The High Court has set aside a disciplinary finding against a Wheatfield Prison prisoner over a mobile phone found concealed in his cell, ruling that the inquiry breached fair procedures and applied the wrong legal test.
In a judgment delivered electronically on 1 February 2022, Mr Justice Barr held that the Assistant Governor should have sought the phone’s call history and contact list from An Garda Síochána. Those records could have helped address the prisoner’s claim that he did not know the phone was in his cell, even though he accepted it had been found there.
The phone was discovered during a random search on 7 August 2020, concealed in tape attached to a plastic covering in the shower cubicle. The prisoner said the covering was already in place when he moved into the cell and denied knowing about or owning the phone. He had been the cell’s sole occupant since 13 May 2020.
The Assistant Governor declined his request to examine the phone because it had been handed to Gardaí for investigation. The court said the prisoner had no right to physically handle it, given the need to preserve evidence, but prison authorities could have requested the call and contact records. The judge found those records might have shed light on whether the phone had been used during the eight weeks the prisoner occupied the cell, and on his claim that he was unaware of it.
The court also found that the Assistant Governor had proceeded on a strict liability basis, treating the prisoner as responsible because the phone was in his cell. The disciplinary report said he was responsible for items in the cell but did not refer to knowledge of the phone. The judge held that possession requires knowledge as well as control. He also found that the concerns later described by the Assistant Governor—including the length of time the prisoner had occupied the cell and the phone’s concealment—had not been put to him for comment before the finding of guilt.
The court set aside the finding that the prisoner had breached the Prison Rules. It said references to the finding appeared to have to be removed from his prison record. The judge did not make a final order at this stage: the parties were invited to provide written submissions within two weeks on the terms of the final order, costs and other matters. The court said a rehearing might not be necessary because the punishment may already have been served. It did not decide whether the restriction on visiting rights should be severed from the punishment.