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Gilligan v. Governor of Portlaoise Prison [2001] IEHC 72 (12th April, 2001)

THE HIGH COURT

No. 2001/215 JR

BETWEEN

JOHN GILLIGAN

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice McKechnie dated the 12th day of April, 2001 .

1. This is an application for leave, to apply by way of an application for judicial review, for certain reliefs and on certain grounds both specified in the Statement grounding the application. In accordance with Order 84 Rule 20(2) of the Rules of the Superior Courts this matter, in the first instance, was moved by way of motion ex parte . In the exercise of his discretion Kelly J. directed that the Respondents be put on notice of the making of the application. Having been served with the required documentation all such Respondents, being represented, fully participated, by way of evidence and submissions, in the hearing of this, the leave application.

2. Mr. Gilligan, the Applicant in the above entitled judicial review proceedings, has been detained in Portlaoise Prison since in or about the month of February 2000. Initially, he was so detained following his extradition from England. Latterly, having been convicted of offences under Sections 21 and 15 of the Misuse of Drugs Acts, 1977 to 1984 he is serving, in that prison terms of 12 and 28 years respectively, having been so imposed by Order of the Count of Trial, namely the Special Criminal Court.

3. The incident which gives rise to the within proceedings occurred on Sunday 25th March 2001. On that occasion Mr. John Rice, Solicitor, arrived at Portlaoise Prison for the purposes of a professional visit to the Applicant and another prisoner. Whilst in the process of escorting Mr. Gilligan to a visiting area, where the intended consultation was to take place, it is alleged by an Assistant Chief Officer that the Applicant, firstly verbally abused him, secondly, without cause or warning, struck him a violent blow on the jaw and thirdly, issued serious threats to the safety and health of both him and his family. These said allegations are supported by Prison Officer O’Reilly who, at the relevant time was also on escort duty with Officer Ryan. By way of response, as well as grounding the application, Mr. Gilligan has sworn three Affidavits. He denies the allegations above recited as he does an averment by Officer Ryan to the effect that, on seeing Mr. Rice he said “ I am after been assaulted by these fuckers .” Whilst nothing of relevance turns on this, I am satisfied, that if this comment had been said there is no evidence whatsoever to support or otherwise corroborate such remarks.

4. At the outset of the hearing, having served the necessary notice, an application was made on behalf of the Respondents to have Mr. Gilligan present in Court, for the purposes of a cross examination on the Affidavits sworn by him. Having heard argument I decided, in the exercise of my discretion, to refuse the order as sought. See McElhinney -v- Williams 1994 2 I.L.R.M. 115. I did so, essentially because of the nature of the application before me. In essence the challenge as mounted is based on the lack of fair procedures and on the doctrine of ultra vires . Whilst, therefore knowledge of the surrounding circumstances is essential in order to establish the background to the challenge, facts beyond that, are not in my view relevant. This is a claim against the decision making process and as such, it is neither necessary or desirable that this Court should attempt to adjudicate on the controversial nature of the incident above mentioned. If one was to embark upon such an assessment, even under the guise of testing the bona fides of the Applicant, it would in my view, be close to usurping the jurisdiction vested in this Court when dealing with an application of this type. Accordingly, being satisfied that the issue at hand could be deposed of, on whichever version of events was sustainable, I refused the application.

5. The reliefs which the Applicant seek, though several in nature, can broadly be described as being, an Order of Certiorari quashing the decision made on the 25th March, a declaration that fair procedures and natural and constitutional justice have not been complied with, a declaration that the punishment imposed, was in itself, ultra vires Rule 69 of the Rules for the Government of Prisons, in turn, a declaration that such rules themselves were also ultra vires the originating Statute as amended, and finally that the decision complained of was unconstitutional by virtue of Article 34 or Article 37 or by way of a combination of both. The grounds relied upon, whilst adequately set forth elsewhere in this judgment, should, in relation to the alleged breaches of natural and constitutional justice and fair procedures, be set forth in their entirety. These are firstly, that prior to the visit hereinafter described Mr. Gilligan should have been informed of the Governor’s intention to lay against him the alleged breaches of discipline, secondly that all of the relevant evidence should have been made available to him, thirdly that he should have been given a right to consult with his Solicitor and finally that he should have been afforded an opportunity of making on his own behalf a plea in mitigation.

