Garvey v Min for Justice & Governor of Mount Joy Prison

CourtHigh Court
JudgeMr.Justice Aindrias Ó Caoimh
Judgment Date05 December 2003
Neutral Citation[2003] IEHC 130
Docket Number[No. 346 JR/2002]
Date05 December 2003

[2003] IEHC 130


[No. 346 JR/2002]







Judicial review - Prohibition - Disciplinary inquiries - Prisons - Applicant acquitted of criminal charges and then served with disciplinary charges arising out same set of facts - Whether acquittal on criminal charges prevented disciplinary inquiry - Whether disciplinary charges amounted to unfair or oppressive procedure

Facts: The applicant was a prison officer who was suspended from duty arising out of an assault on a prisoner. He was charged and tried on indictment but found not guilty by a jury. He was then served with charges pursuant to the prison officers’ disciplinary code. The applicant applied by way of judicial review for, inter alia, a declaration that his purported suspension was ultra vires and contrary to natural and constitutional justice and unreasonable and an order prohibiting the second respondent from conducting a prison disciplinary hearing into the alleged misconduct.

Held by Ó Caoimh J. in refusing the relief sought that there was not any general principle that an acquittal on a criminal charge in respect of an offence, irrespective of the reason for such acquittal, prevented a disciplinary investigation arising out of the same set of facts. The question was whether the disciplinary charges would amount to an unfair or oppressive procedure.

Reporter: R.W.

Judgment of
Mr.Justice Aindrias Ó Caoimh

delivered the 5th December, 2003.


The applicant is a prison officer stationed at Mountjoy Prison who was suspended from duty on 27th September, 1999, arising out of an assault on a prisoner which occurred on 18th September, 1999. Subsequently, in February of 2002, he was tried on indictment before a jury in the Circuit Criminal Court in Dublin on two charges of assault on Colm Fogarty on 18th September, 1999, under ss. 3and 4 of the Non Fatal Offences Against the Person Act,1997. On the 24th March, 2002, the applicant was found not guilty on both charges. In April of 2002, the applicant was served with further charges pursuant to the Prison (Disciplinary Code for Officers) Rules, 1996, in respect of which the charges were formulated as follows:

"1.(f) Discreditable Conduct, that is to say, while on duty assaulting any other member of the prison service or any other person. "

11. (a) Unlawful or Unnecessary Exercise of Authority, that is to say, deliberately and unnecessarily acting in a manner calculated or likely to provoke a prisoner.

11. (b) Unlawful or Unnecessary Exercise of Authority, that is to say, using force unnecessarily in dealing with a prisoner or, where the application of force to a prisoner is necessary, using undue force.


In each case the particulars of allegation assert that the applicant assaulted Colm Fogarty by kicking him in the face on 18thSeptember, 1999."


By order of this Court (Murphy J.) on 24th June, 2002, the applicant was given leave for:


1. A declaration that the purported decision of the respondents to suspend the applicant is without efficacy,ultra vires and unconstitutional;


2. A declaration that in purporting to suspend the applicant from his said post as a prison officer in Mountjoy Prison, the respondents have acted unreasonably and oppressively, alternatively, arbitrarily and capriciously;


3. An order prohibiting the second named respondent, his servants and agents from conducting a prison disciplinary hearing into the alleged conduct of the applicant;


4. An order prohibiting the second named respondent, his servants and agents from making any report and/or recommendation to the first named respondent, the Minister for Justice, Equality and Law Reform arising from the purported conduct of a prison disciplinary hearing into the applicant as already outlined above;


5. A declaration that the Prison (Disciplinary Code for Officers) Rules, 1996 are repugnant to the Constitution;


6. Damages.


The grounds upon which the applicant was given leave to seek the aforementioned relief are as follows:


The respondents have acted unreasonably and oppressively, alternatively, arbitrarily and capriciously, in purporting to suspend the applicant's said service and/or in failing to immediately reinstate the applicant to his job with full pay and benefits following his acquittal and/or in purporting to charge and hold a prison disciplinary hearing based on alleged new charges in view of:


(a) failing to afford the applicant any opportunity to make representations prior to being suspended;


