Robert Egan v Governor of Wheatfield Prison and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 02 December 2014
• Neutral Citation: [2014] IEHC 613
• Docket Number: [2013 No. 636 JR]
• Court: High Court
• Date: 02 December 2014

Egan v Governor of Wheatfield Prison & Min for Justice

JUDICIAL REVIEW

BETWEEN

ROBERT EGAN

APPLICANT

AND

THE GOVERNOR OF WHEATFIELD PRISON

RESPONDENT

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW DEFENCE

SECOND RESPONDENT

[2014] IEHC 613

[No. 636 J.R./2013]

THE HIGH COURT

Application for order of certiorari - Judicial review – Prisons – Disciplinary – Decision of the Governor – Alleged breach of Prison Rules 2007-2013 and Prisons Act 2007 – Petition process – Delay – Inordinate and inexcusable - Constitutional rights- Fair procedures

Facts The applicant is a convicted prisoner who is serving a sentence of imprisonment of nine years which was imposed on 8 ^th May 2008. The applicant"s partner and children regularly visited him up until 29 ^th June 2013 when the Prison Governor refused them entry as it was alleged she had been observed on CCTV bringing prohibited items into the prison. The applicant was made aware of the refusal and that future visits from his partner were now prohibited. The applicant was given a p19 report in relation to disciplinary proceedings. The p19 alleged the applicant had violated prison discipline, in contravention of schedule 1 of the Prison Rules 2007, in that, a prison officer reviewed the CCTV footage of the visiting area and observed the transfer of contraband from his partner to him. A hearing was heard in respect of the alleged breaches. The applicant stated that he did not know what the Governor was talking about and that the Chief Officer present immediately stated that if he were to admit the breach of discipline, he would get a lenient sanction. He said he denied the allegations and requested to see the CCTV footage. The Governor said he was satisfied that the allegations as set out in the P19 were proven, and proceeded to sanction him in accordance with the Prison Rules. The sanctions included: A forfeiture of 56 days evening recreation; A forfeiture of 56 days of making and receiving telephone calls or letters; and A forfeiture of receiving any ordinary visits for 56 days. Insofar as there was a conflict of evidence in the affidavits between the Governor, members of the his staff and the applicant, the court noted that no application was made to cross examine any of the deponents by the applicant and that the burden of proof lay upon the applicant to establish the facts relevant to the grounds advanced. The court was not satisfied on the balance of probabilities that the applicant"s version of events was truthful. The applicant therefore submitted a petition of review to the Minister in respect of the decision in accordance with s.14 Prisons Act 2007.

Held The court was not satisfied with the explanation for the delay in dealing with the applicant"s petition. The prisoner had a very short period within which to submit it, and did so immediately. The sanctions were also imposed immediately. The judge concluded it was unfair and oppressive that he should be obliged to face the disciplinary penalty before the petition was determined. The judge found the delay inordinate and inexcusable and said it amounted to a breach of the applicant"s constitutional rights and the right to fair procedures. The judge stated it was the Minister"s obligation to determine a petition as soon as reasonably practicable, and this was not the case.

-The judge granted the declaratory relief sought and decided to stay the further application of the sanctions imposed until the Minister had made a decision on the petition under section 14(2).

1 JUDGMENT of Mr. Justice McDermott delivered on the 2nd day of December, 2014

2 1. This is an application for an order of certiorari by way of judicial review quashing the decision of the first named respondent (the Governor) made on 30 ^th June, 2013, against the applicant in respect of a breach of the Prison Rules 2007-2013 and the Prisons Act 2007. The applicant also claims a declaration that the second named respondent (the Minister) has to date conducted the "petition" process, as provided by s. 14(1) of the Prisons Act 2007, under which he sought to have the decision reviewed or reversed in an unlawful manner which amounted to a breach of the applicant's constitutional rights to fair procedures and a breach of the Prisons Act and Rules.

