Stephen Molyneaux v HM Prison

• Jurisdiction: Montserrat
• Judge: Thom JA
• Judgment Date: 30 June 2021
• Neutral Citation: MS 2021 CA 4
• Court: Court of Appeal (Montserrat)
• Docket Number: MNIHCVAP2019/0010

THE EASTERN CARIBBEAN SUPREME COURT

IN THE COURT OF APPEAL

Before:

The Hon. Mde. Gertel Thom Justice of Appeal

The Hon. Mde. Margaret Price-Findlay Justice of Appeal [Ag.]

The Hon. Mr. Dexter Theodore, QC Justice of Appeal [Ag.]

MNIHCVAP2019/0010

Between:

Stephen Molyneaux

Appellant

and

[1] Her Majesty's Prison

[2] Superintendent of Prisons

[3] Head of Prison Function, Eustace Allen

Respondents

Appearances:

Mr. Stephen Molyneaux, Appellant in Person

Ms. Renée Morgan for the Respondents

Civil appeal — Incentives and Earned Privileges Scheme (‘IEPS’) — Prison Act Cap. 10.04 — Prison Rules Cap. 10.04 — Whether the IEPS is ultra vires the Prison Rules — Whether there is a legal basis for the establishment of the IEPS — Section 21 of the Prison Act — Rule 6 of the Prison Rules — Whether appellant's confinement during specific period amounted to cellular confinement and was therefore unlawful — Whether appellant's confinement during specific period amounted to removal from association with other inmates and was contrary to Rule 26 of the Prison Rules — Whether learned judge erred in his finding that confinement in a cell in excess of twenty-two hours amounted to cellular confinement — Whether learned judge erred in his finding that ‘basic level’ under the IEPS was equivalent to cellular confinement under the Prison Rules — Appellate interference with trial judge's findings of fact — Whether learned trial judge erred in refusing to order any declarations or make any award of damages to appellant

The appellant, Mr. Stephen Molyneaux, has been serving a life sentence at Her Majesty's Prison in Montserrat for murder, since 2002. While serving his sentence, the Incentives and Earned Privileges Scheme (‘IEPS’), had been implemented at Her Majesty's Prison. The IEPS is a system of privileges aimed at incentivising prisoners to abide by the prison rules and engage in rehabilitation exercises such as education and substance misuse interventions. Under the IEPS, inmates are required to sign a statement referred to as a “compact”, in which they agree to, among other things, abide by the Prison Rules. In return they enjoy privileges over and above what is outlined in the Prison Act and Prison Rules. Upon the recommendation of a prison advisor, the IEPS was revised in 2016 by the Superintendent of Her Majesty's Prison, with the approval of the Governor.

Prior to 2016, Mr. Molyneaux enjoyed several privileges including having access to several electronics and textbooks. Under the IEPS, a review was conducted of the inmates and Mr. Molyneaux's was assessed at the ‘basic level’. He also had refused to sign the IEPS compact. In keeping with the revised IEPS, prison cells were searched and electronic devises kept by inmates were removed. Mr. Molyneaux's electronic devices, his textbooks and a piece of wood used for woodworking purposes, which were kept in his cell were also removed. This upset him and it was alleged that he assaulted a prison officer as a result. Charges of assault and indecent language were instituted against him by the Director of Public Prosecutions, however, were subsequently withdrawn.

From the date of the alleged assault on the prison officer, Mr. Molyneaux was transferred several times and kept in his cell in some instances for more than 20 hours daily for 15 months (“the Confinement Period”). Aggrieved, he instituted proceedings in which he sought several reliefs including declarations and damages for breach of the Prison Act, Prison Rules, and the Constitution. In his statement of case, he claimed among other things, that his confiscated items should be returned to him; that his confinement during the Confinement Period amounted to ‘cellular confinement’ and was therefore contrary to the Prison Act and Prison Rules; that the IEPS conflicted with rule 33 of the Prison Rules; and that his rights under sections 4 and 8 of the Constitution were breached during the Confinement Period. The respondent strenuously resisted these claims.

The learned trial judge having heard the evidence, found that: (i) Mr. Molyneaux's claims in relation to the return of items taken from him should be dealt with by the Prison Visiting Committee and he dismissed all other claims made by Mr. Molyneaux; (ii) the ‘basic level’ under the IEPS was tantamount to cellular confinement but it was lawful since the IEPS superseded the Prison Rules; and (iii) Mr. Molyneaux was not removed from association with other inmates contrary to Rule 26 of the Prison Rules.

