The High Court has found that a London-based Jewish Rabbi accused of carrying out an illegal circumcision on a young child in Dublin is being lawfully detained in an Irish prison.
The High Court had late last week directed an inquiry, under Article 40.4.2 of the Irish Constitution into the detention of 47-year-old Rabbi Jonathan Abraham.
He had claimed that his human rights were breached at Cloverhill Prison, where he is currently remanded in custody.
He claimed his rights were being breached due to the prison's failure to provide him with Kosher food, which is food prepared in accordance with Jewish religious beliefs.
Kosher food is the only food he can eat, and following his incarceration his diet had been extremely limited.
He had further claimed that his rights were breached due to the prison's failure to allow him use certain religious apparatus called Tefillin, which consists of two small leather boxes attached to leather straps, which are integral to his and other observant Jews' religious beliefs.
The prison denied that he was being held unlawfully but accepted that there had been failings on its part to provide him with Kosher food.
During the hearing of the inquiry the prison said it has taken steps to rectify all the issues raised by the Rabbi.
In her judgement on Sunday, Ms Justice Nuala Jackson held that a deficiency in the rules regarding the operation of Irish prisons had occurred in this case.
However, the court found that the conditions of the detention did not require the Rabbi to be released from custody.
"The importance of respect for dietary dictates of a religion are amply and rightly recognised in the Prison Rules." the Judge said.
The failure to provide him with Kosher food caused him considerable and understandable stress and seemed to come from a lack of understanding by the prison services to provide him with food in accordance with his religious beliefs, the judge said.
Rabbi's detention
While prisons are busy places, the judge said that it was unfortunate that the issues raised were not dealt with more promptly.
The judge added that the court did not believe the deficiency in this case did not come into the category of wrong that brought the lawfulness of the Rabbi's detention into question.
That level of wrong, she said, was very high, and required the conditions of detention to amount to a deliberation violation of constitutional rights or inhumane or degrading treatment to seriously to endanger life or health where the prison authorities intend to do nothing about.
This was not something that had occurred in the case before the court, the judge held.
The authorities had openly made certain admissions about their shortcomings in this matter, and had indicated in a very comprehensive manner how these issues are to be addressed, the judge said.
Resources had been deployed to address the concerns raised, the judge said, noting that the prison has made arrangements to allow the Rabbi pray with his Tefillin for an hour in the morning and that it would source approved Kosher meals for him.
She also told the court that should further shortcomings occur, it was open for the Rabbi and his lawyers to return to the courts and seek a fresh inquiry into the legality of his detention.
The Rabbi, she said, is a dedicated and committed member of the Jewish faith and his devotion had impressed the court.
The judge said that given the usual circumstances of the case and in light of her findings, she was prepared to direct the State to pay 50 per cent of the Rabbi's legal costs.
His counsel, Michael O'Higgins SC said that his client had attempted to rectify the concerns raised in the proceedings with the prison authorities.
When that was unsuccessful, counsel said his client took an action, which ultimately has addressed his dietary requirements and various rights, including his right to freedom to practise his religion.
Legal costs
Given the court's findings and the concessions from the prison authorities, counsel argued that the Rabbi was entitled to have his legal costs paid for by the respondent.
The Rabbi's action was against the Governor of Cloverhill Prison, who was represented by counsel Matthew Holmes Bl.
During the two-day hearing, the Governor said that arrangements would be made so Kosher food would be made available to him.
It was claimed that attempts had been made to provide the Rabbi with Kosher food after he was remanded in custody.
It is now accepted that the food initially provided did not meet the required criteria for it to be defined as being Kosher.
The prison authorities also agreed to allow the Rabbi to pray using the Tefillin, which he would be provided with for one hour a day.
The prison authorities said that he had not been given the apparatus over concerns that the Tefillin could be used as a weapon by other prisoners or to hide contraband.
The authorities also said that the Rabbi was being kept in a cell by himself for his own safety, and that any searches of him were standard prison procedure.
The Rabbi, a married man with 10 children, is charged with carrying out a surgical procedure, male circumcision on a child, without being a registered medical practitioner at an address in Dublin 15, which is contrary to the 2007 Medical Practitioners Act.
He was arrested in Dublin, late last month, and was subsequently denied bail by the District Court.
The State objected to bail on the grounds of the seriousness of the offence and that the accused was a flight risk.
If convicted of the offence the Rabbi could face a prison term of up to five years, and a maximum fine of €130,000.
He has an appeal pending against the refusal to grant him bail which is due to be heard later this month.
During the hearing, the court heard from the Chief Rabbi of Ireland Rabbi Yoni Wieder, who gave evidence about the importance of Kosher food, and the essential use of certain religious apparatus in Jewish prayer, to Rabbi Abraham.
He said he had concerns about the provision of 'Kosher' food to Rabbi Abraham, as he cannot eat other foods, and said he had attempted to bring 'Kosher' meals to the prison to the applicant. However, the Chief Rabbi said he was told the prison could not take them.
He said that 'Kosher' food is sourced and prepared in accordance with Orthodox Jewish requirements and is certified by a person or body acceptable to a recognised rabbinical authority, including the Chief Rabbinate of Ireland.
He said that Kosher food is not something that can be prepared on site but added that there are several catering entities in Dublin that can prepare 'Kosher' food.
