Mc Auley v Governor of Mountjoy Prison

JurisdictionIreland
JudgeMr. Justice Hardiman
Judgment Date29 November 2012
Neutral Citation[2012] IESC 57
CourtSupreme Court
Date29 November 2012

[2012] IESC 57

THE SUPREME COURT

Denham C.J.

Hardiman J.

McKechnie J.

488/12
McAuley v Governor of Mountjoy Prison

Between:

JAMES McAULEY
Applicant/Appellant

and

THE GOVERNOR OF MOUNT JOY PRISON
Respondent

PRISONS ACT 2007 S12

PRISONS ACT 2007 S13

PRISONS ACT 2007 S12(2)

PRISONS ACT 2007 S12(4)

PRISONS ACT 2007 S13(1)

PRISONS ACT 2007 S13(3)(A)

BENNION STATUTORY INTERPRETATION 4ED P172

AG v GREAT EASTERN RAILWAY COMPANY 1880 5 APP CAS 473

ASHBURY RAILWAY COMPANY v RICHE 1875 7 HL 653

KINCAID v AER LINGUS TEORANTA 2003 2 IR 314

DODD STATUTORY INTERPRETATION IN IRELAND 2008

CROSS STATUTORY INTEPRETATION 3ED 1995

PRISON LAW

Discipline

Contravention of prison rules - Possession of mobile phone - Inquiry - Prohibition of privileges - Second complaint relating to possession of mobile phone - Second inquiry - Second sanction of prohibition of privileges - Whether power to defer commencement of second period of loss of privileges - Alleged absence of jurisdiction - Powers of governor - Construction of statutory provisions - Absence of statutory provision as to when period of prohibition to commence - Whether section penal provision - Attorney General v Great Eastern Railway Company (1880) 5 App Cas 473; The Ashbury Railway Company v Riche Rep 7 HL 653; Kincaid v Aer Lingus Teoranta [2003] 2 IR 314 considered - Prisons Act 2007 (No 10), ss 12 and 13 - Appeal dismissed (488/2012 - SC - 29/11/2012) [2012] IESC 57

McAuley v Governor of Mountjoy Prison

Facts: The applicant was charged and convicted of an offence and committed to prison on 28th October 2010. Since then and the time of this application, he had breached prison rules 12 times which amounted to 54 times when all his prison sentences were taken into account. On 30th August 2012, the applicant was subject of a complaint relating to his possession of a mobile phone which was in breach of prison rules. An inquiry was held in the prison on the 7th September where the applicant eventually admitted the allegation and the respondent sanctioned him to a prohibition of privileges for 42 days. On the morning of the inquiry, the applicant was found with another mobile phone and a separate inquiry was held where the respondent imposed an identical sanction but to run for 56 days and to commence following the expiration of the first prohibition.

The applicant contended that whilst he accepted that under section 12 and 13 of the Prisons Act 2007 the respondent had the power to impose 60 day prohibition of privileges for an inmate in possession of a mobile phone, he had no power to defer the commencement of a prohibition as there is no express statutory provision for this. He further contended there could be no implied power taken from the Prison Act 2007 as the Governor”s jurisdiction is strictly statutory based. His application before the High Court for an order of certiorari was refused and so he appealed to the Supreme Court.

Held by Hardiman J (with Denham CJ and MacMenamin J concurring) that if the applicant”s contentions were accepted, the respondent”s power to make a sanction of up to 60 days would have been limited to 23 days in the present case in respect of the second complaint due to the overlap between the sanctions. This would act as an incentive to inmates to carry out further breaches of prison rules immediately after a sanction being imposed. Such an interpretation of the statute would act to limit the powers expressly conferred on the respondent. There is no statutory provision to indicate when a sanction should commence for a situation of this kind so it was assumed that this was within the ambit of the respondent.

It was further held that the workings of tribunals and inquiries granted incidental powers (such as the power to adjourn) and that the power of the respondent to fix the date of commencement for a sanction was one such a power. These powers are necessary to ensure the express statutory powers of the respondent are not limited. Even if this wasn”t the case, the respondent would have an implied power to the same effect for the same reason.

Application refused.

Mr. Justice Hardiman
1

This is the applicant's appeal against the judgment and order of the High Court (McGovern J.) dated the 24th October, 2012 whereby the applicant's application for certiorari was dismissed.

