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GAZETTE
SEPTEMBER 1981
issue
mandamus
to order remedial action:
The
State
(Richardson)
v. Governor
of Mountjoy
Prison,
43
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
FOOTNOTES
1. Unreported, High Court (Barrington J.), 19 November 1980.
2. S.R. & O. No. 320 of 1947.
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
Martinez.
372 U.S. 144, at 168-169 (1963).
17. Unreported, High Court, 28 March 1980.
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
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.
27. Unreported, High Court, 31 July 1980.
28. At p. 26 of the judgment of Finlay P.
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.
160