Prisoner loses appeal on handcuffs ruling

A prisoner's challenge to a condition that he be handcuffed and escorted by prison officers before being allowed temporary release to visit his sick mother in a nursing home has failed in the Supreme Court.

The proceedings were taken by Stiofáin Breathnach, also known as Stephen "Rossi" Walsh, who is serving a 15-year sentence at Wheatfield Prison, Dublin, for the arson of Collins's pub, Ballybough, Dublin, in 1992.

The case arose after Breathnach applied for temporary release in October 2002 to visit his mother in a nursing home in Co Wicklow. On October 29th, 2002, the Minister for Justice approved temporary release on condition that Breathnach be handcuffed during the release period and be accompanied by prison staff.

Breathnach refused to accept such conditions and did not avail of temporary release. He said he was entitled to visit his mother in a dignified fashion and that the conditions flew in the face of reason and common sense. In November 2002 he secured leave to apply for judicial review.

The action was heard by Mr Justice Ó Caoimh in the High Court who, in a judgment of December 2003, dismissed the case. Breathnach then appealed to the Supreme Court, which yesterday unanimously dismissed the appeal. Mr Justice Hardiman, presiding, sitting with Mr Justice Geoghegan and Mr Justice McCracken, said Ms Nuala Butler SC, for Breathnach, had clearly indicated the ground of complaint which she intended to advance - that the imposition of the handcuffs condition was one for which no reason was advanced.

Counsel for the Minister had contended the imposition of conditions was within the discretion of the Minister and prison governor.

It was also argued that, before Breathnach could look for reasons for the condition - and he had not at any stage looked for any reasons - he was first required to show the discretion was unreasonable or irrationally exercised. There was no obligation to give reasons until a prima facie case to that effect was made.

Mr Justice Hardiman said the court queried whether the case which Ms Butler sought to make in the appeal - that no reasons were advanced for the condition and it should therefore be quashed - arose on the proceedings.

When Breathnach had initially taken his action, he had argued there was no power to impose the condition, the judge noted. When granting leave to take the case, the High Court had refused leave to raise the "no power" argument, holding there was no arguable point in that regard.

However, in circumstances which were not clear, the High Court had granted leave to argue whether the handcuffs condition was reasonable and within the bounds of common sense.

Ms Butler had now argued she was entitled to make the case that the absence of any reasons for the handcuffing condition was relevant to the argument of its rationality in the sense that a decision for which no reason was advanced could be seen as a decision for which there was no reason.

Mr Justice Hardiman said the court did not accept such arguments and was strongly of the view that an argument in relation to the failure to give reasons for the handcuffs condition was quite separate from a claim that the condition was irrational.