High Court dismisses judicial review as moot due to prison authorities discontinuing the challenged screening regime.

THE HIGH COURT

Record No. 2017/45JR

BETWEEN/

ZACHARY PURCELL

APPLICANT

- AND -

THE GOVERNOR OF MOUNTJOY PRISON

AND

THE IRISH PRISON SERVICE

AND

THE MINISTER FOR JUSTICE AND EQUALITY

RESPONDENTS

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 31st day of May 2018

1. In these judicial review proceedings, the applicant, Mr. Zachary Purcell, has challenged the validity of one aspect of what is

described as the “protected regime” which is in operation for certain classes of vulnerable prisoners in Mountjoy Prison. The protection

regime is provided in Rule 63 of the Prison Rules 2007 (S.I. No. 252 of 2007) and it envisages that:

“…a prisoner may, either at his or her own request or when the Governor considers it necessary, in so far as practicable

and subject to the maintenance of good order and safe and secure custody, be kept separate from other prisoners who

are reasonably likely to cause significant harm to him or her.”

2. While the system of protected prisoners is not a new phenomenon within the Irish prison regime, it is clear that the proliferation of

gang culture among the prison population has presented formidable new challenges for prison management. Many prisoners self-

describe themselves as part of a particular gang or faction and, almost by definition, they find themselves vulnerable to attack from

rival gang members. It would, in addition, be unrealistic not to acknowledge that protected prisoners may themselves pose a risk to

other prisoners.

3. The present challenge is to what is described as a system of screened visits for protected prisoners at Mountjoy Prison, the net

effect of which is effectively to preclude any physical contact at all between the prisoner and members of his family. I would not wish

to minimise the impact of a system of screened visits because a meeting which takes place between a perspex screen is simply not

the same as a one in which the prisoner can come face to face with members of his or her family or other visitors. At the same time

the security concerns which have prompted the prison authorities to maintain such a system for protected prisoners are very real. As

Governor Harris explained in an affidavit sworn by him on the 20th October 2017:

“The first reason was safety amongst protected prisoners. Prison visits posed a particular problem because of the physical

limitations of the Mountjoy complex. Whilst with yard exercise and other exercises, protected prisoners could be kept

apart from other groups of protected prisoners, this was not the case (due to building limitations) with prison visits. With

prison visits, protected visitors from different colour groups were seated in the same visiting area. These rooms could

accommodate 12 visitors with two boxed visiting areas at the end of each room for solicitor/client consultations. These

boxed visiting areas were used on certain occasions for unscreened prison visits i.e. where protected prisoners would

meet visitors.

I found that prior to the introduction of screened visits that there was a real risk of violence within the unscreened

visiting area of the prison. This was because of the various factions and gangs in conflict on the outside of the prison and

the real risk of violence to a prisoner or visitor in the unscreened visiting area. Because the visiting room contained

various prisoners from all groups of protected prisoners and not just, for example, the group of which the applicant was a

member, there was a real danger of serious violence occurring in this area. The perpetrator of this violence could be a

visitor to a protected prisoner or amongst protected prisoners. The threat of violence amongst protected prisoners in the

visitor room setting is much more magnified than amongst the general prison population, because of the very nature of

persons who opt to become protected prisoners, i.e., people who feel their safety is at issue.

The second reason for introducing screened visits concerned reducing contraband into the prison. A deliberate tactic used

to import contraband into the prison was to pressurise weaker individuals within a protected prisoner group by members of

that group to bring contraband into the prison. This occurred by such prisoners requesting a box visit in the unscreened

seating area (i.e. the two boxed areas used for solicitor/client consultations). Such unscreened visits were allowed in

cases of a special occasion, e.g., a daughter’s birthday etc. This channel of bringing contraband into the prison was too

significant not to blindly ignore. Of course, contraband enters the prison in other ways but this channel was particularly

pronounced and distinguishable in relative terms from the amount of drugs/contraband coming into prison via visits to the

general prison population. Given the nature of the activity, it was inherently difficult to find those organising such but I

am of the view that the applicant was involved in pressurising weaker individuals with his group to bring contraband into

the prison.”

4. The present proceedings were commenced in January 2017. Mr. Purcell had, in fact, been convicted of burglary in December 2015

and he was then sentenced to a term of three years imprisonment. He immediately sought status as a protected prisoner and this

request was granted by the Prison Governor. The applicant was released from custody in February 2018.