6. In evaluating this matter it is crucial in my view to realise and fully understand exactly what occurred in the aftermath of the incident referred to a paragraph 3 above. With regard to Mr. Gilligan, once the legal consultation had concluded he was taken to an area in the basement which, for geographical reasons and no other, I will refer to as the bunker area. In the case of Assistant Chief Officer Ryan, he, having obtained medical assistance, returned to the prison late in the afternoon or early evening of the 25th. On the appropriate printed form, P19, he reported on Mr. Gilligan by complaining of the assault and of the threats and abuse above mentioned. He supported these complaints by way of statement. Both were given to the Deputy Governor. What then happened is set out in the Affidavit of the said Deputy and in particular at paragraphs 6, 7 and 8 thereof. Being fundamental to a core point in this case it is highly desirable that the relevant averments should be quoted verbatim. Deputy Governor O’Keeffe, who was accompanied by Officer Ryan, said:-

“6 ....... I said to John Gilligan “you are on report in respect of threatening and assaulting an officer”. I then paused and read out in full the charge to John Gilligan. There could be no ambiguity as to what I was saying as it is exactly as set out in the report of Martin Ryan which is exhibit JG2. Instead of acknowledging our presence, or greeting us or otherwise responding in such a way that indicated that we were even present, John Gilligan simply put his hands in his pockets and ignored us as if we did not exist. I told him that he was on a report of:

(1) Assaulting an Assistant Chief Officer:

(2) Threatening and abusing an Assistant Chief Officer:

I asked him “do you have any comment”. He continued to ignore me, with his hands in his pockets, as if I did not exist. I then said to him “I have the authority to impose sanctions in respect of these charges, do you want to say anything”. He refused to answer and acted as if I was not there and was not speaking at all. I then said to him “this is a serious situation both for you and for everyone else and I think you should take an interest in this matter”. John Gilligan simply ignored me and kept his hands thrust in his pockets as if no words were being spoken and we were not in his presence at all .

7. John Gilligan did not ask for time, did not ask for a copy of the report and did not take the slightest interest in any of the proceedings before him. If he had asked for time I would have given him time. If he had asked me to consider a statement made by him I would have considered it. Instead, he said nothing. If he had asked me to consider interviewing any other party I would have considered that request. He now complains about this matters (sic) but at the time his attitude was one of insolent defiance.

8 Given the nature of what had occurred, the seriousness of the assault and the threat to the officers and their families I imposed sanctions of

(a) Close confinement for 23 hours a day, over 3 days. This has now ceased:

(b) I imposed 14 days loss of remission. He has thus lost 14 days off the statutory remission of one quater of his sentence:

(c) I imposed the loss of privileges, including visits, letters, tuck-shop and phone calls over two months:”

7. This recall of the events which occurred is supported by Assistant Chief Officer Ryan in his Affidavit and in particular at paragraph 17 thereof. Indeed, in no section of any of the three Affidavits sworn by the Applicant is this account in any significant, serious or substantial way challenged. In addition the Deputy Governor in Form P19, noted the charges as laid, noted the absence of any response from the prisoner and recited the sanctions as imposed. Furthermore, in a letter dated the 27th March 2001 the said Deputy informed Messrs. John J. Rice & Company of what the prisoner had been charged with, of the prisoners refusal to reply and of the penalty imposed.

1. Given the above and in particular the lack of any serious challenge to the accuracy of Governor O’Keeffe’s averments, I am satisfied that, although the application is moved on Affidavit, I should and I believe with confidence I can accept this version as representing what occurred on the occasion in question.

8. In a judicial review matter when an application for leave is made ex parte , there is, in my view, no doubt as to the burden of proof required of an Applicant. Or more accurately the standard to which he must aspire before leave is granted. Authoritatively the Supreme Court has so decided in G -v- DPP (1994) 1 IR 374. At p. 377/8 of the report Finlay C.J. said:-

“It is, I am satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an Applicant must satisfy in order to obtain liberty of the Court to issue judicial review proceedings. An Applicant must satisfy the Court in a prima facie manner by the facts set out in his Affidavit and submissions made in support of his application of the following matters:-

(a) that he has a sufficient interest in the matter to which the application relates to comply with Rule 20(4).

(b) that the facts averred in the Affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.

(c) that on those facts an arguable case in law can be made that the Applicant is entitled to the relief which he seeks.

(d) that the application has been made promptly.......

(e) that the only effective remedy, on the facts established by the Applicant, which the Applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure .

These conditions or proofs are not intended to be exclusive and the Court has a general discretion, since judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the Applicant has shown good faith in the making of an ex parte application.”

2. In the same case, at p. 381 of the report, Denham J. in her Judgment discreetly summarises what is required. She said:-

“The burden of proof on an Applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts Order 84 Rule 20 is light. The Applicant is required to establish that he has made out a stateable case, an arguable case in law. The application is made ex parte to a Judge of the High Court as a judicial screening process, a preliminary hearing to determine if the Applicant has such a stateable case ”.

