Doolan v The Governor of Arbour Hill Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice Murphy |
| Judgment Date | 09 April 2019 |
| Neutral Citation | [2019] IEHC 211 |
| Court | High Court |
| Docket Number | Record No. 2017/1007JR |
| Date | 09 April 2019 |
AND
AND
AND
AND
[2019] IEHC 211
Murphy Deirdre J.
Record No. 2017/1007JR
THE HIGH COURT
JUDICIAL REVIEW
Disciplinary hearing – Breach of prison discipline – Fair procedures – Applicant seeking an order of certiorari – Whether there was a want of fair procedures in the manner in which a disciplinary hearing was conducted
Facts: The applicant, Mr Doolan, was incarcerated in Arbour Hill Prison where he was serving a sentence of 12 years on foot of his conviction of 42 sexual offences committed against a single complainant. The final two years of his sentence were suspended. The applicant applied to the High Court seeking an order of certiorari together with various declaratory orders, arising from a disciplinary hearing held on 27th September, 2017 at Arbour Hill Prison. At that hearing, the applicant was found to be in breach of prison discipline under Schedule 1 of the Prison Rules 2007. While the applicant in his statement of grounds sought in addition to certiorari, six declaratory orders, the thrust of his complaint fell to be considered under three headings: 1) that the first respondent, Governor Dowling, did not have jurisdiction to conduct the disciplinary hearing; 2) that there was a want of fair procedures in the manner in which the disciplinary hearing was conducted; and 3) the petition procedure in respect of disciplinary sanctions imposed was ineffective and breached basic principles of natural justice.
Held by Murphy J that the use of prison phone call privileges for nefarious purposes is a matter that falls squarely within the Prison Rules 2007 and that the use of such phone privileges for the purpose of bullying or harassing a victim is a misuse of phone privileges. She was satisfied that the misconduct alleged was not criminal in nature and that the applicant’s Article 6 rights were not engaged. She was not persuaded that in this particular case, the applicant was denied a proper opportunity to prepare for the hearing of the complaint against him. She considered that the applicant was given sufficient reasons for the decision reached at the hearing. She was not persuaded that the applicant was denied an opportunity to be heard in mitigation. His complaint that the hearing was not conducted by an impartial tribunal and was impermissibly informal was in her view unstateable. She was satisfied in the circumstances of this case that there was a clear breach of fair procedures in the governor’s failure to produce to the applicant the evidence on which the governor relied to convict him, and in addition, there was a failure to comply with the requirements of Rule 67(6) of the 2007 Rules, which entitles a prisoner to the opportunity to examine the evidence against him. She held that those failures, without more, warranted the quashing of the governor’s decision. In light of her determination that the finding of Governor Dowling should be quashed, she did not consider it necessary or appropriate to reach a conclusion as to whether or not the petition procedure was lawful.
Murphy J proposed to grant an order of certiorari quashing the decision of Governor Dowling made on 27th September, 2017. Having regard to the fact that the sanction imposed had already been served, she did not propose to remit the matter for re-hearing.
Order granted.
The applicant, Mr Brian Doolan, is currently incarcerated in Arbour Hill Prison where he is serving a sentence of 12 years on foot of his conviction of 42 sexual offences committed against a single complainant. The final two years of his sentence were suspended.
The applicant seeks an order of certiorari together with various declaratory orders, arising from a disciplinary hearing held on 27th September, 2017 at Arbour Hill Prison. At that hearing, the applicant was found to be in breach of prison discipline under Schedule 1 of the Prison Rules 2007.
While the applicant in his statement of grounds sought in addition to certiorari, six declaratory orders, the thrust of his complaint falls to be considered under three headings:
1) that Governor Dowling did not have jurisdiction to conduct the disciplinary hearing;
2) that there was a want of fair procedures in the manner in which the disciplinary hearing was conducted; and
3) the petition procedure in respect of disciplinary sanctions imposed, is ineffective and breaches basic principles of natural justice.
The facts set out below are in the main, uncontroverted.
In his affidavit sworn on 4th April, 2018, Governor Dowling avers the following:-
In or around September, 2017, confidential information was received by the Irish Prison Service to the effect that a website had been created a number of months earlier by the son of the applicant, Mr. Christian Doolan. The website entitled “www.briandoolan.com”, contained a large amount of material which Governor Dowling avers, attacked the credibility and character of the applicant's victim. The website also contained a photograph of the victim which had been taken by the applicant when the victim was a child. The court notes that while prisoners do not have access to the internet, there appears to be no prohibition under the Prison Rules on maintaining a website.