Mr. Molyneaux being dissatisfied with the decision of the learned judge, appealed to this Court relying on eight grounds of appeal. However, at the hearing he did not pursue the grounds seeking constitutional relief. The respondents dissatisfied with the learned trial judge's finding that basic level was tantamount to cellular confinement, counter appealed. The main issues that arise for determination before this Court are: (i) whether the IEPS is ultra vires the Prison Rules; (ii) whether Mr. Molyneaux's confinement during the Confinement Period amounted to (a) cellular confinement and was therefore unlawful; and (b) removal from association with other inmates and was contrary to Rule 26 of the Prison Rules; (iii) whether the learned trial judge erred in refusing to order any declarations or make any award of damages to Mr. Molyneaux; and (iv) whether the learned judge erred in his finding that confinement in a cell in excess of twenty-two hours amounted to cellular confinement and that “basic level” under the IEPS, was equivalent to cellular confinement under the Prison Rules.

Held:

allowing the appeal in part; allowing the counter appeal; and making the orders set out in paragraph 77 of this judgment, that:

• 1. The IEPS was legally implemented pursuant to section 21 of the Prison Act and rule 6 of the Prison Rules. The effect of section 21 of the Prison Act is that Parliament delegated, to the Governor-in-Council (‘Executive Branch’), the power to make rules for the management of the prison. While pursuant to rule 6 of the Prison Rules, the Executive Branch granted to the Superintendent of Prisons, with the approval of the Governor, the power to establish a system of privileges for inmates of the prison. As such, when read conjointly, section 21 and rule 6 provide the legal basis for the establishment of the IEPS.

  Section 21 of the Prison Act Cap. 10.04, Revised Laws of Montserrat 2013 applied; Rule 6 of the Prison Rules Cap. 10.04, Revised Laws of Montserrat 2013 applied; R (on the application of Potter and ors.) v Secretary of State for the Home Department [2001] EWHC Admin 1041 applied; R (on the application of Barrie Hewlett) v The Secretary of State for Justice [2009] EWHC (Admin) 2979 applied.

• 2. In the exercise of the power under rule 6, the IEPS was created by the Superintendent of Prisons with the approval of the Governor. The provisions of the IEPS outline in detail, the privileges to be afforded to inmates at various levels. The creation of the IEPS did not however, amend any portion of the Prison Rules nor create a separate system of discipline. The IEPS simply provides additional support to the existing prison system as regulated by the Prison Act and Prison Rules. As such, for the most part, the IEPS is not contrary to the provisions of the Prison Act and Prison Rules and is therefore not ultra vires. However, insofar as the IEPS, as it stood at the time of the institution of these proceedings, permitted at the basic level, only 1 hour of recreation, it was inconsistent with rule 17 of the Prison Rules, which provides that a prisoner was to be afforded no less than 1 hour recreation when he was not engaged in outdoor activities with other inmates. Therefore, in this limited form, this specific provision in the IEPS was ultra vires and therefore of no effect.

  Rule 17 of the Prison Rules Cap. 10.04, Revised Laws of Montserrat 2013 applied; R (on the application of Barrie Hewlett) v The Secretary of State for Justice [2009] EWHC (Admin) 2979 applied.

• 3. Cellular confinement is not defined in the Prison Act or in the Prison Rules. It is however defined in the Mandela Rules as confinement in a cell over a period of time for more than 22 hours per day and that the confinement must be without meaningful human contact. While, neither the Prison Act nor the Prison Rules define cellular confinement, on a careful reading of the Prison Rules and the Code of Conduct for Prison Officers, it shows that rules 21(10), 31(1), 33(1) and 34(1) and (3) of the Prison Rules and rules 14 and 43 of the Code of Conduct for Prison Officers when read conjointly, embrace the concept that confinement without meaningful human contact would amount to cellular confinement. These rules provide that cellular confinement could only be imposed on a prisoner where the prisoner is found guilty of an offence against discipline either by the Superintendent of Prisons or Senior Officer in charge for a limited period of no more than 3 days and by the Prison Visiting Committee for a period of 56 days.

  UN General Assembly, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules): resolution / adopted by the General Assembly, 8 January 2016, A/RES/70/175 applied; Rules 21(10), 31(1), 33(3) and 34 of the Prison Rules Cap. 10.04, Revised Laws of Montserrat 2013 applied; Rules 14 and 43 of the Code of Conduct for Prison Officers, Cap. 10.04, Revised Laws of Montserrat 2013 applied.

• 4. In the case at bar, Mr. Molyneaux, was not convicted of any offence against discipline and was therefore not sentenced by the Superintendent or the Prison Visiting Committee. However, he was confined in the juvenile cell, on three separate occasions for 30, 43 and 46 days respectively, without meaningful human contact. He was also not let out his cell except when offered 1 hour recreation. While in the juvenile cell, Mr. Molyneaux was...