[2018] IEHC 279
THE HIGH COURT
JUDICIAL REVIEW
[2017 No. 7 J.R. P.]
PETER BARRY
APPLICANT
AND
GOVERNOR OF MIDLANDS PRISON AND
MINISTER FOR JUSTICE AND EQUALITY
DEFENDANTS
JUDGMENT of Ms. Justice Faherty delivered on the 11th day of May, 2018
1. By order of O’Hanlon J. on 15th December, 2017, the applicant was granted leave to apply for judicial review for, inter alia, an order of mandamus directing that the respondents:-
2. The background to the within proceedings is as follows: The applicant is detained in the Midland’s Prison. On 7th November, 2017, at approximately 2:15pm, a routine operational search of G Division, which included the applicant’s cell, was commenced. The purpose of this search was to recover contraband, prohibited articles and any excess bedding and/or laundry materials. According to the respondents, this type of search occurs at regular intervals in the Midland’s Prison. On the day in question, the three landings of G Division were searched by prison staff including all cells, sluice rooms, recreation and communal areas. A substantial amount of excess bedding, towels and mattresses was removed from G Division including items removed from the applicant’s cell, namely, two duvets, two shower/bath towels and a makeshift privacy screen which covered the shower/toilet area in the applicant’s cell. The applicant retained one duvet (and duvet cover), one sheet and one shower/bath towel.
The case made by the applicant for the mandatory relief sought in the within proceedings
3. In his statement of grounds, the applicant set out the reason he had three duvets. He asserts that in or around 2014 he attended the then Midland Prison’s doctor, Dr. McFadden, and informed her that he was awaiting a double hip replacement and that he had severe back pain due to an arthritic pelvis. He asserts that Dr. McFadden instructed prison staff to provide him with an extra mattress and two extra duvets for him to lie on at night. An extra mattress was given to the applicant along with two extra soft duvets. According to the applicant, this made the world of difference to his sleeping pattern. Since the removal of the extra duvets, he now has only the double mattress and a sheet to lie on.
4. The applicant also asserts that when he was provided with his single cell in July 2016, there was a already in situ a makeshift but functional and sufficient shower curtain. This provided privacy for him from prison officers who check on inmates randomly via the observation hatch located in the cell door. The shower curtain not only provided privacy when showering but also when the applicant was using the cell toilet. This was of particular relevance to the applicant. He asserts that he is a registered disabled person, suffering from a debilitating, very personal and often embarrassing illness – Crohn’s Disease. He asserts that the first named respondent was aware of his illness from previous correspondence from him and his solicitor. He states that because of his illness, he has to use the toilet much more often because of his severe and serious symptoms in terms of bowel dysfunction. He also uses toilet facilities for the application of medication which he lists in his statement of grounds.
5. The applicant asserts that on the day of the search, when the cells re-opened, he inquired of other inmates as to whether their makeshift shower curtains had been removed. All the other inmates informed him that none of their shower curtains had been removed. According to the applicant, there are 35 cells on each of the three landings, totalling 105 cells and approximately 160 inmates. He asserts that he was the only inmate to have his toilet /shower curtain removed.
6. On the day of the search, the applicant was informed by other inmates that their sweeping brushes had been confiscated. A number of these inmates requested the return of the brushes. This request was agreed to by Class Officer Murray. As the applicant was standing in close proximity to Class Officer Murray, he informed him that his toilet/shower curtain had been confiscated and he requested the return of the item. The applicant also informed Chief Officer Lydon of the situation. The latter’s response was to inquire whether the shower/toilet curtain was a prison issue, to which the applicant replied in the negative, advising that the shower curtain was a converted duvet cover on a line of two shoelaces. The applicant asserts that Chief Officer Lydon’s response to this was to state that he would ensure that all such items were removed from all cells by the weekend. According to the applicant, this did not, in fact, happen.
7. The applicant submits that the response of Chief Officer Lydon was to expose other inmates to a lack of privacy while at the same time failing to sort out his particular situation. He had informed Chief Officer Lydon of his disability, in particular, his bowel disorder but this was ignored.
