Detention in padded cell violates human rights


Kinsella -v- the governor of Mountjoy Prison

Neutral citation: (2011) IEHC 235.

High Court

Judgment was given on June 12th, 2011, by Mr Justice Gerard Hogan.


The detention of a man serving a sentence for theft – but on remand for a more serious offence – in a padded cell in Mountjoy Prison for 11 days violated his constitutional rights, but not yet to an extent that rendered the detention unlawful, requiring the court to order his release. However, should such detention continue, this would be likely to arise.


Wayne Kinsella is serving a five-month sentence for theft and is on remand awaiting trial for murder, with the trial expected to take place in May 2012. Before his theft conviction he was on remand in Cloverhill Prison, where his conditions were humane and civilised.

After his conviction on June 1st, 2011, he was moved to Mountjoy, where it was agreed his life could be in danger from other prisoners. This imposed constraints on the authorities, who must take effective security precautions to protect him when he leaves his cell. On his conviction, he was placed in an observation cell, entirely padded and containing nothing but a mattress. The sanitation facilities consist of a cardboard box.

The cell measured about 3m x 3m, and had a small window, which was shuttered. There was no access to a radio or television.

It was not disputed that he spent virtually all of the 11 days in this cell, leaving it to make one short telephone call each day. The padded cells are designed as a temporary exigency for disturbed prisoners who need to be protected from self-harm or who pose an immediate threat to other prisoners, and it was acknowledged that Kinsella did not fall under these categories.

He was seeking a declaration that his constitutional rights had been infringed by the conditions of his detention, and sought his release under Article 40.4.2 (habeas corpus provision) of the Constitution.

The real problem, Mr Justice Hogan said, was the shortage of single cells in the prison system.


Mr Justice Hogan said it was the State’s duty to protect and vindicate the person of Kinsella, while it also had a duty to protect his right to life and that of other persons. “It is undeniable that detention in a padded cell of this kind involves a form of sensory deprivation, in that the prisoner is denied the opportunity of any meaningful interaction with his human faculties of sight, sound and speech – an interaction that is vital if the integrity of the human personality is to be maintained,” Mr Justice Hogan said.

While no evidence had been brought forward to indicate the impact such deprivation had on Kinsella, this was an urgent application and one did not need to be a psychologist to envisage the mental anguish that would be entailed by a more or less permanent lock-up under such conditions, he said.

“Detention in such conditions for well over a week fails to meet the minimum standards of confinement presupposed by the constitutional guarantee in relation to the protection of the person contained in Article 40.3.2,” he said.

Turning to the application for release under Article 40.4.2, he said its principal, and perhaps exclusive, function was to determine whether the applicant was lawfully detained. The question was whether the breach of his constitutional rights entitled him to immediate and unconditional release.

He said he could not currently say the applicant’s continued detention had been rendered entirely unlawful by the breach of his constitutional right to the extent envisaged necessary by Mr Justice Frank Clarke in H -v- Russell (linked to a detention under 2001 Mental Health Act).

Kinsella’s conditions of detention arose from the authorities’ genuine concern for his safety and the difficulties they encountered in finding suitable accommodation for him. It would only be fair to give them a chance to remedy the situation in the light of his decision.

His proposed solution – upholding the claim of a violation of a constitutional right, but giving the authorities a chance to remedy this breach – was the most apt having regard to the principles of separation of powers, given the duty of running the prisons rests with the executive branch.

He concluded the detention of the applicant in a padded cell for 11 days breached the State’s obligation to protect his person; that this breach was not currently such that it immediately vitiated the lawfulness of his detention, and the authorities should have an opportunity to remedy the situation. Therefore, the application for release must technically fail. If the conditions of detention continued, the case “would inch its way to the point where the court could stay its hand no longer”.

In a postscript, it was noted the Prison Service moved Kinsella to Cloverhill the next day. The full judgment is on

Michael O’Higgins SC and Derek Cooney BL, instructed by Fahy, Bambury, McGeever, for the applicant; Paul Anthony McDermott BL, instructed by the Chief State Solicitor, for the respondent