The Court of Appeal has dismissed an appeal by the Governor of Cloverhill Prison in a dispute over solicitor Caroline Egan’s access to clients in custody, while clarifying that prison rules governing visits can apply to legal advisers.
In a judgment delivered on 7 May 2024, Ms Justice Power said Rule 36(9) of the Prison Rules 2007 applies to a visit to a prisoner “by any person”, including a legal adviser. She said the High Court judge had erred in holding that a prison governor had no power under the rules to exclude a solicitor from seeing clients. Such a power could be exercised under Rule 36(9)(c) where circumstances warranted it and due process had been observed.
The appeal was nevertheless dismissed because of the way the Governor handled complaints from prison staff about Ms Egan. The complaints, as described in the judgment, included allegations that she was “rude and degrading” and that her emails were regularly aggressive. The court did not make findings that the alleged conduct occurred. Power J said the Governor accepted the staff accounts without seeking Ms Egan’s response, although she was affected by the decision. She said a person affected must receive reasonable notice of the concerns and an opportunity to be heard. That failure was sufficient to vitiate the decision.
Power J said the evidence indicated that the exclusion disrupted Ms Egan’s work and client relationships, including because some clients wanted in-person consultations. She also noted there was no evidence of actual loss of earnings, and that Ms Egan had not pleaded a claim that her constitutional right to earn a living had been infringed.
The judgment also criticised Ms Egan for not replying to letters sent by the Governor on 27 April, 3 June and 10 June 2022. Power J said a response or meeting might have resolved the matter, but that did not cure the due-process failure. She said it would have been preferable for the Governor to try to resolve the dispute through his general authority to manage the prison.
The ruling clarifies the scope of Rule 36(9)(c), but the appeal’s dismissal means the challenged decision was not upheld. The judgment does not state that a new exclusion was ordered or that Ms Egan’s access was otherwise determined by the Court of Appeal.