Dunne v The Governor of Wheatfield Prison
| Jurisdiction | Ireland |
| Judge | Ms. Justice O'Regan |
| Judgment Date | 20 June 2019 |
| Neutral Citation | [2019] IEHC 445 |
| Docket Number | [2017/1010 J.R.] |
| Court | High Court |
| Date | 20 June 2019 |
AND
AND
[2019] IEHC 445
O'Regan J.
[2017/1010 J.R.]
THE HIGH COURT
JUDICIAL REVIEW
Judicial review – Disciplinary hearing – Fair procedure – Applicant seeking an order for certiorari of the decision of the first respondent and the decision of the second respondent – Whether the first respondent breached fair procedure by reason of a failure to afford the applicant an entitlement to examine a particular knife and CCTV footage
Facts: Three issues arose for consideration by the High Court by reason of the proceedings namely: (1) in or about the disciplinary hearing which was undertaken by the first respondent, the Governor of Wheatfield Prison, in respect of the applicant, Mr Dunne, did the first respondent breach fair procedure by reason of a failure to afford the applicant an entitlement to examine a particular knife and CCTV footage; (2) was the refusal of the second respondent, the Minister for Justice, to consider the applicant’s petition pursuant to s. 14 of the Prison Act 2007 irrational, absurd, unfair and unlawful or, in the alternative did the first respondent act unlawfully and in breach of the applicant’s rights pursuant to s. 14 of the 2007 Act by failure of the first respondent to transmit the appeal of the applicant to the second respondent, being the appeal dated 14th November, 2017; and (3) did the first respondent fail to act lawfully and breach fair procedures and natural justice in failing to respond to the reasonable requests of the applicant’s solicitor for information to assist the applicant in prosecuting his petition in a meaningful and timely fashion.
Held by O’Regan J that the applicant had not demonstrated a factual basis sufficient to discharge the burden of proof on the applicant to establish any want of fair procedure by the first respondent in respect of the CCTV footage. O’Regan J held that there was no evidential basis to suggest that preserving and making the knife available for forensic testing prior to the hearing/conclusion was otherwise than in accordance with s. 67(6) of the 2007 Act. O’Regan J was not satisfied that the applicant had on the facts of the matter and in accordance with the burden of proof on the applicant, demonstrated a violation of fair procedure and natural justice in the manner contended for. Although there was clear confusion as to the appeal which the applicant wished to process nevertheless O’Regan J was not satisfied that it was such that it warranted a finding of a breach of fair procedure on the part of the Governor.
O’Regan J was not satisfied that the applicant had demonstrated a factual basis to secure an order for certiorari of the decision of the first respondent of 7th November, 2017 or the decision of the second respondent of 23rd November, 2017.
Order refused.
Three issues arise for consideration by the court by reason of the within proceedings namely: -
(1) In or about the disciplinary hearing which was undertaken by the first named respondent in respect of the applicant did the first named respondent breach fair procedure by reason of a failure to afford the applicant an entitlement to examine a particular knife and CCTV footage.
(2) Was the refusal of the second named respondent to refuse to consider the applicant's petition pursuant to s.14 of the Prison Act 2007 irrational, absurd, unfair and unlawful or, in the alternative did the first named respondent act unlawfully and in breach of the applicant's rights pursuant to s.14 of the Prisons Act 2007 by failure of the first named respondent to transmit the appeal of the applicant to the second named respondent, being the appeal dated 14th November, 2017; and
(3) did the first named respondent fail to act lawfully and breach fair procedures and natural justice in failing to respond to the reasonable requests of the applicant's solicitor for information to assist the applicant in prosecuting his petition in a meaningful and timely fashion.
The applicant is and at all material times was a prisoner in Wheatfield Prison having been committed to prison on the 30th January, 1999 following a murder conviction and the imposition of a life sentence.
In these proceedings leave was afforded on 18th December, 2017 in respect of a statement of grounds of the same date. The statement of grounds was supported by a grounding affidavit of the applicant's solicitor, Matthew Kenny, on 20th December, 2017 which said affidavit was subsequently followed by a grounding affidavit of the Applicant dated 3rd January, 2018. Aside from a further affidavit to support an application to cross-examine Austin Stack, the first named respondent, the only other affidavit filed for or on behalf of the applicant was that of Mr. Kenny during the course of the hearing before the court to state that his letter of 7th November, 2017 was both faxed and emailed to the first named respondent. Accordingly, there is no replying affidavit disputing the averments in the affidavit of Austin Stack of 5th March, 2018, 13th November, 2018 or 29th May, 2019. In these circumstances the factual background upon which the applicant relies is to be gathered from the statement of grounds as the facts therein have been verified by the applicant's affidavit and that of his solicitor.
