Courts

Prison governor not entitled to ban ‘rude’ solicitor, appeal court rules

Physical prohibition ‘quite disruptive’ to Caroline Egan, who tried to meet clients via video-link instead

A challenge was brought by the solicitor over her exclusion from Cloverhill Prison following complaints by staff. Photograph: Nick Bradshaw

Tue May 7 2024 - 19:16

A prison governor was not entitled to ban a solicitor from visiting clients in prison after it was alleged she had been rude to prison staff, the Court of Appeal (CoA) ruled.

Dublin solicitor Caroline Egan brought a challenge over her exclusion from Cloverhill Prison following complaints by staff to the governor that she was rude and aggressive in dealing with them when requesting “walk-in” visits to clients.

Ms Egan denied strongly she was rude or aggressive.

The High Court heard the governor imposed the ban on July 4th, 2022, under a prison rule (number 36.9.c) allowing exclusion to “maintain good order and safe and secure custody”.

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The court heard there had been two complaints the previous April about her from individual staff members followed by another in May from the prison officer’s trade union of a more general nature.

Ms Egan said she endeavoured as best she could to meet her clients via video-link but the physical ban from the prison proved to be quite disruptive. Certain clients expressed a wish to instruct another solicitor in light of their perceived view that she would not meet them, she said.

The High Court found that a prison governor cannot impose a blanket ban on personal visits of a solicitor to all prisoner clients “in order to ensure good manners by solicitors in dealing with staff and prevent further discourtesy”, just as other public officials cannot refuse to deal with bad-mannered members of the public on a blanket ban basis.

The governor appealed the decision and on Tuesday, a three-judge CoA unanimously dismissed the appeal.

Mr Justice Brian O’Moore, in one of two judgments by the CoA, said it would have been wise of Ms Egan to engage with the governor in pre-ban correspondence inviting her to meet him to discuss the matter particularly given her position that she had not verbally abused anyone.

However, he said, she was never provided with details of the complaints against her and never warned that she would face exclusion if she failed to attend the meeting with the governor.

The evidence indisputably established that Ms Egan’s ability to earn a living as a solicitor was significantly disrupted by the decision to bar her from visiting her clients in Cloverhill, he said.

Even accepting the proposition of law advanced on behalf of the governor that Ms Egan’s entitlement to due process was fully engaged, it was not respected, he said.

He said that, strikingly, the failure on the part of the governor to provide the basics of natural justice to Ms Egan was “so severe” that it was not necessary to refer to any authority in carrying out the court’s analysis.

About the prison rules used to exclude her, the judge said he did not believe it was open to a governor to exclude a solicitor from visiting any of their clients “simply because he or she has been rude to prison officers”.

The purpose of the relevant rule was clearly to deal with much more significant matters.

Along with “good order” the rule also deals with controlled drugs, the commission of criminal offences, and the safe and secure custody of prisoners, he said.

“The good order of the prison is not, in my view, imperilled by rudeness or passive aggression on the part of a solicitor,” he said.

In a separate judgment, Ms Justice Ann Power said while she agreed the appeal should be dismissed she believed the court had also confirmed the governor’s contention that the relevant prison rule is not confined to any particular form of visit and that it applies to visits by legal advisers to clients in custody.

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