THE HIGH COURT
HC 208/04
JUDICIAL REVIEW
[2001 No. 779 J.R.]
BETWEEN
PATRICK HOLLAND
APPLICANT
AND
THE GOVERNOR OF PORTLAOISE PRISON
RESPONDENT
JUDGMENT of Mr. Justice William M. McKechnie delivered on the 11th day of June 2004.
- Patrick Holland, the above named applicant in these judicial review proceedings was convicted by the Special Criminal Court on 29th November, 1997 of certain offences relating to the possession and sale and supply of drugs. He was, by that court on that date, sentenced to 20 years imprisonment. Having appealed both conviction and sentence, the Court of Criminal Appeal on 15th June, 1998 affirmed his said conviction but reduced the imposed sentence from one of 20 years to one of 12 years. He is currently serving this sentence in Portlaoise Prison.
- Mr. Holland claims that he is the subject matter of a miscarriage of justice, in that it is alleged by him that certain members of An Garda Síochána deliberately withheld vital documents from both the Special Criminal Court and the Court of Criminal Appeal which documents, if produced, would have demonstrated in his opinion, that the main prosecution witness called against him committed perjury and secondly that certain "alleged" admissions made by him whilst in garda custody were forged and concocted by one or more members of the an Garda Síochána which members were the same as those who "collaborated with other Gardaí, in the McBrearty case in Donegal". This latter reference is to events and circumstances involving, inter alia, some members of the Gardaí in Donegal whose alleged activity is presently being inquired into by a tribunal inquiry presided over by Mr. Justice Morris. The applicant, therefore, seeks access by way of correspondence to and with, and by way of visits from the media whom he hopes to interest, and therefore encourage to investigate, by means of their chosen profession, this alleged miscarriage of justice. If successful he hopes by this and other means to gather sufficient evidence which would merit a serious review of his case under the Criminal Procedure Act, 1993. It is the outright refusal of the respondent Governor to permit any communication, by either means with him, at Portlaoise Prison that gives rise to this application.
- It should, immediately, be said that what has been urged by Mr. Holland is and remains solely at allegation stage and is set in the context of a conviction by a court of first instance and the rejection of his appeal by the appellate court. There are also a set of circumstances in which the alleged members of the An Garda Síochána have not been either identified or given any opportunity to refute or otherwise comment on these suggestions. Accordingly, this court expresses no view whatsoever on the truthfulness or accuracy of these allegations and wishes to say that no adverse imputation should be attributable to any of the Gardaí in question. Subject to such observations, however, and purely for the purposes of setting out the background and establishing the foundation for this application, it must be noted that no suggestion has been made on behalf of the respondent that the activity of the applicant lacks bona fides or is designed for some criminal or illegal purpose or is driven by a desire to create unrest whether the prisoner or otherwise has some ulterior motive.
- On 11th April, 2001 the applicant sought permission from the Governor to communicate by way of letter with RTÉ in respect of a Prime Time programme on the "arms trial" which dealt with an allegation of non-disclosure of documents in that historic case. His request was refused and the intended letter returned to him. On 5th or 6th November of the same year, with the precise date not being relevant, and which I am taking as the 6th, the applicant also requested permission to again send a letter to the same television programme broadcast by RTÉ. Mr. Thomas Dormer, Deputy Governor acting on behalf of the respondent, refused this request and noted the same in the Governor's book. The relevant entry under the column "Decision" simply recorded the word "refused".
- Mr. Holland, who originally appeared in person, obtained leave from Ó Caoimh J. on 5th December, 2001 to seek various reliefs on certain grounds which was not specified in the statement grounding the application, but rather in the accompanying affidavit of the applicant, which in truth was more in the form of a submission on law rather than an assertion of fact. The statement of opposition and the replying affidavit of the Deputy Governor, Mr. Thomas Dormer, were filed in response. Mr. Holland then replied by way of a further affidavit sworn on 20th January, 2002. At some unspecified date in or towards the summer of that year, the applicant obtained legal representation which, as a result of reviewing the documentation, issued what appeared to be a further set of judicial review proceedings between the same parties arising out of the same subject matter as the within proceedings. Ultimately matters were partially rectified by the applicant obtaining from this court an order on 21st October, 2002 wherein he was granted liberty to file and serve an amended statement and also further affidavits. The original statement of opposition, which had already been amended purely for typographical reasons, and the said affidavit of Mr. Dormer were taken by the respondent as being adequate to deal with this latest amendment.
- Accordingly, the applicant now seeks firstly an order of certiorari quashing the decisions of the respondent made on 11th April, 2001 and the 6th November, 2001, secondly a declaration that the Governor's refusal pursuant to r. 59 of the 1947 Prison Rules to allow him visits by a journalist and members of the media is unlawful and ultra vires as the refusal is discriminatory, arbitrary, unfair and unreasonable and thirdly a declaration that the application of rr. 59 and 63 of the said Prison Rules, as they relate to the applicant's access to journalists and the media is so unreasonable as to be ultra vires and void.
The grounds relied upon in support of these reliefs are as follows:
"(A) That the refusal to grant access by prison visits to journalists and members of the media was based on general and non specific policy considerations, and not on an individual determination of the applicant's situation.
(B) That the 1947 Prison Rules, which have not been amended or revised, are in breach of the applicant's constitutional rights under Articles 40.6.1.(1) (the right of the citizen to freely express their convictions and opinions),
(C) The decision by the respondent amounts to a fetter on the applicant's right of access to the courts for the purpose of proving that there has been a miscarriage of justice in relation to his conviction and sentence for the possession of drugs.
(D) The application of the 1947 Prison Rules by the respondent is in breach of the applicant's constitutional rights as provided for in Article 40.3.2 (The State shall … in the case of injustice done, vindicate the life, person, good name and property rights of every citizen).
(E) The refusal of the applicant's request by the respondent was unreasonable and disproportionate so as to be ultra vires and in breach of the rules of natural and/or constitutional justice".
- Issue is joined with the applicant through the statement of opposition, which contends that the refusal decisions were made pursuant to rr. 59 and 63 of the Prison Rules, that the denial of access to the media was reasonable and was a consequence of his lawful imprisonment and that the interference with his correspondence, by reading and if necessarily by total or partial censorship, was also justified. The reasons why the Governor decided, as he did under the aforesaid rules were on the grounds of security and good order within the prison.
These general reasons are elaborated upon by the Deputy Governor, Mr. Dormer, in his replying affidavit and, in particular at para. 7 thereof. This paragraph, for a fuller understanding of the respondent's position should I feel be quoted in full: It reads "I say it was apparent from the manner in which the applicant made his request (that is on 6th November, 2001) that he was already aware of the policy of the prison on direct access to the media. I say that he did not request further clarification from me at that time. However, I am prepared to furnish the reason for the refusal to allow direct communication by prisoners with the media, which is that that (sic) it has then the longstanding policy of the Irish Prison Service not to allow prisoners direct access or communication with the media. The Irish Prison Service has taken the view that it is not in the interests of security or good order within the prison to permit prisoners to conduct campaigns through the media because of the potential to cause disruption within the prison. In addition to the concerns about the threat to the good order and security of the institution there would be concern about the real possibility that victims or their families may be traumatised by the publicity being given to the perpetrator. Whilst the applicant might argue that this is not an issue in this case from a prison operational aspect one absolute requirement is the consistency of treatment of all prisons. The Irish Prison Service is of the view that for the smooth and orderly running of prisons it is appropriate to have such a policy."
It is, therefore, apparent from this extract that for some unidentified but evidently long period of time, the prison service has adopted as a matter of policy this position on the interaction between prisoners and the media.
