DPP - v- Gilligan.Neutral citation: (2010) IEHC 245. Hight Court Judgment was delivered on September 10th, 2010, by Mr Justice Seán Ryan.
Judgment
In a consultative case stated, Judge Gerard Haughton was correct in identifying the difference between prison disciplinary procedures and a criminal prosecution and there was no question of double jeopardy in prosecuting the applicant for possession of a mobile phone.
Background
The case was brought by John Gilligan, who had challenged the decision of the Director of Public Prosecutions to bring charges against him for having a mobile phone and a SIM card in his cell, as he had already been subject to disciplinary charges within the prison service for possessing such a phone, with the sanction of the loss of all privileges for 56 days. He argued that the principle of double jeopardy arose.
Judge Haughton gave a written judgment in which he dealt with the various arguments made by the defendant.
He concluded that the prison disciplinary procedure was not a criminal trial and that the issue of double jeopardy did not arise.
The defendant then asked the judge to state a case for the opinion of the High Court. Mr Justice Ryan considered the question and concluded that Judge Haughton was correct. However, he added some further remarks.
Remarks
The issue of the jurisprudence of the European Court of Human Rights had been raised. Three tests have been approved as to whether a disciplinary proceeding should be considered criminal so as to give rise to entitlements under Article 6 of the convention (the right to a fair trial): how the matter is treated in national law (of particular importance in Ireland, as the Constitution prohibits trials except in courts of law); the nature of the act constituting a breach of discipline, and the punishment.
Mr Justice Ryan said it was clear that the deprivation of prison privileges would not invoke Article 6. The maximum sanction available was the loss of 14 days’ remission and the Strasbourg court had not decided this indicated criminal proceedings. He said the cumulative effect of the sanction and the maximum sanction available did not bring the prison disciplinary regime within the ambit of Article 6.
Even if the disciplinary proceedings were considered criminal, there was nothing in the European case law to give rise to a double jeopardy prohibition. This could only arise where there was a previous criminal trial.
The disciplinary proceedings in the prison were entirely different from a criminal trial, as had been spelled out in detail by counsel for the DPP. The range of sanctions open to the governor was entirely related to the prison regime.
He emphasised the fundamental difference between prison discipline, essential to good order within the institution, and a court, whose function it is to administer justice in public in cases brought on behalf of the people as a matter of public and general law.
The District Court judge was entirely correct in identifying the differences between the two procedures and in deciding that there was no question of double jeopardy because of the prior disciplinary sanction imposed on the defendant.
The full judgment is on www.courts.ie
Paul Anthony McDermott BL, instructed by the Chief Prosecution Solicitor, for the DPP; Martin Canny BL, instructed by GM solicitors, Longford, for Mr Gilligan