In the statement of opposition of 6th March, 2018 any wrongdoing on behalf of either of the respondents is denied.
It is common case that at approximately 2.10pm on 7th November, 2017 the applicant's cell was searched by a number of prison officers in the presence of the applicant when an improvised knife wrapped in tissue paper was found under the applicant's mattress and an almost full bag of razor blades was found on a shelf in the applicant's cell. In the proceedings the applicant does not deny that possession of either of the foregoing is contrary to prison rules.
Following the search, the applicant received a P.19 notice of a prison disciplinary hearing charging him with breaches of rules 17, 19 & 23 of the First Schedule of the Prison Rules 2007, namely damage or disfiguring prison property or the prison; has in his cell or room possession of a prohibited article; has in his possession a greater quantity of any article than he would be authorised to have.
The disciplinary hearing commenced on 8th November, 2007 but was adjourned on the basis that, by defence the applicant advised the respondent that the CCTV would show that others had access to his cell when he was not present (see para. 9 of the Statement of Grounds). It further appears from affidavit evidence that the applicant asserted to the prison officers who searched his cell as aforesaid that he did not lock his cell after him while he was at work and other persons would have had access to the cell. The applicant stated that he had no knowledge of the knife.
The hearing resumed on 14th November 2017 and there is a dispute between the parties as to whether or not the applicant was shown part of the CCTV footage for the day of 7th November, 2017 in respect of the period 8.09am to 14.23pm. Although the applicant asserts that the first named respondent failed to show CCTV footage in his presence (see para. 22 of the Statement of Grounds) the first named respondent asserts in his affidavits of 5th March, 2018 and 13th November, 2018 that the applicant did see the CCTV footage however in cross-examination the first named respondent states that the applicant saw the CCTV footage in respect of the segments which involved parties entering and leaving the applicant's cell during the period aforesaid. It is not disputed therefore that the applicant did not see the totality of the CCTV footage for the period aforesaid.
At para. 8 of the Statement of Grounds the applicant suggests that the bag of razor blades was found on a high shelf that he did not use and no other property of his was on that shelf. He suggests that he could not reach the shelf. In para. 8 of the affidavit of Governor Stack it is stated that there is no high shelves in prison cells and the only shelf in the applicant's cell (being a single occupancy cell) was a four-foot shelf and it is asserted that the applicant would have sight of the items as they were clearly visible on the lower portion of this shelf.
During the course of the hearing on 8th November, 2017 the form P.19 form was read to the applicant which inter allia recalls the finding of the knife wrapped in tissue paper and hidden under the prisoner's mattress together with the almost full bag of prison issue razors, the applicant was present at the search, the applicant was the only occupier of the single cell.
The P.19 record of 14th November, 2017 states: -
‘I have viewed the saved CCTV footage from the morning in question. Every time your cell is open and when somebody enters your cell you were present. All these entering the cell are not carrying anything. Based on the evidence before me and the fact that you are responsible for the content of your own cell, I find the report proven. Have you anything to say before I pass sanction.’
The applicant indicated that it was not him and he inquired as to whether or not he could appeal. Insofar as the record records what occurred on 7th November, 2017 in respect of the CCTV the comment enclosed is ‘I will adjourn the hearing to see if there is anything relevant to the hearing on the CCTV.’ On 8th November, 2017 the hearing commenced at 11:11.
Insofar as the relevant correspondence from the applicant's solicitors is concerned it appears that the letter of the 7th November 2017 was faxed and emailed. It is not known when it was faxed however the email suggests it was emailed at 15.46. In the letter of 7th...
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Darren Delacey v The Governor of Wheatfield Prison, Ireland and The Attorney General
...an affected person during the course of decision-making. 46 Counsel also relied on the decision of Dunne v Governor of Wheatfield Prison [2019] IEHC 445, where contraband had been found in the applicant's cell and the applicant had denied having knowledge that the prohibited articles were i......