8. The applicant also maintains that since the removal of his privacy screen, he is forced to shower and apply his medications in a hurried fashion, for fear of spot checks by Prison Officers when he is carrying out such activities.
9. On 9th November, 2017, the applicant initiated his prisoner application. It was received by the High Court Central Office on 27th November, 2017.
10. The applicant explains that following the making of his application, he put up a temporary toilet/shower curtain in his cell which he put together from a redundant duvet cover provided to him by a fellow inmate and with the aid of some old shoelaces by way of a line to support the new curtain. This provided him with the privacy, dignity and protection he required. The applicant considered this a temporary comfort only as he was by then aware that the second curtain could be removed by staff at any time. The temporary shower curtain was erected on or around 11th November, 2017. According to the applicant, no action was taken in respect of this until 7th January, 2018. Prior to that, on 6th January, 2018, the applicant received O’Hanlon J’s order and judgment by way of postal delivery.
11. The applicant describes his receipt of these documents in the following terms: On the afternoon of 6th January, 2018, he was informed by a Prison Officer that he was to collect legal mail. He went to the G1 Class Office where A.C.O. McDonald handed him two envelopes. One was a brown A4 size envelope which had already been fully opened. The other mail was a standard size envelope which the applicant deduced from the window text and post mark was from his solicitor. The applicant was asked to sign the duty mail book which is standard practice. When doing so, he documented that the A4 envelope containing O’Hanlon J.’s order and judgment had been opened, which, the applicant asserts, was contrary to Rule 44 of the Prison Rules 2007-2017. The applicant asserts that the envelope containing the order and judgment had a harp on it which clearly indicated that it was from a State body. Accordingly, the envelope should only have been opened in the applicant’s presence, as per Prison Rule 44(4).
12. The applicant states that he was asked by A.C.O. McDonald to open the smaller white envelope in her presence. He did so and allowed her to glance at the document, as per the Prison Rules. He then returned to his cell and read the court documents and his solicitor’s correspondence.
The applicant states that his delight at being granted leave for judicial review was short-lived. He asserts that on 7th January, 2018, the day after he received the court documents, Class Officer Chandlers informed all cell occupants that later on that day he would clarify whether all shower curtains were to be removed from all cells on G wing as Chief Officer Lydon had ordered that this was to be done on E wing.
13. The applicant states that on 7th January, 2018, three prison officers were duly ordered to remove the makeshift shower/toilet curtains in all cells. This bolstered the applicant’s belief that his court documents had been opened in his absence and that the prison authorities had advance notice on 6th January, 2018 of the order and judgment of O’Hanlon J., particularly in circumstances where O’Hanlon J. had specifically referred to the applicant’s makeshift shower curtain. The applicant maintains that it was thus more than sheer coincidence that all shower/toilet curtains in all cells were ordered to be removed on 7th January, 2018, that being the day after the applicant had received O’Hanlon J’s order and judgment. On this particular issue, counsel for the respondents advised the Court that, as a matter of fact, the respondents received the Order and judgment of O’Hanlon J. on 2nd January, 2018.
14. The applicant asserts that as a result of the removal of all makeshift shower curtains, he was placed in a very precarious position because the other inmates were irate over the removal of their shower curtains and its consequences, namely their being forced to use the toilet and shower facilities in full view of other cell mates, and because they would now also be fully visible when showering or using the toilet to Prison Officers in the course of the latter’s observation duties. The applicant also contends that he became aware that a fellow inmate had been informed by a Prison Officer that the blame was being laid at the applicant’s door for the fact that all makeshift toilet/shower curtains had been removed since the applicant had seen fit to complain to the Court about the matter. He asserts that threats had been issued against him. While these threats have subsided some tension still remains.
15. The applicant submits that the removal of the shower/toilet curtains from the cells was a clear breach of his and all inmates’ rights under Article 40.3.1 and Article 40.3.2 of the Constitution and Article 8 of the European Convention on Human Rights (“ECHR”). He also submits that what should have been a simple but very necessary sole application to the Court by him on health and dignity grounds had now escalated, by virtue of the actions of the first respondent and selected staff, into an assault on the rights of other inmates. Accordingly, the applicant invites the Court, when deciding on his medical, privacy and dignity rights, to also consider the rights of all now affected inmates.
