McDonnell v Governor of Wheatfield Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice CREGAN |
| Judgment Date | 17 February 2015 |
| Neutral Citation | [2015] IEHC 112 |
| Court | High Court |
| Date | 17 February 2015 |
[2015] IEHC 112
THE HIGH COURT
BETWEEN
AND
Imprisonment – Solitary confinement – Breach of constitutional rights – Applicant seeking an order of certiorari quashing respondent”s directions – Whether respondent breached applicant”s constitutional rights
Facts: The applicant, Mr McDonnell, was convicted of the murder of Ms McCarthy McNamara in January, 2014. Following his conviction he was sentenced to life imprisonment and he is currently detained on foot of this conviction in Wheatfield Prison. Since his arrival in Wheatfield Prison in February, 2014 the applicant was subject to repeated and continuous directions under r.63 of the Prison Rules 2007. The respondent, the Governor of Wheatfield Prison, made those directions because he was in possession of credible evidence of a threat to the applicant”s safety within the prison from persons connected to Ms McCarthy McNamara. However the applicant did not accept that there was a threat to his safety. In October, 2014, the applicant moved an ex parte Article 40 application before the High Court. The High Court indicated that the matter should proceed by way of judicial review and granted leave to issue a notice of motion for judicial review. The matter then proceeded by way of judicial review proceedings in the High Court. In the application for judicial review the main reliefs which the applicant sought were: 1) a declaration that the respondent had breached the applicant”s constitutional rights including his right to bodily integrity and his right to fair procedures and constitutional justice; 2) a declaration that the respondent has breached the applicant”s rights under the ECHR and in particular Article 3, Article 6 and Article 13; 3) an order of certiorari quashing the respondent”s directions made under r.63 of the 2007 rules. In addition, the applicant sought a declaration that he was being deprived of his personal liberty otherwise than in accordance with law.
Held by Cregan J that, having considered the definition of solitary confinement in the international context, the applicant”s constitutional rights as a prisoner and the test of proportionality stipulated in Holland v Governor of Portlaoise Prison [2004] 2 IR 573, keeping the applicant in conditions of solitary confinement for a period of over eleven months was clearly a breach of his constitutional right to bodily and psychological integrity; it was also a breach of his constitutional right to humane treatment. Cregan J held that this followed inexorably from the decisions in Kinsella v Governor of Mountjoy Prison [2012] 1 IR 467 and Connolly v Governor of Wheatfield Prison [2013] IEHC 334. Cregan J held that the longer a person is held in solitary confinement against his will, even for his own protection, the greater the risk of damage being caused. The Court held that this was such a clear and sustained violation of the applicant”s constitutional rights that it required a clear and sustained response by the prison authorities to adopt a more proportionate response, to improve his situation and to take immediate steps to allow the applicant access to more social interaction with other prisoners, to partake in structured activities, to have access to a gym and to have regular access to the psychological services in the prison. Cregan J accordingly found that the conditions under which the applicant had been detained constituted a violation of his constitutional rights and that the State had failed to vindicate that right in the manner required in Article 40.3.2 of the Constitution. Cregan J held that in the light of the affidavit evidence and legal submissions filed before the court he was of the view that the actions of the respondent in keeping the applicant in what amounted to solitary confinement for a period of eleven months were also entirely disproportionate to the perceived risk to the applicant in that the Oireachtas clearly intended that solitary confinement could only be used as a sanction for breach of prison discipline and then only for a finite period and indeed for only a period of three days.
Cregan J held that in the circumstances he would conclude that the applicant has a constitutional right to bodily and psychological integrity, that there had been a breach of these constitutional rights, and that such a breach was unlawful and neither necessary nor proportionate to the perceived threat to his person.
Application granted.
JUDGMENT of Mr. Justice CREGAN delivered on the 17th day of February 2015
1. The issue in this case is whether a Governor of a prison can keep a prisoner in solitary confinement for almost a year for his own safety or whether such a restriction is disproportionate, unlawful and a violation of the prisoner's constitutional rights.
