The Gazette 1978

adviser and legal advice given by

such adviser in the sight but not in

the hearing of a prison officer.

Section 12 of the Act of 1877

provided that the Minister may by

Rules "alter or repeal the bye-laws in

force for the time being for the

regulation of any prison and for the

duties and conduct of the Governor

and other officers of the said prison,

and for the classification, diet,

clothing, maintenance, employment,

instruction, discipline and correction

of all persons confined therein, and

may repeal rules so made and may

make new rules instead thereof'.

Section 13 of the Act of 1877 gave

recognition to the difference between

the treatment of persons who were

unconvicted of crime and in law

presumably innocent during their

period in detention in prison for safe

custody only and the treatment of

prisoners, who had been convicted of

crime, during their period of

detention in prison for the purpose of

punishment; and this Section further

provided (S. 13 (2)) that "with

respect to communications between a

prisoner, his Solicitor, and friends, to

secure to such prisoner as

u n r e s t r i c t ed

and

p r i v a t e

communication between him, his

Solicitor and his friends as may be

possible, having regard only to the

necessity of preventing any

tampering with evidence, any plans

f o r e s c a p e , or o t h e r l i ke

considerations". Rule 210 (1) of the

Rules for the Government of Prisons

1947 ("the 1947 Rules"), which rule

comes under the special heading of

"Special Rules for Prisoners on

Remand or Awaiting Trial", provides

— "A prisoner awaiting trial shall be

allowed to see his legal adviser any

weekday at any reasonable hour in

the sight, but not in the hearing of an

officer".

Held

(McWiffiam J.) (1) that the

expression "his Solicitor" in Section

13 (2) of the Act of 1877 had

nothing to do with any personal

relationship between a prisoner and a

particular Solicitor and, provided

that a prisoner was given adequate

facilities to engage and employ a

Solicitor and communicate with him,

the exclusion of a particular Solicitor

did not ofTend against the wording or

the spirit of that Section and this was

particularly so having regard to the

provisions of Rule 3 of the 1976

Rules.

(2) On the Constitutional issue

that one of the unspecified rights of a

citizen was a right of access to the

Courts and that this necessarily

entailed a right through the citizen's

solicitor, that even if such a right

existed it did not require the

expression "his Solicitor" or "the

citizen's Solicitor" to be interpreted as

meaning the Solicitor of the prisoner's

choice.

{Note:

In reference to the

submission made on behalf of the

Plaintiffs that very few Solicitors out

of the large number practising in the

State were prepared to engage in

criminal work and that hardship

would be caused by the elimination of

even one of those who were prepared

to act, McWilliam J. commented that

if this was correct and he was not

satisfied that it was, it would be a

matter to which the Incorporated

Law Society ought to give earnest

consideration as part of its

responsibility to the public).

(3) That the objection of the

Plaintiff to the 1976 Rules — that

they enabled the Minister to draw up

a list of Solicitors who were different

from the rest of their profession in

that they could not be trusted to visit

prisoners and that this could be done

without establishing any impropriety

or breach of professional etiquette or

any offence on the part of such

Solicitors; and although such method

adopted by the Minister for dealing

with the problem the Minister

considered to have arisen was

invidious from the aspect of the

Solicitors Profession — this

circumstance did not render the

provisions ultra vires the Act of 1877

or repugnant to the provisions of the

Constitution from the aspect of the

prisoner, and that it had not been

argued that the provision was

repugnant to the Constitution in

depriving a Solicitor of his right to

practise his profession in accordance

with the provisions of the Solicitors

Acts.

(4) That the 1976 Rules were

ultra vires the Act of 1877 because

they purported to give the Minister

power to give directions in the

interests of the security of the State

apart from the regulation of the

prisons and that there was no power

given by Section 12 of the Act of

1877 to make rules in the interest of

the security of the State unless such

interest also affected the security of

the prison and the rules were required

for the regulation of the prison as a

prison. There were a number of

respects in which the Minister might

have considered the visit of a

particular person to a prison to be

against the interests of the security of

the State, but such visit would not in

any way be against the interest of the

security of the prison or be in any

way required for the regulation of the

prison as a prison. The Court,

therefore, held that Rule 2 of the

1976 Rules in its present form was

not authorised by the Statute and was

bad.

Incorporated Law Society and

Patrick

Moore

Minister for

Justice and Attorney General

— High

Court (McWilliam J.) - Unreported

- 21 June 1978.

STATUTE — Local Government

(Planning and Development) Act

1963 — whether condition attached

to Permission under Section

invalid,

The Plaintiffs were an Industrial

and provident Society formed by a

group of residents and householders

in the Killiney and Ballybrack area of

County Dublin who brought an

application to have a planning

permission granted to Templefin

Estates Limited, the second named

defendant, declared invalid on the

ground that it contained an

invalidating condition. The High

Court refused the application and the

Plaintiffs appealed to the Supreme

Court. Section 26 of the Local

G o v e r nm e nt ( P l a n n i ng &

Development) Act of 1963 permitted

the Planning Authority to impose

conditions in a development

permission but required that a

statement be given specifying the

reason for any condition imposed.

The condition in the permission in

question was that "no house shall be

constructed on the part of the site to

the South of the culverted stream

before the expiration of 3 years from

the date of this Order". The reason

stated in the permission was **to

control and regulate the development

so as to ensure that sewage disposal

facilities are satisfactory in relation to

residential development of the site".

The Plaintiffs claimed that the

reason was insufficient to support the

impo s ed c ond i t i on b e c a u se

compliance with the condition would

not in itself have ensured that the

sewage disposal facilities would be

satisfactory in relation to residential

development on the site. Only the

Local Authority could improve the

sewage disposal and they had carried

out no such improvement.

The three years during which the

condition was to be observed had