Prisoner wins challenge over mobile phone found in cell shower

A prisoner who was found guilty of breaching prison discipline by having a mobile phone in his cell has won a High Court challenge to the finding.

Darren Delacey (39), Cremona Road, Ballyfermot, Dublin, was entitled to an order quashing the decision of the assistant governor of Wheatfield Prison in Dublin finding the prisoner guilty of having the phone in his cell, Mr Justice Anthony Barr ruled.

The judge said Mr Delacey should have been given an opportunity to examine the phone’s history so he could defend himself against a breach of prison rules.

Mr Delacey pleaded guilty in 2018 to possession of heroin and cocaine with a street value of €108,000, after he was stopped in a car on the M7 motorway near Dublin on May 22nd, 2017. He was sentenced to four years imprisonment but, on appeal by the DPP over leniency, this was increased to six years. He is due for release in 2024.

Mr Delacey, who was a drug addict, maintained he was to receive €500 for a drop-off of the coke and heroin and that he needed the money to discharge a drug debt.

In August 2020, his single cell in Wheatfield underwent a random search and a mobile phone was found concealed behind tape in the shower cubicle of the cell.

A plastic bag had been taped over the shower cubicle wall with opaque sticky tape as a sort of make-shift shower curtain. The phone was found rolled in tape, affixed into the corner of the plastic bag, where it had been taped to the wall of the cubicle.

The assistant governor, Lorraine McCarthy, accepted the plastic bag had been there before he moved into the cell. Ms McCarthy described it as carefully concealed and “not easy to find”.

She did not, however, believe his assertion that the phone had not belonged to him or he did not have any knowledge of it being there.

Mr Justice Barr said that for that reason Ms McCarthy decided it was not necessary for the phone to be examined as it would merely confirm her belief that it was not his property.

Ms McCarthy had also said it was not unusual for a prisoner to hold contraband for another prisoner, for various reasons, such as friendship, coercion or reward.

She believed the phone to be owned by another prisoner, but was in Delacey’s cell with his knowledge. As a result of her finding, he lost certain visiting rights and it became part of his prison record.

In his High Court challenge, Mr Delacey argued he could have used the phone’s call history and contact list to defend himself but it was not supplied.

Mr Justice Barr was satisfied the assistant governor applied a test of strict liability which was not the correct test to apply when considering whether he was in possession of the phone and was therefore in breach of the prison rules

He accepted an argument made on Mr Delacey’s behalf that, while the primary purpose of that information would have been to show the likely ownership of the phone, that was not the only evidence that the call history and the contact list would have provided.

The judge set aside the finding that he was guilty of a breach of prison rules.