Court orders that man serving life for murder should have privileges restored

A man serving life imprisonment over the murder of a drug dealer has won a High Court challenge to the withdrawal of privileges over the alleged passing of contraband to him during a prison visit.

Court orders that man serving life for murder should have privileges restored

by Ann O'Loughlin

A man serving life imprisonment over the murder of a drug dealer has won a High Court challenge to the withdrawal of privileges over the alleged passing of contraband to him during a prison visit.

Ms Justice Una Ní Raifeartaigh said a disciplinary hearing in Portlaoise Prison against Peter Kenny was tainted by the absence of fair procedures and he was entitled to an order quashing the withdrawal of his privileges.

Kenny (35), formerly of McCarthy's Terrace, Rialto, Dublin, was convicted in 2011 of murdering drug dealer John Carroll (33) who was shot dead by a heavily disguised gunman in Grumpy Jack's pub in the Coombe, Dublin, on February 18, 2009.

Evidence from another drug dealer, Joey O'Brien from Crumlin, who was accepted into the State Witness Protection Programme, was central to Kenny's conviction. O'Brien, who was himself granted immunity from prosecution, testified that Kenny had been "the shooter" in the killing.

In the fourth year of his life sentence in Portlaoise, Kenny received a visit from his partner, Rita O'Toole, who allegedly passed a prohibited item to him.

He was searched, including having his clothes removed, but no prohibited article was found. There was no cavity search.

He was brought before the assistant governor who informed Kenny CCTV "clearly shows that you had an item in your hand and that you secreted the item in your groin or anus area".

Kenny denied receiving any item and asked to see the CCTV footage, but this was refused. The assistant governor later said this was done for security reasons as it was not possible or practical, without causing major disruption to the prison routine, for footage to be shown to the prisoner.

He was found to have breached prison rules and privileges, including being stopped from specific activities and from receiving further visits, were withdrawn.

He brought High Court proceedings in which it was argued he was entitled to "examine or have explained" to him any evidence in support of the allegation.

The governor of Portlaoise Prison and the Minister for Justice opposed the challenge.

The assistant governor said, in an affidavit, that Kenny's partner, Ms O'Toole, had come to adverse attention in the past, had been prohibited from visits for a period and also put on "screen visits" for another period.

He also said the CCTV showed a small white bullet-shaped object was removed from O'Toole's sleeve before she went into the visiting area. While there, she brushed her left-hand side against Kenny's left side when they hugged one another, and her hand then appeared empty.

Ms Justice Ní Raifeartaigh said it may be that prison rules do not, strictly speaking, require that a prisoner be entitled to examine the evidence, provided it is explained to him.

However, it seemed to her the rules require to be read and informed by principles of constitutional fair procedures.

It was difficult to see how security considerations rendered the showing of the CCTV impractical or impossible, she said.

There was no reason offered why, when the disciplinary hearing took place, that it could not have been adjourned to allow the CCTV be viewed at some other time and place, she said.

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