3. Hence, in the circumstances of an ex parte application the threshold is one of establishing a stateable or arguable case and is no higher.

9. In the instant case, as in others, the application of course is not ex parte but on notice. In such circumstance some judges in England have suggested the existence of a higher standard. In Mass Energy Limited -v- Birmingham City Council (1994) ENV. L.R. 298 at 307 Glidewell L.J. said:-

“First, we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave were granted, it is unlikely that the points would be canvassed in much greater depth or detail at the substantive hearing. In particular, we have had all the relevant documents put in front of us...... Thirdly, as I have already said, we have most, if not all, of the documents in front of us: we have gone through the relevant ones in detail - indeed in really quite minute detail in some instances - in a way that a Court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the Court at the substantive hearing to construe the various documents.

For those reasons taken together, in my view, the proper approach of this Court, in this particular case, ought to be - and the approach I intend to adopt will be - that we should grant leave only if we are satisfied that Mass Energy’s case is not merely arguable but is strong: that it is say, is likely to succeed.”

In R -v- Cotswold District Council ex parte Barrington Parish Council 75 P. and C.R. 515, Keene J., at p. 530 of the report, when dealing with this issue said:-

“For my part, I would prefer to put it on the basis that where the Courts seems to have all the relevant material and have heard full argument at the leave stage on an inter partes hearing, the Court is in a better position to judge the merits than is usual on a leave application. It may then require an Applicant to show a reasonably good chance of success if he is to given leave.”

10. These cases were referred to by Mr. Justice Kelly in his Judgment in Gorman and Others -v- The Minister for Environment and Local Government and Others H/C, U/R, 7th December 2000. However, and notwithstanding what appears to be an endorsement of the higher standard, whether it be that postulated in Mass Energy or by Keene J. in R -v- Cotswold District Council , the learned Judge was not in a position to formulate what the appropriate test might be in this jurisdiction, as the issue had not been properly or fully debated before him.

4. This point was also raised in Halpin -v- Wicklow County Council , H/C, U/R, 15th March 2001. At p. 11 of his Judgment Mr. Justice O’Sullivan, having in the proceeding passages referred to Gorman and G -v- the Director of Public Prosecutions , continued by stating “I accept in this application that the standard laid down by the Supreme Court in G -v- the Director of Public Prosecutions should apply but in applying that standard I agree that I cannot shut my mind to the case now made by the Respondents who are a Notice Party to this application”.

5. So, whilst the threshold as specified in G -v- the Director of Public Prosecutions was applied nevertheless, as is clear from this passage, the learned Trial Judge did not reject the case, presumably to include both evidence and submissions, as made by the Respondent and at least to some degree must have had regard to it.

11. If when a leave application is moved, the aforesaid practice of putting a Respondent on notice should continue or expand, clearly in my view, it would be desirable to have a test formulated which would find Judicial acceptance and general approval in this jurisdiction. As of now one could not conclude, on the authorities above mentioned, that the point has in any way been settled. In many respects a state of uncertainty exists which evidently is unsatisfactory. Unfortunately the instant case will not contribute to a solution. This because at no time during the currency of the hearing was it urged upon me that any standard, different from that as set out in G -v- the DPP should be applied. Therefore as the Court has not had the benefit of any submissions on this point from the Respondents, I would not feel comfortable in attempting a definitive formulation of what such a test might be. That must await another occasion which perhaps is not too distant. I know from my own knowledge that the High Court’s judgments in the cases of PLB -v- the Minister for Justice Smyth J. U/R 2/1/2001 are presently listed before the Supreme Court for its adjudication on certain specified issues, one of which relates directly to this question of threshold on an inter partes leave application. What I propose to do therefore is to apply the threshold of argueability but in the resulting process of evaluation to take into account those parts of the Respondent’s evidence which I can confidently accept as being accurate and also the submissions made thereon.

12. This debate about the standard of proof, particularly where G -v- the DPP is being applied, should not obscure the very limited deductions which can be made if leave is granted. Such success means that the standard has being attained, nothing more. Such an Order should not be taken as reflecting what ultimately might happen, or whether, on the application itself success or failure might follow. It is simply a screening process which, if passed, permits the onward movement of that case.

