[2018] IEHC 354
THE HIGH COURT
2018 No. 3 JRP
ANTHONY BUCK
APPLICANT
AND
THE GOVERNOR OF PORTLAOISE PRISON, THE GOVERNOR OF LIMERICK PRISON, THE IRISH PRISON SERVICE AND THE MINISTER FOR JUSTICE
RESPONDENTS
JUDGMENT of Mr. Justice Denis McDonald delivered on the 15th day of June 2018 1. The applicant is a prisoner in Portlaoise Prison, having been convicted on 20 February, 1998 of the murder of David Nugent in Clonmel in July 1996. He is serving a life sentence for that crime. He was also convicted of the robbery of David Nugent and is serving a sentence of 12 years imprisonment in respect of that offence. In his application, he mentions that his appeals against his conviction and sentence to the Court of Criminal Appeal - and from there to the Supreme Court - were both unsuccessful.
2. In these proceedings, the Applicant now seeks leave to bring judicial review proceedings against the above named respondents arising from the fact that visits to him at Portlaoise Prison by his mother have, since 20th January, 2018, been subject to the imposition of a screen which prevents physical contact between them. He also contends that paragraph 5 of the Supreme and High Court (Fees) Order 2014 (S.I. No. 24 of 2014) ("2014 Fees Order") is invalid having regard to the Constitution in that (according to the applicant) it is an impediment to the constitutional right of access to the courts and makes access dependant on a person's capacity to pay for that right, which he says "is more favourably disposed to those persons who can afford to have their legal grievances judicially determined to the detriment of those persons who cannot afford such a luxury." The applicant's complaint appears to be that there is no provision in paragraph 5 of the 2014 Fees Order which would exempt an application of the kind now made by the applicant from the requirement to pay fees. At this point it might be noted that paragraph 5 exempts certain types of proceedings from the requirement to pay fees but the applicant's application does not fall within any of those exemptions. The Applicant submits that the failure to exempt his application from the obligation to pay court fees offends the constitutional right of equality under Article 40.1 of the Constitution in that, according to him, it discriminates in favour of prisoners who can afford to pay court fees and creates inequality between such prisoners and those without the financial means to pay the fees.
3. Under paragraph 3 of the 2014 Fees Order and Schedule 1 to that Order, the applicant is obliged to pay a fee of €190 on the application seeking leave to bring judicial review proceedings together with a further sum of €20 on the affidavit grounding that application.
4. The application comes before the court in written form in accordance with the procedure which has been in place since at least the decision of the Supreme Court in Re Cremin (Supreme Court, unreported, 8th February, 1965). However, the applicant has had to pay court fees of €210 in total. As noted above, there is a fee of €190 payable in respect of an application for judicial review and a further fee of €20 in respect of the grounding affidavit.
5. The grounding affidavit exhibits a written notice of application in which the relevant facts on which the applicant seeks to rely are set out. In this judgment, I will first review the allegations made by the applicant in relation to the imposition of a screen. I will then consider his case in relation to the 2014 Fees Order.
The imposition of a screen in respect of prison visits
6. As outlined above, the applicant's complaint is that since 20th January, 2018 visits by his mother, Mrs. Margaret Buck and other members of his family have been subject to the imposition of a screen. The applicant says that when this first occurred on 20th January, 2018 he had no idea why the visit was made subject to a screen. It appears that up to that point, visits to him by his mother were not screened. He made enquiries of the staff manning the visits that day as to why he had been subject to a "screen visit". The applicant says that he was told that it arose as a consequence of an incident which had occurred in Limerick Prison where his brother John Paul Buck is a prisoner. The applicant says that he acquiesced in accepting the screen visit on that occasion in order to establish from his family what had happened in Limerick Prison. During the course of that visit, he then learned from his mother that on 10th January, 2018 his brother, John Paul Buck was brought under prison escort from Limerick Prison to a funeral home in Clonmel, County Tipperary in order to pay his respects to the applicant's late father, Anthony Buck senior, who had died on 8th January, 2018. Subsequent to that visit, John Paul Buck was found in possession of illegal substances at Limerick Prison. In his application. the applicant states that he established that the procurement of these illegal substances took place at the funeral home in Clonmel. In his statement the applicant says: -
"…the only other person in attendance during John Paul Buck's visit to the funeral home was apparently his mother, Margaret Buck. The clear implication by the prison authorities is that Margaret Buck was in some way complicit in the transportation of these illegal substances to John Paul Buck. The applicant does not accept and roundly rejects any such implication or inference that Margaret Buck was in fact involved in making these illegal substances available to John Paul Buck."
