A sex offender who used prison phone call privileges to pass on information so his son could use it on a website to make derogatory comments about his victim was not afforded fair procedures when he was disciplined over the matter, the High Court ruled.
But Ms Justice Deirdre Murphy said former law lecturer Brian Doolan (73), who was convicted of sexually abusing his nephew Stephen Kershaw, should not get a new disciplinary hearing because the 30-day loss of phone and visitor privileges imposed on him had already been served.
She also rejected his claims that his conduct was not covered by the Prison Rules 2007 because it did not fall within “good government” of the prison.
She said the use of phone call privileges “for nefarious purposes” and for bullying and harassment falls squarely within the rules.
Doolan was a barrister who taught law at the Dublin Institute of Technology before receiving a 10-year prison sentence in 2016 which he is serving in Arbour Hill Prison in Dublin.
He claimed he is engaged in a campaign to clear his name of false allegations made by his nephew and that his disciplining in prison was an infringement of his freedom of expression.
He was convicted of abusing Mr Kershaw during sleepovers at his (Doolan’s) home, in his car and while on holidays, when the boy was aged between 12 and 16.
The prison service, in September 2017, received information that a website had been created by Doolan’s son, Christian Doolan.
It contained a large amount of material attacking the credibility of and character of the victim. It also contained a photo of the victim when he was a child.
The prison governor said it appeared some, if not all, the material on the website came through phone calls and visits between Brian Doolan and his son.
At his disciplinary hearing in the prison, Doolan wanted to see the transcript of the phone calls but was refused.
The governor imposed a 30-day loss of phone and visit privileges after finding he had breached prison discipline by engaging in bullying and harassment and had offended against good order and discipline.
He petitioned the Minister for Justice to revoke the sanction. In the meantime, he brought a High Court judicial review challenge seeking to quash the governor’s decision.
Ms Justice Murphy noted when he indicated he was going to petition the Minister, he was supplied with transcripts of the phone conversations and with screenshots of the website which he had also been refused at the disciplinary hearing.
She said his right to a fair hearing under the European Convention on Human Rights was not engaged by the disciplinary process leading to loss of privileges.
Right to a fair trial principles only apply where there is a more serious breach of discipline which could lead to further loss of liberty.
The judge was persuaded the failure to allow him examine the phone call transcripts and website screenshot evidence at the disciplinary hearing was sufficient to invalidate the lawfulness of the governor’s finding.
The governor had relied on that evidence to make the finding against him and there was no good reason why it should not have been produced for examination and comment by him.
The judge said arguments by Doolan in relation to the lawfulness of the petition procedure to the Minister for Justice did not need to be determined by the court in the light of its quashing of the governor’s finding.
She observed however that the petition system may well be liable to challenge. It was “indeed remarkable” that the hearing of Doolan’s petition to the Minister was still pending some 13 months after it was delivered, she said.