Campbell v The Irish Prison Service and Another

• Jurisdiction: Ireland
• Judge: Mr Justice Rory Mulcahy
• Judgment Date: 15 December 2023
• Neutral Citation: [2023] IEHC 706
• Court: High Court
• Docket Number: Record No.: 2022/2841 P

Between:

Eddie Campbell

Plaintiff

and

The Irish Prison Service, The Minister for Justice and Equality, Ireland and The Attorney General

Defendants

[2023] IEHC 706

Record No.: 2022/2841 P

THE HIGH COURT

Injunction – Dismissal – Right to fair procedures – Plaintiff seeking an injunction restraining his dismissal – Whether the plaintiff had established a strong case likely to succeed at hearing

Facts: The Secretary General of the second defendant, the Minister for Justice and Equality, on 13 June 2023, notified the plaintiff, Mr Campbell, of the decision to terminate the plaintiff’s contract as a recruit prison officer with the first defendant, the Irish Prison Service. The decision was scheduled to take effect on 20 June 2023. On 16 June 2023, the plaintiff obtained an order from the High Court (Stack J) restraining the defendants from proceeding with the decision to terminate until after 20 June 2023 or further order. That order was continued by consent pending the hearing of the plaintiff’s interlocutory application seeking an injunction restraining his dismissal, and his reinstatement to full duties pending the determination of the proceedings. The plaintiff’s dismissal followed a finding of serious misconduct against him in a disciplinary procedure carried out in purported compliance with the Department of Public Expenditure and Reform’s Circular No. 04/2019, Disciplinary Procedures for new entrant civil servants serving in a probationary capacity. The plaintiff denied any alleged wrongdoing and contended that the disciplinary process failed to respect his contractual and constitutional rights to fair procedures. The plaintiff complained about each step in the process, the investigative phase, the disciplinary phase and the appellate phase, and argued that he had established a strong case likely to succeed at hearing in respect of each deficiency identified. He also argued that, taken in the round, the process was so unfair as to entitle him to an interlocutory injunction.

Held by Mulcahy J that, as made clear in Mason v ILTB Ltd [2021] IEHC 477, it was not necessary for the plaintiff to establish that the entirety of his case met the threshold of a strong case likely to succeed. Mulcahy J held that the plaintiff had not made out a strong case likely to succeed that the defendants had failed to comply with the disciplinary procedure to which the plaintiff was contractually entitled. It did not seem to Mulcahy J that the plaintiff had made out a strong case likely to succeed that either the disciplinary hearing or the appeal hearing were conducted other than in accordance with fair procedures or that the reasons given for the decision at the disciplinary stage or on appeal were inadequate or irrational. Mulcahy J held that the individual complaints made by the plaintiff did not amount to a strong case likely to succeed. In Mulcahy J’s view, at the interlocutory stage, the plaintiff had not established that there was a strong case that, considered in the round, the procedure adopted by the defendants fell short of the requirements of fair procedures. Mulcahy J noted that the overall procedure included a lengthy investigation, during which the plaintiff was interviewed twice, followed by a disciplinary hearing at which he was represented by a colleague; he was advised of the outcome and given a right of appeal, which he exercised. The entire procedure appeared to Mulcahy J to have been carried out in accordance with the requirements to which the plaintiff was contractually entitled.

Mulcahy J held that the plaintiff had not met the threshold required to obtain an injunction to restrain his dismissal. He refused the reliefs sought.

Reliefs refused.

JUDGMENT of Mr Justice Rory Mulcahy delivered on 15 December 2023

Introduction

1 . On 13 June 2023, the Secretary General of the second Defendant notified the Plaintiff of the decision to terminate the Plaintiff's contract as a recruit prison officer with the first Defendant. The decision was scheduled to take effect on 20 June 2023. On 16 June 2023, the Plaintiff obtained an order from the High Court (Stack J) restraining the Defendants from proceeding with the decision to terminate until after 20 June 2023 or further order.

2 . That order was continued by consent pending the hearing of this interlocutory application. The parties exchanged numerous affidavits and written legal submissions, and the injunction was heard before me on 16 November 2023. In this application, the Plaintiff seeks an injunction restraining his dismissal from his position as a recruit prison officer with the first Defendant and his reinstatement to full duties pending the determination of these proceedings.

