Neutral Citation No:  IEHC 64
THE HIGH COURT
GOVERNOR OF CASTLEREA PRISON
JUDGEMENT GIVEN BY MR. JUSTICE O'NEILL, IN THE HIGH COURT, DUBLIN, ON THE 3RD OF MARCH, 2005.
MR. JUSTICE O'NEILL GAVE HIS RULING AS FOLLOWS:
The Applicant in this case was convicted on the 25th October, 2002, of various charges and had imposed upon him a number of sentences, the longest of which was six years with three years suspended. Under that sentence the Applicant would have served his sentence by about the third week of January this year. The Director of Public Prosecutions sought a review of this sentence on the grounds of leniency and the Court of Criminal Appeal on the 20th October, 2003, varied all of his sentences to five years in each case. The Applicant's therefore release date is likely to be in August 2006.
The Applicant sought an enquiry into the legality of his detention and I directed that that enquiry be held and it was so held by me over three days, that is to say Monday, Tuesday and Wednesday of this week. No issue arises at all as to the legality of the warrants under which the Applicant is detained.
The Applicant challenges the legality of the detention on the grounds that its legality has been vitiated by breaches of his constitutional rights to bodily integrity and fair procedures in that as a result of what he believes is a false and malicious report from an Garda Siochana which has been recorded on his file, to the effect that he is a member of the Real IRA, he has, while detained in Castlerea Prison been denied certain privileges which he contends he should have been given, namely a transfer to Shelton Abbey, an open prison, and temporary releases for various occasions, for example, communions and confirmations of his children, and also for Christmas.
Also that he has been denied necessary medical treatment and specifically that he had not been given counselling in respect of a post traumatic stress disorder and/or the sequelae of it, resulting from a needle stick injury suffered by him in Mountjoy Prison in January, 2003, and finally that he was subjected to inhuman and degrading treatment by being detained stripped to his underwear in an isolation unit on the 24th and 25th December, 2004.
As a convicted prisoner the Applicant carries a very heavy burden of proof, to establish that his detention is unlawful on the grounds advanced. The following passage from the judgment of Barrington, J, in the State (Richardson) -v- the Governor of Mountjoy Prison, (1980) I.L.R.M at page 82 and pages 90, 91, states the relevant legal principle as follows; "It would clearly not be possible to enumerate in advance what are the conditions which would invalidate a detention otherwise legal. If a Court were convinced that the authorities were taking advantage of the fact that a person was detained, consciously and deliberately to isolate his constitutional rights, or to subject him to inhuman or degrading treatment, the Court might order his release. If the Court were convinced that the condition of the prisoners detention were such as to seriously endanger his life or health and that the authorities intended to do nothing to rectify these conditions the Court might release him. It appears to me that the location would be similar if the conditions of a prisoners detention were such as seriously threaten his life or health, but the authorities for some reason were unable to rectify the conditions."
Evidence was given before me by Mr. Frank Mc Dermott, an Assistant Principal officer, working in the prison service, and Governor Daniel Scanlon, Governor of Castlerea Prison, by Assistant Governor Vincent Melvin and by Dr. Michael Henry, a doctor attached to Castlerea Prison and by Dr. Louis Carroll, a psychiatrist whom the Applicant attended in a private capacity. Also affidavits sworn by Mr. Branigan, the solicitor for the Applicant and by the Applicant himself and by Joseph Byrne, a brother of the Applicant, were opened to me. The Applicant was transferred from Mountjoy Prison to Castlerea Prison in June of 2003 at his own request. Now if I might deal with the medical issue first.
The Applicant had a number of physical problems, namely frozen shoulder and ingrown toenails. It was accepted that he received the appropriate treatment for these. The evidence reveals that he was seen on eleven occasions by the doctor in Castlerea Prison and declined two other consultations. He was brought to the Mater Hospital on thirty-two occasions as an outpatient. He attended Roscommon General Hospital on twenty-one occasions as a day patient and was admitted twice. He was seen by a dentist on four occasions and declined two other visits. He was
seen by a chiropodist on three occasions. He attended the Infectious Diseases Unit in the Mater Hospital until his discharge from that unit on the 11th December, 2003. He attended there four times in the first six months of his detention in Castlerea Prison and counselling in respect of the sequelae of the needle stick injury is available in that unit. There could be no doubt that while in prison the Applicant received a great deal of medical attention for his physical problems and no complaint is made about the care provided for these.
