Paget v The Governor of the Midlands Prison
| Jurisdiction | Ireland |
| Judge | Mr. Justice MacGrath |
| Judgment Date | 09 July 2019 |
| Neutral Citation | [2019] IEHC 514 |
| Docket Number | [2017 No. 708 JR] |
| Court | High Court |
| Date | 09 July 2019 |
[2019] IEHC 514
THE HIGH COURT
MacGrath J.
[2017 No. 708 JR]
AND
Rule 62 of the Prison Rules 2007 – Breach of fair procedures – Certiorari – Applicant seeking declarations that determinations made by the respondents pursuant to Rule 62 of the Prison Rules 2007 to place him in segregation were made otherwise than in accordance with law, in breach of fair procedures and were unconstitutional – Whether the respondents had failed to comply with the requirements of Rule 62(5)
Facts: The applicant, Mr Paget, who at all relevant times was a prisoner in the Midlands Prison, sought declarations that determinations made by the respondents, the Governor of the Midlands Prison and the Director General of the Irish Prison Service, pursuant to Rule 62 of the Prison Rules 2007 to place him in segregation were made otherwise than in accordance with law, in breach of fair procedures and were unconstitutional. The determinations prohibited him from engaging in authorised structured activities and limited his participation in communal recreation and association with other prisoners. He sought an order of certiorari quashing the determinations, the first notice of which issued on the 29th June, 2017, in respect of a restriction which commenced on the 28th June, 2017. The determinations were renewed on a number of occasions and continued up to mid-September, 2017. The applicant’s principal complaint was that in the notices that were served on him, adequate reasons were not given for the restrictions, as required by the provisions of Rule 62(5).
Held by the High Court (MacGrath J) that the applicant must succeed to the extent that it found that the respondents had failed to comply with the requirements of Rule 62(5).
MacGrath J held that he would discuss the implications of this conclusion and the terms of the order to be made with counsel.
Application granted.
The applicant, who at all relevant times was a prisoner in the Midlands Prison, seeks declarations that determinations made by the respondents pursuant to Rule 62 of the Prison Rules 2007 (‘ the Rules’) to place him in segregation were made otherwise than in accordance with law, in breach of fair procedures and are unconstitutional. The determinations prohibited him from engaging in authorised structured activities and limited his participation in communal recreation and association with other prisoners. He seeks an order of certiorari quashing the determinations, the first notice of which issued on the 29th June, 2017, in respect of a restriction which commenced on the 28th June, 2017. The determinations were renewed on a number of occasions and continued up to the mid-September, 2017. The applicant's principal complaint is that in the notices that were served on him, adequate reasons were not given for the restrictions, as required by the provisions of Rule 62(5).
Rule 62(3) of the Prison (Amendment) Rules 2017 provides that:-
‘(1) Subject to any restrictions imposed under and in accordance with Part 3 of the Prisons Act 2007 and Part 4 of these Rules, each prisoner shall be allowed to—
(a) subject to paragraph (1A), spend a minimum period of 2 hours out of his or her cell or room with an opportunity during that time for meaningful human contact, including, at the discretion of the Governor, contact with other prisoners,
and
(b) subject to paragraph (a), spend as much time each day out of his or her cell or room as is practicable and, at the discretion of the Governor, to associate with other prisoners in the prison.
(1A) A period of time spent by a prisoner out of his or her cell or room engaging in any activity authorised by these Rules which provides an opportunity for meaningful human contact shall count towards the period referred to in paragraph (1)(a).’ and
(b) by the insertion of the following paragraph after paragraph (3):
‘(4) In this Rule, ‘meaningful human contact’ means interaction between a prisoner and another person of sufficient proximity so as to allow both to communicate by way of conversation.’.’
This rule amends Rule 27 which was in operation when the first of the notices under Rule 62 was served on the applicant.
Rule 62(2) provides:-
‘The Governor shall not give a direction under paragraph (1) unless information has been supplied to the Governor, or the prisoner's behaviour has been such as to cause the Governor to believe, upon reasonable grounds, that to permit the prisoner to so engage, participate or associate would result in there being a significant threat to the maintenance of good order or safe or secure custody.’
