O'Dalaigh, Re Application for Judicial Review

(a) Between April 2005 and 9 February 2007 there had been 64 positive indications from the passive drugs dog and all of the prisoners who received a positive indication were placed on restricted association under Rule 32.

(c) That the governors in arriving at their decisions were ignoring the applicant's assertion that he was opposed to drugs, had no record of any drug offence and was a republican prisoner. That in Roe House, which accommodates republican prisoners, there had been no drugs found by the prison authorities which was in contract to Bush House which accommodates the loyalist prisoners.

The applicant contends that Rule 32 only allows restriction of association with others and that it does not permit the removal of privileges such as access to a radio or television or use of the gym and library. The applicant further contends that the only way in which privileges can be lost are under Rule 10 of the Prison and Young Offenders Centre Rules (Northern Ireland) 1995. That as no determination was made under Rule 10 that the removal of privileges in this case was unlawful.

Weatherup J was not considering whether there was an incidental power under Rule 32 to remove privileges. Kerr J in an Application by James Taggart for Judicial Review :

I reject the contention that the only manner in which privileges can be lost is as a result of a determination under Rule 10. There is an ancillary power in respect of privileges incidental to Rule 32. It is clear that under Rule 32 removal of privileges cannot be for the purposes of punishment and it has to be necessary for effectively addressing the underlying purpose justifying the removal of association.