The Gazette 1981

SEPTEMBER 1981

GAZETTE

Constitutional and Other Remedies for Remand and Convicted Prisoners

by

Raymond Byrne LL.M., Tutor in Constitutional Law, University College, Dublin

T HE prosecutor in The State (Comerford) v. Governor of Mountjoy Prison 1 was awaiting trial as a remand prisoner in Mountjoy Prison. He complained by affidavit to the High Court that the manner of his detention was in breach of the requirement in Rule 192 of the Rules for the Government of Prisons, 1947 2 that "Iplrisoners awaiting trial . . . be kept apart from convicted prisoners . . . " Barrington J. treated the application as one for an enquiry under Article 4 0 . 4 . 2° of the Constitution into the legality of the prosecutor's detention. Internal Transfer: Administration. During the initial ten days of his remand, Comerford had been given a cell in the area of Mountjoy Prison reserved for remand prisoners. However, he was then transferred to another area in the prison, the ground floor of B wing, because the Deputy Governor had received information from a confidential source that the prosecutor was en gaged in a conspiracy with three other prisoners to kidnap a warder and escape from the prison. 3 The Governor stated in evidence that the decision to transfer the prosecutor was taken in the interests of security and good order in the prison only, and that the ground floor of B wing was not, as the prosecutor had alleged, solely a punishment area. 4 Barrington J. held that: . . . the steps I taken) were not designed to punish the prosecutor but were designed to ensure that I he I would turn up at his trial. I am satisfied therefore that the Governor's decisions were motivated by administrative and security reasons only." 5 It would seem, therefore, that such an internal transfer is not reviewable in the courts, but rather is a matter to be left to the prison authorities. The same conclusion had previously been reached by Keane J. in a case also relating to the ground floor of B wing, The State (Littlejohn and Ors.) v. Governor of Mountjoy Prison , 6 in which convicted prisoners unsuccessfully challenged their separation from the general prison population, the justification given by the Governor, as in Comerford, being security considerations. Internal Transfer: Breach of Prison Rules However, unlike Littlejohn, Comerford raised the

additional point that the transfer involved contact between remand and convicted prisoners. This was the nub of the prosecutor's complaint, and hence his invocation of Rule 192 of the Prison Rules, quoted above. Thus, while Barrington J. accepted and reiterated that there had been no intention to punish the prosecutor, he was nonetheless: . . . placed in a position where he had necessarily to associate with convicted prisoners and therefore there was, in my opinion, a clear breach of Ruk 192 . . . 7 Having established this, it remained to consider what remedies were available to the prosecutor, and, secondly, whether he was entitled to claim any of them in the cir cumstances of the case. Habeas Corpus and Remand Prisoners In view of the breach of Rule 192, Barrington J. stated: 1 am therefore satisfied that the manner of the prosecutor's detention was irregular but 1 do not think that the irregularity was such as to make the prosecutor's detention unlawful or to entitle him to an absolute order of Habeas Corpus. We are here dealing with the case of a remand prisoner and not of a convicted prisoner but nevertheless the principles laid down by the Supreme Court in . . . The State (McDonagh) v. Frawley* would appear to apply. 9 McDonagh principles ought not apply to remand prisoners. In laying down its test for convicted persons (that only fundamental defects in conditions of confinement could justify making an absolute order of habeas corpus), the Supreme Court in McDonagh emphasises that since such prisoners had been convicted of a criminal offence in due course of law under Article 38.1 of the Constitution, they were suffering a punishment as a result and therefore technical defects in the conditions of detention could not justify release. 10 Clearly, that rationale cannot be applied to remand prisoners, since they are detained solely to ensure they will stand trial, and punishment may only begin after 157 At first sight, it is arguable, however, that the