The High Court has ruled that two Castlerea Prison officers were entitled to legal representation at a disciplinary hearing over their escort of a prisoner to hospital, and that refusing them lawyers made the process “fatally flawed”.
Mr Justice Paul Butler delivered the judgment on 16 March 2005 in judicial review proceedings brought by Alan Burns and John Hartigan against the Governor of Castlerea Prison. The Minister for Justice, Equality and Law Reform was a notice party.
The disciplinary allegations followed an escort on 26 April 2002 from Castlerea Prison to Merlin Park Hospital in Galway. The officers left at 10.25am for a 10.30am appointment, arrived at noon and returned to the prison at 6.35pm. The allegations included making a false and inaccurate statement with intent to deceive, failing to perform their duties promptly and diligently, and knowingly soliciting an unauthorised gratuity. These were allegations, not findings by the High Court.
At the disciplinary hearing on 7 July 2003, the officers’ representatives said they would not take part because the officers had been refused legal representation. The Governor proceeded in their absence, found the alleged breaches proved and reprimanded each officer, recommending that the Minister reduce their pay through forfeiture of one increment for 12 months. Separate letters directed that their future duties be confined to the prison complex for 12 months and required repayment of three hours’ overtime.
The judge found that the disciplinary rules allowed an officer to be assisted by another prison officer but did not expressly or implicitly exclude lawyers. Given the seriousness of allegations that suggested dishonesty and the potential penalties, including recommendations for demotion or dismissal, natural or constitutional justice required legal representation in this case. The Governor had acted in good faith but was wrong to refuse it.
The officers also challenged delay and the additional directions concerning duties and overtime. The judge said the delay ground would fail even if made out because no prejudice was shown. He was satisfied that the duties direction and overtime repayment were not disciplinary penalties. He did not decide the question of other remedies because the process had already failed. He also said the European Convention on Human Rights did not apply at the relevant time because the 2003 Act was not then part of Irish law.
The judgment did not specify the final order. The judge said he would hear the parties on its form.