The Governor of A Prison -v- GDC

• Jurisdiction: Ireland
• Judge: Ms Justice Tara Burns
• Judgment Date: 10 July 2020
• Neutral Citation: [2020] IEHC 354
• Docket Number: RECORD NO.: 2020/3457P
• Court: High Court
• Date: 10 July 2020

BETWEEN:

THE GOVERNOR OF A PRISON

PLAINTIFF

-AND-

GDC

DEFENDANT

[2020] IEHC 354

Tara Burns J.

RECORD NO.: 2020/3457P

THE HIGH COURT

Declaratory relief – Capacity – Right to bodily integrity – Plaintiff seeking declaratory relief – Whether the defendant had full capacity to decide to refuse food and medical treatment

Facts: The defendant was an inmate at a prison having been convicted on 22nd February 2018 of several rape and sexual assault offences in respect of his daughter. He was sentenced to fifteen years imprisonment with the final year suspended. His scheduled release date was 7th August 2028. On 29th March 2020, the defendant informed the plaintiff, the Governor of the prison, by letter, that he was commencing a hunger strike in protest at his conviction, his treatment by the criminal justice system and the treatment of his family by the State. By 13th May 2020, the defendant remained on hunger strike. His condition had become precarious. Arising from this, the plaintiff instituted proceedings seeking declaratory relief, pursuant to the inherent jurisdiction of the High Court, in the following terms: (a) that the defendant has capacity to make a decision to refuse food and nourishment and has the capacity to make a decision to refuse all forms of medical assistance arising from such refusal of food and nourishment, should the necessity for such assistance arise; (b) that the defendant’s decision of 29th March 2020 to refuse food, nourishment and medical assistance is valid and should remain operative in the event that the defendant becomes incapable of making a decision of whether to accept food and nourishment or such medical treatment; (c) that the plaintiff’s decision not to feed the defendant against his wishes, to wit not to force-feed the defendant, is lawful; (d) that the plaintiff is entitled to give effect to the defendant’s wishes not to be fed or receive nourishment, and not to receive medical assistance; (e) in the alternative, directions as to the appropriate course of action for the plaintiff to take if emergency care for the defendant is required as a result of his decision to refuse food and nourishment. The plaintiff also sought interlocutory declaratory relief in the terms set out above by Notice of Motion dated 13th May 2020. However, when the interlocutory matter came on for hearing before the High Court, an urgent plenary hearing was directed which took place before Burns J on 15th May 2020. At the plenary hearing, the defendant’s position was that he consented to the orders sought by the plaintiff at paras. (a)–(d) of the Plenary Summons. He requested that his right to self-determination and autonomy be recognised and respected by the Court.

Held by Burns J that the evidence established that the defendant had full capacity to decide to refuse food and medical treatment; he fully understood the ultimate consequences of his protest. Burns J held that in light of the defendant’s right to bodily integrity to include integrity of mind and personality and his right to autonomy, it was not appropriate that his will would be overwhelmed so as to force feed him.

Burns J, for this reason, previously granted the orders sought by the plaintiff at paras. (a)–(d) of the Plenary Summons, whilst urging the defendant to cease his hunger strike.

Orders granted.

JUDGMENT of Ms Justice Tara Burns delivered on the 10th July, 2020

1 The Defendant is an inmate at A Prison having been convicted on 22nd February 2018 of several rape and sexual assault offences in respect of his daughter. He was sentenced to fifteen years imprisonment with the final year suspended. His scheduled release date is 7th August 2028.

2 On 29th March 2020, the Defendant informed the Plaintiff, by letter, that he was commencing a hunger strike in protest at his conviction, his treatment by the criminal justice system and the treatment of his family by the State.

3 By 13th May 2020, the Defendant remained on hunger strike. His condition had become precarious. Arising from this, the Plaintiff instituted these proceedings seeking declaratory relief, pursuant to the inherent jurisdiction of the High Court, in the following terms:-

a) That the Defendant has capacity to make a decision to refuse food and nourishment and has the capacity to make a decision to refuse all forms of medical assistance arising from such refusal of food and nourishment, should the necessity for such assistance arise;

b) That the Defendant's decision of 29th March 2020 to refuse food, nourishment and medical assistance is valid and should remain operative in the event that the Defendant becomes incapable of making a decision of whether to accept food and nourishment or such medical treatment;

c) That the Plaintiff's decision not to feed the Defendant against his wishes, to wit not to force-feed the Defendant, is lawful;

d) That the Plaintiff is entitled to give effect to the Defendant's wishes not to be fed or receive nourishment, and not to receive medical assistance.

e) In the alternative, Directions as to the appropriate course of action for the Plaintiff to take if emergency care for the Defendant is required as a result of his decision to refuse food and nourishment.

