Judgment
Title: | McAuley -v- Governor of Mountjoy Prison |
Neutral Citation: | [2012] IESC 57 |
Supreme Court Record Number: | 488/12 |
High Court Record Number: | 2012 822 JR |
Date of Delivery: | 11/29/2012 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., Hardiman J., MacMenamin J. |
Judgment by: | Hardiman J. |
Status: | Approved |
Result: | Dismiss |
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| Judgments by | Link to Judgment | Concurring | Hardiman J. | | Denham C.J., MacMenamin J. | |
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[2012] IESC 57
THE SUPREME COURT
488/12
Denham C.J.
Hardiman J.
McKechnie J.
JAMES McAULEY
Applicant/Appellant
and
THE GOVERNOR OF MOUNTJOY PRISON
Respondent
JUDGMENT of Mr. Justice Hardiman delivered the 29th day of November, 2012.
1. This is the applicant’s appeal against the judgment and order of the High Court (McGovern J.) dated the 24th October, 2012 whereby the applicant’s application for certiorari was dismissed.
2. At all material times the applicant was a sentenced prisoner in Mountjoy Prison. He has an extremely poor disciplinary record. He has had twelve breaches of the prison rules recorded against him in the course of his present sentence, starting on the 28th October, 2010. He has been found in breach of those rules on a total of fifty-four occasions during his whole career to date.
Facts.
3. The appellant was the subject of a complaint, known in prison parlance as a “P 19”, (after the Form on which the complaint is written). It related to the possession of a mobile phone on the 30th August, 2012. A mobile phone is a prohibited article for prison rule purposes. An inquiry into this allegation was convened on the 31st July, 2012. The applicant denied the allegation. The Governor then adjourned the inquiry until the prison officer who had made the complaint was available to give evidence. The inquiry reconvened on the 7th September, 2012. On this occasion the appellant admitted that the phone was his. The inquiry was convened and conducted under s.12 of the Prisons Act, 2007. The sanctions available to the Governor extended to those set out in the statute, which is quoted extensively below. The sentence imposed was one of forty-two days “prohibition of certain privileges”, to run from the 7th September, 2012 until the 19th October, 2012.
4. It is a vital feature of the factual background to this case that the inquiry just referred to was conducted in the afternoon of the 7th September, 2012. On the morning of that very day the appellant was again found in possession of a mobile phone and sim card. This led to a further inquiry on the complaint of a prison officer. This inquiry took place on the 11th September, 2012 and on this occasion the appellant admitted the contravention at the start. The sanction imposed was prohibition of certain privileges for fifty-six days to commence on the 26th October, 2012. It is this aspect which the appellant challenges.
5. It is not disputed that, as breaches of prison discipline go, the possession of a mobile phone and a sim card is relatively serious and may constitute a criminal offence. It is also noteworthy that, in the six month period between 1st April, 2012 and 30th September, 2012 some eight hundred and twenty-four “P 19” complaints were dealt with in Mountjoy Prison. They are a regular feature of the Governor’s duties.
The Appellant’s contention.
6. The appellant’s contention in this case is a simple one. He agrees that, in respect of each of the two contraventions of prison rules which he admitted he was liable to be sentenced to up to sixty days loss of privileges. However, he says that there was no power to defer the commencement of the fifty-six day period of loss of privileges imposed on the 11th September, 2012 to the 26th October of that year. He says that any power to defer a commencement of the period of loss of privileges would require to have a specific and express statutory origin. He emphasises that the jurisdiction being exercised by the Governor was an entirely statutory jurisdiction and does not extend to any unspecified, unenumerated or implied powers. He says this is so specifically because the sections in question (Sections 12 and 13 of the Prisons Act, 1907) are penal provisions.
7. The appellant does not deny that the effect of his submission being upheld might well be to create an absurd or even irrational result, but he says that that is the fault of the legislature and that the Court should not step in to remedy a defect in the legislation, but leave that to the Oireachtas. He also points out that if a power to defer the commencement of a period of loss of privileges were to be implied then a prisoner who committed multiple breaches might find himself deprived of privileges for a year (six periods of sixty days each) or more whereas the maximum sentence for any one breach is sixty days only. But, of course, there are two breaches in question here.