16. The applicant also states that because of the fear and nervousness which the foregoing events caused him, including threats from other prisoners, he was obliged to visit the prison doctor on 9th January, 2018. He was prescribed medication for stress and tension which, the applicant stated, had now abated.
17. In the course of his oral submissions, the applicant also outlined an event which occurred on 10th January, 2018. He asserts that following a work out in the gym on the morning of 10th January, 2018, he requested the Prison Officers to open his cell door (which had been locked) so that he could take a shower. He entered the shower at 10:41a.m. At 10:42 a.m, a female prison officer, who was doing her rounds, entered his cell and observed the applicant naked in the shower. Both he and the prison officer got a fright. At 11a.m., the applicant wrote to Chief Officer Lydon requesting:-
(i) that he be supplied with the name and unit number of the female prison officer who had entered his cell;
(ii) that CCTV footage of G2 wing for 10th January, 2018, from 9a.m. to 11a.m. be preserved. According to the applicant, this would show the female prison officer walking into his cell;
(iii) that the Governor would be informed of the incident; and
(iv) that the duty book for 10th January, 2018, be preserved.
18. On 16th January, 2018, the applicant’s solicitors, Byrnes Nolan, also wrote to the Governor stating that the reason for the applicant’s request to see the Governor was to request the preservation of CCTV footage and that a copy of that footage would be brought to Court for the applicant’s judicial review hearing on 17th January, 2018.
19. The applicant asserts that the letter he himself wrote to the Governor on 10th January, 2018, was handed to Chief Officer McDonald for transmission to Chief Officer Lydon. The applicant then went to the exercise yard. At 11:20 a.m., he was informed by a friend that Chief Officer Lydon had gone to his cell door, opened the hatch and photographed the applicant’s cell.
20. The photographs were produced to the Court by counsel for the respondents. They showed, inter alia, the shower area of the applicant’s cell. The applicant asserts that the photographs demonstrate that a Prison Officer viewing the applicant’s cell via the observation hatch can clearly see the applicant when he is using the toilet and/or shower.
21. The applicant contends that the respondents’ intention was to spring the photographs on the applicant in Court unaware that the applicant had been forewarned on 10th January, 2018 that photographs had been taken of his cell.
22. The applicant submits to the Court that the events of which he complains are evidence of an attitude on the part of the respondents, namely, that prisoners have no rights, which, the applicant submits, is not the case, as demonstrated by the decision of White J. in Simpson Governor of Mountjoy Prison [2017] IEHC. He submits that prisoners’ rights are being breached on a daily basis. That notwithstanding, the applicant concedes that there are some very good, professional and caring Prison Officers on duty in Midland Prison and that he has been shown understanding, compassion, respect and assistance from a number of Prison Officers over the past four years. However, he asserts that there are, what he refers to as “follow the party line”, staff who will engage in unprofessional, unlawful and oppressive behaviour towards inmates.
23. The applicant advised the Court that notwithstanding that his extra duvets and towels had been moved on 7th November, 2017, these items were in fact subsequently returned to him and were sourced by one of the more caring Prison Officers. He requests an order of the Court that they would not be taken from his again. Furthermore, and more importantly, the applicant requests that the Court direct the respondents to return to him a shower/toilet curtain/screen, and/or that a door be installed at the toilet/shower area of his cell so as to ensure that his privacy and dignity is respected when he is using the toilet and shower facilities. The applicant outlined that when sentenced in April 2014, and when he was on committal in Mountjoy Prison for a number of days, he was housed in a shared cell which had been retrofitted with a toilet and which had a half door with a gap at the top and bottom, thereby ensuring that a person using the toilet facilities cannot be observed. This is also the case in some parts of Midland’s Prison, the applicant states.
