State failed to protect prisoner, High Court rules

A High Court judge has ruled that the State has failed in its constitutional obligations to protect a prisoner who was put in a padded cell in Mountjoy Prison for 11 days because there was no other safe place to put him.

However Mr Justice Gerard Hogan said that "at present" he was declining to make a finding that the breach of Wayne Kinsella's rights was so serious that his detention was unlawful because the prison authorities had placed him in the cell for his own protection.

However the Judge said that if Mr Kinsella's circumstances "were to continue" it would bring the court to a point where it could "stay its hand no longer".

In such circumstances the Judge added Mr Kinsella would be "justifiably entitled to make a fresh application for release".

The Court heard that Mr Kinsella's life is under threat from individuals within the general prison population, and he sought protection within the prison.

Evidence was also given that the Gardaí had provided information to the prison authorities that Mr Kinsella's life was at risk.

Mr Kinsella was placed in the 3mx3m cell, which is completely padded contained nothing but a mattress, had no toilet facilities other than a cardboard box on June 1 last arising out of the five-month conviction he received for theft.

Lawyers acting on his behalf sought an inquiry into the lawfulness of Mr Kinsella's detention in such conditions, described as barbaric, under Article 40 of the Constitution.

Michael O'Higgins SC for Mr Kinsella, who does not have any mental illness nor were there any issues concerning his discipline within the jail, said that his client had been in the padded cell for virtually 24 hours a day.

Mr Kinsella, counsel said was only allowed out for six minutes a day to make a phone call or to smoke. He could not shower, got no exercise time, and was not provided with any books or access to a TV or radio. His client requested a transfer, which did not materialise.

Counsel said that in the 21st century it was "barbaric" to keep a prisoner in such conditions for such a length of time.

However counsel for the governor of Mountjoy Paul Anthony McDermott Bl told the court that Mr Kinsella was being kept in isolation for his own protection.

The prison service, counsel said, had been working to try and find a suitable cell for Mr Kinsella but one had not come available.

Counsel rejected the claim that Mr Kinsella's detention was "barbaric". "What is happening on the streets of Libya is barbaric," counsel said. "However, what is happening here is unsatisfactory."

Counsel added that prison services are making every effort to provide him with a single cell.

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