- It would I think be useful, to identify precisely what the applicant is seeking and what precisely the respondent's position is.
Mr. Holland is seeking access to the media, by way of visits and letters for the purpose of attempting to secure their support, by public media presentation, in order to highlight what he says has been a miscarriage of justice in his criminal case. He hopes to interest the investigative skill of the media so as to further the evidential material which, if it should become available, would be used by him to challenge the safety and security of the conviction. He is not seeking general access or access to conduct a business, to express political views, to talk about or even mention prison life or security matters, to discuss fellow prisoners, to communicate with criminals or to engage in any unlawful or illegal conduct, behaviour or activity. His application is thus strictly confined.
Moreover, he is not seeking to excuse the right unconditionally. He has no objection to the Governor putting in place all reasonable means to ensure that his contact is so restricted. In fact with regard to visits, he has stated at para. 43 of his affidavit, sworn on the 19th November, 2001, that any such meetings can take place in both the hearing and sight of prison staff, who in such circumstances could immediately terminate the visit if the subject matter of the discussion exceeded permissible limits. In more general terms, he has repeated his willingness to abide by all reasonable conditions with regard to such visits; see para. 9 of his affidavit sworn on the 25th day of June 2002. By analogy, I am taking it that he has no objection to r. 63 being operated, with regard to correspondence, in a way which would ensure that the content does not touch upon the matters herein mentioned.
The Governor's position is based on a long-standing policy which policy drives both his interpretation and working of rr. 59 and 63. The policy he says, is that of the Irish Prison Service and is based on the interests of security and good order within the prison, and on the desire to prevent any further trauma to victims and their families. In addition, he says that there cannot be any scope for individualisation, because of the absolute requirement of consistency of treatment as between all prisoners.
The above I believe is a reasonable, though brief representation of the parties respective positions, on the issues, which form the subject matter of this case.
- Rule 59 of the Rules for the Government of Prisons, 1947 (S.I. No. 320 of 1947), reads as follows:-
"59(1) Communications between prisoners and their relatives and respectable friends by visits and letters will be allowed in accordance with following rules, subject to restrictions imposed for the maintenance of discipline and order in the prison.
(2) A prisoner will not be allowed to communicate with his friends when not entitled to do so by the rules, except by special permission; but, under urgent or pressing circumstances not admitting of delay, the Governor may grant permission, which he shall record in his journal.
(c) A prisoner on conviction …
(4) A prisoner a person on conviction may immediately on reception into prison … Afterwards he shall be allowed to communicate with his relatives and respectable friends by letter and to be visited by them in the prison at such times as may be prescribed by the Minister. Not more than three persons shall be admitted to visit a prison at one time. No other person shall be allowed to communicate with a prisoner except by special authority. These privileges may be forfeited at any time for misconduct or breach of regulations of the prison.
(5) In addition to the above privileges, the Governor may allow any prisoner, entitled to write a letter, to receive a visit in lieu thereof; and may allow any prisoner entitled to a visit to write a letter and receive a reply in lieu of such visit, should his friends be unable to visit him; and also may allow any prisoner to write a special letter and to receive a reply under any of the following circumstances:-
(a) The death or dangerous illness of a near relative
(b) To give instructions as to his business or family affairs of an urgent nature.
(c) To make arrangements for obtaining employment or assistance from friends on release.
(6) The Governor may at any time communicate to a prisoner or to his friends, any matter of importance to such prisoner, in case he should not entitled to write or receive a letter.
(7) A barrister or solicitor conducting any legal proceedings …
(8) …
(9) …
(10) …
(11) …"
- Rule 63 of the same Order is in the following form:-
"(63) Every letter to or from a prisoner shall be read by the Governor, or other responsible officer deputed by the Governor, and initialled by him; and if the contents are objectionable, it shall not be forwarded, or the objectionable part shall be erased, according to discretion. The Governor shall use his discretion in communicating to or withholding from a prisoner at any time the contents of any letter addressed to the prisoner, but shall note in his journal every case in which he thinks it proper to withhold a letter which, according to the rules, might be communicated to or written by a prisoner".
- Mr. Edward Walsh SC, on behalf of the applicant, made the following submissions:
(a) The rejections by the respondent were contrary to natural justice in that they constituted a blanket refusal given in accordance with a longstanding policy and were not based or reached on any probative evidence. As a result of this process Mr. Holland was deprived of any fair or proper hearing with no individual application being given to his requests. No attempt was made by the Governor to ascertain whether or not the request might be permissible under the Prison Rules, or whether the request constituted an exception as provided for in such rules or whether the imposition of conditions would be a sufficient safeguard for the purposes of maintaining the authority, order and discipline of the prison. Accordingly both decisions and the manner in which each was arrived at, were a violation of the applicant's rights.
(b) Given the fact that the established criminal process had been concluded in the case of Mr. Holland, this is by his conviction having been upheld on appeal, a generous and wide interpretation should be given to the prison rules in the context of natural justice in order to facilitate the applicant in his attempts to establish a miscarriage of justice. McDonald v. Bord na gCon [1965] IR 217 and Glover v. BLN Limited [1973] IR 388 were cited in support of this proposition.
(c) The reaction and response of the respondent to the requests so made were disproportionate in the circumstances. The applicable law in this jurisdiction is set forth in the judgment of Costello J. in Heaney v. Ireland [1994] 3 IR 593 and in particular at p. 607 of the report.
(d) The decision of the respondent made on his behalf by the Deputy Governor was, by reason of the latter's long service in the force, effected by a degree of institutional bias and accordingly on that basis alone the decisions should be set aside. See O'Neill v. Beaumont Hospital Board [1990] ILRM 419.
(e) The application of rr. 59 and 63 by the Governor constituted a violation of the applicant's entitlement under Article 40.6.1 of the Constitution as the same amounted to an unwarranted and disproportionate interference with his right to express freely his convictions and opinions.
(f) Equally so his rights under Article 40.3.1 of the Constitution were also breached in that even though a convicted prisoner he nonetheless retained all his constitutional rights save for those which are expressly or impliedly removed from him by reason of his lawful incarceration. The operation of rr. 59 and 63 constituted an unwarranted interference with his right of access to the court and his right to communicate. This right is basic as was pointed out by Barrington J. in Irish Times v. Ireland [1998] 1 IR 359 and finally,
(g) Article 10 of the European Convention of Human Rights was also referred to, but since at the time of hearing it had not been directly incorporated into our domestic law, it was not strongly pressed or relied upon.
Several authorities were opened of Mr. Walsh SC,: those included Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223, McDonald v. Bord nag Con [1965] IR 217, Glover v. B.L.N. [1973] IR 388, Desmond v. Glackin ROI [1992] ILRM 490; in addition two further English cases were cited R v. Secretary of State for the Home Department, ex parte Leech [1993] 4 All ER 539 and R v. Secretary of State for Home Department, ex parte Simms [1999] 3 All ER 400. This last mentioned case was heavily relied upon as being almost directly in point and as being one which it was strongly urged should be followed by this court.
- Mr. Hugh Mohan SC on behalf of the Governor responded to the submissions advanced on behalf of the applicant. He said that the complaint relating to the alleged failure to give proper reasons for the decisions, was groundless in that, at all relevant times, the applicant was well familiar with the prison rules and its policy of preventing direct communication between members of the media and all prisoners. This, he claimed, was fully supported by the affidavit of the Deputy Governor and, in particular, by para. 7 thereof. Secondly, he relied strongly on the decision of Costello J. in Kearney v. The Minister for Justice, Ireland the Attorney General [1986] 1 IR 116 in which the learned trial judge held that r. 63 of the Prison Rules, as interpreted and thus applied by the Governor, was not unconstitutional. He went on to quote the following passage from p. 20 of that judgment which, in his opinion, outlined the proper test which should be followed in this case:-
"The approach of the courts in both these cases [this refers to two cases from the U.S.] to the question of the censorship of prisoners' correspondences is similar to that which I have adopted in this case. As stated in Procunier –v- Martinez (1973) 416 U.S. 296 at p. 413:-
'We hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorising mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendments freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.'"