The case made by the respondents
24. In his replying affidavit sworn 16th January, 2018, Mr. Desmond O’Shea, Assistant Governor of the Midlands Prison, addresses the applicant’s complaints regarding the removal of his extra duvets and towels as follows:-
“On committal to the Midlands Prison all prisoners are issued with the standardised committal kit which contains, inter alia, the standard issue of bedding and towels. Insofar as relevant to this application this kit includes one duvet cover, one pillowcase, one bed sheet and one shower/bath towel. Duvets are assigned to a cell and there is one duvet per bed. Any additional items of this nature would be considered as excess and removed from the cell in a general search save in exceptional circumstances. Such exceptional circumstances could include medical reasons which are pleaded by the Applicant in his Statement of Grounds.
Where any medically required items are prescribed by the Midlands Prison medical team … such items are generally notified to staff. I say and I am advised that your deponent has no record of receiving an instruction and/or recommendation from the medical team the Applicant should be in receipt of two extra duvets. Further, there are no such instructions from the medical team in relation to additional towels for the Applicant.
…
While it is accepted that the additional duvets and towels are not contraband for the purposes of the Prison Rules 2007-2017, there are standard allocations of each for prisoners. As these items are not contraband, merely excess stock, no record of what was recovered on the search on 7th day of November, 2017 was kept and no further action was taken.
There is a limit to the amount of bedding and laundry permitted for prisoners in order to avoid the accumulation of a variety of items in cells which, if left unchecked, can lead to health and safety risks (such as fire hazards) or deficits in stock in the prison for other prisoners to be supplied with. Cell searches are conducted on a routine basis to prevent this. I further say and believe that the Midlands Prison is not in a position to issues items of this nature over and above the normal allocation just because a prisoner wants it. All requests for additional material are normally channelled through the medical team to make a determination on the prisoner’s requirements based on medical grounds.”
25. The respondents also put before the Court an affidavit sworn on 15th January, 2018 by Mr. Enda Kelly, a registered nurse and the National Operational Nurse Manager in the Irish Prison Service (“IPS”). Mr. Kelly avers that he has reviewed the applicant’s medical records since his incarceration in Midlands Prison in or about May 2014. He further avers:-
“Throughout the calendar year of 2017 the Applicant had 114 interactions with health care staff and all efforts have been made to reassure him and to manage his current medical condition being Crohn’s Disease.
Insofar as it is asserted the Applicant is a registered disabled person there is no record of same in his medical records with the IPS.
There are no records of the Midlands Prison medical team… prescribing extra duvets to the Applicant. Having reviewed the medical records your deponent can confirm that the Applicant requested “a thick pillow” in or about April 2015 and there have been various requests regarding his dietary requirements.
The Applicant refers in his Statement of Grounds to “medically required large towels” however, there is no record of the medical team prescribing same for the Applicant”.
26. The removal of a toilet/shower curtain from the applicant’s cell is addressed Mr. O’Shea in his affidavit in the following terms:-
“It is asserted by the Applicant that a shower curtain was removed from his cell. Insofar as it is suggested that there was a makeshift but functional shower curtain in the cell when he entered it in July 2016 I say and am advised that there is no record of such an item in place at that juncture. The practice within the prison is that once a cell is vacated, all items are removed… save for the bed, mattress and duvet (duly laundered) which remain. The Midlands Prison does not supply shower curtains for use in cells. The Midlands Prison does not allow shower curtains to be supplied by family or friends of prisoners for use in cells. The item referred to by the Applicant in the Statement of Grounds was a ‘converted duvet cover on a line or two shoelaces as a support’ which was removed from his cell on the 7th day of November, 2017.
In the area of the prison where the Applicant is housed there are no communal showers on the landing as there is a shower facility in each cell. While there are shower curtains or half doors in communal showers same does not apply for individual cells. The cell door has a hatch that can be opened to observe the prisoner [where] necessary without opening the cell door. The toilet and shower area are immediately to the side of the cell door. In order to protect the privacy and decency of the prisoners using showers, there is a privacy wall in place. This is part of the prison design and all cells in that wing are constructed in the same layout and matter. The design allows staff to observe where the prisoner is in the cell. I say that when using the toilet, the prisoner has privacy insofar that he can be seen in the toilet area, but cannot be observed using same. When using the shower, the prisoner has partial privacy. An officer can quickly and easily identify that the prisoner is in the shower area of the cell. The shower head is on the side wall therefore a prisoner may be seen standing in a side profile, partial obscured from view but still visible enough that the officer can [determine] their location in the cell. The historical reason for this is that prisoners who have attempted or contemplated suicide in their cells have often done so by tying a ligature around an object such as a tap or hook in the cell. The design of the cell is to ensure the safety of prisoners and that staff can be reasonably aware of the [prisoners’] circumstances. If a shower curtain, makeshift or otherwise, was in place, this would mean that staff may not be able to tell if a prisoner behind such a screen was in good health and not for example, attempting self-harm, without having to enter the cell.
