Darren Delacey v The Governor of Wheatfield Prison, Ireland and The Attorney General
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 01 February 2022 |
| Neutral Citation | [2022] IEHC 55 |
| Court | High Court |
| Docket Number | [RECORD NO. 2020/571 JR] |
[2022] IEHC 55
[RECORD NO. 2020/571 JR]
THE HIGH COURT
Disciplinary inquiry – Breach of fair procedures – Legal test – Applicant seeking to quash the outcome of a disciplinary inquiry – Whether there was a breach of fair procedures
Facts: Officer Grady of Wheatfield Prison, on 7th August, 2020, during a random search of the cell of the applicant, Mr Delacey, found a mobile phone which had been concealed in taping that had been used to affix plastic as a form of shower curtain in the shower cubicle. The applicant was not present at the time of the search. Officer Grady subsequently issued a P.19 report, in which it was alleged that the applicant had committed two breaches of prison discipline: possession of a prohibited article and possession of an article of which the prisoner did not have permission (contrary to Schedule 1, paras. 19 and 20 of the Prison Rules 2007). In accordance with rule 66(2) of the Prison Rules 2007, Assistant Governor McCarthy of Wheatfield Prison elected to hold an inquiry into the alleged breaches of prison discipline. That hearing was held on 9th August, 2020. At the hearing, the applicant accepted that the mobile phone had been found in his cell, but denied knowing that it was there and denied ownership of it. The applicant sought to have the phone examined, to bolster his claim that he had nothing to do with the phone. The Assistant Governor outlined that the phone could not be examined for the purposes of the disciplinary hearing, as it was in the possession of An Garda Síochána. In her report, she stated that “the phone was found in your cell”. She then stated that the applicant was responsible for all items in his cell. It was on that stated basis that she found the breaches to have been proven and imposed sanctions on the applicant accordingly. The applicant applied to the High Court seeking to have that decision of the respondent, the Governor of Wheatfield Prison, quashed by the court, together with a consequential order setting aside any records indicating that he was found guilty of breaches of the Prison Rules. The essence of the applicant’s challenge was that: (i) there was a breach of fair procedures in that he was not permitted to examine the phone; (ii) the Assistant Governor applied the wrong legal test; (iii) in breach of fair procedures, he was not told of the Assistant Governor’s concerns in relation to his alleged lack of knowledge of the phone; and (iv) the imposition of a sanction of restrictions on visiting rights was ultra vires.
Held by Barr J that it was possible that an examination of the phone may have provided support to the applicant's plea that he had had no knowledge of it being in his cell. The court found that there was a breach of fair procedures in not even trying to obtain the necessary information from the Gardaí. The court was satisfied that the Assistant Governor applied a test of strict liability, which was not the correct test to apply when considering whether the applicant was in possession of the phone and was therefore in breach of subparagraphs 19 and 20 of Schedule 1 to the Prison Rules. Even if the court was wrong in that finding, the court was satisfied that the concerns which the Assistant Governor had in relation to the issue of knowledge and the basis on which she had those concerns, were not put to the applicant for his comment in advance of the finding of guilt being made by the Assistant Governor.
Barr J held that it was necessary to set aside the finding that the applicant was guilty of breach of the Prison Rules. Barr J held that, in such circumstances, the issue of severance of that part of the punishment in relation to the limitation on visiting rights did not arise for consideration. Barr J held that any reference to the finding of breaches of discipline made against the applicant would have to be removed from his prison record.
Application granted.
JUDGMENT of Mr. Justice Barr delivered electronically on the 1st day of February, 2022.
These proceedings arise from a disciplinary inquiry held by Assistant Governor Lorraine McCarthy of Wheatfield Prison (hereafter referred to as “the Assistant Governor”) into the conduct of the applicant, a prisoner in Wheatfield Prison, for alleged possession of a mobile phone.
The applicant seeks to quash the outcome of this inquiry, in circumstances where he was found guilty of the two disciplinary offences which had been alleged against him; together with a consequential order setting aside any records indicating that he was found guilty of breaches of the Prison Rules.
