Civil Justice II

Cases

Geoghegan v Institute of Chartered Accountants in Ireland

[1995] 3 IR 86

Murphy J.
9th July 1993

The applicant herein, Neal Geoghegan, claims that he has been a member of the Institute of Chartered Accountants in Ireland (“the Institute”) since 1957. For the first ten years of his membership he was what is described as an associate member and since 1968 he has been a Fellow of the Institute.
The Institute was incorporated by Royal Charter on the 14th May, 1888. The profession of accountancy had been practised in Ireland for many years before that date. It appears from the affidavit of Robert L. Donovan, the secretary of the Institute, that some forty accountants were practising in Dublin in the 1880s when a Mr. Robert Stokes convened a meeting of accountants practising in Belfast and Cork as well as Dublin to present the application for the petition which was ultimately granted. In addition to incorporating a body under the title “The Institute of Chartered Accountants in Ireland” with power to sue and be sued in that name, the Institute was given power to make bye-laws regulating the affairs of the Institute provided that such bye-laws should not have any effect unless and until they had been submitted and allowed by the Privy Council in Ireland. That Charter was amended by a private Act of the Oireachtas, the Institute of Chartered Accountants in Ireland (Charter Amendment) Act, 1966. Among other things that Act provided as follows:
“6. – Any bye-law made by the Institute or any alteration or amendment thereof shall not have effect until they have been submitted to and allowed by the Government.
7. – Save as hereby amended the Charter shall be and remain in full force and effect.”
On the 18th April, 1989, the Institute passed certain resolutions altering and amending bye-laws and the bye-laws so altered and amended were duly allowed by the Government by an instrument under seal dated the 12th September, 1989.
The bye-laws so allowed contained detailed provisions in relation to disciplinary matters. It was provided that if a member was guilty of misconduct in the carrying out of his professional duties or otherwise, he should be liable to disciplinary action. The bye-laws contain provision for the preliminary investigation of allegations of misconduct by an Investigating Committee and a decision on any complaint by a Disciplinary Committee constituted in accordance with the provisions of rule 66 of the bye-laws. Where a complaint is upheld, the Disciplinary Committee may impose penalties ranging from exclusion from membership to admonishment. The disciplinary procedures do not entail any decision by or appeal to the High Court. It should also be noted that neither the Charter nor the amending legislation grants to the members of the Institute a monopoly in the practice of the profession of accountancy although the Institute of Chartered Accountants is one of the bodies of accountants approved by the Minister for Industry and Commerce so that its members, in common with a limited number of others, may act as an auditor of a company incorporated under the Companies Acts, 1963 to 1990. Apart from the loss of that limited “monopoly”, it is obvious that suspension or expulsion from membership of the Institute would be likely to have a devastating effect on the professional practice of any of its members.
In April, 1992, the Institute informed Mr. Geoghegan that they had received what was tantamount to a complaint in relation to auditing procedures for which he was alleged to be responsible. On the 2nd September, 1992, the Institute informed the applicant that the Investigation Committee had formed the opinion that a prima facie case of professional misconduct had been established in relation to the foregoing complaint. The secretary to the Institute went on to say that the Disciplinary Committee would conduct a hearing into the matter on the 14th September, 1992.
It was against that background that the present proceedings for judicial review were instituted. On the 2nd November, 1992, the applicant obtained leave to apply by way of application for judicial review for an order by way of certiorari quashing the proceedings of the Disciplinary Committee convened for the purpose of adjudicating upon the foregoing complaint and, secondly, an order by way of prohibition restraining the continuance of the disciplinary proceedings. By a further order of the court dated the 22nd April, 1993, the applicant was given leave to seek additional relief upon the grounds stated therein.

Arising out of the statement of grounds relied upon by the applicant and the grounds of opposition by the respondent, the issues raised before the court were as follows:
“1. (a) Whether the Charter dated the 14th May, 1888, granted in pursuance of the then Royal Prerogative survived the enactment and coming into operation of the Constitution of the Irish Free State and Bunreacht na hEireann?
(b) Whether the bye-laws hereinbefore referred to were valid having regard to the fact that they were made in exercise of powers conferred by the said Royal Charter?
(c) If the Institute had ceased to exist or the powers conferred upon it were exhausted, whether it or they were revived or validated by the Act of 1966, or the governmental instrument of the 12th September, 1989?
2. Whether the disciplinary provisions contained in Chapter 9 of the bye-laws of the Institute involve the Disciplinary Committee in exercising a judicial function contrary to the provisions of Article 34, s. 1 of Bunreacht na hEireann , 1937?
3. Whether the activities of the Institute are of such a public nature as to be susceptible to the process of judicial review?”
On the issue of prerogative, reference was made to Byrne v. Ireland [1972] I.R. 241, Webb v. Ireland [1988] I.R. 353 and Howard v. The Commissioners of Public Works in Ireland [1994] 1 I.R. 101. In those three cases the Supreme Court had occasion to deal with the question of royal prerogative as it impinged or might have impinged on different legal rights. However, it seems to me that in Webb v. Ireland [1988] I.R. 353, the Chief Justice dealt with the fundamental issue, at p. 382, in a way which put the matter beyond any doubt:
“I agree with the view reached by the learned trial judge in this case that on the authority of Byrne v. Ireland [1972] I.R. 241, no royal prerogative in existence prior to the enactment of the Constitution of Saorstat Eireann , 1922, was by virtue of the provisions of that Constitution vested in the Irish Free State. I agree with the judgment of Walsh J. in Byrne v. Ireland [1972] I.R. 241 which was expressly concurred in by a majority of the Court that the provisions of Article 2 of the Constitution of 1922 declaring the Irish Free State to be a sovereign state and the provisions of Article 51 of the same Constitution expressly vesting in the King certain executive functions, being the executive functions of the Irish Free State, are inconsistent with the transference to that State of any royal prerogative. As is also set out in the decision in Byrne v. Ireland [1972] I.R. 241 it must follow from this conclusion that the royal prerogatives were not prerogatives exercisable in Saorstat Eireann immediately before the 11th December. 1936, and were therefore not captured by Article 49, s. 1 of the Constitution.”
Counsel on behalf of the Attorney General did contend that, notwithstanding the comprehensive terms in which the judgment of the Chief Justice was expressed, certain royal prerogatives did and have survived both the Constitution of 1922 and the Constitution of 1937. He instanced the patent of precedence granted by the Government to senior counsel. Indeed it was contended that all or part of the surviving royal prerogative might now be exercisable by the President of Ireland. However, it does not seem necessary for me to attempt to resolve this interesting point. The issue in the present case is not whether any part of the former royal prerogative was transferred to and vested in any organ of the State but rather whether a body which was validly incorporated in the nineteenth century in the then United Kingdom of Great Britain and Ireland in pursuance of a Charter granted in accordance with the royal prerogative withered away or ceased to have the right to exercise the powers conferred upon it by the Charter on the coming into operation of the Constitutions of 1922 or 1937. No authority was cited in support of that proposition.
It seems to me that the laws carried forward by Article 73 of the Constitution of Saorstat Eireann , 1922, and Article 50 of the Constitution of Ireland, 1937, comprise the full range of laws whether customary or statutory and however they have been made or evolved, subject only to their not being inconsistent with either Constitution. I see no reason in principle why a law enacted in Great Britain in medieval times by the Monarch himself in pursuance of the legislative powers which (as well as judicial and executive powers) vested in him not merely as a theoretical concept but as a practical reality could not have passed into the laws of the Irish Free State. The filtering process provided by Article 73 of the Constitution of Saorstat Eireann , 1922 (like the comparable provision of the Constitution of Ireland, 1937), related to the content of the law and not its source. I see no reason why the Institute and all comparable bodies, whether formed under public or private legislation or incorporated by Royal Charter as part of the royal prerogative or residual regal legislative power, should not continue to have a valid and effective existence on the formation of the independent Irish State. Certainly any other result would be chaotic in the extreme. The virtual absurdity of such a situation is illustrated in the present case where the applicant is at the same time claiming to be a member of an incorporated body while asserting that this body has no existence in law.
There is, however, an even clearer answer to the claims by the applicant in this regard. It seems to me that s. 7 of the Institute of Chartered Accountants in Ireland (Charter Amendment) Act, 1966, puts the matter beyond any debate in using the words (already quoted) as follows:
” . . . the Charter shall be and remain in full force and effect.”
The more difficult question, as I see it, is whether the disciplinary powers conferred upon the Institute or its various councils by the 1989 bye-laws would trench upon the judicial domain reserved to the courts by Articles 34 to 38 of the Constitution of Ireland, 1937. The same question may be posed in another way by asking whether there is any reason to distinguish between the position with regard to proceedings taken and decisions made in relation to the expulsion of chartered accountants from their Institute and the position in relation to the striking off of a solicitor from the roll of solicitors in accordance with the provisions in that behalf contained in the Solicitors Act, 1954. In delivering the decision of the Supreme Court in In re the Solicitors Act, 1954 [1960] I.R. 239, Kingsmill Moore J. purported to summarise the conclusions reached in his famous judgment (at p. 275) in the following terms:
“It seems to the Court that the power to strike a solicitor off the roll is, when exercised, an administration of justice, both because the infliction of such a severe penalty on a citizen is a matter which calls for the exercise of the judicial power of the State and because to entrust such a power to persons other than judges is to interfere with the necessities of the proper administration of justice.”
Whilst distinctions can and have been made between the qualification as a solicitor and membership of a particular professional association of accountants, I think it would have to be accepted that the consequences of expulsion, even from a particular accountancy body, might be almost as damaging. Indeed it is a sanction of such severity (as Kingsmill Moore J. said of the striking off of a solicitor from the roll) that its consequences might be more serious than a term of imprisonment.
Why then should the position of accountants be any different from that of solicitors or, for that matter, of doctors (see In re M. v. The Medical Council [1984] I.R. 485) or nurses (see K. v. An Bord Altranais [1990] 2 I.R. 396)?
The summary which I have quoted from his judgment does less than justice to the remarkable judgment delivered by Kingsmill Moore J. Rereading that judgment, one appreciates the detailed research on which it was based. Indeed it may be recalled that the legal argument in the Supreme Court continued over a period of ten days. Clearly the major problem was to identify – insofar as this can be done at all – the true meaning of the expression “the administration of justice”.
It must not be overlooked, however, that the Supreme Court did deal fully and authoritatively with the distinction between the decision making process within domestic tribunals on the one hand and what might be called “public bodies”. At p. 264 of the judgment, the Supreme Court excluded from its purview a wide range of domestic tribunals in the following terms:
“There is no question here of a domestic tribunal with a jurisdiction based solely on contract. Many bodies, such as clubs, trade unions, trade and professional associations, chartered or otherwise, admit members only on condition that they agree to abide by and be bound by a set of rules which confer on the body or a committee of the body the power to investigate the conduct of its members, and, if such conduct involves a breach of the rules or the code of behaviour required, to expel the offender. Such a jurisdiction does not gain its efficacy from any action of the State or the legislature, and is not a diminution or devolution of the judicial power of the State – it rests on contract only.”
The bodies so described (including it will be noted chartered professional associations) whose powers of expulsion rested on contract were contrasted in the immediately following paragraph of the judgment with the Incorporated Law Society in the following terms:
“Here we are dealing with a tribunal which depends for its existence and its powers on a legislative act of the State. If the effect of such legislation is to confer the power to administer justice on persons who are not regularly appointed as judges, it is by Article 34 unconstitutional, unless it can be brought within some of the saving provisions of the Constitution. Eventually the question whether any particular tribunal is unconstitutional must depend on whether the congeries of the powers and functions conferred on the tribunal or any particular power or function is such as to involve the pronouncement of decisions, the making of orders, and the doing of acts, which on the true intendment of the Constitution are reserved to judges as being properly regarded as part of the administration of justice, and not of the limited character validated by Article 37.”
It is, therefore, of the essence of In re The Solicitors Act, 1954 [1960] I.R. 239 that the Supreme Court was considering not merely activities which had in their appearances and consequences (however severe) the hallmarks of the administration of justice but also the source of the power to engage in such activities. The Court was not considering judicial power in the abstract but the judicial power of the State, being one of the powers of Government exercisable only by or on the authority of the organs of State established by the Constitution (see Article 6 of the Constitution of Ireland, 1937). It is for that reason that the starting point of the enquiry was the legislation setting up the tribunal followed by an analysis of the powers granted to it with a view to ascertaining whether this involves “a diminution or devolution of the judicial power of the State” or, what is the converse, the conferring of some part of that power on persons who are not regularly appointed as judges under the Constitution. In analysing the Solicitors Act, 1954, Kingsmill Moore J. drew express attention to s. 19 of that Act which provided that the relevant committee should “have the powers, rights and privileges vested in the High Court or a judge thereof on the occasion of an action” in respect of the enforcement of the attendance of witnesses and their examination on oath and otherwise and in respect of the compelling of the production of documents. Again he pointed out that s. 21 of the Act provided that an order made by the committee when filed with the registrar “shall be enforceable as if it were a judgment or order of the High Court”. Again, in the case of solicitors, the court could draw attention (see p. 275) to the manner in which the State was abdicating a judicial function which it had previously exercised:
“Historically the act of striking solicitors off the roll has always been reserved to judges. It is necessary for the proper administration of justice that the Court should be served by legal practitioners of high integrity and professional competence and that the judges should have the power not only of removing those who in their opinion fail to meet the requirement of the office but of retaining those who do. The Act does indeed preserve the power of the judges to strike off but in as much as similar power is given to the Committee it affects adversely the Court’s power to retain.”
Kingsmill Moore J. has therefore identified the previous responsibility of the judiciary in determining issues of misconduct by solicitors. Legislation of the Oireachtas interfered with that traditional relationship, and expressly conferred on a committee of the Incorporated Law Society judicial functions which could have penal consequences for solicitors, and in doing so identified the powers so granted in certain cases by reference to the actual powers of the High Court. This contrasts with the position pertaining to chartered accountants.
Again Kingsmill Moore J. had adverted to the fact that a domestic tribunal does not cease to be such merely because it is incorporated by Royal Charter. In addition, however, it is clear that the Charter in the present case did not purport to confer on the Institute judicial functions of any description. The judicial functions of the Council of the Institute, such as they are, arise in relation to the rules of professional conduct which the members gave to themselves by a majority vote in general meeting. Their decision in that regard was subject to approval and confirmation by the Government but in granting such approval the Government merely endorsed the bargain made between the parties and did not purport to grant to the Institute or its constituent committees any of the executive, judicial or legislative powers of Government.
In my view, notwithstanding apparent similarities, there is therefore a fundamental distinction to be drawn between the nature of the functions which were to be performed by the Incorporated Law Society under the Solicitors Act, 1954, in striking a solicitor from the roll, and a decision by the Council of the Institute of Chartered Accountants in Ireland suspending or expelling one of their members.
There is one further aspect of the judgment of the Supreme Court in In re the Solicitors Act, 1954 [1960] I.R. 239 to which, I think, attention should be drawn.
At p. 272 of the judgment, Kingsmill Moore J. drew attention to the composition of the Disciplinary Committee to be set up under the Act of 1954 and the procedure to be adopted by it. He then went on to say as follows:
“Adverse comment was made on these features at the hearing. It is true that in a hearing before the Committee a solicitor will not have the protections he would receive in a court of justice. Complainant, tribunal and the person who conducts the complaint are inextricably interconnected. Moreover, the circumstances are such as to make it difficult for the tribunal to be impartial. In many cases the person against whom a complaint is made will be a solicitor with whom members of the tribunal have had professional dealings which may have predisposed them in his favour or against him. All of the members are liable to contribute yearly to a compensation fund established under the Act to relieve or mitigate losses sustained in consequence of dishonesty of solicitors and the amount of such contribution may be increased if found necessary so that there might be a tendency to bear hardly on a solicitor charged with dishonesty. Although the character and standing of the members is such that they can be expected to resist and rise superior to any influences which might affect their impartiality, and it is not suggested that they do not so do, the tribunal is not constituted in a manner best calculated to provide the security against bias and partiality which a court of justice affords. In the opinion of the Court these considerations, though advanced by the appellants, are not in point. If the Committee is not administering justice the Constitution imposes no restrictions on the composition of the body.”
The concern expressed by the distinguished judge in that regard and any influence which those considerations might have had on the court in reaching its decision have, I think, since been laid to rest by the evolution and extension of the principles of natural and constitutional justice which apply now even to domestic tribunals. In that regard I would refer to the decision of the Supreme Court in Keady v. The Commissioner of An Garda Siochana [1992] 2 I.R. 197 and in particular the penultimate paragraph of the judgment of O’Flaherty J. at p. 213 in the following terms:
“This line of authority establishes that there is now in place a well charted system of administrative law which requires decision makers to render justice in cases brought before them and sets out the procedures that should be followed, which procedures will vary from case to case and from one type of tribunal to another and which, of course, are subject to judicial review. Similarly, the rules of evidence may not necessarily be applied with the same strictness as in a court of law provided that the decision making body keeps in the forefront of its deliberations the necessity to come to a correct and just verdict having regard to the complaints that have to be investigated; the determination to be made and the consequences such determination may have for the other party or parties appearing before it.”
Whilst the Institute contends that judicial review is not an appropriate remedy to correct any actual or apprehended abuse of the powers exercisable by it, counsel on its behalf fairly and wisely recognised that it would not be in the interest of his clients or any of the other parties to rely on that argument or to insist upon some other procedure being adopted when that was not necessary for the proper presentation of the matter. That concession means that any comments which I make in relation to the appropriateness of the procedure adopted (and both parties were anxious that I would express my view on the matter) are necessarily obiter.
It seems to me that confusion frequently arises by reason of the fact that the expression “Judicial Review” is used occasionally in two different senses. First of all it is the procedure identified in O. 84, r. 18 of the Rules of the Superior Courts, 1986, as comprising what used to be known as the prerogative writs or orders of certiorari, mandamus, prohibition and quo warranto. However, the same expression is also used in the ordinary sense of courts of law reviewing or considering the actions, activities or decisions of a variety of bodies in the court of proceedings instituted by way of plenary summons. For example the seminal decision of Kenny J. (subsequently confirmed by the Supreme Court) in Glover v. B.L.N. Ltd. [1973] I.R. 388 (which condemned the decision of the board of directors of B.L.N. Ltd. in dismissing Mr. Glover as a director of the company on the basis that the rules of natural or constitutional justice were not observed in reaching their decision) can be and has been described as a judicial review of the decision of the board of directors but the proceedings were of course by way of plenary summons and I do not think that anyone would have contended then or now that it would be possible to have challenged the decision of the employer in that case by the procedure of judicial review having regard to the nature of the functions carried out by it and the source of its authority. Another area of confusion concerns the advantages or disadvantages of the procedure of judicial review itself. It is clear that in England it is seen as a protection to the respondent. The fact that the applicant must obtain the liberty of the court is a safeguard from frivolous claims. Expedition is required. The courts retain control over the proceedings and have a discretion which does not exist in other forms of action. In Ireland one suspects that judicial review is preferred as being a more expeditious and, perhaps, more glamorous remedy. The fact that there is an early hearing in the sense that there is an immediate application for leave to institute the proceedings is at least superficially attractive. It is no doubt a comfort to the party initiating proceedings to see the matter appear in a court list at an early date if only for that limited purpose rather than endure what must seem the interminable delay involved in the statements of claim, defences, particulars, interrogatories and discovery. That is not to say that these procedures may not equally well be involved in an application for judicial review but at least the initial hearing in the court is not postponed until the pleadings have been disposed of. The difficulty in eliminating misconceived applications for judicial review is that the applications for liberty to issue such proceedings are made ex parte and accordingly there is no legitimate contradictor to draw attention to any possible infirmity in the claim.
It is, I believe, generally accepted that the best attempt to define or explain judicial review is that afforded by Lord Parker C.J. in R. v. The Criminal Injuries Compensation Board, ex p. Lain [1967] 2 Q.B. 864, at p. 882 in the following terms:
“The position as I see it is that the exact limits of the ancient remedy by way of certiorari have never been and ought not to be specifically defined. They have varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorarisince their authorities derived solely from contract, that is to say, from the agreement of the parties concerned . . . We have as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially.”
In England it appeared that the bounds of judicial review were significantly extended particularly by the decision in R. v. Panel on Takeovers and Mergers, ex p. Datafin plc [1987] Q.B. 815. In that case it was held that the Takeover Panel was in principle amenable to judicial review notwithstanding the fact that the Panel had not been created by statute or by any exercise of prerogative or governmental power. In that case the Master of the Rolls, Sir John Donaldson, reviewed numerous decisions including R. v. Criminal Injuries Compensation Board, ex p. Lain [1967] 2 Q.B. 864, but went on to conclude (at p. 838) that:
“In all the reports it is possible to find enumerations of factors giving rise to the jurisdiction, but it is a fatal error to regard the presence of all those factors as essential or as being exclusive of other factors. Possibly the only essential elements are what can be described as a public element, which can take many different forms, and the exclusion from the jurisdiction of bodies whose sole source of power is a consensual submission to its jurisdiction.”
In Murphy v. The Turf Club [1989] I.R. 171, Barr J. refused an application for judicial review by way of an order of certiorari to quash the Turf Club’s decision to revoke a licence on the basis that the Club did not derive its authority from statute or common law and that the relationship between the applicant and the respondent derived solely from contract so that in purporting to revoke the applicant’s licence the respondent was not exercising a public law function. In reaching that decision Barr J. expressly followed the English decision in Law v. The National Greyhound Racing Club Ltd. [1983] 1 W.L.R. 1302 and distinguished the decision in R. v. Panel on Takeovers and Mergers, ex p. Datafin plc [1987] Q.B. 815. In Beirne v. The Commissioner of An Garda Siochana [1993] I.L.R.M. 1 the Supreme Court, and in particular the Chief Justice, considered the decision in R. v. The Criminal Injuries Compensation Board, ex p. Lain [1967] 2 Q.B. 864, R. v. Panel on Takeovers and Mergers, ex p. Datafin plc [1987] Q.B. 815 and Murphy v. The Turf Club [1989] I.R. 171. It was, however, sufficient for the purpose of that decision for the Chief Justice to conclude as he did at p. 5 of the report as follows:
“In these circumstances, I have no doubt that whilst the power of the Commissioner to terminate the training of the trainee by reason of his misconduct is stated to be one of the conditions of the employment and that that statement is true it is not a jurisdiction which is solely or purely or even mainly derived from contract, it is a clear jurisdiction necessarily vested in the Commissioner by reason of the office which he holds and the statutory powers which are attached to it. In those circumstances, I conclude that it is clearly within the jurisdiction of the Courts to review that decision judicially.”
It is perhaps ironic that the latest decision in England on the prerogative writ is yet another case concerning the horse racing industry, namely, R. v. The Disciplinary Committee of the Jockey Club, ex p. Aga Khan [1993] 1 W.L.R. 909. In that case the Court of Appeal posed for themselves the question:
“In the light of the authorities already referred to in this judgment the issue in this appeal is whether on the one hand the Jockey Club is a domestic body which exercises its powers consensually or whether on the other there are public elements in the discharge of its functions which render it amenable to judicial review?”
The applicants had argued that the Jockey Club had the effective de facto control of a significant national activity; that its functions were essentially public; that its powers were of a nature and scope which affected the public; that it mattered not that it was a private body or that it was of ancient history. It was contended that what mattered was that if it did not perform the functions in question the Government would be
obliged to create a body to perform those functions. Again it was contended that it made no difference that the Jockey Club exerted its control in the main by contract since those who contracted with it had no effective alternative but to accept the obligations thus imposed and furthermore authority was effectively exerted over those who are not bound by contract. However, the Master of the Rolls in his judgment (at p. 923) concluded as follows:
“But the Jockey Club is not in its origin, its history, its constitution or (least of all) its membership a public body. While the grant of a royal charter was no doubt a mark of official approval, this did not in any way alter its essential nature, functions or standing. Statute provides for its representation on the Horse Race Betting Levy Board, no doubt as a body with an obvious interest in racing, but it has otherwise escaped mention in the statute book. It has not been woven into any system of governmental control of horseracing, perhaps because it has itself controlled horse racing so successfully that there has been no need for any such governmental system and such does not therefore exist. This has the result that whilst the Jockey Club’s powers may be described as, in many ways, public they are in no sense governmental. The discretion conferred by s. 31, sub-s. 6 of the Supreme Court Act, 1981, to refuse the grant of leave or relief where the applicant has been guilty of delay which would be prejudicial to good administration can scarcely have been envisaged as applicable in a case such as this.”
“I would accept that those who agreed to be bound by the Rules of Racing have no effective alternative to doing so if they wanted to take part in racing in this country. It also seems likely to me that if, instead of Rules of Racing administered by the Jockey Club, there were a statutory code administered by a public body, the rights and obligations conferred and imposed by the code would probably approximate those conferred and imposed by the Rules of Racing. But this does not, as it seems to me, alter the fact, however anomalous it may be, that the powers which the Jockey Club exercises over those who are (like the applicant) agreed to be bound by the Rules of Racing derive from the agreement of the parties and give rise to private rights on which effective action for a declaration, an injunction and damages can be based without resort to judicial review. It would in my opinion be contrary to sound and long standing principle to extend the remedy of judicial review to such a case.”
Whilst the activities of the Jockey Club in England (and the Turf Club in Ireland) relate to sport and to that extent are distinguishable from the affairs of the Institute of Chartered Accountants in Ireland, I believe that both in principle and in precedent the judgment of Barr J. in Murphy v. The Turf Club [1989] I.R. 171 and the decision of the Court of Appeal (affirming the decision of the Divisional Court of the Queen’s Bench division) are applicable to the present case. In my view the procedure of judicial review pursuant to O. 84 of the Rules of the Superior Courts, 1986, is not applicable to the affairs of the Institute of Chartered Accountants in Ireland.

Notice of appeal was filed on the 11th August, 1993. On the 15th October, 1993, the Supreme Court accepted an undertaking from the respondent not to proceed with the disciplinary hearing pending the determination of the appeal.

 

Hamilton C.J.
16th November 1995

I have read the judgments about to be delivered by O’Flaherty J. and Denham J. each of which deals with the issues arising in this appeal and I am in agreement with their proposed dismissal of the appeal by the applicant against the findings and order made by Murphy J. in these proceedings.
In the course of his judgment in the High Court, Murphy J. stated at p. 104 of the report:
“In my view, the procedure of judicial review pursuant to O. 84 of the Rules of the Superior Courts, 1986, is not applicable to the affairs of the Institute of Chartered Accountants in Ireland.”
In the course of his judgment about to be delivered, O’Flaherty J. states at p. 120:
“The learned High Court judge decided that this was not an appropriate case to be brought by way of judicial review in the sense of the procedure identified in O. 84, r. 18 of the Rules of Superior Courts, 1986, which comprised what used to be known as the prerogative writs or orders of certiorari, mandamus, prohibition and quo warranto. I am inclined to agree with the learned High Court judge and, indeed support for his view is to be found in The State (Colquhoun) v. D’Arcy [1936] I.R. 641.”
Denham J., however, in the course of her judgment states at p. 130:
“In these circumstances, I am satisfied that the decision of the Disciplinary Committee may be the subject of judicial review pursuant to O. 84 of the Rules of the Superior Courts, 1986.”
The resolution of the issue thus arising as between the two judgments is not necessary for the determination of the applicant’s appeal herein.
Having regard to the general importance of this issue of law, I would prefer to reserve my decision on it until it arises in a case as a question necessary for the determination of the claim.

O’Flaherty J.
This is an appeal brought by Neal Geoghegan from the judgment and order of the High Court (Murphy J.) of the 9th July, 1993, refusing various reliefs sought against the respondent, the Institute of Chartered Accountants in Ireland (“the Institute”), in these judicial review proceedings instituted on behalf of the applicant.
Background
The applicant deposed in the course of his original affidavit grounding these proceedings that he was an associate member of the Institute from 1957 to 1968, and in the latter year became a fellow of the Institute. Since that time he has carried on business solely as an accountant and he derives his entire livelihood from his practice and employment over the years as an accountant. In November, 1985, he joined a firm known as Fitzgerald & Associates and he set forth that the precise basis upon which his membership of that firm proceeded has been in some doubt, namely, as to whether or not he was a partner or was there as a salaried employee of Mr. Fitzgerald (who is neither a chartered nor a certified accountant). The firm has offices in Dublin and Cork and he deposed that the two offices operated autonomously.
The applicant went on to state that since 1989 or thereabouts the Institute has carried out a number of enquiries into the practice for the purposes of confirming whether or not the standards and requirements of the Institute have been complied with. From time to time various suggestions and findings have been made by members of the Institute who have visited the practice premises both in Dublin and Cork. While the investigating members of the Institute were satisfied that the standards and requirements of the Institute have been complied with at the Dublin office, they have made suggestions and findings concerning the practice at the Cork office. The applicant states that he has attempted to implement these findings and suggestions in so far as he has been able to do so. He believes, however, that at the time of instituting these proceedings the Institute was not satisfied with what he had done.
I will return to the matter of the complaint that was made against the applicant after setting forth some details of the history and constitution of the Institute.
History and constitution of the Institute.
I take this summary from the affidavit of the 27th January, 1993, sworn by Mr. Robert L. Donovan who is a fellow of the Institute and was then the secretary of the Institute. He has since retired as secretary. It appears that the profession of accountant as such was first practised in Dublin in the late eighteenth century. At the turn of the century there appear to have been only seven practising accountants in Dublin. Numbers increased shortly thereafter, slumped slightly in the 1820’s, and by 1871 there were 36 individuals or partnerships practising in Dublin. The number had risen to 41 by 1888. In 1887, Robert Stokes who was then practising as Stokes Brothers in College Green, called a number of meetings of accountants, including some practising in Belfast and in Cork, with a view to obtaining a Charter, and at the end of that year a petition was presented to the Lord Lieutenant by himself and 12 other accountants practising in Dublin, 12 accountants practising in Belfast and 6 accountants practising in Cork. The petition was accepted and a Royal Charter, dated the 14th May, 1888. was granted. The stated aim of the Charter, apart from incorporation of the Institute, was “for the purpose of securing a high standard of professional and general education and the efficiency and responsibility of those engaged in the profession of accountants in Ireland and the elevation of that profession as a whole”.
In the mid 1960’s it was thought expedient to make certain amendments to the Charter, and for this reason the Institute promoted and ultimately secured the enactment by the Oireachtas of a private Act for the purpose of amending the Charter, entitled The Institute of Chartered Accountants in Ireland (Charter Amendment) Act, 1966 (“the Private Act”). A similar Act was passed in Northern Ireland.
Under the terms of the Charter, the bye-laws of the Institute were required to be submitted to the Privy Council in Ireland, and s. 6 of the Private Act provided that the bye-laws or any alteration or amendment thereof should not have effect until submitted to and allowed by the Government. Subject to these provisions, the Institute has power to amend its bye-laws by resolution passed in general meeting. In the case of the majority of the bye-laws, a two thirds majority is required by article 85 of the bye-laws. Section 2 of the Private Act specifically made provision for bye-laws prescribing examinations and/or qualifications which might be required as a condition for admission to fellowship. Those bye-laws were expressed to require a three fourths majority of the members. In fact, no such rules have been introduced.
By way of example of the adoption of bye-laws, Mr. Donovan states that substantial general amendments to the Institute’s bye-laws were introduced in 1989. Notice was given of a special general meeting to be held in Dublin on the 18th April, 1989, by letter dated the 29th March, 1989, sent to each member. There was enclosed with that letter an explanatory memorandum dealing with the bye-law revisions, together with notice of the special meeting and the accompanying resolutions setting out in detail the proposed amendments to the bye-laws, which were in fact adopted at the meeting.
Subsequently, as required by the Charter, the Institute applied for formal Government approval of the said amendments to the Institute’s bye-laws, and the Government gave its approval by a document entitled”Instrument allowing alterations to bye-laws of the Institute of Chartered Accountants in Ireland” given under the seal of the Government on the 12th September, 1989.

Mr. Donovan relates that the Institute is a thirty two county body and that a similar procedure to that described in the previous paragraph was undergone in Belfast and the Secretary of State for Northern Ireland on the 26th July, 1989, signed a document entitled “The Institute of Chartered Accountants in Ireland (Allowance of Bye-Laws) Order, 1989”. Mr. Donovan believes that the Institute is a private and self-regulating body. Further, the accountancy profession is in no way regulated by statute. Rather, he says, entry into the various branches of the profession and the giving of qualifications are under the control of a number of self-regulating private bodies.
He goes on to state that similar bodies to the Institute exist in Scotland and in England and Wales. The Scottish body is called The Institute of Chartered Accountants of Scotland; the English and Welsh body is called The Institute of Chartered Accountants in England and Wales. The Institute and these two bodies have in common the fact that their members are entitled to describe themselves as “chartered accountants”. The use of the designatory letters A.C.A. and F.C.A. are common to and authorised by the three bodies, save that the Institute of Chartered Accountants of Scotland have only one category of membership, there being no fellows of that Institute and their members use the designatory letters C.A. There is also in Ireland the Chartered Association of Certified Accountants whose members are entitled to call themselves “certified accountants”, and the relevant designatory letters are A.C.C.A. and F.C.C.A. In addition, there is the Institute of Certified Public Accountants in Ireland. Its members are entitled to describe themselves as “certified public accountants”, and the relevant designatory letters are A.C.P.A. and F.C.P.A. All these bodies, Mr. Donovan deposes, are self-regulating, and as in the case of the Institute, the relationship between the bodies and their members is based exclusively on contract. In addition to the Institutes mentioned, there are other smaller bodies which are not recognised for the purposes of Part X of the Companies Act, 1990.
Mr. Donovan deposes that the members (whether associates or fellows) of all such bodies, including the Institute, in consideration of being admitted to membership, undertake to conform to and be bound by the rules and regulations in force from time to time. In the absence of such undertaking and agreement the Institute or other bodies have no jurisdiction over their members. He refers to a sample of the application form for associate membership currently required by the Institute which is in the following terms:

“that, if admitted as an associate of the Institute, I will be bound by the provisions of The Royal Charter and by the bye-laws that are now in force or may hereafter from time to time be made.”
Although over the years that form has changed he believes that the undertaking referred to has not changed since he became a member in 1954. Each member is provided with a copy of the Charter and bye-laws.
The Institute has about 8,000 members (including associates and fellows). Of those, some 5,000 operate in the State, some 1,500 operate in Northern Ireland and the remaining 1,500, approximately, operate in the United Kingdom and the rest of the world. The disciplinary control which the Institute exercises over its members relates to all its members, wherever they carry on practice. Complaints have been referred to the Institute relating to the conduct of members practising abroad. Equally, if complaints are made to the Institute in relation to the conduct of members of sister institutes who are practising here, such issues are not dealt with by the Institute but are referred to be dealt with by the relevant sister institute abroad.
The members and the Institute are, he says, conscious of the importance of and proud of the fact that the Institute has continued to operate smoothly and successfully as a thirty two county body, and they are keen to preserve that situation. Whereas the majority of the meetings of the Institute are held in Dublin, the annual general meeting alternates between Belfast and Dublin, a number of special general meetings have been held in Belfast, and from time to time disciplinary meetings have also been held in Belfast. It is important, therefore, to be able to maintain a disciplinary system which is common both north and south of the border.
There is no legislative control over who may or may not describe themselves as “accountants” and indeed there are very many persons employed and practising independently as accountants who are not members of any of the bodies referred to by Mr. Donovan. Indeed, it would appear that the principal member of the applicant’s firm is himself an accountant though not a member of the Institute or any of the bodies mentioned above.
Complaint against applicant
On the 2nd September, 1992, Mr. Donovan wrote to the applicant in the following terms:

“Dear Mr. Geoghegan,
I have to advise you that the Investigation Committee has formed the opinion that a prima facie case of professional misconduct within the meaning of the bye-laws has been established which ought to be referred by way of formal complaint to the Disciplinary Committee. The formal terms of the complaint are:
‘That Neal Geoghegan, a member of the Institute carrying on practice in partnership with a non-member at 11 Anglesea Street, Dublin, and 6 Sullivan’s Quay, Cork, did:
(i) fail to carry out any or any adequate review of audit work done and reports issued or to be issued for the office of the said member’s unqualified partner in Cork, and
(ii) fail to satisfy himself on the basis of having reviewed the appropriate audit working papers that the audit work in respect of each audit assignment had been carried out to an acceptable standard,
contrary to the provisions of Audit Guideline L.201 issued by the Institute (and/or contrary to the provisions of Statement 9 of the Ethical Guide for Members issued by the Institute effective March 1992) and accordingly had been guilty of misconduct and is therefore liable to disciplinary action in accordance with Chapter IX of the bye-laws of the Institute.’
The hearing of the complaint, which will be supported by the documents listed in my letter to you of 23rd April 1992 together with your letter of 28th April, will be held before a tribunal of the Disciplinary Committee on Monday, 14th September, 1992 at 2.30 p.m. at the Offices of the Institute, Chartered Accountants House, 87/89 Pembroke Road, Dublin 4. Under bye-law 67 (a) (see attached), you have the right to attend the hearing, of being heard, of calling witnesses, of adducing documentary evidence and you may be represented by counsel or by a solicitor or by a member of the Institute. It would be helpful to me if you would advise whether you will attend the hearing and whether you will be represented.”
In a letter of the same date, having referred to the formal letter that he was despatching to the applicant, Mr. Donovan wrote the following:
“You will appreciate that I am not in a position to anticipate what view might be taken by the Disciplinary Tribunal. Should they find the complaint proved it would be open to them to impose restrictions on your right to practise, for example, and this would clearly have serious implications for you. I cannot judge whether this is likely to happen but, since it remains a possibility, you would probably be well advised to be legally represented at the hearing.
From my point of view, as I have said to you on the phone, you are the only partner in the firm of Fitzgerald & Associates who is qualified under the Companies Act to carry out a company audit. Because of this, it is important for the reputation of the Chartered Accountancy profession that you be and be seen to be in a position of authority within the firm especially in relation to all company audit work performed in the name of the firm. As I perceive it, it is because they were doubtful on that particular score that the Practice Review Committee has referred the matter forward. My personal view is that this is the most important single issue which needs to be addressed at the hearing. I cannot say more than that except to say that, on a personal basis, I wish you well.”
While the merits of the case have not been debated either before the High Court judge or before us, nonetheless, it is possible to glean from what Mr. Donovan wrote in the extract quoted from the last recited letter, as well as other correspondence which was exhibited in the applicant’s affidavits, that there seems to be a fairly net point at issue in this dispute and it does appear that there had been a good deal of dialogue – which appears to have been conducted in an affable and constructive manner on both sides – to resolve the difficulties that had arisen concerning this question of audits. Unfortunately, a hiatus occurred: the inquiry was set up which in turn led the applicant to challenge the constitutionality of the proposed proceedings of the Disciplinary Committee.
The application for judicial review
The applicant sought in the High Court an order of certiorari quashing the proceedings of the Disciplinary Committee; an order by way of prohibition restraining the continuance of the disciplinary proceedings; a declaration that Chapter IX of the bye-laws (these contain the bye-laws dealing with disciplinary proceedings) of the respondent Institute are inconsistent with the provisions of Article 34, s. 1 of the Constitution of Ireland; a declaration that the powers vested in the Disciplinary Committee of the Institute do not comprise limited functions and are accordingly inconsistent with Article 34, s. 1 of the Constitution and are not saved by the provisions set forth in Article 37 of the Constitution; a declaration that the powers of the Disciplinary Committee and/or the Appeal Committee established by the bye-laws of the Institute constitute an unjust attack upon the person, good name and property rights of the applicant as protected by Article 40 of the Constitution; damages and other relief.
The Disciplinary and Appeal Committees
The Disciplinary Committee is described in bye-law 66 (a) of the Institute’s bye-laws. It is provided that it shall consist of not more than eleven members of whom not less than one quarter shall be non-accountants. A quorum should be six members, providing always that one quarter of the attendance at any meeting thereof shall be non-accountants. Bye-law 67 provides that the Disciplinary Committee should afford the affected party the usual rights that are prerequisites for the proper hearing of such inquiries so that there is compliance with the rules of constitutional and natural justice. Bye-law 68 provides that if the Disciplinary Committee is of the opinion that the complaint has been proved in whole or in part it may make any one or more of the following orders against the defendant as it considers appropriate having regard to the status of the defendant and the Committee’s views as to the nature and seriousness of the complaint and any other circumstances which the Committee considers relevant [Emphasis added]:
(1) that he be excluded from membership;
(2) that he be suspended from membership for such period, not exceeding two years, as shall be specified in the order, save that in the case of suspension for failure to satisfy a judgment debt the period of suspension shall continue until, but only until the member shall establish to the satisfaction of the Committee that the debt has been satisfied;
(3) that his practising certificate be withdrawn;
(4) that he be ineligible for a practising certificate;
(5) that any authorisation or licence granted to him be withdrawn;
(6) that he be censured;
(7) that he be reprimanded;
(8) that he be admonished;
(9) that he be fined a sum not exceeding £1,000;
(10) that any Investment Business Certificate issued by the Institute to the member in his capacity as a sole practitioner, or the firm in which the member is a partner, may be suspended or withdrawn.
Bye-law 70 provides that if the Disciplinary Committee makes any order as aforesaid against the defendant he may, within twenty one days of the date of service upon him of such order, give notice of appeal to the
Council. Any such notice shall state the grounds of appeal. The President (or his representative) appoints an Appeal Committee. The Appeal Committee is to consist of a lawyer, who is chairman, but who is not an accountant, and three members who shall not be members of the Council and one non-accountant and no member or former member of the Investigation or Disciplinary Committees or of any Committee of Inquiry who has been concerned with the complaint which is the subject of the appeal shall be eligible for appointment to such Appeal Committee.
Bye-law 71 provides that an appeal to the Appeal Committee is by way of re-hearing and shall be conducted and heard as though at first instance. A hearing of the Appeal Committee may, at the request of the applicant, be held in public, except in circumstances exempted by the European Convention on Human Rights.
Bye-law 72 provides that on any appeal, the Appeal Committee may affirm, vary or rescind any order of the Disciplinary Committee and may substitute any other order or orders (on such terms and conditions (if any) as it thinks appropriate) which the Disciplinary Committee might have made on the original formal complaint or may, if the Appeal Committee considers it appropriate, order that the complaint be heard de novo by a different tribunal of the Disciplinary Committee.
The disciplinary procedures do not envisage any appeal to or decision by the High Court which is the case with solicitors, doctors and nurses, for example: cf. Part III of the Solicitors Acts, 1954-1960 and the Solicitors (Amendment) Act, 1994; In re M. v. The Medical Council [1984] I.R. 485 and K. v. An Bord Altranais [1990] 2 I.R. 396.
For resolution
The learned trial judge isolated three issues for resolution, as I do.
1. With regard to the Charter –
(a) Whether it survived the enactment and coming into operation of the Constitution of the Irish Free State and the present Constitution?
(b) Whether the bye-laws were valid having regard to the fact that they were made in exercise of powers conferred by the Charter?
(c) If the Institute had ceased to exist or the powers conferred upon it were exhausted whether it or they were revived or validated by the Act of 1966, or the governmental instrument of the 12th September, 1989?

