The High Court has ruled that a prosecution for possessing a mobile phone in prison without permission does not require evidence from every governor. The prosecution must prove beyond reasonable doubt that the prisoner lacked permission from the governor as defined by the Prisons Act 2007.
Mr Justice Meenan gave the opinion in a consultative case stated requested by Josh Turner, who was charged under section 36 of the Act after a phone was found in his cell. At trial, possession of the phone and its seizure, retention and chain of custody were not disputed.
A prison officer testified that the phone was found in Turner’s cell. Governor O’Sullivan said he was the senior governor on duty on 28 April 2018 and had not given Turner permission to possess it. He testified that prison policy prohibited phones, inmates were told this when committed, and signs displayed the rule. He said that if permission had been granted, he would have been told. His evidence was not challenged.
The defence sought a direction at the close of the prosecution case, arguing that the prosecution had to call Governor Mullins, the overall governor, and the other governors to establish that none had granted permission. The District Court judge rejected that submission and sought the High Court’s opinion on three questions about the prosecution’s burden and whether a conviction could be based on evidence from fewer than all governors.
The High Court said the prosecution had to prove that the phone was possessed without the permission of the prison governor. Under the Act’s definition, both O’Sullivan and Mullins were a “governor”; on the day in question, O’Sullivan was acting on Mullins’s behalf. The judge concluded that the District Court judge was entitled to find beyond reasonable doubt, on O’Sullivan’s unchallenged evidence, that the phone was held without permission.
The court distinguished the Special Criminal Court decision in DPP v Rattigan, where it was not satisfied beyond reasonable doubt on the evidence in that case. Mr Justice Meenan said Rattigan was based on its particular facts.
The High Court answered yes to all three questions. It said the prosecution must negate the possibility that a governor gave permission, but may do so without calling every governor. The ruling was an opinion on the stated questions; the judgment does not record a final conviction or sentence in Turner’s case.