8. It is convenient now to set out the statutory provisions which apply.
Statutes.
9. Sections 12 and 13 of the Prisons Act, 2007 provides as follows:
“12.— (1) If a prisoner is alleged to have committed a breach of prison discipline, the governor of the prison may decide to hold an inquiry into the alleged breach.
(2) The prisoner shall be informed of the alleged breach and of the date and time of the inquiry.
(3) The procedure relating to an inquiry may be specified in prison rules.
(4) At the conclusion of an inquiry, the governor shall—
(a) if he or she finds that the prisoner committed a breach of prison discipline—
or
(b) if he or she does not so find, record a finding that the allegation has not been substantiated.
13.— (1) One or more than one of the following sanctions may be imposed on a prisoner who is found by the governor to have committed a breach of prison discipline:
(a) caution;
(b) reprimand;
(c) confinement in a cell (other than a special observation cell) for a period not exceeding 3 days;
(d) prohibition, for a period not exceeding 60 days, on—
(i) engaging in specified authorised structured activities or recreational activities,
(ii) receiving visits (except those from a doctor or other healthcare professional, his or her legal adviser, a chaplain or member of the visiting committee to the prison, the Inspector of Prisons, a judge or representative of a court or tribunal, a member of either House of the Oireachtas, a representative of the Minister, Parole Board, Human Rights Commission or European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment or, if the prisoner is a national of another state, a diplomatic or consular officer of that state),
(iii) sending or receiving letters (except letters from a person mentioned in subparagraph (ii) or the United Nations Committee against Torture or any document relating to the registration of electors (including entry in the postal voters’ list) or to voting at an election or a referendum),
(iv) using money or credit or any other facilities, including telephone facilities, or
(v) possessing specified articles or articles of a specified class the possession of which is permitted as a privilege;
(e) forfeiture of such sum of money credited or to be credited to the prisoner from public funds as may be specified by the governor;
(f) forfeiture of not more than 14 days’ remission of portion of a sentence;
(g) postponement, for a specified period not exceeding 60 days, of payment of the amount of any gratuity to which the prisoner would have been entitled under prison rules in respect of such a period;
(h) where the breach of prison discipline concerned relates to an attempt to escape from lawful custody, a requirement to wear prison clothes for a specified period not exceeding 60 days.
(2) The governor may suspend, subject to such conditions as he or she may specify, the operation of the whole or any part of a sanction so imposed (other than a sanction of forfeiture of remission) for a period not exceeding 3 months from the date of the conclusion of the inquiry concerned.
(3) If any condition to which a suspension is subject is not complied with during the period of suspension, the governor may direct—
(a) that the sanction shall take effect either forthwith or from a specified date, or
(b) that it be abated in a specified manner and, as so abated, so take effect.
(4) If any such conditions are complied with during the period of suspension, the sanction ceases to have effect at the end of that period.
(5) The governor may restore all or any part of any remission of portion of a sentence forfeited by a prisoner under this section if—
(a) he or she considers that its restoration is justified by the prisoner’s good behaviour over a period of time, or
(b) the prisoner has, in the opinion of the governor, performed an exceptionally meritorious act.
(6) Nothing in this section prevents the governor taking immediate provisional or protective measures to maintain order and discipline or prison security.
(7) The following sanctions for breaches of prison discipline are prohibited:
(a) collective punishment;
(b) corporal punishment;
(c) placing in a restraint;
(d) any form of sensory deprivation;
(e) deprivation of sleep;
(f) deprivation of food or drink;
(g) reduction in, or denial of, normal prison diet;
(h) confinement in a special observation cell;
(i) placing in a cell or room without adequate light, heat or ventilation;
(j) a sanction of indeterminate duration;
(k) a sanction constituting cruel, inhumane or degrading treatment.
(8) On the imposition of a sanction under this section, the governor shall explain in ordinary language to the prisoner concerned the content of section 14 (1) and, if the sanction consists of or includes forfeiture of remission of portion of his or her sentence, of section 15 (1).
The Governor’s powers.
10. It appears to me that, upon the hearing of a complaint of a breach of prison discipline or prison rules contained in a form P 19, the Governor has certain obligations and certain discretionary powers. Firstly, he may decide to conduct a hearing, referred to in s. 12(1) as “an inquiry into the alleged breach”. If he exercises this power then, by s. 12(2), the prisoner must be informed of the alleged breach and of the date and time of the inquiry.
