1997 1222 SS
THE HIGH COURT
STATE SIDE
IN THE MATTER OF AN ENQUIRY PURSUANT TO ARTICLE 40.4 OF THE CONSTITUTION OF IRELAND 
BETWEEN
MARCUS BRENNAN
			APPLICANT
AND
THE GOVERNOR OF PORTLAOISE PRISON 
			RESPONDENT
JUDGMENT of Mr Justice Declan Budd delivered on the 3rd  day of September 1998

	In a Ruling made on 28th January, 1997 Carney J. found that the Applicant had made significant complaints in respect of his situation as a prisoner in the Irish prison system.  The Applicant was convicted on a plea of guilty at Carlow Circuit Court on 19th June, 1996 of robbery and was sentenced to a term of 3½ years imprisonment.  The kernel of the Applicant's case is that he fears that his health and well-being, physical and mental, have been and are at risk because of the conditions in both Mountjoy and Portlaoise Prisons.  He says that he is a healthy person who has never taken illegal drugs and that the conditions in prison which he has to endure, and the company which he is compelled to keep, are putting his health at risk.  He also complains that the prison authorities are ignoring and flouting the Prison Rules 1947 in particular Rules 9, 16, 108, 117, 135, 137(2) and 143 and Rules 172 to 188 inclusive (the entire of Part V),  being the part of the prison rules in respect of the duties of the Medical Officer. 
	It is conceded by the Respondent that many of these Rules are obsolete and are not observed.  Doctor Enda Dooley, the Director of the Prison Medical Services, made it clear that there is now no full time doctor in any of the prisons.  Accordingly, the 1947 Rules, which were drafted on the basis of a Medical Officer being resident at the prison and having a supervisory role with regard to hygiene and the kitchens, are obsolete.  Specifically, Rule 16, which requires every prisoner to be examined by the Medical Officer before being removed to any other prison and before being discharged from prison, is now impractical and not observed.  Both Doctor Dooley and Doctor Anthony Reeves, the leading medical officer at Portlaoise Prison, were candid and clear witnesses.  Doctor Anthony Reeves made it clear that he and his colleagues do not regard the 1947 Rules as good guidelines for medical practice.  His contract with the Department of Justice is at complete and utter variance with the 1947 Rules and the Rules do not relate to modern medical practice.  He said that the Rules were antiquated, out of date and inappropriate to present practice.  Consultancy work with regard to sanitation in kitchens and such matters as expert psychiatric advice were not appropriate for a general practitioner engaged on contract to provide primary medical care.  I mention this at the outset as the obsolescence of the Rules and the ignoring of the Rules by the authorities (often because they are outmoded and impractical) are common case.  Times change and so has medical practice but apparently the Rules have not kept pace despite the strictures of the Courts in a number of cases.
	On 21st July, 1997 a conditional Order of Habeas Corpus was made by Kinlen J. on foot of the Affidavit sworn on the 16th July, 1997 of the Applicant.  This was supplementary to his previous Affidavit sworn on 11th December, 1996 in which the Applicant had expressed his fears of contracting HIV or Hepatitis due to lack of medical examinations involving compulsory blood testing.  On 13th August, 1997 Flood J. gave          liberty to the State to file replying Affidavits in respect of the Applicant's complaints as being necessary in addition to the production of the committal warrant from Carlow Circuit Court. Steps were taken to narrow the issues by way of a Notice to admit facts and a reply thereto together with the production of the Applicant's medical files by way of voluntary discovery.  Eventually the matter came before this Court on 10th June, 1998 and ensuing days when evidence was adduced not just on Affidavit but also by verbal testimony of both the Governors of Portlaoise and Mountjoy Prisons as well as the Medical Director of the prison service and the Medical Officer from Portlaoise Prison and the Chief Prison Officer from Mountjoy.

A SYNOPSIS OF THE EVIDENCE
	The Applicant states that in April 1996 when he arrived in Mountjoy as a remand prisoner no medical examination was carried out on him and this was contrary to Rule 9 of the 1947 Rules which requires:- 

	"9.  Every prisoner shall, as soon possible after his admission, be separately 	examined by the Medical Officer, who shall record the state of health of the 	prisoner, and such other particulars as may be directed"

