S.M. v The Governor of Cloverhill Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice Hyland |
| Judgment Date | 07 December 2020 |
| Neutral Citation | [2020] IEHC 639 |
| Docket Number | [Record No. 2020/1765 SS] |
| Court | High Court |
| Date | 07 December 2020 |
[2020] IEHC 639
Justice Hyland
[Record No. 2020/1765 SS]
THE HIGH COURT
Habeas corpus – Unlawful detention – Rights of bodily integrity – Applicant seeking an order of habeas corpus under Article 40.4 of the Constitution – Whether the breach of the applicant’s rights of bodily integrity was sufficiently egregious or exceptional or fundamental to render unlawful his detention
Facts: The applicant applied to the High Court seeking an order of habeas corpus under Article 40.4 of the Constitution. The applicant was awaiting trial for murder and had been remanded in custody in Cloverhill Prison. It was asserted that, despite the valid orders detaining the applicant pending his trial, nonetheless his detention was invalid because it failed to vindicate his right to bodily integrity and/or his right to medical treatment. This was in circumstances where the evidence disclosed that he required a place in the Central Mental Hospital (CMH) due to his psychotic state with homicidal ideation but where there was no bed for him due to pressure on resources.
Held by Hyland J that, having had regard to the detailed evidence before her in respect of the applicant’s treatment, she was not persuaded that, to the extent the applicant’s rights of bodily integrity were breached by the failure to admit him to the CMH, such a breach was sufficiently egregious or exceptional or fundamental to render unlawful his detention.
Hyland J refused the application for habeas corpus.
Application refused.
This case concerns the circumstances in which otherwise legal detention can be rendered unlawful by a failure to provide appropriate medical treatment, thus entitling an applicant to an order of habeas corpus under Article 40.4 of the Constitution.
As identified by O'Donnell J. in SMcG & JC. v. CFA [2017] 1 I.R. 1
“… the remedy of an inquiry under Article 40 is the great constitutional remedy of the right to liberty…It is and remains the classic remedy when a person's liberty is detained without any legal justification, or where the justification offered is plainly lacking. However, the right it protects is a right not to be deprived of liberty save in accordance with law. More difficult issues arise when it is sought to justify detention by the production of a valid order which is regular on its face, but which it is asserted is liable to be quashed because of some defect in procedure. The High Court on an Article 40.4 inquiry does not have jurisdiction to make any order other than release or to refuse release… Given the importance of the remedy, and its power, I do not doubt that it is possible in a fundamental case for the High Court to as it were “look through” an otherwise validly issued order, or at least an order which has not yet been quashed by a court with jurisdiction to do so and direct the release of the applicant.”
This is a case where “more difficult issues” arise. The applicant is awaiting trial for murder and has been remanded in custody in Cloverhill Prison. It is asserted that, despite the valid orders detaining the applicant pending his trial, nonetheless his detention is invalid because it fails to vindicate his right to bodily integrity and/or his right to medical treatment. This is in circumstances where the evidence discloses that he requires a place in the Central Mental Hospital (CMH) due to his psychotic state with homicidal ideation but where there is currently no bed for him due to pressure on resources.
Of course, not every illegality impacting upon a prisoner will justify an order of habeas corpus. Quite the opposite is the case. The case law makes it clear that there must be an egregious breach of the fundamental rights of a person such as to render their otherwise lawful detention unlawful. In SMcG, O'Donnell J. held the breach must be exceptional:
“However, the Court in an exceptional case has the capacity to direct the release of the applicant notwithstanding the existence of the order, in the same way in which an exceptional case, post-conviction, it may proceed to direct the release of an individual notwithstanding the existence of an order convicting him or her which has not been set aside on appeal in the circumstances considered by Henchy J. Any such case however is exceptional and the breach must be so fundamental that the obligation of the administration of justice and the upholding of constitutional rights requires the court to proceed in that fashion.”
