The High Court declared that an inordinate and inexcusable delay in deciding a prisoner’s petition against prison discipline sanctions breached his constitutional right to fair procedures. It stayed further application of the sanctions until the Minister decides the petition.
The judgment, delivered by Mr Justice McDermott on 2 December 2014, concerned a judicial review brought by Robert Egan, a convicted prisoner at Wheatfield Prison. The Governor had found him guilty of disciplinary breaches after CCTV was said to show his partner passing prohibited items to him during visits on 15 and 22 June 2013.
Egan challenged the disciplinary decision, saying he had denied the allegations and was not shown the footage. The Governor and a chief prison officer said he had watched it during the hearing. The court noted that Egan had not applied to cross-examine the affidavit witnesses. It was not satisfied on the balance of probabilities that his account was truthful, and rejected his challenge to the disciplinary decision on that basis.
The sanctions included forfeiture of 56 days of evening recreation, ordinary visits, and making or receiving telephone calls or letters. Egan could still receive one phone call and one screened visit a week. He submitted a petition to the Minister under section 14 of the Prisons Act 2007. By 12 August 2013, when leave for judicial review was granted and a stay imposed, he had served 43 days of the sanctions and the petition remained undecided.
The court found the explanations for the delay inadequate. It also criticised the failure to provide Egan’s solicitors with basic documents, including the P19 disciplinary report and the petition, saying that withholding them could inhibit access to legal advice. The court said security or third-party privacy might justify withholding some material, such as CCTV footage, and that the solicitors were not entitled to the full range of documents they had sought absent special or exceptional circumstances.
The court rejected Egan’s argument that the Governor could suspend sanctions pending the petition. It held that the Governor’s suspension power was not linked to the petition process. The Minister, however, could affirm, modify, suspend or revoke a sanction. The delay had effectively reduced the Minister’s ability to provide meaningful relief because much of the sanction period had elapsed.
The court declared that the Minister’s delay breached Article 40.3 fair procedures and was unreasonable under section 14(2). It ordered that the sanctions remain stayed until the Minister makes a decision on the petition. The judgment did not quash the Governor’s disciplinary finding.