Michael Clifford: Unlocking the key to Ethel Gavin's jail move

Michael Clifford: Unlocking the key to Ethel Gavin's jail move
Ethel Gavin was transferred from her role as ‘acting campus governor’ to governor of the Midlands Prison. She has submitted a grievance over how she was treated and the matter is being investigated.

Was Ethel Gavin’s transfer actually an attempt to cover up a dangerous mistake in the prison service? asks Michael Clifford

On the morning of May 4, 2018, 15 prison officers left their posts in A Block in Portlaoise Prison.

The A Block houses some of the most dangerous criminals in the State, including those convicted in relation to the Kinahan-Hutch feud and others serving sentences for gangland crime.

A prison officer had been assaulted on the block the previous day. The walk-out was a reaction to that incident, and it was unprecedented.

As with the gardaí and other emergency service workers, there is an industrial relations process to deal with issues in the Prison Service. Spontaneously walking off the job is beyond the pale in industrial relations terms.

The walkout forced Portlaoise’s governor Ethel Gavin to take emergency action. She managed to persuade other officers to provide some form of cover in A Block to prevent a dangerous situation developing. Ordinarily, covering for striking workers is not something that colleagues would agree to, but this was an emergency.

Some of the officers returned to their posts later that day, others went on sick leave for a period. An inquiry into the action was conducted.

Initially, the officers were informed they were to be transferred to Dublin prisons as a disciplinary action. Then something strange occurred.

After review, the transfers were suspended for 12 months, conditional on good behaviour. They had to sign a declaration accepting that what they did “was without reasonable excuse” and that this course of action “placed the welfare of colleagues and the security of the prison at significant risk”.

This outcome for a disciplinary matter was not in accordance with the code of discipline within the prison service. The sanction received was, by any standards, extremely light considering what had occurred. However, there was a graver sanction for the governor and two of her assistants.

Ms Gavin was transferred from her role as “acting campus governor” to governor of the Midlands Prison. The campus role included managing both Portlaoise and the Midlands. Her transfer was, in effect, a demotion, but she was not subjected to any disciplinary process. Her two assistants were also transferred, but that was subsequently rescinded.

So after an unprecedented walkout by prison officers, the only person effectively sanctioned was the prison governor, who had, according to a number of sources, handled the emergency with a high degree of professionalism.

Ms Gavin has submitted a grievance over how she was treated. However, in recent months it has come to light that there may have been much more to this case than initially thought.

An investigation is currently under way to examine whether Ms Gavin’s transfer actually had nothing to do with the walkout and whether she was the victim of an attempt to cover up a dangerous development within the service.

ADMINISTRATIVE ERROR

A prison guard at Midlands Prison. Hundreds of prisoners at both Midlands and Portlaoise prisons could have successfully challenged their detention. Picture: Dan Linehan
A prison guard at Midlands Prison. Hundreds of prisoners at both Midlands and Portlaoise prisons could have successfully challenged their detention. Picture: Dan Linehan

In early December 2016, Martin Mullen retired as campus governor for the Midlands and Portlaoise prisons. The role of campus governor was introduced in 2012. It followed a recommendation to the minister for justice to create campus structures for the Prison Service, to increase efficiency.

Three campuses were created; Portlaoise, as outlined above, West Dublin incorporating Cloverhill and Wheatfield, and the Dublin campus of Mountjoy, the training unit, St Patrick’s, and the Dochas centre.

All three campus governors had also been appointed as governors of the individual prisons in the campuses. This was important as a prison governor has a statutory function. Prisoners are placed in the custody of prison governors. Not the State, not any campus, but the governor of a specific prison.

Surprisingly, no replacement for Martin Mullen was appointed prior to his departure. Following a competition, Mullen’s number two, Ethel Gavin, was appointed acting campus governor in late December 2016.

However, it was to later emerge that there was an error in her appointment. The letter or appointment she received was to the role of “campus governor”. It did not specifically state that her role was as governor of Portlaoise and Midlands prisons.

While this might appear little more than an administrative issue, it was in fact much more serious, as would become evident within a year.

The result of the administrative error was that neither Portlaoise nor the Midlands prisons had a governor with statutory powers for a period of 18 months until a formal appointment in June 2018.

