Quasi-Judicial

Cases

McDonald v. Bord na gCon.

Kenny J.
[1965] IR 217

KENNY J. :
1 March

The long title to the Greyhound Industry Act, 1958 states that the Act was passed for the improvement and development of the greyhound industry, greyhound racing and coursing and for the better control of greyhound race tracks and coursing grounds. It established a body corporate known as Bord na gCon (which I shall call “the Board”). consisting of seven members, which was given power to appoint committees and to delegate to any such committee any of its functions which could be more conveniently performed by a committee. Sect. 21 provided that a person (other than the Board) was not to operate a greyhound race track except under a greyhound race track licence granted by the Board. Sect. 25 gave the Board power to make regulations dealing with the establishment, maintenance, use, management and control of greyhound race tracks and the conduct of greyhound races at such tracks.
The Act also made provision for the establishment of the Irish Coursing Club (which I shall call “the Club”) which it recognised as the controlling authority for the breeding and coursing of greyhounds. Sect. 28 provided that it was not to be lawful for anybody to carry on the business of a bookmaker at any greyhound race track or at any authorised coursing meeting unless he was the holder of a course betting permit granted by the Board. Sect. 37 gave the Board power to make regulations dealing with the control of the training of greyhounds for reward: these might provide that a person was to be prohibited from training greyhounds for reward unless he had a licence granted by the Board. By sect. 38 the Board were given power to make regulations for the control of the holding and conduct of public sales of greyhounds: these might prohibit persons from holding public sales of greyhounds unless they had a licence granted by the Board. Sect. 43 provided that the Board might cause any occurrence brought to its notice in relation to any matter connected with the greyhound industry to be investigated in such a manner as the Board thought fit and that the person conducting the investigation might by notice served on any other person require the person served with the notice to furnish any information which the person holding the investigation reasonably considered necessary and which was specified in the notice: failure to furnish any information required or the furnishing of false information was made a criminal offence. By s. 44 an authorised officer of the Board present at any race meeting at a greyhound race track or at any public sale of greyhounds was given power to investigate any occurrence observed by him or brought to his notice relating to any race or the performance of any greyhound at a race meeting or relating to a sale at the public sale and was given power to require persons to furnish information to him. By s. 45 the Board, after consultation with the Club, and when it had considered the result of any investigation, was empowered to make a disqualification order in relation to specified greyhounds which were kept, owned, trained or managed by a named person disqualifying such greyhounds from registration in the Irish Greyhound Stud Book, from entry for any greyhound race at any greyhound race track, from entry for any event forming an item at any authorised coursing meeting or acceptance for sale at any public sale of greyhounds. Before the Board made a disqualification order, notice of the proposal to make it had to be served on the person concerned, and the Board had to consider any representations made by him within seven days.
As the validity of s. 47 is impugned on constitutional grounds in this action, I quote it in full:
“47.(1) The Board, with the consent of the Club, or the Club, with the consent of the Board, may by order (in this section referred to as an exclusion order) prohibit a person from all the following:
(a) being on any greyhound race track,
(b) being at any authorised coursing meeting,
(c) being at any public sale of greyhounds.
(2) Where the Board proposes to make or to consent to an exclusion order, the Board shall serve notice of the proposal on the person concerned and shall, if any representations are made in writing by such person within seven days, consider the representations.
(3) The Board may, after consultation with the Club, revoke any exclusion order made by the Board.
(4) The Club may, with the consent of the Board, revoke any exclusion order made by the Club.
(5) Where an exclusion order is made by the Board, the Board
(a) shall cause notice of the making of the order to be served on the person to whom the order applies, and
(b) may cause notice of the making of the order to be served on any other persons whom the Board thinks proper to be notified.
(6) Where an exclusion order is made by the Club, the Club
(a) shall cause notice of the making of the order to be served on the person to whom the order applies, and
(b) may cause notice of the making of the order to be served on any other persons whom the Club thinks proper to be notified.