7. The applicant also makes the case that he has been receiving visits from his mother on a weekly basis since November 2009, and in that period no issue has ever arisen relating to the "smuggling of contraband into the prison". The applicant also draws attention to the fact that throughout his nine-year period in Portlaoise Prison he has been subject to mandatory drug testing. He maintains that he has never failed to provide a drug test when requested to do so and that none of these drug tests have shown any traces of drug use.
8. The applicant complains that the imposition of a screen is, in substance, an adverse finding against him and that it is an unlawful finding in circumstances where he was not given any advance notice of the governor's intention to make such a finding and where the governor failed to permit him to make submissions. The applicant submits that there has been a failure to afford him natural justice and fair procedures.
9. In support of his case, the applicant has drawn attention to the provisions of Rules 66 - 67 of the Prison Rules 2007 ("S.I. no 252 of 2007") ("the prison rules") which set down the procedures to be followed where there is an allegation of a breach of prison discipline. Rule 67 in particular requires the governor to hold an inquiry into an allegation of such a breach. The governor is also required to give notice in writing to the prisoner of the nature of the alleged breach and the prisoner is entitled to be given an opportunity to examine or have explained to him any evidence given or submitted in support of any such allegation. The prisoner is also entitled under Rule 67 to reply to any allegation and to call witnesses in evidence.
10. The applicant complains that the provisions of Rule 67 were not operated on this occasion. He also complains that it is a basic requirement of Constitutional and natural justice that he should have been given an opportunity to be heard before any adverse "finding" was made against him. He complains that the governor had no statutory authority or jurisdiction under the prison rules to make an adverse finding against him or to impose a "punitive" sanction in circumstances where he had not infringed any of the prison rules and where the requirements of Rule 67 were not complied with. He also complains that because the decision was not taken in accordance with Rule 67, he has been denied the right of appeal which is available in respect of any decisions taken pursuant to that rule.
11. For completeness, it should also be noted that the applicant makes the case that similar issues arise in relation to the decision arrived at by the Governor of Limerick Prison in relation to the disciplinary proceedings there against John Paul Buck. He says that the decision made by the Governor of Limerick Prison in relation to John Paul Buck (as a consequence of which all visits to John Paul Buck are to be subjected to a screen for a period of six months) was "superimposed in effect as adversely attaching equally to the applicant" and that this should have been communicated to the applicant and he should have the same rights under the prison rules to contest that decision. In addition, the applicant claims that the Governor of Limerick Prison had absolutely no statutory authority or jurisdiction under the Prison Rules to make an "adverse finding with punitive effect" in respect of a prisoner who was not in the lawful custody of the governor of Limerick Prison namely the applicant himself.
12. I should also record that a case is also made by the applicant that each of the respondents have acted as "judge jury and executioner in making a unilateral decision that Margaret Buck has been tried and convicted to the criminal standard". He complained that Margaret Buck has not been afforded due process and fair procedures as is the right of every citizen. However, it is well established that one person cannot seek to advance a judicial review case on behalf of another and I therefore do not believe that it is necessary in this judgment to consider the complaint made by the applicant on behalf of his mother.
13. A complaint is also made that the decision arrived at by the respondents is being implemented not because of something the applicant has actually done, but the applicant is in fact being punished for what "could in theory possibly happen". The applicant complains that he is in some way suspected of potentially being capable of being party to a conspiracy to smuggle drugs into the prison and there is no factual basis for such a "scurrilous, arbitrary suspicion".
14. In his statement, the applicant also expresses concern that this "adverse decision in relation to screening" will, in due course, be viewed adversely by the Parole Board and the Minister for Justice and will have the effect of prolonging the applicant's time in prison. The applicant submits that in such circumstances, there should be a right of professional legal representation before the governor makes a decision of this kind with (according to the applicant) such far-reaching consequences.
15. Although the applicant's case in relation to the imposition of a screen is grounded on a variety of arguments (which I have attempted to summarise above) it is clear that each of these arguments is based on the premise that the imposition of a screen involves - or amounts in substance - to the making of an adverse finding against the applicants. In my view, the applicant is mistaken in his view that any adverse finding has been made against him. It also seems to me that the applicant is equally mistaken in thinking that Rules 66-67 had any application in these circumstances. In this regard, it is important to bear in mind that Rules 66-67 are concerned with alleged breaches of prison discipline. The applicant has overlooked that there are quite separate provisions of the Prison Rules dealing with prison visits - namely the provisions of Rules 35-36. In my view, those provisions contain the answer to the applicant's complaint.