Rule 62(5) provides:-
‘A prisoner in respect of whom a direction under this Rule is given shall be informed in writing of the reasons therefor either before the direction is given or immediately upon its being given, and shall further be informed of the outcome of any review as soon as may be after the Governor has made a decision in relation thereto’,
Rule 62(9) applies where the restriction extends beyond 21 days. It provides:-
‘The Governor shall, as soon as may be, submit a report to the Director General including the views of the prisoner, if any, explaining the need for the continued removal of the prisoner from structured activity or association under this Rule on grounds of order where the period of such removal will exceed 21 days under paragraph (4). Thereafter, any continuation of the extension of the period of removal must be authorised, in writing, by the Director General.’
The notices served on the applicant under Rule 62 are in standard form. There are a number of sections inviting completion regarding details of the period of and the reasons for the restriction/detention. Further sections invite the recording of the prisoner's comments and the signatures of the Governor and the prisoner. This form was designed to deal with notices issued under s. 62 and also s. 63 which concerns vulnerable prisoners who, at their own request, might wish to be kept separate from other prisoners. There is also a section entitled ‘Decision and reason’ but nothing was inserted in this section.
The first notice served under Rule 62(5) on 29th June, 2017 was signed by the Governor. The applicant refused to sign it. The reasons expressed for his detention are as follows:-
‘The prisoner's behaviour has been such as to cause me to believe that to permit him to engage in structured activity or participate in communal recreation would result in there being a significant threat to the maintenance of good order and safe custody.
Based on this intelligence, it is necessary to place you on Rule 62 for a further 7 days. Subject to Operational and Legal considerations if you wish to engage in structured activities in Midlands, efforts will be made to, facilitate your request.’
The notice became operational on the 28th June, 2017 with review date being set for 29th June, 2017. A review took place and was signed off by the Governor. In the section ‘ Inmate's comments’ the words ‘ no comment’ are handwritten.
A further notice was served on the 6th July, 2017 (which again is the date of review by the Governor) with a commencement date of 28th June, 2017. The period of restriction was for seven days and the reasons for the detention are in precisely the same terms as those contained in the notice of the 29th June, 2017. Under the heading ‘ Inmate's comments’ the following appears in handwriting:- ‘ I want to see a governor or chief’. The applicant refused to sign. The next notice is dated 13th July, 2017 being the date of review by the Governor and once again the applicant refused to sign it. The notice is in identical terms to the previous notices and includes an almost word for word repetition of the reasons for detention. Under the heading ‘ Inmate's comments’ the following appears:- ‘ Wishes to see a governor, hasn't seen a governor in three weeks’.
Further notices were issued on the 20th July, 2017 and 27th July, 2017. Under the heading ‘ Reasons for detention’ precisely the same wording is used as in all previous notices. There are no inmate comments inserted in this notice and the applicant refused to sign it. In the notice of the 27th July, 2017, under the heading ‘ Inmate's comments’ the following appears in handwriting:- ‘ Can I see a governor to explain why I'm on Rule 62 as I haven't seen a governor since being placed on Rule 62.’ In passing it is to be noted that Mr. Ward B.L., counsel for the respondents, observed that this should not be taken as evidence that he was not seen and is evidence only of the applicant recording his wish to see a Governor.
As is apparent from the documents exhibited in a replying affidavit sworn on the 7th February, 2018, by Mr. Ultan Moran on behalf of the respondent, on 20th July, 2017 the Governor applied to the Director General for an extension of Rule 62(9) and further applications were made on 27th July, 2017, 10th August 2017, 17th August, 2017, 26th August 2017, 31st August 2017, and 7th September 2017. The court was informed that the applicant did not receive a copy of these completed application forms. I refer to these in more detail at para. 20 below.
Further notices were issued under Rule 62(5) on 10th August, 2017, 17th August, 2017, 24th August, 2017 and 31st August, 2017, each of which state that the matter was reviewed by the Governor. In each notice the reasons for detention are in identical terms to those stated in the previous notices. The applicant did not comment and he refused to sign these notices.
Finally, a notice dated the 15th September, 2017 is not only signed by the Governor but also by the applicant. This time the reason stated was:-
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