He maintains that he is of good health and has never taken illegal drugs.  He says that he was obliged to share a cell in the basement area with four other prisoners who were injecting themselves with drugs and this was in a very confined space, he became fearful because of the overcrowding and the drug abuse and made complaints to prison officers.  He further complained that from 18th June, 1996 to October 1996 he was held in a double cell on a landing with twelve other prisoners.  Among these were sufferers from Aids and Hepatitis and since there was only one shower and one toilet he was fearful of a needle sticking into him and of his thereby contracting illness.  He was particularly fearful as his cell mate had contracted Hepatitis C and was injecting himself.  He himself became concerned about contracting tuberculosis and eventually tests were done on him in this respect which happily proved negative, although he seems justiably aggrieved at the laspe of time before he was informed about the results of the test.  On 1st October, 1996 he was transferred from Mountjoy Prison to Portlaoise Prison.  He complains that no medical examination was carried out before his transfer contrary to Rule 16 and that no medical examination was carried out on his arrival at Portlaoise contrary to Rule 9.  He says that in Portlaoise Prison he was placed on the D2 landing which along with D3 landing contains sixty six prisoners.  He says that there are only three showers for sixty six prisoners and five sinks one of which is used for slopping out and that there are only four toilets.  He reiterates concern about Aids and Hepatitis and his fear of needle stick injury as a source of contamination.  He was back in Mountjoy from 4th June, 1997 to 19th June, 1997.  He then returned to Portlaoise where he shared a cell with a prisoner whom he feared suffered from Hepatitis B or C or both and this caused him to be afraid of contamination.  He says that he has attended the Prison Psychiatrist and that he is under severe stress from the worry about contracting Aids, Hepatitis or other infectious diseases.  
	In short, the Applicant contends that the conditions in which he is incarcerated are inhumane, degrading and dangerous particularly with regard to overcrowding and the risk of infectious disease.
	On 21st July, 1997 Kinlen J. made a Conditional Order and required the Governor of Portlaoise to certify the grounds of detention.
	Deputy Governor Edward Whelan of Mountjoy gave evidence by his Affidavit sworn on 13th August, 1997 and also attended and gave evidence on foot of a Notice to cross- examine.  The gist of his evidence was that the Applicant was examined by the Prison Doctor on the day after his arrival in Mountjoy Prison .  While on remand on 1st May, 1996 the Applicant became agitated and subsequently on 2nd May, 1996 he was moved to the separation unit.  The Doctor attends this unit on a daily basis and there is continual cover by medical orderlies.
	The Applicant complained about having to share a cell with a prisoner P.Z. whom he alleged was suffering from Hepatitis C and was injecting himself.  The Deputy Governor said the prisoner P.Z. was never segregated on medical grounds nor was he ever observed injecting himself.  The Deputy Governor further said that while the Applicant was in Mountjoy from 30th April, 1996 to 17th September, 1996, before his transfer to Portlaoise, he was seen by Deputy or Assistant Governors on 79 occasions and on no occasion did he express concern about the use of syringes or about his conditions of detention.  The Deputy Governor said that the provisions of Rule 137(2) were fully complied with and no written recommendations were received from the Medical Officer for the separating of prisoners from each other.  He went on to say that the first time that he became aware of the Applicant's complaints was after these proceedings had begun.
	It was acknowledged that Mountjoy is overcrowded and that slopping out still continues.  However the separation unit has been renovated within the last nine months with improvements including the provision of sanitation in each cell.  Furthermore there is a "toilet patrol" late at night of which a prisoner can avail.  He was satisfied that the Applicant had been examined on his arrival and in any event all prisoners had the right to see the Doctor each day if necessary.  He conceded that there was a drug problem in Mountjoy but said that the authorities did their best to control the situation.  There were random searches; there was now a drug-free training unit and a careful sanitary regime.  He denied that the Applicant's life and health had been exposed to a risk and danger and said that all reasonable steps were taken to treat the Applicant and other prisoners with humanity and dignity and in particular to provide full and safe medical facilities and treatment throughout their detention.  
	In a Supplemental Affidavit sworn on 26th August, 1997 the Applicant refuted that he had undergone a proper medical examination on his arrival at Mountjoy.  He also deposed that he had made numerous verbal and written complaints about the conditions in Mountjoy particularly with regard to drug abuse and infectious diseases.  He had expressed his concerns to the prison psychologist in Portlaoise particularly as to Aids and Hepatitis.  
	The over-crowding in Mountjoy is admitted.  However Rule 4, which states that each prisoner shall occupy a prison by himself by day and by night (except as otherwise directed), has been amended by Statutory Instrument Number 135 of 1983 since 24th May, 1993 and this allows more persons per cell. 
	Deputy Governor Whelan explained that Mountjoy was a committal prison and had been built in the reign of Queen Victoria.  He was clearly not happy about over-crowding in Mountjoy. He outlined the precautions taken to detect contraband and to reduce the availability of drugs.  He explained that many prisoners preferred to share a cell.  While Mountjoy had been built for 480 prisoners on that very morning there had been 739 prisoners in Mountjoy.
	He explained that after the acceptance by the Minister of the Report of the Advisory Committee on Communicable Diseases in Prison, since 1994 there had been integration of prisoners with or without communicable diseases as a matter of policy.  A similar policy had been adopted in other countries and he himself had visited a French prison in Marseilles where the policy was to integrate prisoners, albeit some might be suffering from diseases communicated by blood or bodily fluids.  
	A curious feature of the case was the evidence which was given by Governor William Donoghue, now Governor of Portlaoise, that there had been sanitation in the cells in Mountjoy under the regime there before Ireland became independent.  
	Chief Officer Fetteridge confirmed that there were photographs of old soil pipes from the in-cell sanitation from long ago when Mountjoy had been modelled on the design of Penterville prison and the prisoners had had a toilet and a sink in each cell which had been served by a watertank. The Chief Officer brought to Court a book which listed occurrences such as the finding of drugs, prohibited articles, and syringes.  For the period 1st January, 1998 to 12th May, 1998 there were findings of 92 syringes, 91 of  drugs and 37 of prohibited articles.
	The Applicant was transferred from Mountjoy to Portlaoise on 17th September, 1996 and has only been back in Mountjoy since then from 4th June, 1997 to 19th June, 1997 because of a breach of Prison discipline in Portlaoise on his part.  I am impressed by the evidence of Deputy Governor Whelan that the Applicant was seen by Deputy or Assistant Governors on 79 occasions and on no occasion did he make a complaint in respect of concern about the use of syringes or about his conditions of detention.  While he may well have voiced his fears in an informal way to a Prison Officer, however, it seemed that he did not press his complaints on the Governor or the Deputy or Assistant Governors.  In any event, the Applicant is now residing in Portlaoise Prison and the conditions in Mountjoy and his apprehensions in respect thereof are now peripheral in relevance.  As O'Dalaigh C.J. said in The People (Attorney General) v. McGowan, unreported Supreme Court 14th October, 1968:-
	".... habeas corpus is concerned with detention which is illegal at the present moment, not with detention which in the past was illegal".