5. Although there is no question but that the applicant was subject to the practice of screened visits – so that he had certainly locus

standi to commence the present proceedings – the question which now arises is whether the present proceedings have been rendered

moot by reason of a series of events which I will now describe.

6. The first of these was that the applicant was released in February of this year. The second development is that the practice of

screened visits has changed very significantly in the meantime. The new system of screened visits never actually applied to this

applicant. As Governor Harris has explained:

“In June 2017, most protected prisoners moved from Mountjoy West to the A Wing of the original prison. This was made

possible after the many years of upgrades to A Wing including the retrofitting of in-cell toilets. Some protected prisoners,

who are particularly vulnerable, are now placed on B Basement. Notwithstanding the physical limitations of the Mountjoy

prison campus, I am trying as Governor to introduce a “green zone” for protected prisoners to enable them to participate

in prison activities to a greater extent. With the move to a new wing, I have re-introduced unscreened visits for

protected prisoners in the A Wing (which includes the applicant) but not for those particularly vulnerable protected

prisoners in B Basement. This policy will be kept under review. If the twin concerns re-surface regarding safety in the visit

area or contraband (via vulnerable prisoners) then I may be forced to re-introduce screened visits for all protected

prisoners.”

7. To my mind, this latter development is far and away the most significant one so far as the issue of mootness is concerned. After

all, the principal relief sought by the applicant was an order of certiorari quashing the decision of the Prison Governor “to permit only

screened visits to the applicant as a ‘protected prisoner’.” But this challenge was to a policy and practice which, to all intents and

purposes, no longer exists. It should also be noted that this particular challenge was not – and could not have been – advanced on

some ex facie basis where the challenge was to the validity of the policy as a thing in itself. Rather the proceedings were highly fact

specific, because the challenge was in essence to the proportionality of the policy and whether this interference with the family rights

of the applicant prisoner was capable of objective justification.

8. Viewed thus, the conclusion that the present proceedings are moot is virtually inescapable. Critically, the sub-stratum of facts

upon which the challenge rests or, at least, might rest has all but completely disappeared. I do not overlook the fact that there are

some protected prisoners who are still confined to screened visits, but Mr. Purcell was not one of them. The factual circumstances by

reference to which such prisoners are confined to screened visits are, moreover, entirely different to that to which Mr. Purcell had

been subjected. This new policy applies to particularly vulnerable protected prisoners – as distinct from protected prisoners

simpliciter. The screening which was the subject of the complaint in the these proceedings all took place in the Mountjoy West part

of the prison complex and applied generally to the protected prisoner population. This particular policy has been discontinued and the

new policy applies now only to a more limited class of protected prisoner who are based in the B Basement.

9. It follows, therefore, that any challenge to the policy now existing would really have to be based on the particular facts and

circumstances of a prisoner held in B Basement who was subject to it. As I have already noted, the applicant is not one such person

and to permit him to advance such a challenge would be tantamount to allowing him to advance not only a entirely new case, but in

doing so to assert a jus tertii on behalf of such a prisoner. As Henchy J. stated in Cahill v. Sutton [1980] I.R. 269, 283:

“While a cogent theoretical argument might be made for allowing any citizen, regardless of personal interest or injury, to

bring proceedings to have a particular statutory provision declared unconstitutional, there are countervailing

considerations which make such an approach generally undesirable and not in the public interest. To allow one litigant to

present and argue what is essentially another person's case would not be conducive to the administration of justice as a

general rule. Without concrete personal circumstances pointing to a wrong suffered or threatened, a case tends to lack

the force and urgency of reality. There is also the risk that the person whose case has been put forward unsuccessfully

by another may be left with the grievance that his claim was wrongly or inadequately presented.”

10. One might also add that to allow such a challenge at this point without the benefit of evidence in relation to how the new policy

actually operates in practice by reference to the specific facts and circumstances of a prisoner actually affected by it would mean

that this court would be required to pronounce upon the validity of the policy by reference to a purely speculative or hypothetical set

of facts. It is, of course, true that the courts are sometimes prepared to determine the underlying issue even where the case is moot.

This, moreover, reflects the fact that the mootness doctrine is simply a rule of practice which may be relaxed as the occasion

appropriately presents itself.

11. As the Court of Appeal pointed out in McDonagh v. Governor of Mountjoy Prison [2015] IECA 71:

“The fact, however, that a particular appeal is moot is not necessarily the end of the matter. The rule in relation to

mootness is simply a rule of practice designed to conserve the exercise of the judicial power to its proper sphere of

application. In recent years the Supreme Court has stressed that this general rule must yield on occasion to the greater

imperative of resolving issues which, while moot, are apt to recur or where there are other compelling reasons why such

an appeal should be entertained.”

12. These contemporary developments are well illustrated by the Supreme Court’s decision in Farrell v. Governor of St. Patrick’s

Institution [2014] IESC 30, [2014] 1 I.R. 699. In that case the applicant sought and obtained an order ex parte from the High Court

(Birmingham J.) granting leave to apply for judicial review in respect of a pending trial. A stay was also granted restraining any further

prosecution of that offence in the District Court. The District Judge nonetheless subsequently remanded the applicant in custody for a

short period of a few days.

13. An application was then made to me sitting as a judge of the High Court under Article 40.4.2. By the time the application was

ultimately heard the stay had long since expired. I took the view that although the matter was now moot, given the shortness of the

time period in question, the legality of that detention might otherwise escape effective judicial oversight and review, it was

appropriate that the merits of the case should be addressed. I then held that the remand in custody which had been made by the

District Court judge was inconsistent with the earlier stay which had been granted by Birmingham J. and made a declaration to that

effect.

14. A majority of the Supreme Court held that the respondent’s appeal from my decision was now moot by reason of the effluxion of

time, but the Court unanimously took the view that even if this were so, it should nonetheless proceed to hear the appeal. The Court

then proceeded to hold that I had been incorrect in granting the declaration which I had. So far as the mootness issue was

concerned, Denham C.J. pointed out ([2014] 1 I.R. 699, 708-709) :

“The reasons why I would hear this moot appeal include the following:-

(i) the decision to grant a stay was made on an ex parte application, and the appellant had no opportunity to address the

issue, or terms, of a stay;

(ii) the decision has an effect on criminal proceedings which are of real and reasonable concern to the appellant;

(iii) such an issue arises in circumstances which would escape review if the Court did not exercise a discretion to hear the

appeal;

(iv) the decision potentially affects many criminal cases in the District Court;

(v) the decision has a systemic relevance to cases before the courts, where an application for judicial review has been

granted.”

15. For my part, I do not think that, subject to one exception, any of these considerations apply here. No decision has been taken by

the High Court (or any other court) which affects the parties or any criminal proceedings or any other pending criminal cases. Nor

could it be said that the issue would escape review if the Court did not exercise a jurisdiction to hear an otherwise moot case,

because such cases can be brought by a prisoner presently affected by the new screening regime. As I have already stated, the

circumstances of the new regime are rather different from the now discontinued regime to which the applicant was subject and which

is under challenge here.

16. I agree that the question of the validity of the screening practice is one which has (or, at least, may have) a wider systemic

importance. But one still comes back to the fact that the old system of which the applicant complained is no more and to make a

determination as to whether it was lawful by reference to these historical facts would serve little useful purpose and would confer no

practical advantage on the applicant.

Conclusions

17. In my judgment, the present proceedings have been rendered moot by reason especially of the significant changes effected in

relation to screened visits by the Prison Governor in June 2017 and the discontinuation of the particular practice of screened visits of

which the applicant had complained. In these circumstances it would in effect be pointless for this Court to pronounce on the validity

of the now discontinued practice. Since the applicant can obtain no practical benefit from any judicial determination on this point, it

would, I think, be consistent with the proper administration of justice that I should decline to do so.

18. In arriving at this conclusion I do not overlook the fact that a slightly different version of the screening policy has been

introduced for those prisoners who have been transferred to the Basement B. But the applicant was never one such prisoner so that

it would be inappropriate for me to entertain what would amount to a jus tertii-style claim brought by the applicant on behalf of these

prisoners.

19. In conclusion, therefore, I conclude that the present proceedings have been rendered moot and it would not now be appropriate

for me in the circumstances to pronounce upon the substantive issues regarding the validity of the screening programme raised by the

applicant.