Prisoners bring constitutional challenge over confinement in February 2022

High Court Reporters

Several current and former Castlerea Prison inmates claim they were not allowed to leave their cells to shower or exercise for two weeks in February 2022 due to being close contacts of people with Covid-19.

The prisoners are asking the High Court to award them damages for an alleged breach of their constitutional rights arising from a decision to impose the confinement.

They say the removal of their basic freedoms, such as a regular opportunity to shower, exercise and socialise with other prisoners, for the fortnight was “unlawful and disproportionate”.

On Thursday, Mr Justice Charles Meenan reserved his decision on whether to grant permission for the eight or nine applicants to pursue their cases as judicial review actions, which were initiated in the spring of last year.

Remy Farrell, senior counsel for the respondent Castlerea Prison governor, Minister for Justice, Attorney General and Ireland, agreed the applicants’ cases contained “arguable grounds”. However, the judge should not grant leave, he said, as the cases should have been brought as plenary actions, rather than judicial reviews, which ask the court to scrutinise decisions made.

These are, in truth, actions for damages, he added.

Feichín McDonagh SC, instructed by Longford-based Baxter Mimnagh Solicitors, for the applicants, said judicial review is appropriate, faster and more affordable than the route suggested by the respondents.

In a lead or ‘test’ case, a prisoner claims he was fully vaccinated against Covid-19 when he was confined to his cell with another man from February 14th to 28th in 2022.

The man, a Type 2 diabetic, says in a sworn statement that he was not allowed to leave his cell during the period, even for exercise or to use a shower, and he had to wash his clothing in a bucket in the room.

He provided three negative covid tests over the fortnight but remained in confinement at a time when public health guidelines for the general community did not require close contacts of positive cases to isolate, he claims.

The “extreme and sub-standard living conditions” cannot be justified on public health grounds, he says, since the restrictions were imposed in a “haphazard, patchy, inconsistent and wholly disproportionate fashion”.

When the prisoner’s lawyers complained, on February 28th, 2022, to the governor, he received a reply saying the governor was acting in accordance with, among other things, an “algorithm” employed by the Irish Prison Service.

The man points to his right, guaranteed by article 40.3 of the Constitution, not to be subjected to inhumane or degrading treatment or to an overall prison regime likely to cause him harm. He says he suffered anxiety during the period.