About this case:

• Citation:
  [2024] IEHC 518
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Nuala Jackson

Delivering judgment for the High Court, Ms Justice Nuala Jackson stated that she did not believe “that this deficiency brings this matter into the category of wrong which goes to the unlawfulness of the applicant’s detention. This is a very high standard requiring, per Richardson, the conditions complained of to amount to a conscious and deliberate violation of constitutional rights or inhuman or degrading treatment or to seriously endanger life or health and that the prison authorities intended to do nothing to rectify them.”

Background

The applicant, a Jewish rabbi, was charged with performing a circumcision on a male child at an address in Dublin 15 without being a registered medical practitioner contrary to s.37(1)(a) and 41(1)(a) of the Medical Practitioners Act 2007 as amended. The applicant was remanded in custody and was refused bail.

An application for habeas corpus was made on the applicant’s behalf pursuant to Article 40.4.2. of the Constitution to release him from detention on the basis that the prison authorities inter alia failed to provide him with kosher food according with his religious requirements, and on the basis that he was refused access to tefillin, holy objects involving long leather straps, during daily prayers.

The respondent did not dispute the former allegation, which the applicant alleged restricted him to have an extremely limited diet. The respondent cited safety reasons for its refusal to permit access to tefillin, the long straps presenting a risk of potential self or third-party harm.

The High Court

The court considered correspondence sent by the applicant’s representatives to the prison authorities relevant to his concerns prior to the application being made, to which no substantive response was made.

The court also examined an affidavit sworn on behalf of the prison authorities which stated that tefillin would be made available to the applicant on a supervised basis, and acknowledged the failure on part of the failure to adhere to kosher rules and provided a commitment to supplying foods which were fully compliant going forward.

Ms Justice Jackson noted the applicant’s submission that as the kosher food issue had not yet been remedied, the appropriate manner in which to proceed was to admit the applicant to bail pending its resolution where that deficiency went to the heart of the applicant’s unlawful detention.

The court considered the circumstances for relief under Article 40.4.2 as stated by former Chief Justice Susan Denham in F.X. v. Clinical Director of Central Mental Hospital [2014] 1 I.R. 280, highlighting that in exceptional circumstances notwithstanding the validity of the detention on the face of the order, the conditions of detention could be so egregious as to warrant relief.

In this regard, Ms Justice Jackson pointed to the examples of such exceptional circumstances discussed in, inter alia, The State (Richardson) v. The Governor of Mountjoy Prison [1980] ILRM 82 and Kinsella v. The Governor of Mountjoy Prison [2011] IEHC 235, including the deliberate detention with the purpose of violating an accused’s constitutional rights, inhuman or degrading treatment or conditions which could seriously endanger life or health.

The judge also placed particular emphasis on inter alia the dictum of former Chief Justice Frank Clarke in H v. Russell [2007] 4 I.R. 242 that nothing other than a complete failure to provide appropriate conditions or appropriate treatment could render unlawful what would otherwise be a lawful detention, further noting that a failure to comply with Prison Rules would not of itself be sufficient in line with Brennan v. Governor of Portlaoise Prison [1998] IEHC 140.

The court also considered that the willingness of the prison authorities to rectify the impugned conditions is also of relevance as per Kinsella and R.A. v. Governor of Cork Prison [2016] IEHC 504.

Ms Justice Jackson found that whilst equitable remedies could be available to the applicant, the deficiency in compliance with the Prison Rules which had occurred did not constitute a wrong going to the unlawfulness of the applicant’s detention which would be of “a very high standard”.

The judge further noted that if she was wrong in so holding, the authorities supported the detaining authority being given an opportunity to correct matters and to address the wrong arising, which the respondent had done albeit late in the day. Accordingly, the court decided that there was no requirement to exercise any residual jurisdiction such as that referenced in Kinsella.

Conclusion

In the circumstances, the High Court determined that no requirement to release the applicant from detention pursuant to Article 40.4.2. arose on the facts.

Abraham v Governor of Cloverhill Prison [2024] IEHC 518