13. Before dealing with the fundamental principles of law which apply to an application of this nature, could I say the following in relation to the identity of the Applicant. Mr. Gilligan is well known to the public in this jurisdiction, not only since his extradition from England in February 2000, but indeed for many years prior to that. He gained widespread publicity, not only on account of or by reason of the charges upon which he was found guilty in the Special Criminal Court, but also on account of and by reason of the charges upon which he was acquitted. I should immediately say, that to me it matters not, who he is, or what he is or what is or has been said or written or spoken about him. These are matters of utter indifference to this Court. As are the convicted charges and the acquitted charges. The trial in the Special Criminal Court is over. The Applicant in these review proceedings could be Joe Bloggs, or a person heretofore, of total anonymity. The identification in the person of Mr. Gilligan is wholly immaterial. His present status is of relevance only, in that, post conviction he stands lawfully detained in Portlaoise Prison.

14. Many cases were cited in support of the reliefs sought on behalf of the Applicant. The famous passage of Henchy J. in Kiely -v- Minister for Social Welfare 1977 IR 267 at p. 281 was first mentioned. Having referred to the guarantee of basic fairness of procedures, which is available to every citizen under and by virtue of Article 40.3 of the Constitution, and having stated that the rules of natural justice must be construed accordingly, the learned Judge continued:-

“Tribunals exercising quasi judicial functions are frequently allowed to act informally - to receive unsworn evidence, to act in hearsay, to depart from the rules of evidence, to ignore Courtroom procedures, and the like - but they may not act in such a way as to imperil a fair hearing or a fair result

I do not attempt an exposition of what they may not do for, to quote the frequently cited dictum of Tucker L.J. in Russell -v- Duke of Norfolk :-

“There are, in my view, no words which are of universal application to every kind of enquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth ”.

Flanagan -v- University College Dublin , 1988 IR 724, in response to the passage above mentioned, contained a more detailed elaboration of the principles therein recited. At p. 730 Barron J. said:-

“Once the lay tribunal is required to act judicially, the procedures to be adopted by it must be reasonable having regard to this requirement and to the consequences for the person concerned in the event of an adverse decision. Accordingly, procedures which might afford a sufficient protection to the person concerned in one case, and so be acceptable, might not be acceptable in a more serious case. In the present case, the principles of natural justice involved related to the requirement that the person involved should be made aware of the complaint against them and should have an opportunity both to prepare and to present their defence. Matters to be considered are the form in which the complaint should be made, the time to be allowed to the person concerned to prepare a defence, and the nature of the hearing at which that defence may be presented. In addition, depending upon the gravity of the matter, the person concerned may be entitled to be represented and may also be entitled to be informed of their rights. Clearly, matters of a criminal nature must be treated more seriously than matters of a civil nature but ultimately the criterion must be the consequences for the person concerned of an adverse verdict .”

6. It will be recalled that the circumstances in Kiely’s case related to an appeal before a Social Welfare Appeals Officer and how, during the course of that hearing, medical evidence should be assessed and evaluated. In Flanagan’s case the Applicant, a postgraduate student, submitted an essay in respect of which the College, initially through the Applicant’s lecturer but later through different organs of that institution, alleged had been plagiarised.

15. Reference has also been made to certain passages from Professor de Smith’s book on Judicial Review of Administrative Actions 4th Edition at p. 199 where he says:-

“Where an act or proposal is only the first step in a sequence of measures which may culminate in a decision detrimental to a person’s interest, the Courts will generally decline to accede to that persons submission that he is entitled to be heard in opposition to this initial act, particularly if he is entitled to be heard at a later stage”.

7. A slightly different method of treating the same point is contained at p. 570 of Wade in Administrative Law 6th Edition 1998 where it is said:-

“Natural justice is concerned with the exercise of power that is to say, with acts or orders which produce legal results and in some way alter someone's legal position to his disadvantage. But preliminary steps, which in themselves may not involve immediate legal consequences, may lead to acts or orders which do so. In this case the protection of fair procedures may be needed throughout, and the successive steps must be considered not only separately but also as a whole. The question must always be whether, looking at the statutory procedure as a whole, each separate step is fair to the persons affected”. See also O’Ceallaigh -v- An Bord Altranais S.C. U/R 17/5/2000.

8. At the end, whatever analysis may be appropriate, could I respectfully agree with and adopt what Professor Wade has said, where with my emphasis he states:-

“The question must be always whether, in looking at the statutory procedure as a whole, each separate step is fair to the persons effect .”

16. In the context of natural and constitutional justice it therefore seems to me:-

That the applicability of the principles will depend on the circumstances of each case, the nature of the enquiry, the rules under which the decision maker is operating and the subject matter at hand,
That when applicable, the extent and scope of the requirements necessary, to comply with the underlining value of such principles, will likewise depend on the facts as above outlined and on any other factor, individual to particular circumstances,
That when applicable, the adaptability of and the flexibility within these concepts, are such, that though a sufficient safeguard in one case may not be adequate in another, nevertheless every subject matter is readily accessible within the remit of these principles and,
In the ultimate analysis what must be achieved is that, by whatever means are necessary, the person in question is treated fairly and justly.

