The State (Comerford) v Governor of Mountjoy Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Barrington
• Judgment Date: 01 January 1981
• Neutral Citation: 1980 WJSC-HC 2200
• Court: High Court
• Date: 01 January 1981

1980 WJSC-HC 2200

THE HIGH COURT

No. 414 S.S./1980

COMERFORD v. GOVERNOR OF MOUNTJOY PRISON

STATE SIDE

IN THE MATTER OP ARTICLE 40 OF THE CONSTITUTION

AND IN THE MATTER OP THE COURTS OF JUSTICE ACTS 1924 TO 1962

AND IN THE MATTER OP THE RULES FOR THE GOVERNMENT OF PRISONS (S.I. NO. 320 of 1947)

AND IN THE MATTER OF THE IRISH HABEAS CORPUS ACT (21 AND 22) GEO 3 CHAP. 11

BETWEEN:

ROBERT COMERFORD

Applicant

and

THE GOVERNOR OF MOUNTJOY PRISON

Respondent

1 Judgment of Mr. Justice Barrington delivered the 19thday of November. 1980.

2 This is an enquiry under Article 40 of the Constitution. The preliminary order for an enquiry under Article 40 was made by me on the 26th September, 1980.

3 In his affidavit grounding his complaint the prosecutor stated that he was detained as a remand prisoner in Mountjoy Prison pursuant to Order of Mr. Justice D'Arcy dated the 9th day of May, 1980.

4 He said that upon his arrival in Mount joy Prison he was treated in a manner similar to other remand prisoners and was afforded the same opportunities to fraternise and enjoy exercise and recreation as other remand prisoners. He was given a cell in that part of Mount joy Prison reserved for remand prisoners.

5 On or about the 20th of May, 1980 the prosecutor was removed from that part of Mountjoy Prison reserved for remand prisoners and taken to a part of the prison known to prisoners as "the Base". This part of the prison is, the prosecutor avers, primarily reserved for prisoners suffering punishment for offences committed within the prison and also for prisoners who have been convicted of involvement in political offences and who are segregated from other prisoners, but otherwise accorded all the rights and privileges accorded to other convicted prisoners. This section of the prison is located in the basement.

6 The prosecutor complained that before being removed to the punishment section of the prison he had not been informed that he was guilty of any misbehaviour or of any breach of prison discipline nor was he informed of the nature of any charges against him or that any such breach had been reported to the prison authorities nor was he given any opportunity of hearing the evidence against him, if such evidence there was, nor was he afforded any opportunity of being heard in his defence.

7 On or about the 28th day of May, 1980 the prosecutor requested to see the Governor of Mount joy Prison and, as a result of that request, was interviewed by Deputy Governor Lee. At the said interview the prosecutor complained that he was a remand prisoner. Deputy Governor Lee is alleged to have replied "on remand, that is right, but for a very serious crime". The prosecutor was further informed by Deputy Governor Lee that he was being kept in the basement to ensure that he went to Court. He alleges that the Governor added "I don't want you going over the wall".

8 The Governor certified in writing the grounds for the prosecutor's detention on the 3rd day of October, 1980 and produced the warrant of the High Court dated the 9th of May 1980 on which he relied.

9 As the substance of the prosecutor's complaint was that he, the prosecutor, though a remand prisoner, was not being detained in the manner contemplated by the Rules for the Government of Prisons (statutory Instrument No.320 of 1947) and that he was being made to suffer unlawful punishment and deprivation, this return was not, in itself, adequate the justify the manner of the prosecutor's detention. It was amplified in an affidavit sworn by the Governor on the 6th October, 1980.

10 In this affidavit the Governor deposed that the area referred to in the prosecutor's affidavit as "the Base" is in fact the ground floor of B wing of the prison. According to the Governor the ground floor of B wing is not simply the punishment section of the prison as was alleged by the prosecutor. Prisoners who are undergoing punishment which takes them outside the normal routine e.g. loss of privileges, are detained there and this facilitates the supervision of their detention outside such routine. In addition persons in custody are placed in the ground floor of B wing for reasons of security, their own safety or because the good order and management of the prison requires that their detention be supervised in this part of the prison. This section of the prison has indoor and outdoor recreation areas. It has the same library and film facilities as the rest of the prison. It also has colour television, video tapes and showers. There is also a workshop. Persons in custody in this section enjoy all of these facilities except where they are restricted in the interests of security, their own safety or by the terms of any disciplinary punishment. The Governor deposed that the prosecutor was at all times detained in accordance with the prison regulations on foot of the said order of the High Court dated the 9th of May, 1980 and that any administrative decisions which affected the circumstances of the detention were lawfully taken in the interests of security and good order in the prison.

11 In evidence before me the prosecutor complained that he was not being treated as a remand prisoner; that he had to associate with convicted prisoners and that even though he had some of the privileges of a remand prisoner, his-position for example, in relation to exercise and to the supply of books was worse even than that of convicted prisoners from whom he used occasionally borrow books surreptitiously.

12 Governor Lee in evidence explained the reason for the special treatment which the prosecutor was receiving. He said that he received confidential information that the prosecutor, together with three convicted prisoners, was engaged in a conspiracy to kidnap a warder and escape from the prison. Governor Lee had received this information from a confidential source and claimed privilege in respect of it. There was no question of the prosecutor being punished. His transfer to the ground floor of B wing was...