Burns and Another v Governor of Castlerea Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 02 April 2009
• Neutral Citation: [2009] IESC 33
• Court: Supreme Court
• Docket Number: [S.C. No. 132 of 2006]
• Date: 02 April 2009

[2009] IESC 33

THE SUPREME COURT

Denham J.

Geoghegan J.

Kearns J.

Record No. 132/06

Burns & Hartigan v Governor of Castlerea Prison

BETWEEN/

ALAN BURNS AND JOHN HARTIGAN

Applicants/Respondents

and

THE GOVERNOR OF CASTLEREA PRISON

Respondent/Appellant

and

THE MINISTER FOR JUSTICE, EQUALITYAND LAW REFORM

Notice Party

PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES 1996 SI 289/1996 REG 8(2)

R v SECRETARY OF STATE FOR THE HOME DEPT, EX PARTE TARRANT (JAMES) 1985 QB 251 1984 2 WLR 613 1984 1 AER 799

GARVEY v MIN FOR JUSTICE & GOVERNOR OF MOUNTJOY PRISON UNREP O CAOIMH 5.12.2003 2003/23/5303

CURLEY v GOVERNOR OF ARBOUR HILL PRISON 2005 3 IR 308 2006 1 ILRM 10 2005/13/2722 2005 IESC 49

PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES 1996 SI 289/1996 REG 5

PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES 1996 SI 289/1996 REG 8

PRISONS

Discipline

Legal representation - Governor - Exercise of disciplinary jurisdiction - Whether accused entitled to legal representation - Whether Governor having discretion to permit legal representation - Factors to be considered - Reg v Home Sec, Ex p Tarrant [1985] 1 QB 251 approved; Curley v Governor of Arbour Hill Prison [2005] IESC 49, [2005] 3 IR 308 followed - Prison (Disciplinary Code for Officers) Rules 1996 (SI 289/1996), r 8(2) - Respondent's appeal allowed (132/2006 - SC - 2/4/2009) [2009] IESC 33

Burns v Governor of Castlerea Prison

Facts: The issue arose on appeal as to whether a prison officer against whom complaints had been made for breaches of the Disciplinary Code for officers was entitled to legal representation at an oral hearing. The High Court quashed a penalty determination by the Governor of the Prison. Both respondents had attended the hearing and were expressly refused legal representation on the grounds that the Disciplinary Code did not provide for legal representation. The High Court held that the charges in respect of an improper overtime claim were sufficiently serious to warrant legal representation.

Held by the Supreme Court per Geoghegan J. (Denham & Kearns JJ. concurring), that legal representation was clearly unnecessary in the case. It was difficult to see how a lawyer would be required where the dispute was factual. Legal representation should remain the exception and not the rule in an oral hearing. The contrary view would be against the requirements of natural and constitutional justice. The appeal would be allowed and the Court would make an order setting aside the order of the High Court quashing the decision of the Governor.

Reporter: E.F.

1 Judgment of Mr. Justice Geoghegan delivered the 2nd day of April 2009

2 Judgment delivered by Geoghegan J. [nem diss]

3 The net question which arises on this appeal is whether a prison officer against whom complaints have been made of alleged breaches of the Disciplinary Code for Officers is entitled to legal representation at an oral hearing before the Governor of the Prison established under the Prison (Disciplinary Code for Officers) Rules, 1996 ( S.I. No. 289 of 1996). The issue comes before this court in the form of an appeal from an order of the High Court (Butler J.) quashing a penalty determination by the Governor of Castlerea Prison in an application for judicial review brought by the above-named respondents Alan Burns and John Hartigan, the two accused prison officers.

4 Rule 8(2) of the Disciplinary Code embodied in the above cited rules reads as follows:

"The accused officers shall be present throughout an oral hearing and may put forward his or her answer to the allegation and call any relevant witness."

5 The mandatory part of that sub-rule required the accused prison officers to be present at the hearing. In obedience to that provision, both respondents were present but the Governor conducting the hearing was informed that they were only present for that reason and were not going to participate in the hearing as the Governor had, both in prior correspondence and at the hearing itself, expressly refused them legal representation. Significantly, the express grounds given by the Governor for the refusal was that the Disciplinary Code did not provide for legal representation.

6 The learned High Court judge took the view that the charges were sufficiently serious to warrant legal representation and that in those circumstances such representation ought to have been provided notwithstanding the absence of any specific mention of such representation in the rules. I will be giving details of the charges in due course and I will also return to the judgment of Butler J. I would like to refer first to the legal case put forward on behalf of the Governor in this court.

7 Mr. James O'Reilly, S.C. appearing for the Governor argued strongly in support of the view which the Governor had taken that, under the rules, legal representation is not provided for and is, therefore, not permissible. The rules do provide for advocacy assistance but only from officers within the prison service. It would appear, however, that, as in this particular case, it was common practice for trade union representatives to act as advocates. It was not clear to me as to whether they were in the nature of seconded officers of the prison service. Mr. O'Reilly, in accordance with his instructions, was anxious to protect the principle enunciated by the Governor that the rules did not permit of legal representation and he fully conceded that that was the ground on which the Governor refused it. For this reason, he appeared understandably reluctant to engage with the court on the question of whether, even if the norm would be to disallow legal representation, there would be a discretion open to the Governor to permit it in an appropriate case. Examples of the kind of cases where it might arise were usefully listed by Webster J. in R. v. Secretary of State for the Home Department, ex parte Tarrant [1985] 1 Q.B. 251. I would adopt that list as a broad guideline and I will return to it later on in this judgment.

8 Mr. Horan, S.C., counsel for the respondents has sensibly agreed that if this court takes the view that the Governor had a discretion as to whether to allow legal representation or not, this court can then go on to decide whether in all the circumstances the decision which the Governor in fact made would have been the correct one on any exercise of that discretion. This will avoid futile and unnecessary expense in returning the matter either to the Governor or to the High Court.

9 I turn now to the basic facts of which it is necessary only to give a brief outline. The respondents were, at all material times, prison officers in Castlerea Prison. On the 26 ^th April, 2002, they were detailed to escort a prisoner from the prison to Merlin Park Hospital in Galway for a medical examination. The respondents left the prison with the prisoner at 10.25 a.m. on that morning and returned to the prison at 6.25 p.m. that evening. As a consequence of a report made following a routine check by Assistant Governor Melvin three days later, the Assistant Governor reported that he had discovered that "the prisoner's business" was completed at 12.40 p.m. and that the escort returned to the prison at 6.35 p.m. There was an immediate prima facie allegation that the length of time in which the respondents were on the escort was wholly excessive with the consequence of an improper overtime claim. When Assistant Governor Melvin reported to the Governor, the latter directed further investigations. Statements were in due course made by the respondents. The investigations culminated in complaint forms pursuant to the above cited rules of 1996 being sent to the respondents on the 15 ^th July, 2003. The complaints were threefold and read as follows:

10 2 "1. That on the 26 ^th April, 2002 while assisting on the escort to...