Mulligan v Portlaoise Prison

JudgeMacMenamin J.
Judgment Date14 July 2010
Neutral Citation[2010] IEHC 269
Date14 July 2010
Docket Number[2004 No. 636 JR],2004 636 JR
CourtHigh Court

[2010] IEHC 269

2004 636 JR



Practice and procedure - Tort - Constitutional law - Convention rights - Prison conditions - Whether the alleged breaches of constitutional rights resulting from the prison conditions amounted to a cause of action in damages.

Facts The applicant sought a declaration and resulting damages that his detention at the respondent's prison was a violation of rights under Article 40.3.1 of the Constitution, including his personal right to bodily integrity, his right not to have his health placed at risk, and his right not to be subjected to torture, inhuman or degrading treatment or punishment. The applicant claimed alternatively that the prison conditions gave rise to violations of his Article 3 and Article 8 rights under the European Convention on Human Rights engaging respectively, questions of inhuman and degrading treatment and the right to private life. Essentially the applicant claimed that the absence of in-cell sanitation, alleged unhygienic conditions and the necessity to engage in 'slopping-out procedures' gave rise to a violation of his constitutional and ECHR rights. The applicant also maintained that the prison regime caused or rendered symptomatic his pre-existing susceptibility to colorectal complaints and had a depressive effect on him. The applicant herein had his own cell whilst serving his prison sentence and did not make any complaints regarding his medical condition.

Held by MacMenamin J. in refusing the application: That the applicant's claim had many attributes of a personal injuries claim in the law of torts and consequently the defences in the law of torts such as volenti not fit injuria, foreseeability and contributory negligence could arise. From the evidence given it was clear that the ventilation, sanitation and hygiene regime at the prison fell significantly below the standard one would expect at the time. However, the applicant did not raise complaints with the respondent or any prison staff about his medical condition and consequently the respondents were never adequately apprised as to his prior condition. The rights asserted by the applicant herein could not be absolute. Furthermore, the established norms of tort law were not adequate fairly and justly to address the range of issues which arose in this case. Those issues went further into the realm of rights only protected under the Constitution. It was necessary herein, in consideration of each alleged wrong, to balance the positive against the negative aspects of the applicant's detention. There was no violation of the applicant's negative right to be protected against inhuman or degrading treatment and furthermore there was no evidence that the purpose and intention of the restrictions and privations was punitive, malicious or evil in purpose. Furthermore, the evidence did not establish that the conditions of detention per se were such as to seriously endanger the applicant's life or health and nor were his rights of privacy or human dignity violated to a degree sufficient to give rise to a cause of action. Although the medical evidence established that the conditions of imprisonment caused a re-occurrence of the applicant's medical complaints his complaint in this regard failed because the respondents did not know and could not have reasonable known of the applicant's prior medical history. Furthermore, taking all issues herein individually and cumulatively, there was no breach of Article 3 or in conjunction with Article 8 by reference to any established Strasbourg decision.

Reporter: L.O'S.


JUDGMENT of Mr. Justice John MacMenamin delivered the 14th day of July, 2010.


1. On 29th July, 2001, the applicant was arrested and charged with membership of the Real IRA. He was convicted in the Special Criminal Court of that offence on 20th December, 2002, and was sentenced to a period of five years imprisonment, back-dated to the date of his arrest and subsequent detention. The applicant was ultimately released on 27th April, 2005. He served his sentence on the E Wing in Portlaoise Prison.


2. In 2004 the applicant was appointed as a spokesman for the Real IRA group of prisoners. An issue arose as to whether a fellow prisoner should have been extended compassionate leave so as to attend the funeral of a family member. The group considered that there had been a breach of an understanding with the authorities on such questions and engaged in a campaign of protest.