17. The above cases, of course, mentioned at paragraphs 14 and 15 do not deal with detainees at all and particularly not with prisoners who have been convicted in accordance with due process and who stand legally incarcerated in a closed and restricted environment. The latter circumstances constitute the matrix which surrounds this application. Accordingly in the instant case, in order to particularise what safeguards are needed to ensure due compliance with the aforesaid principles, it is necessary, in addition to identifying the status of the Applicant, to look at and consider, both the prison rules and such relevant case law as may be applicable.

18. The 1947 Rules are material as to two in number . These are Rules 67 and 69 which, respectively, read as follows:-

“67. Before a report of misconduct against a prisoner is dealt with he shall be informed of the precise nature of the offence for which he has been reported and shall not be punished until he has had an opportunity of hearing the evidence against him and of being heard in his defence.

69 (i) For any breach of prison discipline with which the Governor is competent to deal, he may order a prisoner to be punished by any one or more of the following;-

Close confinement for any period not exceeding 3 days.
.......
Forfeiture of remission of sentence for a period not exceeding 14 days.
Suspension of any privileges for a period not exceeding two months.

(ii).............”

19. Though fifty years or more in existence, Rule 67 incorporates within it, an uncanny resemblance to many of the rights which nowadays, depending on the circumstances, are taken for granted as being required of a body to comply with natural and constitutional justice. Indeed, in this case as I understand them, the submissions advanced on behalf of Mr. Gilligan incorporate all of these elements with one addition, albeit significant, namely an alleged right to consult a solicitor. Secondly whilst any punishment or sanction has the capacity of inflicting itself in different ways on different people, nonetheless from any reading of Rule 69 it is clear that the punishments therein provided, are in scope and in consequence, both limited and restricted.

20. In approaching the decision of what is or is not in compliance with natural and constitutional justice and fair procedures, it is necessary and instructive to look at a number of decisions which dealt with or intended to deal with, persons who at the relevant time, had or were capable of having a variety of different legal restrictions placed upon them. In Re The Emergency Powers Bill, 1976 (1977) I.R. 159, Section 2 of the Emergency Powers Bill was considered by the Supreme Court. That Section proposed to give to a member of An Garda Siochana, in certain circumstances, what, at the time, were described as drastic powers of arrest and detention. Thereunder a person could be arrested and detained for 48 hours and in some circumstances up to 7 days. Whilst holding that the Bill was not repugnant to the Constitution the Supreme Court however, through the judgment of the Chief Justice, did hold that a person affected thereby retained several rights, many constitutional in origin, such as the right to communicate, a right to have legal and medical assistance and a right of access to the Courts. The State (McDonagh) -v- Frawley (1978) I.R. 131 dealt with a person, not arrested and detained under Section 2, but one nevertheless suffering from a legal disability, albeit different, namely that of a convicted prisoner. Whilst a large portion of the judgment concerned itself with the appropriateness or otherwise of invoking the Habeas Corpus procedure under Article 40.4 of the Constitution, the Court, when dealing with the actual complaint advanced, namely one of inadequate facilities, also went on to point out that its decision on the Emergency Powers Bill was not intended to and did not apply to a convicted prisoner. At p. 136 of the Report the Court said that “the position of a person duly convicted and properly sentenced is quite different”. Hence the recognition and declaration of the distinctive position of a prisoner so found.

21. These matters were again traversed in the State (Richardson) -v- The Governor of Mountjoy Prison, (1980) I.L.R.M. 82, Cahill -v- The Governor of the Military Detention Barracks Curragh Camp (1980) I.L.R.M. 191, The State (Comerford) -v- Governor of Mountjoy (1981) I.L.R.M. 86 and in the more recent decision of Mr. Justice Budd in Brennan -v- Governor of Portlaoise Prison (1999) I I.L.R.M.190. Many of the cases just cited, deal with allegations made by convicted prisoners of conditions or the existence of regimes, which in their submission amounted to a breach of one or more of their constitutional rights. The individual facts of such cases need not necessarily detain us in this judgment but a brief recital of some of the general principles identified therein would I think be helpful. These can be described as follows:-

A convicted person differs from a person untouched by the legal process,
A convicted person differs from a person arrested and detained, simpliciter,
A convicted person:-
Must accept discipline and accommodate himself to prison life,
Must accommodate himself to a reasonable organisation of that life,
Must understand that prison life is a recognised form of punishment and he, as such, is part of that,
Must understand that his loss of personal liberty, legally provided for, inevitably attaches to it, the abolition, albeit temporary, of some rights and the curtailment or restriction of others,
Must recognise that such rights, diminished or otherwise, have their legitimacy interfered with by reason of and pursuant to the needs and exigencies of the institutional environment in which that person is detained - See Wolff -v- McDonnell (1974) 418 U.S. 539.

