High Court dismisses prisoner's judicial review for unfair disciplinary proceedings due to admitted guilt and lack of procedural flaws.

Neutral Citation Number: [2008] IEHC 206

THE HIGH COURT

2004 No. 1093 J.R.

BETWEEN

DAVID GIBBONS

APPLICANT

AND

THE GOVERNOR OF WHEATFIELD PRISON

RESPONDENT

Judgment of Mr. Justice John Hedigan delivered on the 1st day of July, 2008.

1. In these proceedings the applicant seeks an order of certiorari quashing the order of the respondent (described as an

“Administrative Order”) dated the 24th November, 2004, made in disciplinary proceedings conducted by the respondent in respect of

an allegation of misconduct against the applicant in Wheatfield Prison.

2. The applicant also seeks certain declarations concerning the unlawfulness, unconstitutionality or invalidity of the disciplinary

proceedings conducted by the respondent, including, if necessary, a declaration of invalidity of the relevant legislative and regulatory

provisions having regard to the provisions of the Constitution and/or a declaration of incompatibility of those provisions with the

State’s obligations under the European Convention on Human Rights.

3. The applicant also seeks damages for breaches of constitutional rights, breach of duty, including statutory duty, and/or pursuant

to section 3 of the European Convention on Human Rights Act, 2003.

4. The grounds upon which that relief is sought are a want of fair procedures in the failure to give due notice, the failure to provide

legal assistance or advice, the absence of an appeal procedure, the circumstances in which the disciplinary proceedings were

conducted, amounting to degrading treatment or punishment, the absence of an independent and impartial hearing, the deprivation of

the applicant’s liberty otherwise than by a procedure prescribed by law and not in due course of law, and that the penalty was

disproportionate.

5. The respondent opposes all reliefs sought and denies all the grounds upon which relief is sought. In particular, the respondent

places emphasis on an alleged admission of guilt by the applicant during the disciplinary procedures.

6. The facts of this case are very basically that at approximately 7.15 on the 24th November, 2004, the applicant was taken from his

cell following apparently confidential information or a tip off concerning the possible possession of prohibited items in his cell. He was

brought to another cell and his clothes were taken off him so that they could be examined in the X-ray machine. He alleges that he

was subsequently only given a pair of underpants to wear, the authorities state that he was given a full set of prison clothing. Three

hours after that he was confronted by Deputy Governor Sugrue who read the report, which had been prepared by the investigating

prison officer and which indicated that prohibited items had been found in his cell. According to the Deputy Governor, the applicant

indicated that the report was not correct. According to the applicant, his response was “no comment”. Proceedings were continued

there and then by the Deputy Governor and the penalty of loss of days of remission together with loss of privileges was imposed there

and then. Events have to a great extent overtaken this application. For example:-

(a) The Prisons Act, 2007, and the new Prison Rules, 2007, now provide for an appeal to an independent Tribunal where

loss of remission is imposed.

(b) His days lost have been in fact restored to him.

7. The only remaining matter in dispute is the fairness of the proceeding that actually occurred and the fifty six day loss of privileges

that resulted there from. The loss of privileges penalty has already been served and the applicant claims damages in respect of the

loss of these privileges. All else seems to me to be clearly moot and not something the Court needs address now in the discretionary

remedy of judicial review. At the heart of what is left at issue is the dispute over whether the applicant, when confronted, said “no

comment”, as he avers or whether he said the report was correct as Deputy Governor Sugrue avers, and whether he was almost

naked or was properly clothed when the interview took place. It is to be noted that the applicant in his affidavit makes a number of

claims which I find wholly improbable, that is:-

(a) That he is unfamiliar with any of the appeal procedures that existed in the prison.

(b) That he was not aware, nor were any of the other prisoners aware, of the return, through later good behaviour, of

remission days lost as a result of disciplinary hearings.

(c) That he never in fact admitted to anything in his previous record when confronted with the charge.

8. I have little doubt that with his record of nine disciplinary offences, the applicant was well aware of both of the above. It is

noteworthy also that he brought his application for judicial review the day after the disciplinary hearing, the subject herein. I think

that the applicant is a man well aware of the details of the disciplinary processes in prison. Deputy Governor Sugrue has exhibited the

applicant’s record that shows he did indeed, on occasions, other than herein, admit to disciplinary offences and I find the Court can

rely upon those as being collaborative on the basis that they were prepared well before the events herein and in accordance with

established prison practice. I further note that Deputy Governor Sugrue swore affirmatively the applicant said the report was correct

when confronted by him, and stated that he was unaware whether the applicant was clothed under the blanket that he was covered

in that he should have been wearing, having been issued with clothing when his own clothing had been taken from him earlier. For his

part, the applicant says his response was “no comment” when confronted and that the Deputy Governor could not have failed to

notice that he was almost naked under the blanket when he stood. Judging from his unreliability, in the matters that I have referred

to above together with the written record of this and other disciplinary procedures, I think it far more credible he did admit the report

was correct. Deputy Governor Sugrue swears in his affidavits that he deals with several such disciplinary reports every week and that

he has never dealt with one where the inmate was either wearing just underpants or was partially clothed. I find it hard to believe an

Officer of Deputy Governor Sugrue’s seniority would involve himself in such a grievous breach of his duty which ought to carry the

most severe penalty were it to occur. He has robustly denied the allegation and he has not been cross-examined on his affidavit as

was open to the applicant. In these circumstances, I find his account of these events far more convincing and I find the applicant

did, in fact, admit the charge and was not largely unclothed when he did so. I also find nothing untoward in the Deputy Governor

confronting him there and then with the report. Other report forms, the P19s, show that where the applicant, on other occasions,

denied initially the charge alleged, an investigation followed and he subsequently admitted to the charges. These are prison conditions

with which we are dealing here and getting through breaches of discipline as quickly as possible may well be in everyone’s interest

provided always that fair procedures are followed and the prisoner has the right to deny and require a proper investigation. This

clearly had happened before with the applicant and there is no reason to believe that had he wished to he could have denied the

report as he had done before and an investigation would have followed. For all these reasons I refuse the reliefs sought.