In all the circumstances, and to ensure the efficient operation of the Midlands Prison, the relief sought compels the Respondent to supply and install a shower curtain or door in an individual cell is inappropriate and not a matter for judicial review. The Governor and your deponent have a duty to keep prisoners safe as outlined herein above, to have a shower curtain in the Applicant’s cell, or any cell, could impede the safety of prisoners. I say and believe that any direction of this Honourable Court directing that a shower curtain or screen be provided to the Applicant amounts to an unreasonable and unnecessary interference of the running and operation of the Midlands Prison”
27. Mr. O’Shea further states:
“It is suggested by the Applicant because of the removal of the makeshift shower curtain he now has to carry out all bodily functions in full view of both male and female officers while all other prisoners have their privacy protected. I say and believe that this is not correct. As set out herein above, save for short periods of time which were essential, the Applicant occupies a two-person cell on his own in order to accommodate his needs. The design of the cell is such that a prisoner is not within view of a prisoner officer when using the toilet but is partially within view when showering for the reasons outlined above. The first named respondent has due regard for the decency, privacy and dignity of prisoners and the Prison Rules provide that a search will not be conducted by a person who is not of the same gender as the person being searched. However, one of the core duties of a prison officer is the supervision of prisoners to ensure safe and secure custody. This includes the regular checking of prisoners when they are locked in their cells. The Irish Prison Service employs officers of both genders and it is not feasible to restrict officers’ duties on the supposition that a prisoner may be in a state of undress during regular observations.”
28. Mr. O’Shea avers that he has no knowledge about alleged conversations the applicant had with other prisoners about shower curtains. While a general search of G division was conducted on 7th November, 2017, Mr. O’Shea, at this remove, cannot confirm or deny whether items resembling shower curtains were removed from other cells.
29. Mr. O’Shea goes on to state:
“At all material times the Midlands Prison had made every effort to reasonably accommodate the Applicant’s needs while operating within the confines of the prison system however, the first named Respondent cannot grant every request made by a prisoner simply because they wish it. The first named Respondent retains a discretion to the manner within which the prison is managed and operated. The care of those in custody is the single most important priority and in order to achieve this it is necessary for prisoners to undergo searches, observations and restriction of the cell contents. At all material times the prison staff acted reasonably, proportionately and with due regard for the Applicant while operating within the boundaries of the prison system”.
30. It is submitted by counsel for the respondent that, albeit seeking orders directing the return and or provision to him of certain items, the applicant does not contend that there has been any breach of the Prison Rules.
31. It is further submitted that what the applicant’s is asking the Court to do is to micromanage the operation of the Midlands Prison, which is not permissible.
32. Counsel contends that no rights capable of being infringed have been infringed in the present case. It is further contended even there was an infringement of rights, the first respondent retains a discretion in the management of the prison, which has been recognised in case law. It is submitted that Mr. O’Shea has set out on affidavit reasons as to why excess duvets and towels are not permitted, save in exceptional circumstances, and why makeshift toilet/shower curtains are prohibited. The latter prohibition, in particular, relates to issues of health and safety, and concerns that the ability of prison officers to observe prisoners could be impeded or compromised if curtains or screens such as those requested by the applicant were allowed in individual cells.
Considerations
33. Albeit that the applicant has not invoked the Prison Rules, with regard to his request for an order directing that the respondents provide him with privacy screening for the toilet/shower area of his cell and return to him the previously confiscated excess bedding and towels, it is, I believe, instructive to look at the Prison Rules as to the obligations on the first respondent in these regards.
