Hogan v The Governor of Mountjoy Prison

JudgeMr Justice Max Barrett
Judgment Date26 May 2016
Neutral Citation[2016] IEHC 265
Docket NumberRecord No. 2015 320 JR
CourtHigh Court
Date26 May 2016

[2016] IEHC 265


Barrett J.

Record No. 2015 320 JR

- AND -

Crime & Sentencing – Complaint against prisoner – Refusal to provide documents – Judicial review – S.2 of the Criminal Justice Act 1960, as substituted by s.1 of the Criminal Justice (Temporary Release of Prisoners) Act 2003 – Release of prisoner – Moot proceedings – Award of costs – Lack of event – Intervention of statutory body

Facts: The solicitors of the applicant sought an order for costs for the judicial review proceedings initiated by him on behalf of the applicant for refusal of the respondent to provide relevant documents, pertaining to a disciplinary action taken against the applicant in the prison which became moot as the applicant had been released earlier than his term of completion by the Minister under s.2 of the Criminal Justice Act, 1960, as substituted by s.1 of the Criminal Justice (Temporary Release of Prisoners) Act 2003. The respondent contended that since there was no event, the costs should not be granted as it was not the respondent but the Minister who was responsible for the intervening act of release of the applicant from the prison.

Mr. Justice Max Barrett refused to award costs to the solicitor of the applicant. The Court observed that the Court should refrain from making an order for costs in proceedings which became moot as a result of factors that were outside the control of the parties. The Court found that since the respondent played a very limited role while assisting the Minister in making the decision to release the applicant, which was taken pursuant to discretion enjoyed by the Minister, the respondent was not responsible for the alleged event and hence, it was appropriate to make no order as to costs.

JUDGMENT of Mr Justice Max Barrett delivered on 26th May, 2016.
Part 1

During his time in Mountjoy Prison, Mr Hogan was found by the prison authorities to have shouted at a nurse on a single occasion in March 2015. He was subsequently punished for this by the loss of one evening's exercise. Apprehensive as to the implications of this breach of prison discipline on his chances of early release, then due in November 2015, Mr Hogan contacted his solicitors to help him determine how he was positioned. His solicitors sought a copy of certain material from the prison authorities. Despite a good faith effort by the prison authorities to provide such material as they could, the precise material sought was not forthcoming on demand. As a result, these judicial review proceedings were commenced. But they became moot when Mr Hogan was released from prison in September 2015, pursuant to a discretionary direction of the Minister for Justice (and the Minister alone) under s.2 of the Criminal Justice Act 1960, as substituted by s.1 of the Criminal Justice (Temporary Release of Prisoners) Act 2003. Mr Hogan's lawyers are now seeking the costs incurred by them in moot proceedings founded ultimately on what the prison authorities found was a single shouting incident that happened 14 months ago.

Part 2

Mr Hogan was involved in a verbal altercation with a prison nurse on 11th March, 2015. At the time, he was a prisoner in Mountjoy Prison. On 12th March, 2015 he was brought before the prison governor for a disciplinary hearing. After that hearing, the Governor concluded that a disciplinary incident had occurred and imposed punishment which saw him lose a single evening's exercise. Mr Hogan sought a review of this decision, as is his right under the prison rules. On 19th March, 2015, the sanction was upheld. Apprehensive as to the implications of the incident for his early release, then due in November 2015, Mr Hogan contacted his solicitors to find out how he was positioned. It is not clear whether Mr Hogan or his solicitors ever sought to elicit a straight answer to this matter by putting the question straight to the prison authorities. Regardless, on 10th and 17th April, the solicitors for Mr Hogan sought access to:

‘1. A copy of the P19 [disciplinary notice] in respect of the alleged incident, endorsed with the details of the proceedings and the results thereof.

2. If the P19 is not so endorsed, a copy of the contemporaneous record taken of the proceedings.

3. A copy of the CCTV of the alleged incident;

4. Details of the standard of proof employed in reaching the determination of this matter together with an account of the enquiry held into this allegation and what witnesses gave evidence.’


The letter of 17th April contained a threat as to the commencement of judicial review proceedings if the material sought not forthcoming. However, in truth this letter was premature as it had crossed in the post with a letter of 15th April, 2015 from the Governor's Office. This letter read as follows:

‘I refer to your letter of 10th inst. We do not issue copies of P.19s directly to solicitors or copies of CCTV.

This P.19 disciplinary report was appealed by your client by way of a Petition to the Minister and the sanctions imposed were affirmed on appeal. (I attach a copy for your information).

The standard of proof for disciplinary hearings is on the balance of probability.

Your client upon request may be reissued [with a] copy of the P.19 disciplinary report.’


It is hard to see in this letter anything other than a good faith effort by the prison authorities to provide the fullest possible response to the request made by the solicitors. The letter even indicates that while the prison authorities cannot provide a copy of the P19 directly, it can be sourced by Mr Hogan himself (and, it follows, can be provided by him to his solicitors). Moreover, there is no sense from this letter that the door is closed to future correspondence or such further information as the solicitors might seek to request, such as whether Mr Hogan's breach of prison discipline would jeopardise his early release prospects. So it is perhaps surprising that two months later, and without any intervening correspondence of any nature, leave to bring these judicial review proceedings was sought.

Part 3
The Decision in Egan

Counsel for Mr Hogan points to Egan v. Governor of Wheatfield Prison [2014] 1 I.R 64 as offering a basis for these judicial review proceedings. That was a case in which a prisoner was disciplined on 30th June, 2013, for smuggling contraband into Wheatfield Prison and sanctioned by way of a 56-day forfeiture of evening recreation, the making and receiving of telephone calls or letters, and receiving ordinary visits. He appealed this decision and the relevant documentation was received by the designated Prison Service officer on 4th July. On 11th July, Mr Egan's solicitors sought certain information (including CCTV evidence) of the Governor. On 16th July, they pushed for an answer. All they got was a letter acknowledging receipt of this second letter. On 27th July, Mr Egan's solicitors wrote a letter seeking a comprehensive reply to their correspondence. By 12th August, the date on which leave to apply for judicial review was sought and granted, Mr Egan was 43 days into his 56 days of punishment, there was no sign of an answer to his appeal, and his solicitors had not yet received any meaningful response to their correspondence. In an affidavit sworn in the course of the judicial review proceedings, the prison governor averred that Mr Egan's solicitors had separately been told on repeated occasions that the proper way for them to proceed was to make Freedom of Information requests. In his...

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