About this case:

• Citation:
  [2023] IEHC 262
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

Delivering judgment in the case, Mr Justice Anthony Barr held that disciplinary regimes contained an implied term that the process would be fair to the employee and, accordingly, the court was concerned with whether the absence of legal representation rendered the proceedings unfair.

The court was satisfied that the nature of the allegations against the officer were not complex or sufficiently serious to warrant legal representation, although he could be represented by his union.

Background

The applicant was a prison officer at an unnamed prison in Ireland. He had been in the role since 1988 and claimed to have an unblemished employment record. In December 2020, the wife of a prisoner sent an email to the prison governor which made certain complaints about the applicant’s conduct. It was alleged that the prison officer had been communicating with the wife through WhatsApp over a period of time.

The WhatsApp messages had been exchanged in relatively cordial terms. However, at one point the wife complained about alleged threats received from another prisoner and the applicant allegedly responded that he would “poison the bastard”, “stab him in the neck” and “kill him” if he was transferred to his prison.

A decision was reached to suspend the applicant and an investigation commenced in February 2021 into the allegations. A further complaint was made in March 2021 by another prisoner, who alleged that the applicant had brought contraband into the prison and provided it to prisoners. The allegations related to mobile phones, alcohol and drugs. It was also alleged that the applicant was placing bets on behalf of the prisoners.

In August 2021, the applicant was informed that a formal investigation would be carried out in respect of the allegations. The wife who made the first complaint refused to attend an interview with the investigating officer and, further, no interview with the second complainant occurred either.

The applicant attended for an interview, but did not answer any questions on the advice of his solicitor. This was due to the fact that he had been informed that certain allegations had been referred to the gardaí.

The investigating officer issued his report in October 2021, where he concluded that, on the balance of probabilities, the WhatsApp messages came from the applicant. However, the officer reached no decision on the allegations of contraband or placing bets due to the lack of interviews with the complainants. Further, it was ruled out that the applicant arranged to have a prisoner assaulted.

The investigating officer also concluded that the applicant had made threats to have a prisoner killed or assaulted and that he had made inappropriate contact with the wife of a prisoner. As such, the governor of the applicant’s prison decided to hold a disciplinary meeting with the applicant.

The meeting was designed to be a fact-finding exercise and would afford the applicant an opportunity to reply to concerns. In advance of the meeting, a request was made by the applicant’s solicitors to represent the applicant. This was refused on the basis that employees were not entitled to legal representation unless it was a complex case. The applicant was entitled to be represented by his trade union if he wished.

The applicant challenged the refusal. It was argued that, where neither of the complainants had co-operated in the investigation, the disciplinary hearing would be reliant on hearsay evidence and secondary evidence. It was said that these were complex legal issues on the admissibility of evidence which necessitated the input of a lawyer.

It was also argued, inter alia, that the consequences for the applicant at the meeting could be serious. As such, it was said that the court should interfere with a disciplinary process as it had gone irredeemably wrong (see Rowland v. An Post [2017] 1 IR 355).

High Court

Mr Justice Barr began by outlining the relevant case law. The kinds of factors which affected the necessity of legal representation in a disciplinary hearing included the seriousness of the charge, the potential penalty, the points of law which could arise, the capacity of the employee to represent themselves and procedural difficulties.

However, “the essential point which the relevant governor had to consider, was whether from the accused’s point of view legal representation was needed in the particular circumstances of the case” (see Burns and Hartigan v. Governor of Castlerea Prison [2009] 3 IR 682).

The court also outlined that if it was not clear that legal representation was required in a disciplinary matter, it would be premature for a court to intervene. A disciplinary process contained an implied term of fair procedures. As such, where there was no express entitlement to legal representation, a court was required to consider whether a lack of legal representation amounted to unfair proceedings (see McKelvey v. Irish Rail [2020] 1 IR 573).

Applying the law to the facts of this case, the court noted that three of the most serious allegations had been ruled out due to a lack of cooperation by the complainants with the investigation.

Further, the gardaí had confirmed that there was no ongoing criminal investigation in relation to the matter. On this basis, the applicant’s union could represent him, the court said.

The court noted that the threats to kill or harm a prisoner in the WhatsApp messages appeared to be “empty bravado” on the part of the sender designed to impress the wife. The idea that the prisoner would be poisoned, strangled or otherwise killed lacked credibility, the court said. It was “farcical in the extreme” to think that someone would state their intention to murder another person in a WhatsApp message.

In relation to the allegation that the applicant had inappropriate contact with the wife of a prisoner, the court held that an employee was obliged to be proactive in explaining their conduct in a disciplinary setting. Since no criminal charges were pending, the applicant would not be prejudiced in providing any answers he wished.

Conclusion

In the circumstances, the court held that the real issues which would be dealt with at the hearing were 1) whether the applicant sent to the messages to the complainants, 2) whether the messages amounted to inappropriate contact and 3) the making of threats against a prisoner.

Having regard to the court’s analysis, none of the issues required an in-depth grasp of legal or factual complexities. The court was satisfied that a legal representative was not necessary to ensure a fair hearing and, accordingly, the applicant was not entitled to legal representation.

H v. Governor of a Prison and Anor. [2023] IEHC 262