Nash v Chief Executive of Irish Prison Services and Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 04 August 2015
• Neutral Citation: [2015] IEHC 504
• Court: High Court
• Docket Number: [2015 No. 228JR]
• Date: 04 August 2015

BETWEEN

MARK NASH

APPLICANT

AND

THE CHIEF EXECUTIVE OF THE IRISH PRISON SERVICES, THE MINISTER FOR JUSTICE AND EQUALITY, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

GOVERNOR OF MOUNTJOY PRISON AND GOVERNOR OF ARBOUR HILL PRISON

NOTICE PARTIES

[2015] IEHC 504

[2015 No. 228JR]

THE HIGH COURT

JUDICIAL REVIEW

Crime & Sentencing – Conviction for murders – Transfer from one prison to other – S. 17 (3) of the Criminal Justice Administration Act 1914 – Rights of prisoners – Non-interference of judiciary in executive functions – Whether suicidal ideation of a prisoner is a ground for transfer from prison

Facts: The applicant originally sought an order of certiorari against the decision of the first named respondent refusing to transfer him from Mountjoy Prison to Arbour Hill Prison, wherein he was detained during trial; however, upon his conviction for multiple murders, after being detained at Mountjoy Prison shortly for assessment, he was transferred to Midlands Prison for serving life sentences and the applicant now sought a declaration that his detention at a prison other than Arbour Hill Prison was unlawful, against the second decision of the first named respondent maintaining the earlier refusal as per directions by the Court. The applicant alleged that his detention at Midlands Prison was punitive and devoid him of a wide range of activities that he enjoyed at Arbour Hill Prison. The applicant also contended that there existed threats to his safety and that being in the current prison led him to develop suicidal thoughts. The second and third named notice parties contended that the impugned second decision was made for security consideration and that the applicant's needs could very well be taken care of at Midlands Prison.

Mr. Justice Kearns P. refused to grant the relief to the applicant to the effect that he should be transferred back to Arbour Hill Prison. The Court, however, maintained that the aforesaid order would not preclude the applicant from making further application upon exhibiting good conduct and demeanour. The Court held that the transfer of prisoners from one prison to another was essentially an executive function performed for the smooth administration of the prison system in the country and therefore, the judiciary should refrain from unnecessarily interfering in ministerial functions and any departure from that would likely hamper the administration of the prison system in the country. The Court was of the view that the prisoners did not possess the right to choose the prison of their choice. The Court opined that suicidal tendency and threats could not be used to achieve the desired goal of seeking transfer to the prison of choice unless such suicidal condition had been brought about as a direct result of actual or anticipated violence, thereby inducing grave risk to the life and liberty of the prisoner. The Court observed that though the executive had been conferred wide discretionary powers, yet it was not immune from judicial scrutiny, especially where there was grave disobedience of law and order. The Court found that there was no gross violation of any right of the applicant as his needs were being adequately addressed by the Midlands prison system.

JUDGMENT of Kearns P. delivered on the 4th day of August, 2015

1 In these judicial review proceedings the applicant, who is serving life sentences for multiple murders, originally sought an order of certiorari quashing the decision of the Irish Prison Service communicated to the applicant's solicitor by letter dated 30th April, 2015 to refuse the applicant's request that he be transferred from Mountjoy Prison to Arbour Hill Prison. When the matter came before this Court on successive dates from 24th July, 2015 the applicant had by then been transferred to the Midlands Prison to serve his sentences. In these circumstances, amendments to the grounds upon which leave had been granted were permitted as on the one hand the complaints about the nature of his detention in Mountjoy had become moot and on the other the applicant's preference and request for transfer to Arbour Hill still continued. Following his transfer to the Midlands prison on 6th May, 2015, it is agreed the applicant became significantly suicidal. In these altered circumstances the respondents elected to conduct a further review and consideration of the transfer request. The further review undertaken by the Prison Service culminated in a decision on 29th July, 2015, supported by a 14 page statement of reasons, to maintain the refusal of the applicant's request for the particular transfer sought. In these unusual circumstances it is in reality this more recent decision which the applicant seeks to have quashed. While mandatory relief directing the applicant's transfer to Arbour Hill has not been sought, the application, for all practical purposes, is to that effect and purpose as a declaration is sought in these proceedings to the effect that the applicant's detention ‘at a prison other than Arbour Hill Prison…is unlawful’.