11. By virtue of s.12(4), if the Governor finds that the prisoner committed a breach of prison discipline, “he shall”, that is, he must “impose such one or more of the sanctions provided for in s.13 as he considers appropriate”.
12. Section 13(1) lists eight sanctions at sub-paragraphs (a) to (h). These are introduced by the statutory statement:
13(1) “One or more than one of the following sanctions may be imposed on a prisoner who is found by the governor to have committed a breach of prison discipline:”.
13. The sanction in question in this case is that set out at sub-paragraph (d):
“Prohibition, for a period not exceeding sixty days, on -
(i) engaging in specified authorised structure activities or recreational activities,
(ii) receiving visits [with certain exceptional types of visit, which may not be prohibited],
(iii) Sending or receiving letters [with certain exceptions which may not be prohibited],
(iv) using money or credit or any other facilities, including telephone facilities, or
(v) possessing specified articles or articles of a specified class the possession of which is permitted as a privilege;
(e) forfeiture of such sum of money credited or to be credited to the prisoner from public funds as may be specified by the governor.”
Construction of the Statutory Provisions.
14. It will be seen that a sanction in the form of a prohibition of privileges has a maximum duration of sixty days in respect of each breach. The Governor may of course (and in this case did) impose such prohibition for a lesser period, in this case forty-two days for the first breach and fifty-six days for the second.
15. But the maximum period available under the Governor’s jurisdiction is sixty days prohibition in respect of each breach.
16. It appears to me, therefore, that by virtue of s.12 it is mandatory for the Governor, if he finds a prisoner to have committed a breach, to impose one or other, or more than one, of the sanctions set out in s.13. This mandatory duty arises on each occasion on which after a s.12 inquiry, the Governor finds that the prisoner has committed a breach of prison discipline. Here there were two such occasions and they occurred on the 7th September, 2012 and on the 11th September, 2012, respectively.
17. If the appellant’s contention here is correct, and the second sanction had to be imposed with immediate effect, i.e. dating from the 11th September, 2012 then it would have overlapped with thirty-eight days of the forty-two days sentence already imposed in respect of the first breach. To put this another way, the maximum duration of prohibition of privileges to which the prisoner would be liable in respect of the second breach, over and above that which he was serving in any event in respect of the first breach would be eighteen days only. Thus, in respect of the second breach, on the facts of the present case, the appellant’s submissions would have the consequence that the Governor’s effective jurisdiction was limited to about twenty-three days, and this duration would be available only if the Governor imposed the maximum length of prohibition of sixty days. It is obvious that this would be a considerable incentive to a prisoner facing a s.12 inquiry to commit further breaches of prison discipline since the range of sanctions, by way of prohibition of privilege, in respect of a second or subsequent breach would be reduced or even extinguished. The practical effect of this, it appears to me, would be to reduce the Governor’s powers from that which the Statute confers on him in plain language.
18. It does not appear to me that the statutory scheme contains any prohibition on what was done here, nor any inhibition on doing it. The sanction imposed on the 11th September, 2012 is clearly within the jurisdiction of the Governor in point of its duration. There is no statutory provision as to when the period of prohibition of privileges is to commence and no reason apparent to me why the Governor should not fix the date of commencement.
19. It is true that in another context the Governor is given a specific power to fix the date of commencement of a sanction. This is in s.13 (3)(a). But this itself follows the conferral of a power, in the previous subsection, to suspend on conditions any sanction imposed for a period of not more than three months. The subsection referred to then goes on to enable the Governor, in the event of a breach of a condition of a suspension, to impose the sanction “either forthwith or from a specified date”. I do not therefore consider that this power to select a date of commencement is an example of inclusio unius exclusio alterius, as was contended by the appellant, but is a provision relating to an entirely different situation.
20. Where a statute creates a power to convene an inquiry or other formal hearing there is much which, although unspecified, has to be regarded as a necessary incident of a power to convene a hearing. The person presiding at such a hearing must necessarily have incidental powers. A good example of such an incidental power is a power to adjourn the hearing in the absence of a witness, as actually occurred in this case. Equally, the presiding officer must have a power to determine the order in which the various persons interested can address the hearing and other incidental matters. I believe the date of the commencement of the sanction is such a matter. To hold the contrary would be, for the reasons set out above, actually to cut down the Governor’s statutory jurisdiction.
