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High Court: Former prisoner’s challenge to screened visit policy for protected prisoners is moot

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Judicial review proceedings brought by a former prisoner who was subject to screened visits when granted status as a protected prisoner in Mountjoy Prison have been ruled moot.

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About this case:

Concluding that the proceedings had been rendered moot, Mr Justice Gerard Hogan said that it would be inappropriate to pronounce upon the substantive issues regarding the validity of the screening programmed raised by the former prisoner when the policy had changed significantly since he had been released from custody.

Protected regime

A former prisoner of Mountjoy Prison, Zachary Purcell, 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.”

Proliferation of gang culture

Mr Justice Hogan explained that “the proliferation of gang culture among the prison population has presented formidable new challenges for prison management”, adding that “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”. Furthermore, Mr Justice Hogan acknowledged that “protected prisoners may themselves pose a risk to other prisoners”.

Mr Purcell sought to challenge the system of screened visits for protected prisoners at Mountjoy Prison, the effect of which is to preclude any physical contact at all between the prisoner and members of his family.

In his sword affidavit, the Governor of Mountjoy Prison explained the reasons for the system of screened visits:

  1. Safety amongst protected prisoners – due to building limitations at the Mountjoy prison complex, protected prisoners could not be kept apart from other groups of protected visitors, resulting in “a real risk of violence” much more magnified than amongst the general prison population.

  2. Reducing contraband – pressurising the weaker individuals within a protected prisoner group was a deliberate tactic used by other members to import contraband, and this channel of bringing contraband into the prison was too significant to blindly ignore.

    3. Mootness

    While Mr Justice Hogan was satisfied that Mr Purcell, who had protected prisoner status before being released from custody in February 2018, had locus standi to commence the proceedings – Mr Justice Hogan said the issue was whether the proceedings had been rendered moot.

    Mr Justice Hogan explained that the practice of screened visits had changed very significantly in the time since Mr Purcell had been released. Since Mr Purcell sought an order of certiorari quashing the decision of the Governor “to permit only screened visits to the applicant as a ‘protected prisoner’”. Mr Justice Hogan said that the particular challenge was highly fact specific because it was in essence to the proportionality of the policy, and whether the interference with his family rights were capable of objective justification.

    Mr Justice Hogan said that it was virtually inescapable describing the present proceedings as moot, and added that even though there remained protected prisoners still confined to screened visits, they were entirely different to those which Mr Purcell had been subjected. Since the policy which Mr Purcell sought to challenge had been discontinued, and the new policy only applied to a more limited class of particularly culnerable protected prisoners; any challenge to the existing policy would have to be based on the new circumstances.

    Speculative or hypothetical set of facts

    Mr Justice Hogan said that allowing Mr Purcell to advance such a challenge “would be tantamount to allowing him to advance not only an entirely new case, but in doing so to assert a jus tertii on behalf of such a prisoner”. With reference to Cahill v. Sutton I.R. 269, Mr Justice Hogan said that the Court would have to “pronounce upon the validity of the policy by reference to a purely speculative or hypothetical set of facts”.

    Mr Justice Hogan set out the considerations for hearing a moot appeal, as outlined by Chief Justice Denham in Farrell v. Governor of St. Patrick’s Institution IESC 30, 1 I.R. 699:

    1. 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;

    2. the decision has an effect on criminal proceedings which are of real and reasonable concern to the appellant;

    3. such an issue arises in circumstances which would escape review if the Court did not exercise a discretion to hear the appeal;

    4. the decision potentially affects many criminal cases in the District Court;

    5. the decision has a systemic relevance to cases before the courts, where an application for judicial review has been granted.

      6. Subject to one exception, Mr Justice Hogan said that none of the above considerations applied to Mr Purcell’s case. In this regard, Justice agreed that the validity of the screening practice was a question with a wider systemic importance – but emphasised that the system had changed 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”

      Mr Justice Hogan said that it would be inappropriate to entertain what would amount to a jus tertii-style claim brought by the applicant on behalf of present prisoners subject to the policy. As such, he concluded that the proceedings had been rendered moot.

      • by Seosamh Gráinséir for Irish Legal News

        • Copyright © Irish Legal News Ltd 2018

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