BACKGROUND

2 The applicant herein has been detained in the custody of the Irish Prison Service since being arrested in August, 1997 in relation to the murders of Mr. Karl Doyle and Ms. Catherine Doyle in Ballintubber, Co. Roscommon. The applicant was convicted of these offences in October, 1998 and received a life sentence on each of the two counts of murder. He has been detained at Arbour Hill Prison for the vast majority of time since that date.

3 In October 2009 the applicant was charged with a further two counts of murder in respect of the deaths of Ms. Sylvia Shields and Ms. Mary Callanan (‘the Grangegorman murders’) which occurred in March 1997. The applicant's trial in respect of these charges came before the Central Criminal Court in January 2015. The applicant was convicted on 20th April, 2015 and was sentenced to an additional two life sentences. Throughout the trial the applicant continued to be detained at Arbour Hill Prison.

4 Following his conviction in April 2015 the applicant was not returned to Arbour Hill Prison and was instead committed initially to Mountjoy Prison. This is apparently the typical destination for recently convicted prisoners who undergo a period of assessment at Mountjoy before being lodged elsewhere in the prison system. However, the applicant continued to be detained at Mountjoy for longer than he had anticipated and he lodged an internal complaint in relation to his detention in Mountjoy on 23rd April, 2015.

5 On 21st April, 2015 the applicant's solicitor wrote to the Director of Operations of the Irish Prison Service, Mr. Martin Smith, stating that the applicant had established himself as part of the prison community at Arbour Hill but had now learned he was to be transferred to the Midlands Prison. The applicant's solicitor stated that no reason had been provided for this change in prison arrangements and that there was no credible basis for the contention that the applicant was ‘in nature a different prisoner’ than he was prior to his conviction in April 2015. Detailed reasons for the transfer were requested and it was indicated that the transfer was likely to cause the applicant serious emotional harm.

6 A further letter was sent to Mr. Smith by the applicant's solicitor on 22nd April, 2015 stating that the applicant was in fear of his life at Mountjoy Prison and was being held on a “24 hour lock-up’ basis. Mr. Smith responded to this letter on the same date and indicated that the applicant had been transferred to Mountjoy in accordance with the order of the court and that no decision had yet been made in relation to the applicant's long term arrangements.

7 In his complaint form of 23rd April the applicant sets out that while detained at Arbour Hill he was better placed to maintain a relationship with his partner of eight years, that he felt safe and secure there and did not have to “ look over [his] shoulder all day”, and that he had access to education services and was able to attend the gym on a daily basis. Arbour Hill provides an internal “open security” regime with which the applicant was familiar and comfortable. The applicant contends that he had become a productive inmate at Arbour Hill over a period of almost seventeen years. His letter of complaint states that while at Mountjoy he was held in 23 hour a day “lock up” and that he had serious concerns for his safety.

8 By letter dated 29th April, 2015 the applicant's solicitor again wrote to Mr. Smith seeking clarity on the proposed arrangements regarding the applicant's detention and requesting that he be transferred back to Arbour hill Prison without delay.

9 On 30th April, 2015 Mr. Keith Lynn of the Irish Prison Service Operations Directorate wrote to the applicant's solicitor stating that the applicant ‘ is not detained in the basement of Mountjoy Prison on 24 hour lock-up as claimed. Mr. Nash is located in the Medical unit of Mountjoy prison as he has requested protection in Mountjoy Prison and he is also subject to special observations for medical reasons.’

10 This letter goes on to state:–

‘Mr. Nash will not be returned to a low security prison such as Arbour Hill for the foreseeable future for a number of reasons. The security setting for someone just convicted of a double murder is completely inappropriate. Secondly there is very little in the way of rehabilitative options that the services in Arbour hill can offer him as Arbour Hill's services are geared towards the treatment of sex offenders. Having been convicted of such serious crimes Mr. Nash has a significant road ahead of him in his efforts to rehabilitate himself and reduce his risk to society. As such he will need engagement with the relevant services which are available in medium security prisons for persons convicted of murder. Mr....