CONDITIONS IN PORTLAOISE
	Governor Donoghue in his Affidavit sworn on 13th August, 1997 says that the Applicant arrived in Portlaoise on 17th September, 1996 and was duly processed and assigned to D Wing which is allocated to trusty prisoners.  On 18th September, 1996 he was medically examined in accordance with Rule 9 and his drug-free history was noted.  The Deputy Governor who interviewed him noted no particular complaints or concerns expressed on his part.  The Governor was aware that some of the prisoners have Hepatitis and leaflets are given and an awareness film was shown to the prisoners including the Applicant about this.  The Governor was not aware of any prisoner with the Aids virus having been placed in D Block.  He stated that there were showers on D Block and at various work and other locations in the prison.  The Governor stressed that the Applicant had never expressed a concern about a threat to his health or about the prevailing conditions in the Prison.  The Applicant had attended on the Governor or Deputy Governors on 18th September, 1996, 26th September, 1996, 29th January, 1997, 19th February, 1997 and 6th August 1997 and on no occasion was a request made concerning his health or the conditions in his cell.  Since January 1986 the Applicant had served a number of terms of imprisonment and the Governor, having known him in Mountjoy and Shelton Abbey, was surprised that he was now claiming to be traumatised by the conditions.  The Governor denied that there had been any non- compliance with the Rules and in particular Rule 137 with regard to the carrying out of recommendations of the Medical Officer.  He also refuted the suggestion that the Applicant's life and health had been exposed to risk.  In evidence the Governor said that D Block had been built in 1880 and had been closed prior to 1973.  It was opened again to receive trusty prisoners in a "stand alone wing".  At present a second prison was being built in Portlaoise and there are plans to vacate Block D.  The prisoners still slop out in every cell in Portlaoise but D Block has the concession of a 10.00p.m. "toilet patrol".  In D Block there are three landings with thirty prisoners on each of two landings and there are wash-hand basins and toilets at the end of the landings.  The Governor had known the Applicant from both Shelton Abbey and Mountjoy and had secured for him psychological advice while he was in Portlaoise.   The Applicant had never complained to the Governor or to the Welfare Officer about conditions in Portlaoise.  The Governor agreed that there were no tests carried out in respect of infectious diseases on the arrival of a prisoner and he said that there was no way of knowing the state of health of many of the prisoners.  He regarded D Wing as being overcrowded and he was happy that there was a new wing being built.  He dis not accept there was a drug problem in Portlaoise prison.
	Dr. Anthony Reeves, the Medical Officer in Portlaoise Prison, had sworn two Affidavits dated respectively 14th August, 1997 and 8th June 1998.  Since September 1996 the Applicant had consulted the Medical Officers 19 times and he had three attendances on a consultant psychiatrist and one attendance on a consultant psychologist.  During none of these attendances had the Applicant expressed any concern about contracting AIDS or Hepatitis and all the complaints which he made were investigated; for example, in January 1997 he expressed concern about TB and a subsequent chest x-ray proved normal.  The doctor only became aware of the Applicant's concerns after his application to Court.  Dr Reeves stressed that it was not medical practice to perform routine pre-discharge or pre-transfer medical examinations on inmates.  Dr Reeves made it clear that he provided primary medical care services on a part-time basis.  There is no longer a resident prison doctor and medical services are provided by Dr Reeves and a colleague during alternate weeks.  Neither he nor his colleague regarded the prison rules as any longer being a good guideline for medical practice.  When asked about rule 174, which requires the Medical Officer to visit the prison at least once every day and to see every prisoner at least once a week, the doctor responded that he was engaged under a part-time contract of employment by the Department of Justice.  His contract was at complete and utter variance with the 1947 Rules and the rules were obsolete.  He said that the Rules were antiquated, out of date and not related to modern medical practice.  It was conceded by Counsel for the Respondent that the regime set out in the Rules from Rule 172 to 188 inclusive in part V were based on the old concept of a resident Medical Officer and was no longer in operation.  Dr Reeves stated that he was retained to provide a primary medical care service and not to provide consultancy work with regard to sanitation and kitchens nor to provide expert psychiatric advice.  I accept his pithy comment that the Rules are antiquated, out of date and unrelated to modern medical practice, as being an apt description of the Rules in part V.  
	The Court had the benefit of hearing Dr Enda Dooley, consultant psychiatrist, and the director of the Prison Medical Services, since 1990.  He had served as a member of the committees reporting to the Minister with regard to deaths in prison and also with regard to communicable diseases in prison.  He explained the nature of TB, Hepatitis A, B and C, HIV and AIDS.  He said that Departmental policy since January 1995 had been not to segregate prisoners routinely on the basis of being or not being of HIV status.  Both in Ireland and abroad there were indications against such segregation of those who were HIV positive.  He explained that medical attention in prison is on the basis of consent as in the outside community.  Since 1st January, 1995 the policy of integration has been pursued and is fully in line with international practice.  With regard to Hepatitis A, this was self-limiting and, while poor hygiene might facilitate infection from faeces, so that there was an increased risk of Hepatitis A, nevertheless, he was not aware of any epidemic of Hepatitis A in Irish prisons.  Since Hepatitis B and C are infectious via blood or bodily fluids there was no medical reason why carriers thereof should not be integrated.  Obviously there should be concern about risks from Hepatitis B and C, such as from common use of an infected needle.  He said that there was no evidence that slopping out of itself was a risk, nevertheless, he felt that it was undesirable.  As for TB, he regarded every incident as significant and said that there would be an immediate response to a suspected case of TB and that the prisoner would be isolated and probably transferred to hospital.
	As for slopping out, he said that he was unhappy with this particularly in a crowded prison on medical grounds as it posed a variety of health risks and it was also an affront to the dignity of the person.  He did not support or condone it.  There is an increased peril of faecal oral contagion particularly if the prisoner lacks the facility to wash his hands.  Dr Dooley said that the new prison being built in Portlaoise would have in-cell sanitation and that the target date for completion of this programme was in 2000.  While no one could be happy with slopping out, nevertheless, he was not aware of any significant outbreak of food poisoning or of oral faecal spread of disease.
	Dr Dooley agreed that Rule 16 with regard to medical examination on removal or discharge was not observed and said that it was not practical to comply with this rule.  
	As for drug abuse, Dr Dooley said that while drug abuse did occur in Portlaoise Prison, nevertheless, it was not widespread or open, unfettered or unhindered.  He made it clear that it was medical policy that a person with an infectious disease should not be working in the prison kitchen.