Governor Dowling avers that there was reason to believe that some, if not all, of the material posted to the website, came from the applicant and that the applicant had been instructing his son to upload specific content on the website. He avers that an investigation conducted by the Irish Prison Service, revealed that the applicant had been using the prisoners” phone privileges in Arbour Hill Prison to give instructions to his son, Christian, on the material to be placed on the website, including material directed at the victim of his crimes. The investigation disclosed that the applicant had made a phone call to his son on 11th September, 2017, in which the applicant had directed that material be placed on the website relating to the victim's support group, “One in Four”. Governor Dowling avers that further calls were made by the applicant on 13th September, 2017, in which he allegedly instructed his son to remove part of a paragraph and to replace it with other information. Reference was again made to the “One in Four” website and allegedly a comment was made that their motto is now ‘ money before transparency’.
Governor Hughes prepared a report outlining the results of his investigation, which was submitted to Governor Dowling on 26th September, 2017.
As a consequence of that report, a P19 notice was served on the prisoner. This was served at 5 p. m. on 26th September, 2017 and a hearing was convened according to the records, at 9:49 a.m. on 27th September, 2017, approximately seventeen hours later.
There are spelling and grammatical errors in the P19 notice but the court proposes to set it and the hearing reports out verbatim, as delivered to the applicant. The P19 notice gave the date and time of the alleged misconduct as 13th September, 2017 at 6:33 p.m. Under the heading “Misconduct Summary” the notice states ‘ Using Prisoners phone system to target the victim of a crime. The above-named prisoner has offended against discipline in contravention of Schedule 1 of the Prison Rules, 2007…’. The notice specifies the misconduct description and the relevant breaches of the Prison Rules alleged. The particular breaches alleged were as follows:-
‘(3) Treats with disrespect, through the use of any abusive, insolent, racist or threatening behaviour or language, the Governor, any prison officer, any prisoner, any visitor to the prison or any other person;
(9) Engages in any form of bullying or harassment;
(32) In any other way offends against good order and discipline.’
Having set out the three alleged breaches of discipline the P19 notice then states:-
‘and/or in any other way against good order and discipline by: Acting contrary to the good order, security and government of Arbour Hill Prison.’
The P19 report to Governor Dowling continues:-
‘I wish to report that Prisoner Brian Doolan is using the Prisoners phone system to instruct Christian Doolan in placing information on a website that is targeting the victim of the offence of which Brian Doolin is presently in custody. The name of this website is www.briandoolan.com. Phone call was made by Brian Doolan on the 11th September 2017 referring to the 1 in 4 website and instructing information to be placed on the www.briandoolan.com website.
Further call were made on the 13th September 2017 instructing that part of a paragraph be removed and replaced with further information. Reference was made in regard the 1 in 4 website and the comment was made is the motto of 1 in 4 now money before transparency.
It is clear from the phone calls and the information being relayed that the victim of Brian Doolans offence is being targeted on the website. ’
On 27th September, 2017 a disciplinary hearing was convened by the Governor of Arbour Hill, William Dowling, commencing at approximately 9:49 a.m. At the hearing, the applicant was formally charged with having breached prison discipline as defined in Schedule 1 of the Prison Rules 2007, as set out above. In attendance were the Governor William Dowling, Chief Officer Roche, and the applicant. There are three queries listed and answered at the top of the report. The first is ‘ Prisoner understands the Discipline Process: Yes.’ The second is ‘ Prisoner accepts the report as correct: No’. The third is ‘Prisoner wishes to call a witness: No.’ The next section of the report of the hearing is headed “Prisoner Remarks” and states as follows:-
‘Report read...
To continue reading
Request your trial
-
Darren Delacey v The Governor of Wheatfield Prison, Ireland and The Attorney General
...as a “ simple and basic requirement of fair procedures”. Counsel also relied on the decision in Doolan v Governor of Arbour Hill Prison [2019] IEHC 211 to support this 28 Counsel for the applicant further submitted that the position of the Assistant Governor, that she believed the phone was......