2. Whether the disciplinary provisions contained in Chapter IX of the bye-laws of the Institute involve the Disciplinary Committee in exercising a judicial function contrary to the provisions of Article 34, s. 1 of the Constitution?
3. Whether the activities of the Institute are of such a public nature as to be susceptible to the process of judicial review.
There is also a ground of appeal relating to the European Convention on Human Rights and Fundamental Freedoms which I will deal with towards the end of my judgment.
The royal prerogative
The learned trial judge, having considered the judgments of this Court in Byrne v. Ireland [1972] I.R. 241, Webb v. Ireland [1988] I.R. 353 and Howard v. The Commissioners of Public Works in Ireland [1994] 1 I.R. 101, found that the issue in the present case was not whether any part of the former royal prerogative was transferred to or invested in any organ of the State, but rather whether a body which was validly incorporated in the 19th century in the then United Kingdom of Great Britain and Ireland in pursuance of a charter granted in accordance with the royal prerogative withered away or ceased to have the right to exercise the powers conferred upon it by the charter, on the coming into operation of either the Constitution of 1922 or 1937. The learned trial judge said that no authority was cited in support of that proposition and then he went on to say at p. 95:
“It seems to me that the laws carried forward by Article 73 of the Constitution of Saorstat Eireann , 1922, and Article 50 of the Constitution of Ireland, 1937, comprise the full range of laws whether customary or statutory and however they have been made or evolved, subject only to their not being inconsistent with either Constitution. I see no reason in principle why a law enacted in Great Britain in medieval times by the Monarch himself in pursuance of the legislative powers which (as well as judicial and executive powers) vested in him not merely as a theoretical concept but as a practical reality could not have passed into the laws of the Irish Free State. The filtering process provided by Article 73 of the Constitution of Saorstat Eireann ,1922 (like the comparable provision in the Constitution of Ireland, 1937), related to the content of the law and not its source. I see no reason why the Institute and all comparable bodies, whether formed under public or private legislation or incorporated by Royal Charter as part of the royal prerogative or residual regal legislative power, should not continue to have a valid and effective existence on the formation of the independent Irish State. Certainly any other result would be chaotic in the extreme. The virtual absurdity of such a situation is illustrated in the present case where the applicant is at the same time claiming to be a member of an incorporated body while asserting that this body has no existence in law.
There is, however, an even clearer answer to the claims by the applicant in this regard. It seems to me that s. 7 of the Institute of Chartered Accountants in Ireland (Charter Amendment) Act, 1966, puts the matter beyond any debate in using words . . . as follows:
‘. . . the Charter shall be and remain in full force and effect’.”
I accept and endorse that finding. For my part I would make two additional comments. I believe that the Adaptation of Charters Act, 1926, was effective to make sure that the Charter establishing the Institute continued in full force and effect after the foundation of the State and, secondly, if we were to attempt to declare that the Charter did not exist since the establishment of the State it would mean that in a suit brought by a person for the purpose of safeguarding his professional qualification we would be declaring that he had no qualification to safeguard because the Institute to which he thought that he belonged had no legal existence. I believe that it would be wrong even to entertain the possibility of such a nonsensical result.
As regards the decisions in Byrne v. Ireland [1972] I.R. 241 and Webb v. Ireland [1988] I.R. 353, since each was concerned with a single question in respect of the royal prerogative (whether the State was immune from civil suit in the one case and the State’s entitlement to treasure trove in the other), it may be that if in a future case a wider question is raised concerning the royal prerogative, the parameters of the judgments in these cases may need to be delineated. Doubtless, in any future debate Professor John M. Kelly’s essay which favours a more gradual approach in regard to the place of the royal prerogative in our constitutional scheme of things, Hidden Treasure and the Constitution (1988) 10 D.U.L.J. (N.S.) 5, will prove of immense value.
Is the disciplinary power of the Institute tantamount to the exercise of the judicial power of the State in matters of professional discipline?
This is really the question at the heart of this litigation.
It is submitted on behalf of the applicant that solicitors and accountants are broadly comparable professions so far as the law is concerned.
Their professional work brings them into daily contact with the courts in a mode and manner that does not apply to other professions. For this reason, the applicant relies on the judgment of the Court in In re The Solicitors Act, 1954 [1960] I.R. 239. In that case, it will be recalled, Maguire C.J. (sitting as a High Court judge), had found that the Disciplinary Committee of the Law Society was exercising the judicial power of the State in striking solicitors off the roll, but he came to the conclusion that the powers that it exercised were of a limited nature and were thus within Article 37 of the Constitution. When the case came before the Supreme Court the matter presented for resolution at the appeal was whether the Disciplinary Committee set up by the Solicitors Act, 1954, had been given powers and functions the exercise of which involved the “administration of justice” and, if so, whether they could properly be regarded as falling within the saving provisions of Article 37.
Kingsmill Moore J., delivering the judgment of the Court, upholding Maguire C.J.’s finding that the Law Society was exercising judicial powers but overruling his finding that they were limited powers within Article 37, went on to draw a distinction between conferring judicial powers or quasi-judicial powers on bodies by statute and the situation with regard to domestic tribunals. At p. 264 of the report, he said:
“There is no question here of a domestic tribunal with a jurisdiction based solely on contract. Many bodies, such as clubs, trade unions, trade and professional associations, chartered or otherwise, admit members only on condition that they agree to abide by and be bound by a set of rules which confer on the body or a committee of the body the power to investigate the conduct of its members, and, if such conduct involves a breach of the rules or the code of behaviour required, to expel the offender. Such a jurisdiction does not gain its efficacy from any action of the State or the Legislature, and is not a diminution or devolution of the judicial power of the State – it rests on contract only.
Here we are dealing with a tribunal which depends for its existence and its powers on a legislative act of the State. If the effect of such legislation is to confer the power to administer justice on persons who are not regularly appointed as judges it is by Article 34 unconstitutional, unless it can be brought within some of the saving provisions of the Constitution. Eventually the question whether any particular tribunal is unconstitutional must depend on whether the congeries of the powers and functions conferred on the tribunal or any particular power or function is such as to involve the pronouncement of decisions, the making of orders, and the doing of acts, which on the true intendment of the Constitution are reserved to judges as being properly regarded as part of the administration of justice, and not of the limited character validated by Article 37.”
It is not necessary to review the authorities or to examine again the arguments as to what constitutes the administration of justice or the exercise of judicial power because this was done recently in the judgments of this Court in Keady v. The Commissioner of An Garda Siochana [1992] 2 I.R. 197.
The distinction that has to be made between the circumstances pertaining in In re the Solicitors Act, 1954 [1960] I.R. 239 and in this case is that the members of the Institute come together by a form of contract; they agree to be bound by the Charter and bye-laws and there is no question of the Oireachtas giving powers to a body to perform judicial functions.
It is clear that while the Oireachtas can confer the power to administer justice on bodies other than courts, these must always be of a limited nature.
One can understand the complaint made on behalf of the applicant as to why there should be a distinction between solicitors and, indeed, doctors ( In re M. v. The Medical Council [1984] I.R. 485) and nurses ( K. v. An Bord Altranais [1990] 2 I.R. 396) on the one hand and accountants on the other. (These were the three professions referred to in the course of the argument.) The distinction is this: the procedure in each of these cases has been set up by Acts of the Oireachtas and in each of these cases there is a right of review by the High Court though, ironically, it appears that the review that the High Court undertakes in the case of solicitors (to date in any event – see now the Solicitors (Amendment) Act, 1994) is less extensive than what was held to be requisite in the decisions involving doctors and nurses.
Bound to act judicially
It only remains to observe, therefore, that the Disciplinary Committee is, of course, bound to act judicially. As already indicated, the bye-laws contemplate that that should be so. That there should be proportionality, that the punishment should fit the offence (assuming any offence is made out), is expressly contemplated by the bye-laws and, in any event, if there were a departure from the principle of proportionality the decision would be subject to review by the courts. I would refer to the sentence which I have emphasised in the extract quoted from bye-law 68 earlier in this judgment.
Appropriateness of judicial review
The learned High Court judge decided that this was not an appropriate case to be brought by judicial review in the sense of the procedure identified in O. 84, r. 18 of the Rules of the Superior Courts, 1986, which comprised what used to be known as the prerogative writs or orders ofcertiorari, mandamus, prohibition and quo warranto. I am inclined to agree with the learned High Court judge and, indeed, support for his view is to be found in the decision of the Divisional Court in The State (Colquhoun) v. D’Arcy [1936] I.R. 641 which decided that prohibition will only issue to a court or tribunal or body of persons having, under statute or common law, authority to impose liabilities upon, or to determine questions affecting the rights of individuals, and having the duty to act judicially (see, especially, per O’Byrne J. at pp. 675-676 of the report).
However, in my judgment the actual form of procedure used to judicially review an action by a body entrusted with great powers which can effect the livelihood of persons is of secondary importance. It may be that the most appropriate procedure in any given case is the one that gets the case on quickest: as Walsh J. observed in The State (Lynch) v. Cooney [1982] I.R. 337 at p. 373:
“. . . the quicker the procedure available the better for everyone”.
Appeal based on the European Convention
Ground No. 33 in the notice of appeal avers that the learned trial judge was in error:
“In failing to hold that the power to impose the most severe of punishments under the Institute’s disciplinary procedures required, in final analysis, the delegation of any such power in such a mode and manner as to ensure a public hearing before an independent and impartial tribunal established by law so as to comply with the obligations imposed by the European Convention on Human Rights and in particular Article 6 thereof..”
Article 6, s. 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms provides:
“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order and national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interest of justice.”
I would observe that the bye-laws have regard to the requirements of the Convention. Having said that I would simply reiterate that the Convention does not form part of our domestic law: In re Ó Laighléis [1960] I.R. 93 and Norris v. The Attorney General [1984] I.R. 36.
Conclusion
I conclude with the observation that it appears that the applicant and the members of the Institute who are concerned with the sufficiency of supervision of audits which may have been the responsibility of the applicant had engaged in dialogue some years ago; it would be a pity to think that the procedures and proceedings instituted by both parties would put an end to that and one would hope that a means short of mutual recrimination might be found to resolve any outstanding difficulties that exist between the applicant and the Institute.
I would dismiss the appeal.

Egan J.
The facts of this case are carefully set out in the judgment of O’Flaherty J. which I have read. I have also read the judgment of Denham J.
My conclusions are as follows:
1. The Charter survived the enactment and coming into operation of the Constitution of the Irish Free State and the present Constitution.
2. The disciplinary provisions contained in Chapter IX of the bye-laws of the Institute do not involve the Disciplinary Committee in exercising a judicial function contrary to the provisions of Article 34, s. 1 of the Constitution of Ireland, 1937.
3. (a) An order for prohibition or any declaration to the same effect ought not be made to prevent the hearing by the Disciplinary Committee of the complaint against the applicant.
(b) The proceedings before the Appeal Committee must be conducted in accordance with natural and constitutional justice and the same applies to whatever findings it arrives at. An application for judicial review can be brought in respect of any decision arrived at.

Blayney J.
I agree with the judgment of O’Flaherty J.

Denham J.
The facts of the case have been comprehensively stated by O’Flaherty J. In the High Court and this Court three issues were raised for determination:
1. On the Charter:
(a) Whether the Charter dated the 14th May, 1888, granted in pursuance of the then royal prerogative survived the enactment and coming into operation of the Constitution of the Irish Free State and Bunreacht na hEireann?
(b) Whether the bye-laws were valid having regard to the fact that they were made in exercise of powers conferred by the said royal Charter?
(c) If the Institute had ceased to exist, or the powers conferred upon it exhausted, whether it or they were revived or validated by the Act of 1966, or the governmental instrument of the 12th September, 1989?
2. Whether the disciplinary provisions contained in Chapter IX of the bye-laws of the Institute involve the Disciplinary Committee in exercising a judicial function contrary to the provisions of Article 34, s. 1 of Bunreacht na hEireann?
3. Whether the activities of the Institute are of such a public nature as to be susceptible to the process of judicial review?
1. On the first issue for resolution – the Charter – I agree with O’Flaherty J.
2. On the second issue, as to whether the disciplinary provisions contained in Chapter IX of the bye-laws of the Institute involve the Disciplinary Committee in exercising a judicial function, contrary to the provisions of Article 34, s. 1 of Bunreacht na hEireann , I agree also with O’Flaherty J. that the distinguishing feature of the relationship between the Institute and the applicant is that it is based on contract, not on an Act of the Oireachtas, and that as a consequence the disciplinary provisions in this case are not contrary to Article 34, s. 1 of Bunreacht na hEireann .
However, the very facts which exclude the disciplinary provisions from being in contravention of Article 34, s. 1 are pertinent to the next issue (judicial review) and thus I consider them in some detail.
The seminal case, In re the Solicitors Act, 1954 [1960] I.R. 239, held that the Disciplinary Committee of the Law Society was exercising a judicial function pursuant to Article 34, s. 1 which could not be described as merely limited powers and functions of a judicial nature within the ambit of Article 37. In so determining Kingsmill Moore J., giving the judgment of the Supreme Court, distinguished that case from instances where the relationship between the parties was contractual stating, at p. 264:
“There is no question here of a domestic tribunal with a jurisdiction based solely on contract. Many bodies, such as clubs, trade unions, trade and professional associations, chartered or otherwise, admit members only on condition that they agree to abide by and be bound by a set of rules which confer on the body or a committee of the body the power to investigate the conduct of its members, and, if such conduct involves a breach of the rules or the code of behaviour required, to expel the offender. Such a jurisdiction does not gain its efficacy from any action of the State or the Legislature, and is not a diminution or devolution of the judicial power of the State – it rests on contract only.”
The above extract is obiter dicta in that the issue in that case related to a tribunal brought into existence by legislation; however, it is persuasive both in itself and also in that it follows a long line of common law. The law is clear that the contractual basis of the relationship between the parties takes this case into a jurisdictional area of its own. In the applicant’s situation there is no question of a delegation or devolution of the judicial power of the State by the Oireachtas to the Disciplinary Committee.
Even though the disciplinary process is based on contract there are two aspects of the situation which are important. First, the fact that the disciplinary procedure is grounded on the Charter. Secondly, the possible effect of a decision of the Institute on the applicant.
The Institute of Chartered Accountants in Ireland was incorporated by Royal Charter in 1888. It was amended by a Private Act of the Oireachtas entitled The Institute of Chartered Accountants in Ireland (Charter Amendment) Act, 1966. Inter alia, that Act provided:
“6. – Any bye-laws made by the Institute or any alteration or amendment thereof shall not have effect until they have been submitted to and allowed by the Government.
7.- Save as hereby amended the Charter shall be and remain in full force and effect.”
Thus, while the Oireachtas neither established the tribunal nor the relationship between the parties there is a nexus between the Government (through its legislative and executive arms) and the Institute. There is a link between the Institute and public power and within that a recognition of the place of the profession in the State. It is not the same situation as if the Institute were a sports or social club. Both in the objects of the Institute and in the procedure by which it was established and by which its rules are amended we see the public element.
The reasons stated for the Charter in 1888, which remain valid today, include:
“THAT the profession of Public Accountants in Ireland is an important one, and their functions are of great and increasing importance in respect of their employment under decrees in Chancery, in the winding-up of Companies, in Bankruptcies or Arrangements with Creditors, and in various positions of trust under Courts of Justice; as also in the auditing of the accounts of public companies and of partnerships and otherwise . . .
THAT it is obvious that to the due performance of a profession such as this, a liberal education is essential, and the objects of the Petitioners are to secure that education, and to maintain the efficiency as well as the respectability of the professional body in Ireland to which they belong.
THAT in the judgment of the Petitioners, it would greatly promote these objects, and would also be for the public benefit, if the Petitioners were incorporated by Charter, as, besides other advantages, such incorporation would be a public recognition of the importance of the profession, and would tend to gradually raise its character, and thus to secure for the community the existence of a class of persons well qualified to be employed in the responsible and difficult duties often devolving on Public Accountants.
THAT the said incorporation would not be for the purposes of gain, nor would the members thereof derive or seek any pecuniary profit from their membership, but the Petitioners aim at the elevation of the Profession of Public Accountants as a whole, and the promotion of their efficiency and usefulness by compelling the observance of strict rules of conduct as a condition of membership, and by setting up a high standard of professional and general education and knowledge and otherwise.
THAT the Petitioners further desire and propose that the Corporation should lay down such rules respecting admission to membership and exclusion therefrom as would prevent Public Accountants from mixing the pursuit of any other business with the discharge of the duties devolving on them as Public Accountants, and as would prevent the division of profits with persons in other professions or callings in the form of commission or the like.”
The long title to the Act of 1966 states:
“An Act to amend the Charter under which the Institute of Chartered Accountants in Ireland is incorporated so as to alter the Fellowship, the Annual General Meeting and the appointment of the Council and Secretary of the Institute and to confer power on the Institute to grant or join with similar bodies in granting diplomas, certificates and awards and for other purposes relating to the Institute.”
Of the recitals there were a number relevant to this case. The first stated:
“Whereas by a Charter or Letters Patent under the Great Seal of Ireland bearing date the 14th May, 1888 and granted by her late Majesty Queen Victoria certain persons therein named and such other persons as should thereafter be admitted to membership were incorporated into one body politic and corporate by the name of ‘The Institute of Chartered Accountants in Ireland’ for the purpose of securing a high standard of professional and general education and the efficiency and responsibility of those engaging in the profession of accountants in Ireland and the elevation of that profession as a whole.”
And the final recital stated:

“And Whereas the purposes aforesaid cannot be affected without the authority of the Oireachtas.”
I have already quoted ss. 6 and 7 in this judgment.
The fact that the incorporation is not for gain but rather to elevate the efficiency and usefulness of the profession is specifically recognised. The Charter was sought to bring the profession to a high standard for the benefit of the community.
Thus, the contractual relationship in this case is sourced in public actions and also the functions of the Institute are for the benefit of the community.
The effect of the decision of the Disciplinary Committee is important. In In re the Solicitors Act, 1954 [1960] I.R. 239, Kingsmill Moore J. stated at p. 275:
“It seems to the Court that the power to strike a solicitor off the roll is, when exercised, an administration of justice, both because the infliction of such a severe penalty on a citizen is a matter which calls for the exercise of the judicial power of the State and because to entrust such a power to persons other than judges is to interfere with the necessities of the proper administration of justice. . .
The powers and functions conferred by the Act on the Committee to which we have called attention are of such a far-reaching nature that their exercise amounts to an administration of justice, nor, for the reasons given earlier in this judgment, can they be described as merely limited powers and functions of a judicial nature within Article 37. Their exercise is unconstitutional.” [Emphasis added]
In cases which followed and analysed In re the Solicitors Act, 1954 [1960] I.R. 239, there was a strong emphasis on the effect which the decision of the relevant Disciplinary Committee might have on the person involved. In In re M. v. The Medical Council [1984] I.R. 485, Finlay P. (as he then was) pointed to the difference between the powers of the Disciplinary Committee in the Solicitors Act case and those before him, stating at p. 497:
“Neither the Committee nor the Council has any power to erase the name of a practitioner from the register, to suspend him from his practice, to attach conditions to the continuation of his practice, to make him pay compensation or to award costs against him. The only power vested in them in regard to any of these matters (other than the payment of compensation – which is not provided in the Act at all) is to initiate proceedings in the High Court which may lead to an order being made by that court in respect of any of those matters.”

In K. v. An Bord Altranais [1990] 2 I.R. 396, of a similar procedure established by statute for the nursing profession, Finlay C.J. stated at p. 403:
“The necessity for that procedure to vest that power unequivocally in the court, in my view, arises from the constitutional frailty that would attach to the delegation of any such power to a body which was not a court established under the Constitution, having regard to the decision of the former Supreme Court in In re the Solicitors Act, 1954 [1960] I.R. 239 . . .”
In re the Solicitors Act, 1954 [1960] I.R. 239 dealt with solicitors (who are officers of the Court) and a disciplinary procedure which had been established by an Act of the Oireachtas. While the powers of the Disciplinary Committee in this case relate to accountants and are founded on the Charter and are not delegated to them by legislation, the consequences for the accountant of an adverse hearing may be as profound as for the solicitor, doctor or nurse at their relevant Disciplinary Committee meeting.
In Keady v. The Commissioner of An Garda Siochana [1992] 2 I.R. 197 at p. 212, O’Flaherty J. distinguished In re The Solicitors Act, 1954 [1960] I.R. 239 and K. v. An Bord Altranais [1990] 2 I.R. 396, stating of the latter:
“That case was concerned with the taking away or the suspension of a professional qualification; it is to be distinguished from this case because while a garda who is dismissed loses his immediate employment he does not lose any qualification by virtue of his dismissal.”
The above distinction does not apply to the applicant who is a member of a profession. It is clear from the judgments in Keady v. The Commissioner of An Garda Siochana [1992] 2 I.R. 197 that the special role of the Garda Siochana within the community and the historical approach to internal police discipline were considered also.
The effect on the applicant of a hearing before the Disciplinary Committee may be very serious. The previously cited cases relating to the solicitors, doctors and nurses have some relevance. However, there are two differences. First, in this case, the disciplinary procedure is not founded on legislation, but rather on contract. Secondly, a person can hold themselves out to be an accountant and practice even if they are not members of this Institute. It is clear, however, that the applicant’s work could be very seriously limited by the decision of the tribunal, and thus I do not regard this second difference as a weighty factor.
Contract
The nature of the contract in this situation is important. If the applicant, or any other person, wishes to be recognised by the Institute they have no choice but must contract out of their right of access to the courts. He must agree, inter alia, that the Disciplinary Committee has jurisdiction over him. The applicant has only one way of entering this chartered profession and that is by agreeing to the contract. Thus for the applicant, he had no choice, it was a necessity to enter into the contract. The contract is a “form” contract and not specifically tailored for the applicant. A contract entered into in such circumstances must be considered carefully.
Contractual relationship
This is a domestic tribunal with a jurisdiction based on contract. However, (a) the public nature of the source of the Institute, (b) the function of the Institute and that of its members, and (c) the necessity on behalf of the applicant to enter a form contract to join the profession, which itself creates the consensual situation and the jurisdiction for the Institute, all bring this tribunal into the public domain.
Judicial review
The third issue for consideration is whether the activities of the Institute are of such a public nature as to be susceptible to the process of judicial review. The applicant commenced judicial review proceedings in this case in the High Court. On the question as to whether judicial review is an appropriate remedy in this case, the learned High Court judge said at p. 100:
“Whilst the Institute contends that judicial review is not an appropriate remedy to correct any actual or apprehended abuse of the powers exercisable by it, counsel on its behalf fairly and wisely recognised that it would not be in the interest of his clients or any of the other parties to rely on that argument or to insist upon some other procedure being adopted when that was not necessary for the proper presentation of the matter. That concession means that any comments which I make in relation to the appropriateness of the procedure adopted (and both parties were anxious that I would express my view on the matter) are necessarily obiter.”
After analysing the law the judgment concluded at p. 104:

“Whilst the activities of the Jockey Club in England (and the Turf Club in Ireland) relate to sport and to that extent are distinguishable from the affairs of the Institute of Chartered Accountants in Ireland, I believe that both in principle and in precedent the judgment of Barr J. in Murphy v. The Turf Club [1989] I.R. 171 and the decision of the Court of Appeal (affirming the decision of the Divisional Court of the Queen’s Bench division) are applicable to the present case. In my view the procedure of judicial review pursuant to O. 84 of the Rules of the Superior Courts, 1986, is not applicable to the affairs of the Institute of Chartered Accountants in Ireland.”
On appeal before this Court, the Institute submitted that the learned trial judge was correct in his view and emphasised that there is not sufficient public element in the affairs of the Institute to make it amenable to judicial review. The applicant, on the other hand, distinguished this case from those situations relating to sport and submitted that judicial review in the form set out in O. 84 of the Rules of the Superior Courts, 1986, did run to the Institute.
In view of the public nature of the source of the Institute, the functions of the Institute, and the nature of the contract between the applicant and the Institute, the subject of judicial review becomes part of the question of constitutional justice of the relationship. There are a number of important factors:
(1) This case relates to a major profession, important in the community, with a special connection to the judicial organ of Government in the courts in areas such as receivership, liquidation, examinership, as well as having special auditing responsibilities.
(2) The original source of the powers of the Institute is the Charter: through that and legislation and the procedure to alter and amend the bye-laws, the Institute has a nexus with two branches of the Government of the State.
(3) The functions of the Institute and its members come within the public domain of the State.
(4) The method by which the contractual relationship between the Institute and the applicant was created is an important factor as it was necessary for the individual to agree in a “form” contract to the disciplinary process to gain entrance to membership of the Institute.
(5) The consequences of the domestic tribunal’s decision may be very serious for a member.
(6) The proceedings before the Disciplinary Committee must be fair and in accordance with the principles of natural justice, it must act judicially.
In these circumstances, I am satisfied that a decision of the Disciplinary Committee may be the subject of judicial review pursuant to O. 84 of the Rules of the Superior Courts, 1986.
Conclusion
(1) The appeal against the findings of the learned High Court judge on the issues of the Charter should be dismissed.
(2) The findings of the High Court that the Disciplinary Committee was not exercising a judicial function contrary to the provisions of Article 34, s. 1 of the Bunreacht na hEireann should be upheld, with the qualification that the Institute and its Disciplinary Committee are within the public domain.
(3) In view of factors including the nature of the source of the Institute, the functions of the Institute and its members, and the method of establishing the contractual relationship with the applicant, the activities of the Institute are, in principle, susceptible to the process of judicial review.
Consequently, I would dismiss the appeal save in so far as determining that in law the activities of the Institute are susceptible to judicial review and that this was an appropriate case to be brought by way of judicial review.

James P. McCann v The Attorney General and The Racing Board

1977 No. 6281P

High Court

28 July 1982

[1983] I.L.R.M. 67
(Barron J)

2
BARRON J

delivered his judgment on 28 July 1982 saying: The plaintiff is a licensed bookmaker who seeks a declaration from the court that the revocation by the second named defendant of a course betting permit granted to the plaintiff by such defendant under the provisions of the Racing Board and Racecourses Act, 1945 was invalid. This permit was originally granted to the plaintiff on 26 April 1968. Thereafter at all material times the plaintiff engaged actively in his business as a bookmaker at most race meetings held throughout the country. In addition to operating in accordance with his course betting permit, the plaintiff also opened a betting shop and carried on as a bookmaker at greyhound track meetings. In addition he is and was a person with other business interests. He does not describe his occupation in the pleadings, but in the summons commencing these proceedings he is described as a publican.

The incident which gave rise to these proceedings occurred at Navan races on 24 November 1973. On that occasion, an official of the Racing Board complained to the plaintiff that the plaintiff’s clerk had entered two bets on a race card of the meeting instead of on the standard betting sheet. The plaintiff was asked to hand over this race card but refused to do so apparently on the ground that it was the property of his clerk and that he had no power to compel his clerk to hand it over to him. He was advised at the time that it was in his own interest to co-operate; that the matter would be reported to the Board; and that his permit would, at the very least, be suspended. The allegation being made against the plaintiff was that by permitting the bets to be recorded on the race card instead of on the betting sheet he was seeking to avoid the payment of the betting levy. The plaintiff was fully aware that this accusation was being made against him. However, he did not believe that anything serious would happen to him and thought that at worst he would have his course betting permit suspended for a short period. His attitude as expressed to the officials of the Board was ‘I will take my suspension if I have done anything wrong’.

The matter was reported to the Board. Following this report, the Board wrote to the plaintiff by letter dated 26 November 1973. The letter is as follows:

Racing Board and Racecourse Act 1945

Racecourse (Levy Collection) Regulations 1949

Dear Sir,

A report has been received from the Board’s authorised officer that at the Navan meeting held on the 24th instant you failed to enter on the Board’s standard book of betting sheets a number of bets for the fourth race and that instead he observed your clerk entering same on the race card of the meeting. The report further states that when the officer requested you to hand over to him the said race card of the meeting you refused to do so.

I am now to inform you that the authorised officer’s report will be placed before the Board at its next meeting which is scheduled to be held on 7 December next with a recommendation that your course betting permit Number 764 be revoked.

In this connection, any written representations you wish to make, if received before 4 December 1973 will be submitted to the Board for consideration. If instead of making written representations you wish to make oral representations, please let me know so that I may make the necessary arrangements.

Yours faithfully

This letter was replied to by the plaintiff’s solicitors Messrs McMahon, Russell and Co by letter dated 3 December 1973 addressed to the Secretary, The Racing Board, 9 Merrion Square, Dublin 2. It is as follows:

Dear Sir,

Your letter of the 26th instant addressed to Mr. James McCann, of 17 Beech Grove Park, Upper Knockbreda Road, Belfast 6, has been handed to us for attention.

Our client asks us to point out that the first intimation he had of this matter was when your representative asked him for his clerk’s racing card. The clerk then said the card was his personal property and refused to hand it over. Our client therefore did not feel that he could insist on this being done as it did not have anything to do with him.

As you are aware all bets must be entered in the Board’s standard book of betting sheets, and had the clerk written on this sheet our client could have ensured that it was handed over to your representative. He has however questioned his clerk with regard to the notes taken by him and the clerk has informed him that this was his own personal business. In these circumstances we do not see what our client can do to assist you in this matter. It does however seem to us that in these circumstances it would be unfair to penalise our client.

Yours faithfully

It was admitted on behalf of the plaintiff that this letter was intended to be a written submission as requested by the Board’s letter dated 26 November, 1973.

This submission was considered by the Board at a meeting held on 7 December 1973. Having considered the matter the Board decided to revoke the plaintiff’s course betting permit with effect from 18 December, 1973. Notification of the making of this order was given by letter by the Board both to the plaintiff’s solicitors and to the plaintiff. In accordance with the provisions of s. 24(3) of the Racing Board and Racecourses Act, 1945 the plaintiff was notified that he might within seven days of being so informed request the Board to afford him an opportunity of making representations to the Board in relation to the revocation of his permit. Following the receipt of these letters the plaintiff’s solicitors again wrote to the Board by letter dated 11 December 1973. The letter was as follows:

Dear Sirs,

We have your letter of the 7th instant with enclosures and note what you say.

We are instructed by our client to appeal against your decision in this matter on the grounds that the facts of this case do not warrant the action taken.

Pending the outcome of this appeal our client requests permission that his betting premises (sic) will continue in force.

Yours faithfully.

Following the receipt of this letter arrangements were made for a hearing of the appeal on 21 December 1973. The plaintiff indicated that he would be present at the hearing for the purpose of making oral representations on his own behalf. A full hearing of the matter took place on 21 December 1973 before the Board. The Board having heard the matter again confirmed the revocation of the course betting permit which had been granted to the plaintiff.

S. 24 of the Racing Board and Racecourses, Act 1945, so far as it is material to these proceedings is as follows:

1. The Board may, if in its absolute discretion it so thinks fit, grant to any licensed bookmaker a permit authorising him to carry on the business of a bookmaker at authorised race courses or in the precincts thereof.

2. The Board, in its absolute discretion, may at any time, suspend for such time as it thinks fit or revoke a course betting permit.

3. Whenever the Board in the exercise of its powers under this section, refuses to grant a course betting permit to a licensed bookmaker or suspends or revokes a course bettting permit held by a licensed bookmaker, the following provisions shall have effect:

(a) The Board shall inform the licensed bookmaker in writing of such refusal, suspension or revocation.

(b) A licensed bookmaker may, within seven days after being so informed, request the Board to afford him an opportunity of making to the Board, in relation to such refusal, suspension or revocation, representations, oral or written, and the Board shall grant any such request.

On behalf of the plaintiff it is submitted that the provisions of s. 24 are repugnant to the Constitution in that they purport to give power to the Board to administer justice in a criminal matter although the Board is not a court established as such under the Constitution. Next it is submitted that even if it is not a criminal matter, the Board is given power to administer justice in a matter in which its powers are not limited powers. Further it is submitted that the provisions of the section are repugnant to the Constitution in that they purport to give to the Board an unfettered discretion. In any event, the plaintiff claims to have been entitled to a hearing in accordance with the principles of natural justice before any order of revocation of the course betting permit was made and that he was denied such hearing. Finally, the plaintiff contends that the hearing of the appeal in accordance with the provision of the section was contrary to natural justice in that it was heard by the same body which had originally determined to revoke the permit.

In support of his arguments that the Board was administering justice counsel on behalf of the plaintiff relied on passages in the judgments of the Supreme Court in In Re Solicitors Act, 1954 [1960] IR 239 and McDonald v Bord na gCon [1965] IR 217. In his judgment in the Solicitors Act case Kingsmill-Moore J deals very fully with the question of what is the administration of justice. He says:

Eventually the question whether any particular tribunal is unconstitutional must depend on whether the congeries of the powers and functions conferred on the tribunal or any particular power or function is such as to involve the pronouncement of decisions, the making of orders, and the doing of acts, which on the true intendment of the Constitution are reserved to judges as being properly regarded as part of the administration of justice, and not of the limited character validated by Article 37 (at 264).

