The Irish High Court case of Foy v Governor of Cloverhill Prison concerned whether preventing a prisoner from having contact with his family during prison visits infringes his rights under Article 41 of the Irish Constitution and Article 8 of the European Convention on Human Rights. The applicant was convicted of armed robbery, but was a remand prisoner at the time of the complaint. This meant that at the time, he was still presumed to be innocent in law.
The applicant was only entitled to screened visits but when his solicitors requested that physical contact be permitted, the governor confirmed that the applicant could apply for a box visit. The applicant argued that a visit without physical contact would infringe Article 41 of the Constitution. This article says that the family is a moral institution which “possesses rights that can neither be given away nor removed by law”. The court found that this constitutionally-protected family role could be carried out by another relative such as a mother or a grandmother. The court also noted that the Prison Rules are there to ensure order and discipline within the prison.
Justice Charleton refused judicial review and said that the prison system retained “a sufficient level of flexibility within the system so as to allow for contact between a prisoner and his family where security risks are adjudged to be at an appropriately low level and where such an occasion can fit within the demands for personnel, facilities and rostering of supervision in the context of the governance of the prison as a whole.”
The Irish Penal Reform Trust (IRPT) commented that “We would advocate the importance of complying with human rights obligations for prisoners on remand, as well as for those convicted. This includes the right to physical contact with his/her family. Research has highlighted how fundamental family visits can be, as well as the importance of maintaining good family relationships in order to rehabilitate the offender. Physical contact may be considered as an integral component of maintaining good family relationships. “
Click here to view the judgment in full.
In another recent Article 41 decision, the Irish High Court set aside a decision by the Minster for Justice’s refusing to grant permission to reside to an Irish citizen couple’s dependant elderly parents. In O’Leary and Lemiere v The Minister for Justice, the Justice Cooke rejected the respondent’s argument that the definition of family in Article 41 of the Constitution encompasses only the nuclear family and does not extend to adults and their parents. Cooke held that he found it difficult to avoid the impression that the decision maker had been more concerned with seeking reasons to justify a refusal rather than undertaking a balanced and objective assessment of the merits of the case.