detention’) of the Prison Rules 2007, S.I. 252/2007 (‘the Prison Rules’), as a result of which the plaintiff is de facto confined to his cell for 23 hours of every day and has no association or interaction with other prisoners.
The plaintiff voluntarily subjected himself to Rule 63 Detention because he believes he is at risk from other prisoners, including but not limited to those associated with a feud between two families of the Travelling Community. The plaintiff himself is a traveller who was brought up in England, albeit his parents where Irish, and he has described himself as an outsider in both Travelling Communities. While the defendant denies that the plaintiff's fears were rational, the Prison Governor gave evidence that, even without an express voluntary submission to Rule 63 Detention, having regard to the nature of the crime of which the plaintiff was convicted, he would most likely have been detained subject to the conditions of Rule 63 Detention for his own safety.
The plaintiff's hunger strike commenced after a change in established patterns in his daily life in prison.
For the three years leading up to the matters herein complained of, the plaintiff was detained on an identified landing or the medical unit of X Prison. During those years, the plaintiff took his exercise at 1 o'clock in a yard which was not overlooked by any occupied cells. The plaintiff said that, for the three years leading up to the change in the prison practices, he was satisfied with the limited exercise regime and that, for the most part, he took up the opportunity to leave his cell and take outdoor exercise during that time.
In August 2014, and as a result of financial cutbacks that led to a reduction in the resources available to the Governor, the exercise regime was changed. The plaintiff was offered exercise on a more variable basis, but mostly at 2 o'clock in the afternoon in a different yard, which is overlooked by the prison's gymnasium.
The plaintiff says that liquid was thrown on him from one of the cells or from the gym which overlooked this exercise yard, which he believed was human urine. He refused thereafter to use that exercise yard and was then offered the opportunity to take exercise in the so called CBU (‘Challenging Behaviour Unit’) yard, which he described as a ‘cage’ with no direct sunlight and where he felt he was like an ‘animal’. The CBU yard was the subject of a judgment of Faherty J. in Dolan v. Governor of Mountjoy Prison [2017] IEHC 405 and of Murphy J. in Whelan v. Governor of Mountjoy Prison [2015] IEHC 273.
The second change in routine of which the plaintiff complains was a change in the system of food delivery at about the same time. Prior to the change, the plaintiff's food was served by a kitchen officer, a member of the prison staff.
The plaintiff complains that the new system by which prisoners distributed food on his wing of the prison was unsafe and that he was frightened,...
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