3 2. The applicant is a convicted prisoner serving a sentence of nine years imprisonment at Wheatfield Prison which was imposed on 8 ^th May, 2010. He regularly received visits from his partner and two children until 29 ^th June, 2013, when the Prison Governor refused her permission to enter the prison for the purpose of visiting the applicant because she had been observed on CCTV bringing prohibited items into the prison to him on 15 ^th and 22 ^nd June. The applicant was advised of the refusal and the fact that future visits with his partner were now prohibited. He now receives a more restricted form of visit from his partner.

4 3. Arising out of these events, the applicant was given a P19 report form which issues when it is proposed to initiate disciplinary proceedings against a prisoner before the Prison Governor. The P19 alleged that the applicant had offended against prison discipline, in contravention of Schedule 1 of the Prison Rules 2007, in that, a prison officer had reviewed CCTV footage of the visiting area on 15 ^th and 22 ^nd June and observed the transfer of prohibited articles from his partner to him on each of the visiting dates. The P19 stated:-

"On both visits I observed the visitor, identifiable as (the applicant's partner) pass an article to the prisoner. On both occasions the visitor and the prisoner used the children on the visit to obscure the view of the supervising officer and of the cameras. I reported this matter to (an Assistant Chief Officer). Both visits are saved as Visits 15/6/13 Robert Egan, and Visits 26/6/13 Robert Egan in the 2013 OSG File."

The P19 Hearing

5 4. The following morning, Sunday 30 ^th June, a hearing was heard in respect of these alleged breaches of prison discipline. The Prison Governor, a Chief Prison Officer and the applicant were present. The applicant states that the Governor read over the P19 to him and asked what he wished to say in response. He claims that he stated that he did not know what the Governor was talking about and that the Chief Officer present immediately stated that if he were to admit the breach of discipline, he would get a lenient sanction. He states that he immediately and emphatically denied both allegations contained in the P19 report and expressly requested that he be allowed to view the CCTV footage. He claims that he was then asked to wait outside the door, left the room and waited nearby. He was there for a number of minutes. When he returned to the office he noted that the Prison Governor was watching a monitor in the presence of the Chief Prison Officer and another prison officer. He claimed that the Governor stated that what he was watching looked "suspicious" and added that the Governor claimed that he could not see everything. The applicant stated that he responded to the effect that looking suspicious did not constitute guilt. The Prison Governor then said that this was a game of cat and mouse and that it was his job to catch the applicant, and the applicant's job to "get away" with it if he could. He claims that he expressly requested permission to view the CCTV footage which was refused. He said that the Governor stated that if he wished to view the footage, he would have to contact his solicitor.

6 5. The Prison Governor in an affidavit stated that on the morning of 29 ^th June, he received a report from an Assistant Chief Officer that there was CCTV footage of the applicant's partner passing an article to him during visits on both 15 ^th and 22 ^nd June. Furthermore, she had admitted to passing drugs, phone numbers and notes that the applicant did not want the prison authorities to see to the applicant during previous visits. The Governor decided that she should be prohibited from visiting the prison. Any visitor who is prohibited can apply in writing to have the prohibition reviewed.

7 6. The Governor stated that the allegations recorded on the P19 were put to the applicant at the hearing on 30 ^th June and when asked for a response, he denied any wrongdoing. The Governor said that he informed the applicant that he watched the CCTV footage of both visits and was satisfied that both recordings showed that he had received contraband from his partner while using the cover of their children. The applicant asked to view the footage. The Governor states that as the computer in the room was logged onto a wider computer system, he asked the applicant to leave the room while it was switched over to the more restricted CCTV system. This was necessary for security reasons.

8 7. The Governor claims that when the CCTV was ready for viewing, he requested that the applicant return to the room and then showed the CCTV footage of both incidents to him. He stated that the handing over of the items had been carried out very well, and expressed his disappointment to the applicant that the couple had used their children in order to achieve this. The Governor denies that the applicant was not permitted to watch the footage or that he was informed that he would have to see a solicitor in order to obtain it. The Governor also avers that he informed the applicant that he was aware from intelligence that he was involved in the movement of contraband around the prison and that this was causing tension within the prison. The Governor states that the applicant replied that he could not prove that and he was not admitting to anything. The Governor tates that he then informed the applicant that he was satisfied that the allegations as set out in the P19 were proven, and proceeded to sanction him in accordance with the ...