Later, in response to a series of parliamentary questions, the Minister for Justice Charlie Flanagan would provide information in relation to this that was factually inaccurate.

On a legal basis, it would have been open to any prisoner committed to Portlaoise or the Midlands during that period to challenge their detention. They would have had an excellent case.

If any were successful, in all likelihood, a way would have been found to quickly re-arrest them and commit them to prison under law. However, the prospect of a large number of prisoners being in a position to challenge their detention because of an administrative error would have created major political and security controversy.

Ms Gavin was unaware of any of this. She continued in her role as campus governor. In early 2018, she was front and centre of a major Virgin Media TV behind-the-scenes documentary in the Midlands.

Meanwhile, in the courts, events were unfolding that would have major repercussions for both Ms Gavin and the Irish Prison Service.

In 2017, a man who was serving a 20-month sentence for robbery and assault offences challenged his detention in Wheatfield Prison. Shane Walsh brought the action under article 40 of the Constitution. The thrust of his action was that the process by which he was detained was flawed.

On September 29, 2017, the High Court denied his application. The judgment did, however, raise issues about the legal basis for detaining prisoners. Judge Richard Humphreys noted that a prisoner is detained in a particular prison rather than a campus.

This implied that there must be a specific appointment as prison governor as opposed to campus governor. In the case before the court, no problem arose in this respect because the campus governor in West Dublin had been appointed governor of the constituent prisons. As outlined above, this was not the case with Ethel Gavin.

If a similar challenge had been brought in the Midlands or Portlaoise prison, hundreds of prisoners may have successfully challenged their detention.

The judgment was considered serious in the legal section of the Prison Service. An internal communication from the legal section to management in January 2018 laid out the concerns.

It noted that the judgment in the Walsh case “makes clear a prisoner is detained in a particular prison or place of detention rather than a particular campus.”

It went on to note that there was no legal basis for a prison campus, so the court had to address the unusual question of “who is the governor of Wheatfield place of detention?”.

In the Walsh case, there had been a specific appointment as governor. But, the email from the legal section noted: “This is an issue that is likely to arise again in an Article 40 context and in other cases where the authority of the governor to carry out a certain function(s) is in issue.”

The advice effectively warned senior management in IPS that all appointments to the office of prison governor should be watertight. Yet it appears that alarm bells did not ring in Longford.

If the error in Ms Gavin’s appointment was not known before then, it should have been glaringly obvious after the legal warning.

One way or the other, Ms Gavin was not informed. An obvious solution would have been to approach her, explain the error and present her with a new letter of appointment. That would have sorted the matter going into the future. She was not approached.

Five months after the legal warning to senior management, the walk-out in Portlaoise prison occurred. Ms Gavin was effectively demoted to governor of the Midlands prison, for which she received a formal letter of appointment. Another manager, John Farrell, was appointed governor of Portlaoise.

The changes closed off the gap that has opened up in December 2016 when Ms Gavin was appointed campus governor.

The Irish Examiner understands that Ms Gavin was entirely unaware of the background relating to the legal frailties of her position prior to her transfer. She has since submitted a grievance over how she was treated.

When contacted by the Irish Examiner , she said that she had no comment to make on these issues.

In June 2018, Independent TD Clare Daly asked a number of parliamentary questions concerning who exactly had been the governor of Portlaoise Prison during the period outlined above (See panel). The replies were initially evasive and finally included the following factually inaccurate information: “From December 13, 2016 to December 30, 2016, statutory responsibility rested with the lead operational governor Daniel Robbins. Ethel Gavin was appointed acting campus governor from December 31, 2016 and held statutory responsibility for Portlaoise Prison until June 2, 2018.”

In fact, neither Ms Gavin nor Mr Robbins had statutory responsibility for Portlaoise during the periods quoted. When contacted about the matter, Mr Robbins said that he didn’t want to make any comment at this point.

By June 2018, he had retired and the Irish Examiner understands that he was unaware that he was being represented as a statutory office holder in the parliamentary question.

A spokesperson for the Irish Prison Service said they do not comment on any internal matters within the service.