He makes the case that his psychiatric and or psychological health was neglected because he was not given counselling for post traumatic stress disorder or the sequelae of it, which resulted from a needle stick injury and that he complained to various parties about this, about not getting this counselling, including to Mr. Justice Kinlin and the Prison Inspector and the Minister for Justice, and his solicitor wrote in November, 2004, reiterating this complaint.
I accept the evidence of Dr. Henry that the Applicant did not, apart from one occasion, that is on the 20/06/2003 to Dr. Kelly, make complaints relating to the lack of counselling for his for post traumatic stress disorder. I accept Dr. Henry's evidence that the Applicant was monitored for mental health problems in Mountjoy and later in Castlerea and that he was diagnosed as having an adjustment disorder with reactive depression and treated with antidepressants and was stable in that regard. I
accept Dr. Henry's evidence that the Applicant did not reveal or present to prison medical officers features of post traumatic stress disorder at any stage and therefore no such diagnoses were made by the prison medical officer.
I also accept Dr. Carroll's evidence. He saw the Applicant for the first time on the 20th March, 2003, in Mountjoy Prison with the Applicant's general practitioner Dr. Moore and he interviewed the Applicant for a lengthy period of time. He found subjective and objective symptoms of post traumatic stress disorder and he diagnosed him as having this disorder. He saw him again on the 15th November, 2004, and in his rooms in Harrington Street, in Dublin and he found him on that occasion to be weepy and complaining that he was staying in his cell. It was Dr. O'Carroll's evidence that the biological side of his problem was well controlled by his drugs, but the emotional side was not doing well. At the earlier stage he needed counselling for post traumatic stress disorder, but at this latter stage the post traumatic stress disorder had probably burnt itself out, but he needed counselling for the sequelae of it, which was a depression.
Now a curious feature of the case is that notwithstanding the fact that Dr. O'Carroll was engaged to conduct a review of the Applicant with a view to assisting in his care or treatment, his report on his consultation on the 20th March, 2003, was never sent to the prison authorities. It was sent to the State of Claims Agency and it was said that the Applicant's solicitor_ believed that they would forward it to the prison authorities. I do not accept that explanation. It simply fails, as far as I'm concerned, to carry any conviction.
It may well be the case that the Applicant perhaps because of a lack of trust did not open up all of his mental health symptoms to the prison medical officers whereas he did that to Dr. Carroll. I'm satisfied, however, that he did not make complaints to the prison doctors, which might have lead to a diagnoses of post traumatic stress disorder.
Whether he has or has not post traumatic stress disorder, I'm satisfied that he did not give the prison doctors any complaint which would have alerted them to that condition. On the contrary, I'm satisfy that he presented a picture to them consistent with a diagnoses of adjustment disorder, plus reactive depression and specifically I'm satisfied that he did not complain about the lack of counselling in respect of the needle stick injury, apart from the one occasion on the 20th June, 2003. That complaint appeared to have been addressed by his continued attendance at the Infectious Diseases Unit at the Mater Hospital until his discharge in December, 2003, where counselling is provided for this injury and it's psychological sequelae. I'm also satisfied he did not complain to the prison medical staff thereafter about this.
The evidence establishes to my satisfaction that the Applicant was monitored on a daily basis, by daily contact with a nurse who administered to him his anti-depressant medication and by other prison staff and nothing untoward was ever observed about his mental condition until the 23rd December, 2004. I'm quite satisfied that the Applicant has wholly failed to prove that there was any neglect of his mental health or that he was denied counselling, which was necessary for him. Insofar as he now needs counselling, I'm satisfied that if he brings this matter to the attention of the medical staff in Castlerea Prison, I'm quite satisfied that it will receive appropriate professional attention.
In the round the evidence demonstrates that the Applicant's physical and mental health has received a level of attention from prison medical staff and that is remarkable for the number of interventions involved. I have therefore come to the conclusion, for the reasons set out above, that there has been no breach to his right to bodily integrity, demonstrated in that regard.
This brings me now to the incident that occurred just before Christmas of last year. On the 23rd December the Applicant apparently tried to extract a tooth with a razor blade. It broke and he swallowed part of the blade. He was taken to Roscommon General Hospital, investigated and he safely passed the blade and was discharged on the 24th December. It was Governor Scanlon's evidence that despite the Applicant's assertion that the injury was accidental and no self-harm was intended and as a precaution self-harm had to be contemplated and for that reason he was placed in an isolation unit for close observation and monitoring.
The cell in which he was placed did not have the furniture or other materials that could be used for self-harm, including normal clothing. The following day, Christmas day, when it was clear that he was stable and not intent on self-harm he was returned to his normal cell. As a precaution an appointment was made with Dr. Geraghty, a psychiatrist, for the 6th January, 2005, probably the first day on which the psychiatrist would be available after Christmas.
