The Gazette 1981

GAZETTE

SEPTEMBER 1981

they have been tried and duly found guilty of an offence under Article 38.1: the basis for this being the operation of the presumption of innocence." Indeed, there are two passages in Comerford where Barrington J. adverted to this distinction in treatment. He quoted the recital in section 13 of the Prisons (Ireland) Act, 1877, 12 that the Prison Rules should contain "special rules" so that a clear difference is made between the treatment of persons "unconvicted of crime and in law presumably innocent" since they are in prison "for safe custody only," and the treatment of convicted persons who are being detained "for the purpose of punishment." These special rules are to ensure that the remand prisoner's detention be as minimally oppressive as possible having due regard to the necessary maintenance of order and good government in the prison. 13 Secondly, Barrington J. seems to have taken the view that if the conditions under which the prosecutor had been detained were intended by the authorities to punish him, that would have been inconsistent with his status as a remand prisoner, 14 and some remedy would appear to be appropriate in such a case. Therefore, the difference in treatment between remand and convicted prisoners is important. The United States Supreme Court also adopted the test that remand prisoners may not be subjected to punish- ment, in Bell i'. Wolfish} 5 However, the case is interesting for the further reason that even in applying the punishment test, the first justification for a common approach to remand and convicted prisoners is to be found. That justification is primarily a separation of powers argument. In Bell, the Supreme Court recognised that in carrying out its duty to hold prisoners on remand under a judicial order, the executive prison authorities are entitled to ome deference in areas such as the main tcnancc < l order and discipline within prisons. That is their area of expertise, into which the judiciary will not delve unless the authorities' actions involve, for example, an intentional decision to punish the remand prisoner. Thus, the courts will defer to the executive branch if some legitimate objective, for example the maintenance of dis ciplinc within the prison, may rationally be assigned to the deprivation being imposed on the remand prisoner. 16 A similar deferential approach had been adopted by Barrington J. in relation to the Prison Rules in general. In The State (Richardson) v. Governor of Mountjoy Prison} 1 he stated that the Rules should be viewed as reconciling the need for security and good order in prison with a prisoner's subsisting constitutional rights, and that "the prison authorities must be allowed a wide area of discretion in the administration of the prisons in the interests of security and good order." 18 A second justification for applying McDonagh to remand prisoners is the fact that the prison authorities re ccivc their jurisdiction to detain under Article 4 0 . 4 . 1° by virtue of a warrant from the judicial branch, as they do lor convicted prisoners." This is in contrast to the Gardai who also detain presumptively innocent persons, but without prior judicial intervention. The Gardai also are engaged in the active investigation of crime: the prison authorities play a neutral role. An attempt has been made above to justify similar habeas corpus review both for remand and convicted prisoners on the basis of similar operational difficulties en- countered by the prison authorities. Nonetheless, the coinictcd/unconvicted distinction arguably should result

in the judiciary providing increased remedial relief for remand prisoners. Since convicted prisoners may be sub jeeted to "punishment", it follows that the prison authorities may be allowed greater latitude in imposing restraints than they would be in similar circumstances regarding remand prisoners. 20 Therefore, mandamus might issue against the prison authorities in favour of a re mand prisoner, but the principal point remains that habeas corpus would not lie. 21 This may be contrasted with the position of a person in Garda custody who was deprived of a similar facility: habeas corpus would probably lie. 22 The State of Alternative Remedies for Prisoners Notwithstanding the fact that habeas corpus did not lie for the prosecutor in Comerford, Barrington J. went on to consider whether he could issue mandamus as an alter native in view of the breach of Rule 192. 23 However, he did not think it appropriate in the circumstances. In his previous decision in Richardson , 24 Barrington J. had decided to issue an order of mandamus against the prison governor but he allowed him an adjournment to correct the deficiencies which his lordship had found in the sanitation facilities in the prison. 25 He adopted this course even though the proceedings had been primarily dealt with as an enquiry under Article 4 0 . 4 . 2° of the Con stitution. However, he explained in Comerford that this course was exceptional, because counsel for the governor in Richardson had consented to forego a mandamus hearing which would have involved the same evidence as had been proved in the Article 4 0 . 4 . 2° enquiry. It is in the context of this concession, therefore, and the adjournment upon which counsel agreed to that concession, that the course adopted in Richardson is to be considered. In Comerford, counsel for the governor objected to mandamus being granted after an Article 40 . 4 . 2° enquiry, pleading that if the proceedings had been for mandamus from the outset, the governor would have known the precise claim and might not have even shown cause. Although Barrington J. stated he was . . . not totally convinced by this as it must have been quite clear from the beginning that the prosecutor was complaining about the conditions of his detention", 26 he did not think it appropriate to grant an absolute order of mandamus in the case. He was influenced in this conclusion by the statement of Finlay P. in The State (Cahill) v. Governor of the Military Detention Barracks 27 that the procedure for an enquiry under Article 4 0 . 4 . 2° is primarily a remedy to secure release from unlawful custody, and is therefore not to be debased by using it as an informal or expeditious method of obtaining othei relief such as mandamus. 29 Barrington J. noted two dis tinguishing features of Cahill: the prosecutor had no genuine complaint, and since the Military Detention Barracks is not an established civilian prison it should be allowed some time to set up the facilities contemplated by the Prison Regulations for the Detention Barracks. 29 He continued: The present case appears to me to be a different one. The prosecutor appears to have a genuine complaint. His situation has been adversely affec

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