- Counsel also referred to the ex tempore judgment of the Supreme Court given by Finlay C.J. on 9th July, 1993 in a case involving the same applicant against the Governor of Mountjoy Prison. That judgment, which again dealt with r. 63 of the Prison Rules accepted that the security and good discipline of the prison justified the existence of that Rule. The learned Chief Justice, however, did say in that case that when the Governor decided under r. 63 to prevent a letter, written by a prisoner, being communicated to an outside addressee that he should give to the prisoner in short form the reasons for his decision.
Reliance was also placed on a passage from McDermott on Prison Law where at p. 141-142 the author said:-
"Irish Courts have made it clear that a prisoner must be given reasons for the censoring of his correspondence. In Hutchinson –v- Department of Justice (Unreported, Supreme Court, ex tempore, October 16, 1992) the applicant sought leave to apply for an order prohibiting the respondent from withholding or intercepting his mail. He alleged that a letter he wrote to one of his relatives complaining about prison conditions was never received and that he had not been informed of which letters were or were not sent nor of the non-sending or erasure of any part of a letter.
In the High Court Murphy J. refused to grant leave but this decision was reversed on appeal by the Supreme Court. Finlay C.J. stated:
'I am satisfying that prima facie a person who is a prison serving a sentence must not be incommunicado and he has a general right subject a prison discipline to communicate with persons outside the prison. That being so it seems to follow that at least this applicant should be entitled to information or may be entitled, if there is truth in the allegations he makes, to information as to what letters are not being sent out and some very short reason why that is so
… a failure to do this would be outside the powers of the Governor of the prison as contained in rule 63 having regard to the right of a prisoner not to be held incommunicado'"
- In addition to the above, it was strongly urged that the policy adopted by the Governor in refusing direct access between a prisoner and the media, either by way of correspondence or visits, was necessary so as to prevent disruption within the prison and so as to maintain good order, discipline and security within. Such a refusal was reasonable as it also leaves untouched prisoners rights of access to his family and friends, to his legal advisers and also to his Dáil representative.
Further, it was submitted that this court should approach the case on the basis of ascertaining whether or not the Governor's policy constituted "an irrational decision" within the meaning of O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 at p. 70 and if that test was applied then, in accordance with correct legal principles, the court should conclude that the evidence falls far short of what is required in order to satisfy that threshold.
And finally, it is important to observe that the respondent did not argue for a denial of the right of the applicant prisoner to access the media simply as part of his term of punishment, an argument which was advanced in R (Hirst) v. Secretary of State for Home Department & Anor [2002] 1 WLR 2929.
It should be noted that no procedural or technical point was taken about the format of the pleadings or about the date of the first refusal vis-à-vis the leave order or about the Minister's input under r. 59. Whilst it was asserted that the applicant had not provided evidence in support of the media's importance in the investigation of cases involving alleged miscarriages of justice, no issue was taken on the absence of a request for direct media contact. On the contrary, I was asked to proceed on the basis that the impugned decisions covered both correspondence and visits.
- There are two issues which might conveniently be dealt with at this stage, the first of which is whether or not this longstanding policy of the Irish Prison Service, as implemented in this case by the Governor of Portlaoise Prison, is reviewable by this court in judicial review proceedings. Though dealt with by the moving party in his written submissions, the respondents did not seriously challenge Mr. Holland's right of access to the court for this purpose. No great difficulty could arise on a challenge, to the Rules per se, as there has been numerous cases in that regard. Some of them are in fact mentioned later in this judgment. It is the challenge to the policy that obviously caused more concern. Whilst one would have to await a case in which the point became pivotal nevertheless I would be greatly surprised if this judicial organ of government, which by Article 34 of the Constitution is enjoined to administer justice, was not available to a citizen who alleges that his Article 40 personal rights have been infringed by the exercise of such a policy. If it were otherwise such a person would have no forum in which to make a case and the constitutional courts of this country would be debarred from performing one of the most fundamental duties and obligations entrusted to it, namely the vindication of such rights. Indeed, I think that this has been recognised in the decision of Murphy J. in Duff v. Minister for Agriculture (No 2) [1997] 2 IR 22 at pp. 43 and 44. Accordingly, this judgment proceeds on the basis that the relevant prison rules and their operation, via this policy, is reviewable in judicial review proceedings by this court.
- The second point which can be addressed, concerns the fact that the applicant is not seeking in these proceedings any order declaring as invalid per se, the prison rules, or in particular rr. 59 and 63 thereof, on the grounds that the same are contrary to the Constitution. Rather, it is submitted on his behalf that the manner and way in which the Governor has interpreted, and as a result has applied these rules, to the subject matter of the applicant's request, constitutes a violation of his constitutionally protected rights under both Article 40.3. (1) and (2) and Article 40.6.1 of the Constitution. This manner of challenge is, in my view, perfectly permissible. His claim, in my opinion, is in no way fatally comprised by the absence of seeking a declaration that the rules rr. 59 and 63 are repugnant to the 1937 Constitution. There is nothing preventing him from making his case in the way in which he has or from relying upon the following passage from in East Donegal Co-Operative Livestock Mart Ltd. v. The Attorney General [1970] IR 317 at p. 341 where Walsh (J). said:
"At the same time, however, the presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice. In such a case any departure from those principles would be restrained and corrected by the Courts."
This statement of principle, I have no doubt, applies to the statutory Rules for the Government of Prisons, 1947 (S.I. No. 320 of 1947) but which in this judgment, for convenience, are referred to as the Prison Rules.
As a result, but subject to the permissible legal restrictions hereinafter referred to, the Prison Rules must, if such an interpretation is reasonably open, be construed and applied in such a manner as respects and vindicates the constitutional rights of the applicant and which upholds the principles of natural justice. In addition, but again subject to the same restrictions, if the impugned decisions in this case were made not under the Prison Rules but otherwise on a lawful basis, they would equally have to respect the rights and principles last mentioned.
- Before dealing with what I consider to be the substance of the applicant's complaint could I say that, in my view, the principles enunciated in The State (Keegan and Lysaght v. Stardust Victims Compensation Tribunal [1986] I.R. 642 and in O'Keeffe v. An Bord Pleanála [1993] 1 I.R. 39 have doubtful application to the present action. These principles had, I think, their foundation in Associated Provincial Picturehouses Limited v. Wednesbury Corporation [1948] 1 KB 223 in which the following general observation were made by Lord Greene MR at p. 230 of the report, where he said:-
"It is true to say that, if a decision on a competent matter is so unreasonable that, no reasonable authority could ever have come to it, then the courts can interfere … but to prove a case of that kind would require something overwhelming … ". When considering Lord Greene's test and its subsequent interpretation by Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, Henchy J. in Keegan's case set out what the Irish position was at p. 658 of the report when he said
"I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all
decision-making which affects rights or duties requires, inter alia, that the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision."
- In the context of reviewing a decision of An Bord Pleanála, the Supreme Court, through the judgment of Finlay C.J., in O'Keeffe added, what appears to be quite an important additional element to the above quoted formulation of this principle. The learned Chief Justice said that for an applicant to succeed in quashing a decision of that authority on this ground, he would have to establish "to the satisfaction of the court that the decision-making authority had before it no relevant material which would support its decision." (See pp. 71-72 of the judgment).