Relevant Law.
	A convicted person who is held in a prison pursuant to a lawful warrant is in the situation that many of his normal constitutional rights are abrogated or suspended.  He must accept prison discipline and accommodate himself to the reasonable organisation of prison life as laid down in the prison regulations.  The prison rules are concerned with a wide variety of administrative necessities such as the maintenance of discipline, the provision of medical facilities, hygiene and cleanliness, the regulation of visits and other matters.  		The Executive has a duty to carry out the order of a Court concerning each prisoner in its care.  A prisoner retains certain constitutional rights and in some cases these may require to be vindicated.  In The State (Susan Richardson) -v- Governor of Mountjoy Prison [1980] ILRM 82, Barrington J. said of the prison rules at page 91:-  

	"It appears to me that the purpose of the Prison Rules is to reconcile the need for security and good order in the prison with the prisoners' subsisting constitutional rights.  Clearly, 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.  Clearly also the Rules, being made by an executive authority established under the Constitution, must be presumed to have respected the prisoners' subsisting constitutional rights.  For the same reason they should be interpreted in a manner consistent with these rights.  In the normal case it would be possible to ascertain the correlative rights and duties of the prison authorities and the prisoners respectively from the Rules themselves and it would not be necessary to look any further." 

	Earlier in that judgment at page 90, Barrington J. said:-  
	"What the Supreme Court was saying in the McDonagh case was that, in the case of a convicted prisoner, a conditional order of habeas corpus or an initial order for an inquiry under Article 40 of the Constitution should not be granted save in the most exceptional circumstances.  But the Court does accept that there are exceptional circumstances where the conditions under which a prisoner is being detained can invalidate a detention which is prima facie legal and authorised by warrant."  

	In The State (C) -v- Frawley [1976] IR 365 Finlay P. stated at p. 373 that:- 
	"when the Executive, in exercise of what I take to be its constitutional right and duty, imprisons an individual in pursuance of a lawful warrant of a Court, then it seems to me to be a logical extension of the principle laid down in Ryan's case that it may not, without justification or necessity, expose the health of that person to risk or danger."

	In the State (Greene) -v- Governor of Portlaoise Prison (High Court 20th May, 1977) a habeas corpus application was brought by a convicted prisoner grounded on allegations that the prison regime of body searches and close supervision amounted to a breach of his constitutional rights to human dignity, health and bodily integrity and family privacy and to inhuman and degrading treatment.  Hamilton J., as he then was, took the view that the common good required that sentences be carried out and that discipline and security be maintained in the prison and accordingly in the special circumstances the applicant's constitutional rights had not been breached.  However, he was prepared to examine the situation on the basis that such a breach of constitutional rights, if established, could have rendered the applicant's detention unlawful.  He distinguished a line of English authority which suggested that habeas corpus could not be used for the purpose of testing the legality of conditions of confinement and said that this was a view with which he did not agree particularly where the conditions of confinement were alleged to constitute a breach of constitutional rights.  
	In Richardson's case Barrington J. at page 91 helpfully extracts the following principles from the case law:-  

	"1.	Convicted prisoners, as human beings and citizens, have rights under the Constitution, including a right of access to the Courts.  
	2.	Many of these rights are abrogated, suspended or limited by reason of the prisoner's conviction and sentence.
	3.	A prisoner lawfully convicted and sentenced has lost his right to personal liberty for the period of his sentence.  Therefore, habeas corpus is not an appropriate procedure in which to investigate his complaints.  
	4.	Exceptionally, however, the conditions under which a prisoner is detained may be such as to make his detention unlawful, notwithstanding the existence of a valid warrant.  In such case, habeas corpus will lie.  
	5.	Lesser legitimate complaints of prisoners fall to be investigated in other forms of legal proceedings.  
	6.	The prisoners' subsisting rights can often be ascertained from the Prison Rules themselves, read in the light of the Constitution."