21. If it were necessary to do so, I would hold that a power of the kind in question here can be implied into the plain statutory provisions providing for an inquiry into an alleged breach of discipline, and for the sanctions required by statute to be at the disposal of the Governor in the event that a complaint is upheld. In Mr. Francis Bennion’s book Statutory Interpretation, 4th Ed., (Butterworths, 2002), it is said, at s.172:
“The legislature is presumed to intend that the literal meaning of the express words of an enactment is to be treated as elaborated by taking into account all implications which, in accordance with recognised guides to legislative intention, it is proper to treat the legislature as having intended. Accordingly, in determining which of the opposing constructions of an enactment to apply in the factual situation of the instant case, the Court seeks to identify the one that embodies the elaborations intended by the legislature”.
22. In the same work, the case of Attorney General v. Great Eastern Railway Company (1880) 5 App. Cas. 473 is relied upon for the proposition that “an express statutory power carries implied ancillary powers where needed”.
23. This case related to the powers or vires of a Railway Company incorporated (as was the custom in the 19th century) by Act of Parliament.
24. The Great Eastern Railway Company entered into a contract with another Company with which it had other connections, to supply it with rolling stock for a particular amount of money. A third Railway Company sued the Great Eastern Railway seeking an injunction to restrain it from executing the contract on the grounds that it had no power to do so in its statutory constitution.
25. The House of Lords unanimously upheld a previous decision of its own, The Ashbury Railway Company v. Riche Law Rep. 7 HL 653 and the Lord Chancellor observed:
“It appears to me to be important that the doctrine of ultra vires as it was explained in that case, should be maintained. But I agree that this doctrine ought to be reasonably, and not unreasonably, understood and applied and that whatever may fairly be regarded as incidental to, or consequent upon, those things which legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires”.
26. Lord Blackburn agreed:
“that those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited.”
27. It appears to me that the Supreme Court has said something to very much the same effect over one hundred and twenty years later. In Kincaid v. Aer Lingus Teoranta [2003] 2 IR 314, the Court (per Geoghegan J) stated:
“The fact that there be no express provision dealing with the point which has arisen in this case does not mean that the rules cannot be interpreted as implicitly covering the problem.”
28. David Dodd in his book, Statutory Interpretation in Ireland, (Dublin, 2008), comments on this case and says;
“Legislation is not expected to cater for every single matter or every single scenario and ascertaining the intention of the legislature is an essential aspect of interpretation”.
29. Indeed, I would consider that to fail to imply such matters would be to interfere with the statute by cutting down the powers it manifestly intended to be to confer on the Governor.
30. There remains to consider the appellant’s arguments based on the proposition that the statute in question here is a “penal statute” and not subject to the Great Eastern Railway rule.
31. I do not regard s.12 of the Act of 2007 as a penal provision, and nor do I consider the exercise of fixing the date on which a sentence is to commence to be a penal procedure. n Cross, Statutory Interpretation 3rd Ed., (Butterworths, 1995) it is stated that:
“The phrase ‘penal statute’ is used to cover both statutes creating criminal offences and those providing for the recovery of penalties in civil proceedings… however, it is clear that the Courts nowadays generally adopt a purposive approach even to the construction of penal statutes. For the most part they seek the interpretations which makes sense of the statute and its purpose, and the presumption of strict construction is merely an ancillary aid for resolving difficult cases”.
32. I entirely agree with the somewhat restrictive definition of “penal statute” offered by Lord Cross. I do not consider it necessary, therefore, to comment on the spread of a purposive interpretation into the penal area which he detects in the United Kingdom. I do not find that proposition attractive at first blush and do not consider it necessary to adopt it to dispose of the present case.
Conclusion.
33. I would dismiss the appeal on the ground that the Governor’s action in deferring the commencement of the sanction is a necessary part of the jurisdiction he has given by Sections 12 and 13 of the Act of 2007. If necessary, I would hold it to be a power implied by the nature and incidents of the powers he is expressly given under those provisions. In my view, this interpretation leads to no injustice whatever.