Judgment Title: Walsh & Ors -v- The Governor of Midlands Prison & Ors
Neutral Citation:  IEHC 229
High Court Record Number:
Date of Delivery: 14/06/2012
Court: High Court
Composition of Court:
Judgment by: Charleton J.
Status of Judgment: Approved
Neutral Citation Number  IEHC 229
The High Court
2012 642 SS
Stephen Walsh, Roger Ryan and Dermot Byrne
The Governor of Midlands Prison
The Attorney General, the Director of the Court Services, the Minister for Justice Equality and Law Reform and the Director of the Prison Service
Judgment of Mr Justice Charleton delivered on the 14th day of June 2012
This is a personal application to the court by the first applicant on behalf of all three applicants, each of them being convicted prisoners in the Midlands Prison.
Declarations are sought that the respondent and the notice parties have prevented indigent prisoners from gaining equal access to justice and in that regard have acted in an unbelievably deplorable and constitutionally unacceptable manner.
On Bill number CC 0091/98 the first applicant complains in a most vague manner of the conduct of Carney J. He has nothing to complain about. No reason for whatever he is on about is set out in the documents. Any issue as to transcripts on a pending appeal is a matter which cannot possibly undermine the legality of the detention of a prisoner following a trial in due course of law resulting in a conviction. The reason I can make no order on an application such as this is that there is nothing in evidence before me which would suggest that the applicant is in unlawful custody. The decision in relation to the grant of an order of habeas corpus in The State (McDonagh) v Frawley  IR 131 is binding on this Court. At p 136 O’Higgins CJ stated:
It is a matter for the prison authorities to decide which prison is most suitable for the custody of, and the rehabilitation needs of, any prisoner. As to how a prison is to be conducted, that is a matter for the governor of each institution, subject to the prison rules. In Foy v Governor of Cloverhill Prison  IEHC 529 paragraphs 18-19, this Court put the law in this way:
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:-
“When the State lawfully exercises its power to deprive a citizen of his constitutional right to liberty, many consequences result, including the depravation of liberty to exercise many other constitutionally protected rights, which prisoners must accept. Those rights which may be exercised by a prisoner are those (a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood) or (b) which are compatible with the reasonably requirements of the place in which he is imprisoned, or to put it another way, do not impose unreasonable demands on it… This means that the fact of imprisonment does not in itself amount to an unconstitutional infringement of a prisoner’s rights.”
Secondly, the applicant complains that, when he needs to have an affidavit sworn so that he can make a further application to the courts, he is obliged to pay between €30 and €50 to a practising solicitor, which he characterises as "rip off prices". In reality, however, he has made this application on a unsworn basis and the remedy of habeas corpus under the Constitution is capable of bypassing any formality by way of court rules or procedure where that is appropriate.
The applicant also takes issue with the informal system whereby any prisoner in the State may write to the Central Office of the High Court and make a complaint. Sometimes these complaints are serious. Each such complaint is investigated and where necessary a report is sought from the governor of the relevant prison. A ruling is then made on the complaint in open court. This is a highly effective means of ensuring that prisoners are not isolated and that they have an ultimate authority to which to turn on matters of law. The informality of the system is of core benefit to its administration. Nothing about that informal procedure disables any form of judicial review under Order 84 of the Rules of the Superior Courts. Nor could that system undermine the entitlement of an interested party to apply for habeas corpus by way of an application to a judge of the High Court in the ordinary course. The procedure is in addition to other rights and procedures. It amounts to an exceptional means of access to the High Court that is for the benefit of prisoners. There is no warrant for disturbing it.
In addition the applicant makes certain complaints as the governance of prisons. Continual review by the courts of the ordinary day-to-day decisions of prison authorities carries a significant danger. In Turner v Safley (1987) 482 US 78 O’Connor J stated at 89:
The right to fair procedures guaranteed under the Constitution entitles the prosecution to investigate any alleged new facts in relation to this murder conviction, to search out countervailing facts and to consider submissions for any appeal hearing. The remedy of habeas corpus cannot bypass that constitutional procedure.