Ward v Minister for Justice and Others

JurisdictionIreland
JudgeMr. Justice McGovern
Judgment Date25 January 2007
Neutral Citation[2007] IEHC 39
CourtHigh Court
Docket Number[2006 No. 64 JR]
Date25 January 2007
Ward v Minister for Justice & Ors
JUDICIAL REVIEW
BETWEEN/
FRANK WARD
APPLICANT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE IRISH PRISON SERVICE AND THE ATTORNEY GENERAL
RESPONDENTS

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS
NOTICE PARTY

[2007] IEHC 39

No. 64 J.R./2006

THE HIGH COURT

CONSTITUTION ART 38.1

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 6.3(B)

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

EMERGENCY POWERS BILL, IN RE 1977 IR 159

DPP, PEOPLE v MADDEN 1977 IR 159

DPP, PEOPLE v SHAW 1982 IR 1

DPP, PEOPLE v CONROY 1986 IR 460

DPP, PEOPLE v HEALY 1990 2 IR 73

HARRINGTON, STATE v GARDA CMSR UNREP FINLAY 14.12.1976 1976/5/673

DPP v FINNEGAN UNREP CCA 15.7.1997 1998/4/977

WALSH & MCGOWAN, STATE v GOVERNOR OF MOUNTJOY PRISON UNREP SUPREME 12.12.1975

LAVERY v MEMBER IN CHARGE, CARRICKMACROSS GARDA STATION 1999 2 IR 390 1999/15/4572

DPP v PRINGLE 2 FREWEN 57

DPP v BUCK 2002 2 IR 268 2002 2 ILRM 454 2002/8/1841

CLUNE v DPP 1981 ILRM 17

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

Z v DPP 1994 2 IR 476 1994 2 ILRM 481 1994/7/1949

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11

1

Judgment of Mr. Justice McGovern delivered the 25th day of January, 2007 .

2

This is an application for judicial review for an order of mandamus requiring the respondents to afford the applicant an opportunity of meeting his legal advisers privately. Leave was granted by order of Johnson J. on 24th January, 2006. On 3rd May, 2006 a notice of motion was brought to amend the statement of grounds dated 18th January, 2006. The original grounds had been drafted by the applicant in manuscript form. By order dated the 17th day of July, 2006 MacMenamin J. ordered that the Director of Public Prosecutions be joined as a notice party to the proceedings and gave the applicant liberty to amend his statement of grounds by the addition of the following reliefs:-

3

(i) A declaration by way of application for judicial review that by failing to afford the applicant facilities or any opportunity to consult privately with his legal advisers when brought in custody before Dublin Circuit Criminal Court his constitutional right to a fair trial was violated contrary to Article 38.1 of Bunreacht na hÉireann.

4

(ii) If the court should so hold that the plaintiff is so entitled, to damages.

5

He also gave liberty to add the following grounds upon which the relief is sought namely:-

6

The refusal to facilitate the applicant's request to privately consult with his legal advisers —

7

(a) violates the applicant's right to a trial in due course of law contrary to Article 38.1 of the Constitution;

8

(b) is unfair and unjust to the Applicant;

9

(c) has prejudiced the Applicant in his defence of the criminal proceedings and has rendered any trial which might proceed unfair;

10

(d) has prejudiced the Applicant's chance of obtaining a fair trial;

11

(e) violated the Applicant's right to a fair trial in contravention of article 6(3)(b) of the European Convention on Human Rights as annexed to the European Convention on Human Rights Act, 2003.

The facts.
12

The plaintiff is facing criminal charges relating to an armed robbery at the Goat Grill public house and car park at Goatstown, Dublin, 14 on 6th October, 2003. The plaintiff is due for trial before the Circuit Criminal Court. On 16th July, 2006 the plaintiff attended at an interim hearing in advance of the trial. He complains that on that date his solicitor and counsel went downstairs to the cells below the corridor at Circuit Court 8 for the purpose of consulting with him. He was handcuffed to a prison officer and the Applicant asked his solicitor if it would be possible to speak to counsel and herself without the presence of the prison officer. The solicitor, Ms. Clare Naughton, spoke to the officer handcuffed to the applicant and asked if herself and counsel might be allowed consult with the Applicant in private and was advised that the consent of the Assistant Chief Officer would be required. She was given the name of the officer on that date and went upstairs to speak to him. It seems the Assistant Chief Officer was not available and the other prison officers informed the Applicant's solicitor that she and counsel would not be able to talk to their client except while he was handcuffed to a prison officer.

