The Gazette 1975

refused the ordinary facility accorded to a legal adviser visiting his clients, that was, to talk to his clients in the sight but not in the hearing of a prison officer. Allegation On January 20th, 1975, Mr. Shevlin had been ad- mitted on a professional visit to Portlaoise Prison to see two prisoners, Kevin Mallon and J. B. O'Hagan. It was contended and alleged, on behalf of the Governor, that on this occasion Mr. Shevlin attempted to smuggle out from one of these prisoners, Kevin Mallon, a letter or communication addressed "Marian" and that, on this attempt being discovered, Mr. Shevlin burned the letter or communication concerned in a gas fire. The Chief Justice said that as a result of this inci- dent, and having considered reports from the officers concerned, the Minister for Justice issued a directive to all prison governors to the effect that the facilities granted as a matter of course to legal advisers visiting prisoners could not be safely granted to Mr. Shevlin, and that each application from him for such facilities should be considered separately from the security point of view, having regard to the prisoners involved. "In other words, and in no uncertain manner, Mr. Shevlin was to be regarded and treated as a serious security risk," said the Chief Justice. Prison Rules 30 years old should be amended It was not possible in these proceedings to determine whether the allegations made against Mr. Shevlin were justified and, in his view, it was not necessary to con- sider how far and to what extent the facts alleged against him had been controverted or put in issue by him. Referring to the Government of Prison Rules, 1947, the Chief Justice said that nearly 30 years had passed since the rules were made, and even a casual glance over the topics and subjects dealt with would indicate a need for some revision and amendment. It was, how- ever, for a Court to deal with the law as it was, not as it might be, and he was bound to look at these statu- tory rules as they were and then to decide to what extent they applied to and resolved the matters in dispute in these proceedings. He said that in his opinion, the plain meaning of Rule 210 was to give an unqualified right to a prisoner awaiting trial to have access on any weekday, at any reasonable hour, to. his legal adviser, and to consult with him in the sight but not in the hearing of a prison officer. No other rule qualified or limited this right. "As long, therefore, as Mr. Shevlin is a solicitor in practice, and is retained as such by the prosecutors, and acts as such and in no other capacity or for no other purpose, he ought to be admitted to the prison to see his clients who are the prosecutors in this case," said the Chief Justice. To suggest that the men's rights in this regard could be satisfied by permitting them to see Mr. Shevlin in the sight and hearing of a prison officer was without question a direct contradiction of what the rules pro- vided. He would dismiss the appeal and affirm the High Court decision. Mr. Justice Henchy said that in his opinion the Governor had no power to attach any condition to a permission for a visit to a legal adviser. [The State (Walshe and McGowan) v. The Gover- nor of Portlaoise Prison and the Attorney General— Full Supreme Court—unreported— 12 December 1975.] .296

burden and handicap. The State, therefore, while recognising and safeguarding the right, permitted each woman to decide for herself, in accordance with her own circumstances and special responsibilities, whether service on a jury was a right she ought to exercise or a burden she ought to undertake. He could not see how this could be regarded as an invidious discrimination. The right to jury trial meant the right to be tried by a jury drawn indiscriminately from those eligible for jury service. This did not entitle an accused person to have a jury of a particular composition or in his or her view of a particular suitability in relation to the offence charged. In his view the arguments against the validity of the Juries Act, 1927, based on sex discrimination, failed. The Chief Justice, however, said, in relation to the provisions of the Act which laid down a minimum property qualification, that he would allow the appeal. Irregularity in confining jurors to ratepayers With regard to the thousands of criminal trials which in fact had been held since the enactment of the Constitution, the Chief Justice said the fact was that the trial had been trial by jury and no person served on such juries who was not eligible. An irregularity had, in his view, taken place in the manner in which citizens had been called to jury service, in the same way as an irregularity took place in the manner -in which the ballot papers were numbered for parliamentary elections up to the dec : sion in McMahon v. the Attor- ney-General— (1972) I.R. In McMahon's case the courts were not asked to entertain any suggestion that such irregularity invalidated previous elections nor could such a submission, in his view, have been success- fully made. The Decision of Pringle J., reported in the July- August Gazette, 1973, at page 164 is accordingly re- versed. Note: The proceedings against the plaintiffs were subsequently not proceeded with. [De Burca and Anderson v. the Attorney General— Full Supreme Court—Separate judgment by each Judge —dissenting judgment as to women jurors by CHiggins, C.J.—unreported—12 December 1975.] Prisoners may speak in prison in private with their Solicitor. Mr. Myles P. Shevlin, solicitor, as a result of a Supreme Court decision is to be allowed to consult with two clients in Mountjoy Prison—out of the hearing of prison officers. The court of five Judges unanimously dismissed an appeal by the Governor of Portlaoise Prison against a decision of Mr. Justice McMahon in the High Court directing the Governor to make facilities available to enable Mr. Shevlin to consult with his clients, John Vincent Walshe and Brian McGowan, in the sight but not in the hearing of any prison officer. Mr. Walshe and Mr. McGowan, who had brought the original application for an order of mandamus against the Governor, have been remanded in custody by the Special Criminal Court on charges in connection with the kidnapping of Dr. Herrema. The Chief Justice, Mr. Justice O'Higgins, in his judgment, said the affidavits filed on behalf of the Governor disclosed the reason why Mr. Shevlin was