The High Court quashed a prison governor’s finding that Brian Doolan breached prison discipline, ruling that he should have been allowed to examine the phone transcripts and website screenshots used against him. The court did not order a rehearing because the sanction had already been served.
Doolan brought judicial review proceedings over a disciplinary hearing at Arbour Hill Prison on 27 September 2017. Governor William Dowling found that he had breached prison rules on bullying or harassment and good order and discipline. The governor imposed 30 days without visits or phone calls.
The disciplinary case arose from allegations that Doolan used prison phone calls to instruct his son, Christian Doolan, to post material about the victim of Doolan’s offences on a website. The governor relied on transcripts of calls and screenshots of website posts. Doolan denied the report was correct and asked to see the transcripts and website material at the hearing. His requests were refused, though he was given the documents the following day to prepare a petition to the Minister for Justice and Equality.
The court rejected Doolan’s arguments that the governor lacked authority to hear the matter and that his Article 6 rights were engaged. It held that using prison phone privileges to bully or harass a victim fell within the Prison Rules, and that this disciplinary allegation was not criminal in nature. It also rejected his other fair-procedure complaints, including that he lacked sufficient time to prepare, was not given reasons or an opportunity to make submissions in mitigation, and faced an impartiality problem because the governor conducted the hearing.
But the court held that Rule 67(6) entitled a prisoner to examine real evidence relied on at a disciplinary hearing. The option to have evidence explained, it said, was intended for situations where a prisoner could not examine it, such as because of language or literacy difficulties. Since the transcripts and screenshots were available and formed the basis of the governor’s decision, refusing Doolan access to them breached fair procedures and the rule.
The court therefore issued certiorari quashing the governor’s decision of 27 September 2017. It did not remit the matter for a new hearing because the sanction had expired. The court did not decide whether the ministerial petition procedure was lawful, leaving that question for another case. It observed that a system may be open to challenge if a sanction is served before a petition is decided; Doolan’s petition had remained undecided for more than 13 months by the time of the judicial review hearing.