3. As a result of this campaign, on 20th May, 2004, the applicant was subjected to disciplinary proceedings. It was determined that he was to lose a series of privileges, be placed in closed confinement for 28 days, and be denied phone calls or visits, save for legal visits. The applicant claimed that, during this period, he was confined in his cell for a total of 22 hours a day, and denied free association with other prisoners. He asserted that these conditions were particularly onerous on him by reason of a pre-existing susceptibility to colorectal medical complaints described later.


4. These judicial review proceedings were originally initiated by the applicant on 26th July, 2004. The "close confinement" issue was resolved without a full hearing in 2005.


5. The remaining and central issue now, is the applicant's contention that the absence of in-cell sanitation, alleged unhygienic conditions and the necessity to engage in "slopping-out procedures" gave rise to a violation of his constitutional or ECHR rights. He says the prison regimen caused or rendered symptomatic his pre-existing susceptibility to colorectal complaints. He seeks declarations that the respondents' breaches of duty give rise to remedies by way of declaration and damages.


The general headings of the case


6. The case falls for consideration in two ways. First, the applicant seeks a declaration that his detention was a violation of rights under Article 40.3.1 of the Constitution of Ireland, including his personal right to bodily integrity, his right not to have his health placed at risk, and his right not to be subjected to torture, inhuman or degrading treatment or punishment.


7 The applicant claims alternatively that the prison conditions gave rise to violations of his Article 3 and Article 8 rights under the European Convention on Human Rights (ECHR) engaging respectively, questions of inhuman and degrading treatment, and the right to private life.


8. The fact that the applicant had no in-cell sanitation is not in dispute. But as will be explained, an assessment of the issues necessitates an analysis, not only of this one fact, but also the overall conditions to which the applicant was exposed during his term of detention.




9. The main time framework of this case is between 24th July, 2001 and 27th April, 2005. The case does not concern subsequent events. But prior to 2001, a number of international and domestic expert reports called into question prison accommodation and standards in Ireland, in particular, in the context of overcrowding. The lack of in-cell sanitation and the practice of "slopping-out" were also criticised. As far back as 1993, the European Committee for the Prevention of Torture, Inhuman and Degrading Treatment or Punishment (CPT) was sharply critical of these procedures in Irish prisons. These same concerns were repeated in later reports from that organisation. On repeated occasions from 1997 to 2003, the Visiting Committee to Portlaoise Prison drew attention to the issue. In the year 2000, the Committee drew attention to assurances that were given by the Prison Service that remedial construction work would be carried out: they observed that the failure by the Prison Service to carry out works in accordance with assurances given was "totally unacceptable". The deep concern and frustration of the Committee at the lack of progress is repeated in a number of contemporaneous reports.


10. In the 1990's various committees formed under the aegis of the respondents, accepted the need for in-cell sanitation in prison accommodation. One such committee formed by the Department of Justice noted that the installation of in-cell sanitation in all places of detention was planned to be completed by 1999.


11. Organisations such as the CPT investigated prison conditions in many European States. A number of such cases were brought before the European Court of Human Rights ("ECHR") in Strasbourg. Case histories there involved conditions which could only be described as being near to sub-human. The Strasbourg jurisprudence, considered later in this judgment, outlines the circumstances in which such detention and conditions have been held to constitute violations of Articles 3 and 8 ECHR.


12. United States courts have had to consider whether prison conditions constituted cruel and unusual punishment prohibited under the Eighth Amendment. United States jurisprudence has involved a consideration of an "objective" component (was there a sufficiently serious deprivation of rights); and a subjective element (was the deprivation brought about in wanton disregard of the inmate's rights). The purpose of such criteria were to measure the impugned conditions of confinement against "the evolving standards of decency that mark the progress of a maturing society" (Rhodes v. Chapman 452 U.S. 337 (1981). To show deliberate indifference, the subjective aspect of the Eighth Amendment test, plaintiffs must also show that the officials had actual knowledge of impending harm which was easily preventable (DesRosiers v. Moran 949 F. 2d. 15, 19 (1st Cir. 1991).


13. As will be seen many of the same themes resonate through cases...

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