It seems to me that both Keegan and O'Keeffe, but in particular the latter, were based in a factual context totally distinguishable from the present case, which case raises issues of the impugned decisions being invalid as either being outside the scope of rr. 59 and 63 and/or as constituting a violation of the applicant's constitutional rights. If O'Keeffe was to apply, it would mean that this court should ask itself whether or not the Governor had before him any relevant material which would support its decision. I do not believe that when the exercise of a fundamental right such as the right to communicate is at the core of an application that this test is either proper or appropriate. Accordingly, I do not propose to decide this case on either the basis of Keegan or O'Keeffe.
- In addition, I cannot identify within the papers any factual basis upon which it is open to Mr. Holland to argue that the Deputy Governor, who in fact made the decisions in question, was motivated by what on his behalf has being termed "institutional bias" and that as a result, on this ground, his decisions are invalid. The said Deputy Governor was implementing a rigid policy with no room for personal discretion. Irrespective, therefore, of who the decision maker was, it seems that he was obliged to comply this position. Whether in such circumstances, he was within the prison service for a very short period of time or for a very long period of time is entirely irrelevant as the conclusion which he or she was bound to make would be exactly the same. Consequently, I do not believe that there is any substance in this allegation.
This point, is of course entirely different from any arguments that the policy itself is underpinned by institutional attitude.
- That within our system of law there is a right to communicate appears to have been accepted, rather than established by Darcy J. in the State (Murray) v. Governor of Limerick Prison, (Unreported, High Court, Darcy J., 23rd August, 1978) when the learned Judge held, that as between husband and wife who were both convicted prisoners and serving long terms of imprisonment, a restriction imposed on their personal communication through the prison regulations did not render their respective detentions unlawful. The basis of such a right however was considered, in some depth by Costello J. in Attorney General v. Paperlink Limited [1984] ILRM 373 where at p. 381 he said:-
"… as the act of communication is the exercise of such a basic human faculty that a right to communicate must inhere in the citizen by virtue of his human personality and must be guaranteed by the Constitution. But in what Article? The exercise of the right to communicate can take many forms and the right to express freely convictions and opinions is expressly provided for in Article 40.6.1°.(i) But the activity which the defendant say is inhibited in this case is that of communication by letter and as this act may involve the communication of information and not merely the expression of convictions and opinions I do not think that the constitutional provision dealing with the right to express convictions and opinions is the source of the citizen's right to communicate. I conclude that the very general and basic human right to communicate which I am considering must be one of those personal unspecified rights of the citizen protected by Article 40.3.1°".
- The said Article 40.3.1° of the Constitution contains a guarantee on the part of the State "in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen".
Subsection 2 of the same article then obliges the State to protect "as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen".
Article 40.6.1°i of the Constitution on the other hand reads:
"The State guarantees liberty for the exercise of the following rights, subject to public order and morality:-
i The right of the citizen to express freely their convictions and opinions.
The education of public opinion being, however, a matter of such grave import to the common good, the State shall endeavour to ensure that organs of public opinion, such as the radio, the press, the cinema, whilst preserving their rightful liberty of expression, including criticism of Government policy, shall not be used to undermine public order or morality or the authority of the State.
The publication …"
- Costello J. was, therefore, making a distinction as to the basis of the constitutional cover for, on the one hand, the right to communicate facts and information and on the other the right to express convictions and opinions. In respect of the former, he felt that the protection was founded upon Article 40.3.1° whilst in respect of the latter it was Article 40.6.1°.i of the Constitution.
As it transpires, the Supreme Court in the later decision of Murphy v. Independent Radio and Television Commission [1999] 1 IR 12, felt that this distinction as to source was not as definite or defining as this statement might suggest, but crucially in neither that case nor indeed in any other case since Paperlink, has it ever been doubted, much less decided, that whatever its true basis might be, the right to communicate has a constitutional foundation and rightly so has been and is described as a basic or fundamental right.
- The same judge, in Kearney v. Minister for Justice [1986] IR 116 summarised what his views were on this right in the following passage which appears at p. 118 of the report. Costello J. said "In my view (a view which I expressed in some detail in The Attorney General v. Paperlink [1984] ILRM 373 and which I will summarise here) the Constitution protects by Article 40, s. 3, sub-s. 1, right to communicate as one of the personal rights which are unspecified in that Article. The right, however, is not an absolute one. It cannot be described as a right to communicate 'freely' and its exercise may be regulated by law. As to the lawful restraints which the State may impose on the exercise by a citizen of constitutionally protected rights, my views (again summarised from opinions expressed more fully in Murray v. The Attorney General [1985] I.R. 532) are these … ". Whilst such views, as last mentioned, are later referred to in this judgment, it is clear that whatever its true basis may be, the right to communicate is not an absolute right and by law its exercise can be subject to lawful conditions, restrictions or limitations.
- In 1998 and in 1999 the Supreme Court considered the interaction between Article 40.3 and Article 40.6.1.º of the Constitution in the context of this right to communicate. The later decision, namely, Murphy, can be taken as clarifying the relationship between both. In his judgment, Barrington J., having said "that the right to communicate must be one of the most basic rights of man", went on to express the view of the court, that Article 40.6.1° of the Constitution, not only covered expressions of convictions and opinions but also the facts (and presumably information) on which those opinions were based. In addition, the court "doubted" whether an applicant, in order to avail of the protection which covers the communication of convictions, opinions, facts or information, had to have as his purpose or aim an intention to influence or attempt to influence public opinion. Though, as a matter of fact, the communication emanating from Mr. Murphy could be said to constitute such an attempt to influence the public, nevertheless that requirement was not an essential pre-condition for relying upon Article 40.6.1° of the Constitution. Moreover given what Barrington J. said in the Irish Times Ltd. v. Ireland [1998] 1 IR 359, to the effect that Article 40.3 of the Constitution guaranteed not only the right to communicate fact or information but also convictions, opinions and feelings, the court concluded, on this particular aspect in Murphy, that "there is a certain overlapping between the right to communicate impliedly protected by Article 40.3 and the right of the citizens freely to express their convictions and opinions guaranteed by Article 40.6.1°" of the Constitution.
- It, therefore, seems quite clear that depending on the circumstances of any particular case, a claimant or plaintiff may be able to rely, on not only Article 40.3 of the Constitution but also on Article 40.6.1°. In the instant proceedings, it appears to me that, in all probability, Mr. Holland can rely upon both Articles in furtherance of his claim. His attempts to communicate with RTÉ involved apparently a mixture of fact, information, convictions and opinions and with the result that, by seeking to influence the media to bring to the attention of the public what he describes as a miscarriage of justice, he was undoubtedly, in a most direct way attempting to influence public opinion. Consequently, I believe that both sources of protection are available in principle to him.
If, however, I should be incorrect in this view it seems to me that for practical purposes, in the particular circumstances of this case, there is no valid distinction in the consequences which would follow from confining reliance to one or other but not both of these Articles. No issue on the facts of this case arises which could be said to involve "public order or morality or the authority of the state" as that phrase is contained in Article 40.6.1°. Therefore, in my opinion it is not necessary to conclusively decide on the preferment of one Article to the exclusion of the other.