2. The solicitors for the applicant first wrote to the prison authorities in respect of this matter on 16 th September, 2014. No reply was received to this letter. Further letters were sent on 22 nd September, 2014 and on 26 th September, 2014. On 1 st October, 2014 the prison authorities responded. On 3 rd October, 2014 the applicant's solicitor replied raising a number of queries and seeking further information, including the period in which the current direction under r.63 would be renewed. No reply was received to this letter. Indeed the applicant was served with a new direction under r.63 on 19 th October, 2014, and indeed a further one on 14 th January, 2015.
3. On 24 th October, 2014 the applicant's solicitor wrote to the respondent indicating that they would bring Article 40 proceedings unless the applicant was placed on a regime allowing for his interaction with other prisoners.
4. On 28 th October, 2014 counsel for the applicant moved an ex parte Article 40 application on behalf of the applicant before Barton J. in the High Court. Barton J. indicated that he could not hear the full hearing in the Article 40 proceedings due to pre-existing commitments in his diary. Therefore he directed that the application be moved elsewhere.
5. On 29 th October, 2014 counsel moved an ex parte Article 40 application before Kearns P. in the High Court. Kearns P. indicated that the matter should proceed by way of judicial review and granted leave to issue a notice of motion for judicial review returnable to 4 th November, 2014.
6. The matter then proceeded by way of judicial review proceedings in the High Court. The statement required to ground the application for judicial review and notice of motion were dated 30 th October, 2014. A statement of opposition and replying papers were filed on the 18 th December, 2014.
7. In the application for judicial review the main reliefs which the applicant is seeking are
(1) A declaration that the respondent has breached the applicant's constitutional rights including his right to bodily integrity and his right to fair procedures and constitutional justice.
(2) A declaration that the respondent has breached the applicant's rights under the European Convention for the Protection of Human Rights andFundamental Freedoms and in particular Article 3, Article 6 and Article 13.
(3) An order of certiorari quashing the respondent's directions made under r. 63 of the Prison Rules 2007.
8. In addition, the applicant sought a declaration that the applicant was being deprived of his personal liberty otherwise than in accordance with law. However counsel for the applicant indicated that, whilst that remained in the case, he was not seeking to place any particular emphasis on it at this time.
9. The applicant was born on 4 th October, 1994 and is now 20 years of age. On 24 th January, 2014 the applicant was convicted of the murder of Ms. Melanie McCarthy McNamara. Following his conviction he was sentenced to life imprisonment and he is currently detained on foot of this conviction in Wheatfield Prison.
10. After the applicant was convicted of murder, on 24 th January, 2014, he was imprisoned in Mountjoy Prison for about 28 days. However the prison authorities in Mountjoy apparently believed that there was a threat to his safety in that prison and as a result he was transferred to Wheatfield Prison. The applicant has been imprisoned on the west 2 wing of Wheatfield Prison since he arrived in February 2014.
11. Since his arrival in Wheatfield Prison in February, 2014 the applicant has been subject to repeated and continuous directions under r.63 of the Prison Rules 2007. The respondent has made these directions because he is in possession of credible evidence of a threat to the applicant's safety within the prison from persons connected to Ms. Melanie McCarthy McNamara. However the applicant does not accept that there is a threat to his safety within the prison.
12. Since the applicant arrived in Wheatfield he has received the following r.63 directions:
(i) On 18 th March, 2014 - the reason for the detention was stated to be "own protection". There is no specific end date on this form.
(ii) 3 rd April, 2014 - again no specific end date is apparent.
(iii) 22 nd April, 2014 - again no end date is recorded.
(iv) 26 th May, 2014 - again no specific end date is recorded.
(v) 11 th July, 2014 - again no specific end date is recorded.
(vi) 19 th August, 2014 - again no specific end date is recorded.
(vii) 18 th September, 2014 - this r.63 direction contains a review date of 18 th October, 2014.
(viii) 18 th October, 2014 - no end date is set out in this direction.
(ix) 21 st November, 2014 - again no end date is set for this direction.
(x) 14 th December, 2014 - no...
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