A Supreme Court judge has said the constitutional rights of Gary Simpson were breached by the conditions in which he was held in prison, while cautioning against treating European human-rights law as the source of an unenumerated right under the Irish Constitution.
In a judgment delivered on 14 November 2019, O’Donnell J. said he agreed with the judgment of MacMenamin J. and added observations on the constitutional reasoning. He concluded that the right of the person protected by Article 40.3.2° had been breached.
O’Donnell J. rejected the appellant’s argument insofar as it sought to combine European Court of Human Rights case law on Article 3 of the European Convention on Human Rights with a claim for damages for breach of an unenumerated Irish constitutional right. He said the Irish Constitution and the Convention are different instruments, and the scope of constitutional rights could not be determined by the jurisprudence of a court that was not established under the Constitution.
The judge said conduct prohibited by Article 3 was also prohibited by the Constitution, but considered that protection should be grounded in the Constitution’s text and Irish case law. He said the Article 40.3.2° guarantee to protect the person extends beyond physical intrusion and may encompass personal space and psychological well-being. It is implicated, he said, when a person is confined by the State in cramped, overcrowded and unsanitary conditions with little possibility of exercise.
O’Donnell J. noted that the appellant’s conditions were not said to be justified by exigency, emergency or another weighty consideration. He agreed with MacMenamin J. that the appellant’s constitutional rights, particularly the right of the person, had been breached.
The supplied judgment is O’Donnell J.’s set of observations agreeing with MacMenamin J. It does not set out MacMenamin J.’s full reasoning or specify in this text any separate order or damages award.