Séamus Marley v The Governor of the Midlands Prison

• Jurisdiction: Ireland
• Judge: Mr Justice Holland
• Judgment Date: 18 February 2022
• Neutral Citation: [2022] IEHC 121
• Court: High Court
• Docket Number: 2SSP/2002

Between

Séamus Marley

Applicant

and

The Governor of the Midlands Prison

Intended Respondent

and

Ireland, The Attorney General

The Chief Justice of Ireland, The Commissioner of an Garda Siochana, The President of the High Court, The Minister for Justice, The Irish Human Rights and Equality Commission and The Irish Prison Service

Intended Notice Parties

[2022] IEHC 121

2SSP/2002

THE HIGH COURT

Unlawful detention – Inquiry – Article 40.4 of the Constitution – Applicant seeking an order directing an inquiry into the legality of his detention – Whether the breach of law and of his rights which the applicant alleged reached the level of fundamental flaw or fundamental denial of justice

Facts: The applicant, Mr Marley, prisoner #106919 detained in the Midlands Prison, by letter to the High Court dated 31 January 2022, received there on 14 February 2022 and by Holland J on 15 February 2022, complained by unsworn signed statement that the conditions of his detention were so constitutionally unacceptable and in breach of his rights pursuant to the European Convention on Human Rights as to make his detention unlawful. More specifically he complained of denial by the intended respondent, the Governor of the Midlands Prison, of his right of access to the High Court and of access to his solicitor for purposes of legal consultation in respect of pending proceedings before the Court of Appeal and the High Court. On that basis he sought various orders – primarily an order pursuant to Article 40.4 of the Constitution directing an inquiry into the legality of his detention. Inter alia he also sought orders committing the Governor of the Midlands Prison for what he called crimes against the administration of justice, consisting of contempt of court and preventing the course of justice.

Held by Holland J that it appeared unstateable that the breach of law and of his rights which Mr Marley alleged reached the level of fundamental flaw or fundamental denial of justice that is the threshold under Article 40 for his immediate release from the Midlands Prison. Accordingly Holland J refused to direct an inquiry pursuant to Article 40.4 of the Constitution into the legality of Mr Marley’s detention in the Midlands Prison. However, Holland J treated Mr Marley’s application as an application for judicial review seeking mandamus directing the Governor of the Midlands Prison to facilitate the applicant’s consultation with his solicitor and any other reliefs appropriate to remedy his complaints if found valid.

Holland J held that, having regard to the very limited papers before the court, he did not have a sufficient appreciation of the factual background to the matter to allow him to make an informed decision whether to grant leave to seek judicial review. He was of the view that further information would assist him in determining what, if any, further course of action was required in the matter. That view was reflected in the following directions: (a) he deemed the application for leave to seek judicial review to have been made on 14 February 2022 for purposes of time-limits within which leave to seek judicial review must be sought; (b) he gave liberty to the applicant to file, within 2 weeks of his receipt of a copy of this ruling, a statement of the grounds upon which he sought judicial review and such mandamus as Holland J had described and any other reliefs by way of judicial review relating to the subject matter of the applicant’s application and an affidavit grounding such application; (c) he directed pursuant to Order 84, rule 24, of the Rules of the Superior Courts that the leave application should be heard on notice to the Governor of the Midlands Prison; (d) he directed that the Governor of the Midlands Prison file and deliver to Mr Marley an affidavit, within 2 weeks of his receipt of a copy of this ruling, in response to the facts asserted in the application; (e) he deferred any directions as to service of the proceedings on the intended notice parties; (f) the registrar was requested to send, as soon as may be, a copy of this ruling and the perfected order on foot thereof by registered post to Mr Marley; (g) the registrar was requested to send, as soon as may be, a copy of this ruling, the perfected order on foot thereof and the complaint of Mr Marley by registered post to the Governor of the Midlands Prison, to the Irish Prisons Service, by way of courtesy to the Office of the Chief State Solicitor, and by way of courtesy to the solicitors whose correspondence Mr Marley had enclosed, and with whom he wished to consult; and (h) the hearing of the leave application would, in the first instance, be a hearing on the papers only.

Application refused.

RULING

BY Mr Justice Holland on the 18 th of February 2022

1 By letter to the High Court dated 31 January 2022, received there on 14 February 2022 and by me on 15 February 2022, Mr Marley, prisoner #106919 detained in the Midlands Prison, complains by unsworn signed statement that the conditions of his detention are so constitutionally unacceptable and in breach of his rights pursuant to the European Convention on Human Rights as to make his detention unlawful. More specifically he complains of denial by the Governor of the Midlands Prison of his right of access to the High Court and of access to his solicitor for purposes of legal consultation in respect of pending proceedings before the Court of Appeal and the High Court. On that basis he seeks various orders – primarily an order pursuant to Article 40.4 of the Constitution directing an inquiry into the legality of his detention. Inter alia he also seeks orders committing the Governor of the Midlands Prison for what he calls crimes against the administration of justice, consisting of contempt of court and preventing the course of justice. Oddly, in the circumstances, he does not seek an order remedying his complaint – an order requiring that he be facilitated as to consultation with his solicitor.

2 It appears from his complaint that Mr Marley is detained pursuant to conviction by the Central Criminal Court dated 27 March 2019.

3 Mr Marley says his statement is unsworn by reason of the refusal of the prison authorities to allow him access to his solicitor such that he should be enabled to depose on oath in court to the facts he asserts. In the circumstances, and for the present, I accept Mr Marley's complaint as if sworn.

4 Mr Marley cites proceedings 2021/32 before the Court of Appeal in which, pursuant to S.2 of the Criminal Procedure Act 1993, he alleges that his detention is on foot of a miscarriage of justice. He refers also to civil proceedings 2021/5386P in the High Court in which he sues the State and the Governor of the Midlands Prison for alleged breach of his constitutional rights. In neither case does he give detail of the substance of the proceedings.

5 Mr Marley alleges that his solicitors on record have for some time been trying and failing to get access to him for consultation for purposes of his miscarriage of justice proceedings. Mr Marley encloses copy letters (1 ^st page only) dated 14 January 2022 and 24 January 2022 from those solicitors to the Governor and Professional Visits section of the Midlands Prison.

6 The letter of 14 January 2022 complains of delays of 7 to 10 days in Mr Marley's receiving letters from his solicitors marked “Legal Privilege Rule 44” and seeks assurances that they have not been read or copied by prison authorities. It also asks if calls (I assume phone calls) to solicitors are listened to or recorded. The letter does not set out any factual background to or basis for these inquiries beyond the complaint of delay in delivery. The letter also complains that recent applications by the solicitors by e-mail to prison authorities for “visits/zoom visits” have gone unanswered and that the solicitors cannot get through by phone.

7 The letter of 24 January 2022 makes three complaints against the prison authorities:

• • Of failure to reply to correspondence – specifically that of 14 January 2022

• • Of numerous attempts to phone the prison authorities with no success or reply – including “on five days running”

• • That a professional visit by Zoom arranged for 10:00 on 24 January 2022 was changed by the prison authorities to 11:00 and then to 11:45 without notice to the solicitor or Mr Marley. Given the terms of the complaint, I infer that...