The Department of Justice has now appointed an external agency to investigate whether Ms Gavin was effectively demoted as an attempt to cover up what had been a grave error, which endured long after it should have been corrected.

It is unclear whether what appears to be the inaccurate supply of information to the Dáil will form part of the inquiry.

Factual inaccuracies most likely designed to mislead

Clare Daly TD: Questions about Portlaoise prison.
Clare Daly TD: Questions about Portlaoise prison.

In June and July 2018, Independent TD Clare Daly asked the Minister for Justice Charlie Flanagan three parliamentary questions about the statutory position of governor of Portlaoise.

On June 12, she asked the minister “the name of the governor of Portlaoise prison, when they were appointed and the name of the previous governor of Portlaoise Prison and the date of their appointment.”

The minister replied: “The current operational governor of Portlaoise Prison John Farrell was assigned with effect from Saturday 2 June 2018.

“The previous operational governor of Portlaoise Prison Daniel Robbins was assigned on 6 October 2014 and retired on 4 May 2018. From 5 May 2018 to 1 June 2018 Ethel Gavin Acting Campus Governor was the operational governor of Portlaoise Prison.”

Ms Daly had not asked about “operational governor”, but who was “the governor”.

John Farrell was appointed governor on a statutory basis on 4 June, not operational governor. As of that date, the prison had a governor with statutory powers.

But if the parliamentary answer had described him as “governor” further questions would have arisen about the remainder of the answer.

Daniel Robbins was never appointed governor of Portlaoise. The Irish Examiner understands he was asked to perform the operational position by Martin Mullen, who retained the statutory role of governor of the prison. As such, the parliamentary answer was designed to mislead.

Later, a further parliamentary answer would state that Mr Robbins was in his role for three weeks, not the four years stated above.

In reality, he fulfilled the function for around two years. The Irish Examiner understands he was not aware that he had been represented in this manner in the Dáil.

Ethel Gavin was never appointed governor of Portlaoise prison. She had been acting campus governor. Again, this was disguised in the answer by describing her as “operational governor”.

There is no suggestion that Minister Flanagan was aware of any of this. Ministers routinely answer questions based on information supplied by their department.

Two weeks later, Deputy Daly attempted again to find out who had statutory powers as governor of Portlaoise.

The minister replied with a clarification, stating “any confusion caused by the initial misinterpretation of the deputy’s question is regretted.

“Statutory responsibility for Porlaoise prison was held by campus governor Martin Mullen from 29 July 2012 to 12 December 2016. From 13 December 2016 to 30 December 2016 statutory responsibility rested with the lead operational governor Daniel Robbins.

“Ethel Gavin was appointed acting campus governor from 31 December 2016 and held statutory responsibility for Portlaoise Prison until 2 June 2018 when it transferred to governor John Farrell who continues to hold this position.”

The answer was correct with regards to Martin Mullen and John Farrell. But Daniel Robbins and Ethel Gavin were never appointed as governor with statutory responsibility for Portlaoise.

The parliamentary answer was factually incorrect, and most likely designed to mislead. No blame whatsoever attaches to either Mr Robbins or Ms Gavin in this respect as they had nothing to do with providing the parliamentary answer.

Another two weeks later Deputy Daly asked the minister “if he will provide a copy of the respective formal notices of appointment by him of the four named governors in his reply to the statutory position of governor”.

The minister replied that “all governors are assigned by the director with responsibility for human resources of the Irish Prison Service in consultation with the director general. Both operate on behalf of the minister for justice and equality. It has never been the practice of ministers to publish notifications to named individuals of their appointments.”

In reality, two of the four notifications didn’t exist. Daniel Robbins was never officially notified and Ethel Gavin’s notification contained a crucial error.

In his reply, the minister again repeated the factually inaccurate information about who had statutory responsibility for the prison.

If the specific information requested had been supplied, it would have opened up a major controversy, showing that two of the biggest prisons in the State had been, for an extended period, without a governor who holds the power to detain prisoners.

Questions to the Irish Prison Service about the factual inaccuracies in the parliamentary answers received a response pointing to a later PQ which “addressed the suggestion of an inaccuracy.”

In fact, the PQ referenced dealt with a side issue and did not in any way address the factual inaccuracies in the replies to parliamentary questions.

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