The case of Gerard Butler, who helped contain an incident that was never recorded, is the second in weeks on whistleblower treatment in the Prison Service, writes Michael Clifford
THE incident was violent and required at least four prison officers to restrain the prisoner.
He began to kick up a racket in the servery area in Cloverhill Prison at around 12.30pm, as dinner was being served on April 6, 2013.
Four officers moved in to have him removed. They were accompanying him back to one of the wings when he broke free and began attacking officers and fellow prisoners.
There followed a struggle until the officers managed to get him under control again and lifted him up to remove him. Gerard Butler had control of the prisoner’s legs.
The prisoner was brought to a safety observation cell on D2 landing in the prison. These cells are reserved for particularly difficult prisoners. Once installed, their clothes are removed for safety reasons and the prisoner allowed to wear a poncho-style garment.
A Hoffman knife, which is kept on the wing, was fetched by one of the officers and the prisoner’s clothes removed. After that, the officers retreated and left the cell.
That was the extent of the violent incident at the prison on April 6, 2013. It was not exceptional for a prison, but noteworthy.
Legally, the prison authorities are obliged to record the incident on an official form. There is also an obligation to serve the prisoner with a form at a later stage, outlining what had occurred and detailing whether there will be a punishment.
No such procedure was followed in this case. It was as if nothing had happened. Why the procedures were not followed is unknown, but what is known is that, once the incident took on a significance, there was a concerted attempt to deny it had occurred at all.
Three days later, Gerard Butler’s back “was in bits”. He could barely stand up. He was allowed go home from work early, and that was the last time he would be in work for over two years.
For the first six months he was laid up.
“I was immobile, just couldn’t move,” he said.
There were attempts to address the back pain. Nearly a year on, it was decided to try spinal fusion surgery. This eventually brought results.
By then, however, Butler’s life and career had been transformed. From the outset the prison denied that his injury was work related. He applied to have his injury declared an occupational injury or disease (OID).
Throughout April and May 2013, he wrote to the prison governor and got no response. Pretty soon it became obvious to him that, for whatever reason, there was a total denial that any incident had occurred.
He wrote to the Irish Prison Service HQ in Longford with his grievance. He found the reply astonishing.
“I have contacted the prison and they have enquired extensively into the matter,” the official wrote. “They have no record of any incident of the nature described having taken place on the date in question.”
In a later response to Butler in January 2015, the official noted “that an exhaustive and extensive enquiry was undertaken by the HR governor in Cloverhill and that it cannot be ascertained that you were involved in an incident on that date, therefore an injury on duty OID application cannot be proceeded with in the circumstances”.
A note recorded by a chief officer at the prison, dated October 23, 2015, reiterated the position that there is “no record of any incident on this date nor has any CCTV been saved”.
Apart from the obligation to record the incident, and the issuing of a form to the prisoner — known as a P19 form — there should have been other evidence that the incident occurred.
A record of the prisoner’s detention on the D2 wing should have been available in a “movements log”. When an incident occurs, there is an obligation to retain all CCTV footage that might be relevant. The footage is then sent to the IPS head office in Longford. None of this was done, ergo, according to the Prison Service, there was no incident.
For Butler, the denial that he had been involved in such an incident added hugely to the stress of his physical injury. Crucially, he also suffered a major loss of income.
For the first six months of his absence, he was paid his basic salary, minus allowances. This was followed by a second six months on half pay. Thereafter, he was in receipt of no money from his employer.
He attempted to return to work in April 2015, but was not ultimately allowed to return for another six months. By the time he finally got back to work in October 2015, he had had no earnings for 18 months, and had not been eligible for social welfare benefit.
On his return to work, he claims, he suffered continuing bullying and harassment. According to a report seen by the Irish Examiner, the Prison Service investigated these claims and found “there is no evidence to support them”.
In January 2016, he decided to make a protected disclosure about what had occurred. This he did through the constituency office of Frances Fitzgerald, the Minister for Justice. The disclosure was investigated by the internal audit section of the Department of Justice. The investigation included interviews with a number of prison officers and the examination of partial CCTV footage which was accessible.
“The findings uphold the protested disclosure that an incident occurred on the date in question in which force was used [control and restraint] and which was not reported in line with a legal obligation,” according to the internal audit report.
The report did not, however, agree that Butler “was physically involved in the control and restraint of a prisoner on the date in question”. The decision was reached on June 8, 2016. Butler urged one colleague whom he knew was aware of exactly what had gone on to come forward. This officer did so and told the audit unit.
“I was present and involved in the incident which Officer Butler where he restrained a prisoner in the circle. Officer Butler took control of the prisoner’s legs on the ground while other staff placed C&R [control and restraint] locks on him,” said the officer.
Another officer who was present at the incident named three others who were involved, but stated, “he can’t say he noticed Officer Butler but there were a lot of people present”.
The revised report no longer stated that Butler was not present at the incident, but did say that “there is insufficient evidence to conclude that Officer Butler’s back injury is a result of the unreported incident that occurred”.
Butler claims that, since he returned to work in 2015, he was subjected to bullying because he had blown the whistle on the unreported incident. He was out of work for nearly nine months since late in 2015 on certified medical grounds, associated with stress.
During this period there were attempts to have him complete an academic course which he had been engaged in prior to the incident in 2013.
The Higher Certificate in Custodial Care (HCCC) is mandatory for recruits to the Prison Service. Responding to demands in September 2016 that he complete the course, Butler replied: “The reasons for me not being able to complete the HCCC are as follows:
“A: I have been out sick with stress issues since December.
“B: These issues have been caused by my shambolic treatment by management at Cloverhill Prison and certain staff at IPS Longford.
“As a result of this treatment, I have not been in any kind of headspace to sit down and study, etc.
“I would also like to clarify that these issues have been going on for a period of three years. I wish to state that I would be more than happy to complete this course at a later stage as you mentioned.”
In a report into the issue, the IPS stated that “the personnel officer HR IPS confirmed that these allegations have been investigated and that there are no evidence to support them”.
This was despite the ruling by the audit committee that the violent incident in April 2013, the fall-out from which Butler says is at the root of all his troubles, was confirmed as having taken place.
Last week, Gerard Butler was informed that his file has been forwarded to the Department of Justice with a recommendation that he be dismissed.
The Protected Disclosures Act 2014 protects workers against dismissal for having made a disclosure. Nominally, this case involves a threat of dismissal unconnected to Butler’s protected disclosure, but he is adamant that the issues are inextricably linked.
He wrote to the Minister for Justice about the threat to dismiss him and what he claims to be an ongoing campaign of bullying against him.
Last week, he received a response from the Justice Minister’s private secretary saying that his complaints about the HCCC issue “and alleged bullying are currently being given active consideration by the Irish Prison Service”.
A spokesman for the Irish Prison Service said it is constrained on what it can say because of confidentiality around protected disclosures. The spokesman also confirmed nobody has been dismissed from the Prison Service in the last five years for a failure to complete the HCCC course.
Gerard Butler’s case is the second to come to light in recent weeks involving the treatment of a whistleblower within the Irish Prison Service.
Earlier this month, it was reported on RTÉ that a retired judge, William Early, found that the prison officer had been “penalised” and “isolated” within the Prison Service after he made a protected disclosure about the use of resources in one of the State’s prisons.
One of the more serious incidents of isolation concerned a serious assault within the prison in 2015 which the whistleblower witnessed, but was never interviewed about.
The review found that “the incident of March 2015 suggests a serious criminal offence was committed… It is quite extraordinary that a primary witness to a serious assault was not interviewed.”
The review overturned a decision by the Department of Justice’s internal audit unit that the allegations had no basis. Judge Early found that the internal audit report was “inadequate” and “not in conformity with the preponderance of the evidence”.
The review also found the whistleblower had been denied career opportunities and subjected to considerable stress due to his disclosure.
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