9. However, but subject to the above, it should be clearly understood, acknowledged and respected by all that “there is no iron curtain between the constitution and the prisons in this Republic either. The right of access to the courts has been accepted as one of the unspecified rights guaranteed by Article 40.3 of the Constitution and this right is available to prisoners as well as to other citizens”. See p.90 of the report in the State (Richardson). In identifying by name this right I have no doubt but that Mr. Justice Barrington was not in any way being exhaustive or exclusive but rather was giving an example of a right, the exercise of which, transcends a prisoners immediate incarceration. There are of course other such rights which equally continue. See also the State (Healy) -v- O’Donoghue (1976) I.R. 325. .

22. The State (Richardson) is also important for the observations of the learned Trial Judge when dealing with the 1947 Prison Rules. At p.91 of the Report he said:-

“It appears to me that the purpose of the Prison Rules is to reconcile the need for security and good order in the prison with the prisoners subsisting constitutional rights. Clearly the prison authorities must be allowed a wide area of discretion in the administration of the prisons in the interests of security and good order. Clearly also the rules, being made by an executive authority established under the constitution, must be presumed to have respected the prisoners subsisting constitutional rights. For the same reason they should be interpreted in a manner consistent with these rights. In the normal case it would be possible to ascertain the correlative rights and duties of the prison authorities and the prisoners respectively from the Rules themselves and it would not be necessary to look any further” .

10. It seems necessarily to follow from this passage that whilst a prisoner is entitled to the benefit and protection of such rules he is also evidently bound by them.

23. Finally on this aspect of the application I have been referred to the Supreme Court’s decision in Rock -v- The Governor of St. Patrick's Institution , S.C. U/R 22/3/93, a decision which in my view does not add appreciable to the principles above mentioned. The second case was McCormack -v- The Assistant Governor of Mountjoy Prison a ruling delivered on the 3rd May, 1996 by Carney J. That ruling emerged from the facility which is available to a prisoner, whereby, on written application he or she can seek a decision from the High Court on the legality of his or her detention. With such a procedure there is no representation on behalf of the Applicant and no legitimus contradictor , either via the Governor or otherwise. Therefore, whilst the resulting ruling is, of course, of importance, nevertheless for the reasons mentioned, it may not perhaps carry the same weight as would a judgment which is preceded by representation and submission. In any event Carney J held inter alia that an alleged denial of access to legal advise, in the context of an administrative disciplinary hearing, did not render the Applicants’ detention unlawful.

11. In the light of the foregoing and in accordance with the principles above recited, could I now revert to and deal with the particular relief's as sought and do so in the sequence following:-

24. ISSUE NO 1 : - whether the decision of the 25th March is unconstitutional: this by virtue of Article 34 of the Constitution, it being a decision not covered by Article 37 thereof.

12. In my view there is no question of the impugned decision being invalidated by a combination of Article 34 and 37 of the Constitution. There is high authority for this conclusion. The precise point at issue was considered by Finlay P, as he then was, in the State (Murray) -v- McRann and Others (1979) I.R. 133. In that case the Respondent Governor of Limerick Prison, under the Prison Rules above mentioned, embarked upon a determination as to whether or not the prosecutrix had committed a breach of discipline. If he so decided he then had available to him the sanctions specified in Rule 69. Having set this out as the background to his judgment the learned judge at p. 135 of the report said:-

“These penalties are strictly limited in scope and nature and they can only be applied to a person so long as he/she is in lawful custody of the Governor. In performing both of these powers and functions, it is in my view quite clear that the Governor was performing a limited function. Assuming (without so deciding) that that limited function must be considered to be of a judicial nature, a statutory regulation permitting its exercise by the Governor of a Prison would be valid under Article 37 of the Constitution, unless the function he was performing was performed in a criminal matter”.