(b) failing to apply or comply with the Prison (Disciplinary Code for Officers) Rules, 1996;


(c) failing to advise the applicant of the grounds upon which the purported decision was taken by unlawfully invoking and applying ss. 13and 14 of the Civil Service Regulations Act,1956, which required the respondents to observe the tenets of natural justice and constitutional justice by advising the applicant in advance of any contemplated intention to suspend him from office so as to afford him an opportunity of challenging the same whether by making representations on his behalf or otherwise;


(d) a severe loss including pecuniary loss and career damage which the applicant is suffering as a result of the respondent's said actions;


(e) by failing to immediately reinstate the applicant following his acquittal by jury the suspension has become unlawful and unconstitutional;


(f) insofar as the Prison (Disciplinary Code for Officers) Rules, 1996 are made the regulations must be constitutionally sound and provide for fair procedures. In the circumstances of this particular case the regulations do not provide for an independent adjudication;


(g) this purported disciplinary hearing isres judicata. An identical set of facts has been decided by judge and jury and to dress it up as a disciplinary hearing is a colourable device to get behind the decision of the jury;


(h) the substance of the criminal trial is identical with the substance of the alleged new changes. The Prison (Disciplinary Code for Officers) Rules, 1996 do not provide for an adequate element of independence in those carrying out:

1. the disciplinary investigation
2. the disciplinary hearing

3. the subsequent preparation of a report and/or recommendation that results from this.


(i) without prejudice to the above, in the event of an internal disciplinary hearing at this stage the second-named respondent is:

1. attempting to subvert the result of a trial
2. expose the plaintiff to the risk of double jeopardy

3. is tantamount to a prejudicial device to undermine the constitutionally mandated trial


4. no purported internal court and/or tribunal consisting of Mountjoy staff in the circumstances of this particular case can be impartial.

(j) the indefinite nature of the purported suspension;

(k) the timing of the said purported charges now being preferred;


(l) the alleged new set of charges is based on identical allegations of fact already tried by a judge and jury which led to the acquittal of the applicant;


a (m)that in initiating an investigation purporting to be pursuant to the provisions of the Prison (Disciplinary Code for Officers) Rules, 1996 into alleged breaches of discipline on the part of the applicant, the second-named respondent is acting contrary to the rules of natural and constitutional justice and to the serious detriment of the applicant and his constitutional right to earn a livelihood;


(n) the second named respondent is excessively involved in the said proceedings;


(o) there was culpable delay by the second-named respondent, its (sic) servants and agents in purporting to conduct a prison disciplinary hearing;


(p) the suspension of the applicant is and was irregular in the first instance and the now proposed prison disciplinary hearing is indicative of oppression and bias;


(q) the fact that an internal prison disciplinary hearing is being held in the light of what transpired at the criminal trial, is unfair, unconstitutional, prejudicial, and certainly oppressive and biased;


(r) the unjustified suspension and subsequent failure to immediately re nstate the applicant following his acquittal on an identical set of allegations and facts is an infringement of, and/or alternatively an interference with the applicant's right to earn a livelihood as warranted by Article 40.3.2 of the Constitution.


The application is grounded upon an affidavit of the applicant in which he indicates that he was originally appointed as a prison officer to Mountjoy Prison on 24th August, 1990, and has been employed as a prison officer since the successful completion of his probationary service on 18th August, 1992. He says that on 27thSeptember, 1999, Governor Duffy of Mountjoy Prison contacted his wife by telephone to say he had a letter from the Department of Justice which he wanted to give to him. He made an arrangement with his wife that he should meet him that evening at Belladd House, which is the Prison Officers' Training Centre in Portlaoise, at 7.00 p.m. He says that he attended in the company of two members of the local branch of the Prison Officers' Association before Governor Duffy and Chief Officer Brennan. He said that he was handed a letter dated 24th September, 1999, which informed him that he was suspended without pay with immediate effect. He said that there then immediately followed a meeting and discussion between the Governor and the Chief Officer to the effect that he was being suspended. He said that at no stage was he offered an opportunity to make any statement in his own defence nor was it explained why he was...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT