The Gazette 1981

SEPTEMBER 1981

GAZETTE

the Court (italics added). See The State (Royle) v. Kelly 119741 I.R. 259, at 267. 20. It was on this point that the majority and minority in Bell v. Wolfish, supra note 15, disagreed. The minority imposed a higher standard for remand prisoners; the majority did not. The majority were unwilling to give weight in this context to the presumption of innocence: see 441 U.S. at 533. This approach does not seem consis- tent with either the views of Ó Dálaigh C.J. in The People (Attorney General) v. O'Callaghan, supra note 11, or of Walsh J. in that case: "The presumption of innocence until conviction is a very real thing and is not simply a procedural rule taking effect only at the trial.": 119661 I.R. at 513; 102 I.L.T.R. at 51. 21. In The State (Walsh and McGowan) v. Governor of Mountjoy Prison, unreported, Supreme Court, 12 December 1975, the Court granted mandamus so that the consultations between the prosecutors (who were remand prisoners) and their solicitor would comply with Rule 210(1) of the Prison Rules. Note also the majority held that remand rules have a superior status to general rules: at p. 8 of the judgment of O'Higgins C J. (Walsh and Kenny JJ. agreeing). 22. In The State (Harrington) v. Garda Commissioner, unreported, High Court, 14 December 1976, Finlay P. held that despite the administrative inconvenience that might be involved in Garda stations, access to a solicitor must be out of the hearing of a Garda, because of "the extreme importance of this right, and . . . the major inroad on the liberty of the individual which its denial or restriction would involve": at p. 17 of the judgment. The constitutional dimension invoked in the President's judgment (though the result he achieved was, as he acknowledged, similar to that in Rule 210( 1) of the Prison Rules) may be contrasted with the statutory approach of the Supreme Court in Walsh and McGowan, supra note 21 (O'Higgins C.J. expressly stating the case was to be considered in the light of the Prison Rules ahd not the Constitution: at p. 6 of the majority judgment). 23. This was, apparently, motivated by a desire to comply with the statement of the Supreme Court in McDonagh that those defects falling short of the 'fundamental defects" test "fall to be investigated, where necessary, under other forms of proceedings": 11978] I.R. at 137. It is probable that these other proceedings should be initiated separately in view of recent case6. 24. Supra note 17. 25. When the matter was re-entered, the required changes were progressing, and Barrington J. therefore made no further order in the case: The Irish Times, 7 May 1980. 26. At p. 12 of the judgment. 29. Prisons Act, 1972 (Military Custody) Regulations, 1972 (S.I. No. 138 of 1972). Section 2(9) of the Prisons Act, 1972 requires that the Regulations be in substance the same as the 1947 Rules. 30. At pp. 9 10 of the judgment. 31. In Richardson, Barrington J. distinguished the complaint made in McDonagh (back-ache) from that in Richardson itself (health and sanitation facilities) to justify in part his willingness to grant relief to the prosecutrix: at pp. 23-24 of the judgment. Clearly, despite the difference in fact between Cahill and Comerford, he did not consider this sufficient to justify a different outcome in both cases. 32. The present writer asserted the "general relief' approach previously: see (1979) 14 Irish Jurist 109, at 113.1 still support that position, though with some "refinements" to take account of the un- doubted relevance of Article 40.3 as a second procedure of access to the courts for a prisoner: see text following and "Conclusion" below. 33. At p. 21 of the judgment, approving a similar statement by White J. (delivering the opinion of the United States Supreme Court) in Wolff I-. McDonnell, 418 U.S. 539, at 555-556 (1974). He also cited Macauley v. Minister for Posts and Telegraphs 119661 I.R. 345 for the general proposition of a right of access to the courts. 34. Sec Wolff, supra, and McMahon J. in The State (Fagan) v. Governor of Mountjoy Prison, supra note 18, at pp. 17-18 of the judgment. 35. Richardson, supra note 17, at p. 24 of the judgment. 36. The State (Gallagher) v. Governor of Portlaoise Prison, unreported. High Court (Finlay P.), 18 May 1977, at p. 8 of the judgment; Richardson, supra note 17, at p. 19 of the judgment. 37. See Walsh J. in East Donegal Co-op. Ltd. v. Attorney General 119701 I.R. 317, at 349 and Finlay J. in The State (Hunt) v. O'Donovan 119751 I.R. 39, at 45-47. 38. For a suggestion that an alternative might be that adopted by the United Slates Supreme Court, the provision of legal research facilities for prisoners, see Byrne, Hogan, McDermott, Prisoners' Rights: A Study in Irish Prison Law (forthcoming 1981), Chapter 2. 27. Unreported, High Court, 31 July 1980. 28. At p. 26 of the judgment of Finlay P.

