Judgment Title: Foy -v- Governor of Cloverhill Prison
Composition of Court:
Judgment by: Charleton J.
Status of Judgment: Approved
Neutral Citation Number  IEHC 529
THE HIGH COURT
2009 1316 JR
THE GOVERNOR OF CLOVERHILL PRISON
JUDGMENT of Mr. Justice Charleton delivered on 29th day of June 2010
1. Has a remand prisoner, presumed in law to be innocent of the offence for which he has been remanded, an entitlement under the Constitution, or under the European Convention on Human Rights, to physical contact with his family when they come to visit him?
2. John Foy, the applicant, is now a convicted prisoner. He is serving a lengthy sentence for armed robbery. At the time of the events of which he complains, he was a remand prisoner in Cloverhill Prison. He was therefore presumed to be innocent of any offence. His subsequent plea of guilty indicates that he was not in fact innocent of the offences for which is now serving a sentence. For the purposes of this judgment, however, he was then entitled to the presumption of innocence in law.
3. Cloverhill Prison has a general policy of allowing visits by relatives to prisoners only in closed circumstances. This means that the prisoner is ushered into the area for the visit and sits at a counter. His family is brought to the other side. Between them there is a screen. This prevents any physical contact between the visitor and the prisoner. In addition to a screened visit, as so described, there is the possibility of a box visit. This colloquialism refers to a visit which may be allowed a prisoner whereby he, and his family, are all allowed to be present together in one small room. In contrast to the screened visit, in the box visit there is physical contact. The prisoner can hug his wife and children, hold hands, or sit his off-spring on his knee. Both kinds of visits are observed by prison officers, who can also hear what is said; unlike in a lawyer and prisoner consultation, which is private and is only observed visually through a window. It is likely that a prison officer, in both a box visit and a screened visit, will be expected to observe several sets of visits by relatives to prisoners.
4. Some people refer to what prisoners call a box unit as an open visit. Visits where contact can be made are the norm, as I understand the submissions of counsel, in most Irish prisons at the present time. Cloverhill Prison is, in the main, a remand prison; though there are a few sentenced prisoners there also; for various administrative or security reasons.
5. John Foy claims that to deprive him, as an innocent person, of physical contact with his family is to undermine his rights under Article 41 of the Constitution and under Article 8 of the European Convention on Human Rights.
7. On 23rd September 2009, John Foy’s solicitors wrote to the governor of Cloverhill Prison. They complained that John Foy was visited every day by his wife but that she was only entitled to a screened visit; one without the possibility of physical contact. Reasons were sought for this situation. The governor replied, by letter dated 25th September 2009, that the policy of the prison was that visits were to be without physical contact. When a further protest, of a more detailed kind, was raised by John Foy’s solicitors by letter dated 28th September 2009, the governor reiterated, in his reply of the 29th September 2009, that all visits were screened and without the possibility of physical contact. The letter went on to state, however, that a box visit, the kind involving physical contact within a small room, could be applied for by John Foy. Since this had not been applied for, the governor suggested that should such an application be made, he would review it on its merits.
8. When John Foy was first imprisoned on remand, a circular dated the 16th April 2001, seems to have governed box visits. It allowed prisoners to apply for a box visit and stated that such applications would be considered by the governor. This circular required prisoners to be inmates for not less than six months before a box visit might be allowed. A contact visit would only be granted on a Sunday and only nominated people would be allowed into the room. Shortly after the governor invited such an application, John Foy made one. It was allowed. A box visit took place a short time afterwards.
9. For reasons which appear to me to be coincidental with anything to do with the issues in his case, the governor of Cloverhill Prison, in or about this time, was becoming increasingly concerned with the regulation of visits. He decided to issue a visitor nomination form to each prisoner. This contained eight spaces in which the name of the proposed visitor, together with their address, relationship to the prisoner, and phone number could be entered. This nomination form required those attending to produce an acceptable form of identification with photograph. I am satisfied that most of the remand prisoners in Cloverhill Prison accepted this new system. In addition to the nomination of prisoners, it also provided for remand prisoner visits to be reduced from six fifteen minute visits per week, to four half an hour visits per week. This was a more efficient system and most of the prisoners accepted it, perhaps because it allowed more visiting time overall.
