S.I. No. 289/1996:

PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES, 1996.

PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES, 1996.

I, Nora Owen, Minister for Justice, in exercise of the powers conferred on me by section 12 of the General Prisons (Ireland) Act, 1877, as adapted by the General Prisons Board (Transfer of Functions) Order, 1928 ( S.R. & O No. 79 of 1928 ), and with the approval of the Government, hereby make the following Rules:

1. (1) These Rules may be cited as the Prison (Disciplinary Code for Officers) Rules, 1996.

(2) These Rules shall come into operation on the 1st day of October , 1996.

2. The Interpretation Acts, 1937 (No. 38 of 1937) and 1993 (no.35 of 1993) apply to these Rules.

3. Nothing contained in the Prison Rules for the Government of Prisons, 1947 (S.R. & O; No. 320 of 1947), which is inconsistent with these Rules shall be construed as affecting the operation of these Rules and Rule 102 of those Rules shall not apply in relation to any matter as respects which an appeal is provided for by these Rules.

4. (1) In these Rules, save where the context otherwise requires –

"accused officer" means an officer who is alleged to have committed a breach of discipline;

"breach of discipline" means an act or omission specified in the First Schedule;

"the Governor" means the Governor, or other officer deputed to discharge the duties of Governor under these Rules, of the prison where the accused officer concerned was serving at the time the breach of discipline alleged occurred;

"the Minister" means the Minister for Justice;

"officer" means a member of the Prison Service up to and including the grade of Deputy Governor and analogous grades;

"oral hearing" means an oral hearing held by a Governor pursuant to Rule 7(9) of an allegation of a breach of discipline;

(2) A reference in these Rules to an act includes a reference to an omission and a reference in these Rules to the doing of an act includes a reference to the making of an omission.

(3) A reference in these Rules to a Rule or Schedule is to a Rule or Schedule of these Rules and a reference in these Rules to a paragraph or subparagraph is to a paragraph or subparagraph of the provision in which the reference occurs unless it is indicated that reference to some other provision is intended.

5. Nothing in these Rules shall affect the right of a Governor or any officer whose duties include the supervision of another officer to deal informally (whether by advice, caution or admonition as the circumstances may require) with a breach of discipline of a minor nature.

6. A breach of discipline dealt with under Rule 5 shall not be recorded in the accused officer's record of service.

7. Preliminary Procedure

(1) Where it appears that an officer may have committed a breach of discipline and the Governor, having considered any statements and other relevant information, decides that there is a case to be answered, particulars of the breach shall be entered in a Complaint Form. A Complaint Form shall be in the form set out in the Second Schedule.

(2) An allegation against an officer of a breach of discipline shall be made to the Governor as soon as practicable, but not later than 7 working days, after the coming to the notice of a relevant superior officer of the information which gave rise to the allegation.

(3) A Complaint Form shall specify the paragraph number in the First Schedule of the breach of discipline alleged and there shall be attached to it a copy of a statement in writing of the evidence of each witness concerned in relation to the breach and the Form shall contain --

(a) such particulars as will enable the accused officer concerned to understand the nature of the allegation made against him or her, and

(b) a summary of the evidence on which the allegation is based.

No statement (other than a statement that constitutes or is part of the breach of discipline alleged), whether written or oral, made by the officer before the Complaint Form is given to him or her may be used in any subsequent proceedings in relation to the said breach without the officer's consent.

(4) Where more than one breach of discipline is alleged against the same officer, each one shall be entered in a separate Complaint Form.

(5) Each Complaint Form on which an alleged breach of discipline has been entered shall be given to the accused officer as soon as practicable.

(6) The accused officer shall state in the Complaint Form--

(a) whether he or she admits or denies the allegation,

(b) any comments he or she may wish to make on the allegation, and

(c) the names of any persons (from whom the Governor may request a written statement of evidence) whom he or she would wish to call as witnesses at any oral hearing of the allegation.

(7) A Complaint Form shall be submitted to the Governor immediately on completion of the relevant section of it by the accused officer and in any event not later than 48 hours after its receipt by the accused officer. The time limit referred to in this paragraph may be extended by the Governor if he or she is satisfied that the accused officer cannot, for good reason, comply with it or needs additional time to take advice.

(8) If a Complaint Form is not returned to the Governor within the time as specified in paragraph 7 or that time as extended under that paragraph, the Governor may deal with the allegation under Rule 9.

(9) Upon the submission of a Complaint Form to the Governor in accordance with paragraph (7) the Governor, having considered the matter, including any comments of the accused officer, if he or she is satisfied that the breach of discipline alleged is a serious one, shall arrange for the holding of an oral hearing of the allegation.

