McMorrow v The Governor of The Midlands Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 21 December 2018 |
| Neutral Citation | [2018] IEHC 765 |
| Court | High Court |
| Docket Number | [2018 No. 77 J.R.] |
| Date | 21 December 2018 |
[2018] IEHC 765
THE HIGH COURT
JUDICIAL REVIEW
O'Regan J.
[2018 No. 77 J.R.]
AND
Judicial review – Inhuman and degrading treatment – Right to respect for private life – Applicant seeking the use of a modesty screen – Whether the removal of the modesty screen amounted to inhuman and degrading treatment
Facts: The applicant, Mr McMorrow, was granted leave to maintain judicial review proceedings on the 29th January 2018. The reliefs sought in the statement of grounds of the 29th January were various declarations associated with the applicant’s shared cell detention in the Midlands Prison to allow the use of a modesty screen and/or shower curtain by way of screening of the shower area and toilet area of the cell from the balance of the cell, the removal of which was said to amount to inhuman and degrading treatment contrary to Articles 40.3.1 and 40.3.2 of the Constitution and Article 3 of the European Convention on Human Rights (ECHR) and/or was a breach of the applicant’s right to dignity and to respect for his private life pursuant to the articles of the Constitution aforesaid and Article 8 of the ECHR. It was complained that the sharing of the cell while in detention without a modesty screen and/or a shower curtain unnecessarily compromised the applicant’s rights to privacy and bodily integrity.
Held by the High Court (O’Regan J) that the decision taken by the first respondent, the Governor of the Midlands Prison, in this matter was not arbitrary, capricious or unjust in the removal of the duvet and string within the applicant’s cell. Similarly, O’Regan J was satisfied that it was not arbitrary, capricious or unjust for the first respondent to take the view that no further screening within the cell should be provided. O’Regan J held that the explanations given by the first respondent in the verifying affidavit of Mr O’Shea, assistant governor, of the 29th June 2018 provided a rational basis for the measures adopted by the first respondent which did not fly in the face of reason or fundamental common sense. Insofar as the onus was on the respondent that the interference with the applicant’s right of privacy was permissible, O’Regan J was satisfied that this onus had been discharged.
O’Regan J held that the reliefs sought would be refused.
Reliefs refused.
Leave was granted to the applicant to maintain the within judicial review proceedings on the 29th January 2018. The reliefs sought in the statement of grounds of the 29th January are various declarations associated with the applicant's shared cell detention in the Midlands Prison to allow the use of a modesty screen and/or shower curtain by way of screening of the shower area and toilet area of the cell from the balance of the cell, the removal of which is said to amount to inhuman and degrading treatment contrary to Articles 40.3.1 and 40.3.2 of the Constitution and Article 3 of the European Convention on Human Rights and/or is a breach of the applicants right to dignity and to respect for his private life pursuant to the articles of the Constitution aforesaid and Article 8 of the ECHR. It is complained that the sharing of the cell while in detention without a modesty screen and/or a shower curtain unnecessarily compromises the applicant's rights to privacy and bodily integrity.
The applicant was convicted by the Central Criminal Court on the 22nd July 2013 of a number of offences for which he received a fourteen – year prison sentence with the final four years suspended on condition as in the warrant provided. The sentence commenced on the 11th November 2013.
While serving his sentence, the applicant is in a shared cell with one other prisoner. Prior to early January 2018, the applicant and his cellmate fashioned a shower curtain by way of a screen separating the balance of the cell from the shower and toilet area using a duvet cover and a piece of string. In early January 2018, the applicant was informed by letter of the intention of the respondent to remove all modesty screens and shower curtains from cells located on the applicant's wing of the prison following which by letter of the 10th January 2018, the applicant's solicitor wrote to the Irish Prison Service seeking confirmation on or before the 12th January 2018 that the curtain/screen in respect of the toilet and washing facilities would not be removed failing which an application for mandamus would be maintained. The letter asserted the applicant's right to privacy and indicated that this was being breached by the removal of the curtain or screen and was also in breach of Article 8 of the ECHR.
No undertaking was given and hence the proceedings. In the grounding affidavit of the applicant's solicitor, Matthew Byrne, of the 26th January 2018, it is complained that the failure to allow a modesty screen or shower curtain causes considerable embarrassment and distress and in the circumstances using the toilet or the shower is a degrading, humiliating and embarrassing experience and amounts to an infringement of the applicant's right of dignity and basic rights.
A statement of opposition of in or about 29th June 2018 has been filed. A preliminary plea is raised as to mootness because on the 20th of April the applicant was effectively afforded single cell accommodation, however after three days (on the 23rd of April) the applicant communicated with the respondent seeking to have his cellmate returned. In the event, at the hearing of the within matter, the claim that the matter is moot was not pursued by the respondent and indeed the circumstances surrounding the availability of the single cell accommodation was not relied on, save for the suggestion that these events should be considered in a balancing exercise, hereinafter dealt with.
In submissions to the court, it is clear that the respondent accepts that the applicant has a right of privacy and the applicant accepts that this right is not absolute. The issues therefore are as to whether or not the stance of the respondent is proportionate in all of the circumstances, the applicant arguing that it is disproportionate as the provision of limited screen to protect the applicant's right of privacy would at the same time enable the respondent to fulfil its obligation in providing for proper security of the prison and the safety of all prisoners. Furthermore, it is argued that such a modesty screen would not impose a disproportionate demand on the respondent nor be invasive or unreasonable, or amount to an effective micro – management of the respondent's functions. Although there is no evidence before the court as to the precise form, dimension, material or situation of the proposed modesty screen, nevertheless the applicant argues that this would not preclude the making of the declaratory relief sought.
In resisting the applicant's claim, the respondent states (at Para. 7 of the replying affidavit of Desmond O'Shea of the 29th June 2018) that following a routine search in the month of January...
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Barry v The Governor of the Midlands Prison
...and Equality [2018] I.E.H.C. 279 which was followed in McMorrow v The Governor of the Midlands Prison and the Irish Prison Service [2018] I.E.H.C. 765 to support their submission that the prison authority had to balance the management of prisons with the safety and wellbeing of prisoners ......