	He went on to find that the State had failed in its duty under the Constitution and under the Rules to protect the prosecutrix's health and to provide her with appropriate facilities to maintain proper standards of hygiene and cleanliness while a prisoner in Mountjoy Prison.  However, he concluded by saying:- 

	"I am not satisfied, however, that these matters cannot be put right or that the threat to the prosecutrix's health is so grave or immediate as to make the prosecutrix's detention illegal, or to justify me in making a final order of habeas corpus.  Having heard all the evidence and being satisfied, as I am, that the prosecutrix's rights under the Constitution and the law have been violated, I feel I ought, in justice, grant the prosecutrix appropriate relief.  Appropriate relief in this case appeared to me to be an absolute order of Mandamus which, indeed, is one of the reliefs the prosecutrix applied for in the first instance."  

In fact the Court adjourned the matter and when the matter was re-entered, the Court was informed that the matters complained of were in the process of being remedied and so Barrington J. made no actual Order of Mandamus.  
	At page 90 of his judgment Barrington J. included a paragraph which I would respectfully adopt as being a helpful touchstone in this type of case.  He said:- 

	"It would clearly not be possible to enumerate in advance what are the conditions which would invalidate a detention otherwise legal.  If a Court were convinced that the authorities were taking advantage of the fact the person was detained consciously and deliberately to violate his constitutional rights or to subject him to inhuman or degrading treatment, the Court might order his release.  Likewise, if the Court were convinced that the conditions of a prisoner's detention were such as seriously to endanger his life or health, and that the authorities intended to do nothing to rectify these conditions, the Court might release him.  It appears to me that the position would be similar if the conditions of a prisoner's detention were such as seriously to threaten his life or health, but the authorities were, for some reason, unable to rectify the conditions."   
	
	In the case of Anthony Cahill -v- The Governor of the Military Detention Barracks Curragh Camp [1980] ILRM 191 Finlay P. was dealing with a case in which a convicted prisoner was complaining of ill-treatment.  Apparently the Prison Governor had ordered that the cell walls, which had been smeared with excreta, should be hosed down and as the applicant refused to leave his cell, while this was being done, he was soaked while the cell was being hosed down and was then given dry clothes.  Finlay P. held that the fact that the prisoner had been soaked during the hosing out of his cell, which he himself had deliberately fouled, did not amount to ill-treatment.  He found, however, that the regime in the military detention barracks did not conform in several respects with the rules for the government of prisons 1946.  Nevertheless, he held that  the applicant had not in any way been adversely affected by the breaches of the regulations and that they did not constitute such a default of fundamental requirements that his detention could be said to be wanting in due process of law.
	At page 201 of his judgment Finlay P. referred to the decision of Barrington J. in Richardson's case and said:-  

	"In that case, where a female prisoner in Mountjoy Prison complained of the toilet and washing facilities available to her as wanting in any reasonable standard of privacy or hygiene, the learned judge interpreted the decision in the State (McDonagh) -v- Frawley as imposing upon him an obligation, upon an application for habeas corpus where he was satisfied that these matters constituted a deprivation of the constitutional right of the applicant to bodily integrity and the maintenance of reasonable health, to make, instead of an order for her release, an order by way of Mandamus directing the Governor of the prison to remedy the defects complained of.  In fact, on the merits of the case, he did not make such an order but instead adjourned the matter to enable the Governor to remedy the defects, which he was willing and anxious to do of his volition."

	Finlay P. then interestingly went on to sound a note of warning about the using of the informal nature of an inquiry under Article 40.4.2 as a procedure for pursuing other remedies such as Mandamus.  At page 201 he said:-  

	"The application to the High Court under Article 40 of the Constitution for an inquiry as to the legality of the detention of any citizen is a peculiar and unique procedure.  It can be made in the most informal way either by the Applicant himself or by any other person without special legal status bona fide interested on his behalf.  It can be made, as no other application can be made, to a chosen judge of the High Court and must, if practicable and possible, be discharged by him.  Procedures concerning it are freed from many of the rules of procedure and restrictions applicable to any other form of application to the High Court, and the relief claimed and granted in appropriate cases, namely that of release from custody or detention, is immediate and in a sense dramatic.  

	Prima facie, such procedure must not, in my view, be debased and certainly should not be permitted by the Courts to become a vehicle by way of special, informal and expeditious procedure for the pursuit of other remedies.  It cannot, therefore, as a matter of practice or a matter of course be a procedure initiated in the hope or expectation that some relief such as Mandamus will be achieved instead.  While, therefore, I would reserve for an appropriate case on the facts the question as to whether it might not be correct in some cases of applications under Article 40 of the Constitution for an enquiry into the legality of the detention of a citizen to make instead of an order for the release or a simple order for the dismissal of the application, an order such as an order by way of Mandamus instead, I am clearly satisfied that it is not appropriate in this case.  