(7) Where a person to whom an exclusion order applies is found on any greyhound race track, any person acting under the direction of the licensee under the greyhound race track licence relating to the track may remove such first-mentioned person therefrom and for this purpose may use such force as may be reasonably necessary.
(8) Where a person to whom an exclusion order applies is found at any authorised coursing meeting, any person acting on the direction of the person holding the meeting may remove such first-mentioned person from the coursing ground and for this purpose may use such force as may be reasonably necessary.
(9) Where a person to whom an exclusion order applies is found at any public sale of greyhounds, any person acting under the direction of the person conducting the sale may remove such first-mentioned person therefrom and for this purpose may use such force as may be reasonably necessary.”
The Act made provision for an Appeal Committee but there is no appeal against a disqualification order. The regulations also provided that an exclusion order might”be applied to any person who did one of the six specified acts”: all six have a criminal flavour. One of them is,”wilfully making any false statement in any entry or registration form, or in any document relating to the registration or training of a greyhound, or knowingly signing or causing to be signed a false signature to any such document.”
On the 28th September, 1960, a greyhound race meeting was held at a greyhound race track in Cork and the plaintiff brought a greyhound, which he was training for somebody else, to the meeting: the dog was not allowed to run in the race for which it had been entered. On the 11th October, 1960, a letter was written on behalf of the Control Committee to the plaintiff requesting him to attend an inquiry to be held by the Control Committee on the 17th October, 1960, into the changing of entries in the identity card of the greyhound which he had brought to the meeting at Cork. The plaintiff attended the inquiry and on the 1st December, 1960, a letter was written on behalf of the Control Committee to him informing him that the Committee had decided to recommend to the Board that an exclusion order under s. 47 of the Act of 1958 should be made against him. By letters of the 12th and 19th January, 1961, the plaintiff was informed that the Board, with the consent of the Club, proposed to make an exclusion order against him, that he had already been interviewed by the Control Committee and that any representations which he wished to make would be considered by the Board. The plaintiff’s solicitors sent representations to the Board and were informed that these would be considered by the Board. On the 14th February, 1961, the Board made an order under its seal in these terms:
“EXCLUSION ORDER
Pursuant to the powers vested in it by section 47 of the Greyhound Industry Act, 1958 (No. 12 of 1958), Bord na gCon with the consent of the Irish Coursing Club hereby prohibits
Mr. David McDonald
from all of the following:
(a) being on any greyhound racing track,
(b) being at any authorised coursing meeting,
(c) being at any public sales of greyhounds.”
The plaintiff then began this action in which he claimed declarations that s. 47 of the Act of 1958 and the exclusion order of the 14th February, 1961, were unconstitutional, that some of the articles of the regulations were invalid and that the exclusion order was void.
By an order made by this Court on the 16th July, 1962, and affirmed by the Supreme Court it was ordered that the question of the constitutional validity of s. 47 of the Act of 1958 be tried as a preliminary issue before the trial of the other issues in this action.
The effect of s. 47 can be understood only by reference to the legal position and rights of persons who went to greyhound race meetings before the Act of 1958 was passed and to the legal remedies which were available to exclude them from these meetings. While the constitutional aspects of s. 47 were argued with great ability, there was very little discussion of the law which s. 47 was intended to alter. Any consideration of it must begin with the decision of the English Court of Appeal in Hurst v. Picture Theatres, Limited (1), for although that decision has been the subject of acrimonious academic controversy, it was approved by the Supreme Court in Whipp v. Mackey (1) (see the judgment of FitzGibbon J., at pp. 387-388) and is therefore binding on me. It was an action for damages for assault and false imprisonment and arose out of the visit of the plaintiff to the defendant’s cinema. The plaintiff who paid for an unreserved seat was subsequently asked by the manager to leave and when he refused to do this a porter who also asked him to leave removed him from his seat. The jury found that the plaintiff had paid for his seat and awarded him damages. In the course of his judgment, Buckley L.J. (at p. 6) said:”Let me for a moment discuss this present case upon the footing that Woodv. Leadbitter (2) stands as good law at this date. I am going to say presently that to my mind it does not, but suppose it does stand as good law at this date. What is the grant in this case? The plaintiff in the present action paid his money to enjoy the sight of a particular spectacle. He was anxious to go into a picture theatre to see a series of views or pictures during, I suppose, an hour or a couple of hours. That which was granted to him was the right to enjoy looking at a spectacle, to attend a performance from its beginning to its end. That which was called the licence, the right to go upon the premises, was only something granted to him for the purpose of enabling him to have that which had been granted to him, namely, the right to see. He could not see the performance unless he went into the building. His right to go into the building was something given to him in order to enable him to have the benefit of that which had been granted to him, namely, the right to hear the opera, or see the theatrical performance, or see the moving pictures as was the case here. So that here there was a licence coupled with a grant . . .
