Gilligan v Governor of Portlaoise Prison and Others

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice McKechnie
• Judgment Date: 12 April 2001
• Neutral Citation: [2001] IEHC 72
• Judgment citation (vLex): [2001] 4 JIC 1201
• Date: 12 April 2001

[2001] IEHC 72

THE HIGH COURT

No. 215 JR/2001

GILLIGAN v. GOVERNOR OF PORTLAOISE PRISON & ORS

BETWEEN

JOHN GILLIGAN

APPLICANT

AND

THE GOVERNOR OF PORTLAOISE PRISON AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

RSC O.84 r20(2)

MISUSE OF DRUGS ACT 1977–1984 S21

MISUSE OF DRUGS ACT 1977–1984 S15

MCELHUNNEY V WILLIAMS 1994 2 ILRM 115

RULES FOR THE GOVERNMENT OF PRISONS 1942 r69

CONSTITUTION ART 34

CONSTITUTION ART 37

G V DPP 1994 1 IR 374

MASS ENERGY LTD V BIRMINGHAM CITY COUNCIL 1994 ENV LR 298

R V COTSWOLD DISTRICT COUNCIL EX-PARTE BARRINGTON PARISH COUNCIL 75 P&CR 515

GORMAN V MIN FOR ENVIRONMENT UNREP KELLY 7.12.2000

HALPIN V WICKLOW CO COUNCIL UNREP O'SULLIVAN 15.3.2001

P V MIN FOR JUSTICE UNREP SMITH 2.1.2001

KIELY V MIN FOR SOCIAL WELFARE 1977 IR 267

RUSSELL V DUKE OF NORFOLK 1949 1 AER 109

FLANAGAN V UNIVERSITY COLLEGE DUBLIN (UCD) 1988 IR 724

DE SMITH ON JUDICIAL REVIEW OF ADMINISTRATIVE ACTIONS 4ED 199

WADE ADMINISTRATIVE LAW 6ED 1998 570

O'CEALLAIGH V BORD ALTRANAIS 2000 4 IR 102

RULES FOR THE GOVERNMENT OF PRISONS 1942 r67

RULES FOR THE GOVERNMENT OF PRISONS 1942 r69(i)

EMERGENCY POWERS BILL, RE 1976–1977 IR 159

MCDONAGH, STATE V FRAWLEY 1978 IR 131

RICHARDSON, STATE V GOVERNOR OF MOUNTJOY PRISON 1980 ILRM 82

CAHILL V GOVERNOR OF THE MILITARY DETENTION BARRACKS CURRAGH CAMP 1980 ILRM 191

COMERFORD, STATE V GOVERNOR OF MOUNTJOY 1981 ILRM 86

BRENNAN V GOVERNOR OF PORTLAOISE PRISON 1999 1 ILRM 190

WILFF V MCDONNELL 1874 418 US 539

HEALY, STATE V O'DONOGHUE 1976 IR 325

ROCK V GOVERNOR OF ST PATRICKS INSTITUTION UNREP SUPREME 22.3.1993 1993/5/1383

MCCORMACK V ASSISTANT GOVERNOR OF MOUNTJOY PRISON UNREP CARNEY 3.5.1996

MURRY, STATE V MCRANN 1979 IR 133

PRISONS (IRL) ACT 1877 S12

CITYVIEW PRESS V AN CHOMHAIRLE OILIUNA 1980 IR 381

RULES FOR THE GOVERNMENT OF PRISONS 1942 r69(a)

RULES FOR THE GOVERNMENT OF PRISONS 1942 r69(c)

RULES FOR THE GOVERNMENT OF PRISONS 1942 r69(d)

CAMPBELL & FELLS V UNITED KINGDOM (UK) 7 EHRR 165

Synopsis:

Prisons

Administrative; prison rules; fair procedures; applicant prisoner physically and verbally abused prison officer and issued serious threats to the safety and health of him and his family; applicant seeking certiorari of decision to impose sanctions of close confinement, loss of remission and loss of privileges; whether arguable case that impugned decision unconstitutional; whether Rules for the Government of Prisons, 1947 ultra vires the Prisons (Ireland) Act, 1877, as amended; whether basement area of prison as place of detention ultra vires prison rules; whether fair procedures and natural and constitutional justice complied with, in that applicant should have been informed of intention to charge him with breach of discipline, that all evidence should have been put before him, that applicant should have had opportunity to consult with solicitor and of making plea in mitigation.

Held: Leave refused.

Gilligan v. The Governor of Portlaoise Prison - High Court: McKechnie J. - 12/04/2001

The applicant had allegedly been involved in a fracas whilst in prison. As a result sanctions were imposed by the prison authorities. The applicant sought to apply for judicial review in respect of the sanctions. Mr. Justice McKechnie was satisfied that the arguments of the applicant were not sufficient for leave to be granted. Accordingly leave was refused.