	In this case, where the breaches by the Governor of the prison regulations laid down in the 1972 statutory instrument which have been established have not in any way imperilled the welfare or infringed the constitutional rights which remained to the Applicant notwithstanding his obligation to serve a sentence as a convicted prisoner, I have no doubt that it would be quite inappropriate for me to make any order by way of Mandamus.  It was suggested to me on behalf of the Applicant that I could make an order for the removal of the Applicant from his present detention and the substitution therefor of detention in some other prison.  Under the statute law applicable the function of transferring prisoners from one prison to another is a function of the executive and is not a function of the Courts.  Whilst it might be possible in an appropriate case to order by way of Mandamus that a prisoner should be detained in accordance with specific conditions and thus effectively or practically impose upon the Minister for Justice an obligation to remove him from one place of detention to another it is not, in my view, within the jurisdiction of this Court to make a direct order ordering his transfer from one prison to another.  

	The Court cannot condone the breach by an official of the obligations imposed upon him either by statute or by statutory instrument.  Regard must obviously, therefore, be had by the authorities to the disparity between the practices and arrangements which exist in the Curragh Military Detention Centre and the regulations under which that centre is, by reason of the statutory instrument and the Act concerned, meant to be governed."

	Later in the same year Barrington J. adopted a similar course in The State (Comerford) -v- The Governor of Mountjoy Prison [1981] ILRM 86.  The applicant for habeas corpus was a prisoner awaiting trial and on remand in Mountjoy Prison.  He had been transferred to a high security part of the convict section of the prison and so was being held as a remand prisoner in a manner contrary to that contemplated by the Rules for the Government of Prisons.  Barrington J. held that, although the circumstances of the prisoner's detention were irregular and illegal, and Section 13 of the Prisons (Ireland) Act 1877 clearly required a difference in the treatment of remand prisoners as compared with convicted prisoners, nevertheless the irregularity was not such as to make the detention unlawful or to entitle the prisoner to an absolute order of habeas corpus nor was he entitled, in the alternative, to an absolute order of mandamus.  At page 90, Barrington J. explained the circumstances in Richardson in which he had contemplated making an order of mandamus:-

	 "There had been a Plenary hearing which lasted two days and during which there had been an exhaustive investigation of the washing and sanitary facilities in the womens' wing of Mountjoy Prison.  At the conclusion I enquired of Mr De Valera (who appeared for the Governor) whether, in the event of my making the findings of fact and law which I subsequently did make, it would be necessary to go through the entire evidence again in mandamus proceedings or whether I should make an absolute order of mandamus.  Mr De Valera said  he could see no point in going over the same ground again and asked that, in the event of my findings being adverse to the Governor, I should give the Governor an opportunity to consider the situation.  It is in this context that the passage quoted above from my Judgment in the Richardson case - coupled as it is with the granting of an adjournment to the Governor - should be read."

	Despite the breach of the rules which Barrington J. found in the Comerford
case he nevertheless did not think it would be proper for him to make an absolute order of
mandamus. 
	In conclusion, it would appear that lesser or easily remediable breaches of the Prison Rules or of the law with regard to an Applicant's incarceration will not entitle him to an Order of Habeas Corpus.  However, on the other hand, a serious breach of the law such as a conscious and deliberate violation of the prisoners rights by systematic torture, might well  entitle him to be released.

