The prisoner who disappeared…for a while


Derek D from Ballymun was 24 years old in March 2007, when he was sentenced to two terms of imprisonment for firearms offences and sent to Mountjoy Prison. He was known in his area for being tough and had several previous convictions. By his own account, once in Mountjoy he put his head down to do his time and get out before he was 30 (27).  It was almost two years into these particular sentences, on 20th January 2009, when Derek D found two prison officers at the door of his cell telling him to follow them. Without notice, he was taken out and away to Portlaoise maximum security prison, without his clothes or belongings, where he was placed in isolation in a cell in a segregation unit in a block containing five separate units in the prison, used for punishments.

Derek D had not been accused of any breach of the prison rules, had no idea why he was in Portlaoise or why he was in total isolation. There was no other prisoner in the unit where he was being held. There was no association with other prisoners, no education, limited phone facilities, no exercise in an outdoor yard and not physical contact allowed during family visits. In fact he could not see, even at a distance, another prisoner. He was confined to his cell in silence for most of the day. "I have suffered migraines, earaches and insomnia and I am concerned for my mental and physical wellbeing", D said in an affidavit to the High Court.

In early February 2009, his solicitors - Fahy, Bambury, McGeever - started telephoning both the Portlaoise and Mountjoy governors to try and find out why he had been transferred and why he was in isolation. They drew a blank, and moved to the High Court a week later to get a judicial review under nine headings as to why he was in Portlaoise and deprived of so many rights and privileges. The Governor of Portlaoise, the Irish Prison Service and the Minister for Justice, Equality and Law Reform were named as respondents in the case. It was to take five months before a judgement was delivered by Mr Justice John Edwards (28).

His lawyers argued that Derek had a right to be treated with dignity and with respect for bodily integrity, a right to fair procedures and to be treated in accordance with the Prison Rules despite him being a convicted person. His detention in such extreme isolation was a form of sensory deprivation which might have brought on mental illness. The High Court was surprised that no information could be found as to why the prisoner was in Portlaoise other than that it was a Ministerial Order and for "operational" reasons. The matter was so grave that Justice Edwards opened his own "enquiry" under Article 40 of the Constitution. This could have had the effect of causing Derek D to be released, even though he was a sentenced prisoner.

The case meandered in many directions and cul-de-sacs, including accusations that he had breached prison rules, but this never came to a substantial and proved allegation. Then it came to light that intelligence information had been provided to the Irish Prisons Service that Mr D was continuing his criminal career in prison and was a threat to persons (unknown) outside the prison. The origin of the intelligence or its character was not revealed to the High Court, but it must have been from outside the Prison Service which has no intelligence gathering function. The Prison Service argued that Derek D had to be maintained in isolation to protect the security of the State and the lives of persons (unknown) who were not in the prison. The thinking behind this was that he may have been "a player" in gangs outside the prison and that the right to life (of others unknown) took precedence over any of his own personal rights. The Justice considered that D could be part of a conspiracy to kill a person outside the prison.

While these arguments were going back and forth, changes were happening in the segregation block of Portlaoise. An unsolicited exercise bicycle arrived and a fitness instructor indicated he would be designing an individual fitness programme for the single prisoner. The chaplain took to visiting Derek up to four times a week though he had not claimed to be particularly devout. A tutor arrived to see what subjects he would like to study in his own personal programme of study which would be provided in an adjoining empty cell. The Governor claimed to visit him on a daily basis. Books such as “crime thrillers” were made available to him. Finally he was provided with the company of another prisoner, also relegated to the isolation unit. Derek was eventually moved to another of the isolation units which had a larger exercise yard.

In his 46-page judgement in August 2009, Justice Edwards considered that a governor of a prison was entitled to have regard to suggestions of threats emanating from whatever source (including senior members of An Garda Síochána). He decided that a prison Governor is entitled to take steps to protect life and to run a prison subject to directions of the Minister and the Prisons Service. However, this should be done in accordance with the Prison Rules and with respect for the prisoner’s human rights. He determined that absence of association could amount to sensory deprivation; however, he found that in the case of Derek D his treatment was not inhumane and that he did have company in prison albeit not mainly from prisoners.

The Justice was perplexed as to why the prisoner’s transfer and his subsequent treatment had not been undertaken following the wording of the Prison Rules. This latter finding was not of consequence in effect for Derek D, since in the special circumstances of the case, Justice Edwards stated that while finding that some of the authorities’ alleged actions could be found to be illegal he was not going to quash the impugned decision, such as his transfer from the relatively open environment of Mountjoy to the isolation units of Portlaoise.

The D case in its complexity brings several legal and social issues to the surface. Not least of these is whether information provided from outside a prison by the gardaí can place an obligation on a prison governor to alter the regime of his own prison in relation to an individual prisoner. The issue of how a prisoner defends himself or herself against accusations from persons unknown outside the prison, without knowing the accusations or their provenance, is a question of concern. The use of total isolation or sensory deprivation can apparently be used without it being an inhumane treatment so long as it is proportionate to the threat to the lives of others – even others unknown to the prisoner and outside the prison. At another level, the Prison Rules must be complied with, according to the High Court. Finally, it would appear that the mental health of prisoners can be justifiably undermined by the regime of their detention when they might constitute, or be perceived to constitute, a threat to the lives of others.

WORDS: Garda Research Institute

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27. A number of facts in this piece arise from a presentation by Sean Gillane, SC at the Irish Penal Reform Trust Seminar with the Dublin Solicitors’ Bar Association at St Michans Church, Dublin, 18.11.09. None of the opinions in this piece should be attributed to Sean Gillane.

28. Judgement by Edwards J. The High Court, IEHC 288 of 22.06.09, High Court Record Number: 2009 165 JR.