13. Having made a clear distinction between matters of a criminal nature and other matters, such as a breach of prison discipline, the then learned President, as is evident from this passage, went on to hold that the exercise by the Governor of his functions under Rules 68 and 69 of the 1947 Rules, was an exercise of a power and function of a limited nature in a matter other than a criminal matter and was therefore valid by virtue of Article 37 of the Constitution. This decision is directly on point in the instant case and is clear authority against the proposition advanced on behalf of Mr. Gilligan. Even therefore if such a decision was part of the administration of Justice, a point expressly not so decided in the State (Murray), it was a decision in a non criminal matter and thus protected under Article 37. Consequently I am satisfied that the threshold identified, at paragraph 11 above, has not been met with regard to this ground of challenge..

25. ISSUE NO 2 : - whether the said rules are ultra vires the Prisons (Ireland) Act, 1877 as amended.

14. This ground of challenge has it’s basis on a principle of law that subordinate legislation, in this instance in the form of the Prison rules, is ultra vires the enabling Act if such rules are more than the mere giving effect to the principles and policies outlined in the Act itself. If the effect is other than, as so limited, it would be unauthorised “for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the constitution. On the other hand, if it be within the permitted limits - if the law is laid down in the statute and details only filled in or completed by the designated Minister or subordinate body - there is no unauthorised delegation of legislative power........ Nevertheless the ultimate responsibility rests with the courts to ensure that constitutional safeguards remain and that the exclusive authority of the national parliament in the field of lawmaking is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution” See the judgement of O’Higgins C J in Cityview Press -v- An Chomhairle Oiliuna and Others (1980) I.R. 381 at p. 399. In this case it is alleged that the rules are far more extensive than is necessary in order merely to give effect to the principles and policies outlined in the 1877 Act and accordingly are ultra vires the underlying enactment.

26. Section 12 of the 1877 Act is the relevant Section. It reads:-

“The general Prisons Board may, subject to the approval of the Lord Lieutenant and Privy Council, from time to time after the commencement of this Act, by rules to be made in manner hereinafter prescribed, alter or repeal the bylaws 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.

No rule shall.......”

15. In my respectful view the question of discipline and correction has, by specific designation, been identified as one topic, or area, or matter or factor in respect of which rules may be made. Rule 67 and in particular Rule 69 therefore, are but, an enunciation in practice of the principle and policy content of Section 12. Accordingly, I cannot see how in any circumstances the submission could succeed. I would therefore have to reject it as failing to meet the required standard.

27. ISSUE NO 3 : - whether the “bunker area”, is, as a place of detention, in itself ultra vires Rule 69.

16. On behalf of the Applicant it is suggested that by housing Mr. Gilligan in this area, the Governor is in effect incrementally increasing the punishment in excess of what is available to him, namely that specified under Rule 69. It is in truth, the argument goes, an additive part of this punishment. In response it is claimed, and supported by Affidavit, that in order to ensure that the sanctions imposed under Rule 69 are capable of effective implementation, it is necessary for Mr. Gilligan to remain, for the specified period in this area. In my view the punishment available for imposition under Rule 69 is clear-cut and is confined to that as mentioned in any one or more of the subparagraphs therein contained. Consequently, if the area in question was designed or used predominately as such, then that element of the punishment would be legally suspect. However I don’t believe that this is so and in this context I accept the submission made on behalf of the Governor. I believe, as averred to on his behalf, that in order to implement the punishment given under sub rule (a), (c) and (d) it is necessary to house Mr. Gilligan in the bunker area. Such housing is purely as a consequence of such a punishment and is not, in its own right, any part of that punishment. 28. On a more general point, in my view, it must be for the Governor to decide where, within his prison he should house any prisoner. It must be for the Governor to organise the prison and the areas within it, in whatever is the most suitable and satisfactory way, from his point of view, to run, in an organised and coherent manner, his prison. Subject to the following caveat, in my view it would be entirely inappropriate for the Court to intervene in such internal organisation. Having thus accepted that the bunker area, by virtue of its location and nothing else, is not part of the punishment, it must follow in my view therefore, that unless the conditions of the cell or its immediately surrounding area are such, as would give rise to the type of claim as mounted in the State (Richardson ) I do not believe that such designation, as such, should attract the reviewable jurisdiction of this court.

29. Originally the Applicant identified a number of omissions, with regard to his present accommodation, in respect of which he expressed grave concern. These matters have been addressed by the Respondent and from the Affidavit evidence of the Deputy Governor, I am satisfied that these have been dealt with in a satisfactory and appropriate manner. Consequently one cannot now say that this area, either in terms of its conditions or facilities, is such that the surviving rights of the Applicant are in any way interfered with.