CONCLUSION
	Adopting the principles set out in the McDonagh and Richardson cases it seems to me that the Applicant must show that the conditions under which he is presently held in Portlaoise Prison constitute inhuman or degrading treatment or conditions which seriously endanger his life or health, and that the authorities are unwilling or unable to rectify these conditions.  Do the present conditions of the Applicant's situation in Portlaoise Prison seriously endanger his life or health or subject him to inhuman or degrading treatment?  I accept the evidence of Governor Donoghue that there was no serious problem with drugs in Portlaoise Prison and that while drugs have been found in Portlaoise, this is rare and they have found only about two syringes in the last year.  I accept the evidence of Governor Donoghue and of Doctor Reeves that the Applicant had never expressed a concern to either of them about the conditions in Portlaoise.  Furthermore, it would appear that the Applicant is lodged in Portlaoise Prison at his own behest.  The Applicant has no record of illness in the prison or of having suffered any injury or near injury as a result of his sharing his cell, nor has he suffered a needle stick injury or any other injury which he has reported.
	On 6th September 1996 In the matter of an application for Habeas Corpus by William McCarthy, I gave judgment in an application for Habeas Corpus in which the Applicant prisoner made an allegation that he had actually been injured on one occasion by a needle stick injury.  He also alleged that he apprehended further peril because on a number of other occasions he had found needles and syringes.  I pointed out that no medical report had been adduced in that case and that no supportive evidence in respect of endangerment to the Applicant's health had been produced.  I held that the Applicant's complaints with regard to his apprehensions in respect of the perils to his health from the alleged conditions in Mountjoy Prison and the proofs which had been adduced were not sufficient to warrant the making of an Order of Habeas Corpus.  
	While I accept that there is crowded and shared accommodation in Portlaoise Prison and that there is inadequacy of medical examination on arrival and on transfers from the point of view of compliance with the existing rules nevertheless, I do not think that the Applicant has shown that the departures from the Rules have brought about conditions which seriously endanger his life or health or subject him to inhuman or degrading treatment.  
	Failure to comply with the Prison Rules will not necessarily entitle the prisoner to obtain relief because for the most part the Prison Rules are regulatory only and non-compliance with them does not invalidate acts done or decision taken in purported compliance with the Rules.  However, it was further conceded by the Respondent during the hearing that much of part five of the Prison Rules namely Rules 172-188 inclusive had fallen into disuse and were no longer operative.  This failure to comply with the 1947 Rules does not of itself entitle the Applicant to be released.  In the McDonagh case, the Supreme Court stated that the stipulation in Article 44(1) of the Constitution that a citizen may not be deprived of his liberties save in accordance with law "does not mean that a convicted person must be released on Habeas Corpus merely because some defect or illegality attaches to his detention".  The Applicant must go further than showing that some of the Rules have fallen into disuse and that the authorities are failing to comply with the Prison Rules.  He must show that the departures from the Rules have brought about conditions which endanger his life or health or subject him to inhuman or degrading treatment.  
	With regard to the Applicant's specific complaint with regard to over-crowded conditions, while Rule 4 used to provide for the sole occupation of a cell, it is clear that this Rule has been amended by S.I. 135 of 1983 which authorises the Governor to give a direction enabling two or more prisoners to occupy a cell.  I accept the Governor's evidence that many of the prisoners prefer to share a cell and indeed it would seem that the Applicant has not complained to the Prison Governor about being confined with his cell-mate, although in his affidavits he does complain about being confined with a cell-mate in Mountjoy and subsequently with a cell-mate in Portlaoise due to his worries about their health status.  As for the system of slopping out, this has been widespread in prisons over the years and is not approved of by the Medical Director or the Prison Doctors and in fact is being phased out by a programme of modernisation.
	The Applicant complains about being confined with prisoners who are suffering from AIDS, HIV and Hepatitis.  As regards Rule 11 this requires the Medical Officer finding any prisoner on admission to or while in prison to be suffering from an infectious or contagious disease to report the fact in writing to the Governor and to take the necessary steps for the prisoner's treatment and for the prevention of the spread of the disease to other prisoners, this Rule is not really applicable to the modern forms of contagious diseases under consideration as causing apprehension to the Applicant namely AIDS, HIV and Hepatitis B and C as these contagious diseases are transmitted through blood and bodily fluids.  In such a case segregation would seem to serve no useful purpose.  In the matter of desegregation, the Minister has acted on the advice of an expert Committee in respect of communicable diseases.  While it is a part of the unpleasantness of a prisoner's deprivation of liberty that he is restricted in his choice of the company he keeps, nevertheless this has certain reasonable limitations.  For example, I expect that an Applicant would receive a sympathetic response if his application were based on the fact that his cell-mate, who admitted to being infected with Hepatitis or with AIDS, were to persist in daubing the Applicant with his blood or excrement.
	The Applicant expressed the fear that the trusties in the prison kitchen may be infected with disease.  My understanding of the evidence is that only trusties who are regarded as being medically clean are permitted to work in the kitchens.  I am aware that Irish prison kitchens have an enviable reputation for high standards in hygiene.  Perhaps the privilege of being allowed work in the kitchens should be confined to those who have undergone voluntary blood or other necessary tests and to have shown themselves free of contagion.  Perhaps there would be a difficulty about bringing in such a rule as I suspect that there is similar resistance from those at the cutting edge in  hospital operating theatres subjecting themselves to voluntary blood tests at regular intervals, however desirable and practical this appears to be.
	It was suggested that there was an accumulation of inadequacies in the prison system which justified the Applicant's anxiety and constituted a real danger to his health and well being.  I do not think that at present in Portlaoise the conditions under which the Applicant is being held either individually or taken together constitute inhuman or degrading treatment or can be categorised as conditions which seriously endanger his life or health.
	While a blood test is a comparatively simple procedure nevertheless it poses difficulties in respect of the right to bodily integrity and confidentiality in respect of  a person's medical condition.  A policy of segregation of those with contagious diseases would necessarily involve some form of compulsory testing on prisoners.  Government policy, based on expert advice, is in favour of the policy of integrating most of those suffering from AIDS, HIV and Hepatitis B and C.  No doubt different considerations apply to TB or Hepatitis A.  While the Applicant has expressed disquiet there would appear to be general acceptance in the prison community in respect of the policy of integration.  In the circumstances it would be disproportionate to require all other prisoners to be subjected to compulsory testing in order to allay the apprehensions of the Applicant.
	I now return to the topic of the Prison Rules many of which are obsolete and disregarded.  At page 19 of the Richardson case Barrington J. said that imprisonment was a punishment one of the incidents of which is "that (the prisoner) must submit to, and is entitled to the protection of the Prison Rules".  In The State (Walsh and McGowan) -v- The Governor of Mountjoy Prison Unreported Supreme Court 12th December 1975 Chief Justice O'Higgins at page 7 of his judgment for the majority said:-
	"Nearly thirty years have passed since they (the Prison Rules) were made and 	even a casual glance over the topics and subjects dealt with indicate a need 	for some revision and amendments".

