Ward -v- Minister for Justice & Ors, [2007] IEHC 39 (2007)

Docket Number:2006 64 JR
Party Name:Ward, Minister for Justice & Ors
Judge:McGovern J.



2006 No. 64 J.R.












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

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:-

(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 h√Čireann.

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

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

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

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

(b) is unfair and unjust to the Applicant;

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

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

(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.

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.

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.

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.

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...

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