The learned judge then goes on to make an exhaustive review of the authorities and says:

From none of the pronouncements as to the nature of judicial power which have been quoted can a definition at once exhaustive and precise be extracted, and probably no such definition can be framed. The varieties and combinations of powers with which the legislature may equip a tribunal are infinite, and in each case the particular powers must be considered in their totality and separately to see if a tribunal so endowed is invested with powers of such nature and extent that their exercise is in effect administering that justice which appertains to the judicial organ, and which the Constitution indicates is properly entrusted only to judges (at 271).

From the cases referred to in his judgment and from the reasons given by the learned judge for holding that the powers granted to the solicitors’ disciplinary committee constituted the administration of justice, it is clear that the aspects which the Supreme Court regarded as material to its determination were:

The power to enforce the attendance of witnesses at hearings;

the power to compel production of documents;

the right to have orders enforced as if they were a judgment or order of the High Court; and the fact that questions which could arise before the Committee would be as contentious, as difficult, and as important as the questions which would arise before a Court trying a common law action for negligence or fraud.

The powers which the court had to consider in McDonald’s case were exercisable in circumstances very similar to those in which the powers impugned in the present case are exercisable. The Act in that case was the Greyhound Industry Act, 1958 and the interests of the greyhound industry may be regarded generally as being similar if not identical to the interests of the racing industry.

The Greyhound Industry Act provided inter alia for the making by the greyhound racing board of exclusion orders against persons whom the board considered ought not to be permitted to enter on to greyhound racing tracks. In McDonald v Bord na gCon [1965] IR 217 the plaintiff was the trainer of a greyhound who had been refused admission to a greyhound racing track and as against whom an exclusion order under the Act had been made. He commenced proceedings against the board for a declaration that the provisions of the Act which permitted the making of the exclusion order were repugnant to the provisions of the Constitution on the grounds that the power granted to the board was a judicial power.

Under the Greyhound Industry Act, where any complaint was made which could lead to an exclusion order, the Act provided that there should be an investigation of the occurrence concerned and that only after an investigation of the occurrence could the exclusion order be made. In the High Court, Kenny J said:

It seems to me that the administration of justice has these characteristic features:

1. A dispute or controversy as to the existence of legal rights or a violation of the law;

2. The determination or ascertainment of the rights of parties or the imposition or liabilities or the infliction of a penalty;

3. The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;

4. The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgment;

5. The making of an order by the court which as a matter of history is an order characteristic of courts in this country.

Applying this test to the powers of the board to make an exclusion order, Kenny J held that the power granted was a judicial power. In the Supreme Court, the judgment of the Court was delivered by Walsh J. The decision of Kenny J was reversed on the basis that the Supreme Court did not regard the powers exercised as being judicial powers. Walsh J said:

In the court’s view the bodies or persons conducting the investigations under s.43 or 44, while bound to act judicially, are not constituted judicial persons or bodies nor do they exercise powers of a judicial nature within the meaning of Article 37 of the Constitution. This is an essential difference between the judgment of this Court and the judgment of Mr. Justice Kenny. Accepting the characteristic features of a judicial body set out by Mr Justice Kenny these investigating authorities do not satisfy any of those requirements. In particular it is to be noted that the investigating authorities do not themselves by virtue of anything in s. 43 or 44 affect any right or impose any penalty or liability on any body. So far as the Board is concerned in the exercise of its powers under s. 47, or the club in the exercise of its powers under the section, they are not constituted judicial bodies or do not exercise powers of a judicial nature as they would only satisfy one of the tests referred to. In the opinion of the Court the submission that the Act in section 47 violates the provisions of Articles 34, 37 and 38 of the Constitution fails (at 244).

In the present case, the Racing Board and Racecourses Act, 1945 gives to the Board the power to regulate and administer the industry. By s. 24 it gives to the Board a power not only to suspend and revoke course betting permits, but also to grant those permits in the first place. There was no express provision for an investigation as there is under the 1958 Act, but nevertheless before any order is made under s. 24 some machinery must be adopted whereby the circumstances of a complaint can be brought before the Board for its decision. It seems to me that having regard to the similarity between the purposes of the two Acts and of the powers granted to the respective Boards that the nature of the powers in each instant is the same, and that since the powers granted under the 1958 Act have been regarded by the Supreme Court as administrative that I should so regard the powers granted to the Board in the present case. Whether I should do so or not on this basis, I am satisfied applying the propositions enunciated in the judgment of Kingsmill-Moore J in the Solicitors Act case that the powers granted to the Board are not such that one could say that, on the true intendment of the Constitution, they are reserved to judges as being properly regarded as part of the administration of justice.

Having taken this view of the nature or power granted, it is unnecessary to consider whether or not such powers and functions as are given to the Board were exercised in a criminal matter or may properly be regarded as being limited powers and functions.

It is next submitted on behalf of the plaintiff that the provisions of s. 24 of the Act are repugnant to the Constitution because they give an absolute discretion to the Board. By so doing, it is argued that the plaintiff is denied the right to fair procedures and that the Legislature has failed to vindicate the rights granted by Art. 40(3) of the Constitution and in particular his right to earn his livelihood. Following from this submission, it is argued that, even if fair procedures are required by the impugned section, no proper hearing of the complaint took place before the order was made, and the hearing by way of appeal against the original order was contrary to the principles of natural justice in that the Board by hearing an appeal from itself acted as a judge in its own cause.

These submissions are inter-related and must be taken together. I propose to consider first the nature of the power granted to the Board and the manner in which it was exercisable; secondly the manner in which the power was actually exercised; and thirdly whether this actual exercise offended against the guarantee of fair procedures. It is only in the case where the actual exercise of the power does not conform to the principle of fair procedures, and such exercise is authorised by the Act impugned that the person affected has locus standi to challenge the constitutionality of the Act.

The test to determine the basis upon which a plaintiff can challenge the constitutionality of an Act of the Oireachtas has been clearly set out by the Supreme Court in Cahill v Sutton, [1980] IR 269. At p. 286 Henchy J puts the text as follows:

A primary rule as to standing in constitutional matters is that the person challenging the constitutionality of the Statute, or some other person for whom he is deemed by the court to be entitled to speak, must be able to assert that, because of the alleged unconstitutionality, his or that other person’s interests have been adversely affected or stand in real or imminent danger of being adversely affected, by the operation of the Statute.

The section empowers the Board to act in the first instance in its absolute discretion. This is so whether the decision is to grant a permit or to suspend or revoke a permit already granted. Once it has so acted, the Board is required to give an opportunity to the person affected to make representations to the Board in relation to its prior decision. It is submitted that this is a denial of fair procedures since representations can only be made to the Board to seek a reversal of a decision already made. Whenever a statutory power is granted there is a presumption that it will be exercised in accordance with fair procedures. If there is any doubt in the construction of the Act as to whether or not fair procedures are to be allowed, there is a presumption that the Oireachtas intended that fair procedures should be exercised. In East Donegal Co-Operative Society Limited v Attorney General, [1970] IR 317 Walsh J in the course of his judgment said:

The presumption of constitutionality carries with it not only the presumption that the constitutional interpretation or construction is the one intended by the Oireachtas but also that the Oireachtas intended that proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed by an Act of the Oireachtas are to be conducted in accordance with the principles of constitutional justice (at 341).

In the same case at p. 343, Walsh J said:

All the powers granted to the Minister by s. 3 which are prefaced or followed by the words ‘at his discretion’ or ‘as he shall think proper’ or ‘if he so thinks fit’ are powers which may be exercised only within the boundaries of the stated objects of the Act; they are powers which cast upon the Minister the duty of acting fairly and judicially in accordance with the principles of constitutional justice, and they do not give him an absolute or an unqualified or an arbitrary power to grant or refuse at his will. Therefore, he is required to consider every case upon its own merits, to hear what the the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be thought to exist against the granting of a licence or for the refusal of a licence or for the attaching of conditions, or for the amendment or revocation of conditions which have already attached, as the case may be.

Finally in the same case at p. 347 Walsh J in deciding that the Act of the Oireachtas in that case did not breach the guarantee of fair procedures said:

The provisions indicate different procedural requirements, but they do not indicate that it is the clearly recognisable will of the Oireachtas that the Minister should be empowered to act in a manner contravening the provisions of the Constitution.

In the present instance, the power is being exercised in the context of an allegation of misconduct. It must a fortiori be exercised judicially. If the clearly recognisable will of the Oireachtas is that it need not necessarily be so exercised, then there is a denial of fair procedures. To find that this is so involves the construction of the section showing that the presumption of fair procedures has been rebutted. I do not consider that it is necessary to find an express provision to the contrary. If an inference to the contrary is the only reasonable inference which can be taken, then this would be sufficient. In the present case, if the Board is by implication obliged to make its decision after a fair hearing then there seems to be no logical reason why the section should require representations to be made a second time to the same body. In my view, the only reasonable inference which can be drawn from the manner in which the section is drafted is that the Legislature intended the Board, without hearing representations from the person against whom the allegation was made, to decide whether the matters alleged justified either suspension or revocation.

This need not itself be a denial of fair procedures. Provided that the ultimate decision of the Board after a fair hearing is made before the suspension or revocation of the permit takes effect, then it can be argued that the guarantee of fair procedures has not been denied: see the State (Duffy) v Minister for Defence Supreme Court 1979 No. 17 9 May 1979.

It is now necessary to consider the manner in which the Board actually acted. When the Board received the report from its official, it made the plaintiff aware of the allegation against him and gave him an opportunity to prepare and present his case. That he did so by means of a letter written by his solicitors was no fault of the Board. This method of making his representations arose from his mistaken belief that the matter was not serious. This written representation was considered by the Board before it made its decision. Once the decision was made, he was given an opportunity again to make representations. This he did in person. Again they were not accepted. In my view, this exercise by the Board of its powers was in accordance with fair procedures.

Accordingly, even if the plaintiff’s rights could have been adversely affected by the operation of the Statute, they were not so affected in practice. This being so, the plaintiff would have no locus standi to challenge the section.

The final submission made on behalf of the plaintiff is that the plaintiff was granted a right of appeal, and that this was denied to him because the appeal was heard by the same body which heard the complaint originally. In my view, this argument fails in the context of the present case. Under the section, the plaintiff was entitled to make representations to seek to influence the Board to reverse its decision. Under the guarantee of fair procedures, he was entitled to a fair hearing before any decision was reached. He was given this hearing, but was also given a second hearing by the same body as made the original decision. If the first hearing was valid, I can see no ground upon which further consideration of the matter, to which he was not entitled under the guarantee of fair procedures, should become an appeal which should have been heard by another body.

The attack here is essentially against the composition of the Board in the context of the matter with which it had to deal. This question has been dealt with by the Supreme Court In Re Solicitors Act, 1954 [1960] IR 239. At p. 272 Kingsmill-Moore J, said:

Adverse comment was made on these features at the hearing. It is true that in a hearing before the committee a solicitor will not have the protections he would receive in a court of justice. Complainant, tribunal and the person who conducts the complaint are inextricably interconnected. Moreover, the circumstances are such as to make it difficult for the tribunal to be impartial. In many cases the person against whom a complaint is made will be a solicitor with whom members of the tribunal have had professional dealings which may have predisposed them in his favour or against him. All the members are liable to contribute yearly to a compensation fund established under the Act to relieve or mitigate losses sustained in consequence of dishonesty of solicitors and the amount of such contribution may be increased if found necessary (ss. 69, 70) so that there might be a tendency to bear hardly on a solicitor charged with dishonesty. Although the character and standing of the members is such that they can be expected to resist and rise superior to any influences which might affect their impartiality, and it is not suggested that they do not so do, the tribunal is not constituted in a manner best calculated to provide a security against bias and partiality which a court of justice affords. In the opinion of the Court these considerations, though advanced by the appellants, are not in point. If the committee are not administering justice the Constitution imposes no restrictions on the composition of the body.

The Board in the present instance was exercising an administrative function even though in the particular instance this power had to be exercised judicially. Nevertheless, its composition could not be faulted. If it could have been, then all bodies entitled to exercise disciplinary powers in relation to complaints of misconduct brought before them would be acting in breach of the principles of natural justice. However, none of the cases support this proposition. O’Donoghue v Veterinary Council, [1975] IR 398 was a different situation. A member of the disciplinary tribunal hearing the complaint was also nominally a complainant.

To revert to the argument made, it seems to me that it is unreal. There was an appeal or review, whatever you wish to call it, provided for by the section. The Board itself considered that it was hearing an appeal. However, so far as the plaintiff is concerned, there can have been no appeal because he denies the right of the Board to act in the absence of a hearing and it is only by reason of a decision without a hearing that the section confers the right of appeal. In my view, he cannot now accept as valid what he previously alleged to be invalid for the purpose of making an argument which would not otherwise have been open to him. Even if I am wrong in this view, the plaintiff having regard to the passage which I have already cited in Cahill v Sutton would have no locus standi. I can see no reason why a fair hearing of a complaint of misconduct should be treated as being invalidated because that decision is reviewed by a further fair hearing held by the same body.

For these several reasons, I am of the opinion that the Plaintiff is not entitled to any of the relief he seeks.

The State (Michael McEldowney) v District Justice Humphrey Kelliher and the Attorney General

1981 No. 445SS

High Court

5 February 1982

[1982] I.L.R.M. 568
(Costello J)

 

delivered his judgment on 5 February 1982 saying: The prosecutor in these certiorari proceedings was the chairman of a committee which wished to collect money from the public and which, for this purpose, nominated him to apply under the provisions of the Street and House-to-House Collections Act, 1962 for a permit to allow this to be done. The application was, however, refused by the local chief superintendent, relying on s. 9(b) of the Act. Whilst it has not been explicitely so stated it is clear that the chief superintendent was of the opinion that the proceeds of the collection would be for the benefit of an organisation, membership of which is unlawful; and this was the reason for the refusal of the application, a reason which the sub-section permits as a ground for refusing a permit. The prosecutor appealed to the District Court against this refusal but the appeal was unsuccessful. It is hardly necessary for me to say that I am not concerned in these proceedings with how the proceeds of the proposed collection would be spent. What I have to consider is whether the order of the District Court disallowing the appeal was an invalid order which the High Court should quash. Four separate but related grounds based on the Constitution and one based on the common law rules of natural justice were advanced to support this application. In order to consider them I should firstly explain in some detail the relevant provisions of the 1962 Act.

The object of the Act is to regulate and control the collection of money from the public by means of collections in the public streets and other places and by means of collections in the course of house-to-house visits. Such collections, if not held in accordance with a permit issued under the Act, are illegal and punishable by a fine or imprisonment or both (ss. 3 and 25). The authority designated to grant collection permits is the chief superintendent in the locality in which the collection is to be held (s. 5). Subject to the provisions of the Act the chief superintendent must grant a permit to every person who has duly applied for one (s. 6). Provision is made when more than one application is made for a collection on the same day and wholly or partly in the same locality (s. 6 sub-s. 2), and there are three sections (s. 9, 10 and 11) which direct the chief superintendent to refuse the application in certain circumstances. S. 10 requires a refusal to applicants who have been convicted of certain offences and s. 11 requires a refusal to previous holders of permits who have failed, in the opinion of the chief superintendent, to exercise due diligence in previous collections in respect of certain matters set out in the section. S. 9 is the section with which we are primarily concerned in this case. It sets out six separate sub-heads under which a permit must be refused. Sub-s. (b) is the sub-section which contains the ground which is relevant in this case. It provides that a chief superintendent shall not grant a collection permit for any collection in respect of which he is of the opinion that

(b) The proceeds of the collection or any portion thereof would be for the benefit of an object which is unlawful or contrary to public morality or for the benefit of an organisation membership of which is unlawful.

The Act makes provision for an appeal in the event of a refusal of an application (s. 13). The appeal is to the District Court in the locality where the proposed collection is to be held and the court, by virtue of s. 13 sub-s. 1:

[If] satisfied that, having regard to all the circumstances of the case that the application should not have been refused,

may direct the chief superintendent to grant a collection permit with or without conditions as authorised by the Act. But this general jurisdiction conferred by sub-s. 1 to consider all the facts of the case and to decide whether the application should have been refused by the chief superintendent is qualified and severely restricted by the provisions of a later sub-section, sub-s. (4) which provides:

(4) Without prejudice to the jurisdiction of the District Court to disallow on other grounds an appeal under this section, an appeal under this section shall be disallowed (emphasis added), if, on the hearing thereof, a member of the Garda Siochana not below the rank of Inspector states on oath that he has reasonable grounds for believing that the proceeds or any portion of the proceeds of the collection to which the collection permit the subject of such appeal relates would be used

(a) for the benefit of an organisation membership of which is unlawful.

 

There can be no doubt as to the meaning of this sub-section. It imposes a mandatory obligation on the District Justice to disallow an appeal once the statement on oath referred to in it is given. It is this mandatory obligation which has been the subject of vigorous attack in these proceedings.

The provisions to which I have referred admit of the following observations:

(a) The Oireachtas, having concluded that collections from the public should be regulated and controlled by a permit system was under no obligation, constitutional or otherwise, to make provision for appeals when applications for permits were turned down. Had it so wished the Oireachts could have left the entire system in the hands of the local chief superintendent. Equally, the Oireachtas could have made a general provision for appeals but was at liberty to exempt from the appeal procedures certain specified applications, for example those refused on the grounds set out in s. 9(b). Furthermore the Oireachtas could have made provision for an appeal system entirely different to that contained in the Act of 1962, one in which, for example, the courts established under the Constitution played no part.

(b) Instead of expressly prohibiting appeals in cases of refusal under s. 9(b) the Oireachtas has made special provision for such cases. As I have already pointed out, the general rule is that the District Justice is to have regard to all the circumstances of the case and to satisfy himself whether the application should have been refused. But this is not the position when the statement on oath referred to in s. 13 sub-s. 4 is given. He then must dismiss the appeal. This is not quite the same thing as a prohibition on an appeal in s. 9(b) cases, but it is very close to it.

(c) In appeals in which s. 13 sub-s. 4 testimony is given evidence by the applicant to rebut it is entirely irrelevant. The mandatory nature of the requirement in the sub-section means that the District Justice has no jurisdiction to decide whether the opinion of the chief superintendent in refusing the application under s. 9(b) or the sworn testimony given under s. 13 sub-s.4 is factually correct. It is manifest that the District Court in disallowing an appeal under this sub-section is not adjudicating on any issue of fact in relation to the application which the applicant might wish to raise. In particular, he is not reaching any conclusion as to whether the ultimate recipient of the money to be collected is an organisation membership of which is unlawful. In making the order he is only doing what the Oireachtas has told him to do; that is, to disallow the appeal once the statement on oath referred to in the sub-section is given. (Parenthetically, it can be said that it is not difficult to see why the Oireachtas would have made this provision. The issue whether or not an organisation is an unlawful one or whether or not financial help is being given clandestinely to an unlawful organisation are issues which the Oireachtas obviously considered inappropriate for determination on an application for a collection permit).

I can now come to the criticisms made of the 1962 Act which have been very concisely made in Mr O’Reillys submissions to this Court. They are, as I have said, directed to the mandatory nature of the s. 13 sub-s. 4 procedures which I have just set out. The affidavit grounding this application sets out four separate grounds to support the contention that these procedures are constitutionally invalid and one ground based on the common law rules of natural justice. The constitutional points which have been raised are very closely interlinked and it will be convenient if I begin my examination of the issues which have been raised if I follow counsels lead and take grounds 1 and 2 together.

It is said that the appeal procedures contained in s. 13 sub-s. 4 are constitutionally invalid in that they amount to an interference by the State of the judicial power and an interference in the administration of justice and with the independence of the judiciary, contrary to the provisions of Art 6, 34 and 35 of the Constitution. In support of these submissions reliance is placed on the decisions and judgments in the well-known cases of Buckley v Attorney General and others (The Sinn Fein Funds case) [1950] IR 67 and Maher v Attorney General [1973] IR 140.

The Constitution adopts the well established political principle of the separation of the legislative, executive and judicial powers of Government. Although the Constitution makes it clear that the separation is not an absolute one it is equally clear that each organ of Government must take care not to encroach on an area in which another organ of Government has been given exclusive jurisdiction by the Constitution. An example of such an improper encroachment was to be found by the enactment by the Oireachtas of the Sinn Fein Funds Act, 1947. S. 10(2) of that Act purported to stay an action which was then pending in the High Court and required the High Court on the ex parte application of the Attorney General to dismiss it. The Supreme Court, in the Sinn Fein Funds case, declared these provisions constitutionally invalid. It pointed out that the effect of Art. 6, 34 to 37 was to vest in the courts the exclusive right to determine justiciable controversies; that by instituting proceedings before the High Court the plaintiffs were exercising a constitutional right and were entitled to have the matter in dispute determined by the High Court; and that the 1947 Act was an unwarrantable interference by the Oireachtas with the operation of the courts in a purely judicial domain. The interference in the judicial domain which was condemned in Mahers case was of a different kind. There the Oireachtas had made it an offence to drive your car with a concentration of alcohol in the blood-stream above a stated limit and went on to provide that a certificate given under the provisions of the Act would be conclusive evidence as to the concentration of alcohol stated in the certificate. It was this sub-section (sub-s. 42(2)(a)) which the Supreme Court held invalidly impinged on the judicial power of Government. It pointed out that the administration of justice in criminal matters was confined by the Constitution to the courts whose responsibility it is to determine all the essential ingredients of any offence charged against an accused person. Because the impugned sub-section purported to remove this power of determination from the courts it infringed the Constitution.

Obviously, by enacting the Street and House-to-House Collections Act, 1962 it has not acted as it did in the cases to which I have just referred. It has not interfered in the judicial domain by prohibiting the courts adjudication on a case pending before it (as it did in the Sinn Fein Funds case) or by removing from the court a power to determine an issue which the court is required by the Constitution to determine (Mahers case.) Here it has not directed how the court must determine an issue which it has jurisdiction to determine it has provided that in certain circumstances certain issues will not be justiciable by the court in appeals under the Act. The prosecutor in this case does not agree with the opinion given by the chief superintendent under s. 9(b) and is obviously aggrieved that the issue between himself and the chief superintendent cannot be determined by the District Justice on appeal. But the decision to remove from appeals under the Act questions of fact when refusals are based under s.9 (b) is a policy one which the Oireachtas was perfectly free to take and which is not open to challenge in this Court. When establishing a permit system under the 1962 Act the Oireachtas was free to decide who should be the issuing authority, the appropriate criteria to be applied in considering permit applications, whether or not to allow appeals from refusals to grant permits and what tribunal was to have appellate jurisdiction. It seems to me that having decided to give appellate jurisdiction to the District Court under the Act the Oireachtas was free to decide that certain questions of fact should be excluded from the appeals procedures it was enacting and that certain issues would not be justiciable by the court. By so deciding it was not interfering with the judicial power or with the administration of justice, it was merely limiting the jurisdiction which it was conferring on the District Court, as it was fully entitled to do.

The fact that the District Justice is required by law to make a mandatory order under s.14sub-s.3 does not by itself invalidate the sub-section. Recently the Supreme Court (The State (ORourke) v Kelly DJ) (supra) considered certain provisions of the Housing Act, 1966 dealing with the recovery of possession of local authority dwellings. When there is no tenancy in such dwellings (whether by reason of the termination of the tenancy on otherwise) the local authority may issue a demand for possession and may then apply to the District Court for an order for a warrant empowering the sherrif to put the local authority in possession of the dwelling. A mandatory obligation to issue the warrant was imposed on the District Justice once he is satisfied that the demand for possession had been made. This mandatory obligation was challenged as being an invasion of the judicial domain because it was said it deprived the District Justice of any real discretion in the matter. The Supreme Court dismissed this objection and held that the provisions were constitutionally valid. In the course of his judgment the Chief Justice (who delivered the judgment of the Court) said:

It will be seen that it is only when the provisions of sub-s. (1) have been complied with and the demand duly made to the satisfaction of the justice that he must issue the warrant. In other words, it is only following the establishment of specified matters that the sub-section operates. This is no different to many of the statutory provisions which on proof of certain matters make it mandatory on a court to make a specified order. Such legislative provisions are within the competence of the Oireachtas.

The prosecutor calls in aid as a third ground on which to base this application a principle of constitutional law established by Kenny J in Macauley v Minister for Posts and Telegraphs [1966] IR 345. The judgment in that case considered the Ministers and Secretaries Act, 1924 and the need contained in it to obtain the fiat of the Attorney General before instituting proceedings against a Minister of State. Kenny J dealt with the submission that a right to have recourse to the High Court to assert and vindicate a legal right was one of the personal unspecified rights which were guaranteed by Art. 40(3) (1) of the Constitution. He agreed with this submission and stated:

That there is a right to have recourse to the High Court to defend and vindicate a legal right and that it is one of the personal rights of the citizen included in the general guarantee in Art. 40 s. 3 seems to me to be a necessary inference from Art. 34 s. 3 sub-s (1) of the Constitution.

Although Kenny J explicitly referred to the right as a right to apply to the High Court it has not been suggested on the respondents behalf that the right is one which is limited to the High Court and I can proceed to consider this argument on the basis that one of the personal rights which the State guaranteed by its laws to respect and as far as practicable by its laws to defend and vindicate is the right to have recourse in appropriate cases to the District Court to defend or to vindicate a legal right.

What I now have to determine is whether or not the State in the circumstances of the present case has broken its guarantee. I do not think it has. It has not been suggested that the prosecutor enjoys any right by virtue of the Constitution to collect money from the public. His legal rights in connection with the collection of money from the public are to be found in the 1962 Act. There and only there will be found his legal rights in relation to applications for collection permits and his legal rights in relation to appeals. As I have already pointed out, he gets no legal right from this Statute to apply to the District Court in an appeal under the Act to determine an issue of fact as to the lawfulness of an organisation which is to benefit from a public collection if a permit is granted. If he does not enjoy the legal right then there has been no infringement of the guarantee in Art. 40(3)(1). It follows, therefore, that this ground of attack on the procedures set out in s. 13(4) of the 1962 Act fails.

This brings me to the last of the constitutional arguments which have been raised in this case. Based on the judgment of the Supreme Court in In re Haughey [1971] IR 217, Glover v BLN [1973] IR 425 and The State (Healy) v Donoghue [1976] IR 325 it is said that the prosecutor has a right conferred on him by the Constitution to fair procedures on the hearing of his appeal under the Act and this right was denied him by the provisions of s. 13(4). This denial arose, it is said, because the District Court did not determine the issue raised by the refusal of the chief superintendent of the prosecutors application it was decided by the chief superintendent himself once he gave the statement under oath referred to in the sub-section. The prosecutor, the argument runs, was entitled to have an impartial decision on this point and to have the dispute between himself and the chief superintendent decided in a judicial manner. This was denied him by the s. 13 (4) procedures which were, accordingly, unconstitutional.

To examine this argument I must briefly refer to the cases cited in support of it. In re Haughey was a case in which procedures adopted by a committee of Dail Eireann in relation to a witness summoned to appear before it fell for consideration. The Supreme Court held that the witnesss position before the committee was analogous to that of an accused person in High Court proceedings. The court examined the procedures which the committee proposed to adopt and concluded that because the witness would not be permitted to employ counsel to cross-examine witnesses and to address the committee in his defence the procedures proposed would not be fair ones and would breach the witnesss constitutional right to fair procedure, a right which, in the opinion of the majority of the court, was conferred by virtue of the provisions of Art. 40(3) of the Constitution. In Glovers case the right to fair procedures was further considered, this time in the context of the deliberations of a board of directors who dismissed the plaintiff, (a full-time salaried technical director), because of alleged misconduct. The Supreme Court, by a majority, held that the contract between the parties called for the holding of an enquiry by the board of directors into the allegations of misconduct and that there was an implied term in the agreement that fair procedures would be adopted in any enquiry held under it; that the procedures which were in fact adopted were not fair because the plaintiff was not told of the charges against him nor was he given an opportunity of dealing with them before the board arrived at its decision. The State (Healy) was a case which related to a criminal trial in which an accused was deprived of legal aid. The Supreme Court was required to consider the propriety of procedures adopted in the Disterict Court in adjudicating on the accuseds guilt. The Supreme Court held that there was a duty on the District Justice to adopt fair procedures in relation to the trial before him and that there had, in the circumstances of the particular case he was trying, been a breach of this duty.

In these three cases what was being considered was the actions of a decision-making tribunal (In Haughey, a Dail committee: in Glover a board of directors; in The State (Healy), a District Court) which had jurisdiction to determine an issue before it. What the court had to consider was (a) whether the tribunal had a duty to adopt fair procedures, (b) the nature of the fair procedures which in the light of the decision it was required to take it should adopt, and (c) whether it failed to adopt the appropriate procedures. In the present case once appellate jurisdiction is conferred by law on the District Court I have no doubt that it has a duty imposed on it by the Constitution to adopt fair procedures when exercising the jurisdiction the law has given it. But it seems to me that the criticism in this case is somewhat different to that advanced in the three cited cases. In this case the criticism is that the District Justice acted improperly not in the manner in which he personally conducted the appeal, but because the law required him to conduct the appeal in a certain way. Thus it is the law which is here challenged and not its administration, and it seems to me that the issue which is raised on the prosecutors behalf is that the Oireachtas has wrongfully inhibited the constitutional duty of the District Court to adopt fair procedures. But this seems to me to be the same argument which was propounded under an earlier ground but now in a different guise. In effect what is now being urged is that if an appeal is undertaken under s. 13 then the District Justice should be free to decide an issue of fact as to whether the chief superintendent was correct in the opinion he arrived at that the proceeds of a proposed collection would be for the benefit of an organisation membership of which is illegal. For reasons which I have already given, I have concluded that the Oireachtas was entitled to exclude that issue from the District Justices appellate jurisdiction if it so wished. In so doing it was not inhibiting the adoption by the District Justice of fair procedures in relation to an issue he was required to determine it was providing that the District Justice should not determine a particular issue. As neither the District Justice personally acted improperly in the manner in which he conducted the appeal and as the law was one which the Oieeachtas was free to enact it seems to me that the attack which I am now considering on the validity of the order must fail.

The final point which has been raised in these proceedings is based on one of the well-established principles of natural justice enshrined in the common law, nemo iudex in causa sua . This principle has been considered in recent years in the courts in this country in ODonoghue v Veterinary Council [1975] IR 398; in Corrigan v Irish Land Commission [1977] IR 317 and in OBrien v Bord na Mona and another on 18 March 1981 (unreported). What is contended for on the prosecutors behalf, is that the effect of s. 13(4) is to make the chief superintendent a judge in his own cause because in any dispute between an applicant and a chief superintendent as to the validity of an opinion given under s. 9(b) the matter may be determined by the chief superintendent himself (as happened in this case) when he gives the statement on oath referred to in the impugned sub-section.

The rule of natural justice on which the prosecutor relies is one which applies to every person or body exercising judicial or quasi judicial functions and it is obviously a rule which applies to a District Justice exercising appellate jurisdiction under the Act. The rule that a person shall not be a judge in his own cause means that a person who has a direct interest in the subject matter of an enquiry before an inferior tribunal cannot tak epart in adjudicating upon it. From the conclusions which I have already given as to the meaning and effect of the s.13(4) procedures it must follow that just as there is no constitutional impropriety in these procedures so no breach of the rule of natural justice I am now considering is involved. For reasons which I have already given there is no adjudication in the District Court of the supposed controversy between the Chief Superintendent and the applicant. Furthermore, it cannot be said that the Chief Superintendent has a direct interest in the subject matter before the District Justice by making the statement on oath permitted by the subsection he is acting as a public servant to protect the public interest as he sees it and not in a matter in which it can be said that he has a direct interest within the meaning of the rule.

For the reasons which I have given I must refuse this application. In doing so I have based my decision on the legal submissions made on the prosecutors behalf but I should make it clear that I have not ignored the procedural point taken by the respondents in their notice showing cause. In this notice it was suggested that it was not open to the prosecutor on an application for certiorari to challenge the constitutionality of sub-s. 13(4) or the procedures laid down in it and it was submitted at the hearing on their behalf that such a *577 challenge could only have been brought by means of a declaratory action. I do not think that this can be correct. There may be cases in which the court might in the exercise of its discretion decide that a point should be determined in an action rather than in a certiorari application. But I agree with the submissions made by Mr O’Reilly on the prosecutors behalf that there is nothing in the Rules of the Superior Courts which prohibits a prosecutor in certiorari proceedings from challenging the constitutional validity of a statutory provision and that order 60 rule 1 (which relates to the need to serve notice on the Attorney General when the constitutional validity of a law is challenged in any action or matter) implies that a constitutional issue can be raised in such proceedings. Finally I observe that such issues have for many years been raised in certiorari applications and that some of the most important points on constitutional law have been decided on such applications (see for example The State (Nicolau) v An Bord Uchtala [1966] IR 567; The State (Healy) v Donoghue [1976] IR 325; The State (OCallaghan) v O hUadhaigh [1977] IR 42.

Independent Newspapers of Ireland Ltd v Anderson

[2006] I.E.H.C. 6

JUDGMENT of Mr. Justice Clarke delivered 15th February, 2006.
1. Introduction
1.1 These proceedings relate to an order made by the respondent District Judge in the course of a criminal prosecution brought by and on behalf of the second named notice party (“The Director”). In those criminal proceedings the first named notice party is charged with the possession of images of child pornography contrary to the Child Trafficking and Pornography Act 1998.
1.2 On 4th July, 2003, when the case was first brought before the respondent District Judge, the first named notice party was remanded on bail and the District Judge further ordered that no publication of the identity of the first named notice party was to be made by the media and further that no information tending to identify the first named notice party was to be published by the media (“the restrictive orders”).
1.3 Subsequent to the making of the restrictive orders a hearing was arranged whereby submissions on behalf of the applicants could be made to the respondent District Judge seeking that the restrictive orders should be discharged. That hearing took place on 12th September, 2003. The respondent District Judge reserved his decision until 8th October, 2003 and on that date refused to vary his orders for the reasons set out in a transcript of his decision on that date (“the discharge refusal”).
1.4 The applicants are major publishers in the print and broadcast media and had joined together for the purposes of making the application to discharge to which I have referred. The applicants bring these proceedings before this court for the purposes of seeking an order quashing the restrictive orders of the respondent District Judge together with certain alternative orders to the like effect. Leave to seek judicial review was given by this court (O’Neill J.) on the 15th December, 2003. The first named notice party opposed the application. The Director adopted a neutral position.
2. The Facts
2.1 The first named notice party is a clergyman in the Church of Ireland. It would appear that in January 2002 his home and the church in which he worked were searched and a certain amount of material, principally computer equipment, was seized. A number of articles appeared in the media between that time and July 2003 when the first named notice party was charged with the offences to which I have referred. Articles appeared in the Star newspaper on 26th January, 2002 and 26th June, 2003. Furthermore articles appeared in the Phoenix magazine on 1st February, 2002 and 21st June, 2002. The articles concerned intimated that charges of the type ultimately brought were to be brought against an unnamed person. However details are given which would at least go some way towards identifying the first named notice party as the individual intended to be charged or, at a minimum, identifying the person to be charged as being one of a small group of persons of whom the first named notice party was one. In addition one of the articles in the Star newspaper appears to suggest that other charges involving indecent assault were to be brought against the same unnamed individual. No such charges have, in fact, been brought.
2.2 On 4th July, 2003 when the proceedings against the first named notice party were first before the District Court sitting in Portlaoise it would appear that there was a very significant media presence. It is contended by the first named notice party that at least some members of the media in attendance acted in a hostile and aggressive manner.
2.3 In all those circumstances it is said that the first named notice party feared that he would be the subject of grossly prejudicial, unfair and inaccurate media reporting from that time onwards. In those circumstances an application was made by counsel on behalf of the first named notice party to the respondent District Judge based upon the reporting which had taken place prior to the bringing of the charges and to which I have referred above.
2.4 While there was, in the course of the exchange of affidavits in these proceedings, some slight confusion as to the role played by the State Solicitor acting on behalf of the prosecution on the occasion in question, it is now clear, and I am satisfied, that that State Solicitor concerned confined himself to assisting the respondent District Judge by informing him of the principles applicable to the making of restrictive orders and, in particular, accurately informed the respondent District Judge that there was a jurisdiction to make such an order provided that the District Judge was satisfied that it was necessary to ensure a fair trial.
2.5 On the basis of the evidence before me I am also satisfied that the respondent District Judge expressed himself, on the 4th July, 2003, as being satisfied that it was necessary to make the orders sought in order to ensure a fair trial. He then proceeded to make the restrictive orders.
2.6 As pointed out above an application was then made on behalf of the applicants to discharge the restrictive orders which application was ruled on, on 8th October, 2003. From the transcript of that ruling it appears that, on that occasion, the respondent District Judge decided that:-
1. The proceedings on 4th July, 2003 did not amount to a trial process and that, accordingly, the principles set out by the Supreme Court in The Irish Times Limited and Others v. Ireland [1998] 1 IR 359 did not apply;
2. The first named notice party had a right to fair procedures, a right to face his accuser, a right to know the case made against him and the right to a good name, and these would be threatened if his identity or information tending to disclose his identity was published; and
3. The restrictive orders of the respondent District Judge of 4th July, 2003 were final orders and thus were not subject to being varied by the respondent District Judge other than within the confines of the same sitting of the District Court on 4th July, 2003.
In the light of those facts it is necessary to consider the legal principles applicable.