issue mandamus

to order remedial action: The

State

(Richardson) and, while the authorities are obeying the order, a court might be able to order by way of mandamus that a prisoner be detained in accordance with specific conditions, thus perhaps necessitating his transfer from one prison to another: The State (Cahill) v. Governor of the Military Detention Barracks. 44 3. If, for some reason, the authorities are either unable or unwilling to remedy unconstitutional conditions, after the courts issue mandamus, habeas corpus might then become the appropriate remedy though originally it would not have been: Richardson. 43 * *I wish to thank Thomas A. M. Coone y, University College, Dublin, for his many helpful comments on an earlier draft.D 3. Barrington J. accepted that the Deputy Governor "could not responsibly disclose the source of his information to the prosecutor": at p. 6 of his judgment. It is unclear if the same privilege could have been claimed in court if the prosecutor had challenged the validity of the source's statement, given that the judge would hear the information in private and thus could present no threat to prison security: see Murphy v. Dublin Corporation 11972) I.R. 215; 107 I.L.T.R. 65. 4. The ground floor of B wing was used to closely supervise prisoners who were undergoing punishment, for example loss of privileges, for breaches of prison discipline, but it was also used to house security- risk prisoners to maintain overall discipline within the prison. It was to the second class of prisoners that the Governor felt the prosecutor belonged. It may be that, as a response to the observations by Finlay P. in The Slate (Cahill) v. Governor of the Military Detention Barracks, unreported. High Court, 31 July 1980, the separation of prisoners from the general prison population to effectuate loss of privileges is lawful: see pp. 20-22 of the President's judgment. However, this matter was not at issue in Comerford. 5. At p. 6 of the judgment. 6. The Irish Times, 11 November 1980 (no written judgment available). 7. At p. 8 of the judgment. 8. I 19781 I.R. 131. 9. At pp. 8-9 of the judgment. 10. For a discussion of the case, see (1979) 14 Irish Jurist 109. I 1. Per Ó Dálaigh C.J. in The People (Attorney General) v. O'Callaghan 119661 I.R. 501, at 509; 102 I.L.T.R. 45, at 49. 12. 40 & 41 Vict., c.49. 13. The full recital is quoted by Barrington J. at pp. 6-7 of the judgment. 14. See quote accompanying note 5, supra. 15. 441 U.S. 520 (1979). 16. Ibid., at 537-538, citing and quoting Kennedy v. Mendoza 18. At p. 24 of the judgment (italics added). See also Hamilton J. in The State (Greene) v. Governor of Portlaoise Prison, unreported, High Court, 20 May 1977, at p. 16 of the judgment (all steps necessary for the maintenance of prison order and discipline must be taken, provided there is no deliberate and conscious violation of a citizen's constitutional rights); and McMahon J. in The State (Fagan) v. Governor of Mountjoy Prison, unreported, High Court, 6 March 1978, at p. 18 of the judgment (since a judge is not qualified to decide on the proper management of prisoners after a riot, he should defer to the good faith of the authorities and the necessity of the steps taken). 19. In The State (Wilson) v. Governor of Portlaoise Prison (No. J), unreported. Supreme Court, 1 1 July 1968, Walsh J. applied the same jurisdictional test to habeas corpus applications relating to court procedures by prisoners "detained by order of a court, whether under sentence following conviction or otherwise": at p. 3 of the judgment of v. Governor of Mountjoy Prison, 43 FOOTNOTES 1. Unreported, High Court (Barrington J.), 19 November 1980. 2. S.R. & O. No. 320 of 1947. Martinez. 372 U.S. 144, at 168-169 (1963). 17. Unreported, High Court, 28 March 1980.

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