(10) Notwithstanding paragraph (9), if the accused officer concerned--

(a) admits the alleged breach of discipline, or

(b) denies the alleged breach of discipline and admits another such breach and the Governor substitutes in the Complaint Form the admitted breach for the alleged breach,

the Governor may dispense with an oral hearing of the allegation and deal with the admitted breach under Rule 9(2).

(11) Where the Governor dispenses with an oral hearing under paragraph (10), the accused officer concerned, or another officer acting on his or her behalf, if so requested by the accused officer, may make representations orally or in writing or both to the Governor.

8. (1) An oral hearing shall be conducted by the Governor.

(2) The accused officer shall be present throughout an oral hearing and may put forward his or her answer to the allegation and call any relevant witness.

(3) The accused officer shall be allowed to have an officer of his or her choice to act on his or her behalf or assist him or her in the presentation of his or her case at an oral hearing.

(4) The accused officer or, on his or her behalf, the officer assisting him or her, if so requested by the accused officer, may present any relevant evidence, put questions to witnesses and address the Governor at an oral hearing.

(5) The officer making the allegation may be present throughout an oral hearing and may present any relevant evidence, put questions to witnesses and address the Governor at the hearing.

(6) At an oral hearing any question directed to a witness may be disallowed by the Governor.

(7) At an oral hearing the Governor may put questions to any person present.

(8) The Governor shall make or cause to be made a record of the proceedings at an oral hearing, including any rulings of the Governor in the course of the hearing.

9. (1) At an oral hearing the Governor --

(a) shall if he or she is satisfied that the commission by the accused officer of any breach of discipline alleged has not been proved or admitted, dismiss the allegation, or

(b) may, if he or she is satisfied that the commission by the accused officer of a breach of discipline alleged has been admitted or proved--

(i) in case the breach is of a minor nature, deal with it under Rule 5, and

(ii) in case the breach is not of a minor nature, deal with it under paragraph (2).

(2) Where the Governor decides to deal with a breach of discipline under this paragraph he or she may --

(a) award a reprimand, or

(b) award a reprimand and recommend to the Minister that the officer concerned be reduced in rank, where appropriate, or suffer a reduction in pay by way of deferment of one or more than one increment for one month, three months, six months or twelve months or such longer period as he or she may specify, or

(c) award a reprimand and recommend to the Minister that the officer be dismissed from the Prison Service and shall notify the officer accordingly

(3) The Governor shall notify the Minister of the award of a reprimand and of any recommendation under paragraph (2).

10. (1) On receipt of a notification from the Governor under Rule 9(3) the Minister, having considered the record of the oral hearing concerned or, if there has not been an oral hearing, the matters on which the Governor based his or her decision, shall --

(a) in case he or she is not satisfied of the guilt of the accused officer, reverse the finding of guilt and notify the Governor and the accused officer accordingly.

(b) in any other case, notify the accused officer that he or she intends to confirm the finding of guilt and confirm, vary or quash any penalty and confirm or quash any reprimand and notify the officer of his or her right to appeal under paragraph (2), and

(c) unless an appeal is brought under paragraph (2), cause any reprimand to be implemented and implement any penalty confirmed or varied under subparagraph (b) or, where appropriate, recommend to the Government the implementation of any such penalty.

(2) (a) Within 14 days of the receipt of a notification under paragraph (1)(b), the accused officer may appeal to the Minister against one or more of the following, that is to say:

(i) the reprimand,

(ii) the penalty,

(iii) the severity of the penalty,

(iv) the Governor's finding of guilt in relation to charge of a breach or breaches of discipline.

(b) The accused officer shall, if he or she decides to appeal, give to the Minister, within the time aforesaid, notice in writing of the appeal and shall include in the notice detailed particulars of the grounds of the appeal.

(3) Where an appeal is brought under clause (i), (ii) or (iii) of paragraph (2)(a) but not under clause (iv) of that paragraph, the Minister, having considered any grounds of the appeal, notice of which was duly given to him or her pursuant to paragraph (2)(b), shall confirm or quash the reprimand or penalty concerned or vary the penalty concerned and he or she shall notify the accused officer of his or her decision and no further appeal shall lie in relation to the manner.

(4) The Minister shall implement any penalty confirmed or varied by him or her (or, if appropriate, recommend to the Government the implementation of any such penalty) and cause any reprimand so confirmed to be implemented, and the Governor shall record any such penalty or reprimand in the accused officer's record of service.