3. The Legal Principles
3.1 Article 34.1 of Bunreacht na hÉireann provides that:-
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public”.
3.2 In Re R Limited [1989] I.R. 126 the Supreme Court took the view that the provisions of Article 34.1 required that justice must be administered in public save where there was an express legislative exception to that rule. The judgment went on to note that any such express legislative exception should be strictly construed. In particular where the legislative prohibition was not absolute, but conferred a discretion on the court, that discretion should be only exercised where it could be shown:-
“That a public hearing of the whole or of that part of the proceedings which it is sought to have heard otherwise than in a public court, would fall short of doing justice”.
3.3 However in Irish Times Limited the Supreme Court recognised that, in addition to those cases which were covered by an express statutory provision, there were certain other limited circumstances where a court had a discretion to limit contemporaneous press reporting of a trial.
In the course of his judgment in Irish Times Limited O’Flaherty J. said, at p. 396:-
“The press are entitled to report, and the public to know, that the administration of justice is being conducted fairly and properly. This is not to satisfy any idle curiosity of the public. The public have both a right and responsibility to be kept informed of what happens in our courts. Since the proper administration of justice is of concern to everyone in the State, the press has a solemn duty to assure the public by fair, truthful and contemporaneous reporting of court proceedings whether or not justice is being administered in such a manner as to command the respect and the informed support of the public. As it was put by Fitzgerald J. in an Irish case of the last century, one of the many securities for the due administration of justice is “the great security of publicity”: R v. Gray (1865) 10 Cox C.C. 184 at p. 193.
In my judgment the blanket ban imposed by the trial judge went too far. It was not justified. It was in order to prevent what was only a possibility of harm though made, I have no doubt, from the best of motives. The risk that there will be some distortion in the reporting of cases from time to time must be run. The administration of justice must be neither hidden or silenced to eliminate such a possibility. The light must always be allowed shine on the administration of justice; that is the best guarantee for the survival of the fundamental freedoms of the people of any country”.
At p. 389 O’Flaherty J. went on to hold that:-
“Trial judges have tended on occasion to adopt an undue tenderness towards juries in this regard. If there is an inaccuracy as regards pending or current proceedings, or a slant is put on any case that is thought not to be fair to one party or another, then in most cases this can be put right by the trial judge giving an appropriate direction to the jury either in advance of or in the course of the case as required”.

3.4 Hamilton C.J., agreeing with the above observations, stated that he was:-
“Satisfied that there was no evidence before the learned Circuit Court judge which would justify him in holding that there was a real risk of an unfair trial if contemporaneous reporting of the trial was permitted. He was not entitled to assume that such reporting would be other than fair and accurate”.
3.5 Therefore it would appear that orders restricting the reporting of proceedings in court can only be made where:-
1. There is an express legislative provision to that effect; and
2. In the event that the relevant legislative provision contains a discretion, the court is satisfied that to have the case heard in public would fall short of doing justice; or
3. In the event that there is no express legislative provision the court is satisfied that
(a) there is a real risk of an unfair trial if the order is not made and
(b) the damage which would result from not making an order would not be capable of being remedied by the trial judge either by appropriate directions to the jury or otherwise.
3.6 Against those general principles it is necessary to consider the facts of the current case to which I now turn. For reasons which will become apparent it seems appropriate to consider first the reasoned decision of the respondent District Judge, delivered having heard argument from both sides.
4. Application of Legal Principles to the discharge refusal
4.1 The first question that needs to be addressed is the precise basis upon which the applicants are now prevented from publishing the identity of the first named notice party or material tending to identify him.
4.2 This issue is somewhat complicated by the fact that such limited evidence as there is concerning the basis on which the respondent District Judge made the original restrictive orders on 4th July seems to suggest that he, at least in general terms, was informed of the basic principles set out in Irish Times Limited and, it would appear, came to the view that that test was met.
4.3 However the reasons set out in his recorded judgment of the 8th October, 2003 do not appear to suggest that he was of the view that the Irish Times Limited principles applied. On the contrary the respondent District Judge would appear to have taken the view that those principles did not apply on the basis that the hearing on 4th July did not amount to part of the trial process. Because that decision was arrived at after hearing arguments from both sides it seems to me that I should first review the reasons given in that judgment for refusing to discharge the restrictive orders.
4.4 In respect of that aspect of the respondent District Judge’s view which found the Irish Times Limited principles did not apply, I am satisfied that the respondent was in error. Firstly it should be made clear that the provisions of Article 34.1 apply in equal measure to civil and criminal proceedings. The requirement that justice be administered in public applies, therefore, equally to any occasion when justice is being administered in the courts.
4.5 It is illustrative that in Re R. Limited was a hearing under s. 205 of the Companies Act 1963. Similar considerations arose in relation to proceedings under that section in Irish Press plc v. Ingersoll Irish Publications Limited [1994] I.R. 179. Other civil and judicial review proceedings were the subject of Roe v. BTSB [1996] 3 I.R. 67, Salinas de Gortari v. Smithwick [1999] 4 IR 223 and Re Ansbacher (Caymen) Limited [2002] 2 I.R. 517. It is manifestly clear that the strict limitation on restrictions on reporting imposed by Article 34.1 are, and have been, applied in respect of a whole range of different types of proceedings.
4.6 There is also ample authority for the proposition that a pre-trial hearing at which an accused person is remanded on bail amounts to the administration of justice as that term is used in the Constitution. The State (Lynch) v. Ballagh [1986] I.R. 203 and Glavin v. Governor of Mountjoy Prison [1991] 2 I.R. 421.
In Glavin Keane J. concluded at p. 439 that:-
“For so long as the Oireachtas considers it essential that persons accused of serious crime should be afforded the important protection of a preliminary hearing, both the prosecutor and the accused are entitled as a matter of constitutional right under Article 34 to a determination of the justicable controversy between them in a court established by law by a judge appointed in the manner provided by the Constitution”.
4.7 While the hearing before the respondent District Judge on 4th July was not, of course, a preliminary hearing of the type that Keane J. spoke of in Glavin it is clear that the question of bail was addressed. Walsh J. in State (Lynch) v. Ballagh classified the granting of bail as a judicial act and the comments of Keane J. in Glavin are therefore applicable.
4.8 In fairness it should also be noted that counsel for the first named notice party did not contest that the hearing on 4th July involved the administration of justice.
4.9 In all those circumstances it seems to me that Article 34.1 clearly applies to a hearing of the type which was conducted by the respondent District Judge on 4th July so that no restrictions were permitted to be imposed on the reporting on that hearing save in accordance with the proper exercise of a statutory jurisdiction or in accordance with the Irish Times Limited principles.
5. The Rights Properly taken into Account
5.1 The next matter that needs to be considered in detail is the question as to the precise rights of the applicant which are to be properly taken into account in considering whether to make an order restricting the reporting of the administration of justice. In Re Ansbacher (Caymen) Limited, in this court, McCracken J. expressly declined to hold that the undoubted right to privacy guaranteed by Article 40 or the right to a good name pursuant to Article 40.3.2 could give rise to an entitlement to anonymity in a court case. Such an entitlement was not, in the view of McCracken J. a practicable way for the State to defend and vindicate those rights. The only harmonious construction of those personal rights was, in the view of the court, that their exercise did not interfere with other constitutional requirements which were inserted for the public good. In those circumstances it was held that there was no harmonious construction of the Constitution whereby the applicants personal rights could be considered to give rise to any special or limited case prescribed by law as an exception to Article 34.1. In coming to that view McCracken J. placed reliance on Roe, Irish Times Limited and Salinas de Gortari. Similarly Kearns J. in Independent Star Limited v. Judge O’Connor [2002] 4 I.R. 166 at p. 176 noted that policy reasons cannot, as such, justify the imposition of a reporting restriction.
5.2 It seems to me clear, therefore, that in the absence of an express statutory limitation on reporting, the general constitutional discretion identified in the Irish Times Limited only applies to cases where it can properly be said, in accordance with the principles set out in that case, that the accused’s right to a fair trial may require the reporting restrictions. The undoubted effect which the public knowledge of the existence of criminal proceedings against an individual may have on certain other rights of such individual is not, on the basis of those authorities, a justification for departing from the clear constitutional imperative specified in Article 34.1 to the effect that justice must be administered in public.
5.3 To the extent, therefore, that the respondent District Judge would appear, in his judgment of 8th October, to have taken into account the fact that a public knowledge of the existence of the criminal charges against the first named notice party might affect his right to his good name (particularly if the proceedings never came to trial) he was clearly in error.
6. Jurisdiction to Vary
6.1 In Irish Times Limited at p. 400, Denham J. noted that representatives of the media were entitled to be heard in relation to the making of orders which would restrict the entitlement of the media generally to report on the administration of justice in court. The practical implementation of such an entitlement has the potential to give rise to some difficulty.
6.2 There will be many cases where there will be little point in imposing a reporting restriction after the event. Matters once reported upon cannot be unreported. It seems to me that the procedure adopted both in this case, and in other cases, whereby the judge concerned (having been persuaded that it is an appropriate case to impose reporting restrictions) makes an initial order imposing such restrictions without hearing representatives of the media but affords such representatives an opportunity to be heard thereafter meets the requirements identified by Denham J. in Irish Times Limited to afford media representatives an opportunity to be heard.
6.3 It does, however, follow that a court imposing a restrictive order in the absence of media representation is under an obligation to afford such representatives a reasonable and timely opportunity to be heard and, furthermore, that the court, having afforded such opportunity, must be entitled to come to a fresh view as to the appropriateness or otherwise of making the order concerned. In that regard it seems to me that such a situation would not differ significantly from a case in which the court, on the basis of hearing one side only, is persuaded to make an interim order for the purposes of preserving a situation, but is then required, at a later interlocutory stage, with all relevant parties having been given the opportunity to be heard on notice, to give a fresh consideration as to whether the interim order should continue.
6.4 There is nothing, in my view, inappropriate about a court making, in an appropriate case, an order on foot of the jurisdiction identified in Irish Times Limited without giving representatives of the media an opportunity to be heard, provided that the court is prepared to permit, at an early stage, the hearing of an application by relevant media organisations to discharge or vary such order and subject to the obligation of the court to consider the merits of the making of such order afresh in the event that such an application is brought.
6.5 As a process such as the above is necessary to ensure compliance with constitutional objectives it does not seem to me that any rule (such as that identified in Kennelly v. Cronin [2002] 4 IR 292) applicable generally to the varying of orders of the District Court could have any application in a case such as this.
6.6 Therefore I am also satisfied that the respondent District Court Judge was in error in coming to the view that he did not have a jurisdiction to vary.
6.7 It would, therefore, seem that each of the reasons given by the respondent District Judge on the 8th October were incorrect. He had a jurisdiction to vary. The Irish Times Limited principles were applicable. He was not entitled to take into the account the right to a good name.
6.8 However having regard to the fact that it would appear that the respondent District Judge did, at least to a limited extent, address the appropriate principles on 4th July and to the extent that there is, to some extent, at least a reference to the general principles applicable to a fair trial in the course of his judgment on 8th October, it seems to me that I should go on to consider whether it would have been open to the respondent District Judge to come to the view that the restrictions were necessary to secure a fair trial.
7. Application of Principles to the Restrictive Orders
7.1 This issue comes down to a question of whether, on the assumption that the respondent District Judge came to the view that orders which he made were necessary to secure a fair trial in accordance with Irish Times Limited principles, there was sufficient evidence to entitle him to come to such a view. That such evidence is a necessary pre-requisite to the making of the order can be seen from the passage of the judgment of Hamilton C.J. in the Irish Times Limited quoted above.
7.2 In this context it is important to note that in all of the identified not statutory categories of cases where reporting restrictions apply in the context of the criminal process it is the evidence given rather than the identity of the accused which is restricted from publication. The reasoning behind the relevant restrictions are clear.
7.3 In certain cases evidence will properly be given either at a preliminary stage or in the course of a trial, where a subsequent trial of the same or other individuals is contemplated, and where that evidence would not be material or admissible at a future trial. For example evidence of previous convictions may be highly relevant in a bail application but would not be admissible at the subsequent trial.
7.4 Similarly the very point of the trial of an issue as to whether an admission by an accused is admissible in evidence is to determine whether the jury should hear that evidence. The possibility that the alleged admission by the accused will not be admitted in evidence needs to be taken into account and in those circumstances it is clearly inappropriate that there should be any publicity given to evidence of the alleged admission, which evidence may ultimately be excluded from the substantive trial. The very purpose of the court directing, in an appropriate case, that two accused should be separately tried for the same or similar offences is because of the fact that evidence admissible against one may not be admissible against another and the view may be taken that excessive prejudice might be caused by a single trial. In those circumstances a reporting restriction may properly prevent publicity being given to evidence at the earlier trial which will not be presented at the second trial.
7.5 Without necessarily coming to the view that there could be no circumstances in which an order could be made under the Irish Times Limited principles directed solely at protecting the anonymity of an accused, the starting point of any consideration of this issue must be that all the known forms of such non statutory reporting restrictions are directed towards preventing publicity being given to evidence which might be properly placed before a court on one occasion but might not be admissible at a subsequent trial.
7.6 While there are, undoubtedly, a number of statutory restrictions on the reporting of the identity of accused persons (none of which are applicable on the facts of this case) it seems clear that all such restrictions are designed to protect the identity of victims rather than being designed to ensure a fair trial.
7.7 On the facts of this case there was evidence of adverse pre-charge publicity by two media organisations involving four separate publications. While there may well be legitimate questions to be asked as to how the relevant information came into the hands of the media organisations concerned and as to whether it may not be likely that some state agency must have been involved to some extent in facilitating that situation, I am persuaded that counsel for the applicants is correct when he says that a limited amount of pre-charge publicity by no more than two media organisations could not give rise to an assumption that general adverse post charge publicity will take place much of which would, if it were to occur, be in breach of the sub judice rule.
7.8 I am therefore satisfied that, as in the Irish Times Limited, there was insufficient evidence before the respondent District Judge which would have entitled him to take the view that permitting the identity of the first named respondent, as the person charged with the offences before the court, to be published, would lead to a real risk of an unfair trial such as could not be remedied by appropriate action taken by the trial judge.
7.9 If any restrictive order is justified under Irish Times Limited principles then, in order to amount to a justified interference with Article 34.1, such an order must, in my view, comply with principles analogous to those which have been developed under the doctrine of proportionality.
Such an order should, therefore:-
(i) be designed only to restrict the publication of material which, it is adjudged, would cause serious prejudice leading to a real risk to a fair trial; and
(ii) should do so in a manner which interferes as little as possible with the entitlement to report fully on all aspects of the administration of justice; and
(iii) should do so in a way which is proportionate.
7.10 Against such a test it seems to me that the restrictive orders in this case fail. The orders seem more designed to protect the anonymity of the first named notice party rather than preventing the publication of any material that would not be admissible at a trial and where publication might, therefore, be prejudicial to such trial. The orders of themselves do not prevent the publication of material which makes any accusations against the first named notice party but which do not specify that he stands charged with offences now before the courts. The jury at the trial will, of course, know the identity of the accused.
7.11 In those circumstances it would seem to me that the making of the restrictive orders on 4th July and, also and in particular, the refusal to revoke on 8th October was in excess of jurisdiction and should be quashed.
7.12 Finally I have to consider a technical question as to the precise order which is currently in force and binding. Since the events which have been described above the first named notice party has been returned for trial to the Circuit Court. It was, at one stage, suggested that the Circuit Judge had made a separate order restricting reporting. However I am now satisfied on the evidence that the only matter dealt with by the learned Circuit Judge was to indicate that the order of the respondent District Judge, which is under challenge in this case, was to continue pending trial. In those circumstances I am satisfied that the current order which restricts publication of the identity of the first named notice party is the order of the respondent District Judge. In those circumstances once such order is quashed, there will be no valid order in being which interferes with the ordinary fair and proper reporting of any aspect of the administration of justice in respect of the criminal charges still pending against the first named notice party.

Minister for Education and Science v Information Commissioner

[2008] I.E.H.C. 279

JUDGMENT of Mr. Justice Brian McGovern delivered on the 31st day of July, 2008

1. In these proceedings, the Minister appeals against the decision of the Information Commissioner (hereinafter referred to as “the Commissioner”) that a document known as Record No. 32 is not an “exempt record” within the meaning of the Freedom of Information Act 1997, and her construction of s. 19 (1) (a) and s. 19 (1) (c) thereof. The applicant submits that the respondent erred in law in concluding that Record No. 32 is not an “exempt record”.

2. The legislation provides that where a decision is made to refuse a request under the Act, this can be reviewed by the Commissioner, pursuant to s. 34 of the Act. The Act provides that a decision to refuse to grant a request,
“. . . shall be presumed not to have been justified unless the head concerned shows to the satisfaction of the Commissioner that the decision was justified.” See s. 34 (12) (b) of the 1997 Act.

3. Section 42 (1) of the Act, provides that a:
“ . . . party to a review under s. 34, or any other person affected by the decision of the Commissioner following such a review, may appeal to the High Court on a point of law from the decision.”
There are procedures in the Act which allow for the hearing to be in camera so as to avoid disclosure to the public of the documents until the matter has been decided. In this case the Court made such a ruling in view of the nature of the document being considered.

4. This case concerns “Record No. 32” which is a Draft Memorandum for Government, prepared in July 2001, which was not, in fact, submitted by the Minister to Government. Because the Memorandum was not sent to Government, the Commissioner took the view that s. 19 (1) (a) of the Act, did not apply to it. She also held that Record No. 32 was not “a record of the Government” so that s. 19 (1) (b) did not apply. In giving her reasons for her decision, the Commissioner also stated that she:
“…considered whether the Memorandum, as prepared, contains information (including advice in the form of a proposal and recommendation in his name) for a member of the Government, (the Minister) for use by him in such a way as would bring Record No. 32 within the scope of the exemption provided by s. 19 (1) (c) . . .”
Given that the Minister decided not to proceed on the basis of what had been prepared in the form of this record, he did not use the information (including advice) prepared for him, primarily for the purpose of the transaction of any business of the Government at a meeting of the Government. For that reason, she decided that Record No. 32 did not fall within section 19 (1) (c).

5. I propose to deal with s. 19 (1) (c) first. This provides that a head of a public body, as defined in the Act, shall refuse to grant a request under s. 7, if the record concerned:-

“(c) Contains information (including advice) for a member of the Government, the Attorney General, a Minister of State, the Secretary to the Government, or the Assistant Secretary to the Government, for use by him or her, primarily for the purpose of the transaction of any business of the Government at a meeting of the Government”.

6. The Commissioner complains that the applicant made no argument to her, based on s. 19 (1) (c), but confined his arguments to s. 19 (1) (a). This, indeed, appears to be the case. Accordingly, the Commissioner argues that the applicant should not be permitted to make submissions in his appeal against her decision, based on section 19 (1) (c).

7. The court should be slow to admit a new argument not advanced before the Commissioner. In the area of criminal law, the Court of Criminal Appeal has repeatedly stated that it will be reluctant to entertain arguments on appeal which were not made at the original trial. In William James Murray v. the Trustees and the Administrators of the Irish Airlines (General Employees) Superannuation Scheme [2007] 2 ILRM 196, Kelly J. refused to allow additional evidence where the parties seeking to adduce the evidence made submissions to the Pensions Ombudsman on two occasions and never sought to introduce that evidence which was available. Although the case concerns evidence and not legal arguments or submissions, it is of some general relevance to the Commissioner’s argument. In South Western Area Health Board .v. Information Commissioner [2005] 2 I.R. 527, the issue of whether or not the High Court could entertain a point on appeal that was not raised before the Commissioner during the course of review was the subject of comment. Smyth J. said:
“… it would be wholly unsatisfactory that a decision on appeal should be made without the matter having first been raised before the Commissioner.

In my judgment the Commissioner was correct in his submissions that it was undesirable that as a matter of policy that a party in the position of the appellant would not advance all relevant arguments to the Commissioner in the first instance.”
If no submission was made by the Minister to the Commissioner that the records were exempt, pursuant to s. 19 (1) (c), it is difficult to see why the Minister should be permitted to make such an argument in this appeal, unless it could be shown that there was some public policy or constitutional issue to be protected. If the matter can be dealt with by reference to s. 19 (1) (a), which was raised both before the Commissioner and on this appeal, then this would seem to be the proper way of disposing of the matter.

8. For the reasons which I will set out below, I am satisfied that this matter can be dealt with on the basis of s. 19 (1) (a) and I propose dealing with it on that basis.

9. Section 19 (1) (a) states:
“(1) A head shall refuse to grant a request under section 7 if the record concerned –
(a) has been, or is proposed to be, submitted to the Government for their consideration by a Minister of the Government or the Attorney General, and was created for that purpose . . .”

10. The Commissioner, in her decision, stated:

“Record No. 32 is a Draft Memorandum for Government, prepared in July 2001, which was not submitted by the Minister to the Government. I am satisfied, from the content that this is not a preliminary or other draft of ‘Final’ memoranda for Government, which was sent later. Indeed, it is clear from the record, that the material and recommendations in this Memorandum were never submitted to the Government for consideration. Therefore, I do not believe that section 19 (1) (a) can apply to it . . .”

11. The appellant says that this decision is flawed in two respects:

(i) It appears to determine the issue on the basis that the Memorandum was not sent and therefore does not qualify for exemption. The Commissioner failed to consider the alternative ground, namely, whether it was proposed to be submitted to Government.

(ii) The reference to “Final Memoranda” is perplexing and irrelevant because this is not a criterion under the section of the Act.

12. Record 114, is a Memorandum for Government from the Minister, dated 31st May, 2002. This was for the purpose of putting before Cabinet the agreement with religious congregation on their contribution to the Residential Institutions Redress Scheme. It appears that this matter was put before Cabinet. The Commissioner, therefore, found the Memorandum for Government to be exempt under section 19 (1) (a).

13. In Case No. 03622 – Deputy Fergus O’Dowd v. Department of the Environment, Heritage and Local Government, a member of the Oireachtas requested records relating to drafts of the National Spatial Strategy. The Department refused the request under s. 19. The records at issue included Government Memoranda and other submissions, records that contributed to drafts which were submitted to the Government, records of the Government, briefing material, notes of a discussion at a Government meeting, records relating to the Inter-Departmental Steering Committee, and records of communication between members of the Government. In the decision, the Commissioner accepted that, while not all of the Memoranda for Government were actually submitted to the Government, all of the documents were at least proposed to be submitted to the Government and were created for that purpose. She therefore found the Memoranda for Government to be exempt under s. 19 (1) (a).

In Case No. 99450 – Mr. X. and the Department of Justice, Equality and Law Reform, the Commissioner accepted that the Drafts of a Memorandum for Government satisfied the provisions of s. 19 (1) (a), which also provides that a “record” includes a preliminary or other draft of the whole or part of the material contained in the record. In that decision, it is stated:

“More significantly, the Commissioner found that the draft and final version of the Minister for Finance’s observations on the Draft Memorandum, also met the provisions of section 19 (1) (a). In doing so, the Commissioner attached a considerable importance to the facts that these were the Minister’s views, or at least a draft of what the Minister’s views would possibly be.”

14. I accept the jurisprudence concerning the 1997 Act, which is set out in the cases of Sheedy v. Information Commissioner [2005] 2 I.R. 270, and McKay v. Information Commissioner [2006] 2 IR 260. In the Sheedy case, reference was made to the High Court decisions of The Minister for Agriculture and Food v. Information Commissioner [2000] 1 I.R. 309, and Deely v. Information Commissioner [2001] 3 IR 439. These decisions establish that the Act provides that it was the intention of the Oireachtas that it is only in exceptional cases that members of the public should be deprived of access to information in the possession of public bodies. It is clear that the legislation operates on the basis that a decision to refuse to grant a request is to be presumed by the Commissioner not to have been justified.

15. When one looks at Record No. 32, it is clear that it is a “Memorandum for Government” dated July 2001, prepared by the Minister for Education and Science, and it is for the purpose of discussing at Cabinet the contribution of congregations to the Redress Scheme for victims of institutional child abuse. It is accepted by both parties to the appeal that this was never sent.

16. The Commissioner held that the Department was entitled to refuse access to Record No. 114, which is a Memorandum for Government, dated 31st May, 2002, from the Minister for Education and Science. This was for the purpose of discussing at Cabinet an agreement with religious congregations on their contribution to the Residential Institutions Redress Scheme. It is alleged by the appellant that there is an inconsistency in the decision of the Commissioner to refuse access to Record No. 114, but at the same time, allow access to Record No. 32. It is also alleged that the decision of the Commissioner on Record No. 32 is inconsistent with the decisions made in the O’Dowd case and Mr. X case.

17. Although the appellant says there is no ambiguity in s. 19, it is argued that if there is an ambiguity, the court should give a purposive interpretation to the section. It seems to me that this is correct. The appellant argues that the Commissioner misconstrued the word “or” in s. 19 (1) (a), and failed to read the clauses “has been” and “is proposed to be” in a disjunctive manner. She construed the sub-section in a manner that limited the exemption to documents actually submitted to Government. If one reads the clauses “has been” and “is proposed to be” in a disjunctive manner, and in the light of the objects of the Act, it is argued that the document was clearly proposed to be submitted to Government and was “created for that purpose”. The appellant argues that it is irrelevant that the document was not, in fact, submitted to Cabinet.

18. Looking at Record No. 32, it is clear that it contains reference to negotiations between the Government and religious institutions on a scheme of contribution to the Residential Institutions Redress Scheme. Record No. 114, deals with the same subject matter, except that events had moved on to the point where an agreement had now been reached and this was to be formally put to Cabinet. Within Record No. 32, the Minister expresses views and discusses the likely result of rejection of the proposal by Government. In my view, this was the type of matter that was intended to be captured by s. 19 of the Act, and in particular, section 19 (1) (a).

19. I am quite satisfied that the evidence establishes that the Memorandum was, at the time of its preparation, prepared and created for the purpose of submitting it to Government. In the circumstances, it is, in my view, captured by s. 19 (1) (a) of the Act. This would rebut any presumption arising by virtue of section 34. Furthermore, if a record comes within the ambit of s. 19, the “head” is required to refuse a request made under section 7. If a document containing the Minister’s advice to Government on an issue such as this, can be disclosed merely because it was not ultimately submitted to Cabinet, it would, in my view, totally undermine the position of the Minister concerned, and would have serious implications for Government. A Minister must be entitled to commit his views and recommendations to a document intended to be submitted to Government, without those views subsequently getting into the public domain, merely because the matter was not submitted due to the manner in which circumstances evolved. In Attorney General v. Hamilton [1993] 2 I.R. 250 Finlay C.J. referred to Articles 28.4.1 and 28.4.2 of the Constitution observing that these Articles “impose upon members of the Government separate though clearly related obligations and these are:

(1) They must meet as a collective authority.

(2) They must act as a collective authority.

(3) They must be collectively responsible for all the Departments of State and not merely the one which each of them administers.

(4) They have as a Government a responsibility to Dáil Éireann.” (ibid 266)
He went on to state that:
“That these obligations involve some obvious, necessary, consequential duties:

The first of those relevant to the issues arising in this appeal is the necessity for full, free and frank discussions between the members of the Government prior to the making of decisions, something which would appear to be an inevitable adjunct to the obligation to meet collectively and to act collectively. The obligation to act collectively must, of necessity, involve the making of a single decision on any issue, whether it is arrived at unanimously or by a majority. The obligation to accept collective responsibility for decisions and, presumably, for acts of Government, involves, as a necessity, the non-disclosure of different or dissenting views held by the members of the Government prior to the making of decisions.”
Section 19 of the 1997 Act (as amended) can most readily be understood in the context of that decision.

20. I am satisfied that, on the basis of this particular case, the original refusal to grant the request under s.7 of the Act was correct. Accordingly, I hold that the Commissioner erred in law in the manner in which she interpreted s. 19 (1) (a) of the Act, and applied it to Record No. 32.

Roe v. Blood Transfusion Service Board and Ors.

[1996] 1 I.L.R.M. 555
Laffoy J
In these proceedings, the plaintiff claims damages for disability, personal injuries, loss, damage and expense which she alleges she sustained and incurred by reason of the wrongdoing of the defendants whom she alleges, in broad terms, were responsible for her being treated with infected anti-D immunoglobulin in consequence of which she has contracted the hepatitis C virus.

In her statement of claim delivered on 28 July 1995 the plaintiff pleaded that, for the purposes of these proceedings, she has adopted the name ‘Bridget M. Roe’ and that her address, for the purposes for these proceedings, is care of her solicitors, Ivor Fitzpatrick & Co., Pepper Cannister House, Mount Street Crescent, Dublin 2. In its defence, the first named defendant has pleaded that it does not admit that these proceedings are properly constituted. In their defence, the second, fourth and fifth named defendants have pleaded that the plaintiff is not entitled for the purposes of these proceedings to adopt the name Bridget M. Roe, or any assumed name, and in consequence these proceedings are not properly constituted. The third named defendant does not object to the plaintiff prosecuting these proceedings under an assumed name.

By motion on notice to the defendants the plaintiff has sought an order *558 permitting the plaintiff to maintain these proceedings using the alias ‘Bridget M. Roe’. The application is grounded on the affidavit of the plaintiff’s solicitor, Susan R. Stapleton, in which Ms Stapleton avers that the plaintiff wishes to maintain the action using an alias because she desires to protect her privacy, that the protection of her privacy in the proceedings is not merely a matter of preventing embarrassment to her, but is a matter of preventing real injustice to her. Ms Stapleton further avers that from her experience of dealing with the plaintiff’s case and a large number of other similar cases, she is aware that persons who are known in the community to carry the hepatitis C virus are subject to invidious discrimination. Many women, she avers, have found that when neighbours and friends become aware of their infection, both they and their children can become socially ostracised.

The true identity of the plaintiff and her own home address have been disclosed to all the defendants in the proceedings, as has a considerable body of personal information relating to the plaintiff and her family. In Ms Stapleton’s affidavit there are exhibited copies of two letters dated 27 September 1995 to the solicitors for the defendants, other than the third named defendant, which disclose the plaintiff’s name and her address. Accordingly, the plaintiff’s true identity and her address are on the record of this Court. Counsel for the plaintiff acknowledges that the trial of the plaintiff’s action will have to be held in public and that the plaintiff will have to give oral testimony in open court. All she seeks is to be allowed to prosecute this litigation anonymously using an alias.

Article 34.1 of the Constitution provides:

Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public.

The rationale underlying Article 34.1 was explained in the following passage from the judgment of Walsh J In re R. Ltd [1989] IR 126 at p. 134; [1989] ILRM 757 at pp. 763–764:

The issue before this Court touches a fundamental principle of the administration of justice in a democratic state, namely the administration of justice in public. Article 34 of the Constitution provides that justice shall be administered in courts established by law and shall be administered in public save in such special and limited cases as may be prescribed by law. The actual presence of the public is never necessary but the administration of justice in public does require that the doors of the courts must be open so that members of the general public may come and see for themselves that justice is done. It is in no way necessary that the members of the public to whom the courts are open should themselves have any particular interest in the cases or that they should have any business in the courts. Justice is administered in public on behalf of all of the inhabitants of the State.

 

The Supreme Court held in In re R. Ltd that the expression ‘prescribed by law’ in Article 34.1, means prescribed by a law enacted, or re-enacted, or applied by a law enacted by the Oireachtas subsequent to the coming into force of the Constitution. The Constitution removed any judicial discretion to have proceedings heard other than in public save where expressly conferred by statute.

S. 45 of the Courts (Supplemental Provisions) Act 1961 and certain other statutory provisions permit the administration of justice otherwise than in public. It is common case that the plaintiff’s case does not fall within any of these statutory provisions.

It was submitted on behalf of the plaintiff that Article 34.1 of the Constitution is not an impediment to granting the relief sought by the plaintiff. The plaintiff is not seeking a hearing other than a public. It was urged that this Court should follow the practice adopted by courts of the United States of America which have allowed plaintiffs under certain special circumstances to use fictitious names. In particular, counsel relied on the decision of the United States District Court for the District of Montana, Missoula Division, delivered on 3 November 1974 in Doe v. Deschamps, 64 FRD 652 and the decision of the United States Court of Appeals, 5th Circuit, delivered on 30 July 1979 in Southern Methodist University Association of Women Law Students v. Wynne, 599 F. 2d 707.

The plaintiff’s stated objective in seeking to prosecute these proceedings under a fictitious name is to keep her identity out of the public domain. In my view, in the context of the underlying rationale of Article 34.1, the public disclosure of the true identities of parties to civil litigation is essential if justice is to be administered in public. In a situation in which the true identity of a plaintiff in a civil action is known to the parties to the action and to the court but is concealed from the public, members of the general public cannot see for themselves that justice is done.

The issue which arises here was considered by this Court on an ex parte application made by an unnamed claimant in a matter which, for the purposes of the ex parte application, was entitled Claimant v. Board of St. James’ Hospital. Hamilton P, when he was President of the High Court, ruled on the ex parte application on 10 May 1989 and a copy of the transcript of his ex tempore judgment is available. In that case, the application was made by counsel appearing on behalf of a number of citizens who were haemophiliacs and who alleged that they had been infected by the HIV virus as a result of blood products which were supplied to them or approved for supply to them. The application was for liberty to issue a plenary summons and serve a statement of claim against the intended defendants without disclosing the name and address of the plaintiff. It was acknowledged by counsel for the applicants that the hearing of the intended actions would have to be in public and that interlocutory applications in connection with the intended action would have to be heard in public. In his judgment, Hamilton P, refusing the application, stated as follows:

As I say, Article 34 of the Constitution is quite specific, it is mandatory. It says that justice shall be administered in public and having regard to the statement of the Chief Justice and Walsh J, that proceedings include pleadings, affidavits, exhibits, as well as oral testimony, I can find nothing in the law or in any of the Rules of Court which would permit me to accede to this application and consequently I have no alternative but to refuse it.

In substance, the plaintiff’s application is identical to the application refused by Hamilton P on 10 May 1989. I respectfully agree with the conclusion of Hamilton P. I consider that this Court has no jurisdiction to allow the plaintiff to prosecute these proceedings using a fictitious name and to purport to do so would contravene Article 34.1 of the Constitution.

Accordingly, I refuse the application.

Michael Oates v Judge Geoffrey Browne

420/2010

Supreme Court

29 February 2016

unreported
[2016] IESC 7
Mr. Justice Hardiman

February 29, 2016

JUDGMENT
1. This is the appeal of the applicant/appellant from the judgment and order of the High Court (Mr. Justice Charleton) of 11th November, 2010. The High Court dismissed the applicant’s application for an order quashing his conviction dated the 5th June, 2009 for an offence contrary to s. 49(4) and (6)(a) of the Road Traffic Act, 1961 as inserted by s.10 of the Road Traffic Act 1994.

Nature of the offence alleged and the defendant’s application.
2. The applicant was charged that, on the 21st July, 2008 at Elphin, Roscommon, “he drove a mechanically propelled vehicle in a public place while there was present in his body a quantity of alcohol such that within three hours after so driving the concentration of alcohol in his breath exceeded a concentration of 35 microgrammes of alcohol per 100 millilitres of breath”, contrary to the statutory provisions set out above.

This offence is sometimes referred to as “drunken driving”, and is so described in the judgment of the learned trial judge. But it is not now (or for nearly forty years) necessary to prove that the person charged with it was in any ordinary sense of the term “drunk” or “incapable of having proper control” of his or her vehicle. This latter proof was required by s.49 of the Road Traffic Act 1961, as originally enacted. This latter Section has been repealed by s.33 of the Road Traffic Act 2010 but its effect is re-enacted, with modernisations, by s.4 of that same Act. However, the old offence of driving while “incapable of having proper control” of a vehicle is rarely or never used, having been superseded, first in 1968, by provision for blood or urine testing and in 1994 by an additional provision for evidential breath testing.

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A note on Statutes.
The statutory provisions about drink driving offences are needlessly complex and confusing. There are a number of reasons for this. One is the tendency to repeal a provision in a statute by a later Act, which later Act however contains elsewhere a provision substantially re-enacting the repealed provision in the same words or in substance. This happened in relation to the old s.49 offence, repealed and re-enacted by Sections 33 and 4 of the Act of 2010 respectively. Another reason for needless complexity and confusion is the draftsman’s fondness for introducing an entirely new provision by amendment or substitution of a previous provision rather than starting afresh with a new Section. There is also a tendency to repeal or amend a provision by a later provision, but not to bring the later provision into force. This makes the Statute book positively misleading.

The effect of all this is to make statutory provisions extremely difficult for a layman to access, and to understand which of the myriad statutory provisions on any particular subject represent the present law or the law as it was at any particular past time. This tends to make a nonsense of the important legal principle that everyone is deemed to know the law. For example, it would be best tolerably easy for a dedicated lay person to establish that s.49 of the 1961 Act, after a number of substitutions, has been definitively repealed by the Road Traffic Act, 2010. But this exercise would not inform him that it has been in substance re-enacted and modernised by a different Section of the same Act.

This complexity is by no means limited to Road Traffic Statutes but is to be found, notoriously, in Planning and Tax statutes. As we shall see later in this judgment, it is also to be found in Freedom of Information legislation.

In an attempt to mitigate the confusion caused by these arcane drafting practices, I have set out in Appendix A to this judgment the evolution of the statutory formulations in the Road Traffic Acts of the offence originally constituted by s.49 of the Road Traffic Act 1961 and of the offence originally constituted by s.29 of the Road Traffic Act 1968 (the original excess alcohol in blood or urine offence)

In Appendix B I have set out the evolution of the statutory right to be given a portion of a sample of blood or urine where required under the Road Traffic Acts. This right has existed continuously since the introduction of the mandatory provision of bodily substances for testing in 1968.

In Appendix C I have set out some of the important statutory provisions, applicable in 2008, which are cited in this judgment.

In constructing these appendices I have concentrated narrowly on the subjects indicated above and have left out, accordingly, all mention of other topics and any amendments which are irrelevant to the main point, for example because they relate merely to penalties or to matters of evidence.

As Appendix A shows, the original form of the charge has long been very largely superseded, first by the Road Traffic Act, 1968 (by the creation of an offence of driving with more than a certain quantity of alcohol in the blood or urine). More recently this once novel system was itself largely superseded (by the Road Traffic Act 1994, not widely used for some years thereafter) by the creation of an offence of driving with an excessive quantity of alcohol in the breath. The gardaí retain the power, at their exclusive option. to require a specimen of blood or urine, rather than breath, but this is seldom exercised, and in practice is exercised only where there is some problem with the analysis of breath specimens, from the point of view of the gardaí.

The breath specimen used in court is called an “evidential breath specimen” and is taken and analysed in a Garda Station, and must be distinguished from the “preliminary” or roadside breath specimen, which is used for screening purposes only.

Independent Analysis.
3. When blood or urine testing were in vogue with the legislature, and with the gardaí, it was required by law that any sample of blood or urine be divided and one portion given to the defendant who could then carry out his or her own analysis. This obligation still exists: s.s. 10, 12 and 15 of the Road Traffic Act 2010.