34. Prison Rule 22 provides as follows:
36. There is no case made by the applicant that this Rule was breached by the actions of the first respondent on 7th November, 2017. Rather, the case that is made is that by virtue of his particular disabilities, and the fact that he is awaiting a double hip replacement, the applicant requires excess bedding over and above the standard allocation of such items to inmates. He contends, in particular, that the extra duvets were recommended by the then prison doctor, Dr. McFadden, in 2014. The respondents deny knowledge of any such recommendation. As is clear from Mr. Kelly’s affidavit, a trawl of the applicant’s medical file since his arrival in Midland Prison did not disclose reference to any such recommendation. Clearly, if the prison doctor had recommended in writing that the applicant’s medical condition merited the provision of extra duvets and towels, the first respondent could not ignore such a recommendation. This is clear from Prison Rule 103, which provides:
“(1) Where a prison doctor believes there is a serious risk to the health of a prisoner and makes a recommendation in writing on medical grounds in relation to that prisoner to the Governor, the Governor shall, subject to paragraph (2), implement the recommendation as soon as may be thereafter.
(2) Subject to any direction of the Director General under paragraph (4), the Governor may, for the purpose of maintaining good order and safe and secure custody or on other reasonable grounds, decide not to implement a recommendation under this Rule (other than a recommendation that a prisoner, who is suffering from, or suspected of suffering from, a contagious or infectious disease or condition that threatens the health or well-being of others, be segregated in order to prevent the spread of the disease or condition) after -
(3) The Governor shall, as soon as may be after deciding not to implement a recommendation under this Rule, notify the Director General in writing of the prison doctor's recommendation, his or her decision not to implement the decision and the grounds for that decision, and any other issues or views that the Governor considers relevant to the matter.
(4) Upon receiving a notification under paragraph (3), the Director General may, after considering -
(a) the recommendation concerned,
(b) the decision not to implement the recommendation,
(c) the reasons for that decision, and
(d) any other issues or views set out in the notification,by direction in writing direct the Governor to implement the recommendation concerned either with or without modifications or affirm the refusal of the Governor to implement the recommendation. The Governor shall notify the prison doctor of the Director General’s direction.”
37. It seems to me that it is entirely open to the applicant, given that he has asserted that a verbal recommendation or instruction for the provision to him of extra duvets and towels was communicated by the prison doctor to the prison authorities, to take up the matter with the Midland Prison’s medical team for the purpose of ensuring that any recommendation that might now be made on medical grounds for the provision to him of extra duvets and towels would be done in writing, for the first respondent to act upon, subject to the discretion vested in the first respondent not to so do, as recognised by the Prison Rules. While the Court acknowledges that discretion, it is of course incumbent on the first respondent to apply the Prison Rules as fairly and humanely as possible. It is difficult to contemplate given the applicant’s medical conditions that a written recommendation from the prison doctor for extra duvets and towels for the applicant would not be acted on. However, we are not at the juncture where such a recommendation has been made. In all the circumstances therefore, I do not find that the applicant, at this point in time, has made out a case for the mandatory relief he seeks with respect to the provision to him of two extra duvets and towels. While I acknowledge that the applicant has in fact had the previously confiscated items returned to him, it is not for the Court to further comment on this, over and above what I have already set out, save to observe that on the part of some prison personnel at least, there appears to be a recognition of the applicant’s medical difficulties.
38. To turn now to the issue of the toilet/shower screen removed from the applicant’s cell in November, 2017. I note that as regards the provision to prisoners of sanitary and washing facilities, Rule 24 of the Prison Rules provides;
39. There is no argument but that the cell presently occupied by the applicant has the facilities referred to in Prison Rule 24. His cell contains a toilet and shower area. For the most part, the applicant has sole occupancy of this cell. I accept that this is for reasons associated with his medical condition. The issue with regard to the toilet and shower facilities revolves around the applicant’s contention that because of his particular disability-Crohn’s disease- his circumstances are such that he has cause to use the facilities in question more often than most. It is the applicant’s case that up to 7th November, 2017, he had in place in his cell a screening mechanism, namely a makeshift toilet/shower curtain which afforded him privacy and dignity. He submits that the removal of his makeshift screen has denied him the privacy and dignity he requires for the management of his medical condition. He contends that without the benefit of his screen or a door such as those which have been retrofitted in cells in Mountjoy, he is left in full view of any Prison Officer checking on him via the observation hatch in his cell door. He states that without the shower/toilet curtain, he has no privacy.
