The Gazette 1981

GAZETTE

SEPTEMBER 1981

they have been tried and duly found guilty of an offence

under Article 38.1: the basis for this being the operation

of the presumption of innocence." Indeed, there are two

passages in

Comerford

where Barrington J. adverted to

this distinction in treatment. He quoted the recital in

section 13 of the Prisons (Ireland) Act, 1877,

that the

Prison Rules should contain "special rules" so that a

clear difference is made between the treatment of persons

"unconvicted of crime and in law presumably innocent"

since they are in prison "for safe custody only," and the

treatment of convicted persons who are being detained

"for the purpose of punishment." These special rules are

to ensure that the remand prisoner's detention be as

minimally oppressive as possible having due regard to the

necessary maintenance of order and good government in

the prison.

Secondly, Barrington J. seems to have taken

the view that if the conditions under which the prosecutor

had been detained were intended by the authorities to

punish him, that would have been inconsistent with his

status as a remand prisoner,

and some remedy would

appear to be appropriate in such a case. Therefore, the

difference in treatment between remand and convicted

prisoners is important.

The United States Supreme Court also adopted the test

that remand prisoners may not be subjected to punish-

ment, in

Bell

i'.

Wolfish}

However, the case is interesting

for the further reason that even in applying the

punishment test, the first justification for a common

approach to remand and convicted prisoners is to be

found. That justification is primarily a separation of

powers argument. In

Bell,

the Supreme Court recognised

that in carrying out its duty to hold prisoners on remand

under a judicial order, the executive prison authorities are

entitled to ome deference in areas such as the main

tcnancc < l order and discipline within prisons. That is

their area of expertise, into which the judiciary will not

delve unless the authorities' actions involve, for example,

an intentional decision to punish the remand prisoner.

Thus, the courts will defer to the executive branch if some

legitimate objective, for example the maintenance of dis

ciplinc within the prison, may rationally be assigned to the

deprivation being imposed on the remand prisoner.

similar deferential approach had been adopted by

Barrington J. in relation to the Prison Rules in general. In

The State

(Richardson)

v. Governor

Mountjoy

Prison}

he stated that the Rules should be viewed as

reconciling the need for security and good order in prison

with a prisoner's subsisting constitutional rights, and that

"the prison authorities must be allowed a

wide area of

discretion

in the administration of the prisons in the

interests of security and good order."

A second justification for applying

McDonagh

remand prisoners is the fact that the prison authorities re

ccivc their jurisdiction to detain under Article 4 0 . 4 . 1° by

virtue of a warrant from the judicial branch, as they do

lor convicted prisoners." This is in contrast to the Gardai

who also detain presumptively innocent persons, but

without prior judicial intervention. The Gardai also are

engaged in the active investigation of crime: the prison

authorities play a neutral role.

An attempt has been made above to justify similar

habeas corpus

review both for remand and convicted

prisoners on the basis of similar operational difficulties en-

countered by the prison authorities. Nonetheless, the

coinictcd/unconvicted distinction arguably should result

in the judiciary providing increased remedial relief for

remand prisoners. Since convicted prisoners may be sub

jeeted to "punishment", it follows that the prison

authorities may be allowed greater latitude in imposing

restraints than they would be in similar circumstances

regarding remand prisoners.

Therefore,

mandamus

might issue against the prison authorities in favour of a re

mand prisoner, but the principal point remains that

habeas corpus

would not lie.

This may be contrasted

with the position of a person in Garda custody who was

deprived of a similar facility:

habeas

corpus

would

probably lie.

The State of Alternative Remedies for Prisoners

Notwithstanding the fact that

habeas corpus

did not lie

for the prosecutor in

Comerford,

Barrington J. went on to

consider whether he could issue

mandamus

as an alter

native in view of the breach of Rule 192.

However, he

did not think it appropriate in the circumstances.

In his previous decision in

Richardson

Barrington J.

had decided to issue an order of

mandamus

against the

prison governor but he allowed him an adjournment to

correct the deficiencies which his lordship had found in

the sanitation facilities in the prison.

He adopted this

course even though the proceedings had been primarily

dealt with as an enquiry under Article 4 0 . 4 . 2° of the Con

stitution. However, he explained in

Comerford

that this

course was exceptional, because counsel for the governor

Richardson

had consented to forego a

mandamus

hearing which would have involved the same evidence as

had been proved in the Article 4 0 . 4 . 2° enquiry. It is in the

context of this concession, therefore, and the adjournment

upon which counsel agreed to that concession, that the

course adopted in

Richardson

is to be considered. In

Comerford,

counsel for the governor objected to

mandamus

being granted after an Article 40 . 4 . 2° enquiry,

pleading that if the proceedings had been for

mandamus

from the outset, the governor would have known the

precise claim and might not have even shown cause.

Although Barrington J. stated he was

. . . not totally convinced by this as it must have

been quite clear from the beginning that the

prosecutor was complaining about the conditions of

his detention",

he did not think it appropriate to grant an absolute order

mandamus

in the case. He was influenced in this

conclusion by the statement of Finlay P. in

The

State

(Cahill) v. Governor of the Military Detention

Barracks

that the procedure for an enquiry under Article 4 0 . 4 . 2° is

primarily

a remedy to secure release from unlawful

custody, and is therefore not to be debased by using it as

an informal or expeditious method of obtaining othei

relief such as

mandamus.

Barrington J. noted two dis

tinguishing features of

Cahill:

the prosecutor had no

genuine complaint, and since the Military Detention

Barracks is not an established civilian prison it should be

allowed some time to set up the facilities contemplated by

the Prison Regulations for the Detention Barracks.

continued:

The present case appears to me to be a different

one. The prosecutor appears to have a genuine

complaint. His situation has been adversely affec

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