16. Rule 35(1) provides that a convicted prisoner who has reached the age of eighteen years is entitled to receive by prior appointment not less than one visit from relatives or friends each week of not less than thirty minutes' duration. However, Rule 36 regulates the manner in which these visits may take place. It is unnecessary for present purposes, to describe in detail each of the ways in which prison visits are regulated. It is sufficient to draw attention to the following: -
(a) Under rule 36(1) it is for the governor to designate the days and times of prison visits. This is expressly stated to be in the "interests of security, good order and government of the prison";
(b) Under Rule 36(4), visits to prisoners such as the applicant here "shall take place within the view and hearing of a prison officer, unless the governor otherwise directs";
(c) Under Rule 36(5) no articles can be exchanged between a prisoner and a visitor during the course of a visit except with the permission of the governor;
(d) Rule 36(6) provides that visits to a prisoner such as the applicant are to take place in "a part of the prison designated for that purpose". This is subject to a number of exceptions, for example, where the prisoner is certified by a prison doctor to be too ill to attend a visit in that part of the prison;
(e) Very importantly, Rule 36(7)(a) provides that the part of the prison designated for visits "shall have facilities to allow a prisoner and visitor to see and talk to one another but which prevent, through the use of screens or otherwise, physical contact between a prisoner and a visitor" (Emphasis added). It will be noted that this rule is in mandatory terms;
(f) However, as an exception to Rule 36(a), the governor under Rule 36(6)(b) "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". It is clear from the language of this exception that permission for physical contact (which would involve the non-use of a screen) is at the discretion of the governor and that it will only apply where the governor is satisfied that physical contact will not facilitate the entry into prison of controlled drugs or other prohibited articles or substances;
(g) under Rule 36(9) the governor may refuse to permit a visit to a prisoner where the governor believes it is necessary to do so to prevent the entry into the prison of controlled drugs or other prohibited articles or substances or to prevent a conspiracy to commit a criminal offence or where it is otherwise necessary in order to maintain good order and safe and secure custody.
(h) Under Rule (10) (a) The governor may refuse to allow a visit to take place unless a visitor permits a search of his or her person to be carried out prior to the visit staff;
(i) Under Rule 36 (10) (b) The governor may require a visitor, before any visit takes place, to consent the carrying out of a search of his or her person after the visit takes place but before his or her departure from the prison;
(j) Under Rule 36(11) A search may be undertaken for the purposes of ensuring that a visitor is not in possession of a prohibited article.
17. In my view, it is clear from a reading of rules 35 and 36 together that the only right of a prisoner to a visit under rule 35 is a right to a visit regulated in accordance with rule 36. It is equally clear from a consideration of rule 36 that the rules envisage that, in the ordinary case, a visit will take place in circumstances where physical contact between a prisoner and a visitor will be prevented through the use of screens or otherwise. While there is an exception to that rule, the exception only applies at the discretion of the governor. This is clear from the language of rule 36(7)(b) which says "that the governor may allow physical contact between a prisoner and a visitor " (emphasis added). The use of the word "may" confirms the discretionary nature of the governor's power to permit contact visits. Furthermore, it is clear from the language of rule 36(7) (b) that the governor's discretion to permit physical contact can only be exercised in favour of such contact where the governor is satisfied that such contact will not facilitate the entry into prison of controlled drugs or other prohibited articles or substances. In other words, the default position is that a screen or other device required to ensure physical separation between a prisoner and a visitor will be used. It is only in the very particular circumstances where the governor is satisfied that physical contact will not facilitate the entry into prison of controlled drugs or other prohibited articles or substances that the discretion maybe exercised by the governor to permit physical contact.
18. The views expressed by me in paragraph 17 above are consistent with the approach taken by Charleton J in Foy v the Governor of Cloverhill Prison [2012] 1 IR 37 where he said at page 42 (with reference to Rule 36(7) that: " every prison within the State is entitled to require visits … to take place without physical contact ". He also emphasised that any physical contact was at the discretion of the governor. Charleton J rejected the argument that the curtailment on physical contact which operated in that case infringed the rights of the family under Article 41 of the Constitution.
