A convicted murderer is entitled to copies of prison CCTV footage relating to him for a month and a day, the High Court ruled.
But Stephen Penrose (40), who was convicted of murdering his friend Philip Finnegan (24) in August, 2016, and burying his body in a shallow grave, is not entitled to more than a year of footage that he had sought, Ms Justice Marguerite Bolger ruled.
Mr Penrose has brought High Court proceedings against the governor of Mountjoy Prison, the Irish Prison Service and the Department of Justice over the authorities’ decision to place him in solitary confinement, or the Challenging Behaviour Unit as it is now officially called.
He says he frequently asked to be moved out of solitary and was refused. He accepts he refused offers of moves on a few occasions due to pending court applications, but otherwise says claims by the governor that he refused to move are untrue.
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The respondents say he is in solitary due to threats he made against staff and disciplinary sanctions imposed on him as a result of his conduct.
Last June, he was given a two-year sentence for threatening to burn down a prison officer’s home. He also has three convictions for assaults on prison officers.
His judicial review proceedings over solitary confinement have yet to go to hearing. In the meantime, he sought discovery of film footage for October 2021 to November 2022 he says he needs for his case.
The prison authorities opposed his application saying most of the footage he seeks is irrelevant, not necessary, constitutes “fishing” (for information) and would be unduly onerous because it would involve providing hours and hours of footage.
They offered to supply him with three specific days of footage in September, October and 2022 which are dates on which he was offered a move from solitary but which they say he refused and may be potentially relevant to his case.
He says those dates were selective and that the respondents were trying to mislead the court.
Mr Penrose, in making his case for some 13 months of footage, said he believes it will prove that he was unlawfully detained in solitary.
Representing himself, he also told the court that he has a large amount of documentation that will prove his case and that the footage is “extra” to what he already has but that he was not going to “reveal my hand” at this stage.
He said he had very detailed and accurate notes of every conversation he had with prison staff while he was in solitary, including with the governor, as he had little else to do.
Ms Justice Bolger noted he did not utilise those notes to narrow down the days or times of the day for which he wanted to see the footage.
She said he “cited nothing, apart from his own assertions of truth and lies to supplement his claim that he was entitled to discovery of the footage in order to challenge the truth of the respondents’ affidavits (or, as he put it, to prove that they were all lies)”.
She said “such bare averments” are insufficient given case law which has found that discovery cannot be used merely to test averments in the absence of evidence to support the grounds advanced.
While Mr Penrose may be offered some indulgence as a lay litigant, particularly one who is currently in custody, that cannot allow the clear requirements of the jurisprudence to be overridden, she said.
However, she accepted there may be footage that could be relevant to his case but the scope of what he sought must be narrowed.
She ordered the prison to make discovery of footage for the entire of January 2022, when he says he made daily requests to be moved, along with footage from July 25th, 2022, a day on which he says the footage would prove his case and disprove the veracity of an affidavit sworn by the governor and of the governor’s log.
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