(5) Where an appeal is brought under clause (iv) of paragraph (2)(a)--

(a) if having considered any grounds of the appeal, notice of which was duly given to him or her pursuant to paragraph (2)(b), the Minister is satisfied that the matter should be reviewed, he or she shall establish a committee consisting of 3 persons (referred to in these Rules as a "Disciplinary Review Committee") and he or she shall refer the appeal concerned to that Committee, or

(b) if having considered any such grounds of appeal as aforesaid, the Minister is not satisfied that the matter should be reviewed, he or she shall so inform the accused officer concerned and any appeal under clause (i), (ii) or (iii) of paragraph (2)(a) shall be dealt with under paragraph (3).

(6) (a) The Disciplinary Review Committee, having considered the matters on which the Governor based his or her decision in relation to the breach of discipline concerned or, in the case of an oral hearing, the record of the hearing, any submission made to the Minister and any submission made or evidence offered to it (being evidence not presented at the oral hearing), shall advise the Minister--

(i) that the finding of guilt concerned be reversed and any reprimand or penalty quashed, or

(ii) that the finding of guilt be affirmed, any reprimand be confirmed or quashed and any penalty be confirmed, varied or quashed,

and the Minister shall accept the advice of the Committee, notify the Governor and accused officer accordingly and implement any penalty confirmed or varied by the Committee (or, if appropriate, recommend to the Government the implementation of any such penalty) and cause any reprimand so confirmed to be implemented and the Governor shall record any such penalty or reprimand in the accused officer's record of service.

(b) (i) The Disciplinary Review Committee shall afford the accused officer concerned, the officer referred to in subparagraph (iii) and the officer making the allegation concerned an opportunity to make oral submissions, to present any relevant evidence not presented at the oral hearing by the Governor and to put questions to witnesses.

(ii) The accused officer shall and the officer making the accusation may be present throughout any oral hearing held by the Disciplinary Review Committee for the purposes of subparagraph (i).

(iii) The accused officer shall be allowed to have an officer of his or her choice to act on his or her behalf or to assist him or her in the presentation of his or her case to the Disciplinary Review Committee, including such presentation to an oral hearing by the Committee.

(c) The members of a Disciplinary Review Committee shall be appointed by the Minister and shall consist of

(i) an officer of the Minister

(ii) a Governor of the Prison Service (other than the Governor who dealt with the allegation concerned), and

(iii) a person selected by the Minister from a panel of not less than 3 persons appointed by the Minister after consultation with the trade union or staff association officially recognised under the Conciliation and Arbitration Scheme for the Civil Service as representing officers of the same rank as the accused officer.

11. A decision to dismiss an officer from the Prison Service shall be made--

(a) in case the officer is on probation, by the Minister, and

(b) in case the officer has successfully completed his or her period of probation and has been finally appointed, by the Government.

The procedures for such dismissal shall be those which apply to civil servants generally.

12. Where--

(a) an officer is convicted of an offence by a court and either an appeal against the conviction is not brought (or, if brought, is withdrawn) or the conviction is affirmed on appeal, or

(b) the District Court, without proceeding to a conviction, finds the commission of an offence the subject of a charge before it, to have been proved,

the Minister, a Governor or a Disciplinary Review Committee may treat the conviction or finding as sufficient evidence of the commission of the offence.

13. An oral hearing under these Rules shall be in private and may be adjourned from time to time.

14. (1) Subject to these Rules, procedure at an oral hearing by the Governor shall be determined by the Governor and procedure at an oral hearing by a Disciplinary Review Committee shall be determined by the Committee.

(2) Failure by the accused officer concerned or any other officer to comply with an order of the Governor to attend an oral hearing by the Governor under these Rules or an order of a Disciplinary Review Committee to attend an oral hearing by the Committee under these Rules may, if the Governor or the Committee, as the case may be, so determines, be regarded as the breach of discipline specified in paragraph 3 of the First Schedule.

(3) Failure by an officer other than the accused officer to comply with an order of the Governor to give evidence to the Governor whether at an oral hearing under these Rules or otherwise, or on the order of a Disciplinary Review Committee to give evidence to the Committee whether at an oral hearing under these Rules or otherwise, may if the Governor or the Committee, as the case may be, so determines, be regarded as the breach of discipline specified in paragraph 3 of the First Schedule.

(4) The giving by an officer, to the Governor for the purpose of the investigation of an allegation under Rule 7 or an oral hearing under Rule 8 or to a Disciplinary Review Committee whether at an oral hearing under these Rules or otherwise, of evidence that the officer knows to be false, misleading or inaccurate may, if the Governor or the Committee, as the case may be, so determines be regarded as a breach of discipline specified in paragraph 5 of the Schedule.

