The Gazette 1976

GAZETTE

UNE

1976

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

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-

HABEAS CORPUS —

EMERGENCY POWERS

Prosecutor released because detained

on suspicion for a second time in

respect of the same crime.

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.