- Mr. Holland, as previously stated, is a prisoner lawfully detained pursuant to court warrant and is serving a term of imprisonment which was imposed upon him by the Special Criminal Court as subsequently varied by the Court of Criminal Appeal. He is therefore a person whose "normal constitutional rights are abrogated or suspended" see The (State) McDonagh v. Frawley [1978] IR 131. McMahon J., in The (State) Fagan v. Governor of Mountjoy Prison (Unreported, High Court, 6th March, 1978) felt that such a prisoner, who retained his right of access the courts, could complain about any restriction or interference with those constitutional rights of his, which were "not necessary to give effect to the sentence of the court in the institution in which it must be served [emphasis added]". In other words it seems to me that what the learned judge was saying was that by virtue of a lawful sentence of imprisonment being imposed on and being served by a prisoner, that person, for the duration of his sentence had to suffer not only interference with the exercise of his constitutional right to liberty but, in addition, also had to suffer such restrictions on other constitutional rights which were "necessary" in order to accommodate the serving of that sentence in the designated prison. Unless, therefore, any such restriction or interference could be justified in this way, then despite being lawfully imprisoned, a prisoner otherwise retained and was entitled to exercise all of his constitutional rights.
- Mr. Justice Barrington discussed those problems at some length in The (State) Richardson v. Governor of Mountjoy Prison, and Ors [1980] ILRM 82. Having referred to The (State) McDonagh v. Frawley [1978] IR 131, which dealt with the Emergency Powers Bill, 1976 and thus not with a convicted person but with a person arrested and detained without conviction or perhaps even charge, he went on to express his own view on the position of a prisoner serving a lawful sentence. At p. 89 of the report he said:-
"This, however, (referring to the restricted availability of habeas corpus) is far from saying that a convicted prisoner has no rights. A convicted prisoner must accept prison discipline, and accommodate himself to the reasonable organisation of prison life as laid down in the Prison Rules. The court said that while he is serving his sentence 'many' of his normal constitutional rights are abrogated or suspended. The clear implication of this is that not all of his constitutional rights are abrogated or suspended. Examples of constitutional rights which are clearly not abrogated or suspended are the right to life or the right to the free profession and practice of religion subject to public order and morality.
Mr. Carney (Counsel) invited me to hold that a sentence of imprisonment implies only the deprivation of the prisoner's right to liberty, and leaves all his other constitutional rights intact. I cannot accept this. First, it appears to me that the right to personal liberty is such a fundamental right that its loss necessarily has implications for many other personal rights of the prisoner. But the matter must go further than this.
… A convicted prisoner, on the other hand, is undergoing a recognised form of punishment for his crime. One of the incidents of this form of punishment is that he must submit to, and is entitled to protection of, Prison Rules".
This prison rules according to Barrington J. had as their purpose the reconciliation of the need being made "for security and good order in the prison with the prisoners subsisting constitutional rights". And finally the learned judge also said that "prisoner's" subsisting rights can often be ascertained from the prison rules themselves, read in the light of the Constitution" (See pp. 91-92 of the report).
- This judgment, in my opinion, sets out in more elaborate form and in greater detail the core point made by McMahon J. in The (State) Fagan supra which was that to a convicted person serving a sentence of imprisonment, the lawful deprivation of his right to liberty was of such a fundamental nature that this denial necessarily had implications for the exercise of other personal rights by that person. Those other rights which may be affected stem from the person's detention and from the need, as identified in this case, for "security and good order" in the prison where the sentence is being served. Again, therefore, it appears to me that the rights, the exercise of which can be suspended or abrogated or otherwise interfered with are those which "necessarily" follow from the prisoner having to serve a term of imprisonment and from the requirements of the prison centre to sustain security and good order therein as between all inmates. Disregarding for a moment the scope or extent of the interference which could thus be justified, it seems to me that apart from the rights which are identifiable in this way, all other rights survive a prisoner's incarceration. If that is so, such surviving rights must be capable of exercise by him.
- In Murray v. Ireland [1985] IR 532 Costello J. when dealing with the constitutional position of a prisoner post his lawful conviction, at p. 542 of the report said "When the State lawfully exercises its power to deprive a citizen of his constitutional right to liberty many consequences result, including the deprivation of liberty to exercise many other constitutionally protected rights, which prisoners must accept. Those rights which may be exercised by a prisoner are those (a) which do not depend on the continuance of his personal liberty (so a prisoner cannot exercise his constitutional right to earn a livelihood) or (b) which are compatible with the reasonable requirements of the place in which he is imprisoned, or to put it another way, do not impose unreasonable demands on it". Wolff v. McDonnell (1973) 418 US 539 was cited as an American authority which accorded with the view just expressed. See also Kearney, supra, where at p. 118 of the report, this view was again affirmed by Costello J.
- Kearney's case is also of course of considerable importance in that the applicant challenged the constitutionality of r. 63 of the Prison Rules. In upholding the respondents submitted justification for the existence of that Rule, an important aspect of which was the Governor's method of implementing it, Mr. Justice Costello, said that his approach to the case was similar to that adopted in two cited US authorities including Procunier v. Martinez (1973) 416 U.S. 296. A very short passage from Procunier, quoted at p. 120 of the Kearney report reads "Second, the limitation of First Amendments freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved". Whether the ultimate decision in Kearney could be said to have fully articulated this limitation is not a matter of concern to me in this judgment but what is, is the clear and definite enjoinder that any infringement or restriction on the exercise of a constitutional right by a prisoner must be no more than what is "necessary or essential" for the protection of the interest or objective which grounds the justification for such interference or restriction in the first place. In Procunier it was said to be security, order and rehabilitation.
In the instant case it is said, by the Deputy Governor, to be the security and good order of the prison as well as concerns for victims and their families. I, therefore, believe that the views of Costello J. in both Murray and Kearney were that any such limitation must, not only be reasonable but also, by declaring that this approach was the same as the court's in Procunier, must pass this test of necessity; otherwise such interference cannot be justified with the result that an infringement may be declared.
- With regard to the general position of a prisoner, I endeavour to summarise what the then position was in Gilligan v. Governor of Portlaoise Prison, (Unreported, High Court, McKechnie J., 12th April, 2001). At p. 16 of the judgment the following principles are outlined:-
"(a) A convicted person differs from a person untouched by the legal process,
(b) A convicted person differs from a person arrested and detained, simplicter.
(c) A convicted person:–
(i) Must accept discipline and accommodate himself to prison life,
(ii) Must accommodate himself to a reasonable organisation of that life,
(iii) Must understand that prison life is a recognised form of punishment and he, as such, is part of that,
(iv) Must understand that his loss of personal liberty, legally provided for, inevitably attaches to it, the abolition, albeit temporarily, of some rights and the curtailment and restriction of others,
(v) Must recognise that such rights, diminished or otherwise, have their legitimacy interfered with by reason of and pursuant to the needs and exigencies of the institutional environment in which that person is detained".
I also said as White J. had in Wolff v. McDonnell (1974) 418 U.S. 539, that there is no iron curtain between the constitution and prisoners in this country and that convicted individuals continue to enjoy a number of constitutional rights, including the right of access to the courts. One can, of course, add that several other rights also continue to be enjoyed by such a person, including the right to life, to bodily integrity, the negative right not to be tortured or to suffer any inhuman or degrading treatment, the right, as Barrington J. said in The (State) Richardson supra to practice one's religion and the right to natural and constitutional justice. This enumeration is indicative only and is not in any way exhaustive.
In Gilligan, no issue arose about necessity or proportionality and accordingly there was no need to describe the essential requirements of a Governor so as to maintain security and good order, otherwise than by way of general words and general expression.