15. For the avoidance of doubt it is hereby declared that nothing in these Rules shall be interpreted as affecting the power of the Minister or Governor to suspend from duty an officer or of the Minister to recommend the dismissal of an officer, or, if he or she is a probationer, to dismiss him or her or the power of the Minister or a Governor to assign or deploy officers in accordance with the exigencies of the Prison Service.

FIRST SCHEDULE

ACTS OR OMISSIONS BY AN OFFICER CONSTITUTING BREACHES OF DISCIPLINE

1. Discreditable conduct, that is to say--

(a) while on or off duty, acting in a disorderly manner or in a manner prejudicial to discipline or likely to bring discredit on the Prison Service.

(b) while on or off duty, borrowing money from an officer junior in rank, or lending money to a superior officer, or acting as a guarantor or as surety for any officer of the Prison Service in respect of any monetary loan or other transaction,

(c) while on duty, smoking in an area where smoking is prohibited,

(d) consuming intoxicating liquor in a part of a prison where such consumption is prohibited or in breach of any conditions prescribed by the Governor in relation to such consumption,

(e) while on duty, using obscene, abusive or insulting words to, or indulging in obscene, abusive or insulting behaviour in the presence of, a member of the public,

(f) while on duty assaulting any other member of the Prison Service or any other person, or

(g) while on duty, or about to go on duty, being unfit for duty through the consumption of intoxicating liquor or the use of drugs or both.

2. Insubordinate conduct, that is to say, being insubordinate by word or act towards a Governor or any officer whose orders it is, for the time being, his or her duty to obey.

3. Disobedience to orders, that is to say, without good and sufficient cause failing to carry out any lawful order, whether in writing or not.

4. Breach of duty, that is to say--

(a) wilfully contributing to the escape, or attempted escape, from lawful custody of a prisoner, or

(b) neglecting or, without good and sufficient cause, failing promptly and diligently to do anything which it is his or her duty as an officer to do,

or

(c) by carelessness or neglect contributing to the escape, or attempted escape, from lawful custody of a prisoner, or

(d) by carelessness or neglect in the course of his or her duties contributing to any loss, injury or damage to any person or property.

5. False statement, that is to say, in connection with his or her duties as an officer or as an official or member of any club or fund connected with the prison or officers, knowingly making or procuring the making of a false, misleading or inaccurate statement, either orally or in any official document or book, or signing any such written statement or, with intent to deceive, destroying or mutilating any such document or book or altering, erasing or adding to any entry therein.

6. Failure to account, that is to say, failing to account, or to account accurately and correctly, for any money or property for which he or she is responsible as an officer or on behalf of any club or fund connected with the prison or officers.

7. Breach of confidence, that is to say, without proper authority, directly or indirectly disclosing, divulging, communicating, publishing or causing to be disclosed, divulged, communicated or published any information not lawfully available to members of the public which comes to his or her knowledge from official sources or derives from his or her duties.

8. Improper relations with prisoners or former prisoners, that is to say--

(a) communicating with a prisoner for an improper purpose, or

(b) using obscene, abusive or insulting words to, or indulging in obscene, abusive or insulting behaviour towards, a prisoner, or

(c) communicating with any former prisoner or with a friend or relative of any prisoner or former prisoner for an improper purpose, or

(d) discussing his or her duties as a prison officer or any matters of discipline or prison arrangement within the hearing of a prisoner, or

(e) taking a former prisoner into his or her employment.

9. Trafficking, that is to say, knowingly and without the authorisation of the Governor bringing into or out of a prison, or attempting to bring into or out of, or carrying within, a prison, or allowing to be brought into or out of a prison, to or for a prisoner any article or placing any article in any place outside or inside a prison with intent that it should come into the possession of a prisoner.

10. Corrupt practice, that is to say--

(a) knowingly and improperly carrying out any pecuniary or business transaction with or on behalf of any prisoner or former prisoner or with or on behalf of a friend or relative of any prisoner or former prisoner,

or

(b) knowingly soliciting or receiving any unauthorised fee, gratuity or other consideration in connection with his or her duties as an officer, or

(c) knowingly and improperly using or attempting to use his or her position as an officer for his or her private advantage.

11. Unlawful or unnecessary exercise of authority, that is to say--

(a) deliberately and unnecessarily acting in a manner calculated or likely to provoke a prisoner, or

(b) using force unnecessarily in dealing with a prisoner or, where the application of force to a prisoner is necessary, using undue force.