4 The plaintiff also sought interlocutory declaratory relief in the terms set out above by Notice of Motion dated 13th May 2020. However, when the interlocutory matter came on for hearing before the High Court, an urgent plenary hearing was directed which took place before myself on 15th May 2020.

5 By that date, the Defendant had been without food for 48 days. He was taking water and coffee. He had lost 13kgs. Dr Rasool, a general practitioner attached to A Prison summarised the Defendant's condition as:

“He has lost significant amount of weight, hypoglycaemic, low blood pressure, physical frailness, episodes of dizzy spells and progressively getting weaker day by day.”

His condition was further complicated by pre-existing health issues, most particularly in relation to his heart: he had suffered a heart attack in October 2019, as a result of which he had three stents inserted.

6 At the plenary hearing, the Defendant's position was that he consented to the orders sought by the Plaintiff at paras (a) - (d) of the Plenary Summons. He requested that his right to self-determination and autonomy be recognised and respected by the Court. Accordingly, no party made any arguments contrary to the Plaintiff's submissions.

The Protest

7 As already referred to, the Defendant commenced his hunger strike by letter dated 29th March 2020. The various matters which he was protesting about were set out in the letter and can be summarised as follows: he was protesting his innocence in respect of his conviction; protesting that his trial was unfair; protesting determinations made by the Court of Appeal; and protesting about earlier actions of the State which interfered with his family unit. He also made a plea to his daughters, including the victim of the sexual offences, to come forward and tell the truth which would involve them admitting that they had made false allegations against him. He indicated in that letter that he did not wish to receive any medical attention related to his hunger strike.

8 A letter was received from his solicitor dated 28th April 2020 which affirmed that he was on hunger strike and that he did not wish to receive medical attention arising from this course of action.

9 In light of what the Defendant was protesting about, it is important to set out what had occurred in the trial process.

10 As already indicated, the Defendant was convicted by a jury in February 2018 of several rape, s. 4 rape and sexual assault offences, relating to his daughter, occurring between 2006 and 2010. An appeal against his conviction and sentence was lodged before the Court of Appeal in April 2018.

11 In addition to the appeal, a motion seeking leave to adduce fresh evidence at the hearing of the appeal was lodged in May 2018. This application arose in the following circumstances: very shortly after the defendant's conviction, his daughter visited him in prison. The defendant contended that during this visit, his daughter acknowledged that she had lied during the trial. Arising from this visit, the defendant's solicitor contacted her whereupon he said that she indicated to him that she had told lies during the trial. The victim also had communication with another individual who asserted that the victim had indicated that the defendant was not a rapist and had not done these things to her. The Court of Appeal agreed to hear evidence regarding this fresh evidence de bene esse and to rule, during its judgment, on whether the Defendant could rely on it.

12 The appeal was heard before the Court of Appeal in November 2018 and January 2019. Judgment was delivered by the Court of Appeal on 20th December 2019.

13 The appeal focussed on three areas, namely that the trial was unfair in several material respects but in particularly that the trial judge's conduct of the trial was objectively unfair; that grossly prejudicial material had been adduced in evidence before the jury thereby prejudicing the Defendant; and that the fresh evidence which had emerged since the trial established that the Defendant's daughter had now recanted and admitted that she had lied giving her evidence at the trial.

14 The Court of Appeal heard oral evidence regarding the fresh evidence application. It heard from the Defendant, the Defendant's solicitor, a witness who had communication with the Defendant's daughter and the Defendant's daughter.

15 The Court of Appeal determined that the evidence of the alleged confessions made by the Defendant's daughter to the defendant and the other witness were not credible. In relation to what was said to the Defendant's solicitor by the Defendant's daughter, the Court of Appeal determined that while there...