19. In these circumstances, I do not see how the applicant can be said to have any arguable basis to suggest that he has an entitlement to meet with his visitors without a screen or other impediment to physical contact. He may, of course, make a case to the governor that the governor should exercise his discretion under rule 36(7)(b) to permit physical contact between the applicant and his mother or other members of his family. However, as the rule itself makes clear, the governor is only entitled to exercise his discretion in that way in circumstances where he is satisfied such contact will not facilitate the entry into prison of controlled drugs or other prohibited articles or substances. The applicant has not said that he has made any application to date to the governor to exercise his discretion under Rule 36(7)(b). No challenge is made in these proceedings in respect of Rule 36(7). As noted above, the applicant has advanced what I believe to be a mistaken case based on the provisions of Rules 66 and 67.
20. In the context of Rule 36(7), it may be relevant to note that, although the applicant's states that he has never failed a drug test in the nine year period while he has been in Portlaoise prison, he has previously admitted that prior to his conviction in 1998 for the murder and robbery of David Nugent he was a drug dealer. I note that in the Supreme Court decision in The People (DPP) v Buck [2002] 2 IR 268 at p. 272 Keane C.J. (in the course of giving judgment on the applicant's appeal against his conviction for the murder and robbery of David Nugent) drew attention to the statement made by the applicant during the course of an interview following his detention in July 1996 by members of An Garda Síochána under s. 4 of the Criminal Justice Act, 1984. In his judgment, Keane C.J. records that, in the course of that interview the applicant admitted that he had engaged in drug dealing transactions with Mr. David Nugent in the past.
21. It may also be relevant to note that, as admitted by the applicant in his statement grounding the present application, the only other person in attendance during John Paul Buck's visit to the funeral home in Clonmel (where the applicant says the procurement of illegal substances took place) was the applicant's mother, Margaret Buck.
22. These are some of the considerations that may well be relevant in the context of the consideration by the governor of any application that may be made in the future by Mr Buck seeking to persuade the governor to exercise his discretion under Rule 36(7)(b). Ultimately, it will be for the Governor to consider all relevant circumstances in the exercise of his discretion under the rule and it would be inappropriate for me to attempt to predict all the factors that might be relevant.
23. In my view, what is clear is that the applicant is wholly mistaken in considering that there has been an adverse finding made against him. On the contrary, the imposition of a screen is simply the application of a prison rule - namely rule 36(7)(a). That rule has not been imposed to punish prisoners but to regulate the manner in which prison visits take place in the interests of the orderly conduct of such visits and in the interests of good government of the prisons.
24. I should add that I cannot see any basis on which the application of Rule 36(7)(a) governing prison visits could have the adverse consequences contended for by the applicant - such as the suggested impact on any future consideration by the Parole Board or the Minister for Justice as described above.
25. In these circumstances, I have come to the conclusion that the applicant has no arguable basis (within the meaning of the decision of Supreme Court in G v Director of Public Prosecutions [1994] 1 I.R. 374 to suggest that he is entitled to the judicial review relief which he seeks in respect of the introduction of a screen on visits by his relatives to him at Portlaoise Prison. Nor can I see any arguable basis for any aspect of the challenge which he makes to the introduction of that screen. In my view, all of the arguments which the applicant seeks to make are based on an incorrect premise. The applicant has not been the subject of any adverse finding against him. All that has happened is that the requirements of rule 36(7)(a) have been applied by the prison authorities. Accordingly, no issue arises in relation to rules 66-67. Those rules deal with entirely different circumstances where an allegation is made that there has been a breach by a prisoner of prison discipline.
26. For all of these reasons, I refuse the application for judicial review insofar as the applicant seeks the relief set out by him in paras. 1 - 9 of the prayer for relief set out in the final part of his statement grounding the present application.
The applicant's complaint in relation to court fees
27. As noted above, the applicant also contends that paragraph 5 of the 2014 Fees Order is invalid having regard to the Constitution. He makes two points in relation to it: -
(a) First, he says that the requirement to pay fees is an impediment to the constitutional right of access to the courts;
(b) Secondly, the applicant contends that, by exempting certain types of action from the obligation to pay court fees, paragraph 5 of the 2014 Fees Order infringes Article 40.1 of the Constitution in that (he says) it creates an inequitable situation between those prisoners who can afford to pay the relevant court fees and those who cannot. In addition (although this is not entirely clear from the papers), he may also seek to make the case that paragraph 5 is also contrary to Article 40.1 in so far as it exempts some types of proceedings from the obligation to pay court fees while making an application of the kind made by him subject to such fees.
