The Court of Appeal has dismissed S.M.’s appeal seeking release from Cloverhill Prison while he waits for admission to the Central Mental Hospital (CMH). It held that the evidence did not justify an order under Article 40 of the Constitution.
S.M. was remanded to Cloverhill on 14 August 2020 after being charged in connection with the fatal stabbing of a fellow resident at a stepdown facility in Clontarf. The judgment says that, for the purposes of these proceedings, it was not disputed that S.M. stabbed the man. The case concerned the legality of S.M.’s continued detention while he awaited psychiatric treatment, not the criminal charge’s outcome.
S.M.’s lawyers brought the Article 40 application in November 2020. The High Court refused it, and he appealed. The Court of Appeal judgment, delivered by President Birmingham on 1 April 2021, said S.M., the prison governor and the CMH director all wanted him transferred to the hospital. However, the CMH had no available bed.
The court recorded medical evidence that S.M. remained actively psychotic and required inpatient psychiatric care that could not be provided in prison. The evidence also described a risk of serious harm to others and said he could not be appropriately managed in the community or in a lower-security setting. At Cloverhill, he was held on a wing for potentially vulnerable prisoners, received regular mental health care and had been prescribed medication. The judgment noted that he sometimes refused medication and that, at the time of the latest information before the High Court, he was not taking it. His place on the CMH waiting list was reviewed weekly; by March 2021 he was fourth on a list of 12.
President Birmingham agreed with the High Court that the prison regime could be assessed against the likely community alternative. The judgment said S.M. was receiving care in prison while no approved centre would take him because of the risk he posed. It also noted that his condition was not shown to be caused or actively worsened by the failure to admit him, and that he continued to be considered for admission.
The Court of Appeal concluded that the evidence fell short of the serious breach required to make an otherwise lawful detention unlawful under Article 40. It dismissed the appeal. The court did not decide what relief might be available through other proceedings, or whether a stay could have been placed on a different order.