I'm satisfied that putting the Applicant into an isolation unit was an acceptable precaution having regard to the incident that occurred on the 23rd and that it was ended as soon as possible and in my view, it could not be said to be in any sense inhuman or degrading treatment. It was put to Governor Scanlon that in imposing this punishment or procedure upon him, that he Governor Scanlon was behaving in a cruel-and vindictive manner. I am quite satisfied that that assertion was wholly unjustified.
Governor Scanlon was also challenged on the use of garda information. I accept the governor's evidence that there was no such information recorded on the Applicant's file in Castlerea Prison and that his only knowledge of this in relation to this matter came from the Applicant himself who broached the subject to him. I also accept Governor Scanlon's evidence that information of the kind apprehended by the Applicant had no influence whatsoever in decisions made concerning the Applicant and that the Applicant was treated on the same basis as all prisoner.
The evidence establishes that decisions concerning temporary releases and transfers were taken by the Prison Service and not by the governor who could of course make recommendations in relation to these decisions.
It is the Applicant's case that the rejection of several of his applications for temporary release and the rejection of his application for a transfer to Shelton Abbey Open Prison, was the result of a malign bias against him based on information from the gardai that he was a member of the Real IRA. The evidence, in my opinion, falls singularly short of establishing these claims. I'm satisfied that the granting or refusal of these privileges depends on a weighing up a variety of factors as indicated in the evidence of Mr. Mc Dermott. In this case the Applicant did receive a considerable number of temporary releases to visit his mother in hospital when she was gravely ill. This stop when she recovered.
I accept Mr. Mc Dermott's evidence in relation to the general policy of not permitting temporary release for holy communions and confirmation because of the problems involved in bringing prisoners to these gatherings and also into a home. Insofar as a transfer to Shelton Abbey is concerned similarly a variety of considerations will apply and not least the availability of space and the number of other prisoners making similar applications. The evidence in this case fails to satisfy me that the refusal of these privileges was the results of invidious discrimination against the Applicant for whatever reason. I'm satisfied
that the Applicant has failed to demonstrate that he has in fact suffered the various ill treatments that he alleges. That conclusion would be sufficient to dispose of this enquiry.
However, Mr. Kavanagh in his closing submission made the case that the use by the Prison Service of the process revealed in the evidence of Mr. Mc Dermott on making inquiries of an Garda Siochana the results of which were kept secret from a prisoner, insofar as that information could be used to the detriment of a prisoner in decisions taken in regard to the management of his sentence or regarding the granting or withholding of privileges, that the keeping of that information secret from the prisoner was or could be a breach of the prisoner's right to fair procedures and natural justice. Earlier in these proceedings I ruled on a claim for privilege in respect of an entry kept on the Applicant's file by the Prison Service and I uphold the privilege in connection with that information.
Essentially the same issue arises out of Mr. Kavanagh's submission. The evidence of Mr. Mc Dermott establishes to my satisfaction that the Prison Service in order to assess the security risks attached to decisions to grant temporary release or transfers to open prisons must have recourse to information provided by an Garda Siochana and that the continued flow of that information depends on confidentially being maintained in relation to it.
There is no doubt that a prisoner continues to enjoy his constitutional right to fair procedures while he serves his sentence and he enjoys this right in relation to enquiries which materially affect his rights. This of course is not an absolute right and like all constitutional rights which are not absolute, it may be curtailed or denied in the interest of the common good. If Mr. Kavanagh was right was in his submissions the consequence would be that the Prison Service would in all probability be denied a flow of information to it in order to assess security risks attached to decisions to grant temporary releases or transfers. Manifestly what is required is a balancing exercise to reconcile these competing rights and interests.
I am quite satisfied that there is a public interest in the maintenance of the flow of information from the gardaí to the Prison Service for the purpose of enabling the Prison Service to assess security risks. I can not see a compromise which would enable access by a prisoner to that information which would not offend the confidentiality basis on which the information is provided. It may very well be the case that further consideration of that problem will produce a viable solution which reconciles the understandable need for confidentiality with the right of a prisoner to information that bears on his case. However, as matters stand I have come to the conclusion that the public interest in maintaining this information flow must outweigh the Applicant's right to access to that information.
In the result I've come to the conclusion that there has not been a breach of the Applicant's right to fair procedure as contended for by Mr. Kavanagh. In conclusion I am satisfied that the Applicant's detention is in all respect lawful.