- Given that the right in issue in this case is constitutionally based, it can I think be taken that any permissible abolition, even for a limited period or any interference, restriction or modification on that right should be strictly construed with the onus of proof being on he who asserts any such curtailment. In addition, the limitation should be no more than what is necessary or essential and must be proportionate to the lawful objective which it is designed to achieve. That a test of proportionality, where relevant, is now applied when considering constitutional rights is beyond doubt. In Heaney v. Ireland [1994] 3 IR 593 at p. 607 Costello J. described this principle as follows:-
"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 …"
This doctrine equally applies to executive decisions which affect personal rights, an example of which is Gallagher v. Director of the Central Mental Hospital (No. 2) [1996] 3 IR 10. It also obtained the unconditional endorsement of the Supreme Court in Re Article 26 and the Employment Equality Bill, 1996 [1997] 2 IR 321 as well as being specifically applied by that court in Murphy v. IRTC [1999] 1 IR 12. Therefore, in my opinion, it is quite appropriate to consider in this case whether the aforesaid policy of the prison service and the operation of rr. 59 and 63, as these have been applied to the applicant, are proportionate to the objectives of the prisoner Governor, namely the maintenance of security and good order.
- Before I leave this question as to what in my view is the correct approach which this court should adopt to the issues in this case, it is interesting to note that the phraseology used by Costello J. in Heaney, is remarkably similar to that used in para. 2 of each of the Articles 8 to 11, inclusive, of the European Convention on Human Rights. Such Articles in para. 1 thereof, deal with a variety of rights and freedoms and then in para. 2 sets out the basis for any interference or restriction by a public authority in their exercise. Every limitation must be related to an interest specified in the relevant paragraph, these of course being different for each article, but all such restrictions have the common requirement of having to be in accordance with law and of having to be necessary in a democratic society. Given the way in which the European Court of Human Rights has interpreted any permitted restrictions on the exercise of these rights and freedoms, and also given its application of the proportionality test it seems to me that the case law in this jurisdiction as set forth above, is very similar to that emerging from the European Court, though of course for the purposes of this case the Convention is not yet part of our domestic law. Whilst therefore it is of importance to mention the similarity, I do not decide a case on the basis of the Convention.
- As I understand the legal position, the power of the Governor in dealing with prisoners, including the applicant, within his prison, derive solely, at least for the purpose of this case, from the Prison Rules. It has never been suggested in the written documentation or through verbal submissions that the foundation for his authority lies elsewhere. I am, therefore, somewhat uncertain as to how, on his behalf, it can be validly asserted, as it has been, that he can make a decision on Mr. Holland's request on the basis of what has been described as a longstanding policy of the "Irish Prison Service". I know of no authority, and none has been advanced, for the proposition that this body has any legal entitlement to establish a practice, or policy, which, on its own, could be used to determine the position of a prisoner. It, therefore, seems to me that in all probability the argument advanced on behalf of the Governor was to the effect that he was lawfully operating rr. 59 and 63 by and through the implementation of this policy. In other words, the legal foundation commences with the power vested in the Minister for Justice pursuant to the Acts or Regulations mentioned in the preamble of the 1947 Rules, and having exercised this power, the immediate basis of authority is in fact the rules themselves. Accordingly, if this be correct it seems that this court must examine whether or not the relevant rules can be lawfully operated, through this longstanding policy, in the manner in which the Governor did so in this case.
- Rule 59 deals with communications between prisoners, their relatives and what are described as "respectable friends" either by visit or by letter. Paragraph (1) permits such communications in accordance with the rules "subject to restrictions imposed for the maintenance of discipline and order in the prison". This presumably is the foundation for the objections said to justify the respondent's decisions. The subsequent sub-paragraphs of this rule then outlines in what circumstances such communication may be permitted but, in both sub-para. (2) and in sub-para. (4) the Governor is given a discretion to permit communications which otherwise do not fall within r. 59. Therefore, even if a prisoner could not show an affirmative entitlement within the express wording of the Rule, nonetheless he is permitted by these said paragraphs to make application to the Governor seeking "special permission" to communicate.
- Rule 63 deals with letters and in the first part of the rule confers on the Governor or a deputed officer of his, a right to read letters to and from a prisoner and if the contents are objectionable to either refuse to forward the letter or to erase the objectionable part "according to discretion". He is then also given a discretion in communicating to or withholding from a prisoner "the contents of any letter" addressed to that person. He has to make a journal entry in respect of each letter which is withheld. Accordingly, it can be seen that in respect of all requests made in relation to both communications and letters, the Governor must operate rr. 59 and 63 and in so doing is given, what appears on the face of the rules, to be a very considerable discretion. In neither rule, however, can I find any specific exclusion dealing with the media either by way of personal visits or by way of correspondence. In addition, I cannot find within the rules any provision which would entitle the Governor to adopt either the position of the Irish Prison Service (see para. 34 above) or indeed any independent policy of his own would have the effect of enabling him, when dealing with the media, to refuse every prisoner, in all circumstances, every request, no matter what the purpose of the intended communication was. On that general basis alone it is very difficult to see how the stated position of the respondent could be upheld.
Even, however, if I was to assume that the policy of the Irish Prison Service was in effect the policy of the Governor himself and was somehow sustainable under rr.59 and 63, I would then have to consider whether the operation of this blanket policy was lawful in the context of the discretion afforded to him under both Rules.
- In my view, it seems to be settled law that a person or body who has a discretion in making certain decisions can, by means of policy, guidelines or other indicative means, guide the implementation of that discretion. However, the existence of such guidelines cannot be such as to disable or deprive that person of meaningfully adjudicating on a particular issue and of exercising his discretion with regard to the decision ultimately arrived at. That this was so was confirmed by Kelly J. in Mishra v. Minister for Justice [1996] 1 I.R. 189 where at p. 205 he said:-
"In my view, there is nothing in law which forbids the Minister upon whom the discretionary power under s. 15 is conferred to guide the implementation of that discretion by means of a policy or set of rules. However, care must be taken to ensure that the application of this policy or rules does not disable the Minister from exercising her discretion in individual cases. In other words, the use of a policy or set of fixed rules must not fetter the discretion which is conferred by the Act …"
Whilst the decision-maker in Mishra was the Minister for Justice who was exercising a discretion conferred by an Act of the Oireachtas, I see no reason why the same principle should not apply in this case to the Governor who is exercising a discretion conferred by a statutory rule and order made by a Minister under powers conferred on the latter by the Oireachtas. If this be correct, it means however that the policy in question cannot have the effect of removing from the Governor the discretion conferred by rr. 59 and 63. Indeed, in a further passage at p. 206-207 of the report, Kelly J. in Mishra issued this warning:-
"That is of the essence of the exercise of a true discretion as distinct from one which has become somewhat atrophied by reliance upon a policy or rules, which although useful and permissible, may, if care is not taken, have a stultifying effect."
- I have come to the clear conclusion that even if in principle the Governor was entitled to take into account a policy emanating from the Irish Prison Service, or to have his own, this particular policy, by reason of its very scope is fundamentally at variance with the correct operation of rr. 59 and 63 and is also fundamentally contrary to a prisoner's entitlement to have a request made by him properly considered and evaluated by the said Governor. This policy, which is automatically triggered not by the nature of the request itself, had, by the identity of the addressee the effect of preventing and restraining the Governor from exercising any discretion under rr. 59 and 63, which discretion undoubtedly he has. Therefore, as the facts of this case amply demonstrate, the respondent does not concern himself with the purpose of such request, or with the underlying intention behind its making, or with its content or with what effect it might have on any of the matters said by him to justify this outright restriction. Therefore, his approach in my opinion, violates both of the rules in question as well as the legal restraint on a decision-maker, who is vested with a discretion, not to fetter his discretion. Accordingly, I have no doubt but that the decisions reached by the respondent on 11th April and on 6th November, 2001 are invalid.
