The High Court will give a decision on Friday in a challenge by convicted drug dealer John Gilligan against a charge of possessing a mobile phone while in prison.
Mr Gilligan is objecting to his trial at the District Court on the grounds of a ‘double jeopardy’ principle.
He claims that because he has already been punished under the prison disciplinary system, he should not also be subjected to a criminal trial.
Counsel for the state said the criminal justice system is entirely separate to the disciplinary regime within a prison.
Paul Anthony McDermott said the principle of double jeopardy only applies to the prosecution of criminal offences.
He said internal prison rules to ensure the smooth running of prisons had nothing to do with the law of the land and therefore Mr Gilligan cannot apply the double jeopardy principle in this case.
The Court was told that John Gilligan was found in possession of a mobile phone in his prison cell in Portlaoise and had his privileges withdrawn for 56 days.
During that time, he was not allowed to exercise with other prisoners, lost visiting rights and was confined to the same cell.
Mr McDermott said the withdrawal of privileges such as permission to go to the prison tuck shop or to make phone calls to relatives could not be compared to a criminal sanction.
He said a situation could not be allowed where the internal rules and sanctions of an institution, club or society could prevent a criminal prosecution.
Breaking internal rules was an offence against the institution, club or society whereas a crime was an offence against society. The two were entirely separate matters, he said.
Lawyers for Mr Gilligan said the disciplinary process Mr Gilligan was subjected to in Portlaoise amounted to criminal proceedings. Martin Canney said the court must decide on the question of ‘what is a crime?’
He said the Court must look at the potential sanctions available to a prison governor, rather than the specific sanctions imposed on Mr Gilligan in this case.
He said under the disciplinary proceedings applied to Mr Gilligan the governor could have imposed a loss of 14 days remission.
He said the High Court should look to Supreme Court and European Court of Human Rights decisions which had ruled that a loss of remission amounted to an extension of a prison sentence.
Mr Canney said the category of sanctions applied to Mr Gilligan were in a ‘criminal’ category.
Mr Justice Sean Ryan will give his decision on the case on Friday when a legal aid application will also be made on behalf of Mr Gilligan.