12. Absence without leave, that is to say, being, without reasonable excuse, absent without leave from the place where his or her duties require him or her to be.

13. Lateness for duty, that is to say, without reasonable excuse, being late in reporting for duty or a parade.

14. Loss or misuse of or damage to Prison Service or State property, that is to say

(a) losing or misusing or wilfully or negligently destroying, or damaging Prison Service or State property, or

(b) losing or misusing or wilfully or negligently destroying or damaging any article with which he or she has been provided or entrusted in connection with his or her duties as an officer or failing to take proper care thereof, or

(c) neglecting or without good and sufficient cause failing to report any loss, misuse or destruction of, or damage to, any property or article referred to in subparagraph (a) or (b).

15. Unauthorised possession of property, that is to say, being knowingly and improperly in possession of Prison Service property or of property belonging to any other member of the Prison Service or to a prisoner or a friend or relative of a prisoner.

16. Prohibited off-duty activities, that is to say--

(a) identifying actively or publicly with a political party, or

(b) behaving in relation to political matters in such a manner and in such circumstances as might interfere with the proper discharge of his or her duties as an officer, or

(c) engaging (whether for reward or otherwise) in any activity which is likely to interfere with the proper discharge of his or her duties as an officer or engagement in which by a member of the Prison Service is inappropriate.

17. Procuring or attempting to enlist outside influence, that is to say, procuring or attempting to procure the intervention of a member of the Oireachtas or other person of influence for the purpose of securing his or her own, or any other officer's, advancement in the Prison Service.

18. Failure to pay any lawful debt, that is to say, wilfully and without good and sufficient cause failing to pay any lawful debt that is of such a kind that continuing failure to pay it would be liable to affect the discharge of his or her duties as an officer or to compromise other officers.

19. Untidiness or uncleanness on duty or in uniform, that is to say, without good and sufficient cause, being improperly dressed or untidy or unclean in appearance while on duty or while not on duty but wearing uniform in public.

20. Neglect of health, that is to say, doing an act or engaging in conduct while absent from duty because of illness that is calculated or likely to delay the return to duty of the officer concerned.

21. Criminal conduct, that is to say, doing an act constituting an offence in respect of which--

(a) the officer concerned is convicted of an offence by a court and either an appeal against the conviction is not brought (or, if brought, is withdrawn) or the conviction is affirmed on appeal, or

(b) the District Court, without proceeding to a conviction finds the commission of an offence the subject of a charge before it, to have been proved.

22. Sexual harassment that is to say, engaging in behaviour of a sexual nature while on duty towards another person to which that person objects or could not reasonably be expected to consent including (without prejudice to the generality of the foregoing)--

(a) unnecessary physical contact,

(b) lewd or suggestive behaviour, whether verbal or physical,

(c) sexually derogatory statements or sexually discriminatory remarks, and

(d) displaying pornographic or sexually explicit material.

23. Accessory to a breach of discipline, that is to say, conniving at or being an accessory to a breach of discipline.

SECOND SCHEDULE

COMPLAINT FORM

PART 1

1. Paragraph number(s) in First Schedule to Prison

(Disciplinary Code for Officers) Rules, 1996, of breach of discipline alleged

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

__________________________________________________________________

2. Particulars of allegation including place, time and date of breach of discipline alleged

3. Summary of the evidence on which the allegation is based

Note: A copy of each written statement of evidence in relation to the alleged breach is enclosed.

PART 2

TO BE COMPLETED BY THE OFFICER AGAINST WHOM THE ALLEGATION IS MADE

4. I,   , the officer against whom the allegation specified in this Complaint Form is made hereby admit the allegation/deny the allegation (delete whichever does not apply).

5. Comments on the allegation

6. In the event of an oral hearing I wish to call the following witnesses in my support:--

PART 3

7. Governor's summary of results of oral hearing:

(supporting documents statements etc. should be annexed).

Governor:______________________________________________

Date:____________________________

8. Governor's decision under Rule 9 of the Prison

(Disciplinary Code for officers) Rules, 1996 together with a brief statement of the reasons for his or her decision

9. Notation of Governor's decision by the officer

I hereby acknowledge that I have been informed of the above decision

Signature of officer:___________________________________

Date:_______________________________________________

Note: In the event of an appeal under Rule 10(2) the result of the appeal should be entered below and, in appropriate cases, the officer should note the result with his or her signature and date.

GIVEN under my Official Seal,

this 25th day of September, 1996

Nora Owen

Minister for Justice.

GIVEN under the Official Seal of the Government,

this 25th day of September, 1996.

Taoiseach.