The Gazette 1976

J UNE /J U LY 1976

GAZETTE

10 a m- to 5.00 p.m. The solicitors had claimed that it was inconvenient for them to make professional visits to the prison during the official hours because they were engaged in Court work. The Governor opposed the exten- sion on the grounds of the necessity for security at the prison. He stated that from 5.30 onwards some 400 prisoners were out of their cells and associating together. This was at a time when it was not possible to have the full complement of prison officers available for visits- He did not place any obstacle in the way of visits once he was satisfied there were reasonable grounds requiring them to take place after 5 p.m. The President ordered that in ad- dition to the normal visiting hours Mr. McCartan be permitted to visit clients on Monday and Thursday of each week between 5 p-m. and 8 p.m. on he notifying the Governor at or before 2 p.m. that day of his visit to two prisoners. He ordered that the Governor might refuse visits to the basement of the prison where high security prisoners were detained. The State (McCartan) v Governor Mountjoy. — Finlay P.—unreported —17th December, 1976. Note—The Judgment in this case is not available. Circumstances when legal adviser can be admitted to see client in Garda Station. Finlay P. said that it seemed to him desirable, having regard to the issues raised in this case, to set down certain general principles which could be applied to the question of the right of access of a person in detention by the Garda Siochana to his legal adviser. "Having regard, however, to the extreme importance of this right, and to the major inroad on the liberty of the individual, which its denial or restriction would involve, I am satisfied that, where a de- tained person is entitled to access to his legal adviser, this must be achieved in privacy and out of the hearing of any member of the Garda Siochana"- He added : "Furthermore, I am satisfied that the right exists not only in a detained person, who has himself sought to exercise it, but also in a detained person on whose behalf a bona fide request for the availability of legal advice has been made". In the absence of special cir- cumstances, it did not appear to

him to be justifiable, that a solicitor such as Mr. Sheehan, of excellent standing, should, upon revealing the source of his instructions, be re- quested to confirm them by the physical presence at the Garda station of the person who retained him. Neither did it seem to be justified to issue a blanket prohibition against access by a detained person to a solicitor, the origin of whose instruc- tions were an association or society, rather than an individual. In the event, though largely due to the patience and proper per- sistence of Mr. Sheehan, Harring- ton was not effectively deprived of his right to legal advice. The President discharged Harr- ington from his bail after it was stated that the Garda authorities did not propose to pursue the matter further. The State (Noel Harrington) v. Commissioner of Garda Siochana and others.—Finlay P.—unreported —14th December, 1976- On 19th October, 1976, the prosecutor, Hoey was arrested under S. 2 of the Emergency Powers Act, 1976, on suspicion of being involved in causing an explosion which re- sulted in a murder. The prosecutor was detained by the Garda for an initial period of 48 hours, and, by direction of a Chief Superintendent, for a further 5 days. He was then released on 26th October, and re- arrested at 7-00 p-m- on 5th Novem- ber, 1976, on suspicion of involve- ment in the same crime as previously. On this occasion, he was detained at first for 48 hours, but this period was then extented for a further 5 days by direction of a Chief Superintend- ent. It is contended that S. 2 of the Emergency Powers Act 1976 does not justify a second period of detention for suspicion of involve- ment in the same offence. Accord- ingly, upon an application for Habeas Corpus, Finlay P. is not satisfied that he can imply into S. 2 some special qualification about re- arrest. The order of Habeas Corpus will be made absolute, and the prosecutor released. The State (Hoey) v. Commissioner of the Garda Siochana—F inlay P.— unreported—12th November, 1976. HABEAS CORPUS — EMERGENCY POWERS Prosecutor released because detained on suspicion for a second time in respect of the same crime.

might as well put the prison gover- nor sitting at the table with the solicitor and prisoner, and I am not prepared to have this right strang- ulated", said the President. How, he asked, could one justify a prison officer taking the notes of a solicitor written in his own hand? The Governor of Portlaoise Prison Mr. William Reilly, stated in an affidavit that it was essential to have strict control of all visits to the prison, and that this must also extend to members of the legal profession. Before he could allow a solic- itor or barrister to have facilities for a professional visit he must be satis- fied that the requirements of the Rules for the Government of Prisons 1947 were met. Mr. Reilly stated he was aware Mr. McCartan was a prominent member of the Prisoners' Rights Organisation and that he had ad- mitted to being a member of Official Sinn Fein. Mr. MacEntee said a solicitor would be capitulating his function were he to accept that a third party, against whom action might be taken should be informed of the purpose of the visit- The President said that under the Act the Governor had an obligation to see that the legal adviser was carrying out a bona fide act, in order to prevent excess. The President asked what remedy a solicitor would have if the Gov- ernor ruled that he was not satisfied that the visit was on legal business- Surely the balance should be in fav- our of the constitutional right of the prisoner rather than on any risk involved in allowing it, he said. The State (McCartan) v. Governor of Portlaoise Prison. — Finlay P unreported — 17th December, 1976- Note—The Judgement in this case is not available. PRACTICE Court extends hours for legal con- sultation in prison. The Governor of Mountjoy Prison Mr- John Frawley, was ordered by the President of the High Court, Mr. Justice Finlay, to extend the visiting hours to the prison to fac- ilitate a Dublin solicitor, Mr. Pat- rick McCartan, to consult with his clients. This brings to an end a 12- month legal battle by nine Dublin solicitors to gain admission after official visiting hours which are from

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