A prison disciplinary sanction did not prevent a criminal prosecution over alleged possession of a mobile phone and SIM card in prison, the High Court held in a consultative case stated.
Mr Justice Ryan delivered the judgment on September 10, 2010, answering a question referred by Judge Gerard Haughton under section 52(1) of the Courts (Supplemental Provisions) Act 1961. The question arose after the prosecution case had closed at a hearing against John Gilligan. The case stated records that Gilligan argued the prison disciplinary process made it unlawful to continue the criminal prosecution.
The disciplinary hearing had found that, on the morning of July 30, 2008, Gilligan had several objects in his cell, including a mobile phone and SIM card. It imposed forfeiture of all privileges for 56 days. The criminal charge alleged possession of the phone and SIM card contrary to section 36 of the Prisons Act 2007.
Ryan agreed with the referring judge that the disciplinary procedure was not a criminal trial and that double jeopardy did not arise. He said there was no authority supporting the argument in these circumstances, and that the UK, Canadian and US cases cited pointed the other way.
The judgment considered European human rights case law on when prison disciplinary proceedings may be treated as criminal for the purpose of Article 6 rights. Ryan said those cases concerned a different question and did not establish a double jeopardy bar. He noted that the disciplinary sanction imposed, the maximum sanction described in the judgment, and its connection to prison remission did not bring the regime into the criminal category for Article 6 purposes.
He added that even if the disciplinary proceedings were considered criminal for Article 6, the cited European case law did not establish a double jeopardy prohibition. Relying on the Supreme Court decision in D. S. v. The Judges of the Cork Circuit Court and the Director of Public Prosecutions, he said double jeopardy requires a previous criminal trial. The prison process and the court prosecution differed in the parties involved, venue, timing, purpose and potential consequences.
The High Court answered that the referring judge was correct in law. The judgment resolved the legal question posed; it does not state the outcome of the underlying prosecution.