The High Court has quashed a prison governor’s decision that a prisoner breached discipline by receiving contraband during a visit, ruling that he should have been allowed to view and comment on CCTV footage relied on at the hearing.
The court remitted the matter for a fresh decision. The judgment does not determine whether the prisoner received a prohibited item; it addresses the fairness of the disciplinary process.
The applicant, Peter Kenny, was serving a life sentence when his visit from his partner was stopped at Portlaoise Prison on 15 May 2015. He was searched on suspicion he had received a prohibited article, but the search found none. The next day, Assistant Governor David Conroy held a short hearing based on a prison officer’s P19 report. The report alleged that the officer saw a prohibited item passed to Kenny and placed on the lower part of his body.
Kenny denied receiving an item and asked to see the CCTV. Conroy refused, citing security reasons. He found that Kenny had breached prison rules and imposed sanctions for 35 days, including loss of personal visits and phone calls, gym use and evening recreation, and an order to wear prison clothes.
In affidavits filed in the judicial review proceedings, the officer said he had not actually seen an item being passed. He described observing contact between Kenny and his visitor that led him to suspect a handover. Conroy said the CCTV showed the visitor removing a small object from her sleeve before the visit, apparent contact between the two, and Kenny concealing an item. He said the footage was the evidence on which he based his decision.
Justice Ni Raifeartaigh held that fair procedures required Kenny to see the CCTV and have an opportunity to comment on it. She accepted that the process did not need to resemble a full adversarial hearing, but said the footage was the basic evidence relied on. The governor’s explanation that viewing it would require moving Kenny to a less secure area did not persuade the judge that showing it at another time or place was impossible without compromising security.
The judge said that the footage might have made no difference to the outcome, but that did not remove Kenny’s entitlement to the opportunity to respond. She did not find it necessary for the reporting officer to attend, because the governor appeared to have relied on the CCTV rather than the officer’s account. She also rejected the complaint that reasons had not been given: at the hearing, Kenny had been told the CCTV showed an item being concealed.
The court declined to shut out the judicial review because Kenny had not used the available appeal process. It granted the relief sought and quashed the decision, directing that it be reconsidered through a fresh decision.