Solitary for Melanie McCarthy McNamara killer a ‘violation’

A 22 to 23 hour solitary confinement regime imposed for almost a year on a man serving a life sentence for the murder of a teenage girl amounts to a "clear sustained violation" of his right to bodily and psychological integrity, the High Court has ruled.

Prisoners are citizens of the Republic entitled to full protection of the constitutional rights that remain to them, Mr Justice Brian Cregan said.

The authorities at Wheatfield Prison had claimed Daniel McDonnell (20) was being kept apart from the rest of the prison population for his own safety.

In a detailed judgment, Mr Justice Cregan found the regime McDonnell has been subject to for the last 11 months breached his constitutional rights to bodily and psychological integrity.

That breach is unlawful and neither necessary nor proportionate to the perceived threat to McDonnell’s person, the judge said. While the regime has been described as a 22 to 23 hour per day lock, it is, to all intents and purposes, solitary confinement.

McDonnell, Brookview Lawns, Tallaght, was found guilty in January 2014 by a jury at the Central Criminal Court of murdering Melanie McCarthy McNamara. The 16-year-old girl was gunned down as she sat in a car with two others in a drive by shooting in Tallaght in February 2012. McDonnell had denied the charge.

During his trial, the jury was shown letters written in prison, where he admitted to the killing.

Following the verdict, Mr Justice Paul Carney imposed the mandatory life sentence.

In his High Court action, McDonnell said he was subject to a 23-hour lock up and permitted just one hour outside his cell to do chores and exercise in the afternoon. His requests to mix with other prisoners were refused.

He said he spends most of his time in his single cell and claimed he was being denied access to structured activities within the prison. McDonnell was finding it difficult to cope and his health has suffered, it was argued.

Lawyers for the prison governor said McDonnell has fallen out with prisoners whom he used to associate with and has been kept isolated due to a significant threat to his safety.

In his judgment, Mr Justice Cregan said keeping McDonnell in solitary confinement for eleven months was “a clear sustained violation of his constitutional right to bodily and psychological integrity.”

The judge accepted the intention of keeping him in solitary confinement was for McDonnell’s own protection but said keeping a prisoner in solitary for 11 months was wholly disproportionate.

While McDonnell was not in solitary confinement as a punishment, the length of time he was there had the same effect as a punishment, the judge said.

If McDonnell remained in solitary, there would be a real and substantial risk to his mental health and there was evidence his mental health is starting to suffer, he added.

McDonnell was kept in solitary under regulation 63 of the prison rules on the basis there was a credible threat to his safety but he did not accept there was such a threat and said his confinement was against his will.

It was a strict requirement under regulation 63 the end date for the prisoner’s solitary confinement must be stated but, in all but one of the regulation 63 directions made concerning McDonnell, no such end date was stated, he said. On that ground alone, the regulation 63 directions were unlawful on their face.

The judge adjourned the matter to later this week to allow the sides time to consider his judgment before making any formal orders or declarations and said he hoped both sides could come up with something to that would remedy the situation.