The inquiry arose from a random search of the applicant's cell by Officer Grady of Wheatfield Prison on 7th August, 2020. The applicant was not present at the time of the search. Officer Grady found a mobile phone in the cell, which had been concealed in taping that had been used to affix plastic as a form of shower curtain in the shower cubicle.
Officer Grady subsequently issued a P.19 report, in which it was alleged that the applicant had committed two breaches of prison discipline. These were; possession of a prohibited article and possession of an article of which the prisoner did not have permission (contrary to Schedule 1, paras. 19 and 20 of the Prison Rules 2007).
In accordance with rule 66(2) of the Prison Rules 2007, the Assistant Governor elected to hold an inquiry into the alleged breaches of prison discipline. This hearing was held on 9th August, 2020. At the hearing, the applicant accepted that the mobile phone had been found in his cell, but denied knowing that it was there and denied ownership of it. The applicant sought to have the phone examined, to bolster his claim that had nothing to do with the phone.
The Assistant Governor outlined that the phone could not be examined for the purposes of the disciplinary hearing, as it was in the possession of An Garda Síochána. In her report, she stated that “ the phone was found in your cell.” She then stated that the applicant was responsible for all items in his cell. It was on that stated basis that she found the breaches to have been proven and imposed sanctions on the applicant accordingly.
It is this decision of the respondent that the applicant seeks to have quashed by the court. The essence of the applicant's challenge is that (i) there was a breach of fair procedures in that he was not permitted to examine the phone; (ii) the Assistant Governor applied the wrong legal test; (iii) in breach of fair procedures, he was not told of the Assistant Governor's concerns in relation to his alleged lack of knowledge of the phone and (iv) the imposition of a sanction of restrictions on visiting rights was ultra vires.
The applicant is currently serving a custodial prison sentence for offences contrary to s. 15(a) of the Misuse of Drugs Act 1977. He was serving this sentence in the Midlands Prison until 31st March, 2020, on which date he was transferred to Wheatfield Prison. The applicant is currently imprisoned at Wheatfield Prison, he is due to be released on 28th November, 2024. He has been the only occupant of his cell since 13th May, 2020.
On 7th August 2020, the applicant's cell was the subject of a random general search by Officer Grady. During the course of the search, the officer found a mobile phone concealed behind tape in the shower cubicle of the cell. A plastic bag had been taped over the shower cubicle privacy wall with opaque sticky tape (presumably for privacy reasons, as a sort of make-shift shower curtain), as the wall was circa 1.3m in height. Although, it must be noted that the Assistant Governor, in her affidavit of 28th August, 2020, stated that the plastic bag was not required for reasons of privacy owing to the mid-height level wall of the shower cubicle. Subsequently, in cross-examination, the Assistant Governor accepted that that the shower cubicle was not very private.
It was accepted by both parties that the applicant did not put the plastic bag in place; it had been in situ before he moved into the cell. The phone was found rolled in tape, affixed into the corner of the plastic bag, where it had been taped to the wall of the shower cubicle. The Assistant Governor, in her affidavit of 28th August, 2020, described the device as carefully concealed and ‘not easy to find’.
Upon finding the mobile phone, Officer Grady issued a P.19 alleging that the applicant had committed two disciplinary breaches. These were:
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(a) Contrary to Schedule 1, para. 19 of the Prison Rules 2007, the applicant “ has in his or her cell or room or has in his or her possession any prohibited article,”
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(b) Contrary to Schedule 1, para. 20 of the Prison Rules 2007, the applicant “ has in his or her possession an article in a part of the prison where he or she is not permitted to be in such possession,”.
On 9th August, 2020, the Assistant Governor held an inquiry into the breaches of discipline alleged against the applicant. At the hearing of the inquiry, the applicant denied the committal of any disciplinary breaches. Although he accepted that the phone was found in his cell, he stated that it had ‘nothing to do with him’ and that he did not know that it had been there.
In order to support this position, the applicant requested that the mobile phone be examined in order to compare the list of contacts and call log on the phone, to his own list of contacts maintained by the prison. The applicant alleged that this would have shown that the numbers on the phone were not associated with him and would support his claim that the phone was not his.
The Assistant Governor told the applicant that it was not possible to examine the phone for the purposes of the disciplinary hearing, as the phone was no longer in...
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