The High Court has refused Peter Barry’s application for discovery in judicial review proceedings against the Governor of the Midlands Prison and the Irish Prison Service. The application sought records about prison menus and the single-cell and shared-cell arrangements of prisoners.
Mr Justice Noonan delivered the judgment on 7 December 2018. Barry is serving a prison sentence at Midlands Prison and has Crohn’s disease. The court said he had been the sole occupant of his current cell from 2016, except for a 41-day period between 13 August and 4 November 2017, when another prisoner was placed with him. The cell was designed for two occupants.
The current judicial review is the third Barry brought within 12 months. In an earlier case, he complained about transport to appointments outside prison; those proceedings were compromised. In a second case, he sought the return of confiscated duvets and towels and installation of a shower curtain. Faherty J dismissed that claim on 11 May 2018. Barry alleged in that case and this one that prison accommodation decisions were retaliation for bringing the first case. The earlier judgment recorded that he had put nothing before the court that could be considered retaliatory conduct.
The discovery application had four categories. The first sought records about menus provided to Barry, including dietitian advice. The other three sought records concerning prisoners’ single-cell occupancy and interruptions to it, including the period when Barry shared his cell. The respondents had already agreed to provide records about Barry’s medical treatment and care, and that discovery had been made. The Governor said that fluctuations in the prison population could make shared occupancy unavoidable at times, although the prison tried to avoid it where possible.
Noonan J held that discovery in judicial review is ordered when necessary for the fair disposal of the application, and not to test unsupported assertions. He found no evidence supporting Barry’s claim that the cell-sharing decision was motivated by improper animus. The requested records about other prisoners therefore amounted to a fishing exercise and were also irrelevant, particularly given an affidavit from Barry’s solicitor stating that arrangements for other prisoners were not relevant.
As to menus, Barry had received his medical records, which would include medical advice about diet, and relevant menus had already been exhibited in the Governor’s affidavits. The judge found further discovery unnecessary. He refused the application. The judgment decided only the discovery request; it did not determine the substantive judicial review claims.