But the possibility of independent analysis ceased to exist in the very large majority of cases, without any express legislative provision abolishing it, when the legislature decided to replace the procedure based on laboratory analysis of blood or urine with a procedure based on analysis, by an automatic process carried out in a garda station, of a breath specimen. Unlike blood or urine, the breath specimen is said to be transitory and not to admit of the possibility of preserving a part of it for subsequent analysis by or on behalf of the defendant. That this is so was recognised (on the evidence provided) by this Court, as it had been by the High Court, in McGonnell v. Attorney General [2007] 1 I.R. 400 at 409.

Chief Justice Murray said, in a passage of great significance for the present case:

“It is… abundantly clear that where the preferred method of testing is breath and breath only, the person in question is in a significantly different position from an individual who has been requested to give blood. Whether the sample should be blood or urine is immaterial in this context.

Such a person has an opportunity of having a portion of a single specimen independently assessed if he so wishes. That portion must have the same properties as the retained portion, which the Medical Bureau has analysed. It is entirely irrelevant whether he should avail of his entitlement or not, or whether, if analysed, the results should be corroborative of guilt. It is the opportunity which is critical to fair procedures and constitutional justice ”. (Emphasis added)

This matter has not been addressed by the legislature in any way. Statute law has not noticed at all the unilateral abolition, in most cases, of the opportunity for independent analysis, which this Court held to be “critical to fair procedures and constitutional justice”. The law has simply provided an alternative test. This new test, in practice, has almost entirely displaced the old one in practice and thus ended the opportunity for independent testing which was held to be “critical” to fair procedures and constitutional justice.

4. As noted above, the opportunity of a separate analysis which might confirm or might contradict the result of the official analysis simply does not arise in the context of a breath specimen. Where a person has been arrested and brought to a garda station for evidential alcohol testing, a member of the gardaí, at his sole discretion , may determine whether the person is to be required to produce (a) an evidential breath specimen or (b) a blood or urine specimen. This is the effect of s.12,13 and 15 of the Road Traffic Act 1994 as amended. According to the leading modern work, Staunton Drunken Driving (2015), both breath and blood or urine may be demanded. But only breath was required in the present case.

Accordingly, the present system of evidential testing for the concentration of alcohol in the body of a driver is now operated in the great majority of cases by the automatic analysis of a breath specimen. It is “automatic” in the sense that the analysis is performed by the Intoxilyser machine, without any laboratory analysis or any human input. When the evidence was provided by analysis of blood or urine it was obligatory to offer to the driver a portion of the sample for his own analysis. It was this opportunity independently to test the sample that this Court in 2007 held to be “critical to fair procedures and constitutional justice”. Now this “critical” opportunity has been abolished in practice. This case raises the question: what are the legal consequences of that abolition?

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5. The statute of 1968, as originally passed, provided that the Medical Bureau of Road Safety’s Certificate of Analysis of the specimen of blood or urine was “conclusive”.

The pre-history of the Act of 1968 is instructive in this regard. I cannot set it out more lucidly than was done by Fitzgerald C.J. in Maher v. The Attorney General [1973] I.R. 140, at 148:

“Part V of the Road Traffic Act, 1968, derives in the main from the report of the Commission on Driving while under the Influence of Drink or a Drug, which was published in 1963. The Commission investigated, in particular, the feasibility of introducing objective tests, by reference to blood-alcohol content or otherwise, of incapacity to drive. As the explanatory memorandum published with the Act of 1968 points out, the main import of the Commission’s recommendations was accepted; but certain aspects of those recommendations were reserved for further investigation and consultation. The eventual legislative implementation is to be found in ss. 27-47 of the Act of 1968. The provisions set out in those sections follow, in the main, the recommendations in the Commission’s report, but they differ from those recommendations in two important ways. First, the Commission had recommended that proof that an accused person’s blood-alcohol level exceeded the permitted level should be merely prima facie evidence that he was unfit to drive: see para. 61(3) of the report. That recommendation was not accepted; instead it was enacted by the amendment in s.29 of the Act of 1968 that driving while the blood-alcohol level exceeded the permitted level should in itself be an offence. Secondly, while the statutory provisions generally implement the Commission’s recommendations as to the ascertainment of the blood-alcohol level from analysis of specimens of blood or urine compulsorily taken or given, the legislature rejected the recommendation of the Commission that the certificate of the analysing authority as to the result of the analysis should be merely prima facie evidence of what is certified: see para. 61(7) of the report. Instead, s. 44 sub-s. 2(a) of the Act of 1968 makes the certificate conclusive evidence of the correctness of the blood-alcohol level as determined by the certificate”.

The history thus summarised was not merely incidental to the decision in Maher. The argument was made in that case that the statute might be preserved, simply deleting the adjective “conclusive”, but the Court was not prepared to do this on the basis that, if it did, it would effectively be setting up as law the rejected recommendation of the Commission or something akin to it. It would be providing for something that the legislature had deliberately and unambiguously rejected.

But this “conclusive” provision was found unconstitutional in Maher. The case concerned the constitutionality of s.44 of the Road Traffic Act, 1968 which provided, insofar as relevant, that the relevant certificate:

“… be conclusive evidence that at the time the specimen was taken or provided the concentration of alcohol in the blood of the person from whom the specimen was taken… was the specified concentration of alcohol”.

The judgment of the Supreme Court in that case is that of Chief Justice Fitzgerald. He held at p.145 that the effect of the provision quoted was that:

“… it precludes the District Justice from forming any other judgment in respect of this vital ingredient of the prosecution case: he is bound under the terms of the statutory provision to proceed as if this had been his own judgment in the matter… it is clear that the object of the statutory provision was to remove this element altogether from the area of contestable facts . In effect it means that the accused person is not free to contest a determination of the concentration of alcohol set out in the Certificate”.

(Emphasis added)

Accordingly, for these reasons, the provision which made the Bureau’s Certificate “conclusive evidence” was found to be unconstitutional.

This reasoning is very significant in the present case as well. In light of Maher a person accused of an offence under the present s.49 must be “free to contest a determination of the concentration of alcohol set out in the certificate”.

The word “conclusive” no longer features in the Statutes. But, on the Director’s reading of the 1994 Act, something closely approaching conclusivity is provided, if the machines print out is not in reality “contestable”. The language “in reality” derives from Whelan v. Kirby, [2005] 2 I.R. 30 at 46, another decision of this Court, cited below. In my view, Maher requires that the contents of the print out must be realistically contestable, contestable in reality, and not simply in some theoretical or hypothetical sense.

Maher v. The Attorney General [1973] I.R. 140 was concerned with the analysis of a specimen of blood or urine. The present case is concerned with a later statute providing for the analysis of a specimen of breath. But this case is not on that account distinguishable from Maher. There, this Court held at p.145 that the question of the result of an analysis of a specimen taken from the driver cannot be “remove[ed] altogether from the area of contestable fact”. It was decided at p.145 that the relevant portion of the 1968 Act was unconstitutional because “… it means that an accused person is not free to contest the determination of the concentration of alcohol set out in the Certificate”.

If an accused person must be free to contest the result of an analysis of a specimen of blood or urine, it appears to me to follow inexorably that such a person must be free to contest the result of the analysis of a specimen of breath. There is no logical distinction between the two. Indeed, a driver who has provided a specimen of blood or urine is better placed to challenge the analysis: that analysis will have been done by a human person in a State laboratory who can if necessary be called to give evidence; moreover such a driver will have been provided with a portion of the specimen analysed. The breath specimen, by contrast, does not permit a portion of the specimen to be given to the driver; and it is analysed by a machine, by an automatic process, with apparently with no prospect of verification or contradiction.

The process of analysis and the working of the testing apparatus, is carefully concealed from the public generally, as we shall see, in the context of Freedom of Information, below. These matters are no better known to the public now than they were when statutory provision for evidential breath analysis was first made over two decades ago.

The statute now in operation must accordingly be construed, if the wording makes this possible, so as to permit this “contesting” of the Intoxilyser’s determination of the concentration of alcohol in the transient breath specimen. If the wording does not permit this, a constitutional issue will clearly arise. But that would be another case.

In construing the statute which provides for the present system of evidential breath testing, therefore, one must also bear in mind what was held by Geoghegan J. in Whelan v. Kirby [2005] 2 I.R. 30 at p. 45 – 46, paras. 26, to the effect that the Intoxilyser presently in use is:

“… a machine which effectively could by its own print out convict the accused without there being in reality any opportunity to rebut [the contents of the print out] notwithstanding that under the Act the presumption is rebuttable”.

It is not without significance to note that, even when (during the period 1968 – 1973) the laboratory analysis of a blood or urine sample was regarded as “conclusive”, a driver suspected of a drink driving offence was, by s.46 of the Act of 1968, nonetheless entitled to be afforded the opportunity to have an additional specimen taken, or to be supplied with a portion of the specimen which the gardaí had taken, “so that, if he wishes, he can have his own analysis carried out”. (See p.145 of the Report in Maher). This right was assured to the suspect notwithstanding the provision in the same statute that Medical Bureau Certificate was “conclusive evidence” of its contents. It appears that all the suspect could then do with his or her portion of the specimen was to ask the Bureau to carry out a second analysis pursuant to s.45 of the Act, “or it may provide evidence from which he could establish that the procedure followed by the Bureau was not in accordance with the Statute or the Regulations”. (ibid)

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The replacement of blood or urine by breath as the testing material had certain obvious advantages for the State. Specifically, it is no longer necessary to retain a registered medical practitioner or nurse to take the blood sample, and divide it in two, and then to bring the practitioner to court to give evidence. This, no doubt, is a financial saving and a considerable convenience to the prosecution. But it involves the loss of the opportunity for independent analysis, which opportunity has been held by this Court to be “critical to fair procedures and constitutional justice”. Accordingly it can be seen that the wholesale through unspoken abandonment (except, perhaps, in very rare cases of which this is not one) of the “critical” opportunity for independent analysis is a major legal development and, from a constitutional point of view, in light of Maher, poses a serious question. In the absence of any possibility of independent testing, how precisely is the Intoxilyser’s print out to be “contestable”, as that case requires?

We have seen, above, that the decision as to whether a defendant must give a blood or urine specimen, in which event he can be given a portion of the specimen for analysis on his behalf, or a breath specimen, in which case that opportunity does not exist, is entirely made by the State. Thus the State decides whether or not the driver can have the evidential sample independently tested or whether he is to be denied that “critical” opportunity.

6. In the present case the garda in question required, and required only, a specimen of breath. Accordingly there was no prospect of independent analysis of either of the two specimens which the defendant was required to give. This was the result of the garda’s choice. The driver had no option but to comply. He had no option to provide a sample of blood or urine, instead of breath, which blood or urine sample would have been capable of subsequent independent testing. It would not be a transitory specimen.

The Applicant’s complaints.
In those circumstances, when the matter came on for hearing before the District Court, the defendant’s solicitor sought an opportunity to have an expert on the defendant’s behalf, (a Forensic Scientist, Mr. Anderson), examine the Intoxilyser machine which had analysed the breath specimens by an automatic process and which had produced a certificate indicating the concentration of alcohol in the breath. The solicitor also sought certain documentation relevant to the Intoxilyser machine, its calibration, its servicing and its maintenance. He was refused all of these requests, and that is Mr. Oates’s core grievance. However, he also says that he was refused these requests by the learned Respondent without giving any reasons whatever for such refusal, despite a specific request for reasons. This, says Mr. Oates, breaches Fair Procedures and Constitutional justice, and independently justifies the grant of certiorari.

Infallibility?
Some might think, or hope, that the process of analysis is always correct, and in practice conclusive of the true position. But it appears that, like any complex process, the taking of a sample of a bodily substance and its analysis to show the concentration of alcohol in the body is fallible. On 25 January, 2016, at an inquest in Clonmel, Co. Tipperary, the Coroner, Mr. Paul Morris, directed the jury to disregard the result of an analysis of blood for alcohol in the case of one of the drivers involved in a fatal collision. The reading showed a concentration of 913 milligrams of alcohol per 100 millilitres of blood. The pathologist who performed an autopsy on the person whose blood was analysed, Dr. Landers, said of this reading that “it would be impossible”. He said that unconsciousness or death would supervene at less than half that level. He described the reading produced by the analysis as “spurious”. No doubt such peculiarities are unusual, but they plainly occur from time to time and have occurred very recently in this recorded instance. (See Irish Times, 26 January 2016, p.6)

In the Clonmel case the reading obtained on analysis is plainly a significant multiple of any remotely likely reading, even assuming a very large consumption. A less dramatically “spurious” result might, in many cases, have escaped attention. But it is fair to add that it was stated at the Clonmel Inquest that the deceased was a non-drinker.

Factual background.
7. According to the garda evidence in the case, the applicant (who is a van driver) was arrested on the 21st July, 2008 having failed a mandatory alcohol test on the roadside in Elphin, Co. Roscommon. He was taken to a garda station and required to produce an evidential breath specimen pursuant to s.13(1)(a) of the Road Traffic Act 1994. As a result of the analysis produced by an Intoxilyser machine, he was charged with the offence mentioned above, and released on his own bail to appear at Strokestown District Court on the 4th September, 2008. The decision to require a breath sample, rather than blood or urine, the decision to proceed by charge sheet, rather than by summons, and the appointment of the 4th September as the return date, were entirely the choice of the gardaí and not of the defendant. He had no role either in the selection of the procedure or in the appointment of the return date.

8. There is some considerable confusion and contradiction within the prosecution evidence as to the events which occurred. In the Director’s Statement of Opposition, verified by affidavit, it is alleged that the offence took place on the 2nd October, 2006, but the garda statements, and the oral evidence of the garda in the District Court was entirely at variance with that and states that the offence took place on the 21st July, 2008 one year and nine months later. The garda is almost certainly correct, and the Director almost certainly wrong, because the Statement of Opposition goes on to allege that the defendant first appeared before Strokestown District Court on the 4th September, 2008, which is quite inconsistent with the offence having been committed back in 2006. But I do not think anything turns on this contradiction.

9. It is however common case that the case was adjourned for hearing to the 6th November, 2008. It is also common case that on that day the applicant’s solicitor, Mr. Cullen, sought an inspection of the Intoxilyser machine located in Roscommon Garda Station. The Director says, at para. 2 of his Statements of Opposition that this application was refused, on the 6th November, 2008, the learned Respondent. The Respondent himself said that this was so. He said this on the 27th May, 2009, the day the case was eventually finalised. From the other evidence I would have thought the first refusal took place on the 4th December 2008. I do not think anything turns on this disparity.

10. Mr. Cullen says in his affidavit that he was instructed to attend court on behalf of the applicant; that he did so on 6th November, 2008 and at later dates; that there was a variation in the two readings produced by the Intoxilyser machine which “put one on inquiry” as to the condition of the machine; that the guard could only say that he “presumed” the machine had been properly serviced. Mr. Cullen applied for an opportunity for the machine to be inspected and examined by an expert on behalf of the defendant. He also sought to be provided with a number of documents or materials which related to the machine itself. These were the Calibration Certificate, the Certificate of Installation, the Certificate of Commissioning, the Irish Certificate of Testing of the Machine, the Quantum Scientific Laboratory Service Reports on the machine and the same entity’s record of the results of tests on the machine. He says that in support of his application he cited the case of McGonnell v. Attorney General [2007] 1 I.R. 400 cited above. It was the High Court judgment which he opened ([2004] IEHC 312) and Mr. Cullen says he referred in particular to para. 111 of the judgment of Mr. Justice McKechnie, quoted at para. 19, below. (See also the Supreme Court decision in McGonnell, p. 409, para. 14). The prosecution were represented at that time by Superintendent William Gallagher who stated to the Court that he believed that the McGonnell case had been “superseded”.

The learned Respondent said that there was a more recent case which overturned the case Mr. Cullen had cited. He said that some of Mr. Cullen’s colleagues would know the name of the case. He adjourned the matter for mention to the 4th December, 2008.

11. On the 4th December, 2008, Mr. Cullen had a copy of the Supreme Court decision in McGonnell, which affirmed the High Court decision. He opened it at length.

There now arises a further point of significance for the issues between the parties. Mr. Cullen says that:

“Judge Browne refused my application for documents and inspection facilities without giving a reason for same. I pressed the judge to give a reason for his refusal. He did not answer. I asked him whether he was refusing both inspection facilities and all the documentation that I had applied for and to which I believed I was entitled arising from the High Court case. The court clerk then offered to show the judge what she had written down and held back over her head so that the judge could view it. He said that he was refusing inspection facilities for the machine and for documentation”. (Emphasis added)

The emphasised portions of this testimony, in particular, have not been contradicted or challenged by the Notice Party.

12. In the affidavit of Superintendent Gallagher, at para. 6 he says:

“I disagreed with the interpretation of Mr. Cullen and I made contrary submissions to the judge in relation to the proper interpretation of the McGonnell decision. Judge Browne considered both arguments and refused the application for inspection”.

13. It therefore appears to be undisputed that the learned Respondent gave no reasons for his refusal of the application to inspect the Intoxilyser machine. The significance of this omission is the first and narrowest point that arises for decision, but it may of course be dispositive.

The case was then adjourned in the District Court until the 25th February, 2009. On this occasion there was a different Garda Superintendent representing the prosecution, Superintendent Collins. The prosecution evidence was called and the solicitor cross-examined the prosecuting guard. He asked him if the machine was properly serviced and “he said that he presumed it was”. It is not contradicted that he expressed himself thus.

14. The defence solicitor then asked for a direction basically on the ground that he was fatally handicapped by the denial of inspection facilities. He said his expert had specifically advised that he could not decide on the proper working of the machine without inspection facilities. He relied on the McGonnell v. Attorney General [2007] 1 I.R. 400, previously opened. The learned District Judge (again?) refused the application. The defence called Mr. Anderson who explained in some detail why he needed access to the Intoxilyser machine in order to advise the applicant and to check the reliability of the documents sought. Mr. Cullen says that the prosecuting Superintendent then indicated that he had not read the McGonnell judgment. Mr. Cullen gave him a copy of it. The learned Respondent then adjourned the case until the 25th March, 2009 to allow the Superintendent time to read the case.

15. On the 25th March, 2009 the learned Respondent noted there was now a new presenting officer. He then said that the defence might be inclined to argue there was a lack of continuity in the presenting officer. Mr. Cullen said he was making no such point. He reiterated that his application for a direction related to the effects of the refusal to allow any inspection facilities. The learned Respondent said that “ he would have to start to hear the evidence over again” . Neither side had asked him to do this. The garda said that Superintendent Cummins would be available to present the case the following month. The learned Respondent adjourned the case for that purpose.

The above account of events is also uncontradicted.

16. However, on the adjourned date, the 22nd April, 2009, Superintendent Cummins was again absent. An Inspector Joseph McKenna prosecuted. He said that all that was awaited was a determination. Mr. Cullen submitted that they were still at the point where he was applying for a direction and the prosecution had been given time to read the McGonnell v. Attorney General [2007] 1 I.R. 400 case. The Inspector says in his affidavit, at para. 4 that:

“I had not appeared in the case previously and I was not familiar with the McGonnell judgment”.

He says that Mr. Cullen indicated that he had an expert, a Mr. Anderson, present in court to give evidence, however the case was adjourned “despite Mr. Cullen’s prolonged protestations” as Inspector McKenna puts it.

The adjourned date was the 27th May, 2009. Mr. Anderson gave evidence on that day. On that date, according to Inspector McKenna at para. 7:

“The judge indicated that he had made the decision not to grant inspection facilities in November 2008 and had heard nothing to alter the view he had taken then”.

He proceeded to convict Mr. Oates, as recited at para. 1 above.

Significance of the foregoing.
17. It appears from the foregoing convoluted history that this fairly simple case was adjourned in the District Court on the following occasions:

– 4th September, 2008,
– 6th November, 2008,
– 4th December, 2008,
– 25th February, 2009,
– 25th March, 2009,
– 22nd April, 2009,
– 27th May, 2009, when the case was finalised.
None of these adjournments seem to have been at the request of the applicant and certain of them were imposed upon the applicant, against his solicitor’s “prolonged protestations”, by the learned Respondent. There were adjournments because the prosecuting Superintendent had not read the McGonnell v. Attorney General [2007] 1 I.R. 400 case, because the same prosecuting Superintendent was not available to attend on the adjourned date after the case had been adjourned to allow him to read that case, because the new presenting officer had not read McGonnell either, and adjournments for no particular reason at all (that is stated) as in the case of the adjournment from the 22nd April to the 27th May, 2009.

Though it is by no means clear why some of the adjournments were required it does appear, both from the Statement of Opposition and from the Affidavit of Inspector McKenna that the learned District Judge stated that the relevant application for inspection had been refused at the hearing in November, 2008, which took place on the 6th of that month. I frankly do not understand why, if that was so, the evidence was not heard until the following year and the case not finalised until the 27th May, 2009, or why the evidence was apparently heard twice.

On the 6th November, 2008 the prosecution was represented by Superintendent Gallagher. The proceedings in Court on that date have been outlined above, and the significant parts of that account are not contradicted.

Case Law relating to the above.
18. The McGonnell v. Attorney General [2007] 1 I.R. 400 case, much referred to in the District Court proceedings summarised above, was concerned with the trial of certain persons against whom the new provisions of the Act of 1994 had been deployed. They claimed that the relevant provisions of that Act (Sections 13, 17 and 21) were unconstitutional having regard to Articles 38.1 and 40.3 of the Constitution. This was said to be so by reason of the impossibility of providing a portion of the evidential sample for independent testing and by reason of the evidential status conferred on the print out containing the automatic analysis of the breath specimen in s.21(1). This provided, insofar as relevant:

“A duly completed certificate purporting to have been supplied under s.17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts 1961 – 1994, of the facts stated therein”.

This, the plaintiffs contended in McGonnell, amounted to “conviction by print out”.

19. The plaintiffs lost in McGonnell both in the High Court and the Supreme Court. But the ratio of the decision depended on the finding that a defendant had a right to apply to the District Court for inspection of the Intoxilyser. This aspect was emphasised in both courts. In the High Court, McKechnie J. said at para. 111:

“… there is one further safeguard which I consider of particular relevance. It is the entitlement of an accused person to seek inspection rights of the machine used to provide a s.17(2) certificate in respect of him. Given not only the legal force but also the practical consequences of the presumption contained in s.21(1) of the Act of 1994, it is in my view an important assurance for an accused person to know of his right to have access to a judicial authority for the purpose of seeking inspection facilities in respect of any given machine. When so deciding, the Court in question must of course comply with constitutional justice and fair procedures on any application so made, as it must on the hearing of the s.49 charge itself. In both instances it may vindicate such rights of the defendant in the most appropriate manner available. These observations equally apply to any application in respect of documentation”.

(Emphasis added)

The foregoing passage was specifically approved in the judgment of the Supreme Court, [2007] 1 I.R. 400 at 417, at para. 29.

That judgment also made reference to the judgment of Geoghegan J. in Whelan v. Kirby [2005] 2 IR 30. At page 417, para. 29 Murray C.J. said that in that case Geoghegan J.:

“… specifically pointed out that the presumption under the Act of 1994 is rebuttable and expressly acknowledged the entitlement of an accused person to apply to conduct an inspection of the apparatus so as to investigate its reliability. An accused person is further entitled to adduce evidence regarding the manner of operation of the apparatus at the relevant time of the provision of the breath specimen”.

(Emphasis added)

20. In Whelan a conviction under s.49 was quashed where the applicant was not accorded an opportunity to have an independent expert inspect the Intoxilyser prior to the trial. The District judge simply refused to entertain the application and the trial proceeded without an inspection, just as here. In the Supreme Court, it was held that the District judge ought at least to have entertained the application on behalf of the applicant. Geoghegan J. said, at pages 45 – 46 para. 26 of the report:

“Unless there are exceptional circumstances, indicating abuse of the process of the Court, constitutional fairness of procedure requires that a pre-hearing application to a judge of the District Court for an order requiring the production of documents and/or a request for inspection of the equipment permitted to be used by statute for the purpose of producing a statement of facts deemed to be true unless rebutted, and essential to the prosecution case, ought to be entertained. It will then be within the discretion of the judge as to whether he or she accedes to the request or not”.

Geoghegan J. went to describe the intoximeter then in use as:

“… a machine which effectively could by its own print out convict an accused without there being in reality any opportunity to rebut, not withstanding that under the Act the presumption is rebuttable”.

(Emphasis added)

At p.45, para. 25 of Whelan v. Kirby Geoghegan J. held that, in refusing to entertain the applicant’s arguments for inspection, the District judge “was cutting off the applicant from any possibility of rebutting the statutory presumption”.

This position must be seen in light of the decision of this Court in The State (Healy) v. Donoghue [1976] I.R. 325.

At p. 349 of the Report O’Higgins C.J. analysed the phrase “in due course of law” as it appears in Article 38 of the Constitution:

“No person shall be tried on any criminal charge save in due course of law”.

O’Higgins C.J. held that:

“… it is clear that the words ‘due course of law’ in Article 38 make it mandatory that every criminal trial shall be conducted in accordance with the concept of justice, that the procedures applied shall be fair, and that the person accused will be afforded every opportunity to defend himself. If this were not so the dignity of the individual would be ignored and the State would have failed to vindicate his personal rights”. (Emphasis added)

Immediately after the passage just cited O’Higgins C.J. went on specifically to approve the dictum of Gannon J. in the High Court in the same case, who said:

“Amongst the natural rights of an individual whose conduct is impugned and whose freedom is put in jeopardy are the rights to be adequately informed of the nature and substance of the accusation, to have the matter tried in his presence by an impartial and independent court or arbitrator, to hear and test by examination the evidence offered by or on behalf of his accuser…”.

In the present case, no question of “hearing” the evidence offered by the accuser on the question of the concentration of alcohol in his body exists. This is because the relevant evidence is given by a print out produced automatically by a machine, which has been given evidential status. The print out cannot be cross-examined. The question arises of how the right to “test” or “investigate” the reliability of this evidence can be afforded the accused in the present circumstances. This right is fundamental to the concept of a trial” in due course of law”.

It follows from the citations above that a person charged with driving with an excessive quantity of alcohol in his or her breath is treated quite differently from persons charged with other criminal offences. If such a person is not granted the ability to examine the Intoxilyser machine then he or she may be convicted “without there being in reality any opportunity to rebut, notwithstanding that under the Act the presumption is rebuttable.

If he or she is refused inspection rights then such a refusal will amount to “cutting off the applicant from any possibility of rebutting the statutory presumption”. Such a person, manifestly is not “afforded every opportunity to defend himself [or herself]” as required by Article 38 of the Constitution nor are they afforded the right “to hear and test by examination the evidence offered by or on behalf of [the] accuser”.

Cross Examination.
In particular, the right to rebut the machine’s analysis of the breath specimen by cross-examination is wholly lost. No human person conducted, or even supervised, the analysis, so that there is no-one available to cross-examine. Neither the machine, nor the print out, naturally, can be cross-examined.

Since the offence created by the present version of s.49 of the Road Traffic Acts is a criminal offence, and the prosecution for the offence is a criminal trial albeit one conducted summarily, the abolition of the right to cross-examine is a very serious development. This right has been long and strongly established in Ireland, in recent times from In Re Haughey [1971] I.R. 217, O’Callaghan v. Mahon [2006] 2 I.R. 32 and, in very recent times DPP v. Thomas Redmond [2015] IESC 98 (Supreme Court, unreported, 17th December, 2015). In this latter case there was a citation of Heaney v. Ireland [1994] 3 I.R. 593 on the meaning of the phrase “due course of law” followed by the statement:

“To this I would add that elementary justice requires that a person who is liable to some sanction or imposition, based on how a factual issue is resolved before any body, tribunal, or committee which is obliged to proceed in accordance with natural justice, is entitled to confront his accuser or accusers and to cross-examine them or have them cross-examined”.

(Emphasis added)

In various contexts, in Ireland and elsewhere, attempts have been made to present evidence against a person in a form which does not admit of cross-examination. An example of this in Ireland was found in the case of Borges v. Fitness to Practice Committee of the Medical Council [2004] 1 I.R. 103. There, the applicant doctor was facing an enquiry under Part V of the Medical Practitioners’ Act 1978 in relation to allegations by two complainants whom it was intended to call as witnesses. But the Registrar of the Medical Council, who was conducting the case against the doctor, applied to the Committee to order that the complainants would not be called in evidence but instead that he would introduce a transcript of the evidence they had given before a foreign Medical body. The Committee agreed to proceed on that basis. The High Court held that this procedure would amount to a deprivation of a fair hearing by depriving the doctor of the opportunity to confront his accusers. This Court held that the doctor could not be deprived of his right to fair procedures by extending the exceptions to the rule against hearsay to a case where witnesses were unwilling to testify in person. The Court also held that fair procedures, in the context of the case, necessitated the giving of evidence by the doctor’s accusers and their being cross-examined.

It must be borne in mind that the deciding body in that case was not a court. The Medical Council submitted that it might on that basis be entitled to admit evidence which would not be admissible in court proceedings. It was held that it could not do so in order to avoid cross-examination.

Keane C.J. said at p.113, para. 26 of the Report that, where a decision of the relevant tribunal reflects on a person’s good name or reputation:

“… basic fairness of procedure requires that he or she should be allowed to cross-examine, by counsel, his accuser or accusers”.

Chief Justice Keane sets out ample support for this proposition in terms of both Irish and English law.

___________________________________________________________

21. The accused person’s declared right to apply for inspection of the machine which produces a statement of the concentration of alcohol in the breath by an automatic process was central, and essential, to the High Court’s and this Court’s refusal to find the relevant Sections of the Act of 1994 unconstitutional in McGonnell.

22. Applying the principles enunciated in McGonnell v. Attorney General [2007] 1 I.R. 400 and in Whelan v. Kirby [2005] 2 I.R. 30 to the facts of the present case, the following features of relevance emerge.

(i) Mr. Oates was entitled to apply for a professional inspection of the intoxilyser on his behalf, and for documents relevant to the operation of the machine.
(ii) The most practical reason for the existence of this right, in terms of a s.49 prosecution, is that the presumption created by s.21(1) is a rebuttable presumption, and unless there is an opportunity to investigate the operation of the machine then there is not “in reality” any opportunity to rebut [the contents of the print-out] not withstanding that under the Act the presumption is rebuttable”.
(iii) Once such an application for inspection of documents is made then:
“The Court in question must of course comply with constitutional justice and fair procedures on any such application so made”.

(iv) It appears from the affidavits filed in the present case that the intoxilyser produced readings which were not identical in relation to the breath specimens supplied by Mr. Oates. There was no finding as to the significance, if any, of this.
(v) It further appears that the garda witness, who was the sole witness for the prosecution had the question of the condition and maintenance of the intoxilyser machine raised with him. He was only able to say that he presumed it was properly maintained.
(vi) On the uncontradicated evidence of Mr. Cullen, Solicitor, the learned Respondent rejected the application for inspection facilities and for documents without giving any reason at all, although specifically requested to do so.
(vii) The solicitor grounded his application both when it was first made and on the date to which it was put back to allow the State to read the case relied on, on McGonnell. The only specific thing which the learned Respondent said in relation to the merits of the application was “that there was a more recent case which overturned the case Mr. Cullen had cited”.
Undisputed error.
23. It is important to be clear that in making the statement last recorded the learned Respondent was in error. McGonnell v. Attorney General [2007] 1 I.R. 400 has never been overturned in any sense of the term. The Supreme Court in that case did not overturn the High Court decision, but in fact adopted it. And no case since McGonnell has overturned it or refused to follow it. The error may have arisen from the prosecution submissions that McGonnell had been “superseded”. The learned Respondent seemed to remember a particular case as having “overturned” McGonnell, but he could not remember its name.

24. It is entirely unclear what significance the learned Respondent attached to the fact that, as he incorrectly believed, McGonnell had been “overturned”. Did this mean that Mr. Oates had no right to apply for inspection? Did it mean there was no necessity in law to entertain the application? There may conceivably be some other significance, quite unknown to the Court or to the appellant, arising from the misapprehension under which the learned Respondent laboured.

Discretion.
25. It is manifestly true, on the basis of both McGonnell v. Attorney General [2007] 1 I.R. 400 and Whelan v. Kirby [2005] 2 I.R. 30 that the fact that there is a right to apply for inspection and for documents does not mean that such application must be granted. On the other hand, it follows from the existence of the right to apply, stated to be “of particular relevance” that inspection and/or documents equally may be granted. Whether they are granted or not is a matter for the judicial discretion of a District judge.

It is to my mind a significant factor affecting the exercise of this discretion that, on the face of it, the s.21(1) presumption cannot be rebuttable “in reality” unless the defendant can conduct some form of investigation into the operation of the machine which produces the print out to which the s.21(1) presumption applies. This was expressly held by Geoghegan J. in Whelan in 2004. That case was decided shortly after the evidential breath test procedure had become general, although statutory provision had been made some ten years earlier. Section 21(1) provides that the print out of the Intoxilyser machine shall “until the contrary is shown, be sufficient evidence… of the facts stated therein”.

The effect of this Section is to throw on to the defendant the proof of the inaccuracy or unreliability of the machine or the print out it generates. I cannot see how this can be done unless there is an opportunity to observe the machine in operation, in the way Mr. Anderson, Consulting Engineer, said in evidence in the District Court he desired to observe it, and to establish that the machine has been properly maintained and serviced, as its manufacturers directions require.

The constitutionality of a statute which attributed this status of presumptive correctness to a statement in a print out, and at the same time removed from the driver the opportunity of having an independent analysis carried out, was preserved, in McGonnell, only by virtue of the driver’s opportunity to apply to the Court to inspect the Intoxilyser machine.

Accordingly, it is important not to interpret the statute, as elucidated in McGonnell, in a reductive way, for example by saying that the driver cannot rebut the print out because he has not been permitted to inspect the machine, and cannot inspect the machine because he cannot demonstrate what the likely effect of such inspection would be. That is a Catch-22. Whelan v. Kirby in a passage cited below, quite specifically rejected the submission that, in order to obtain access to the machine for inspection purposes one has to say what the result of the inspection would be. The Supreme Court in that case held that there is no onus on the applicant to establish that the results of the inspection might assist his defence. The reasons for this inspection are, as Geoghegan J. held at p.45 of the report, are “self evident”.

In DPP v. Moore [2006] IEHC 142, a case where inspection of the machine was ordered, and a case was stated at the request of the prosecution. O’Neill J. held that a District Judge dealing with such an application must consider:

“… whether without that evidence [i.e. evidence of the inspection] the accused is disadvantaged in his defence, to such an extent that it could be said he cannot have a fair trial”.

26. The power to require a defendant to provide a breath specimen for evidential analysis, as opposed to a specimen of blood or urine which could equally have been demanded, puts it in the power of the gardaí to determine whether or not a defendant can have an independent analysis. By selecting a breath specimen as a means of breath testing, the garda renders impossible an independent analysis of the evidential specimen, for the reasons stated earlier in this judgment. That is not to say that the garda in this case opted to demand a specimen of breath for that purpose. He did it, no doubt, because it had become usual to do so.

27. Against that background, s.21 gives a presumptively correct status to the machine’s analysis and casts upon the defendant the onus of showing the contrary. This appears to me to be a burden impossible to discharge “in reality” unless facilities requested in the present case are granted. I do not exclude the possibility that there may be some extraordinary feature which might make the inspection and the provision of documents otiose. I do not accept that the defendant has to prove something in the nature of probable cause for analysis before having a right to inspect. The result of the State’s analysis must be “contestable”, as Fitzgerald C.J. held in Maher v. Attorney General.

Material from other Common Law jurisdictions.
28. The use of transient proofs of intoxication whether modern ones (such as breath specimen analysis) or traditional ones (such as observation by police officers or by a doctor) have given rise to obvious difficulties which have been addressed by the Courts in certain other jurisdictions. Naturally, these cases fall to be considered against the background of the general criminal and constitutional law in the relevant foreign jurisdiction.

In California v. Trombetta & Ors. 467 US 479 at 480 to 481 the United States Supreme Court (per Justice Marshall) held, by way of constitutional background:

“The due process clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favourable evidence that is material either to guilt or punishment [citations omitted]. This case raises the question of whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of the defendants”.

The point at issue in that case was whether the Due Process Clause requires that law enforcement agencies preserve breath samples of suspected drunken drivers in order for the results of breath analysis tests to be admitted in criminal proceedings.

The United States Supreme Court held that the State of California was not obliged to preserve such breath specimens although (contrary to the evidence presented to the Irish Courts in McGonnell) it also held that it was technically possible to do that. But it rejected the driver’s claim on the basis of the safeguards already provided in Californian law. At p. 490 of the Report it is said:

“Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine’s weekly calibration results and the breath samples used in the calibrations”.

(Emphasis added)

Set out at pages 481 – 482 of the Report there are set out the procedures which have to be followed in the cleaning, operation and calibration of the machine. These details were amongst the general operating requirements which, in the U.S. case, were freely available to the defendants and to the Court. Also set out is the procedure required to be followed after each test and before any other test involving the purging of the machine with clean air and the checking of the machine for a reading of zero alcohol. The document concludes:

“The machine is calibrated weekly, and the calibration results, as well as a portion of the calibration samples, are available to the defendant”. (Emphasis added)

The Trombetta case was cited in a most interesting New Zealand case, R. v. Donaldson [1995] 3 NZLR 641. This was a decision of the Court of Appeal in Wellington, delivered by Mr. Justice Thorp, the Chief Justice and Boys J. concurring.

In that case Ms. Donaldson was found asleep in the driver seat of a stationary car. A police witness arrested her because, on observation, she was unsteady on her feet and slurred in her speech. She was arrested for “driving under the influence” and brought to a police station where she consented to undergo a medical examination.

The case turned on the provisions of s.24(d) of the New Zealand Bill of Rights Act, 1990. This guaranteed a person charged with a criminal offence “adequate time and facilities to prepare a defence”.

It had been held in a New Zealand case referred to at p. 645 in the judgment at p.5, that this right “is designed to put the defence on a footing of equality with the prosecution in preparation for a fair trial. That right must include adequate access to evidence which the accused requires to present his or her case” (R. v. Accused (CA 357/94) (1994) 12 CRNZ 417 at 425).

