Burns & Hartigan v Governor of Castlerea Prison
 IESC 33
Complaints of alleged breaches of the Prison (Disciplinary Code for Officers) Rules, 1996 (Statutory Instrument No. 289 of 1996), hereafter called the Code, by two prison officers had been made and an issue arose as to whether they were entitled to have legal representation during an oral hearing being held internally under the Code. The Governor refused to allow legal representation on the basis that it was not provided for in the Code. The High Court, in an application for judicial review, quashed the decision of the Governor and this case was by way of appeal of that High Court decision to the Supreme Court.
The Supreme Court looked at whether or not the Governor had a discretion to allow legal representation or not and if he had, whether his decision not to allow it was correct on the exercise of that discretion.
The complaints against the prison officers were three-fold. The first one was “That on 26th April, 2002, while assisting on the escort of Merlin Park Hospital, Galway, i/c of Prisoner Anthony Massey you made a false and inaccurate statement with intent to deceive.” The amount of time taken in escorting the prisoner was allegedly wholly excessive with the consequence of an improper overtime claim. The prison officers attended the internal hearing, as required by the Code, but they refused to engage on the basis that they were refused legal representation. The Governor found against them and stated that the officers would be reprimanded and that repremand entered on their records. He also recommended to the Minister that they lose one increment in their salary for one year. In addition they were also restricted to duties within the prison complex and this restriction would be reviewed after one year.
The prison officers judicially reviewed the Governor since they had been refused legal representation during the disciplinary hearing. Geoghegan J, in addressing the first point for decision (whether the Governor had any discretion to allow representation when it was not provided for in the Code), agreed with the High Court that just because it was not provided for in the Code did not mean it was precluded and had it intended to preclude legal representation it could easily have done so in plain language. He went on to say “While that observation is valid, the Constitution itself might require legal representation in exceptional cases irrespective of the wording”. Therefore, there are exceptional circumstances where such representation may be appropriate regardless of a lack of provision for it.
As to the proper exercise of the discretion (to allow or not allow representation) Mr, Justice Geoghegan took “the view that legal representation was clearly unnecessary in this case”. He was of the view, even though the first complaint against the officers could be considered serious, that “in the context of the factual matrix to this case, the charges could very easily be defended without a lawyer”. He went on: “The issues were factual issues connected with the day to day running of the prison. It is difficult to see why a lawyer would be required. The rules specify who is to be an advocate and, therefore, subject to the overall obligation of fairness they should be followed. The cases for which the Governor would be obliged to exercise a discretion in favour of permitting legal representation would be exceptional.”
Interestingly, the judge went on to say that the seriousness of the charges would not necessarily be the basis for permitting legal representation if the issues of proof were purely ones of fact. He stated: “They [the exceptional cases] would not necessarily be related even to the objective seriousness of the charges if the issues of proof were purely ones of simple fact and could safely be disposed of without a lawyer.” He went on to make perhaps the most well known comment in the decision: “In any organisation where there are disciplinary procedures, it is wholly undesirable to involve legal representation unless in all the circumstances it would be required by the principles of constitutional justice.”
Mr. Justice Geoghegan went on to mention a UK case (R v Secretary of State for the Home Department, ex parte Tarrant, 1 Q.B. 251) where similar issues were addressed. He said, however, that in listing the categories identified in the UK case he was merely suggesting that they are a starting point. Even if a case was to fall within one of the listed categories, for example in the context of the Prison Officers Code, the Governor would still be entitled to consider whether a fair hearing would require a lawyer.
The six matters suggested in the UK case are:
- The seriousness of the charge and of the potential penalty
- Whether any points of law are likely to arise
- The capacity of a particular prisoner to present his own case
- Procedural difficulty
- The need for reasonable speed in making the adjudication, that being an important consideration
- The need for fairness as between prisoners and as between prisoners and prison officers.
The Supreme Court approved that list but said “it is a list merely of the kind of factors which might be relevant in the consideration of whether legal representation is desirable in the interests of a fair hearing. Ultimately, the essential point which the relevant Governor has to consider is whether from the accused’s point of view legal representation is needed in the particular circumstances of the case. I would reiterate that legal representation should be the exception rather than the rule. In most cases the provisions of the rules will simply apply.” (Author’s emphasis)
One further point made in the decision relates to the rule in the Code in accordance with which the Governor chose to address the matter. Rule 5 provided for informal treatment of matters by the Governor but he chose to use Rule 8 thereby, it was argued, indicating that the breaches of discipline were not of a minor nature and therefore legal representation was required. The judge categorically rejected that argument.
The Appeal was allowed and the High Court decision set aside. The decision was delivered by Mr. Justice Geoghegan with Denham J and Kearns J concurring.
If legal representation is requested in an internal process, consideration should be given in the first place to your policies, then to the six categories mentioned above. It could be argued that the seriousness of the allegations, and consequently the possible outcomes, are not necessarily a measure based on the above if the matters to be addressed are purely factual. However, it is not as simple as that. More on this anon in our upcoming post on Panagopoulou v The West Cork Hotel Limited. Ultimately, it may be a matter of considering whether it is worth having a “Custer’s last stand” on the issue when the parameters of a legal representative’s involvement could be defined at the outset.