40. In his affidavit, Mr. O’Shea maintains that the applicant has a level of privacy. He says that there is a wall in the applicant’s cell which ensures privacy for the applicant when using the toilet and shower facilities, albeit the applicant can be seen when in the toilet and shower area. Mr. O’Shea claims however that the layout in the applicant’s cell is such that he cannot be seen when actually using the facility and, similarly, the design ensures that when using the shower the applicant has partial privacy.
41. On the other hand, the applicant maintains that the low tapered wall, approximately 2.5ft wide, which is provided by way of a screening mechanism, is not sufficient. He states that at its lowest point, the wall reaches to his hip, and at its highest point reaches to his waist. Save this wall, which he asserts does not afford privacy, the applicant says that there is a wide open area which means that without a curtain or half door, he is clearly is left in full view of Prison Officers should they happen to check on him via the observation hatch in his cell door at a time when he is using the facilities in question and/or when applying medications for his condition.
42. Insofar as there is a dispute regarding the adequacy of the privacy wall, the Court is unable to resolve that dispute. However, on balance, I am satisfied that the very existence of the wall is evidence of recognition by the respondents that a level of screening is necessary in order to respect inmates’ privacy.
43. Thus, even if the Court accepts that the privacy wall does not afford ultimate privacy for the applicant, it is apparent that other efforts have been made to accommodate his particular medical needs. I refer, in particular his present sole occupancy of a two-person cell, save for short periods of time when this was not possible.
44. The salient question for the Court is whether the circumstances of this case are such that warrant the relief sought by the applicant, namely an order directing the restoration of the screening mechanism the applicant previously had or the installation of a half door. In all the circumstances of this case, I am satisfied that the relief sought by the applicant is not warranted. I am satisfied that any such order would constitute an undue interference by the Court with the management of the Midland Prison, which is a function reserved to the first respondent under the Prison Rules. Rule 75, in part, provides:
45. In the course of his affidavit, Mr. O’Shea has set out the rationale for the layout of the cell which the applicant occupies. In particular, he asserts that if a screen such as that sought by the applicant was in situ, this would impede the ability of Prison Officers to ascertain whether a prisoner behind such a screen was in good health or otherwise. In particular, he emphasises the reason (the prevention of suicide attempts by prisoners) as to why prisoners when in their cells must be visible to Prison Officers. The Court cannot gainsay or fault the respondents’ rationale in this regard. The Court must recognise that in the management of the prison, in particular with regard to ensuring the safety and well-being of prisoners, the first respondent has a wide discretion, subject of course to the requirement to act fairly and humanely in the exercise of that discretion and in the application of the Prison Rules.
46. In the course of the hearing, counsel for the respondents referred the Court to Foy v. Governor of Cloverhill Prison [2010] IEHC 529 which held, inter alia, that a challenge to the decision of a governor of a prison could only be made where the decision was shown to both have infringed 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 have flown in the face of fundamental reason and common sense. It is further held that once a decision was made in curtailment of the rights of a prisoner, which decision reasonably related to the management of a prison, and which was not arbitrary, discriminatory or wholly unreasonable, judicial review of the decision was not possible.
47. In Foy, the applicant was a remand prisoner who had sought to quash the decision of the respondent governor who had refused, inter alia, visits in which physical contact would be allowed with the prisoner’s family. In that case it was argued that the deprivation of physical contact with a prisoner’s family was an attack on the prisoner’s rights under Article 41 of the Constitution.
48. In the course of his judgment, Charleton J. stated:
“[13] …under r. 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 2007. 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.”
49. He went on to state:
[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 2007, 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 the respondent 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.