Against that background, Ms. Donaldson, when she was taken to the police station requested that a sample of blood be taken from her. She had no right to demand it but it seems from the report that the Constable in charge could have arranged that a blood sample be taken but Ms. Donaldson was told that they were proceeding by way of medical examination and that this did not include the taking of blood. She repeated the request for a blood specimen to be taken on several occasions and got the same response. The Court of Appeal pointed out at p.649 that by the time Mr. Donaldson was released from the police station:

“… any chance of obtaining useful chemical evidence about the state of her sobriety and the significance of alcohol would have been lost, even had facilities for blood testing been available to her in Dunedin at that time of night”.

The most relevant question which had been referred to the New Zealand Court of Appeal was whether, if the police officer did not provide facilities for a blood sample to be taken, that omission constituted a breach of s.24(d) of the Bill of Rights Act. The Court concluded at p.650 that:

“For the reasons set out in the foregoing judgment it is our view that, for the reasons there stated, the refusal in this case to consider and accept the appellant’s request to arrange for the taking of a blood sample did constitute a breach ofs.24(d)”.

A factor in Donaldson was that although a police witness and a doctor gave evidence that she was incapable of having proper control of a motor vehicle “because of alcohol intoxication”, a roadside breath test for alcohol had proved negative. Depending on the view the tribunal of fact took of the police and medical evidence, this fact suggested either a defect in the breath sampling system or an error in the evidence given by a doctor and a police officer, that she was intoxicated.

The judgment of the Court of Appeal of New Zealand also contains, at p.646, an interesting summary of the salient features of the “very large body of case law in the United States and a smaller but still substantial number of decisions in Canada”, relevant to the facts of Donaldson. See para. 6 above, entitled “Infallibility”.

___________________________________________________________

I do not believe that the Irish requirement in Article 38 of the Constitution that all trials should be conducted “in due course of law” is in any respect a less demanding standard than that required in the United States by the Due Process Clause of the Fourteenth Amendment, nor by the New Zealand Bill of Rights. Over and above that, it is interesting that the State of California guaranteed to defendant drivers rights of inspection and access to documentation, of precisely the sort sought by Mr. Oates here, and did so at the time when it introduced the breath sampling system. This enabled the relevant statutory provisions to survive constitutional challenge on the basis that no part of the specimen had been preserved for independent analysis. Similarly one notes that the New Zealand concept of “adequate… facilities to prepare a defence”, extended to a right of access to evidence and was held to have been breached by the refusal to conduct a blood test in the circumstances outlined above.

As we are about to see, not only is there no right to inspect or see relevant documentation provided in the Irish Statutes but the system of analysis, of approval of apparatus for analysis, and documents and records relating to such apparatus and analysis have been deliberately and, it seems, conclusively, excluded from the category of document and item to which a citizen is entitled to have access, even if he has been charged with a criminal offence using the breath specimen procedure.

Nothing available on FOI.
29. I am strengthened in the above conclusion by the fact that the legislature has taken steps, in the first instance emergency steps, to prevent a person charged with a s.49 offence (or any other citizen) from obtaining, under the Freedom of Information Legislation, records relating to the receipt, analysis and certification by approved apparatus of the sample provided by him or her.

30. In H. v. The Medical Bureau of Road Safety Information (Commissioner Case No. 090073). Ms. Emily O’Reilly, then the Irish Information Commissioner (now the European Ombudsman) overruled the Bureau’s refusal to provide such documents to a person charged with a s.49 offence. The Bureau had done so on the grounds that:

“[D]isclosing the records sought in this case, which are over and above what the Bureau is required and permitted to provide in accordance with s.19(3) of the Road Traffic Act, 1994, would effectively undermine the Bureau’s obligation under s.19(3) of the Road Traffic Act Road 1994 thereby causing prejudice or impairment to its compliance with [that Section] and the criminal law generally relating to alleged driving under the influence of intoxicants offences”.

The Information Commissioner noted that:

“Without FOI the [Bureau] would be generally unaccountable either to the Courts or to the public with respect to its functions under the Road Traffic Acts and there would be no legal recourse to records relating to its forensic investigative role even in the event of suspected irregularities”.

The effect of this decision was negatived by statute with extraordinary and unusual speed. The Commissioner’s decision was given on the 15th July, 2010. The State then proceeded to promulgate the Road Traffic Act 2010, which came into operation on the 9th August 2010, twenty-five days later, during a Parliamentary vacation.

The effect of this was partially to exclude the Bureau from the FOI Acts. This was done by amendment of the Freedom of Information Act 1997 (see s.26(5) of the Road Traffic Act 2010).

___________________________________________________________

The present position on FOI requests to the Bureau is governed in an opaque and convoluted way by the Freedom of Information Act 2014. Section 6 of the Act provides that Freedom of Information rights apply to, or against, “public bodies”.Section 6 of the Act defines a public body and the Bureau is caught by the definition in s.6(1)(b) as it is “an entity established by or under any enactment”. This would appear to capture the Medical Bureau of Road Safety. (See Part V of the Road Traffic Act, 1968). However, the Bureau is in fact exempted from Freedom of Information by a process so contrary to transparency and to the ordinary use of language as almost to defeat non-professional enquiry. The exclusion is effected in the following manner:

The exclusion is effected by means of Schedules, whose significance is determined by the substantive Act. The Medical Bureau of Road Safety, the body responsible for the testing of samples of blood breath or urine and for approving “apparatus” for that purpose, is an entity mentioned at para. (u) in Part 1 of the First Schedule to the Freedom of Information Act 2014.

Section 6(2)(a) of that Act provides that:

“An entity specified in Part 1 of Schedule 1 shall, subject to the provisions of that Part be a public body for the purposes of this Act”.

If a lay enquirer read no further, he or she would conclude that the Bureau was within the scope of Freedom of Information.

Schedule I, Part I of the 2014 Act, however, is headed:

“Partially included agencies”.

The initial words of the Schedule are:

“Section 6 does not include a reference to —“

There then follows a list of thirty-five separate bodies. At reference (u) the following appears:

“The Medical Bureau of Road Safety…”.

Accordingly, if the material at reference (u) stopped there, the effect of it would be to wholly remove the Bureau from the scope and application of s.6. But the material does not stop there and continues to provide:

“… insofar as it relates to records concerning, or arising from, the forensic criminal investigation functions performed by the Bureau under the Road Traffic Act 1961 – 2014, including the analysis of specimens and the approval, supply, testing and maintenance of apparatus used for the purpose of those Acts”.

The difficulty in establishing the liability or otherwise of the Bureau under the FOI Acts arises from the use of multiple exceptions and of double negatives on which the draftsman would have to be congratulated if it were his object to make the provision opaque and inaccessible. But the effect of it is that the Bureau is outside the scope of s.6 “insofar” as the matters specified are concerned. The matters specified include anything that might be of the remotest interest to a person charged with an offence under s.49, who was concerned to “contest” the Bureau’s analysis, or analysis of apparatus approved by it.

It therefore appears that, in considering an application for access to documents and for facilities to inspect the Intoxilyser machine, the District Court will have to bear in mind that the documents in question, and any record relating to the analysis in question, will not be otherwise available to the defendant driver and specifically will not be unavailable under the provisions of the Freedom of Information Act by reason of the emergency action first taken in 2010 and now contained in the Act of 2014 by reason of the legislative action first taken in s.26, subs. 5 of the Road Traffic act 2010 which extended the scope of restrictions contained in s.46 of the Freedom of Information Act 1997. This legislative action was then consolidated in the Freedom of Information Act 2014 (whereby Schedule 1 explicitly removes and excludes documentation on the maintenance of apparatus which might have been previously available under the act of 1997 as an administrative document). It is not clear to me why, assuming the legislature to be confident in the operation of the Intoxilyser system, such convoluted steps have been taken to conceal its operation even from a person directly affected by it. I agree with the finding of the Information Commissioner, quoted above, as to the effect of the Medical Bureau’s far reaching exemption from F.O.I.

Onus on defendant?
31. In Whelan v. Kirby [2005] 2 I.R. 30, the principal judgment was delivered by Geoghegan J. with whom Keane C.J., Denham J., Hardiman J. and Fennelly J. agreed. In that case (as in this) the DPP submitted that the District judge could not have made an order for inspection or for documents in any event “as there was not going to be any evidence put forward as to what might have been determined by an inspection which would be helpful to the defence”. The Director in the present case called this “laying the ground”.

At pages 45 to 46, para. 24, Geoghegan J. adopted a portion of the written submissions of the driver in Whelan as follows:

“The trial judge seems to suggest that there is an onus on the applicants to inform the Court what the results of an inspection or examination of the Intoxilyser might have been. With respect, it would be impossible for an applicant, or a suitably qualified expert, to predict what an examination of a machine might reveal in a given case. The fact that the inspection of a machine is not a contemporaneous one would not, presumably affect its result if, for example, a design fault were noted. There may be many other instances where the [reliability] of the machine might be called into question, notwithstanding that the examination thereof is not contemporaneous”.

Geoghegan J., having cited this passage said at p.46, para. 24 to 25:

“I find myself in agreement with that statement. It would seem to me that from the defence point of view the request for the examination might be regarded as reasonable [which does not necessarily mean that it would have to be acceded to] and the reasons for the request would be self evident.

… In refusing to entertain the solicitor for the applicant’s arguments, the [District judge] was cutting off the applicant from any possibility of rebutting the statutory presumption”.

(Emphasis added)

32. It appears to me, therefore, that the head note to Whelan v. Kirby is correct when it states at p.31 at paragraph 3:

“That, in making such an application, there was no onus on the applicant to establish that the results of the inspection might assist in his defence”.

The judgment of the High Court judge in Whelan v. Kirby, Mr. Justice Ó Caoimh, who is the trial judge referred to in the passage approved by Geoghegan J. and set out above, appears to me to have been profoundly influential on the judgment of the learned trial judge in the present case. In Whelan v. Kirby [2003] IEHC 124, Ó Caoimh J., in delivering his judgment of the 7th November, 2003 (unreported) concluded that:

“I am satisfied that an onus rested upon the applicants to satisfy the District Court that the interest of justice required the examination of the instrument and that the applicants were prepared to meet the reasonable requirements of the Medical Bureau. I am satisfied that the onus lay on the applicants to demonstrate to the respondent judge the importance of the inspection and testing requested, in the light of prevailing circumstances”.

(Emphasis added)

This finding, as will be seen, is reflected in the High Court judgment in this case.

Ó Caoimh J. also held that the District judge:

“… had no authority to direct the Medical Bureau to afford the applicants the right of inspection, testing etc….”.

But these rulings cannot be regarded as authoritative in light of Whelan and McGonnell.

The High Court judgment in this case.
33. I agree with what is said by the learned High Court Judge in this case at para. 9 of his judgment ([2010] IEHC 381):

“A certificate showing the reading is admissible by virtue of s.17(2) of the Act. If the presumption were not rebuttable this statutory scheme would be unconstitutional. Consequently, there is an entitlement, as part of the trial process for a person accused of drunken driving in this way to apply to inspect the machine to ensure that it was working correctly”.

(Emphasis added)

This finding, based largely on uncited cases, is central to the resolution of this appeal.

I am unable, however, to agree with the learned High Court judge’s conclusion:

“That the decision by the learned trial judge was correct… there is no reason to disturb the conviction of the applicant for drunken driving”. (Paras. 3 and 12)

It appears to me that the nub of the learned trial judge’s decision emerges from what he says at para. 8:

“What characterises this case is the absence of any reason whereby it could be said that the machine for breath testing alcohol consumption was malfunctioning”. (Emphasis added)

This observation, and the result to which it leads, assumes that there was an onus on the applicant to put forward some reason, without having read the relevant documents about the machine and without having inspected the machine itself, for the proposition that it was “malfunctioning”. The learned trial judge, indeed, in the course of his judgment gave several examples of the sort of evidence which he considered the applicant might have provided. Thus, at para. 4 he said:

(i) “The applicant has not sworn an affidavit indicating any reason why any court should doubt the result of the scientific test that was carried out mechanically on his breath sample”.
He continued:

(ii) “He has not sworn that on the occasion of his driving and subsequent arrest that [sic] he had been teetotal for a relevant period of time”.
He further continued:

(iii) “There has thus been no engagement with the evidence either in this Court or before the learned District judge which would reasonably raise any prospect that the prosecution case was incorrect either through its own inherent weakness or through the proffering of contradictory evidence on behalf of the defence”.
(Emphasis added)

The learned High Court judge also approved at para.10 a requirement:

(iv) “… that an accused person must show the relevance of the material sought to a defence to be advanced in the trial… an accused would have to point to some circumstance which, if established in evidence at the trial, would undermine the accuracy of the print out of an Intoxilyser machine”.
It appears to me that all of the dicta cited above assume that an onus of proof rests on the applicant for inspection of the Intoxilyser machine. This is precisely what Ó Caoimh J. found in the High Court in Whelan v. Kirby in a passage set out at para. 32, above. This finding was set aside in the Supreme Court judgment in that case. I, too, do not consider that it is correct, for the reasons set out below. But even apart from that I consider that the evidence which, it is suggested, the applicant might have provided is either legally irrelevant or physically impossible to provide.

The applicant manifestly cannot indicate any reason why the Court should doubt the result of the test that was carried out mechanically on the breath specimen when he has not had the opportunity either to inspect the machine or to ascertain the manufacturer’s calibration of it and requirements as to its maintenance and storage. The requirement suggested in the first of the citations above is quite impossible to comply with in the absence of inspection and documentation. To require it as a matter of law as a precondition of inspection would be a perfect Catch-22.

Secondly to say that the applicant has failed to swear that at the time of his arrest “… he had been teetotal for a relevant period of time” is profoundly puzzling. There is no “relevant period of time” for legal purposes during which a driver might have been “teetotal”. If the driver is “over the limit” at the time of the test, and that is within three hours of the time he was seen to be driving, the offence is complete, regardless of the period of time for which he says he was “teetotal” before the driving. Neither the law, nor officialdom more generally, offers any guidance as to a “relevant period of time” which will entitle one to be acquitted or even to rebut the presumption, despite the Intoxilyser reading, if one can show that one was “teetotal” during that period. This feature has taken on a particular relevance with the advent of “morning after” or even “afternoon after” testing.

I simply do not understand the inclusion of the concept of “teetotal” in this discussion, or its legal relevance.

“Teetotal” is, according to the Oxford English Dictionary, a reduplication, extension or intensification of the word “total”. It was coined as long ago as 1833 by a speaker advocating total abstinence from all forms of alcohol, and not merely abstinence from spirits. It has no conceivable relevance to the present discussion. The Road Traffic Acts do not enjoin “teetotalism” but merely abstinence from drinking such a quantity of alcohol as will produce a reading of more than 35 micrograms of alcohol per 100 millilitre of breath at any time within three hours of driving. There is no legal or official guidance as to what that quantity is, whether it varies with age, sex, BMI or anything else. But that is not the present issue. “Teetotal” is simply of no relevance to any issue in this case.

As to the third citation, the absent evidence to which this paragraph relates is again impossible to provide without the inspection and documentation mentioned.

The fourth citation suggests that the defendant should be obliged to refer to a defence or possible defence which he might rely on, based on the inspection. This is the most obvious example of Catch-22: one cannot know what the inspection will reveal until one carries out the inspection. This was amply explained in evidence by the defendant’s expert Mr. Anderson and is repeated in his affidavit. The State in submissions and argument emphasised the fact that Mr. Anderson, though a forensic scientist, had no experience specifically with Intoxilyser machines. Mr. Anderson himself said as much quite frankly. The fact is that he could not have had such experience without a court order for inspection because all the information about the machine or “apparatus” as it is called, is within the custody of the Medical Bureau of Road Safety who have refused all applications for voluntary inspection, while the State has contested all applications for a court order for inspection. We have seen that the apparatus and its workings have been sedulously excluded from Freedom of Information. In these circumstances no-one could have experience of the Intoxilyser machine without a court order, whose issuance will be resisted by the State. This criticism of Mr. Anderson is both reductive and unfair.

The learned trial judge also said, at para. 11:

“If the defence, on instructions, have a need to apply for inspection of a machine or to have a view of the documents related to it, that this application should be notified to the prosecution and grounds given. In the alternative, an application on evidence can be made directly to the Court in advance of the trial”.

34. It is certainly true, as the learned trial judge pointed out, that “the applicant bears the burden of showing that his conviction for drunken driving should be quashed by an Order of Certiorari”. But the learned trial judge misapplies this onus, it appears to me, to the application which was made before the District Court and which the applicant had standing to make by reason of his being a person accused of what the learned High Court judge calls “drunken driving” on the basis of a breath sample which did not admit of independent testing.

35. It seems to me that all the dicta, set out in the preceding paragraph, except the last, were central to the learned trial judge’s reasoning. I have to say, with great respect, that they all appear to be based on the same fundamental proposition which I respectfully considered to be an error.

This proposition occurs several times in the course of the judgment of the High Court and is expressed in various ways, but all are based on the proposition that there is some onus on the appellant in making his application for an inspection etc. before the District Court which must be discharged before he can be granted such inspection. Ms. McDonagh S.C. for the State called it an onus to “lay the ground”. All of the dicta set out above, to the effect that the appellant did not say that he thought the Intoxilyser machine was defective in some way; did not say that he had been “teetotal” for a “relevant period”; did not “express surprise” to the gardaí at the reading of the Intoxilyser, did not swear an affidavit indicating “any reason why any court should doubt the result of the scientific test that was carried out mechanically on his breath specimen”; did not adduce any reason “whereby it could be said that the machine for breath testing alcohol consumption was malfunctioning”, derive from this proposition.

This proposition seems to me to miss an essential point. The appellant was a defendant facing a criminal charge. As such, he is entitled to “test” the evidence against him and to do so by “[cross-]examination”; to “contest” the reading of the Intoxilyser; not to face a trial in which “the evidence furnished by the Certificate from the Bureau is incontestable”; or in which “the Certificates in the Intoximeter cases are for all practicable purposes irrebuttable, notwithstanding the statutory provision to the contrary”, or in which the Intoxilyser “can by its own print out convict an accused without there being in reality any opportunity to rebut, notwithstanding that under the Act the presumption is rebuttable”.SeeMaher, Healy and Whelan, cited above.

I am also of the opinion that a defendant in any criminal case cannot be compelled to disclose his defence, or even a possible defence, in advance of hearing the prosecution case; or to indicate what defence he wishes to explore in advance of the prosecution presenting their evidence. See Sandes, Criminal Practice, Procedure and Evidence in Eire, (London 1939) p. 158; O’Malley The Criminal Process (Thomson Reuters, Dublin 2009) p.710, par. 18.30 and Hefffernan and Ní Raifeartaigh Evidence in Criminal Trials, (Dublin, 2014) p. 671, 674 and 688; DPP v. Buck [2014] IECCA 45 approves A.G. v. Durnan [1934] I.R. 540 which in turn approved R. v. Naylor, cited in Sandes, supra.

Most of the foregoing are general points, applying to criminal cases generally. But the circumstances of this case give rise to further difficulties. We have seen the somewhat tortuous statutory history whereby the need to prove actual incapacity properly to drive a motor car was replaced by a need to prove only an excess of alcohol in the blood or urine. This latter offence was based on compulsory testing with however the “critical” protection that the driver be given a portion of the sample for independent testing, if desired. Without any statement that it was doing so, the Legislature then adopted a new system of evidential breath testing which excluded the “critical” opportunity for independent analysis.

I am not aware of any case, prior to the almost total abolition of this opportunity, in which details of the operation, calibration and servicing of the apparatus used in analysis were requested. But with the silent abolition of this “critical” opportunity, a person who wishes to “contest” the machine’s reading can only do so by inspection of the Intoxilyser and perusal of the relevant documents.

A defendant is now typically confronted with a situation in which the analysis cannot be contested by cross-examination because there is no human being involved in it who can be cross-examined. Instead he is confronted with an analysis carried out by a machine whose operation, calibration, servicing etc. he cannot discover without a Court Order. We have seen the detailed, obscure and far-reaching steps taken by the State to prevent a defendant, or any citizen, getting details of the breath analysis apparatus and its functioning other than by Court Order.

All of this must be considered against the background of the finding by this Court that the opportunity for independent analysis is “critical to fair procedures and constitutional justice”, and that “the person accused will be afforded every opportunity to defend himself”, as a matter of constitutional law.

Against that background, I can see no basis for the imposition of an onus on a person charged with a breath specimen offence to adduce a particular reason why he wanted to examine the apparatus and read the documentation. How else can he “contest” the machines analysis? I would have thought that “self evident” as Geoghegan J. put it.

It will be apparent from the contents of this judgment, and especially from the section “Onus of Defendant?” from para. 30ff, that I do not believe that there is an onus on the defendant to demonstrate a particular defence, or a particular shortcoming in the apparatus, before being granted rights of inspection. Indeed, to require either of these things, or anything like them would be a Catch-22 in the sense that a defendant would be required to establish in order to obtain inspection, the very thing that she requires inspection to establish.

36. I believe that the learned trial judge may have been misled in this regard by a failure on the part of the State properly to assess a passage from the judgment of Mr. Justice Geoghegan in Whelan v. Kirby [2005] 2. I.R. 30 at 44, para. 24 which he sets out at para. 5 of his judgment ([2010] IEHC 381). This passage, as the learned trial judge quoted it is as follows:

“Normally, therefore, a basis would have to be laid before a relevant complaint of non-preservation or refusal of permission to inspect was made”

In the text of the judgment of Geoghegan J., the words quoted are part of the following much longer paragraph:

“The preservation of evidence cases are relevant to one of the main arguments relied on by counsel for the second-named respondent [the DPP] in resisting the applications for judicial review. It is clear from those cases that a court will only be concerned with the preservation of evidence if such evidence could possibly assist the defendant in his or her defence. Normally, therefore, a basis would have to be laid before a relevant complaint of non-preservation or refusal of permission to inspect was made. Counsel for the [DPP] argues that all the preliminary correspondence and discussions whether with the gardaí, the [Director] or the Medical Bureau are irrelevant because the first-named defendant would have been precluded at any rate from making any order of the kind sought as there was not going to be any evidence put forward as to what might have been determined by an inspection which would have been helpful to the defence”.

(Emphasis added)

We have seen, supra, that Geoghegan J. rejected this contention for reasons which are set out immediately below in the following paragraphs of the Report, and are cited above.

But the single sentence relied on by the learned trial judge in this case are part of a paragraph in which counsel for the State was advancing an argument based on an analogy with the preservation of evidence cases. The passage quoted by the learned trial judge is not a finding by the Court but a statement of the case being advanced, on that basis, by the State. The word “therefore” is a reference to the preservation of evidence cases and to the argument which the prosecution were building on them, and not a finding by this Court. It is often risky to rely on a sentence including the word “therefore” without having regard to the material which precedes it, from which the conclusion expressed in it is said to follow logically.

I do not accept that there is a proper analogy with the preservation of evidence cases, which are all civil cases in which the burden of proof is upon the person seeking to prevent a trial for loss of evidence or failure to preserve evidence. There is no doubt whatever that, in such cases, the plaintiff bears the onus of showing at least a real possibility of prejudice arising from the loss or non-preservation. That is quite different from the position in the present case where the appellant was a defendant in a criminal case confronted with a new form of evidential proof which, nonetheless, the law must allow him realistic scope to “contest”.

I turn finally to the last extract from the learned trial judge’s judgment, cited above, about the need to notify the prosecution of an application for inspection, or to apply to the Court itself in the presence of the prosecution. From the emphasis placed on these things it appears that the learned trial judge may not have had his attention drawn to the fact that the accused, through his solicitor, did in fact put the State on notice of his application by an email dated the 25th February (but actually e-mailed on 24th February) to which no reply was forthcoming. It is also, of course, the case that the application was moved on many occasions in late 2008 and early 2009 in a chaotic and “dribs and drabs” manner which was not the fault of the appellant. Furthermore, the appellant through his solicitor actually supplied the prosecution with the legal authority on which he was relying and much delay was apparently caused because those representing the DPP simply did not get around to reading it, and any person who may have read it was unable to attend Court.

The DPP’s representative did not at any time complain, in the District Court, the High Court or here, of inadequate notice of the application in the District Court. The case was adjourned several times because the first prosecutor had not read McGonnell, or was simply absent. The evidence was re-heard because there was a new prosecutor and the case then further adjourned because the new prosecutor had not read McGonnell either. There is no ground for thinking that the State had inadequate notice of the application in the District Court, or was in any way “taken short”.

The right to apply for inspection.
37. Whelan v. Kirby appears to have been the first case which upheld the right of a defendant facing a s.49 charge to apply to the District Court for an order providing for the inspection of the Intoxilyser on his behalf. In that particular case, when the application was made to the learned District judge, the latter replied (See [2005] 2 I.R. 30 at p.41, para. 16):

“I cannot get involved in this. The law is the law. It is going on far too long”.

This was held in the Supreme Court to amount to a refusal to entertain the application.

It appears that in making use of the phrase “the law is the law” the District Judge was saying in shorthand that the law provided for the use of the Intoxilyser and attributed presumptive correctness to its print out, and that was that. Nonetheless, for the reasons arising from Maher, Whelan, and McGonnell, set out earlier in this judgment, this Court held that there was a right to apply for inspection of the Intoxilyser because the presumption created by the statute was rebuttable. But without such an inspection it could not in “reality” be rebutted.

Apart from that argument, the Director in Whelan v. Kirby questioned the nature of the jurisdiction which would permit an order for inspection to be made. The applicant’s solicitor had, in making the argument in the District Court, said that it was analogous to “Gary Doyle” application. That is, it was an application grounded on an analogy with the form of order mandated in DPP v. Doyle [1994] 2 I.R. 286. Geoghegan J. did not accept this analogy though he observed that the requests for inspection were “based on the exact same constitutional principle”, (see p. 43 – 44, paragraph 22). He held that “there is jurisdiction in the District Court to make any order that would be necessary for the fulfilment of the constitutional obligation to a fair trial and fair procedures”.

38. The right to apply for inspection, declared for the first time in Whelan v. Kirby is firmly grounded on the earlier decision of Maher v. Attorney General [1973] I.R. 140. Speaking of Maher and its consequences, Geoghegan J. said, at pages 42 and 43, para. 21 of the Report of Whelan:

“Originally in relation to prosecutions arising out of specimens of blood or urine under the Road Traffic Act 1968, the equivalent certificate gave rise to an irrebuttable presumption. That provision was held to be unconstitutional by this Court in Maher. The Court held that the administration of justice in a criminal trial was confined by the Constitution to the Courts and judges constituted and appointed in accordance with the provisions thereof and therefore that the essential ingredients of the offence with which an accused was charged was necessarily reserved to such courts and judges. Once the certificate was conclusive the judicial power of the District judge was infringed and this could not be valid having regard to the Constitution.

It can be argued with some validity that apart from cases with very unusual facts the presumptions arising from the certificates in the Intoximeter cases are for all practical purposes irrebuttable, notwithstanding the statutory provision to the contrary, if there are no circumstances in which an accused can be permitted through an independent expert of his own to investigate the reliability of the apparatus or at the least if it is not generally known in what circumstances (if any) such apparatus can be unreliable”.

(Emphasis added)

In McGonnell, which was a challenge to the constitutionality of the new system of evidential breath tests, the Court made use of the right which had been declared in Whelan v. Kirby in finding the new provisions for evidential breath sampling to be constitutional.

In the present case, in the District Court, the learned Respondent gave no reason whatever for his decision. The only specific recorded submission by the State was entirely ill founded: that the McGonnell case had been superseded. The only comment of the learned Respondent, equally ill founded, was to the effect that another case had “overturned” McGonnell.

One does not know, therefore, on what basis Mr. Cullen’s application was refused or what, in the learned Respondent’s mind, was the law applicable to such applications on the basis of which, presumably, this particular application was refused.

Duty to give reasons.
39. There is uncontradicted evidence in the present case that the learned Respondent gave no reasons for his refusal of the defendant’s application to be given the documents he referred to, and to be permitted to have the intoxilyser machine professionally examined by an expert on his behalf. It is also uncontradicted that this application was first made to him on the basis of the judgment of McKechnie J. in McGonnell. This appears on the face of it to establish a right to make precisely that sort of application and a right to have such an application entertained in accordance with the requirements of natural and constitutional justice, both procedural and substantive. The appellant says that this extends to a duty to give reasons for his refusal. It is uncontradicted that the learned Respondent did no respond at all to an express request to state reasons. He said nothing at all.

It is equally uncontradicted that the learned Respondent stated that McGonnell, “the case relied on by Mr. Cullen” had been “overturned” by a later case. The State had previously submitted that the case had been “superseded”.

40. On the hearing of this appeal it was not contended by the Director that McGonnell had in fact been “overturned” or “superseded”. I have already held, as a matter of law, that neither of these things has taken place.

41. Accordingly, this case presents a somewhat unusual feature amongst the now numerous cases on whether a court or other deciding body is obliged to give reasons for a decision adverse to one of the parties. Not only (on the evidence) did the learned Respondent simply ignore the request for reasons and make no comment whatsoever on it. He did so while he laboured under the unfortunate misapprehension that the case which was the lynch-pin of Mr. Cullen’s application had been “overturned” and no longer represented the law which was binding on the learned District judge. He did not mention the case which had, as he believed, “overturned” McGonnell, though he stated to Mr. Cullen that some of his (Mr. Cullen’s) colleagues would be aware of it. His colleagues could not have been aware of it, for there is no such case. The learned Respondent did not articulate what, in his mind, was the effect of the (non-existent) case which he believed to have “overturned” McGonnell, or what it held. Without knowing this, it appears to me that any attempt to establish by some form of inference the reasons which actually operated on the learned Respondent’s mind is an exercise akin to trying to put the tail on the chalked figure of a donkey while blindfold.

___________________________________________________________

42. Having noted that peculiar feature of the present case, I now turn to the more general topic of the duty of a court or other deciding body to give reasons for a ruling which is adverse to a party affected by its decision, where that party has (as here) engaged with the decision making process, called evidence, and made submissions.

43. There has been a great deal of jurisprudence on this topic in very recent years in the High Court and in this Court and elsewhere. I would instance O’Mahony v. Ballagh [2002] 2 I.R. 410, English v. Emory v. Reimbold & Stritch Ltd. [2002] I WLR 2409, Foley v. Murphy [2008] 1 I.R. 619, Clare Co. Co. v. Harvey Kenny [2009] 1 I.R. 22, Meadows v. Minister for Justice [2010] 2 I.R. 701, Flynn v. Medical Council [2012] 3 I.R. 236, Mallak v. Minister for Justice [2012] 3 I.R. 297. For the purpose of this judgment, however, I will discuss only the cases which appear to me to be directly relevant.

44. In O’Mahony v. Ballagh and the DPP [2002] 2 I.R. 410 the respondent District Judge failed to address in any way submissions made by counsel for the defendant at the close of the prosecution case. In that context, Murphy J. held at p. 416 that:

“… every trial judge hearing a case at first instance must give a ruling in such a fashion as to indicate which the arguments he is accepting and which he is rejecting and, as far as is practicable in the time available, his reasons for so doing”.

(Emphasis added)

45. In the present case there was no suggestion in the affidavit evidence or in argument that there were any time constraints upon the learned Respondent which precluded his giving reasons for his decision. The case was adjourned so often that there was ample time to read the case cited and to find any new authority thought to exist, if necessary with the assistance of the judicial researchers.

46. Even before the recent enormous expansion of Irish jurisprudence on this question, which is paralleled by developments in the European Court of Human Rights and in the neighbouring jurisdiction, there was strong authority for a duty by a decision maker to give reasons for his decision. In State [Creedon] v. Criminal Injuries Compensation Tribunal [1988] 1 I.R. 51 the respondent Tribunal was not satisfied that a man who received fatal injuries while trying to stop a driverless van rolling down a hill had received them in the course of an attempt to save life. But it gave no reasons for this conclusion. Finlay C.J. found at p. 54 – 55:

“I feel I should add that for a tribunal of this nature, even though it is not of statutory origin and is set up by an administrative decision by the Government, to reach a conclusion rejecting in full the claim of an applicant before it and not to give any reasons for that rejection is not an acceptable and proper form of procedure”.

(Emphasis added)

Walsh J. and McCarthy J. concurred in this judgment. It can rightly be described as a decision of high authority. Moreover it is a decision of the Supreme Court given almost twenty years before the present case came before the learned respondent in the District Court, so that it can fairly be said that the obligation to give reasons for a decision in the District Court was well established (even before the recent intensive development of the jurisprudence in this area in very recent years), by the cases of Creedon and O’Mahony v. Ballagh, cited above.

47. In O’Donoghue v. An Bord Pleanála [1991] ILRM 750 the Court addressed the question of a duty to give reasons as follows (per Murphy J. at p. 757):

“It is clear that the reason furnished by the Board (or any other tribunal) must be sufficient, first to enable the Courts to review it and secondly to satisfy the persons having recourse to the Tribunal that it has directed its mind adequately to the issue before it”.

(Emphasis added)

I wish to say, though it is surely unnecessary to do so at this stage of the evolution of the jurisprudence, that I agree with that formulation of why, in point of law, it is necessary for a deciding body to give reasons. It is a practical necessity that reasons be stated with sufficient clarity that if the losing party exercises his or her right to have the decision reviewed by the Superior Courts, those Courts have the material before them on which to conduct such a review. Secondly, and perhaps more fundamentally, it is an aspect of the requirement that justice must not only be done but be seen to be done that the reasons stated must “satisfy the persons having recourse to the tribunal, that it has directed its mind adequately to the issue before it”.

48. This line of authority has been greatly expanded in recent times. Specifically in relation to the first of the principles enunciated by Murphy J. in the case just cited, in Mallak v. Minister for Justice [2012] 3 IR 297, Fennelly J. stated at p.322, para. 68 – 69:

“In the present state of evolution of our law, it is not easy to conceive of a decision maker being dispensed from giving an explanation either of the decision or the decision making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision.

… Several converging legal sources strongly suggest an emerging commonly held view that persons affected by an administrative decision have a right to know the reasons on which they are based, in short to understand them”.

(Emphasis added)

I would respectfully consider that the formulation that affected persons “have a right… in short to understand them”, them being the reasons for the decision, is an apt contemporary epitomisation of the second principle enunciated by Murphy J. in O’Mahony v. Ballagh.

I do not think, especially in light of the learned respondent’s unfortunate and erroneous belief that McGonnell had been “overturned”, that a reasonable person present in court could understand the actual reasons on which his decision to reject Mr. Cullen’s application was grounded, or be satisfied that he had adequately directed his mind to the issue before him.

49. In EMI Records Ltd. v. Data Protection Commissioner and Eircom Ltd. [2013] IESC 34, [2014] 1 I.L.R.M 225 at p. 249, para. 6.5 Mr. Justice Clarke concluded:

“It follows that a party is entitled to sufficient information to enable it to assess whether the decision is lawful and, if there be a right of appeal, to enable it to assess the chances of success and to adequately present its case on the appeal. The reasons given must be sufficient to meet those ends”.

50. In Kelly v. Commissioner of An Garda Síochána [2013] IESC 47, Mr. Kelly had been dismissed from his employment as a garda. This followed a hearing before a Board of Inquiry. That body recommended his dismissal and the Commissioner of the Garda Síochána accepted this and he was dismissed. He appealed to the Appeal Board. The Board dismissed his appeal without a hearing as it was entitled to do pursuant to statutory regulations, on the basis that the grounds of appeal were “without substance or foundation”.

O’Donnell J. held that both the Board of Inquiry and the Appeal Board had failed to give adequate reasons. He held, at para. 41:

“The only possibility for challenging the decision is by way of judicial review and, in my view, it is required that the Appeal Board provide reasons for its decision which has the effect of upholding the dismissal of a garda from the Force. I consider that this conclusion follows from an analysis of the Regulations particularly when approached in light of the Common Law principles outlined so clearly in Mallak”.

(Emphasis added)

51. Accordingly, there is recent authority for the proposition, which relates to the first principle enunciated by Murphy J. and quoted above, that the existence either of a right to appeal or of a right to seek judicial review triggers a right to a statement of reasons.

52. Although the above authorities are, in my view, dispositive of the present case, it would risk incompleteness not to have regard to the lively jurisprudence in this area which has been developed in the Courts of the United Kingdom and in the European Courts. In R. (Wheeler) v. Assistant Commissioner of the Metropolitan Police [2008] EWHC 439 (Admin) it was held that a decision maker must address the substantive points made on behalf of the person seeking review. At para. 17 the learned judge continued as follows:

“His reasons need not be elaborate or long and certainly should not be analysed as if there were a judgment of a judge of the Administrative Court, but it should appear from them that he was conscious of the substantial issues raised by the disciplined person, and explain why or on what basis he has concluded that the review should uphold the decision of the panel”.

(Emphasis added)

53. In November, 2012, the Court of Justice of the European Union (CJEU) delivered a judgment in European Union v. Bamba (Case C – 417/11). At para. 49 the Court held:

“[T]he purpose of the obligation to state the reasons on which an act adversely affecting an individual is based, which is a corollary of the principle of respect for the rights of the defence, is, first, to provide the person concerned with sufficient information to make it possible to ascertain whether the act is well founded or whether it is vitiated by a defect which may permit its legality to be contested before the European Union judicature and, secondly, to enable that judicature to review the legality of the act”.

54. The duty to give reasons, in its present form, is largely a development of the decades since the 1980s. It was, however, well established by the time of the hearing of this case in the District Court. It represents a major change (in my view for the better) in legal sensibilities and in the legal obligations of decision makers who derive their power from the Constitution or the Law.

In 1925, by contrast, it was possible for Sir James O’Connor, a judge of the Superior Courts of Ireland both before and after the revolutionary changes of the year 1922, to write in his preface to the second edition of his monumental work “The Irish Justice of the Peace”, in a section entitled “Advice to District Justices”:

“Be chary of giving reasons for your judgments. If you are not sure of them, give none. A wrong reason destroys respect for a right decision”.

