High Court dismisses prisoner's habeas corpus application regarding affidavit costs and trial adjournments.

Neutral Citation Number: [2012] IEHC 511

The High Court

2012 No. 2229 SS

Between

Gerard Kane

Applicant

And

The Governor of the Midlands Prison

Respondent

Judgment of Mr Justice Charleton delivered on Tuesday the 10th day of December 2012

The applicant describes himself as a remand prisoner in the Midlands Prison. As recently as September of this year, Peart J ruled on a

similar application made by a fellow prisoner pursuant to the informal arrangement whereby prisoners are entitled to complain to the

High Court as to their detention, or the conditions thereof. Under that procedure, if it is necessary the High Court will make enquiries

as to the circumstances of the prisoner and then issue a ruling. It has never been the case that a sworn affidavit is required for this

form of application. Instead, communications are made by way of letter and these are sometimes accompanied by a detailed written

statement as to why the prisoner feels that his rights are being denied or that such benefit as he is entitled to under the prison rules

are being withheld from him.

The major complaint of the applicant is that in order to initiate this procedure he must spend €40 on getting a commissioner for oaths

to attest to the swearing of an affidavit. This is not correct. Article 40.4 of the Constitution declares that no "citizen shall be

deprived of his personal liberty save in accordance with the law." This provision is not empty and it is specifically buttressed by article

40.4.2 which allows an application testing the legality of their detention of any person within the State to be made to the High Court.

A solemn duty is cast on each and every judge to whom such an application is made to "forthwith enquire into the said complaint". If

the detention is unlawful then the High Court is required to "order the release of such person from such detention unless satisfied that

he is being detained in accordance with the law." The Constitution is a law in itself as well as being the fundamental law of Ireland.

The entitlement to this procedure is not to be adjusted or abridged by any form of rule which undermines the swift and direct right of

anyone within the State to challenge the legality of any apparent case of wrongful imprisonment or detention. Therefore, on such an

application the High Court may adopt such procedures as are suitable to a proper enquiry into the issue of lawfulness of detention.

Quite often, the prison authorities will proceed to indicate why it is claimed detention is lawful and such justification may be

challenged by contrary evidence, by submission or by cross-examination. If other procedures better suit the nature of the case,

these may be followed.

Judges of the High Court have visitation rights over every prison in the State. Under a procedure of origin that perhaps dates back to

the founding of the State, prisoners have an entitlement to write to the High Court to seek to vindicate their rights. This procedure

can be abused. It is pointless to deal with application after application where no substance is shown to any complaint that a prisoner

might make. The writing is so important, and so underpinned by constitutional imperative, that each such application is scrutinised.

The complaint of the prisoner on that ground must therefore be rejected. Insofar as the prisoner also complains that the prison staff

and the prison governor are undermining his rights, nothing in the several pages of legalese that has been presented give any hint

other than the careful application to their work of the correctional officers. It is not necessarily always correct to second-guess or to

attempt a different view from those who are actually pursuing the rehabilitation of prisoners. In Turner v Safley (1987) 482 US 78

O’Connor J stated at 89:

Subjecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seriously hamper

their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison

administration. The rule would also distort the decision making process, for every administrative judgment would be

subject to the possibility that some court somewhere would conclude that it had a less restrictive way of solving the

problem at hand. Courts inevitably would become the primary arbiters of what constitutes the best solution to every

administrative problem, thereby “unnecessarily perpetuat[ing] the involvement of the federal courts in affairs of prison

administration.” Procunier v. Martinez, 416 U.S. 407.

The prisoner also complains that his trial date has been adjourned from time to time. Specifically, he complains that O’Malley and

Sheehan JJ had either adjourned his trial or, more than confusingly, failed to adjourn his trial. Their reasons for doing so are not

articulated. It is within the province of any judge taking a list of trial dates to have regard to the importance of the pending case, the

amount of court time available in which to do it, the needs and requirements of the litigants, whether a prisoner is in custody on

remand on bail and whether other proceedings need to be given priority so that the trial which is pending may need to be put back.

There is nothing in anything which the prisoner has put before the court to indicate that there has been any improper use of the

listing power of any judge whereby this prisoner has been given any less fair treatment than any other prisoner. The resources of the

courts are limited; the demands of litigants for a swift and fair hearing are understandable; but the result is that the courts, while

doing their best, may not be able to accommodate every application. Instead, the judge dealing with a list must take into account the

various pressures on court time while assessing, as far as practicable, how much time be allocated to a case and in what order they

be heard. There is nothing in the prisoner's application which suggests any breach of this commonsense approach much less any

undermining of any fundamental right which he pleads. Furthermore, nothing in the application gives an entitlement to an order

releasing him from detention. The decision in relation to the grant of an order of habeas corpus in The State (McDonagh) v Frawley

[1978] IR 131 elucidates that principle. At p 136 O’Higgins CJ stated:

The stipulation in Article 40.1 … that a citizen may not be deprived of his liberty save “in accordance with law” does not

mean that the convicted person must be released on habeas corpus merely because some defect or illegality attaches to

his detention. The phrase means that there must be such a default of fundamental requirements that the detention may

be said to be wanting in due process of law.

Regrettably, the prisoner and those advising him, very unwisely in the view of this Court, must bear in mind the limited nature of the

court’s jurisdiction absent a substantial complaint; Foy v Governor of Cloverhill Prison [2010] IEHC 529 paragraphs 18-19.