3 . The Plaintiff's dismissal followed a finding of serious misconduct against him in a disciplinary procedure carried out in purported compliance with the Department of Public Expenditure and Reform's Circular No. 04/2019, Disciplinary Procedures for new entrant civil servants serving in a probationary capacity (“ Circular 04/2019”). The Plaintiff denies any alleged wrongdoing and contends that the disciplinary process failed to respect his contractual and constitutional rights to fair procedures.

Factual Background

4 . Mr Campbell started work with the first Defendant (“ the IPS”) as a recruit prison officer on a twelve-month probationary contract on 25 April 2022. His contract of employment was stated to be subject to the Civil Service Regulation Acts 1956 to 2005. During the first six weeks of his employment, he trained in Portlaoise Prison (“ the Prison”) and was provided with residential accommodation in a single room in the Prison. The room was inspected when he left on 3 June 2022, and nothing untoward was discovered. The Defendants describe this inspection as, in effect, a cursory inspection to determine whether there was any damage to the room.

5 . The room was not occupied again after Mr Campbell moved out, due to the system of rotation of available accommodation in operation at the Prison. It was subjected to what was described as a “deep clean” on 9 June 2022. Whether anyone else entered the room after Mr Campbell left but before that deep clean was a significant issue addressed during the disciplinary proceedings.

6 . During the cleaning of the room on 9 June 2022, three plastic bags containing a white powdery residue were found in the drawer of a bedside locker. Mr Campbell has never contended that the bedside locker had been inspected as part of the inspection on 3 June 2022. Mr Campbell was notified of the discovery of the plastic bags the following day and was advised that An Garda Siochána had been notified.

7 . It appears that Mr Campbell was advised by another prison officer that there were insufficient quantities of the substance in the bags to allow for forensic testing or that testing had been inconclusive. This is corroborated by an email from the IPS to a Superintendent of An Garda Siochána, dated 7 July 2023, noting that one of the Assistant Governors in the Prison had been told that there was insufficient content in the bags to make an analysis. The email stated that the IPS was keen to have a determination made by a laboratory as to the bags' contents and offered to take the matter up with the laboratory directly. By further email dated 3 August 2022, the Superintendent confirmed to the IPS that the substance had been sent to Forensic Science Ireland for testing. By further email dated 15 November 2022, a Detective Inspector of An Garda Siochána confirmed to the IPS that the substance in the bags had been identified as cocaine by Forensic Science Ireland.

8 . On 15 December 2022, Mr Campbell was notified that an investigation would be conducted under the civil service disciplinary code. He was sent terms of reference on 31 January 2023 and was invited to attend an interview at Cloverhill prison on 8 February 2023. The terms of reference set out in detail the allegations against Mr Campbell and the procedure to be followed, and was accompanied by a summary of the evidence, including details of the review of the CCTV undertaken by the IPS, photos of the bags and clothes found in Mr Campbell's room and a statement from the facilities manager who found the plastic bags. At this time, the Plaintiff was told the disciplinary procedure would take place in accordance with the provisions of Circular No. 19/2016, Civil Service Disciplinary Code (“ Circular 19/2016”).

9 . On 8 February 2023, the Plaintiff requested an adjournment of the interview and was shown CCTV footage. The interview was adjourned, and he was invited to attend again on 22 February 2023 with an officer of the rank of Assistant Governor acting as the Investigating Officer. He attended an investigation meeting on that date.

10 . On 28 February 2023, the Plaintiff was informed that he had been inadvertently provided with Circular 19/2016, containing the disciplinary code of general application to the Civil Service, rather than the correct circular, Circular 04/2019, which contains the procedure for new entrants to the service. He was advised that the disciplinary procedure would be conducted under Circular 04/2019. Revised terms of reference to reflect this were provided on 13 March 2023.

11 . Mr Campbell was requested to attend a second investigation meeting on 20 March 2023. The second meeting was for the purpose of addressing matters which Mr Campbell had not referenced during the first meeting, in particular, the fact that he had left his room in the early hours of 9 June 2022 and also that another officer had been with him in his room for a short period that night. Following the meeting, the Investigating Officer produced an investigation report (“ the Investigation Report”) dated 28 March 2023. The Investigation Report concluded that Mr Campbell had three small plastic bags in his possession, which he left behind...