1 Mr. Justice McKechnie dated the 12th day of April, 2001.

2 1. This is and application for leave, to apply by way of an application for judicial review, for certain reliefs and on certain grounds both specified in the Statement grounding the application. In accordance with Order 84 Rule 20(2) of the Rules of the Superior Courts this matter, in the first instance, was moved by way of motion ex parte. In the exercise of his discretion Kelly J. directed that the Respondents be put on notice of the making of the application. Having been served with the required documentation all such Respondents, being represented, fully participated, by way of evidence and submissions, in the hearing of this, the leave application.

3 2. Mr. Gilligan, the Applicant in the above entitled judicial review proceedings, has been detained in Portlaoise Prison since in or about the month of February 2000. Initially, he was so detained following his extradition from England. Latterly, having been convicted of offences under Sections 21 and 15 of the Misuse of Drugs Acts, 1977to 1984he is serving, in that prison terms of 12 and 28 years respectively, having been so imposed by Order of the Count of Trial, namely the Special Criminal Court.

4 3. The incident which gives rise to the within proceedings occurred on Sunday 25th March 2001. On that occasion Mr. John Rice, Solicitor, arrived at Portlaoise Prison for the purposes of a professional visit to the Applicant and another prisoner. Whilst in the process of escorting Mr. Gilligan to a visiting area, where the intended consultation was to take place, it is alleged by an Assistant Chief Officer that the Applicant, firstly verbally abused him, secondly, without cause or warning, struck him a violent blow on the jaw and thirdly, issued serious threats to the safety and health of both him and his family. These said allegations are supported by Prison Officer O'Reilly who, at the relevant time was also on escort duty with Officer Ryan. By way of response, as well as grounding the application, Mr. Gilligan has sworn three Affidavits. He denies the allegations above recited as he does an avernment by Officer Ryan to the effect that, on seeing Mr. Rice he said "I am after been assaulted by these fuckers." Whilst nothing of relevance turns on this, I am satisfied, that if this comment had been said there is no evidence whatsoever to support or otherwise corroborate such remarks.

5 4. At the outset of the hearing, having served the necessary notice, an application was made on behalf of the Respondents to have Mr. Gilligan present in Court, for the purposes of a cross examination on the Affidavits sworn by him. Having heard argument I decided, in the exercise of my discretion, to refuse the order as sought. See McElhinney -v- Williams 1994 2I.L.R.M. 115. I did so, essentially because of the nature of the application before me. In essence the challenge as mounted is based on the lack of fair procedures and on the doctrine of ultra vires.Whilst, therefore knowledge of the surrounding circumstances is essential in order to establish the background to the challenge, facts beyond that, are not in my view relevant. This is a claim against the decision making process and as such, it is neither necessary or desirable that this Court should attempt to adjudicate on the controversial nature of the incident above mentioned. If one was to embark upon such an assessment, even under the guise of testing the bona fides of the Applicant, it would in my view, be close to usurping the jurisdiction vested in this Court when dealing with an application of this type. Accordingly, being satisfied that the issue at hand could be deposed of, on whichever version of events was sustainable, I refused the application.

6 5. The reliefs which the Applicant seek, though several in nature, can broadly be described as being, on Order of Certiorari quashing the decision made on the 25th March, a declaration that fair procedures and natural and constitutional justice have not been complied with, a declaration that the punishment imposed, was in itself, ultra vires Rule 69 of the Rules for the Government of Prison, in turn, a declaration that such rules themselves were also ultra vires the originating Statute as amended, and finally that the decision complained of was unconstitutional by virtue of Article 34 or Article 37 or by way of a combination of both. The grounds relied upon, whilst adequately set forth elsewhere in this judgment, should, in relation to the alleged breaches of natural and constitutional justice and fair procedures, be set forth in their entirety. These are firstly, that prior to the visit hereinafter described Mr. Gilligan should have been informed of the Governor's intention to lay against him the alleged breaches of discipline, secondly that all of the relevant evidence should have been made available to him, thirdly that he should have been given a right to consult with his Solicitor and finally that he should have been afforded an opportunity of making on his own behalf a plea in mitigation.

7 6. In evaluating this matter it is crucial in my view to realise and fully understand exactly what occurred in the aftermath of the incident referred to a paragraph 3 above. With regard to Mr. Gilligan, once the legal consultation had concluded he was taken to an area in the basement which, for geographical reasons and no other, I will refer to as the bunker area. In the case of Assistant Chief Officer Ryan, he, having obtained medical assistance, returned to the prison late in the afternoon or early evening of the 25th. On the appropriate printed form, P19, he reported on Mr. Gilligan by complaining of the assault and of the threats and abuse above mentioned. He supported these complaints by way of statement. Both were given to the Deputy Governor. What then happened is set out in the Affidavit of the said Deputy and in particular at paragraphs 6, 7 and 8 thereof. Being fundamental to a core point in this case it is highly desirable that the relevant averments should be quoted verbatim. Deputy Governor O'Keeffe, who was accompanied by Officer Ryan, said:-

"6 ....... I said to John Gilligan "you are on report in respect of threatening and assaulting an officer". I then paused and read out in full the charge to John Gilligan. There could be no ambiguity as to what I was saying as it is exactly as set out in the report of Martin Ryan which is...