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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Killeen -v- Governor of Portlaoise & ors [2014] IEHC 77 (25 February 2014)
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Cite as: [2014] IEHC 77
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Judgment Title: Killeen -v- Governor of Portlaoise & ors Neutral Citation: [2014] IEHC 77 High Court Record Number: 2013 721 JR & Ors Date of Delivery: 25/02/2014 Court: High Court Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 77 THE HIGH COURT JUDICIAL REVIEW [2013 No. 721 J.R.] BETWEEN NATHAN KILLEEN APPLICANT AND
GOVERNOR OF PORTLAOISE, IRISH PRISON SERVICE AND MINISTER FOR JUSTICE AND EQUALITY RESPONDENTS
[2013 NO. 722 J.R.] BETWEEN DESMOND DUNDON APPLICANT AND
GOVERNOR OF PORTLAOISE, IRISH PRISON SERVICE AND MINISTER FOR JUSTICE AND EQUALITY RESPONDENTS
[2013 NO. 723 J.R.] BETWEEN JOHN DUNDON APPLICANT AND
GOVERNOR OF PORTLAOISE, IRISH PRISON SERVICE AND MINISTER FOR JUSTICE AND EQUALITY RESPONDENTS JUDGMENT of Mr. Justice Hedigan delivered on the 25th day of February 2014 1. The applicants seek the following reliefs:-
(2) a declaration that holding the applicants in segregation is a breach of their constitutional rights; (3) an injunction directing the respondents to:- (i) transfer the applicants out of segregation and into the general prison population in Portlaoise Prison or into the general prison population in another prison; (ii) allow the applicants to engage in authorised structured activities; (iii) allow the applicants to participate in communal recreation; (iv) allow the applicants to associate with the general prison population; (v) allow the applicants to avail of the prison’s educational facilities; (vi) allow the applicants to avail of the prison’s vocational facilities; (vii) allow the applicants to visits of normal duration; (4) a declaration that the indeterminate close confinement of the applicants is unlawful and unconstitutional; (5) a declaration that the respondents were in breach of the prison rules; (6) a declaration that the current detention of the applicants is unlawful; (7) a declaration that the respondents have failed to perform their functions in a manner consistent with the European Convention on Human Rights in holding the applicants in solitary confinement; (8) a declaration that the respondents have failed to perform their functions in a manner consistent with the European Convention on Human Rights in refusing to allow the applicants to engage in authorised structured activities; and (9) a declaration that the segregation of the applicants other than in accordance with rule 62 of the Prison Rules, 2007 (S.I. No. 252/2007) is unlawful. 2.1 The applicant in the first set of proceedings is serving a five year term of imprisonment for burglary imposed on 22nd July, 2011, dating from 30th July, 2010. He is currently awaiting trial before the Special Criminal Court in November 2014 for the murder of James Cronin in 2008 and is also due to stand trial before the Special Criminal Court in April 2014 for the murder of Roy Collins in 2009. 2.2 The applicant in the second set of proceedings is serving a term of life imprisonment for the murder of Kieran Keane imposed on 20th December, 2003, which was imposed concurrently with a 15 year term of imprisonment for an offence of attempted murder and a seven year term for false imprisonment contrary to s. 15 of the Non-Fatal Offences Against the Person Act 1997. 2.3 The applicant in the third set of proceedings is serving a term of life imprisonment for the murder of Shane Geoghegan imposed on 13th August, 2013, and a five and a half year term of imprisonment imposed on 18th April, 2012, for an offence of threatening to kill April Collins contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997. 2.4 On 3rd November, 2012, all three applicants were transferred to Portlaoise Prison from the Midlands Prison following certain security concerns there and following an altercation with a fellow prisoner there. It was decided pursuant to rule 62 of the Prison Rules 2007,in the interest of security and good order in the prison, that they could not be accommodated within the general prison population. Since their transfer to Portlaoise Prison, they have been detained together in unit 3 in the A Block of the prison, a self contained eight cell unit, and have not been allowed to associate with the general prison population. Notices of their status under rule 62 were initially served on the applicants up to January 2013 but not thereafter when the authorities apparently considered that the conditions of their imprisonment had been improved. 2.5 On 27th September, 2013, the solicitor for each applicant wrote to the first named respondent querying his segregation and requesting his transfer to another prison. This was followed up with a reminder letter to Governor Moran on 1st October, 2013. The applicants have been detained together in this segregated unit for more than a year. They are allowed to associate with each other for at least three hours per day. The applicants have access to a yard and to some exercise equipment. Although they have complained of the lack of educational facilities, it is apparently the case that they have never actually requested such or made use of the available facilities in this regard. In his evidence in court, Mr Murphy said the plan was to move the applicants into a new unit, number 5. It has additional facilities including a full gym, kitchenette and a large classroom. They will have a yard to themselves and will be unlocked to the same extent as the general prison population. 3. Rule 62 of the Prison Rules 2007 provides as follows:-
(a) engage in authorised structured activities generally or particular authorised structured activities, (b) participate in communal recreation, (c) associate with other prisoners, where the Governor so directs. (2) The Governor shall not give a direction under paragraph (1) unless information has been supplied to the Governor, or the prisoner's behaviour has been such as to cause the Governor to believe, upon reasonable grounds, that to permit the prisoner to so engage, participate or associate would result in there being a significant threat to the maintenance of good order or safe or secure custody. (3) A period specified in a direction under paragraph (1) shall not continue for longer than is necessary to ensure the maintenance of good order or safe or secure custody (4) Where the direction under paragraph (1) is still in force, the Governor shall review not less than once in every seven days a direction under paragraph (1) for the purposes of determining whether, having regard to all the circumstances, the direction might be revoked. (5) A prisoner in respect of whom a direction under this Rule is given shall be informed in writing of the reasons therefor either before the direction is given or immediately upon its being given, and shall further be informed of the outcome of any review as soon as may be after the Governor has made a decision in relation thereto. (6) The Governor shall make and keep a record of - (a) any direction given under this Rule, (b) the period in respect of which the direction remains in force, (c) the grounds upon which the direction is given, (d) the views, if any, of the prisoner, and (e) the decision made in relation to any review under paragraph (4). (7) The Governor shall, as soon as may be after giving a direction under paragraph (1) (c), inform the prison doctor, and the prison doctor shall, as soon as may be, visit the prisoner and, thereafter, keep under regular review, and keep the Governor advised of, any medical condition of the prisoner relevant to the direction. (8) The Governor shall, as soon as may be after giving a direction under paragraph (1)(c), inform a chaplain of the religious denomination, if any, to which the prisoner belongs of such a direction and a chaplain may, subject to any restrictions under a local order, visit the prisoner at any time. (9) The Governor shall, as soon as may be, submit a report to the Director General including the views of the prisoner, if any, explaining the need for the continued removal of the prisoner from structured activity or association under this Rule on grounds of order where the period of such removal will exceed 21 days under paragraph (4). Thereafter, any continuation of the extension of the period of removal must be authorised, in writing, by the Director General. The Applicant’s Submissions
‘In considering whether a restriction on the exercise of rights is permitted by the Constitution, the courts in this country and elsewhere have found it helpful to apply the test of proportionality, a test which contains the notions of minimal restraint on the exercise of protected rights, and of the exigencies of the common good in a democratic society. This is a test frequently adopted by the European Court of Human Rights and has recently been formulated by the Supreme Court in Canada in the following terms. The objective of the impugned provision must be of sufficient importance to warrant overriding a constitutionally protected right. It must relate to concerns pressing and substantial in a free and democratic society. The means chosen must pass a proportionality test. They must:- (a) be rationally connected to the objective and not be arbitrary, unfair or based on irrational considerations; (b) impair the right as little as possible, and (c) be such that their effects on rights are proportionate to the objective …’”
The Respondent’s Submissions Decision
6.2 The prison rules at Rule 75 and 85, place an obligation on the governor and staff to respect the dignity and human rights of prisoners. It is well established that, whilst certain of a prisoner’s right are abrogated or suspended as necessitated by their imprisonment per se, not all of those rights are. A prisoner is required to submit to the prison rules but is also protected by them. Their subsisting rights may often be ascertained from the prison rules read in the light of the Constitution (see State (Richardson) v. Governor of Mountjoy Prison [1980] ILRM 82). 6.3 In Devoy v. Governor of Portlaoise Prison [2009] IEHC 288 at p. 83, Edwards J. dealing with a situation of solitary confinement held that there is a presumption in favour of association between prisoners subject to the good order of the prison:-
6.5 This segregation may be required in certain circumstances and it must be for the prison authorities to determine when. It is something that should only occur in exceptional situations (see Connolly v. Governor of Wheatfield Prison [2013] IEHC 334, Hogan J). When it does, such segregation should be kept under review. Rights are be ing curtailed and it is clear both from national and international jurisprudence that the principle of proportionality must be applied. See Holland v. Governor of Portlaoise Prison (cited above). See also Ramirez Sanchez v. France Application 59450/00, 4th July, 2006, Grand Chamber, para.136 where the European Court of Human Rights dealt with the issue of the social isolation of the prisoner. He had been held in solitary confinement for eight years and two months. In view of the length of this period of isolation, the court considered that a rigorous examination was called for to determine its justification. Were these measures necessary and proportionate? What safeguards were afforded the applicant? In that case, an independent judicial review on the merits of and reasons for such a prolonged period in solitary confinement was essential. Thus national and international requirements are broadly the same:-
(b) It should be no more than is necessary to meet the requirements of the occasion i.e. safety and security. (c) It should be proportionate to the objective sought. (d) There should be ongoing review. 6.6 Applying these principles to this case; the segregation has been for a protracted period. It has far exceeded the 21 days contemplated by rule 62(4) to (8). The prison authorities are now into a situation provided for in rule 62(9). The decision as to whether to segregate for a period longer than 21 days, must be one of prison management. Rule 62(9), however, is silent as to review of any ongoing segregation. This is in somewhat stark contrast to the detailed provisions provided at (4) to (8) in relation to short periods up to 7 days. The rules as noted above, must however be read in the light of the Constitution. This, as further noted above, requires good reason, minimum interference with rights and proportionality of the segregation. There must be available for lengthy periods, just as for short ones, a process of review. Judicial review of the merits and reasons for a prolonged period of isolation should be available. 6.7 In his affidavits dated 31st October, 2013, in all three applications, Brian Murphy, Director of Prison Operations, has set out in relation to each of the three, the measure of risk posed by them. The measure of the risk he describes is very high. In keeping with the normal rules of judicial review, it is not for this Court to assess those risks but rather to determine whether they exist and constitute evidence upon which the respondents may rationally base a decision that segregation from the main prison population is the only way to resolve the security problem they pose. These affidavits have demonstrated to the satisfaction of the court that there are such reasonable grounds to believe that segregation is necessary in this case. The history of each, including the crimes of which they have been convicted and their disciplinary history as prisoners, is very striking and would give cause for alarm to anyone responsible for their security and that of those with whom they would normally congregate. 6.8 Minimum interference and proportionality seem to be interlinked in this case. By this, I mean that the proportionality of the response (the segregation) must be judged by balancing both its effect on them and the requirements of security. All three claim to have suffered substantial effects on their mental equilibrium. They rely upon the report of their psychologist, Dr. Kevin Lambe. He reviewed correspondence from their solicitors and interviewed each applicant. I am satisfied that the three applicants each misled Dr. Lambe in recounting the history and conditions of their imprisonment. Nonetheless, I note that Dr. Lambe concluded that the first applicant was at “significant risk of developing a serious mental illness”, the second was “at risk of developing an enduring change in personality” and the third was not suffering from any mental illness but his symptoms could be described as “psychiatric” in another person. He was depressed and afraid he was going crazy. I do not think these effects on the three applicants should be considered as anything other than serious even allowing for their misleading Dr Lambe as to their history. Mr. Murphy himself expressed unhappiness at their segregation. The effect described by Dr. Lambe seems the inevitable consequence of this or any segregation of a small group of prisoners from the general population of the prison. However, their segregation, although a most undesirable measure, seems the minimum necessary to ensure the safety of the prison and its inhabitants. Their interaction with other prisoners and prison staff seems at the very heart of the risk they pose. That being so, it appears their segregation is proportionate because it is rationally based, is clearly connected to the objective pursued, it is not arbitrary and it is the minimum interference because its very nature i.e. segregation is required by the threat they have posed and continue to pose to the safety and security of the prison population. Moreover, it is planned to move the applicants into a new unit, number five. This unit has additional facilities including a full gym, kitchenette and a large classroom. They will have a yard to themselves and will be unlocked to the same extent as the general prison population. 6.9 As noted above, the segregation involved has now moved well beyond the maximum 21 days envisaged by rule 62(9). The consequential provision in rule 62(9) is that any extension of the period of removal (segregation) must be authorised in writing by the director general. No provision is made for review in the rules where the authority to remove is transferred to the director general. These rules, however, must be read in a constitutional manner and therefore it seems to me that some form of review analogous to that provided by rule 62(4) must be read into rule 62(9) so as to render lawful any authorisation given thereunder. It seems to me that the director general ought to review any removal ordered under this rule at least once every three months or upon request by the prisoner or his legal advisers providing such requests are not made vexatiously. Such review ought to be carefully recorded and should comply mutatis mutandis with the provisions set out in rule 62(6), (7) and (8). The director general should give the prisoner or his legal advisers the opportunity to consider the grounds advanced for further removal prior to authorising any continuation of their removal. The prisoner or his legal adviser should be notified promptly by the director general of his decision together with the reasons therefor. Full, detailed records of this process should be accurately kept so as to assist the court in any further application in considering the lawfulness of continuing segregation. As to review by an independent judicial authority in cases of prolonged isolation in solitary confinement; such confinement is not in issue here. It is however open to any prisoner to appeal to the courts for an appropriate declaration and other orders where the terms of his imprisonment are not in accordance with his constitutional rights. Such review can consider the proportionality of any measure restricting his constitutional rights (see Meadows v. Minister for Justice, Equality & Law Reform [2010] 2 IR 701). 6.10 Thus, it seems to me that the continuing segregation of the applicants is justified in the light of the Constitution and meets the standards set by the European Court of Human Rights provided a review by the director of prisons, such as is outlined above, is carried out by the director general of prisons. The first of these should be carried out three months from today. Save for a declaration which may be made on consent that the detention of the applicants from 26th January, 2013 to 25th October, 2013 was not in accordance with rule 62 of the Prison Rules, none of the other reliefs sought may be granted.
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