	I would respectfully agree with Byrne, Hogan and McDermott in their excellent "Prisoners' Rights.  A Study in Irish Prison Law" at page 8 when they wrote:- 
	
	"If one regards the Prison Rules as antiquated, or the policy underlying the administration of prisons as misguided, the appropriate place to seek alterations or complete changes in these areas is not in a Court but through the Oireachtas.  The function of the Judiciary is to interpret the law as it is, not as it ought to be, and while there are a number of areas which the Courts have yet to consider, they are not the proper authority for the development of penal policy."

	Both the Richardson case and The State (Walsh and McGowan) -v- the Governor of Mountjoy Prison seemed to support the proposition that where the conditions of detention are being challenged in order to remedy them so that the rights of the inmates may be vindicated and protected the appropriate remedy may be an order of mandamus where such conditions do not warrant immediate release.  Soon after the decision of the Supreme Court in Walsh and McGowan the Government introduced the Rules for the Government of Prisons 1976.  These Rules stated that notwithstanding anything contained in the 1947 Rules, the Minister for Justice could restrict the access of any person to a prisoner, including the prisoner's legal adviser if he considered this to be appropriate in the interest of prison security or in the interest of the security of the State.  In Incorporated Law Society of Ireland and Moore -v- The Minister for Justice and Attorney General the Plaintiffs claimed a declaration that the rules were invalid.  McWilliam J. in an Unreported Judgment delivered on 21st June 1978 granted the declaration on the grounds that the relevant enabling powers contained in Sections 12 and 57 of the General Prisons (Ireland) Act, 1877, authorised the Minister to make Rules for the general security of Prisons only; since the 1976 Rules proposed to take into account State Security as well as Prison Security, and since these two objectives could conceivably clash, the Rules in their entirety fell, being ultra vires the Act.  
	In view of the strictures of the Supreme Court and of many Judges since them it seems remarkable that the Prison Rules have not been revised.  The members of any community are entitled to know under what Rules their lives are regulated.  By way of example, one can imagine the reaction of the parents of children in a school to the statement that the Rules relating to the health of the pupil and medical matters are so out of date, unworkable and obsolete that the School Principal and Doctors ignore the written Rules as they regard them as being antiquated and impracticable.  To operate certain rules and to ignore others at the discretion of those in authority and implementing a regime which already deprives a person of his liberty is to make further inroads into the vestiges of self-respect left to the individual and also to cut in to the control which he or she exercises over his or her life within the prison's institutional confines.  The basic tenets of a regime of incarceration should be fair, rational and clear rules.  This is not to say that every "i" must be dotted and every "t" must be crossed but general principles in the Rule book of a penal institution should be set out with a fair degree of clarity.  The present regime of regulations is conceded to be obsolete and to be ignored in many vital respects pertaining to the health and welfare of a prisoner.  It is unfair that there should be uncertainty as to which rules the Minister and the Prison Governors regard as being extant and which rules the Prison Governor feels should be ignored with impunity.
	  It is ironic that Rule 124 (1) of the Prison Rules states that the Governor must comply strictly with the Rules.  There has been blatant and systematic breach of Rule 16 with regard to medical examinations.  Times have changed and so has medical practice but the Rules have not been revised.  This is unfair to the Doctors, to the prison staff and to the prisoners.  It is regrettable that successive Ministers and the Department of Justice, responsible for prisons, have allowed actual practice to diverge from the Rules.  The Governors and staff are put in an untenable position in that the authorities are obliged to cherry-pick as to which Rules on the one hand are to be enforced and in respect of which rules there is to be compliance, while on the other hand there are Rules which are to be ignored and not observed.  In any particular community there should be a regime which is practical, fair, known and reasonably certain.   In default of this then injustice, whimsy, caprice and autocratic unfairness tend to flourish.  It is regrettable that the Rules have not been revised so that in many cases they have become obsolete and are ignored by the authorities as being outmoded and impractical.  It is a tribute to the Prison Governors that they are not accused of arbitrary and capricious application of the Rules.  If such a system of divergence between the Rules and practice persists for any length of time then this becomes oppressive and unfair in an institution in which the inmates are necessarily deprived of certain basic rights.  
	Finally, Counsel on behalf of the Applicant urged the Court to have regard to the provisions of the European Convention on Human Rights (1953).  Counsel for the Applicant concedes that the convention is not yet part of Irish Law.  It seems to me that this Court can look to the European Convention as being an influential guideline with regard to matters of public policy.  However, the convention has never been incorporated into domestic Irish Law and while it applies to Ireland it does not apply within Ireland.  An Irish citizen who believes that the Irish State is infringing the Convention, as in Norris -v- Attorney General  [1984] IR 36 may bring a case against Ireland for failing to respect obligations under this convention; but Senator Norris could not rely on the Convention in the Irish Courts because under domestic law the State is not bound to comply with the Articles of the Convention.  (See In Re. O'Laighleis [1960] IR 93).  No doubt the Convention does state that no one should be subjected to torture or to inhuman or degrading treatment or punishment and that the notion of inhuman treatment covers at least such treatment as deliberately causes suffering  physical or mental, which in the particular situation is unjustifiable.  Nevertheless it seems  that the Irish Constitution both by enumerated and unenumerated rights gives appropriate protection in particular to those who are deprived under law of their liberty whether by way of being mental patients or convicts duly sentenced.
	I will hear Counsel as to the appropriate Order to be made on the basis  of the above findings.