The High Court refused an application to cross-examine a prison official in a judicial review brought by a remand prisoner challenging his segregation and prison conditions. It also refused an order to have him physically produced for the hearing, directing that he be facilitated to observe proceedings by video link.
In a judgment delivered on 21 May 2020, Mr Justice Richard Humphreys said cross-examination in judicial review is appropriate where there is a clear conflict of admissible evidence on a relevant issue. He found that the issues raised did not meet that threshold.
The applicant, who was awaiting trial for attempted murder before the Special Criminal Court, sought to question Assistant Governor O’Shea about three affidavits. The underlying judicial review seeks to challenge a segregation direction made on 31 January 2020 under rule 63 of the Prison Rules, among other relief. The judge was dealing only with the application for cross-examination and production, not the substantive judicial review.
The applicant disputed the Governor’s account of whether he had commented on the segregation direction. But the form exhibited to the affidavit was signed by the applicant and stated that he “didn’t make any comments”. The judge said the form also recorded an objection to the direction, and found no real conflict on that point.
The Governor said the segregation decision was based on confidential information indicating a significant risk to the applicant. The applicant maintained there was no threat to his life. The judge said confidential information was privileged and could not meaningfully be explored through cross-examination. He said a challenge to a decision based on confidential sources would, in practice, need to rely on legal arguments or cogent contrary evidence from the applicant.
The judge also rejected cross-examination on the applicant’s conditions of detention. The Governor denied that he was on “23-hour lockup”. The judge noted inconsistencies in the applicant’s account of time outside his cell, including references to up to two hours and to “22-hour lockup”, and concluded there was no clear conflict warranting cross-examination.
Other disputed matters included access to education and vocational facilities, audio discs and evening professional visits. The judge noted that school facilities had been suspended from 13 March 2020, and said the evening-visits issue was a matter for legal argument rather than cross-examination absent a clear factual dispute.
The court refused both cross-examination and physical production. It directed video-link observation instead. Any other procedural directions were left, subject to hearing counsel, to the judge listed to hear the matter on 26 May 2020, assuming that hearing proceeded.