17. I therefore could not grant leave on this ground.

30. ISSUE NO 4 : - fair procedures/natural and constitutional justice.

18. Recapping for a moment, the grounds of this challenge, it is claimed that prior to the visitation of the Deputy Governor on the evening of the 25th March the Applicant should firstly have been informed of Mr. O’Keeffe’s intention to charge him with breaches of discipline, secondly that all of the relevant evidence should have been made available to Mr. Gilligan, thirdly that the latter should have had an opportunity of consulting a solicitor and fourthly that he should have been afforded an opportunity of making a plea in mitigation.

19. There is no doubt but that the matters at issue were serious for Mr. Gilligan, for Mr. Ryan, for the other prison officer and indeed most serious for the Governor. This because of the absolute necessity to assert discipline, and by its control to establish and maintain good order in the prison. Looking at what actually occurred it seems to me (a) that the Deputy Governor informed Mr. Gilligan of what he had been reported on, namely, assaulting an Assistant Chief Officer and threatening and abusing him, (b) that he then read out in full the charges to Mr. Gilligan, and did so by way of an exact transcription of what was contained in the report of Assistant Chief Officer Ryan, (c) that Mr. Gilligan with purpose, completely ignored the process then taking place, (d) that the Deputy Governor invited the Applicant to make comment, and being conscious of Mr. Gilligans non response, Mr. O’Keeffe informed him that he had the authority to impose sanctions in respect of these charges and once again asked the Applicant did he wish to say anything. However he remained mute. A further opportunity arose when he was informed that the situation was serious for him and for everyone else and that he should take an interest in the matter at hand. Mr. Gilligans position remained as it was. In addition it is important to recall that he did not seek time, did not look for a copy of any documentation, did not identify any witness who might be of assistance to him, did not request any statements be taken from third parties, and of course at all times refused to participate in the process. It is, in these virtually unchallenged circumstances that the above alleged breaches of fair procedures are complained of.

31. In my view there is not, and cannot be, any substance to those submissions as made. The Prison Governor was faced with an immediate situation involving potentially a serious breach of discipline. In the interest’s of safety and orderly management it was necessary to deal with the situation as quickly as possible. In his possession he had charges to be laid against Mr. Gilligan and the available evidence in support. He both verbalised and read those charges to Mr. Gilligan who I am satisfied must have understood their nature and content. He made known to him the supporting evidence. He offered him several opportunities to comment, speak, give evidence or make representations. None were availed of. This even when the seriousness of the moment was once again impressed upon him. In these circumstances, if a prisoner remains silent, as is his right, he must nevertheless understand that, inescapably certain consequences will follow. And so they did. I am satisfied that if he had sought an opportunity to consider his position or to consult with a fellow prisoner or to identify a possible witness he would have been afforded and given such an opportunity. I have no doubt therefore that in these circumstances, the Applicant was fully aware of the charges levelled against him, fully understood what the Assistant Chief Officer had to say in respect of these charges, and that he was given an opportunity to hear such evidence and be heard in response, either evidentially or by way of submission including a plea in mitigation if he so wished. However he declined. Given these facts therefore I cannot see any basis upon which he could possibly succeed under this heading of his challenge.

32. Finally I have considered again whether or not there might be more substance than I have acknowledged to the submission that the Applicant should have been accorded an opportunity of consulting his legal advisor. However even on this reflection I do not believe that such a right exists in the circumstances of this case. Such circumstances are in my view totally distinguishable from those which existed in Campbell and Fells -v- United Kingdom

20. E.C.H.R, 28/6/1994 - 7 E.H.R.P. 165. In that case the European Court of Human Rights was considering the situation of Mr. Campbell who, whilst a prisoner, was involved with others in a protest which led to a violent disturbance. All with charged with mutiny and incitement to mutiny. The potential penalties which he faced were, the forfeiture of all remission of sentence available to him, which at the relevant time was just under three years, forfeiture of certain privileges for an unlimited time and exclusion from associated work, stoppage of earnings and cellular confinement for a maximum of 56 days. In fact he lost a total of 570 days remission and was subject to the other penalties for an additional period of 91 days. In regarding these penalties, for Convention purposes, as criminal in type, the Court was heavily influenced by the nature and, degree of severity, of such sanctions and the most serious consequences for the length of the prisoners detention. In this case, the situation, is entirely different. The sanctions, both available and applied, were nothing of the magnitude, severity or consequence as existed in the Campbell case. Therefore one could not in anyway equate one case with the other case.
33. In deciding, as I have on the point last mentioned, I am not to be taken as deciding, that in the context of an alleged breach of discipline, particularly where the facts concurrently disclose a serious criminal offence, a prisoner can never consult a Solicitor. That decision will have to await a future judgment. In this case however I am quite satisfied that no such right exists.

34. In conclusion I refuse leave.