The nature of the test has been expressed in various ways in the case law. In J. H. v. Russell, Clinical Director of Cavan General Hospital [2007] 4 I.R. 242, it was held that only a complete failure to provide appropriate conditions of treatment could render a detention unlawful. In the case of Kinsella v. Governor of Mountjoy Prison [2012] 1 I.R. 467, it was held that as far as sentenced prisoners are concerned, the jurisdiction could only be used in quite exceptional cases. In F.X. v Clinical Director of Central Mental Hospital [2014] 1 I.R. 280 it was held that an order of the High Court good on its face should not be subject to an inquiry unless there has been some fundamental denial of justice.
The immediacy and simplicity of the remedy of habeas corpus may be seen from the wording of Article 40.4.2:
“Upon complaint being made by or on behalf of any person to the High Court… alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court … and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such persons from such detention unless satisfied that he is being detained in accordance with the law.”
The lack of procedural rules in respect of an Article 40.4 application is striking. There is no mechanism put in place to establish a detailed analysis of the situation. It is designed to address an obvious and overwhelming illegality.
In this case, having regard to the detailed evidence before me in respect of the applicant's treatment, I am not persuaded that, to the extent the applicant's rights of bodily integrity are breached by the current failure to admit him to the CMH, such a breach is sufficiently egregious or exceptional or fundamental to render unlawful his detention. I therefore refuse the application for habeas corpus.
The facts of this case are undoubtedly tragic, above all for Mr. O, the victim of a fatal assault but also for the applicant, Mr. M, and his family. The applicant is aged 25. He grew up with his parents and three siblings, attending secondary school and college. He had some mental health issues while attending both school and college. He suffered from OCD and from epilepsy.
In 2018 his mental health worsened and he spent some time in a psychiatric hospital in Newcastle. On release, he was no longer able to work and became homeless. He lost contact with his family but was picked up by the Gardaí in June 2019 in Santry and was admitted to St. Vincent's Hospital in Fairview, a psychiatric hospital, where he received a diagnosis of psychosis. He left St. Vincent's Hospital in April 2020 and went to live in a supported hostel. He unfortunately stopped taking his medication during the end of his stay in St. Vincent's according to his own account of matters and while living in the supported hostel.
He was living with a Mr. O in the supported hostel when, on the relevant date, he woke up at around 5am, went into a kitchen to get a knife that he had bought a few weeks before and entered the victim's room where the victim was asleep. He stabbed Mr. O a number of times, killing him, following which he immediately went to the local Garda station and asked to be arrested.
He was remanded to Cloverhill Prison on 14 August 2020 and was assessed by a nurse within two hours of committal. He was then transferred to D2 wing, a wing reserved for inmates assessed as potentially vulnerable. He was interviewed on 17 August by Dr. Conor O'Neill of the National Forensic Mental Health Service, a consultant lead in-reach psychiatric clinic in all the prisons within the reach of Dublin including Cloverhill. He is currently being treated by the prison medical team in conjunction with the in-reach team. The evidence shows he has had interviews with forensic psychiatrists on 17 August, 18 August, 31 August, 8 September, 22 September, 29 September, 6 October, 13 October, 20 October, 3 November, 12 November and 17 November 2020.
Dr. O'Neill describes the applicant as suffering from a psychotic illness, with a working diagnosis of schizophrenia. His case notes record previous diagnosis of OCD, atypical psychosis and epilepsy. The applicant is described as continuing to experience homicidal ideation and intrusive thoughts in the context of OCD.
Turning now to consider the case law in a little more detail, the first case in which this jurisdiction identified was The State (C) v. Frawley [1976] I.R. 365 where the prosecutor serving a sentence of imprisonment claimed that the conditions under which he was detained rendered his detention unlawful, specifically the failure to meet his psychiatric needs. Finlay P. noted that the executive had failed to provide the type of specialised psychiatric treatment needed to address his personality disturbance but nonetheless held that it was not the function of the court to fix...
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