The defendants had, I think, for value contracted that the plaintiff should see a certain spectacle from its commencement to its termination. They broke that contract and it was a tort on their part to remove him.”
In Winter Garden Theatre (London), Ltd. v. Millennium Productions Ltd. (3), Viscount Simon summarises the law on this matter in these terms (at p. 188):
“The effect of a licence by A. to permit B. to enter upon A.’s land or to use his premises for some purpose is in effect an authority which prevents B. from being regarded as a trespasser when he avails himself of the licence ( Thomas v.Sorrell ) (4). Such a licence may fall into one of various classes.

It may be a purely gratuitous licence in return for which A. gets nothing at all, e.g., a licence to B. to walk across A.’s field. Such a gratuitous licence would plainly be revocable by notice given by A. to B. Even in that case, however, notice of revocation conveyed to B. when he was in the act of crossing A.’s field could not turn him into a trespasser until he was off the premises, but his future right of crossing would thereupon cease. There is another class of licences which may be called licences for value, in which B. gives consideration for the permission he obtains from A., and this last class may be further sub-divided. In some cases the consideration may be given once for all, as for example by the payment of a capital sum or by conferring a single benefit at the beginning. The case of Llanelly Railway & Dock Co. v. London and North Western Railway Co. (1) to which I will refer later, is an example of this. In other cases, the consideration may take the form of a periodic payment . . . There is yet a third variant of a licence for value which constantly occurs, as in the sale of a ticket to enter premises and witness a particular event, such as a ticket for a seat at a particular performance at a theatre or for entering private ground to witness a day’s sport. In this last class of case, the implication of the arrangement, however it may be classified in law, plainly is that the ticket entitles the purchaser to enter and, if he behaves himself, to remain on the premises until the end of the event which he has paid his money to witness. Such, for example, was the situation which gave rise to the decision of the Court of Appeal in Hurst v. Picture Theatres, Limited (2). I regard this case as rightly decided, and repudiate the view that a licensor who is paid for granting his licensee to enter premises in order to view a particular event, can nevertheless, although the licensee is behaving properly, terminate the licence before the event is over, turn the licensee out, and leave him to an action for the return of the price of his ticket. The licence in such a case is granted under contractual conditions one of which is that a well-behaved licensee shall not be treated as a trespasser until the event for which he has paid to see is over, and until he has reasonable time thereafter to depart, and in Hurst v. Picture Theatres, Limited (2) where these rights were disregarded and the plaintiff was forced to leave prematurely substantial damages for assault and false imprisonment rightly resulted.”
In a later passage in his speech Viscount Simon said that the decision in Wood v. Leadbitter (3) “should no longer be regarded as an authority.”