10. Possibly because John Foy had been upset by the insistence of the governor on screened visits within Cloverhill, apart from the box visit he had been granted on one occasion, he refused to sign the form. On at least two occasions his wife attended at the prison but, in the light of her husband’s refusal to sign the nomination form, she was refused entry. Some words, and other unpleasantness, occurred in this context. It is unnecessary to go into this. Eventually, John Foy nominated in writing, on the visitor nomination form, the persons from whom he wished to receive visits. These were his wife and other close relations. He refused to sign the form “as a protest”. The governor, nonetheless, accepted the form as valid and, thereafter, matters proceeded in an orderly fashion. Then, John Foy, as the accused, pleaded guilty to the serious offences which I have mentioned. He was removed from Cloverhill Prison to another place of detention. There, it seems, the restrictions on physical contact on visiting may be less stringent.
Governance of Prisons
(b) The Governor may allow physical contact between a prisoner and a visitor when he or she is satisfied that such contact will not facilitate the entry into the prison of controlled drugs or other prohibited articles or substances.”
13. In addition, under rule 72, the governor of a prison has general authority to manage the prison. This gives him or her an entitlement to decide on general matters of prison governance which are not already pre-decided by being made subject to specific prison rules. Apart from that, the manner in which the rules are implemented is a matter for decision by the governor. The discretion of the governor, in that regard, is untrammelled provided he does not, by his management, overturn the Prison Rules. Since these establish certainty, clarity of entitlement and a code of conduct for both inmates and correctional officers, in managing the prison, the governor should in general look to the Rules and then apply them as fairly and as humanely as is possible.
15. It is beyond argument that the imprisonment of a relative strikes at the integrity of the family. Since one of the primary functions of the family, under the Constitution, is the guardianship and education of children, it follows that the absence of a parent in prison undermines, in terms of both time, space and authority, the ability of the family to fulfil that role. It is therefore argued that any prison governor, in making a choice as between a visit with, or without, physical contact for family members, in other words as between r. 36(7)(a) or (b) of the Prison Rules, should take the entitlements of the family under the Constitution into account. It is submitted that the ordinary, and humane, manner of visiting a family member must recognise that physical contact between family members is one of the human norms in demonstrating affection and support. Whereas, it is urged, a prison governor is entitled to take security considerations into account, the governor must also look to his duty to uphold the family as the foundation of social order.
Prison and Restrictions
17. The governor has also said that particular problems arise within the context of a remand prisoner which makes the management of a detention facility such as Cloverhill Prison more acute. At paragraph 11 of his affidavit dated the 10th June 2010, Sean Quigley, the governor of Cloverhill Prison, states:-
19. Imprisonment cannot amount to an unlawful infringement of the rights of the family if the order to imprison is validly made and the conditions of detention humanely recognise such rights as the prisoner retains within the context of the reasonable management and governance of a lawful place of detention. The courts, the trial of crime, the classification of offences into serious and less serious, the implementation of penalties, and the commutation of sentences, are all provided for in the Constitution. Imprisonment is, of necessity, the imposition of unwanted discipline, by way of punishment, or in the case of remand, an administrative measure on those in respect of whom facts have been found by a court of appropriate jurisdiction in accordance with the scheme provided for under the Constitution. In the case of convicted prisoners, they have been found guilty beyond reasonable doubt of offences warranting imprisonment. In the case of remand prisoners, the restrictions on their liberty are heavily circumscribed by both the relevant rules of court and the entitlement which they have to bail absent the prosecution proving as a probability a risk of absconding, interfering with witnesses, or the commission of serious crime. In Murray v. Ireland, Costello J. put the scheme under the Constitution in the following way, at pp. 542 to 543:-
20. It is contemplated by an order of remand for an unconvicted prisoner, or a sentence of imprisonment for a convicted prisoner, that family rights under Article 41 of the Constitution will be curtailed. Remand is, of its nature, a relatively short-term, though serious, disruption. Imprisonment is only ordered by a court in the context of the serious infringement, through the commission of crime, of the constitutional rights of another person. Should that imprisonment be lengthy, it will invariably involve a serious attack on the bodily integrity of another person; for example, a rape victim or a victim of sexual violence; or in the case of non-violent crime, a deceitful undermining of the entitlement of the victim to security in property or the inviolability of the home. John Foy’s sentence for armed robbery resulted in a serious sentence. That sentence would only have been possible because of his own conduct.