Remaining with this point, it seems to me to be very difficult to say, without some sort of inquiry, whether a particular journalist does or does not come within the phrase "respectable friends" in r. 59(1). It is, in my view, impossible to do so. Nor could he rule in or out, by way of granting an exception, under rr. 59(2) and (4), a visit by a member of the media again without some type of investigation however informal. Equally so when implementing r. 63. On its face, this rule presupposes that every letter to or from a prisoner will be read by the Governor or a deputy assigned by him for that purpose. Only then can any form of censorship, let alone total refusal to forward or deliver a letter, be made and determined. But to, simply say that there shall be no visits and no communication either way, between the applicant and members of the media could not, in my view, be in accordance with either rr. 59 or Rule 63, or be otherwise sustainable in law.
- Because of the Governor's approach, it inevitably follows that there is but one reason for his refusal, which reason applies to every request made by every prisoner irrespective of difference. This illustrates the unacceptable nature of the adopted practice. In addition, however, and as a consequence it also has the effect that every prisoner who is aware of this policy, as I am satisfied the applicant was, is also aware of the reasons for the inevitable refusal. Accordingly, through this wholly unsatisfactory process I do not think it can be said that there was a breach of the applicant's constitutional rights in the Deputy Governor's failure to fully explain the reasons to Mr. Holland, even if that assertion was supported by the evidence.
It follows from the above that in my opinion, this standard method of dealing with such a request is invalid for the reasons previously given, cannot be upheld.
- The result in my view, therefore, is that the Governor is not entitled to apply the policy above mentioned and is not entitled to utilise it in the way in which he has. He must, in my opinion, give individual consideration to each request made by a prisoner to either write to or receive letters from members of the media and must likewise evaluate any application for a prison visit by members of the said media. Only then can it be said that the Rules have been operated in the manner envisaged by their provisions.
- The above would be sufficient to dispose of this action but it would leave untouched any court expression on the more fundamental point. Because of this, the parties have asked me to give some consideration to what the position might be in circumstances where it was assumed that the prisoner's requests were properly considered by the Governor but that his response thereto was to like effect which is, of course, that on grounds of security and prison discipline he was justified in coming to the conclusion that every request by every prisoner for communication, either by visit or letter, to the media should be refused. Though it is not strictly necessary, for the purposes of determining this case, to offer the views as sought and though I am reluctant to do so, nevertheless in difference to the submissions as made, I think I should at least in the general way express some opinion on those points.
- When deciding upon such a request the Governor is entitled, of course, to consider whether it should be refused or allowed and if allowed with or without conditions. This because the right is not absolute and can be regulated by law. Any such refusal or conditional acceptance must however be related to matters of security, discipline and good order within the prison. The concerns for any victim or their family simply do not arise in this case and I would offer no opinion on this ground as a potential justification. When making such a decision, I wish to immediately recognise the unique position of the respondent and acknowledge his expertise on the question of security and the like. With the result and this should be clearly stated, that it is no function of this court to make that decision for him or to substitute its own views for those of the Governor. Nor do I seek to do so in any way in this case. However, his decision and the process by which it is reached must be in accordance with law. It cannot be otherwise. Therefore, if the above assessment of the legal requirements be correct it means:-
1. That when serving a prison sentence, lawfully imposed, a prisoner must suffer a diminution or compromise on the exercise of certain constitutional rights.
2. The rights so affected, the "affected rights" for the duration of the sentence, are in the first instance his right to liberty and secondly certain other rights (i) which are affected by the loss of this right and (ii) which are consequentional on the convicted prisoner having to serve his sentence in a place of detention, namely a prison.
3. These "affected rights" are not, in my view, capable of exhaustive definition but will depend on the circumstances of each case.
4. To be lawful, any limitation, either complete or partial, or the exercise of these "affected rights" must have as their objective:-
(i) the incarceration of the prisoner so as to serve his sentence and
(ii) the maintenance of security, discipline and good order within the prison; these being the basis of the justification advanced in this case.
5. The objective underpinning of the restriction must be of such significance or value in a democratic society so as to warrant the position of overriding a right which is constitutionally based,
6. The interference on restriction:-
(i) must be rationally connected to the said objective and must not be arbitrary, unfair or based on irrational considerations
(ii) must be necessary or essential in order to achieve the legitimate aim to which it is addressed
(iii) must be not more extensive than the minimum required to achieve its intended aim and
(iv) must otherwise be proportionate to that objective.
7. Each application by a prisoner must be individually considered by the governor or his deputed officer and must be decided upon by reference to the above criteria, which is general in character and outline, and
8. The Governor, when applying rr. 59 and 63, is vested with a discretion derived from statute, and as such, while he may have regard to a policy or guidelines, he cannot rely upon either in such a way as to deprive him or otherwise fetter the exercise of this discretion.
- If the above summary accurately represents the position, then the commencement point in any consideration of the issues which arise in this case is whether or not the Governor can restrict, ether partially or fully, the applicants right to communicate with the media. In my view, there is no doubt whatsoever but that this right can be the subject matter of limitation, which can have varying consequences ranging from minimal interference to outright prohibition. What will legally justify any form of restriction, up to a complete ban, will have to depend on the circumstances of each case, though in my view any decision which is or is equivalent to a total denial must surely be capable of justification only in acute circumstances. Do such circumstances exist in this case? Or to put it more formally, is a complete bar necessary so as to enable the Governor to maintain discipline and good order within his prison and is such a ban proportionate to the attainment of these objective, the legitimacy of which is not denied.
- In my humble view, the answer is no. The only evidence advanced on behalf of the respondent is that set forth in para. 7 of the affidavit of Mr. Dormer which is quoted at para. 7 above. Such evidence constitutes no more than broad propositions of potential disruption without any details being offered by way of specific security problems which either have previously occurred or, as a matter of probability, would arise from either correspondence or from face to face meetings. These undefined potentialities, in my view, cannot be allowed to substantially undermine the constitutional rights of the applicant. Accordingly, I do not believe that the respondent has satisfied this court as to a necessity for such a blanket ban which, in my view, is entirely disproportionate to the penal objective which he seeks to maintain. This objective is one which I think is properly legitimate but, it is the means adopted to achieve its results which, in my view, are unlawful. Therefore, I remain of the opinion that this ban cannot be justified.
This conclusion is not, I believe, in any way invalidated by the acknowledged fact that, indirectly through his family, his friends and legal advisers the applicant can transmit information to the media. This, in my view, is no substitute for personal and direct contact. Indeed, there is no suggestion whatsoever that this, admittedly secondary, method of communication has ever had a negative effect on prison security or effective discipline. If contact once removed is so benign, it is all the more difficult to see how the present request could lead to such unmanageable consequences as the Governor seems to envisage.
Nor is this view disturbed by the respondent's submission that there is no sufficient evidence in this case, unlike that which was produced in R v. Secretary of State for the Home Department, ex parte Simms and Another [1999] 3 All ER 400, to demonstrate the probative value of the investigative media in the area of alleged miscarriage of justice. If the extensive documentary evidence produced in Simms is not readily available in this jurisdiction, it is perhaps because in some way the number of such allegations in this country, at least to date have not been as great as those which have emerged in the neighbouring jurisdiction. However, by passing the Criminal Procedure Act, 1993, the Oireachtas has recognised the potentiality for such cases and indeed the activation of its provisions since then, have fully justified this statutory innovation. It would be an exercise in self deception to believe that our criminal institutions are immune from such miscarriages. In my humble view, the involvement of the media and its capacity in this regard cannot I think be doubted.
