The Gazette 1981

GAZETTE

SEPTEMBER 1981

confinement are fundamentally defective, habeas corpus (that is, an application for an Article 4 0 . 4 . 2° enquiry) will not be appropriate. However, as the case-law since then has shown, even experienced lawyers have found difficulty in applying that test to particular situations. A realistic conclusion to reach is that in all probability deviations from either constitutional requirements or the Prison Rules would hardly ever result in an absolute order of habeas corpus. Even if this is correct, and the recent discouragements to Article 4 0 . 4 . 2° applications seem to confirm it, judges have tended not to raise a barrier to relief to people who have not had the benefit of legal advice even though in normal circumstances their con duct would preclude them from relief; 39 how more relevant is this approach to pro se applications from prisoners, unless the effect of the present state of law can be conveyed directly to prisoners? 40 Of course, if that did occur, and prisoners made bona fide but informal applications for remedial relief, that is, excluding habeas corpus, then the status of their right of access to the courts would require reconsideration. Conclusion: The Alternative Remedies It remains to attempt to summarise the circumstances in which the forms of relief discussed above apply and the interaction between these reliefs. 1. For fundamental defects in conditions of confine ment, habeas corpus is the appropriate remedy: The State (C.) v. Frawley; 41 The State (McDonagh) v. Fraw ley. 2. If conditions fall short, though not "fundamen tally", of constitutional requirements, the courts could

ted by a breach of the prison rules. Mountjoy is an established civilian prison and, even though it has had to face peculiar difficulties in recent times, I am not satisfied that this breach of the regulations was occasioned by the exigencies of the present situation. I think it more probable that it arose from inadvertence. 30 In view of the sentiments of Finlay P. in Cahill, however, Barrington J. accepted that no order of mandamus should issue after an Article 4 0 . 4 . 2° enquiry. 31 The courts would appear to have reached the position that Article 40 . 4 . 2° may not be used as a general remedy, but is to be confined primarily as a traditional habeas corpus remedy. 32 To some extent, this leaves the judiciary with a remedies lacuna. In both Cahill and Comerford, the courts granted no relief to prisoners who had proved breaches of the Prison Rules; and in Comerford, it was admitted that the prosecutor had a "genuine complaint" and was "adversely affected" by the breach. It is unfortunate that in the one case in which the judiciary did intervene, Richardson, this seemed to depend on a voluntary concession made by counsel and not on a broader principle. In Richardson, Barrington J. stated: There is no Iron Curtain between the Constitution and the prisons in this Republic . . . The right of access to the Courts has been accepted as one of the unspecified rights guaranteed by Article 40, section 3 of the Constitution and this right is available to prisoners as well as to other citizens. 33 As this constitutional right of access to the courts is based on the premise that a prisoner, even if convicted of a crime, and more especially if he is a remand prisoner, retains some rights which are admittedly limited by the exigencies of the institutional environment in prison, 34 it can hardly be doubted that it amounts to more than an ability to make a complaint to the High Court. It must surely also be capable of producing the result that matters complained of and found to be deviations either from the conditions of confinement demanded by the Constitution (as in Richardson), or from the Prison Rules (as in Cahill and Comerford) which to a degree reflect constitutional requirements 35 and, in any event, are statutory enactments to which prisoners must submit and are entitled to the protection afforded by them, 36 are remediable. It has been said on numerous occasions in Irish courts that where the Constitution establishes a right and a person has established the breach of that right, he may enforce, and demand that the State vindicate it even where no rules of procedure or method of enforcement was at hand to present an easy solution. 37 If a prisoner's right of access to the courts is to be effective, it is arguable that the courts should adopt an informal ap- proach to personal (pro se) applications directly from prisoners, treating them as applications in which the courts can grant appropriate relief in cases where a genuine injustice has been suffered by the applicants and, more particularly, where their constitutional rights have been infringed by the conditions of their confinement. 38 It must not be overlooked that ever since McDonagh, the courts have made it clear that unless conditions of

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