21. The Court does not thereby come to the facile conclusion that a convicted prisoner has undermined, through his own conduct, the right to contact with his own family. Rather, the Court is of the view that all of these matters as to the remaining rights of prisoners and the proper management of a prison are questions of balance. On the one hand, such family rights as can be validly exercised in a practicable and reasonable way within prison should be recognised as part of the balance. On the other hand, how rights fit within the proper governance of a prison are matters for those who run the prison. The prison governor has a duty to control the incidents of detention whereby a prison confines the prisoners, makes reasonable efforts to keep them safe, assists in their rehabilitation and recognises that if convicted, despite their wrong, they are part of a wider community which retains the rights declared by the Constitution on the basis of human dignity and redemption.
22. Exercising that balance is essentially a matter for the prison governor. It is unfortunate that, in the context of remand, those who are presumed to be innocent may be, as a matter of fact, subject to more restrictions as regard contact visits than those who are convicted and serving sentences of imprisonment in other prisons. But the balance between what is possible in terms of upholding rights and, on the other hand, maintaining the purpose of imprisonment within good order, is for the governor. Such decisions as he or she makes are subject to judicial review. Where such decisions are within the scope of the authority of the governor, as conferred by the Prison Rules, it is difficult to establish an arguable case. It is only possible to mount a challenge to the decision of a governor where it is shown to both infringe a right and, as to the balance of the exercise of that right with the duty of the governor to ensure proper order within the prison, to fly in the face of fundamental reason and common sense. Such cases are, of their nature, difficult to prove. A prison governor is entitled to some measure of latitude in judgment as to the decision which he or she makes.
23. Where there is a general prohibition of contact visits, within the context of the serious problem which Governor Quigley outlines in his affidavit, that is a decision within the realm of the measure of appreciation which a governor should be afforded. It is not appropriate for the Court to substitute its own judgment as to where the appropriate balance should be struck in the context of prison governance and discipline, rather, it seems to me, that it is the duty of the Court to interfere only within the context of its entitlement. This entitlement does not arise absent proof of such unreasonable conduct by a prison governor which has the result of undermining the reasonable and practicable exercise of such constitutional rights as survive imprisonment and which flies in the face of fundamental reason and common sense as to the balance which the decision strikes. This has not been proved in this case.
24. Any such challenge requires evidence. Here, the evidence is one-sided. The point is therefore incapable of being decided in favour of John Foy. He, in addition, asserts a right to physical contact as part of the constitutional entitlement to family rights which survives imprisonment. It would be difficult to argue against the proposition that physical contact is part of the proper nurturing of a young infant. In human society, however, that role can be interchanged between, for instance, a mother and an aunt or grandmother. Within the context of imprisonment, the possibility for such physical contact is necessarily limited. Here, there are weighty factors to justify that restriction, and these are uncontradicted. There is no material to justify the Court proceeding to go beyond the expression of an opinion towards the declaration of a right absent expert evidence which would show that physical contact between an imprisoned father and minors is essential to the authority of the family. That evidence is not present in this case and the Court is not entitled to speculate what its effect might be. The case presented might, however, be stronger were it to be the case that, without good reason, an individual prisoner were restricted permanently from any physical contact with any relative or friend outside a prison. The Prison Rules clearly provide discretion to the governor in that regard to exercise in appropriate circumstances and subject to the safeguards that are necessary to protect good order and discipline within the prison.
25. Some appropriate measure of deference by the court should also be afforded to a prison governor. The decisions which are made by a governor result from many years of experience of practical work within a context that demands expertise through experience. The Court should never shirk its responsibility to make a decision where unreasonableness leading to the unlawful depravation of a constitutional right has been shown. The analysis which the Court can bring to bear on the problem is, however, limited to the facts of particular cases. Decisions, within the context of prison governance and discipline, are required, under the spirit within which the Prison Rules operates, to be taken even-handedly. Few factors would seem to undermine prison security more surely than either the victimising of prisoners or the establishment of favourites through arbitrary decisions. Any such policy would fall within the terms of unreasonableness as it is circumscribed by administrative law. On the other hand, the review by courts on the basis of substituting the court’s own view for decisions with which a court is not fully in accord, also carries a significant danger. As O’Connor J. stated in Turner v. Safley (1987) 482 U.S. 78 at 89:-