28. I now deal, in turn, with each of these contentions.
The right of access to the courts
29. The applicant relies on the decision of Kenny J. in McCauley v. Minister for Posts and Telegraphs [1966] IR 345 where it was held that there is a constitutional right of access to the courts. This right, although not enumerated specifically in the Constitution, is now well established. For present purposes, it is unnecessary to explore the right in any detail. It is sufficient to draw attention to the decision of the Supreme Court in Murphy v. Minister for Justice [2001] 1 IR 95 in which the Supreme Court held, with reference to the provisions of the Supreme Court and High Court (Fees) Order 1989 (S.I. 341 number of 1989) that the power to impose reasonable charges for court services is not unconstitutional. While that decision related to the 1989 Fees Order, it seems to me that the underlying rationale applies equally to the 2014 Fees Order. The approach taken in both the 1989 Order and the 2014 Order is essentially the same albeit that the quantum of the fees imposed in 2014 has, as one would expect having regard to inflation over the course of the intervening period, increased in absolute terms. The decision of the Supreme Court in Murphy is binding on me and, in circumstances where I can see no basis on which to distinguish that case, I have come to the conclusion that there is no arguable basis for the applicant's contention that the 2014 Fees Order or any provision of it constitutes an unlawful restriction on the constitutional right of access to the courts. I therefore refuse to give leave to bring a judicial review application based on this ground.
Equality
30. The applicant's second ground of challenge to the 2014 Fees Order is that it creates inequality between those prisoners who can afford to pay court fees on the one hand, and those prisoners who cannot afford to pay such fees on the other. In my view, this is not an argument which is open to the applicant in this case in circumstances where he has himself been in a position to pay the stamp duty required for the present application. I can see no basis on which the applicant can show that he is the victim of any alleged inequality and he therefore has no standing on which to make such a case.
31. While this is not altogether clear from the papers furnished by the applicant, it may also be the case that he seeks to contend that paragraph 5 of the 2014 Fees Order involves an infringement of Article 40.1 in circumstances where it exempts certain types of proceedings from the obligation to pay court fees while requiring the applicant to pay such fees. Paragraph 5 provides that no fees shall be payable in respect of the following categories of proceedings: -
"(a) proceedings under Article 40.4 of the Constitution,
(b) proceedings under the Extradition Acts 1965 to 2012,
(c) proceedings under the European Arrest Warrant Acts 2003 and 2012,
(d) bail proceedings,
or
(e) an application (in proceedings for a criminal offence) for judicial review under Order 84 Rule 18."
32. It will be seen that each of these categories is concerned with extremely urgent matters or with matters which are connected with the criminal process and accordingly it is entirely understandable that they should be exempt from fees.
33. Moreover, in the context of article 40.1, there is no inequality involved in the exemptions granted by paragraph 5. On the contrary, every person who falls within the ambit of paragraph 5 will be treated identically. The legal rights of every person who, on the facts, falls within the ambit of paragraph 5 are the same. Persons who do not fall within paragraph 5 are unaffected by it. As has been said by the courts on many occasions, Article 40.1 does not require identical treatment of all persons without recognition of differences in relevant circumstances. It only prohibits invidious discrimination. The applicant has not shown that there has been any invidious discrimination here. The framers of the 2014 Order were entitled to treat persons in different factual situations differently. Crucially, all persons who, on the facts, fall within the ambit of paragraph 5 are treated in the same way. Persons - such as the applicant - who do not fall within paragraph 5 are treated differently; but they are in a different factual situation. They are not involved in proceedings of the same kind as those that fall within paragraph 5. Thus, there is no basis to suggest that any inequality exists on this ground.
34. I can see no arguable basis for the relief claimed on foot of Article 40.1 of the Constitution and I refuse the application for leave to bring judicial review proceedings on the grounds advanced by reference to Article 40.1.
Time limits
35. The relief sought by the applicants in this case does not include certiorari. In those circumstances, under O. 84 r. 21 (1) the proceedings ought to have been brought within three months from the date when grounds for the applications first arose. From the papers furnished to the court, it appears that the grounds first arose on 20 January 2018. The present application is dated 21 May 2018 which is outside that three-month period. As set out above, I have nonetheless considered the grounds advanced by the applicant. For all the reasons outlined above, I have concluded that the applicant has not identified any arguable ground for his application. It is therefore unnecessary for me to consider whether the application should be refused in any event under O. 84, e. 21 (1).
The order to be made
36. For all the reasons outlined above, I refuse the applicant's application for leave to bring judicial review proceedings.