This, be it noted, was specifically written as advice to the new professional District Justices who replaced the lay Justices of the old regime, and who gave such sterling service in the Irish Free State. But it no longer represents the law and I do not think that anyone would wish that it should be reinstated. It is now second nature for a judge to give reasons.

___________________________________________________________

55. The State’s principal response to the appellant’s contention based on the fact that the learned Respondent gave no reasons for his decision to refuse the appellant’s application, was to object to the point being argued at all.

Ms. Sunniva McDonagh S.C. very strongly argued that this point was not amongst those on which leave to seek judicial review had been granted to the applicant by Mr. Justice Peart on the 15th June, 2009. That leave had not been amended so as to permit the point being argued in the High Court. Ms. McDonagh very emphatically objected, on the hearing of this appeal, to the appellant being permitted to argue the point that the respondent had failed to give reasons for his judgment.

For the appellant, Mr. Micheál O’Higgins S.C. said that the point had been taken in the High Court and was within the grounds on which leave had been granted. These are set out at para. E of the Application. At subparagraph (iii) of that paragraph it was pleaded that the respondent had not properly determined the application “in accordance with the principles of natural and constitutional justice”. At subparagraph (iv) it was pleaded that:

“The hearing conducted by the District judge was unsatisfactory and not in accordance with the principles of natural and constitutional justice”.

Both the applicant and the Director filed written submissions before the High Court hearing. Part VI of the applicant’s document is headed “Failure to give reasons for his decision”. This contains paras. 40 and 41 and pleads that:

“… the failure of the learned respondent to do so [i.e. to give reasons] in this case was a breach of fair procedures. The lack of reasons also goes to the question of rationality or proportionality of the learned judge’s decision”.

The appellant expressly relied in those written submissions on the case of O’Mahony v. Ballagh, cited above, for this proposition. The written submissions from the Director of Public Prosecutions do not address these points at all.

The question of whether there is an obligation to give reasons and whether that obligation has been discharged in any particular case is an aspect of fair procedures. It is desirable that the grounds stated in an application seeking leave to apply for judicial review should be more specific and should identify the specific aspect of fair procedures being relied on. But it seems clear from the written submissions of appellant furnished prior to the High Court hearing that there can have been no misapprehension on the part of the respondent or of the Notice Party that a specific reference to failure to give reasons was intended. This failure is specifically described in those submissions as amounting to a breach of fair procedures. In the circumstances I would not uphold the objection taken.

56. It follows that, in my view, the appellant is entitled to succeed, and to have his conviction quashed, on the basis of the learned Respondent’s failure to give reasons. This was not the appellant’s core complaint: that was about the failure to give him access to the documents he wanted and to permit an examination of the Intoxilyser machine. But the “reasons” point is logically anterior to that point, if only for the reason that it is difficult to see how the decision on the substantive point can be either impugned or justified without being aware of the reasons which actuated the learned Respondent in what he did, perhaps based on his erroneous belief that McGonnell v. The Attorney General [2007] 1 I.R. 400 had been “overturned”.

Conclusion.
57. I would allow the appeal and quash the decision of the learned Respondent by way of certiorari.

Appendix A.
1. The origin of the modern law of drink driving is contained in s.49 of the Road Traffic Act, 1961.

S.49(1) provided as follows:

“A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he is under the influence of intoxicating liquor or a drug to such an extent as to be incapable of having proper control of the vehicle”.

2. Section 29 of the Road Traffic Act, 1968 amended the Section set out above by the insertion in it, after the words “of the vehicle” the following words:

“… or while there is present in his body a quantity of alcohol such that, within three hours after so driving… the concentration of alcohol in his blood will exceed a concentration of 125 milligrams of alcohol per 100 millilitres of blood”.

In the aftermath of the 1968 Act, its main evidential provision was, as we have seen, deemed to be unconstitutional in the case of Maher.

3. In the Road Traffic Act 1978, a new s.49 was inserted “in substitution for” s.49 of the 1961 Act. This preserved the old offence of driving while under the influence of an intoxicant “to such an extent as to be incapable of having proper control of the vehicle”. It also re-enacted the blood or urine offence, minus the objectionable provision for “conclusivity” discussed in the main judgment.

4. The Road Traffic Act, 1994 substituted another form of s.49 for the s.49 of the original Act as substituted by the 1968 Act. This provision was in similar terms to that in the 1978 Act except that the permitted concentration of alcohol in blood was reduced from 125 milligrams to 80 milligrams.

5. By the Road Traffic Act, 2010s.33, s.49 of the principal Act was repealed.

6. However, s.4 of the same Act re-enacted in substance the former offence as follows:

“4(1) A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while he or she is under the influence of an intoxicant to such an extent as to be incapable of having proper control of the vehicle.

A person shall not drive or attempt to drive a mechanically propelled vehicle in a public place while there is present in his or her body a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his or her blood will exceed a concentration of —
(a) 50 milligrams of alcohol per 100 millilitres of blood, or…
67 milligrams of alcohol per 100 millilitres of urine, or…
22 micrograms of alcohol per 100 millilitres of breath…”
This is the current form of the offences originally created by the Acts of 1961 and 1968.

Appendix B.
1. The origin of the obligation to provide a portion of a sample taken from him or her under a statutory power for a person charged under s.49 of the principal Act is contained in s.46 of the Road Traffic Act, 1968.

Section 46, subs. 1 and 2 states as follows:

“46.-(1) A person who complies with a requisition under section 30(1)(b), 30(2), 33(1)(b) or 33(2) shall-

(a) be given an opportunity of having an additional specimen of blood taken by a registered medical practitioner of his own choice or of giving an additional specimen of urine to that practitioner, or
(b) if the person so requests, be supplied y the designated registered medical practitioner with an additional specimen of blood taken from that person in accordance with the prescribed procedure immediately after the taking of the specimen in pursuance of the requisition or, where a specimen of urine has been provided, with portion of that specimen”.
2. Section 46 of the Act of the Road Traffic Act, 1968 was repealed by s.5 of the Road Traffic (Amendment) Act, 1978. However, a similar provision was enacted pursuant to s.21 of that same Act.

Section 21, subs. 1 and 2 state as follows;

“21.-(1) Where under this Part a designated registered medical practitioner has taken a specimen of blood from a person or has been provided by the person with a specimen of his urine, the designated registered medical practitioner shall divide the specimen into two parts, place each part in a container which he shall forthwith seal, and complete the form prescribed for the purposes of this Section.

(2) Where a specimen of blood or urine has been divided into two quantities as required by subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed containers together with a statement in writing indicating that he may retain either of the containers”.

3. The Road Traffic Act, 1994 repealed the Road Traffic (Amendment) Act, 1978. Again, however, a similar provision was enacted pursuant to s.18 of the Road Traffic Act, 1994.

Section 18, subs. 1 and 2 state as follows:

“18.-(1) Where under this Part a designated doctor has taken a specimen of blood from a person or has been provided by the person with a specimen of his urine, the doctor shall divide the specimen into 2 parts, place each part in a container which he shall forthwith seal and complete the form prescribed for the purposes of this section.

(2) Where a specimen of blood or urine of a person has been divided into 2 parts pursuant to subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed containers together with a statement in writing indicating that he may retain either of the containers”.

4. In the Road Traffic and Transport Act 2006, pursuant to s.1(e), s.18 of the Act of 1994 was amended by substituting a new subsection 1.

Section 1(e) of the Road Traffic and Transport Act, 2006 provided as follows:

“1.-(1) The Road Traffic Act 1994 is amended-

(e) in section 18, by substituting for subsection (1) the following:

“(1) Where under this Part a designated doctor or designated nurse has taken a specimen of blood from a person or has been provided by the person with a specimen of his or her urine, the doctor or nurse shall divide the specimen into 2 parts, place each part in a container which he or shall immediately seal and complete the form prescribed for the purposes of this section”.

5. In McGonnell v. A.G. [2007] 1 I.R. 400 Murray C.J. commented on the foregoing expression of the right of a driver to take a portion of a sample taken from him or her under a statutory power, as follows:

“Such a person has the opportunity of having a portion of a single specimen independent assessed if he so wishes… It is entirely irrelevant whether he should avail of his entitlement or not… It is the opportunity which is critical to fair procedures and constitutional justice”.

6. Section 33I of the Road Traffic Act, 2010 purports to repeal s.18 of the Road Traffic Act, 1994.

S.I. No. 544/2011 – Road Traffic, 2010 (Section 33) (Commencement) Order 2011 brings into force s.33I, excluding any provision as to s.18 of the Road Traffic Act 1994.

However, again a similar provision was enacted pursuant to s.15 of the Act of 2010.

Section 15(1) and (2) state as follows:

“15.–(1) Where under the Chapter a designated doctor or designated nurse has taken a specimen of blood from a person or has been provided by the person with a specimen of his or her urine, the doctor or nurse, as the case may be, shall divide the specimen into 2 parts, place each part in a container which he or she shall immediately seal and complete the form prescribed for the purposes of this section.

(2) Where a specimen of blood or urine of a person has been divided into 2 parts under subsection (1), a member of the Garda Síochána shall offer to the person one of the sealed containers and inform the person that he or she may retain either of the containers”.

See also Road Traffic Act, 2010 (Sections 15 and 17) (Prescribed Forms) Regulations 2011 (S.I. No. 540 of 2011) and

Road Traffic Act, 1994 (Sections 18 and 19) (Prescribed Forms) Regulations 2010, S.I. 434/2010.

Appendix C.
Statutory provisions applicable in 2008 which are cited in the judgment.
Road Traffic Act 1994:

1. Road Traffic Act 1994, Section 13(1)(a)

2. Road Traffic Act 1994: Section 17(2)

3. Road Traffic Act 1994: Section 21(1)

Section 13(1)(a)
Obligation to provide specimen following arrest.

13.-(1) Where a person is arrested under s.49(8) or 50(10) of the Principal Act or section 12(3), or where a person is arrested under section 53(6), 106(3A) or 112(6) of the Principal Act and a member of the Garda Síochána is of opinion that the person has consumed an intoxicant, a member of the Garda Síochána station, at his discretion, do either or both of the following-

(a) require the person to provide by exhaling into an apparatus for determining the concentration of alcohol in the breath, 2 specimens of his breath and may indicate the manner in which he is to comply with the requirement.
Section 17(2)
Procedure following provision of breath specimen under section 13.

17
(2) Where the apparatus referred to in section 13(1) determines that in respect of the specimen of breath to be taken into account as aforesaid the person may have contravened section 49(4) or 50(4) of the Principal Act, he shall be supplied forthwith by a member of the Garda Síochána with 2 identical statements, automatically produced by the said apparatus in the prescribed form and duly completed by the member in the prescribed manner, stating the concentration of alcohol in the said specimen determined by the said apparatus.
Section 21(1)
Provisions regarding certain evidence in proceedings under Road Traffic Acts, 1961 to 1994.

21.–(1) A duly completed statement purporting to have been supplied under section 17 shall, until the contrary is shown, be sufficient evidence in any proceedings under the Road Traffic Acts, 1961 to 1994 , of the facts stated therein, without proof of any signature on it or that the signatory was the proper person to sign it, and shall, until the contrary is shown, be sufficient evidence of compliance by the member of the Garda Síochána concerned with the requirements imposed on him by or under to and in connection with the supply by him pursuant to section 17(2) of such statement.Martha McEnery v Commissioner of an Garda Síochána
71/2015

Supreme Court

15 November 2016

unreported
[2016] IESC 66
Ms. Justice Laffoy

November 15, 2016

JUDGMENT
Procedural history
1. The judicial review proceedings in the High Court from which this appeal arises were brought by the respondent on this appeal (Sgt. McEnery) against the appellant on this appeal, the Commissioner of An Garda Síochána (the Commissioner), in 2013 seeking, inter alia, an order of certiorari by way of judicial review quashing a decision made by the Commissioner to summarily dismiss Sgt. McEnery from An Garda Síochána. At the time the decision was made, Sgt. McEnery had been a member of An Garda Síochána for in excess of seventeen years and she had occupied the rank of Sergeant for approximately five years. The decision of the Commissioner was expressed to be made pursuant to Regulation 39 of the Garda Síochána (Discipline) Regulations, 2007, as amended (the 2007 Regulations).

2. The judicial review proceedings were heard in the High Court by Kearns P. who delivered judgment on 20th November, 2014 ([2014] IEHC 545). Kearns P., for the reasons set out in that judgment, came to the conclusion that Sgt. McEnery’s application for relief must be refused. The order of the High Court giving effect to that judgment was an order dated 28th November, 2014, which was perfected on 23rd December, 2014. In the order, it was simply ordered that the Court refused the relief sought. Further, it was ordered that Sgt. McEnery pay the Commissioner’s costs (to include reserved costs) when taxed and ascertained.

3. Sgt. McEnery appealed from the judgment and order of the High Court to the Court of Appeal. The judgment of the Court of Appeal (Kelly J., Finlay Geoghegan J. and Peart J.) was delivered by Kelly J. on 16th October, 2015 ([2015] IECA 217). In that judgment it was found that the Commissioner acted in breach of the requirements of Regulation 39 and on that basis the appeal was allowed. The order of the Court of Appeal, which was dated 16th October, 2015 and perfected on 20th October, 2015, ordered that the appeal be allowed and the decision of the Commissioner was thereby quashed. It was further ordered that the Commissioner pay the costs of Sgt. McEnery of the appeal and the costs in the High Court, the costs to be taxed in default of agreement.

4. The Commissioner applied for leave to appeal the judgment and order of the Court of Appeal to this Court pursuant to Article 34.5.3° of the Constitution. By virtue of a determination of this Court dated 22nd January, 2016 ([2016] IESCDET 11), leave to appeal was granted.

5. In the course of case management in this Court, it emerged that in the Respondent’s Notice filed on behalf of Sgt. McEnery under Order 58, rule 18(1) of the Rules of the Superior Courts 1986, as amended, there was a failure to specify certain bases on which it was contended on behalf of Sgt. McEnery that the judgment of the Court of Appeal ought to be affirmed. The issue to which that gave rise was the subject of a separate hearing by a panel of this Court (Clarke J., MacMenamin J. and Charleton J.). Judgment was delivered by Clarke J. on 12th May, 2016 ([2016] IESC 26). Leave was given to Sgt. McEnery to argue those bases on the appeal, particular regard being had to the transitional stage at which this Court’s new constitutional regime was then and also the fact that all of the relevant points were properly before the Court of Appeal.

6. While the factual and procedural background which led to the Commissioner’s decision to dismiss Sgt. McEnery summarily is comprehensively outlined in the judgments of the High Court and the Court of Appeal, it is necessary now to outline the essential features leading to that decision which are relevant to this appeal.

Background to decision
7. In 2011 Sgt. McEnery was charged with assaulting a member of the public causing him harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997 (the Act of 1997). She was tried along with co-accused in the Circuit Court in Waterford before a judge and jury in July 2011. On 8th August, 2011 she was acquitted of assault causing harm contrary to s. 3 of the Act of 1997 but she was convicted of one count of assault contrary to s. 2(1) of the Act of 1997. Subsequently, in November 2011 she was sentenced by the Circuit Court judge to a sentence of four months imprisonment, with provision that the four month prison sentence be suspended for six months on condition that she enter into a bond to keep the peace, which she did, and be of good behaviour for a period of six months.

8. Sgt. McEnery appealed against her conviction to the Court of Criminal Appeal in November 2011. By order of the Court of Criminal Appeal made on 15th October, 2012 the appeal against conviction was dismissed and it was recorded that the sentence appeal was not pursued. The four months of imprisonment imposed by the Circuit Court would have expired in early March 2012 and the six months conditional suspension period would have expired in early May 2012.

9. On 24th December, 2012 the Commissioner issued a notice pursuant to Regulation 39 of the 2007 Regulations (the Regulation 39 Notice) to Sgt. McEnery, which contained five paragraphs and which commenced by stating (in para. 1):

“I, Martin Callinan, Commissioner of An Garda Síochána, … hereby give you notice that I propose, subject to the consent of the Minister for Justice and Equality, to dismiss you from An Garda Síochána on the grounds that I consider you unfit for retention in An Garda Síochána.”

The Commissioner then stated (in para. 2):

“I am not in any doubt that you have committed the following breach of the [2007 Regulations]: –
(a) Criminal Conduct, that is to say, conduct constituting an offence in respect of which at Waterford Circuit Court on the 8th day of August 2011 … you were duly convicted on one count of assault contrary to the provisions of Section 2 of the [Act of 1997] and thereupon judgment was duly given on the 7th day of November 2011 that you be sentenced to four months imprisonment suspended for six months on condition that you enter an Oral Bond in the sum of €200 to keep the peace and be of good behaviour for a period of six months and the Oral Bond having been entered by you in court on 7th November 2011.
The said criminal conduct is a breach of discipline within the meaning ofRegulation 5of the [2007 Regulations] and is described therein at reference number 17 in the schedule to the said Regulations.”
The last three lines of that paragraph were emphasised in bold print.

Paragraph 3 commenced as follows:

“I am not in any doubt as to the material facts on which the above breach of discipline is based and the following is a summary of the evidence of the said material facts.”

What followed was reference to two documents, namely:

(a) the certificate of conviction dated 9th November, 2011, a copy of which was attached to the Regulation 39 Notice, issued by the County Registrar for the County of Waterford certifying that
(i) on 8th August, 2011 Sgt. McEnery was duly convicted of one count of assault contrary to s. 2 of the Act of 1997, and
(ii) on 7th November, 2011 she was sentenced to four months imprisonment, suspended in the manner outlined earlier (in para. 2); and
(b) notice of the result of appeal dated 15th October, 2012 issued on behalf of the Court Registrar of the Court of Criminal Appeal certifying that at the Court of Criminal Appeal on 15th October, 2012 the appeal against conviction was dismissed.
There followed (in para. 4) the following statement:

“I am not in any doubt as to the material facts relevant to the breach of discipline specified above and I have decided that the facts and the breach are of such gravity as to merit your dismissal and that the holding of an Inquiry could not affect my decision.”

Finally, the Commissioner (in para. 5), in accordance with Regulation 39(4)(c), gave Sgt. McEnery an opportunity of advancing to him, on or before 21st January, 2013, “reasons against the said proposed dismissal”.

10. Subsequently, a submission was made on behalf of Sgt. McEnery to the Commissioner. Having outlined the content of the Regulation 39 Notice and the relevant provisions of Regulation 39, the submission included five paragraphs under the heading “Submissions as to breach of discipline and the facts relied upon by the Commissioner”, the contents of which may be summarised as follows:

(a) It was submitted that other members of An Garda Síochána had been convicted of assault contrary to s. 2 of the Act of 1997 and that those members had been permitted to remain in the force and it had not been considered appropriate to dismiss them summarily. Insofar as the Commissioner was relying solely upon the fact of conviction rather than the circumstances giving rise to the conviction, it was submitted that it would be arbitrary and unreasonable to dismiss Sgt. McEnery. Further it was submitted that there was nothing set out in the Regulation 39 Notice (as required by Regulation 39) to indicate the material facts which differentiate her case from cases of other members who had received convictions for similar summary offences. It was submitted that the simple fact of conviction could not in the circumstances be ground for summary dismissal.

(b) As regards the Regulation 39 Notice, it was submitted that the material facts had not been fully considered by the Commissioner in that he relied solely on the fact of conviction, which was only one of the material facts. It was submitted that the circumstances giving rise to the conviction and the matters before the Court at the time of conviction were also entirely relevant to the breach of discipline and that the Commissioner could not have considered all the facts, where reliance was based solely on the certificate of conviction. In seeking to rely solely on the fact of conviction, he had failed to have regard to a significant amount of facts material to the breach of discipline. Further, it was submitted that, in relying on the certificate of conviction, the Commissioner was wrongfully delegating his functions under the 2007 Regulations, but this point was not pursued on the appeal.

(c) It was stated that Sgt. McEnery accepts the findings of the jury and further accepts that those findings have an equivalence to a finding of breach of discipline on her part. However, it was submitted that a board of inquiry established pursuant to Part 3 of the 2007 Regulations could, and ought properly, consider a lesser sanction than the sanction proposed. In this context it was submitted that, in effect, the finding of the jury could be summarised as a finding that Sgt. McEnery had used “unreasonable force” in the arrest of the member of the public in question. Although it was stated that Sgt. McEnery accepts that such use of unreasonable force is a breach of discipline and requires sanction, it was submitted that, having considered the evidence before the Circuit Court (or such other evidence as the board wished to call), and any submissions made by or on behalf of Sgt. McEnery, the board of inquiry ought properly recommend either a reduction in rank or possibly a reduction in pay as the appropriate sanction. Having emphasised that Sgt. McEnery was not seeking to ignore the gravity of her conviction, or the circumstances giving rise to it, it was reiterated that the board of inquiry, considering the totality of the facts leading to the conviction, would not recommend dismissal as the appropriate sanction. It was then stated:

“It is noteworthy that the jury in the Circuit Court, having considered all the evidence, acquitted Sgt. McEnery of the more serious charge of assault causing harm and this fact and the evidence leading to that acquittal are of direct relevance to the sanction which ought to be imposed.”

(d) It was submitted that the holding of an inquiry would affect the decision of the Commissioner for the reasons outlined at (c) above and also for the reason that Sgt. McEnery would be in a position to adduce evidence as to her previous good character and disciplinary record, details of which were then outlined. Her personal circumstances, which it was submitted a board of inquiry or the Commissioner ought properly to consider prior to any decision on sanction, were also outlined.

(e) It was submitted that the convening of a board of inquiry pursuant to Part 3 of the 2007 Regulations would be the fairest and most just course in the circumstances. Further it was submitted that the establishment of such a board of inquiry would not be onerous in all the circumstances, it being suggested that the board could rely on the transcript of the proceedings in the Circuit Court, to which she would not object, subject to the sole proviso that she might be advised to give evidence to the board herself. Further, it was stated that Sgt. McEnery would seek to call evidence “in relation to mitigation”.

11. At the end of the submission, under the heading of “Summary”, inter alia, the following statements were made:

“[Sgt.] McEnery accepts the gravity of the breach of discipline with which she is charged. She accepts the breach in substance. Further she accepts fully that the breach is a serious breach requires some form of sanction. However she submits firstly that the [C]ommissioner has not complied with the provisions of [R]egulation 39 in that he has not set out clearly the material facts in relation to the breach of discipline.

It is submitted that the receipt of a criminal conviction does not as a matter of course give rise to immediate and summary dismissal from the force…. It is submitted that the use of unreasonable force, without any consideration of the circumstances, cannot and has not heretofore, given rise in the ordinary course to the summary dismissal of a member of the force.”

It was also reiterated that Sgt. McEnery would welcome the opportunity to expand on her grounds for mitigation of the sanction. Finally, it was suggested that there was no mechanism under Regulation 39 for Sgt. McEnery to propose an alternative sanction and it was stated that she would happily accede to any course which would permit the consideration of such sanctions and allow her to remain in the force.

12. By letter dated 25th March, 2013 on behalf of the Commissioner, Sgt. McEnery’s solicitors were informed that, having considered her submissions, the Commissioner was not prepared to alter his decision that the conduct of Sgt. McEnery merited her dismissal from An Garda Síochána in accordance with Regulation 39 and that the Commissioner had decided to proceed with his decision to seek requisite consent from the Minister for Justice and Equality (the Minister) to dismiss Sgt. McEnery in accordance with Regulation 39.

13. That led to the initiation by Sgt. McEnery of the judicial review proceedings in the High Court. By order of the High Court (Peart J.) made on 8th April, 2013, Sgt. McEnery was granted leave to seek various reliefs by way of judicial review, including an order of certiorari quashing the decision of the Commissioner to dismiss her. Before considering the outcome of those proceedings in the High Court and on appeal to the Court of Appeal, it is of assistance to outline the relevant provisions of the legislative structure within which the decision of the Commissioner was made.

Legislative structure
14. The 2007 Regulations, including Regulation 39, were made by the predecessor of the Minister, the Minister for Justice, Equality and Law Reform, in exercise of the powers conferred by s. 123 of the Garda Síochána Act 2005 (the Act of 2005), which authorises the making, with the approval of the Government, of regulations concerning the maintenance of discipline in An Garda Síochána. Section 14 of the Act of 2005, which is addressed because it is referred to by counsel for both parties, gives the Commissioner power to appoint persons to the ranks of garda, sergeant and inspector in An Garda Síochána and to dismiss a member within those ranks. Sub-section (2) of section 14 deals with dismissal and provides (expressly “[n]otwithstanding anything in this Act or the regulations”, the regulations, by definition, including the 2007 Regulations) that the Commissioner may dismiss a member within those ranks subject to compliance with the four conditions then set out. The first condition is that –

the Commissioner is of the opinion that–

(i) by reason of the member’s conduct (which includes any act or omission), his or her continued membership would undermine public confidence in the Garda Síochána, and
(ii) the dismissal of the member is necessary to maintain that confidence …”
The other conditions set out in paras. (b) to (d) of subs. (2) are that the member be informed of the basis of the Commissioner’s opinion and be given an opportunity to respond, that the Commissioner consider any such response, and that the Government consents to the member’s dismissal. Sub-section (3) of s. 14 provides that subs. (2) is not to be taken to limit the power to make or amend “Disciplinary Regulations”, which expression is defined in s. 3 as meaning the specific regulations then in force for so long as they should continue in force and any regulations in force under s. 123. Regulation 39 is expressed to be “without prejudice to section 14(2)” of the Act of 2005.

15. The power invoked by the Commissioner in relation to Sgt. McEnery is the power contained in Regulation 39, which is a specific regulation dealing with summary dismissal, the authority for which is s. 123 of the Act of 2005. While no issue has arisen between the parties as to any connection between s. 14 and Regulation 39, and each party simply refers to the provisions of s. 14, albeit that counsel for the Commissioner points to the recognition by the Oireachtas in enacting that provision that in certain circumstances it is for the Commissioner to determine what amounts to conduct sufficient to warrant dismissal, it seems to me that each of those provisions is an independent “stand-alone” provision and s. 14 has no specific relevance to the proper interpretation or application of Regulation 39.

16. Regulation 39 is the only regulation in Part 4 of the 2007 Regulations, which is headed “Summary Dismissal”.Part 3, which is headed “Serious Breaches of Discipline”, provides for a comprehensive process for dealing with an alleged serious breach of discipline by a member. That process comprises a multiplicity of stages: an investigation; following the investigation, the possibility of the establishment of a board of inquiry; if appropriate, action by the Commissioner on foot of the report of the board; and an entitlement on the part of the member to appeal to an appeal board against the determination of the board of inquiry or the disciplinary action taken by the Commissioner or both. In contrast the process provided for in Part 4 up to the proposed decision stage only involves the Commissioner.

17. The power conferred on the Commissioner by para. (1) of Regulation 39 is power, subject to Regulation 39, to –

“… dismiss from the Garda Síochána any member (not being above the rank of Inspector) whom he or she considers unfit for retention in the Garda Síochána.”

That power is qualified by para. (2), which provides that the power of dismissal “shall not be exercised” except where at least one of three conditions stipulated in that paragraph is complied with. The only one of those conditions which is relevant for present purposes is that contained in sub-paragraph (a), which stipulates that:

“… the Commissioner is not in any doubt as to the material facts and the breach of discipline is of such gravity that the Commissioner has decided that the facts and the breach merit dismissal and that the holding of an inquiry under these Regulations could not affect his or her decision in the matter ….”

18. The giving effect to exercise of the power of dismissal is also qualified by para. (4) of Regulation 39 which, insofar as is relevant to the decision in issue on this appeal, provides:

“The power of dismissal conferred by this Regulation shall not be exercised –
(a) where the member concerned has completed his or her period of probation, without the consent of the Minister,
(b) where paragraph 2(a) applies, without the member concerned being informed of the material facts and the relevant breach of discipline, and
(c) … without the member being given an opportunity of submitting to the Commissioner reasons against the proposed dismissal.”
19. A “breach of discipline” which is a component of the requirement set out in paragraph (2)(a) is defined in Regulation 3 as having the meaning given to it in Regulation 5. Regulation 5 defines the expression as follows:

“Any act or conduct by a member which is mentioned in the Schedule constitutes a breach of discipline.”

The Schedule itemises thirty acts or forms of conduct “constituting breaches of discipline”, as set out in the heading to the Schedule. Those breaches of discipline are identified for the purpose not only of the application of Part 4 and Part 3, but also Part 2 of the 2007 Regulations, which deals with less serious breaches of discipline.

20. As is clear from the Regulation 39 Notice, the Commissioner was regarding the criminal conduct of Sgt. McEnery which resulted in her conviction, as set out therein, as “a breach of discipline within the meaning of Regulation 5 …” by reference to “number 17 in the Schedule”, which is in the following terms:

“17. Criminal conduct, that is to say, conduct constituting an offence in respect of which there has been a conviction by a court.”

As counsel for the Commissioner pointed out, breach of discipline in the form of criminal conduct, as thus described, is the only breach of discipline identified in the Schedule that involves a finding by a court based on a higher standard of proof than is required by the 2007 Regulations. Regulation 9 of the 2007 Regulations stipulates that in any disciplinary proceedings proof of a breach of discipline is to be established on the balance of probabilities.

21. It is important to record that counsel for Sgt. McEnery have at all times made it clear that it is not contended that Regulation 39 is in any way defective in law or ultra vires the powers conferred on the Minister under the Act of 2005. Moreover, it is not contended that the Commissioner does not have the necessary power to apply the provisions of Regulation 39 in an appropriate case. It is accepted that the Commissioner is entitled to summarily dismiss a member without holding an inquiry provided the circumstances identified in Regulation 39 are met and further that the decision complies with the principles of natural and constitutional justice. As regards Regulation 39, the nub of the challenge by Sgt. McEnery to the decision of the Commissioner has at all times been that he did not properly apply its provisions.

Judgment of the High Court
22. In his judgment in the High Court, Kearns P. identified three grounds of complaint pursued on behalf of Sgt. McEnery. What he characterised as the main ground of complaint was that the Commissioner acted in breach of fair procedures and constitutional justice in that he relied solely on the fact of conviction and failed to have regard to any other considerations, including the possibility of a lesser sanction than dismissal. In relation to this complaint, Kearns P. stated (at p. 13):

“Insofar as the imposition of some lesser penalty is concerned, it remains the fact in the instant case that the applicant was invited to and did make submissions to the Commissioner which submissions were considered and taken into account by the Commissioner in reaching the decision which he did in this case. In such circumstances, his decision cannot be said to fail a rationality test as the same is understood in the context of judicial review.”

23. It was also recorded by Kearns P. that Sgt. McEnery had claimed that “she was aware of other members of An Garda Síochána having in the past been acquitted of assault causing harm contrary to s. 3 of the [Act of 1997] and, like her, having been convicted of assault simpliciter contrary to s. 2 of the same Act who were not in fact dismissed” (at p. 11). Having analysed what was disclosed in the discovery made by the Commissioner in the proceedings, Kearns P. concluded as follows (at p. 13):

“Thus the Court is not satisfied that the applicant has made out any factual basis for holding that her treatment has been discriminatory or disproportionate in comparison with any other case.”

24. Finally, it was recorded that Sgt. McEnery also claimed that the decision of the Commissioner should be quashed because he failed to give adequate reasons for his decision. On this point, Kearns P. stated that the reasons given by the Commissioner were clearly set out in the Regulation 39 Notice and that by the letter of 25th March, 2013 the Commissioner indicated that he was not prepared to alter his decision. Kearns P. stated that he accepted that decision-makers must achieve fairness in the process by giving adequate reasons such as to leave the party affected in no doubt as to the considerations underpinning the decision. He cited two recent decisions of this Court, including Kelly v. The Commissioner of An Garda Síochána [2013] IESC 47. On this point Kearns P. concluded as follows (at p. 17):

“The present case is not like the Kelly case in that there is no material dispute of fact or ‘tangled web’ and the reasons for the dismissal are clearly and adequately set out in the decision of The Commissioner. There can be no doubt as to the reason for his decision, namely, the breach of discipline in the form of the conviction for assault which left the Commissioner satisfied that the breach of discipline was of such gravity as to merit dismissal.”

Judgement of the Court of Appeal
25. Before addressing the principal point pursued on behalf of Sgt. McEnery on the appeal, Kelly J., in his judgment made some general observations, with which I agree, in relation to the power given to the Commissioner to summarily dismiss a member of the force. He pointed out (at para. 32) that the exercise of the power under s. 14 of the Act of 2005 is not subject to the unfair dismissal legislation and that members have no recourse open to them in that regard save by way of judicial review. The same limitations apply to the power to summarily dismiss under Regulation 39. Referring to a passage from the judgment of the High Court (O’Hanlon J.) in State (Jordan) v. Commissioner of An Garda Síochána [1987] I.L.R.M. 107 (Jordan), which he had quoted (at para. 21) and which had been quoted in part by Kearns P. in his judgment, Kelly J. stated that the power of summary dismissal, as was stated by O’Hanlon J., is an exceptional one and it is one which may only be used in “very limited” circumstances. He also adverted (at para. 34) to the procedure provided for in Part 3 of the 2007 Regulations as being the normal method for dealing with serious breaches of discipline. He noted (at para. 35) that the only check on the exercise of the power of summary dismissal by the Commissioner is the fact that he is required to seek the consent of the Minister before giving effect to a decision to dismiss. Having regard to the foregoing matters, Kelly J. stated (at para. 36):

“Given the very limited recourse which is available to a Garda who is subject to a summary dismissal under Regulation 39, the exceptional nature of the power given to the Commissioner and the very limited scope for the exercise of that power, the courts on judicial review ought to be astute to ensure that the power is exercised properly and in accordance with law.”

26. In his judgment, Kelly J. identified the principal point which was made on the appeal on behalf of Sgt. McEnery as being that the Commissioner had confused and conflated two quite separate matters, namely the material facts and the relevant breach of discipline. As to the proper interpretation of Regulation 39, having quoted, in part, Regulation 39(2)(a), Kelly J. stated (at para. 38):

“Thus, on the plain wording of [R]egulation 39, the Commissioner must not be in any doubt as to (i) the material facts and (ii) that the relevant breach of discipline is of such gravity that both ‘ the facts and the breach merit dismissal ’ before the power of summary dismissal can be exercised. (My emphasis).”

27. Having recorded that it had been contended on behalf of Sgt. McEnery that the certificate of conviction “cannot in and of itself amount to all material facts”, and that he was of opinion that such contention was correct, Kelly J. stated (at para. 41):

“Such a certificate gives no information as to the nature of the assault, the manner in which it occurred or the circumstances which gave rise to the jury acquitting the appellant of the s. 3 offence and convicting under the lesser s. 2 or any other material facts.”

Kelly J. then (at para. 42) expressed the view that the Commissioner had indeed conflated the two matters upon which he had to be satisfied under Regulation 39. Observing that the Commissioner “must not be in any doubt as to the material facts and the relevant breach of discipline being of such gravity that the facts and the breach merit summary dismissal”, he stated that the Commissioner is required –

“… to consider not just the conviction (or criminal conduct) which constitutes the breach of discipline but also the material facts which may be extraneous to the actual breach but nevertheless material.”

28. Setting out his conclusion, Kelly J. stated as follows (at para. 43):

“By treating the material facts and the breach of discipline as one and the same he blinkered himself from a consideration of material facts. That was in breach of the requirements of Regulation 39 and of [Sgt. McEnery’s] right to have the material facts which gave rise to the breach of discipline fully considered.”

On the basis of the foregoing conclusion, the appeal to the Court of Appeal was allowed and the decision of the Commissioner was quashed. However, Kelly J. noted (at para. 44) that such order “does not preclude the [Commissioner] from taking whatever lawful steps are deemed appropriate concerning [Sgt. McEnery] pursuant to the Regulations”.

29. It will be clear from the foregoing outline of the judgment of the Court of Appeal that the Court of Appeal did not address two of the arguments which had been raised in the High Court and which had been rejected by Kearns P. As has been recorded earlier (at para. 5), this Court has determined that Sgt. McEnery is entitled to argue the additional or alternative bases argued in the High Court on this appeal, which were succinctly summarised by Clarke J. in his judgment (at para. 2.1) as follows:

“… a further ground was canvassed arising from what was said to be the inadequacy of the reasons given by the Commissioner for the decision to summarily dismiss, together with a ground arising from what was argued to be discrimination in the implementation of the summary dismissal provision, given that other gardaí, it was said, who were the subject of similar convictions, were not dismissed.”

30. The outcomes of all of the foregoing judgments create the context within which, having regard to the grounds relied on by both parties to this appeal, the issues which fall to be considered by this Court are identified.

The issues on this appeal
31. In the light of the foregoing, I consider that the issues which fall to be determined on this appeal are the following:

(a) Whether the decision of the Commissioner as proposed in the Regulation 39 Notice of 24th December, 2012 and confirmed in the letter of 25th March, 2013 is ultra viresRegulation 39 by being in breach of the requirements of Regulation 39(2)(a) by reason of the reliance by the Commissioner solely on the conviction of Sgt. McEnery in the Circuit Court and the sentence imposed on her as material to the breach of discipline and of the failure of the Commissioner to consider any other facts which it is contended on behalf of Sgt. McEnery are material facts for the purpose of the proper application of Regulation 39(2)(a).
(b) Whether the decision of the Commissioner should be quashed on the ground that the Commissioner failed to give adequate reasons for his decision in accordance with either –
(i) the requirements of Regulation 39, or
(ii) the principles of natural and constitutional justice.
(c) Whether Sgt. McEnery has established that the decision of the Commissioner contravened natural and constitutional justice in treating Sgt. McEnery in a manner which is discriminatory and disproportionate in comparison to the treatment of other members of An Garda Síochána who have been convicted of assault.
First issue: whether decision ultra vires Regulation 39
32. In considering the first issue, the Commissioner having invoked Regulation 39 and opted to exercise the power to summarily dismiss Sgt. McEnery, the fundamental questions are: –

(a) How was the Commissioner required to exercise the power thereby conferred in accordance with the provisions of Regulation 39 and, in particular, Regulation 39(2)(a)?