[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 deprivation 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 2007 operate, 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 p. 89:-
“Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decision making process, for every administrative judgment would be subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every administrative problem, thereby 'unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison administration' Procunier v. Martinez, 416 U.S. 407.”
[26] It seems to me that once a decision is made in curtailment of such rights as continued notwithstanding the fact of imprisonment by way of remand or conviction, and which reasonably relate to the management of a prison and which are not arbitrary, discriminatory or wholly unreasonable, judicial review is not possible.”
50. In Walsh and Ors. v. Governor of Midland Prison [2012] IEHC 229, Charleton J., with reference to his decision in Foy, opined:
“…As to how a prison is to be conducted, that is a matter for the governor of each institution, subject to the prison rules.”
51. I am satisfied that the present application for relief falls to be considered having regard to the parameters of the Court’s capacity to intervene in the decision-making of the first respondent, as set out in Foy.
52. Accordingly, even if I were to accept the applicant’s contention that his constitutional right to privacy has been infringed, particularly in light of his medical condition, on the evidence before me, I have not been persuaded that the rationale underlying the first respondent’s prohibition of toilet/shower screens of the type sought by the applicant, or the removal of the extra duvets and towels in the absence of any written medical recommendation, flies in the face of reason or fundamental common sense.
53. As set out in Foy, due deference must be afforded to the first respondent in the management of the prison, particularly in regard to the exercise of her discretion as to how she addresses issues such as the observation of prisoners for the purposes of preventing against self-harm, and the health and safety issues which govern the prohibition of excess bedding and towels, save in exceptional circumstances, usually medical. Nor has it been established by the applicant, to the satisfaction of the Court, that the decisions taken by the first respondent to remove his shower screen and extra duvets and towels were arbitrary, capricious or unjust.
54. In his affidavit, Mr. O’Shea refutes the applicant’s assertion that he was singled out and victimised. In refuting any suggestion of victimisation, Mr. O’Shea relies on the following factors:
• The search on 7th November, 2017 included all cells in G division and their occupants;
• The applicant is a sole occupant of a two-person cell often to the detriment of other prisoners;
• All prisoners are issued with a standardised committal kit and anything otherwise is considered excess save in medically required circumstances;
• The respondents are not aware of any medical requirement for the applicant to have excess duvets and towels; and
• It is the standard policy of the prison not to issue or provide shower curtains or screens to individual cells.
55. These are sufficient indicators to negative any suggestion that the applicant was singled out or victimised. Overall, I am satisfied that the applicant has not adduced satisfactory evidence to persuade the Court that the respondent acted arbitrarily, capriciously or unjustly.
56. In the course of his submissions, the applicant sought to link the removal of the items from his cell on 7th November, 2017 to the fact that other proceedings which he had initiated against the respondents had been compromised in the applicant’s favour. Counsel for the respondents submits that those other proceedings were in fact struck out prior to the Summer of 2017 and not in October/November, 2017 as alleged by the applicant. Whatever the circumstances regarding to these other proceedings, the applicant has not put anything before the Court in this regard which could conceivably be considered by the Court as retaliatory conduct by the respondents.
57. In his second written statement, and in his oral submissions, the applicant raised concerns regarding how his court mail was dealt with on 10th January, 2018. The applicant did not in the course of the hearing seek to apply for leave in relation to this matter; in his second written statement, he describes the information therein being provided as “circumstantial”. The Court does not propose to comment further on the mail issue save to observe that the manner in which legal mail is to be dealt with is well set out in Rule 44 of the Prison Rules and must be respected.
58. The applicant also referred to certain requests made by him and his solicitor for the preservation of certain CCTV footage relevant, he says, to the events of 10th January, 2018, as described earlier. The Court does not propose to pronounce further on this matter, in light of the Court’s finding that the case made by the applicant for the return to him of his toilet/shower screen has not been made out.
59. For reasons which should be self evident, I do not propose to address the applicant’s submission that the Court should consider whether the rights of other inmates have been infringed by the actions of the respondent in removing makeshift toilet/shower curtains from all cells.
Summary
60. For the reasons set out herein, the relief sought by the applicant is denied