13

In the course of the hearing I was told by counsel for the Applicant that these events took place after the interim hearing in the Circuit Criminal Court.

14

The Applicant claims that the refusal to facilitate his request to consult privately with his legal advisers was a violation of his constitutional rights, is unfair and unjust to him, and has prejudiced his right to a fair trial. He also claims that it was a violation of his rights under article 6(3)(b) of the European Convention on Human Rights as annexed to the European Convention on Human Rights Act, 2003.

15

The respondents have put in two statements of opposition. The second one was delivered after the Applicant was given leave to amend the statement of grounds. The Respondents state that the applicant has the right to have a consultation with his legal advisers at any reasonable time in Portlaoise Prison, in sight but out of the hearing of prison officers. This right has been exercised by the Applicant on a number of occasions during his custody in Portlaoise Prison. They deny that he is entitled to a similar facility in the environs of the Criminal Courts and say that there is a high risk that the plaintiff would escape with a consequent threat to the public if he was not handcuffed to a prison officer while in the area where the Applicant and his legal advisers sought to have their consultation. The Respondents state that they will facilitate such consultations with the Applicant's legal advisers as are reasonable and appropriate but that the applicant must remain handcuffed to a prison officer during any such consultations in the environs of the court. They also point out that if it is practical from a security viewpoint the Applicant will be allowed to consult with his legal team out of the hearing of prison staff and that this can happen by allowing the applicant and his advisers to be seated in a pew in the court with the officers protecting the points of exit from the Court. But they say this will only take place if the officers are satisfied that the area is not an escape risk and there are no persons in the area who could facilitate an escape attempt. If this is not possible the Applicant can communicate with his advisers but prison officers will be in his immediate vicinity.

16

The Respondents also state that the Applicant did not, in fact, seek a consultation while inside a courtroom so the issue of the procedure that would be adopted inside a courtroom did not arise. This does not appear to be challenged. They argue that any relief in respect of access to legal advice during the course of the criminal trial is premature and would be a matter for the trial judge who will be obliged to discharge his legal and constitutional duties with justice and fairness. They also claim that the applicant has not discharged the onus placed on him of proving that there is a real and substantial risk that he will not obtain a fair trial in accordance with law and that the arrangements which were put in place by the second named respondent in relation to the provision made for the Applicant to consult with his lawyers did not infringe any of the Applicant's constitutional rights.

17

I have read the papers in this matter and the affidavits which have been sworn and filed. I have also received written submissions from all of the parties and extensive oral submissions from counsel. I have been referred to many legal authorities. Counsel have informed the court that the issues arising in this case are somewhat novel insofar as the authorities which exist in this jurisdiction on the question of an accused person's right to consult with his lawyers have arisen in the context of an accused in custody in a garda station or an accused in a prison situation. It appears that the question of the extent of an accused person's right to consult with his legal advisers in a court building (but not in a courtroom) during an interim hearing has not been considered before.

The law
18

I am satisfied from the authorities which have been opened to me that a person detained in a garda station or in a prison has a constitutional right to access to his legal advisers in privacy and out of the hearing of An Garda Síochána or the prison staff as the case may be. See In re Article 26 and the Emergency Powers Bill, 1976 [1977] I.R. 159; The People (Director of Public Prosecutions) v. Madden [1977] I.R. 336 at 355; The People (Director of Public Prosecutions) v. Shaw [1982] 1 I.R. 1; The People (Director of Public Prosecutions) v. Conroy [1986] 460; The People (Director of Public Prosecutions) v. Healy [1990] 2 I.R. 73 at 81; The State (Harrington) v. Garvey (unreported judgment, 14th December, 1976); The People (D.P.P.) v. Finnegan (unreported judgment, 15th July, 1997) at p. 1009; The State (McGowan and Walshe) v. Governor of Mountjoy (unreported, Supreme Court, December 12th 1975); Lavery v. Member in Charge, Carrickmacross Garda Station [1999] 2 I.R. 390 at 395; The People (D.P.P.) v. Peter Pringle2 Frewen 57.

19

While these cases deal with persons being detained in a garda station or in prison they do offer some assistance in the present case. In Lavery v. The Member in Charge (Carrickmacross Garda Station)...

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