The Gazette 1978

Courts and that this necessarily entailed a right through the citizen's solicitor, that even if such a right existed it did not require the expression "his Solicitor" or "the citizen's Solicitor" to be interpreted as meaning the Solicitor of the prisoner's choice. {Note: In reference to the submission made on behalf of the Plaintiffs that very few Solicitors out of the large number practising in the State were prepared to engage in criminal work and that hardship would be caused by the elimination of even one of those who were prepared to act, McWilliam J. commented that if this was correct and he was not satisfied that it was, it would be a matter to which the Incorporated Law Society ought to give earnest consideration as part of its responsibility to the public). (3) That the objection of the Plaintiff to the 1976 Rules — that they enabled the Minister to draw up a list of Solicitors who were different from the rest of their profession in that they could not be trusted to visit prisoners and that this could be done without establishing any impropriety or breach of professional etiquette or any offence on the part of such Solicitors; and although such method adopted by the Minister for dealing with the problem the Minister considered to have arisen was invidious from the aspect of the Solicitors Profession — this circumstance did not render the provisions ultra vires the Act of 1877 or repugnant to the provisions of the Constitution from the aspect of the prisoner, and that it had not been argued that the provision was repugnant to the Constitution in depriving a Solicitor of his right to practise his profession in accordance with the provisions of the Solicitors Acts. (4) That the 1976 Rules were ultra vires the Act of 1877 because they purported to give the Minister power to give directions in the interests of the security of the State apart from the regulation of the prisons and that there was no power given by Section 12 of the Act of 1877 to make rules in the interest of the security of the State unless such interest also affected the security of the prison and the rules were required for the regulation of the prison as a prison. There were a number of respects in which the Minister might have considered the visit of a particular person to a prison to be against the interests of the security of

adviser and legal advice given by such adviser in the sight but not in the hearing of a prison officer. Section 12 of the Act of 1877 provided that the Minister may by Rules "alter or repeal the bye-laws in force for the time being for the regulation of any prison and for the duties and conduct of the Governor and other officers of the said prison, and for the classification, diet, clothing, maintenance, employment, instruction, discipline and correction of all persons confined therein, and may repeal rules so made and may make new rules instead thereof'. Section 13 of the Act of 1877 gave recognition to the difference between the treatment of persons who were unconvicted of crime and in law presumably innocent during their period in detention in prison for safe custody only and the treatment of prisoners, who had been convicted of crime, during their period of detention in prison for the purpose of punishment; and this Section further provided (S. 13 (2)) that "with respect to communications between a prisoner, his Solicitor, and friends, to secure to such prisoner as u n r e s t r i c t ed and p r i v a t e communication between him, his Solicitor and his friends as may be possible, having regard only to the necessity of preventing any tampering with evidence, any plans f o r e s c a p e , or o t h e r l i ke considerations". Rule 210 (1) of the Rules for the Government of Prisons 1947 ("the 1947 Rules"), which rule comes under the special heading of "Special Rules for Prisoners on Remand or Awaiting Trial", provides — "A prisoner awaiting trial shall be allowed to see his legal adviser any weekday at any reasonable hour in the sight, but not in the hearing of an officer". Held (McWiffiam J.) (1) that the expression "his Solicitor" in Section 13 (2) of the Act of 1877 had nothing to do with any personal relationship between a prisoner and a particular Solicitor and, provided that a prisoner was given adequate facilities to engage and employ a Solicitor and communicate with him, the exclusion of a particular Solicitor did not ofTend against the wording or the spirit of that Section and this was particularly so having regard to the provisions of Rule 3 of the 1976 Rules. (2) On the Constitutional issue that one of the unspecified rights of a citizen was a right of access to the

the State, but such visit would not in any way be against the interest of the security of the prison or be in any way required for the regulation of the prison as a prison. The Court, therefore, held that Rule 2 of the 1976 Rules in its present form was not authorised by the Statute and was bad. Incorporated Law Society and Patrick C. Moore v. Minister for Justice and Attorney General — High Court (McWilliam J.) - Unreported - 21 June 1978. STATUTE — Local Government (Planning and Development) Act 1963 — whether condition attached to Permission under Section 26 invalid, The Plaintiffs were an Industrial and provident Society formed by a group of residents and householders in the Killiney and Ballybrack area of County Dublin who brought an application to have a planning permission granted to Templefin Estates Limited, the second named defendant, declared invalid on the ground that it contained an invalidating condition. The High Court refused the application and the Plaintiffs appealed to the Supreme Court. Section 26 of the Local G o v e r nm e nt ( P l a n n i ng & Development) Act of 1963 permitted the Planning Authority to impose conditions in a development permission but required that a statement be given specifying the reason for any condition imposed. The condition in the permission in question was that "no house shall be constructed on the part of the site to the South of the culverted stream before the expiration of 3 years from the date of this Order". The reason stated in the permission was **to control and regulate the development so as to ensure that sewage disposal facilities are satisfactory in relation to residential development of the site". The Plaintiffs claimed that the reason was insufficient to support the impo s ed c ond i t i on b e c a u se compliance with the condition would not in itself have ensured that the sewage disposal facilities would be satisfactory in relation to residential development on the site. Only the Local Authority could improve the sewage disposal and they had carried out no such improvement. The three years during which the condition was to be observed had