- Given this view, it would not I think be proper to further offer any opinion on what interference or restriction the Governor might be lawfully entitled to impose if and when he should reconsider any request in accordance with the aforesaid principles. It is not the function of this court, to lay out what restrictions, or limitations, if any, might be justified; rather its role is to ensure that the decision maker approaches his task and performs his role in accordance with the correct legal principles. I would, therefore, not propose to offer any further comment on this particular matter, save as to say, that the conditions which the applicant submits to, are of considerable importance and are, of course, available for the Governor's consideration.
- The conclusions, above reached are not, in my view, in any way disturbed by the decision of Costello J. in Kearney's case supra. That case, had as its main focus the constitutionality of r. 63, but quite significantly the judge's decision was I believe heavily influenced by the manner in which the relevant Governor interpreted and thus applied this rule to the correspondence which Mr. Kearney put in issue. By way of uncontraverted evidence, the court was satisfied that in respect of incoming mail the Governor understood the word "objectionable" in r. 63, as referring to a matter which could endanger security but to no other matter. With regard to outgoing mail, the word was given a slightly more extensive meaning, this time to include and was applied again to matters which could endanger security but also to matters which could be said to infringe the privacy of other prisoners. In addition, where the letters in question were to or from a prisoner's solicitor, the practice was to read the correspondence only to the extent necessary to ensure that it related to legal affairs and even then, the staff in question were obliged to treat as confidential all information obtained as a result of this reading. These parameters within which r. 63 was operated were very specific and afforded to a prisoner what Costello J. obviously felt was a significant degree of safeguard.
- It can, therefore, I think be immediately seen that as between Kearney's case and the instant proceedings, the former was in reality concerned with a potential restriction or interference with the exercise of the right in question whereas in this case one is confronted with its total and absolute abolition. What might be a perfectly acceptable justification to confer the status of legality on a limitation may be entirely ineffectual to sustain an abolition, in particular one which permits of no exception, ever, irrespective of the circumstances. Indeed, even within Kearney itself, there is no guarantee that the conclusion would have been the same if the decision had to be taken against a different or variable background.
In addition, Mr. Kearney of course also sought to have r. 63 declared invalid as being unconstitutional. No such claim is made in the present case. Accordingly, that decision does not in my view determine the issues in this case. In so saying I am conscious of the fact that in Holland v. Minister for Justice and Others, (Unreported, Supreme Court, ex-tempore, 9th July, 1993) the Supreme Court in an ex-tempore judgment approved of the decision in Kearney and referred to "security and good discipline" as constituting "very good and strong justification" for r. 63. However, it should also be noted that Finlay C.J. accepted the view that prima facie the letters under scrutiny in that Holland case, might not fall into that category, thereby at least implying that some assessment of their content must be made before determining what level of restriction might be appropriate.
And finally the unique position of the media, briefly referred to above and again later referred to, was not a feature in that case.
- In the present context the respondent also referred to Breathnach v. Ireland (Unreported, Supreme Court, 11th July, 2001) a decision of the Supreme Court on an appeal taken by Ireland against a declaration made by Quirke J. to the effect "that the failure on the part of the State to provide for the applicant, as a citizen of the State amongst the prison population, the necessary machinery to enable him to exercise his franchise to vote compromises a failure which unfairly discriminates against him and (a) fails to vindicate the right conferred upon him by Article 40.1 of the Constitution of Ireland to be held equal before the law." In allowing the appeal, through the judgments of Keane C.J. and Denham J. the Supreme Court referred to the legislative provisions under which a person is entitled to vote in this jurisdiction and to the absence in Breathnach of any constitutional challenge to such measures. The court also considered its earlier decision in Draper v. Attorney General [1984] I.R. 277 in which the constitutionality of the then relevant provisions of the Electoral Acts, was upheld even though no provision was made for the plaintiff to vote, otherwise than by attending at a polling station, which by reason of his physical disability he was unable to so do. In addition, Murray & Murray v. Ireland [1991] ILRM 465 was referred to as correctly deciding that the constitutional rights of the plaintiff, who were husband and wife both serving long sentences of imprisonment, were not infringed by the respondents refusal to allow them to leave prison from time to time in order to beget children.
In my respectful view, I would distinguish Breathnach from the instant proceedings in that the background statutory provisions and the factual events and circumstances which establish the foundation of the court's decision in the former case, are entirely separate from those which apply in the present action. Indeed, there is no statutory bar which creates an injunction preventing a prisoner from lawfully communicating with the media or from receiving visits by that agency. I, therefore, do not think that Breathnach governs this case of Mr. Holland.
- Up to now I have not referred to the case of Simms, in any detail, but the decision of the House of Lords in that case definitively established what the legal position is in England, in respect of issues very similar to those which form the subject matter of this case. In Simms there were two prisoners who were serving life sentence for murder. Both claimed that they had been victims of a miscarriage of justice. In order to advance their desire to have their respective cases re-opened, they sought permission to have oral interviews with journalists. The relevant prison authorities refused to permit any such visits unless the journalists in question were prepared to sign written undertakings not to publish any part of the resulting interviews. The journalist declined to so do. As a result, both Mr. Simms and Mr. O'Brien, the prisoners in question, sought by way of judicial review to challenge the lawfulness of that policy. They succeeded in the High Court but that decision was reversed in the Court of Appeal. In the House of Lords several opinions were delivered by their Lordships who unanimously allowed both appeals and made appropriate declarations.
- Whilst the Prison Act, 1952 and the governing Regulations made thereunder are different from the provisions of the Prison Rules 1947, and whilst the House made reference to Article 10 of the European Convention on Human Rights, nevertheless there are certain expressions of opinion, in particular those from Lord Steyn, with which I would respectfully agree and which I find wholly persuasive. In particular, I readily endorse the following views:-
(a) That in a democracy the right of freedom of expression "is the primary right: without it an effective rule of law is not possible (see p. 407 of the report)"
(b) That "freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J. (echoing John Stuart Mill), 'the best test of truth is the power of the thought to get itself accepted in the competition of the market': Abrams v. U.S. (1919) 250 U.S. 616 at 630 per Holmes J. (dissent). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a break on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country: see Stone, Seidman, Sunstein and Tushnett Constitutional Law (3rd ed., 1996) pp. 1078-1086. It is this last interest which is engaged in the present case(see p. 408)".
(c) "The value of free speech in a particular case must be measured in specifics. Not all types of speech have an equal value. For example, no prisoner would ever be permitted to have interviews with a journalist to publish pornographic material or to give vent to so-called hate speech. Given the purpose of a sentence of imprisonment, a prisoner can also not claim to join in a debate on the economy or on political issues by way of interviews with journalists. In these respects the prisoner's right to free speech is outweighed by deprivation of liberty by the sentence of a court, and the need for discipline and control in prisons. But the free speech at stake in the present case is qualitatively of a very different order. The prisoners are in prison because they are presumed to have been properly convicted. They wish to challenge the safety of their convictions. In principle it is not easy to conceive of a more fundamental function which free speech might fulfil (see p. 408 of the report)."
- In addition to these observations which I firmly believe are of equal validity in this jurisdiction, (notwithstanding the difference in the factual backgrounds as between Simms and the present case) Lord Steyn also went on to review the evidence of the role which is played by investigative journalism in cases allegedly involving a miscarriage of justice. He was in no doubt whatsoever about the value of this mechanism by which prisoners can at least explore, if not further their individual grievances. Again, whilst the evidence in the present case is significantly less detailed than that which presented itself before their Lordships, nevertheless I believe that this court is entitled to take the view that such an agency as investigative journalism is and can be a productive and probative vehicle in the overall administration of justice.
I would, therefore, respectfully adopt the aforesaid views of Lord Steyn.
- In conclusion, for the reasons given, I would set aside the relevant decisions of the respondent Governor.
