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GAZETTE
SEPTEMBER 1981
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
At first sight, it is arguable, however, that the
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
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