Murderer entitled to prison CCTV footage over solitary confinement, High Court rules

High Court reporters

A convicted murderer is entitled to copies of prison CCTV footage relating to him for a month and a day, the High Court has ruled.

However, Stephen Penrose (40) is not entitled to more than a year of footage which he had sought, Ms Justice Marguerite Bolger ruled.

Penrose was convicted of murdering his friend, Philip Finnegan (24), and burying his body in a shallow grave in August 2016.

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 move on a few occasions due to pending court applications, but otherwise says claims by the governor of him refusing to move are untrue.

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, Penrose 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 has sought discovery of film footage for October 2021 to November 2022, which he says he needs for his case.

'Fishing'

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 as it would involve providing hours and hours of footage.

They offered to supply him with three specific days of footage from dates on which he was offered a move from solitary confinement but which they say he refused and may be potentially relevant to his case.

He says those dates were selective, claiming the respondents were trying to mislead the court.

In making his case for some 13 months of footage, Penrose said he believes the recordings will prove 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, adding the footage is “extra” to what he already has, but he said 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”.

The judge 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 Penrose may be offered some indulgence as a lay litigant, particularly one who is currently in custody, Ms Justice Bolger said that cannot allow the clear requirements of the jurisprudence to be overridden.

However, the judge accepted there may be footage which 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.