2

At all material times the applicant was a sentenced prisoner in Moutjoy Prison. He has an extremely poor disciplinary record. He has had twelve breaches of the prison rules recorded against him in the course of his present sentence, starting on the 28th October, 2010. He has been found in breach of those rules on a total of fifty-four occasions during his whole career to date.

Facts.
3

The appellant was the subject of a complaint, known in prison parlance as a "P 19", (after the Form on which the complaint is written). It related to the possession of a mobile phone on the 30th August, 2012. A mobile phone is a prohibited article for prison rule purposes. An inquiry into this allegation was convened on the 31st July, 2012. The applicant denied the allegation. The Governor then adjourned the inquiry until the prison officer who had made the complaint was available to give evidence. The inquiry reconvened on the 7th September, 2012. On this occasion the appellant admitted that the phone was his. The inquiry was convened and conducted under s.12 of the Prisons Act, 2007. The sanctions available to the Governor extended to those set out in the statute, which is quoted extensively below. The sentence imposed was one of forty-two days "prohibition of certain privileges", to run from the 7th September, 2012 until the 19th October, 2012.

4

It is a vital feature of the factual background to this case that the inquiry just referred to was conducted in the afternoon of the 7th September, 2012. On the morning of that very day the appellant was again found in possession of a mobile phone and sim card. This led to a further inquiry on the complaint of a prison officer. This inquiry took place on the 11th September, 2012 and on this occasion the appellant admitted the contravention at the start. The sanction imposed was prohibition of certain privileges for fifty-six days to commence on the 26th October, 2012. It is this aspect which the appellant challenges.

5

It is not disputed that, as breaches of prison discipline go, the possession of a mobile phone and a sim card is relatively serious and may constitute a criminal offence. It is also noteworthy that, in the six month period between 1st April, 2012 and 30th September, 2012 some eight hundred and twenty-four "P 19" complaints were dealt with in Mountjoy Prison. They are a regular feature of the Governor's duties.

The Appellant's contention.
6

The appellant's contention in this case is a simple one. He agrees that, in respect ofeach of the two contraventions of prison rules which he admitted he was liable to be sentenced to up to sixty days loss of privileges. However, he says that there was no power to defer the commencement of the fifty-six day period of loss of privileges imposed on the 11th September, 2012 to the 26th October of that year. He says that any power to defer a commencement of the period of loss of privileges would require to have a specific and express statutory origin. He emphasises that the jurisdiction being exercised by the Governor was an entirely statutory jurisdiction and does not extend to any unspecified, unenumerated or implied powers. He says this is so specifically because the sections in question (Sections 12 and 13 of the Prisons Act, 1907) are penal provisions.

7

The appellant does not deny that the effect of his submission being upheld might well be to create an absurd or even irrational result, but he says that that is the fault of the legislature and that the Court should not step in to remedy a defect in the legislation, but leave that to the Oireachtas. He also points out that if a power to defer the commencement of a period of loss of privileges were to be implied then a prisoner who committed multiple breaches might find himself deprived of privileges for a year (six periods of sixty days each) or more whereas the maximum sentence for any one breach is sixty days only. But, of course, there are two breaches in question here.

8

It is convenient now to set out the statutory provisions which apply.

Statutes.
9

Sections 12 and 13 of the Prisons Act, 2007 provides as follows:

10

2 "12.-(1) If a prisoner is alleged to have committed a breach of prison discipline, the governor of the prison may decide to hold an inquiry into the alleged breach.

11

(2) The prisoner shall be informed of the alleged breach and of the date and time of the inquiry.

12

(3) The procedure relating to an inquiry may be specified in prison rules.

(4) At the conclusion of an inquiry, the governor shall-
13

a (a) if he or she finds that the prisoner committed a breach of prison discipline-

14

(i) impose such one or more of the sanctions provided for insection 13 as he or she considers appropriate, and

(ii) record the finding and the sanction imposed,
or
15

b) if he or she does not so find, record a finding that the allegation has not been substantiated.

16

13.-(1) One or more than one of the following sanctions may be imposed on a prisoner who is found by the governor to have committed a breach of prison discipline:

a (a) caution;
b (b) reprimand;
17

c (c) confinement in a cell (other than a special observation cell) for a period not exceeding 3 days;

18

d (d) prohibition, for a period not exceeding 60 days, on-

(i) engaging in specified authorised structured activities or recreational activities,
19

(ii) receiving visits (except those from a doctor or other healthcare professional, his or her legal adviser, a...

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