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GAZETTE
SEPTEMBER 1981
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
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
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