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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Burke -v- The Governor of Cloverhill Prison [2014] IEHC 449 (10 October 2014)
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Cite as: [2014] IEHC 449
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Judgment Title: Burke -v- The Governor of Cloverhill Prison Neutral Citation: [2014] IEHC 449 High Court Record Number: 2014 1629 SS Date of Delivery: 10/10/2014 Court: High Court Composition of Court: Judgment by: Barrett J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 449 THE HIGH COURT [2014 1629SS] IN THE MATTER OF AN APPLICATION PURSUANT TO ARTICLE 40 OF THE CONSTITUTION Between: OLIVER BURKE APPLICANT and
THE GOVERNOR OF CLOVERHILL PRISON RESPONDENT Judgment of Mr. Justice Max Barrett delivered on the 10th day of October, 2014. 1. This application under Article 40.4 of the Constitution concerns Mr. Burke, a prisoner: who is being held in Cloverhill Prison; who, prior to and at the time of the hearing of this matter, was suspected by the prison authorities of having swallowed some form of contraband; and who appeared to his solicitor to be visibly and quickly deteriorating in circumstances where the conditions in which Mr. Burke was being detained were perceived by the solicitor to be actively deleterious to Mr. Burke's health. The fact that the application was brought out-of-term on a Saturday when the courts were generally closed points to the urgency that the prisoner's case was perceived by his advisors to present. Basis of application
4. The Richardson case was concerned with the practice of 'slopping out' in Mountjoy Prison. The Cahill case was concerned with rigorous prisoner conditions in the Curragh Camp around a period of prisoner unrest. It is of course only in the most exceptional circumstances that a court would accede to an Article 40 application that relates to conditions of confinement; this is because the operation and management of prisons is largely a matter for the Executive, subject to the Constitution and the law. That said, the courts have, since at least the time of the Richardson decision, shown themselves willing to accede to Article 40 applications where it appears that prison authorities are causing or doing nothing to rectify conditions of detention that present a serious danger to a prisoner's life or health. This traditional willingness to accede to Article 40 applications in such instances appears to receive the implicit sanction of the Supreme Court in Ryan. 5. In the present case, Mr. Burke and his advisors raised an arguable case that his initially lawful detention had become unlawful because he had been suffering deliberate ill-treatment that was actively worsening his health in circumstances where his health seemed already to be imperilled because of his alleged ingestion of contraband. It was therefore a case that seemed to fall somewhere along the spectrum of cases represented by the Richardson and Cahill cases and which the Supreme Court appears implicitly to acknowledge in Ryan may legitimately be the subject of Article 40 proceedings. Thus this Court has proceeded to enquire into the lawfulness of Mr. Burke's detention. Facts 7. On 23rd September, as part of the prison admission process, Mr. Burke, who apparently suffers from a drug addiction problem, met with a nurse who arranged for him to receive repeated dosages of methadone. On 26th September, Mr. Burke was seen by a prison doctor who, with Mr. Burke's consent, conducted a physical check of Mr. Burke's stomach region and was unable to feel any contraband secreted there. On the same day, Mr. Burke's solicitor visited with her client, was clearly alarmed by his physical state and assisted Mr. Burke to bring the instant proceedings. At the time of the hearings, the prison authorities continued to believe that Mr. Burke had ingested some form of contraband. Mr. Burke, for his part, had offered to undertake an X-ray screening to prove the contrary and his counsel appeared to consider it inappropriate that the prison authorities had not yet facilitated such screening to definitively establish the truth of matters and thereafter take such steps as were appropriate. In the affidavit evidence that accompanied Mr. Burke's application it was urged that there had been general ill-treatment of Mr. Burke, in that: during the screening process he had been required to take off all his clothes; the television set in his cell had been left on night-and-day during his stay; he was being denied bed linen and kept in state of perpetual cold; and he had been denied all access to fresh air. However, the principal concern of Mr. Burke's advisors appeared to be that his custody and treatment was such that if he had ingested some contraband, not enough was being done to assist him, indeed that the manner of his detention was actively harmful to his health and had become unlawful through a combination of this last fact and the alleged unwillingness of the prison authorities to rectify matters. 8. The court finds nothing in the facts before it to suggest that Mr. Burke is or has been held or treated in such a manner as to render his continuing detention unlawful. Specifically, the court finds as follows: - the manner whereby Mr Burke was screened when he entered prison has nothing to do with his continuing health following the suspected ingestion of contraband, it entailed all due consideration for Mr. Burke's modesty and in no sense can be construed as ill-treatment. In truth it was this screening process that unearthed the fact that Mr. Burke may have swallowed some contraband and saw the commencement of a sequence of events that had as their object and effect the protection of Mr. Burke, and also other prisoners at Cloverhill, from the ill consequences of his suspected actions; - the fact that the television was on night and day in Mr. Burke's cell has little or nothing to do with his continuing health following the suspected ingestion of contraband. Moreover, it became apparent during the proceedings that this issue could have been resolved through the simple expedient of Mr. Burke requesting that the television be turned off. He could not turn it off himself because the television was hung at a height where it could not be used as an instrument of self-harm. Nor could Mr. Burke be given the remote control as it could be fashioned into an offensive weapon and/or used to harm himself. It appeared from Mr. Burke's own evidence that he had not requested that the television be turned off. It was left on because Mr. Burke appeared to want this and to the extent that it is suggested that the prison authorities or staff have, deliberately or otherwise, ill-treated Mr. Burke by refusing to turn off the television when requested to do so, this suggestion, the court is satisfied, is not correct; - the fact that Mr. Burke was denied bed-sheets and so seems always to have been cold has little or nothing to do with his continuing health following the suspected ingestion of contraband. Mr. Burke was being kept in an area of Cloverhill Prison where vulnerable prisoners are accommodated. As bed-sheets can be used as a method of strangulation or suffocation, Mr. Burke was provided instead with at least two 'refectory blankets' that can safely be provided to those who may be a risk to themselves. Mr. Burke, if he felt cold, could have received another such blanket had he asked. To the extent that it is suggested that the prison authorities or staff have, deliberately or otherwise, ill-treated Mr. Burke by keeping him in a state of perpetual coldness through their refusing him adequate bed-clothing, this suggestion, the court is satisfied, is not correct; - following his admission to prison, Mr. Burke was initially denied outdoor access because he was under watch for the various reasons outlined above. Sometime prior to the instant proceedings this regime was relaxed and Mr. Burke was allowed outdoors. To the extent that it is suggested that the prison authorities or staff have, deliberately or otherwise, ill-treated Mr. Burke by refusing him access to the open air or that the lightening of his exercise regime had anything to do with the commencement of the instant proceedings, this suggestion, the court is satisfied, is not correct. 9. In his appearance and his performance in the witness-box, Mr. Burke did not impress the court as someone who was suffering from the serious ill-health or maltreatment that a reading of the affidavit evidence alone suggested him to be suffering. Nor did he strike the court as an individual who would shrink from asking that a television be turned off or an extra blanket provided if that is what he required. In his evidence, Mr. Burke continued to deny that he had ingested any contraband. However, for the time being, the prison authorities continued to want to keep him under close watch for the entirely legitimate reasons referred to above. It was clear from the cogent and professional evidence provided by Mr. Woods, the Assistant Governor at Cloverhill Prison, and from the other evidence before the court, that there has been no ill-treatment of Mr. Burke in any way during his time at Cloverhill Prison and that there is nothing in the manner of his detention that would in any way render unlawful the continuation of same. Conclusion |