High Court: Convicted murderer who was found with knife and blades in his cell loses application for judicial review

About this case:

• Citation:
  [2019] IEHC 445
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Miriam O'Regan

Background

In January 1999, Gerald Dunne was committed to Wheatfield Prison following a murder conviction and the imposition of a life sentence.

At approximately 2.10pm on 7 November 2017, Mr Dunne’s cell was searched in his presence, when an improvised knife wrapped in tissue and a bag of razor blades were found in his cell.

Following the search, Mr Dunne received a P.19 notice of a prison disciplinary hearing charging him with the following breaches of the Prison Rules 2007:

• - Damage or disfiguring prison property or the prison;
• - Has in his cell or room possession of a prohibited article;
• - Has in his possession a greater quantity of any article than he would be authorised to have.

In a letter dated 7 November 2017, Mr Dunne’s solicitors asked the Governor of Wheatfield Prison to preserve CCTV covering the entrance to the cell and surrounding areas for “a reasonable period of time prior to today” to ascertain whether anyone entered the cell. The letter also asked the Governor to invite An Garda Síochána to investigate the matter and that the knife be preserved in a tamper-proof evidence bag to allow it to be analysed. The letter asked that consideration be given to the use of fingerprint analyses “and if it is not to be relied upon that our client be provided the opportunity to arrange his own fingerprint analysis”.

A disciplinary hearing on 8 November 2017 was adjourned on the basis of Mr Dunne’s defence that CCTV would show others had access to his cell when he was not present, and that he didn’t lock his cell while he was at work. He said he had no knowledge of the knife.

On 14 November, the hearing resumed, however Mr Dunne complained that he was not shown the totality of the CCTV footage. Mr Dunne suggested that the bag of razor blades was on a high shelf that he could not reach, however, the Governor stated that the only shelf in Mr Dunne’s cell was a four-foot shelf and that he clearly would have had sight of the items.

The P.19 recorded that the CCTV footage of the morning in question showed Mr Dunne was present every time someone entered his cell, that no-one who entered was carrying anything, and that Mr Dunne was responsible for the content of his own cell. Ultimately the Governor found against Mr Dunne and imposed sanction.

High Court

In the application for judicial review in the High Court, Ms Justice O’Regan said three issues arose for consideration:

(1)       Did the Governor breach fair procedure by reason of a failure to afford Mr Dunne an entitlement to examine a particular knife and CCTV footage.

(2)        Was the refusal to consider Mr Dunne’s petition pursuant to s.14 of the Prison Act 2007 irrational, absurd, unfair and unlawful; or did the Governor act unlawfully and in breach of Mr Dunne’s rights pursuant to s.14 of the Prisons Act 2007 by failure of the Governor to transmit the appeal of Mr Dunne to the Minister for Justice;

(3)        Did the Governor fail to act lawfully and breach fair procedures and natural justice in failing to respond to the reasonable requests of Mr Dunne’s solicitor for information to assist Mr Dunne in prosecuting his petition in a meaningful and timely fashion.

Considering the entitlement to examine CCTV footage, Ms Justice O’Regan noted conflicts in the evidence on behalf of the state but said it did not form part of the evidence against Mr Dunne, and was therefore not captured by s.67(6) of the Prison Rules 2007 or the judgments Peter Kenny v The Governor of Portlaoise Prison Anor or Doolan v Governor of Arbour Hill Prison Anors [2019] IEHC.

By 16 November, Mr Dunne’s solicitors knew that CCTV footage had been viewed by the Governor and that the outcome of the hearing was negative to Mr Dunne – yet they did not make any complaint in the letter of that date.

Further, Ms Justice O’Regan said the reference to “a reasonable period of time prior to today” did admit of an understanding reference to “today” being the day of the search, and accordingly given that Mr Dunne chose “to express the requisite period in general as opposed to specific terms”, Mr Dunne had not demonstrated a factual basis sufficient to discharge the burden of proof to establish any want of fair procedure by the Governor in respect of the CCTV footage.

Ms Justice O’Regan said there was no evidential basis to suggest that preserving and making the knife available for forensic testing prior to the hearing/conclusion was otherwise than in accordance with s.67(6) of the Prison Rules 2007 

Considering the s.14 petition, Ms Justice O’Regan said there was clear confusion as to the appeal which Mr Dunne sought to process, but that this did not warrant a finding of a breach of fair procedure on the part of the Governor.

Finally, Ms Justice O’Regan said it was regrettable that there was no communication from the Governor to Mr Dunne’s solicitor prior to the 23 November 2017, but that having regard to Egan v Governor of Wheatfield Prison [2014] 1 IR 64  and the fact that the P.19 document was in Mr Dunne’s possession, this did not amount to a breach of fair procedure or natural justice.

Refusing the application, Ms Justice O’Regan said she was not satisfied Mr Dunne had demonstrated a factual basis to secure an order for certiorari.

• by Seosamh Gráinséir for Irish Legal News