(b) Were those provisions properly complied with in the issuance of the Regulation 39 Notice and the subsequent decision giving effect to the proposed decision, having regard to the apparent failure of the Commissioner to consider any facts as being material facts, other than the fact of the conviction of Sgt. McEnery for the s. 2 offence and the penalty imposed on her by the Circuit Court?

Answering those questions involves, first, a consideration of the proper interpretation of Regulation 39 and, in particular, Regulation 39(2)(a), which is a question of law, and, thereafter, an analysis of what the Commissioner, on the basis of the evidence available, did.

33. On the interpretation of Regulation 39, the position of counsel for the Commissioner is that the primary test in determining whether the Commissioner has power to summarily dismiss is whether the member, in this case Sgt. McEnery, is “unfit for retention” in An Garda Síochána. The making of that decision is a matter solely for the Commissioner. However, it is subject to the Commissioner being satisfied as to compliance with the limitations imposed by Regulation 39(2), of which Regulation 39(2)(a) only is relevant on this appeal, which limitations preclude the Commissioner from exercising the power of summary dismissal unless the relevant provisions, in this case all the components of Regulation 39(2)(a), are complied with.

34. As regards the proper interpretation of Regulation 39(2)(a), the position of counsel for the Commissioner is that, properly read, it requires that –

(i) the Commissioner is not in any doubt as to the material facts, and

(ii) the relevant breach of discipline is of such gravity that the Commissioner has decided that the facts and the breach merit dismissal, and

(iii) the holding of an inquiry under the 2007 Regulations could not affect the Commissioner’s decision in the matter.

In other words, it comprises three components. In particular, counsel for the Commissioner submit that the standard that the Commissioner be “not in any doubt” only applies to the “material facts” component of the provision, so that, it is suggested, the interpretation in the judgment of the Court of Appeal (at para. 38), which is quoted earlier, is erroneous.

35. There is, perhaps understandably, a considerable amount of “hair-splitting” on the part of both parties on the proper interpretation of Regulation 39. However, I am satisfied that the identification of the three components of Regulation 39(2)(a) which is suggested on behalf of the Commissioner, as outlined in the next preceding paragraph, reflects the proper construction of Regulation 39(2)(a). If the Commissioner is satisfied that the requirements of those three components are met, he may then consider the primary test – whether the member is “unfit for retention”. It is worth noting that the focus of Regulation 39(2)(a) is on a breach of discipline, whereas the other sub-paragraphs of Regulation 39(2), in broad terms, focus on the security of the State (sub-para. (b)) and failure to attend for duty (sub-para. (c)). The material facts referred to in sub-para. (a), accordingly, are facts relevant to the breach of discipline on the part of the member.

36. Turning to what the Commissioner did in giving effect to Regulation 39(2)(a) by issuing the Regulation 39 Notice, in my view, this is best analysed by considering what can be gleaned from the Regulation 39 Notice itself as to how the Commissioner determined that he was not precluded by Regulation 39(2)(a) in adopting the summary dismissal approach, which, in reality, is the only evidence available on this point. In relation to the requirements of Regulation 39(2)(a), it was stated in the Regulation 39 Notice as follows: –

As regards the first component, the Commissioner was not in any doubt –

(i) that Sgt. McEnery had committed the breach of the 2007 Regulations outlined, which was identified by reference to the breach of discipline referenced at number 17 in the Schedule (para. 2),
(ii) as to the material facts on which the breach of discipline was based (para. 3), and
(iii) as to the material facts relevant to the breach of discipline specified therein (para. 4).
Further, the material facts were identified (in para. 3) in the summary of the evidence of the said material facts set out therein by reference to the certificate of conviction and of the imposition of the sentence and the result of the appeal.
(b) As regards the second and third components, it was not stated that the Commissioner was “not in any doubt” in relation to either of those components. Rather it was stated that he had made a decision in relation to each of those components (para. 4).

Whether in the Regulation 39 Notice the Commissioner addressed all of the requirements of Regulation 39(2)(a) turns, however, on whether the identification in it of the material facts by the Commissioner is correct, as is contended by the Commissioner, which is vigorously disputed on behalf of Sgt. McEnery.

37. The core issue, accordingly, is whether, in identifying the material facts solely as the unsuccessfully appealed conviction of Sgt. McEnery on one count of assault contrary to s. 2 of the Act of 1997 and the imposition of the sentence of four months by the Circuit Court judge by reference to the certificate of conviction, and in not identifying the other facts suggested on behalf of Sgt. McEnery as being material, the Commissioner established that the first component of Regulation 39(2)(a) was complied with, so that he was not precluded by Regulation 39(2) from exercising the power of summary dismissal. In addressing that issue, it is necessary to consider what other factual matters are contended on behalf of Sgt. McEnery as being material facts within the meaning of s. 39(2)(a), which should have been addressed in the Regulation 39 Notice. As the summary of Sgt. McEnery’s submissions to the Commissioner outlined earlier (at paras. 10 and 11) indicate, in those submissions it was suggested in very general terms that the following matters constituted facts which were material to the application of s. 39(2)(a):

(a) the circumstances giving rise to the conviction;

(b) the matters before the Circuit Court at the time of the conviction and the evidence before the Circuit Court;

(c) the fact that the jury in the Circuit Court, having considered all the evidence, acquitted Sgt. McEnery of the more serious charge under s. 3 of the Act of 1997; and

(d) the evidence leading to that acquittal.

Having considered the statement of grounds filed on behalf of Sgt. McEnery in the High Court, I consider that there is nothing in that statement which goes beyond the matters outlined above. Moreover, I do not consider that, before the Regulation 39 Notice was issued, the Commissioner was under any obligation to have regard to matters outside the parameters of Regulation 39(2)(a) which might have been considered by a board of inquiry under Part 3 of the 2007 Regulations in considering the application of Regulation 39 to the circumstances, for example, the disciplinary record of Sgt. McEnery or her personal circumstances.

38. The first component of Regulation 39(2)(a) clearly envisages that the Commissioner will have regard to two matters: the material facts and the relevant breach of discipline and that, in assessing the gravity of the breach of discipline to decide whether it merits dismissal, he or she must make the relevant decision by reference to “the facts and the breach”. That the Commissioner has to have regard to both matters is reflected in Regulation 39(4)(b), which stipulates that the member must be informed of “the material facts and the relevant breach of discipline”. The necessity for the Commissioner to be in no doubt as to the material facts, which clearly involves being satisfied that there is no conflict as to the underlying facts, and to disclose those facts to the member to whom notice is being given under Regulation 39 is very obvious in the case of the various types of conduct itemised in the Schedule, apart from the “[c]riminal conduct” referenced at Number 17. To take the first conduct itemised in the Schedule as an example, it is referred to as “[d]iscreditable conduct”, that is to say, the member –

“… conducting himself or herself in a manner which the member knows, or ought to know, would be prejudicial to discipline or reasonably likely to bring discredit to the Garda Síochána.”

Clearly, for the Commissioner to assert that such conduct on the part of a member constitutes such a breach of discipline, the material facts would have to be identified. However, the question at the heart of the dispute between the Commissioner and Sgt. McEnery, given that the breach relied on by the Commissioner is the breach referenced at number 17 in the Schedule, is whether, as the Commissioner contends, the material facts coincide with, that is to say, correspond to the actual basis of the breach, being criminal conduct constituting an offence in respect of which there has been a conviction, or whether, as Sgt. McEnery contends, the material facts extend beyond the conviction.

39. On the appeal, the Commissioner takes issue with all of the findings of the Court of Appeal contained in paras. 41 to 43 inclusive of the judgment, as outlined earlier. On the finding as to the conflation of the two matters, namely, material facts and relevant breach of discipline, it is contended that the Commissioner did not “wrongly” conflate those matters. Aside from suggesting that the two matters could be said to have crystallised together with the conviction given the nature of the breach, it is submitted that the Commissioner dealt with each of the matters sequentially in the Regulation 39 Notice and, accordingly, did not wrongly conflate them. Having pointed to the broad range of acts and conduct which constitute a breach of discipline as defined in the 2007 Regulations by reference to the Schedule therein, it is suggested that it is obvious that in some scenarios the breach and the material facts may not be one and the same, so that the Commissioner is obliged to look at both. It is submitted on behalf of the Commissioner that the position is necessarily different when dealing with criminal conduct as itemised by reference to number 17 in the Schedule, where a court or a jury has already determined the material facts beyond reasonable doubt. It is also submitted that, if the Commissioner was required in relation to the conviction in this case to consider the nature of the assault, the manner in which it occurred or the circumstances which gave rise to the jury acquitting Sgt. McEnery of the s. 3 offence, as the Court of Appeal has found, that would necessarily involve looking behind and undermining the verdict of the jury, notwithstanding that it was upheld on appeal, and undermining the conviction.

40. It is further submitted on behalf of the Commissioner that, if the Commissioner is required to look behind the verdict of the jury, the consequence is that the power of summary dismissal given to the Commissioner is weakened to the extent of being unworkable. Further, as to the position of Sgt. McEnery, as recorded in the judgment of the Court of Appeal (at para. 26), namely, that a consideration of the material facts or conduct which gave rise to the conviction would “involve consideration of the transcript of the evidence [in the Circuit Court]” and also “the ability on the part of the appellant to adduce evidence of her own circumstances and character”, it is suggested that such an approach would involve something other than a summary process as envisaged in Regulation 39. In any event, it is submitted that the latter matters are not facts which are material to the breach of discipline, but rather represent an attempt by Sgt. McEnery to mitigate her situation and, accordingly, are matters to be raised only by submission pursuant to Regulation 39(4)(c).

41. Counsel for Sgt. McEnery, in support of their submission that the certificate of conviction for assault simpliciter was an insufficient basis for the Commissioner to conclude that Sgt. McEnery is unfit to be retained in the force, submit that it is important to have regard to the phraseology of the breach of discipline the subject of the Commissioner’s decision, that is to say, the breach referenced at number 17 in the Schedule to the 2007 Regulations. It is suggested that it is not a breach of discipline to be convicted of a criminal offence, but rather the breach is the conduct which results in the criminal conviction. It is true that it is “[c]riminal conduct” which constitutes the breach of discipline, but, as the words identifying the relevant breach at number 17 in the Schedule make clear, that is “conduct constituting an offence in respect of which there has been a conviction by a court”, which is somewhat unusual phraseology. As regards the interpretation suggested by counsel for Sgt. McEnery, it seems to me that, if the intention in enacting the 2007 Regulations was that the breach of discipline referenced at number 17 of the Schedule should be the actual conduct on the part of the member which results in a criminal conviction, that could have been simply stated in those terms. The words used at number 17 do not say that. On the contrary, they give the impression of a deliberate detachment from the actual conduct of the member which resulted in the conviction, which suggests that the objective may have been to avoid the conviction being re-opened in the disciplinary process. Considering the words used in the overall context of the Schedule and of the 2007 Regulations as a whole, by reference to the objective of the Act of 2005, I have come to the conclusion that the proper interpretation of the words “conduct constituting an offence” is conduct or behaviour which, as laid down by statute or common law, makes up a particular offence, or, to put it another way, the nature of the offence having regard to the ingredients of that offence.

42. While it is also true, as is submitted on behalf of Sgt. McEnery, that, as with all other breaches of discipline, there is nothing to suggest that a breach by reference to number 17 of the Schedule must automatically be categorised as either serious or less serious, the “serious” and “less serious” dichotomy which is an integral part of the 2007 Regulations, while of relevance in relation to the disciplinary processes provided for in Part 3 and Part 2 respectively, is not of relevance in relation to Part 4, that is to say, Regulation 39. In particular, where the requirements of Regulation 39(2)(a) must be met, the “serious” test is expressed in explicit terms and requires that the facts and the breach be of such gravity as to merit dismissal, which leads to the primary test, the “unfit for retention” test.

43. Attention is also drawn by counsel for Sgt. McEnery to the difference between the nature of the offence for which Sgt. McEnery was tried in the Circuit Court, the offence created by s. 3 of the Act of 1997, and the offence for which she was ultimately convicted, the offence created by s. 2 of the Act of 1997. Section 3(1) provides:

“A person who assaults another causing him or her harm shall be guilty of an offence.”

The word “harm” is defined in s. 1 of the Act of 1997 as meaning “harm to body or mind and includes pain and unconsciousness”. It is suggested by counsel for Sgt. McEnery that the threshold for what constitutes harm is very low and can include pain. Section 2(1), on the other hand, provides:

“A person shall be guilty of the offence of assault who, without lawful excuse, intentionally or recklessly –
(a) directly or indirectly applies force to or causes an impact on the body of another, or
(b) causes another to believe on reasonable grounds that he or she is likely immediately to be subjected to any such force or impact,
without the consent of the other.”

It must be of significance, it is suggested on behalf of Sgt. McEnery, that the jury saw fit to acquit her of causing harm to the member of the public and that this is a matter which ought to have formed part of the consideration of Sgt. McEnery’s position by the Commissioner.

44. That the jury acquitted Sgt. McEnery of the s. 3 offence, in my view, is not material to the function of the Commissioner under Regulation 39 in the manner suggested by counsel for Sgt. McEnery, namely, that the acquittal and the evidence leading to it is a “material fact” for the purposes of the first component of Regulation 39. The Commissioner’s primary function under Regulation 39 is to determine whether Sgt. McEnery is unfit for retention in An Garda Síochána. In the exercise of that function, the Commissioner must be satisfied that the breach of discipline is of such gravity that both the facts and the breach merit dismissal. The breach in this case is conduct constituting the offence under s. 2 of the Act of 1997 of which Sgt. McEnery was convicted, which was conviction on one count of assault contrary to s. 2, as the certificate of conviction records.

Given that the breach is based on conduct constituting the offence under s. 2, the only facts material to the gravity of the breach and whether dismissal is merited are the fact of conviction by the jury, the nature of the offence which was the subject of the conviction, and the imposition of the sentence by the Circuit Court following the conviction. It follows that neither the factual basis of the assault nor the factual circumstances in which it occurred are material facts, as contended for on behalf of Sgt. McEnery. However, it must not be overlooked that on an objective analysis of the gravity of the breach of discipline based on the nature of the offence which was the subject of the conviction, a relevant factor may be a comparison with the nature of a more or less serious offence of which the member might be charged and convicted or acquitted.

45. The application of Regulation 39 by reference to a breach of discipline based on the existence of the criminal conduct referred to at number 17 in the Schedule to the 2007 Regulations may arise by reason of conviction on a broad range of offences, ranging in seriousness, for example, from conviction for murder, on the one hand, to conviction for a summary offence for which a fine is imposed, say, for having in one’s possession a television set without authorisation by a television licence for the time being in force, on the other hand. In every case, what the Commissioner has to be satisfied as to is whether the conduct constituting the offence, which is the subject of the offence, which, in reality, is the basis of the breach of discipline, merits dismissal. Applying that test to each of the two examples given above should not present any undue difficulty for the Commissioner in determining whether dismissal is merited, in that it would clearly be merited for conduct which led to conviction for murder but not to conviction and a fine for having a television set without a licence.

46. On the other hand, there are unquestionably within the range of offences between those two examples many offences conviction for which would present difficulty for the Commissioner in determining whether in a particular case the conduct constituting such offence would merit dismissal or not, where there has been a conviction for the offence. In such cases, in my view, on the proper construction of Regulation 39, the Commissioner must conduct an objective analysis of the information available in relation to the offence to which the conviction relates. In so doing, the obvious questions which must be addressed are the following:

(a) What is the nature of the offence (whether punishable on indictment or on summary conviction), which should be ascertainable with clarity from the certificate of conviction and by reference to the relevant statutory provisionor common law rule which creates the offence?

(b) What is the gravity, that is say, the seriousness of the conduct constituting the offence for which the member has been convicted in the context of considering whether the member convicted is unfit for retention in the force under a regulation the objective of which is to ensure the maintenance of discipline in An Garda Síochána?

(c) In aid of answering the question at (b), how is the seriousness of the offence and the conviction for the offence reflected in the sanction imposed by the sentencing court?

(d) Would the holding of an inquiry under Part 3 of the 2007 Regulations affect the decision of the Commissioner; in other words, depending on the process under Part 3, would a board of inquiry recommend, or, on appeal, would the appeal board decide, that the appropriate disciplinary action is dismissal?

With the answers to question (a) and question (b) and with the assistance of the answer to question (c), the Commissioner should be in a position to determine the second component of Regulation 39(2)(a), namely, whether the breach of discipline in question merits dismissal. If he determines that it does merit dismissal, and, additionally, if the answer to question (d), which the Commissioner is in a better position to answer than anybody else, is that the relevant adjudicative body would not, as a matter of probability, recommend or decide that the appropriate disciplinary action should be a sanction other than dismissal, the third component of Regulation 39(2)(a) would be complied with.

47. In this case, before issuing the Regulation 39 Notice, the Commissioner was in a position to effectively address each of those questions. Moreover, in my view, for present purposes it may be assumed from consideration of the contents of the Regulation 39 Notice, that he did so.

48. Reiterating that, on the proper interpretation of Regulation 39 by reference to the breach referred to at number 17 in the Schedule to the 2007 Regulations, the breach of discipline is conduct constituting the offence of which the member is convicted, as stated earlier, the contention of counsel for Sgt. McEnery that the Commissioner was required to consider the nature of the assault and the circumstances in which it occurred, in my view, is not correct. However, in support of that contention, reference is made to the fact that a member of An Garda Síochána may still be disciplined for an assault on a member of the public, even if he or she has been acquitted, and further that there is a possibility that the member will be dismissed as a result of the disciplinary process, the process in question obviously being the process provided for in Part 3 of the 2007 Regulations. That possibility does undoubtedly exist, because, as has been referred to earlier, the standard of proof applicable in any disciplinary proceedings under the 2007 Regulations is the balance of probabilities. However, where the basis of the breach of discipline is criminal conduct constituting an offence in respect of which there is a conviction where the standard of proof applied is beyond reasonable doubt, that argument does not advance Sgt. McEnery’s case. On the contrary, if, for example, in a situation where a member had been convicted before a jury of a criminal offence, it was open to a board of inquiry set up under Part 3 of the 2007 Regulations to come to a different conclusion, perhaps, because witnesses who had testified at the criminal trial were unavailable or unwilling to give evidence, the disciplinary process would, as submitted on behalf of the Commissioner, be unworkable.

49. What is of crucial significance in this case, in my view, is that the Commissioner availed of the option, which was open to him, to summarily dismiss Sgt. McEnery as provided for in Regulation 39. If he had considered it appropriate, which he obviously did not, he might have invoked the procedure provided for in Part 3 of the 2007 Regulations. However, neither a member of An Garda Síochána, nor a court at the request of the member, can compel or mandate the Commissioner to avail of the Part 3 process rather than the summary dismissal process.

50. In this case, in issuing the Regulation 39 Notice, the Commissioner took the primary step in the first stage of that process. The necessity for the existence of a summary dismissal process in relation to members of An Garda Síochána is recognised in the passage in Jordan quoted in the judgment of the Court of Appeal. There, O’Hanlon J. stated (at p. 115):

“I am of opinion that special considerations apply in relation to the power of the State to dispense with the services of members of the armed forces, or the Garda Síochána, and of the prison service because it is of vital concern to the community as a whole that the members of these services should be completely trustworthy. For this reason, I take the view that it was permissible to confer on the Commissioner … the exceptional powers contained in Reg. 34 of the Discipline Regulations 1971, but I also accept the contention of counsel for the prosecutor that the scope for making use of these powers must be very limited in character.”

51. By way of explanation, Reg. 34 referred to in that passage was the predecessor of Regulation 39 of the 2007 Regulations. Insofar as is relevant for present purposes, in substance, Regulation 39 is similar to Reg. 34. I would not disagree with anything stated in that passage. However, of course, as has been recorded earlier (at para. 21) there has never been a challenge by Sgt. McEnery to the validity of Regulation 39. In his judgment in Jordan, O’Hanlon J. then went on to suggest some circumstances in which the Commissioner would be justified in going the summary dismissal route rather than holding an inquiry. One such example was where the Commissioner was a witness to a grave breach of discipline by the member in question, which was committed in his presence. Another example was where the member admitted that he was guilty of a serious breach of discipline, O’Hanlon J. stating that (at p. 115) –

“… the Commissioner could lawfully act upon the faith of such admission without resorting to the time-consuming process of the inquiry machinery which is outlined in the regulations.”

52. The circumstances of this case do not align with either of the circumstances identified by O’Hanlon J. in Jordan. In this case, Regulation 39 was invoked in circumstances where Sgt. McEnery had been convicted of the offence under s. 2 of the Act of 1997 in the Circuit Court and a sentence had been imposed in consequence, although suspended. It is not the case, in my view, that the use of Regulation 39 in those circumstances could be considered as exceeding the “very limited in character” use suggested in Jordan, which is an interpretation with which I agree. The Regulation 39 Notice was issued by the Commissioner in this case after the unsuccessful appeal to the Court of Criminal Appeal against the conviction. Given that, when the Regulation 39 Notice issued, Sgt. McEnery had been convicted by the jury in the Circuit Court over sixteen months earlier, and the sentence of the Circuit Court had been imposed over thirteen months earlier, it is hardly surprising that at that stage the Commissioner would wish to avoid “the time-consuming process of the inquiry machinery” outlined in the 2007 Regulations. Whether he was entitled to initiate the summary dismissal process at that stage, as he did, depends on whether the requirements of Regulation 39(1) and (2)(a) were complied with. As stated earlier, I consider that it may be assumed for present purposes from the contents of the Regulation 39 Notice that he addressed them and, in particular, that he addressed “the facts and the breach” as he was required to do, being the conviction and the sentence, in determining whether the breach of discipline was of such gravity as to merit dismissal.

53. The answer to the first issue turns on the proper interpretation of Regulation 39(2)(a) on its application by reference to the criminal conduct referred to at number 17 in the Schedule to the 2007 Regulations. While, hitherto, the focus has been primarily on the actual wording of those specific provisions, it must be borne in mind that the 2007 Regulations must be interpreted against the background of the Act of 2005, and, in particular, s. 123, from which it is clear that the objective of the 2007 Regulations is the maintenance of discipline in An Garda Síochána. Moreover, while the maintenance of discipline is important in its own terms, it is also crucial for maintaining public confidence in An Garda Síochána. A fundamental function of An Garda Síochána is upholding the criminal law. It is important to recall that the proper interpretation of the criminal conduct referred to at Number 17 in the schedule is relevant to the disciplinary processes governed by Part 3 and Part 2 of the 2007 Regulations, not just to Regulation 39. The example given earlier (in para. 48) as to a situation in which the disciplinary process would be unworkable, clearly illustrates that to interpret the breach of discipline invoked by the Commissioner in this case by reference to Number 17 in the schedule other than in the manner suggested earlier (in para. 42) would not be conducive to the maintenance of discipline in An Garda Síochána and would have the effect of eroding public confidence in An Garda Síochána.

54. Having regard to the foregoing, the answer to the first issue is that there was no material fact which the Commissioner was obliged not to be in any doubt about or to have regard to in determining whether the breach of discipline was of such gravity as to merit dismissal other than the fact of the conviction of Sgt. McEnery of the offence under s. 2 of the Act of 1997 and the sentence imposed by the Circuit Court judge. The Commissioner did not act in breach of the requirements of Regulation 39(2)(a) in not addressing any other matters and, in particular, the matters in relation to her trial in the Circuit Court which it is contended on behalf of Sgt. McEnery that he should have addressed and found to be material facts. The Commissioner acted in compliance with Regulation 39(2)(a) in deciding that the material facts were the conviction and sentence of Sgt. McEnery as recorded in the Regulation 39 Notice (para. 3) and it was those facts which he had to assess in determining whether the breach was of such gravity as to merit dismissal.

55. Accordingly, the Commissioner’s decision to summarily dismiss Sgt. McEnery is not ultra viresRegulation 39 by reason of non-compliance with Regulation 39(2)(a) on the basis alleged on behalf of Sgt. McEnery.

Second issue: whether the Commissioner failed to give adequate reasons
56. Having regard to the legislative structure embodied in Regulation 39, the first stage in the process thereby created is the determination by the Commissioner as to whether he or she considers that the member is unfit for retention in An Garda Síochána, which determination, having regard to the facts in this case, requires to be made in accordance with the provisions of Regulation 39(1) and (2)(a). Once that determination is made and it is to the effect that the Commissioner considers the member unfit for retention and proposes to dismiss the member, the Commissioner is obliged to inform the member of the material facts and the relevant breach of discipline in accordance with Regulation 39(4)(b). Up to that point, the summary dismissal process provided for in Regulation 39 is governed by the provisions of Regulation 39. The second stage is that, the member having been given an opportunity of submitting to the Commissioner reasons against the proposed dismissal and having availed of that opportunity, the Commissioner conclusively determines whether the member is unfit for retention. Although not expressly provided for in Regulation 39, it is clearly implicit that the Commissioner, before making the conclusive determination as to the proposed decision, will have regard to any submissions made by the member. In any event, clearly the principles of natural and constitutional justice require the Commissioner to do so. The final stage is that, if the Commissioner determines that the member should be dismissed from An Garda Síochána, the consent of the Minister is necessary to the giving effect of such determination.

57. On the basis of the foregoing analysis, and having regard to the reasoning underlying the conclusion on the first issue as to the material fact and the relevant breach of discipline by reference to the Regulation 39 Notice, I consider that the question of adequacy of reasons only falls to be determined in relation to the determination of the Commissioner at the second stage in the process in this case. The final stage in the process, the consent of the Minister, has not yet been reached and, of course, the Minister is not a party to the proceedings.

58. Accordingly, in addressing the issue whether the Commissioner failed to give adequate reasons for his decision, the question which falls to be considered relates to the adequacy of the reasons, if any, given by the Commissioner for the determination at the second stage in the process that, subject to the consent of the Minister, Sgt. McEnery be dismissed from An Garda Síochána, as set out in the letter of 25th March, 2013.

59. The recent decision of this Court in Mallak v. Minister for Justice [2012] 3 I.R. 297 (Mallak) is the appropriate starting point in considering the current state of the law in this jurisdiction on the necessity for a decision maker, whether making an administrative decision or a decision in exercise of a statutory power, to give reasons for the decision. Having analysed various authorities over the previous three decades in the context of the developing general principles of judicial review, Fennelly J., with whom the other members of the Court concurred, stated (at para. 65):

“This body of cases demonstrates that, over a period approaching 30 years, our courts have recognised a significant range of circumstances in which a failure or refusal by a decision maker to explain or give reasons for a decision may amount to a ground for quashing it. Costello J. [in McCormack v. Garda Síochána Complaints Board [1997] 2 I.R. 489] attached importance, quite correctly, to the presence or absence from the statutory scheme of a right of appeal. The absence of a statement of reasons may render such a right nugatory.”

However, Fennelly J. addressed the situation where there was no right of appeal in the scheme stating (at para. 67):

“More fundamentally, and for the same reason, it is not possible for the applicant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, it is not possible for the courts effectively to exercise their power of judicial review.”

Fennelly J. then summarised the current state of the law as follows (at para. 68):

“In the present state of evolution of our law, it is not easy to conceive of a decision maker being dispensed from giving an explanation either of the decision or of the decision making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.”

60. The only aspect of the judgment of Fennelly J. in Mallak relied upon by counsel for the Commissioner is the statement in the last sentence of the last passage quoted above that “there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded”, presumably implying that this case was such a situation. However, counsel for Sgt. McEnery point to one ground set out in the Commissioner’s statement of opposition filed in the High Court, which it is suggested was certainly not obvious before the statement of opposition was delivered. In response to the allegation embodied in the third issue identified on this appeal, that there is nothing set out in the Regulation 39 Notice to indicate the material facts which differentiate Sgt. McEnery’s case from other members of An Garda Síochána who have received convictions for similar offences, having denied, in the statement of opposition, that action taken by the Commissioner in relation to other members is of any relevance to the decision of the Commissioner in respect of Sgt. McEnery, without prejudice to that, it was stated: “there has been no other disciplinary proceedings concerning a member of An Garda Síochána which is identical to that of [Sgt. McEnery]”. Furthermore it was stated that there has been no other case where a member “of the rank of Sergeant” convicted of an assault contrary to s.2 of the Act of 1997 has remained a member of An Garda Síochána. It was not obvious that rank was relevant to the determination of the Commissioner under Regulation 39 until the statement of opposition was delivered, it is submitted on behalf of Sgt. McEnery.

61. Of particular relevance, in my view, to the application of the principles identified by Fennelly J. in Mallak to the circumstances on this appeal is the judgment delivered in this Court by O’Donnell J., with whom the other members of the Court concurred, in Kelly v. Commissioner of An Garda Síochána [2013] IESC 47. The decision being challenged in that case was the decision of the Appeal Board made under Regulation 35(2) of the 2007 Regulations which, insofar as was relevant, provides:

“An Appeal Board may refuse to consider an appeal where –
(a) …
(b) having considered the member’s statement of the ground or grounds of appeal, it is of opinion that the case made by the member is frivolous, vexatious or without substance or foundation.”
The decision of the Appeal Board in question was to refuse to consider the appeal, stating that it was of opinion that the member’s case was “without substance or foundation”. In his judgment, O’Donnell J. identified the function of the Appeal Board in exercising its jurisdiction under Regulation 35(2) and what could be discerned as to how it exercised that function as follows (at para. 40):

“[It] is required to come to the conclusion that there are no conceivable circumstances in which it can be envisaged that any board of appeal could contemplate the possibility that it might come to a conclusion in some respects different from that of the Board of Inquiry and the Commissioner. This is a legal test…. It is entirely possible that the Appeal Board correctly and scrupulously applied this precise test before dismissing the appeal. But, the difficulty in this case, which in my view is fatal, is that neither this Court nor the High Court has any way of knowing that it did so.”

62. O’Donnell J. then went on to state that the Appeal Board was obliged to give reasons for its decision under Regulation 35(2) stating (at para. 42):

“It is true that there is no appeal from a decision of the Appeal Board, but that only emphasises the fact that this is a terminating decision in every sense of that word. The only possibility for challenging the decision is by way of judicial review, and in my view, it is required that the Appeal Board provide reasons for its decision which has the effect of upholding the dismissal of a garda from the force. I consider that this conclusion follows from an analysis of the Regulations, particularly when approached in the light of the common law principles outlined so clearly in Mallak. Viewed in this way it becomes apparent that it is impossible to accept the simplistic analysis of the Regulations which would derive from the express reference to reasons in Regulation 37(3) the negative conclusion that reasons are not required elsewhere in the code. Indeed, viewed in the light of the structure and function of the regulations, it makes little sense to provide for a requirement on an Appeal Board to give reasons for its decision after a full appeal, unless the scheme also requires the giving of reasons at the earlier stages in the process.”

Regulation 37(3) referred to in that passage requires an Appeal Board to communicate its decision on the appeal and the reasons for it to the Commissioner and to the member concerned within a specified time. While it was not argued in this case, by reference to Regulation 37(3), that there is no obligation on the Commissioner to give reasons for a decision made under Regulation 39, such argument, if advanced, would have to be rejected, adopting the reasoning of O’Donnell J. Indeed, it seems to me that there is an even stronger case for reasons where the final decision, subject to the consent of the Minister, is made in circumstances where the member has been given an opportunity of submitting to the Commissioner reasons against the proposed dismissal in accordance with Regulation 39(4)(c). Making provision for such opportunity would be utterly meaningless if the Commissioner is not obliged to have regard to the submissions in making what, to use the words of O’Donnell J. “is a terminating decision in every sense of that word”, and to give reasons for the decision in the light of those submissions.

63. To recapitulate, the decision which I consider is of relevance on the challenge on the grounds of inadequacy of reasons is the conclusive determination to confirm the proposed decision to dismiss Sgt. McEnery, which was made by the Commissioner at the second stage of his involvement in the Regulation 39 process, although it cannot be given effect to without the consent of the Minister. That is the decision which was made following:

(a) the service of the Regulation 39 Notice, and

(b) receipt by the Commissioner of Sgt. McEnery’s submissions.

Further, the conclusions which have been reached earlier in this judgment on the proper interpretation of Regulation 39 and its application to the circumstances of this case limit, to some extent, the obligation on the Commissioner to rationalise his decision until the point in time in the process at which he is required to give reasons. First, in addressing the first issue on the appeal, I have reached the conclusion that, on the proper interpretation and application of Regulation 39 in the circumstances prevailing in this case, the only material fact for consideration in accordance with Regulation 39(2)(a) is the breach of discipline, being the criminal conduct constituting the offence under s. 2 of the Act of 1997 for which Sgt. McEnery was convicted and the sentence imposed by the Circuit Court. Secondly, I have concluded that it may be assumed on the basis of the contents of the Regulation 39 Notice, that up to the time of the service of the Regulation 39 Notice, which I am satisfied complied with the requirements of Regulation 39(4)(b), the Commissioner had complied with the requirements of Regulation 39(2)(a), notwithstanding that no reasons had been given by the Commissioner for the proposed decision to dismiss Sgt. McEnery at the time of such service.

64. It follows that the point in time at which the Commissioner must, in order to comply with the principles of natural and constitutional justice, give reasons for his decision is when, after giving the member an opportunity to submit to the Commissioner reasons against the proposed dismissal and, if he receives such submissions, after he has considered them, he makes a conclusive decision to dismiss. At that point in time, at which the Commissioner issued the letter of 25th March, 2013 in this case, having regard to the underlying legal and factual situation, in my view, the Commissioner was obliged to give reasons for concluding that –

(a) the breach of discipline, being the conduct constituting the offence under s. 2 of the Act of 1997 for which Sgt. McEnery was convicted in the Circuit Court with the consequential sentence, was of such gravity that it merited her dismissal;
(b) the sanction imposed as a result of an inquiry under the 2007 Regulations would not be different to the Commissioner’s decision to dismiss; and
(c) Sgt. McEnery is unfit for retention in An Garda Síochána.
The Commissioner did not rationalise any of those conclusions in the letter of 25th March, 2013. He merely reiterated his conclusion that her conduct merited dismissal in accordance with the provisions of Regulation 39. However, as is clear, none of the bases which had led to the proposal to dismiss Sgt. McEnery was rationalised either in the Regulation 39 Notice.

65. Obviously, as with the decision to dismiss, the reasons for the decision must be consistent with the proper application and interpretation of Regulation 39. Notwithstanding that the submission made by Sgt. McEnery as to what constitutes material facts for the purpose of Regulation 39(2)(a) in this case has been rejected in this judgment, there remains a void as to the basis on which the Commissioner rationalises the conclusions outlined in the next preceding paragraph and, in particular, the reasons for his conclusions as to the gravity of the breach of discipline and that Sgt. McEnery is unfit for retention in An Garda Síochána. As with the circumstances in the Kelly case, it cannot be said that the issue involved in this case is so self-evident and narrow that the mere fact of the decision discloses the reason. Accordingly, I consider that the decision of the Commissioner to dismiss Sgt. McEnery should be quashed on the ground of failure to give adequate reasons for the decision.

66. Following the making of the order to quash the Commissioner’s decision on that ground, it will be open to the Commissioner to reconsider the position of Sgt. McEnery in accordance with Regulation 39 of the 2007 Regulations.

Issue three: discriminatory/disproportionate treatment
67. The case advanced on behalf of Sgt. McEnery on this point is that Kearns P. did not adequately consider her claim that she had been treated differently, to her detriment, from similar cases concerning other members of An Garda Síochána who had been convicted of an offence. As is recorded earlier, Kearns P. was not satisfied that Sgt. McEnery had made out any factual basis for that proposition. It would appear from the documentation before this Court that the only evidence on this point which was before the High Court related to an application made to the High Court by Sgt. McEnery seeking discovery against the Commissioner, that is to say, a grounding affidavit sworn by Sgt. McEnery and the replying affidavit sworn on behalf of the Commissioner, and also the affidavit of discovery sworn on foot of the order of the High Court, which directed discovery in relation to members of An Garda Síochána who had been convicted of assault in the previous five years.

68. In their submissions, counsel for Sgt. McEnery, in essence, make two complaints in relation to the finding of Kearns P. on this issue: that he did not have regard to the limited nature of the discovery order; and that in reaching his decision he did not have regard to the affidavits filed on the application for discovery. As regards the first complaint, it has absolutely no merit whatsoever. Apparently, discovery had been sought in relation to any member who had been convicted of any offence in the previous five years, but Kearns P. limited the discovery to what counsel for the Commissioner suggest was relevant, namely, members who had been convicted of assault in the previous five years. That order, which was not appealed, was complied with. That is the end of that complaint.

69. Before addressing the second complaint, it is appropriate to record that in his judgment Kearns P. considered what the affidavit of discovery had disclosed in relation to members who had been convicted of assault within the previous five years and it was on the basis of that consideration that he concluded that Sgt. McEnery had not made out any factual basis for holding that her treatment had been discriminatory or disproportionate in comparison with any other case. In relation to the second complaint, counsel for Sgt. McEnery draws the attention of this Court, in particular, to one incident covered in the affidavits leading to the discovery order. This related to the conviction by a jury at Dublin Circuit Court of a member of An Garda Síochána contrary to s. 2 of the Act of 1997 on 6th December, 2004. It is contended that the circumstances of that conviction were “on all fours” to Sgt. McEnery’s situation and it is pointed out that the member convicted in 2004 is still a serving member. In reliance on the replying affidavit sworn on behalf of the Commissioner on the application for discovery, counsel for the Commissioner dispute the contention that the situation of the member convicted in 2004 was the same as that of Sgt. McEnery. One obvious difference is that the conviction occurred before the Act of 2005 came into force and, consequently, before the 2007 Regulations came into force. As is pointed out on behalf of the Commissioner, there is no evidence of any decision by the then Commissioner regarding consideration of a summary dismissal of the member in question. I consider that the approach adopted by Kearns P. in not having regard to the evidence contained in the affidavits filed in relation to the application for discovery, which it is contended on behalf of Sgt. McEnery he should have had regard to, was correct.

70. Accordingly, I find on the third issue that Sgt. McEnery has not established that the decision of the Commissioner contravened natural or constitutional justice in treating her in a manner which is discriminatory and disproportionate in comparison to the treatment of other members of An Garda Síochána convicted of assault.

Summary of conclusions
71. On the issues identified earlier, I have come to the following conclusions: