Judgment Title: Gibbons -v- Governor of Wheatfield Prison Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation Number: [2008] IEHC 206 THE HIGH COURT 2004 No. 1093 J.R. BETWEENDAVID GIBBONS APPLICANT AND THE GOVERNOR OF WHEATFIELD PRISON RESPONDENT Judgment of Mr. Justice John Hedigan delivered on the 1st day of July, 2008.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. 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. 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. 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. 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. 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:-
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:-
(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. |