While these passages state the legal position of those who enter on premises for reward or gratuitously (and I think the law allows me to take notice of the fact that most of those who attend a greyhound race track have to pay for entry and that most of those who attend an authorised coursing meeting or a public sale of greyhounds do not have to pay for entry), s. 47 seems to me to have been primarily intended to alter the law established by the decision of Overend J. in Bellaney and Others v. Reilly (1). In that case the defendant, who had been warned off the Curragh Racecourse and every other racecourse where the “Rules of Racing” were in force but who disputed the correctness of the decision of the Conyngham Club which led to his being warned off, attended a number of race meetings where the Rules of Racing were in force. The plaintiffs, who were the stewards and trustees of the Turf Club and who sued on their own behalf and on behalf of all other members of that club, sought an injunction to restrain the defendant from entering and trespassing on a number of racecourses, including the Curragh. The plaintiffs were not the owners of or in possession or occupation of any racecourses other than the Curragh and Mr. Justice Overend held that they could not succeed in an action of trespass in respect of any of them. In the summary of his conclusions he said (at p. 560):”(2) that as regards the racecourses other than the Curragh, the competent parties entitled to sue for trespass are not before the Court in this action, and therefore there are no competent parties entitled to an injunction to restrain the defendant from trespassing, if he did so, or intended to do so.”He also decided that the plaintiffs held the Curragh Racecourse upon a trust or subject to a condition to use the lands for the benefit of the public attending race meetings and that members of the public had a right to attend that racecourse and could be excluded only for a just cause. A supplementary note, at p. 602 of the same volume of the reports, shows that this part of the decision was incorrect and that the Curragh Racecourse was held by the plaintiffs in trust for the benefit of the Turf Club and was not subject to any trust or condition for the benefit of the public.
There is no public right to attend a greyhound race meeting or an authorised coursing meeting or a public sale of greyhounds. A right to enter and remain on any of the grounds where these are being held may be acquired by the contract which arises from payment for admission. I think it is common knowledge that many people attend greyhound race meetings, that there are a number of entrances to most greyhound race tracks and that it would be almost impossible for those in charge of the entrances to recognise the plaintiff and to exclude him. If the plaintiff or any person against whom an exclusion order is made obtains entrance to a greyhound race meeting without misrepresentation, it seems to me that he would by payment acquire a contractual right to remain on the greyhound race track until the races had concluded. One effect of s. 47 is to give a licensee of a greyhound race track the same rights which he would have if he were an occupier; another is to give him a new right of removing a person against whom an exclusion order has been made despite the contract which has been entered into by payment for admission.
There was much discussion during the argument about the effect of an exclusion order. Counsel for the plaintiff contended that an exclusion order is a legal prohibition binding on the person against whom it is made against his being at any of the functions mentioned in sub-s. 1, and said that the making of such an order puts an end to the legal right of a person to be at greyhound race meetings. Counsel for the Attorney General and for the Board argued that an exclusion order has no direct effect, and that its only result is to give the licensee of a greyhound race track an additional remedy which he may exercise when he wishes to do so and that a person against whom such an order is made may continue to go to greyhound race meetings but takes the risk of being removed. They also argued that an exclusion order is not similar in nature to an injunction granted by a Court. I think that the plaintiff’s submission that an exclusion order is a legal prohibition binding on the person against whom it is made against his being present at the functions mentioned in sub-s. 1 is correct. If the Court grants an injunction against trespass, it is a prohibition against further entry. If there be a breach of the injunction, the person who obtained it may or may not apply to the Court to enforce it, but the injunction is a legal prohibition which puts an end to the right of the person against whom it is granted to enter. In my opinion, an exclusion order prevents the contract (implied from payment) from creating a legal right to remain.
The next matter on the interpretation of s. 47 is whether the Board must comply with the requirements of “natural justice” when making an exclusion order. The plaintiff has pleaded that they must, but on the issue of whether the section is unconstitutional, the plaintiff’s counsel has argued that the Board need not comply with the rules as to natural justice. Mr. Conolly claimed that he was entitled to adopt these two wholly inconsistent positions during this case. Counsel for the Attorney General and for the Board have conceded that the Board are bound to observe the rules of natural justice when making an exclusion order. In my opinion, a plaintiff cannot plead one case and then, on a preliminary issue, advance arguments which are completely inconsistent with his pleadings, but, as the matters involved in this case are of such importance, I will deal with this issue despite these inconsistencies. The rules of “natural justice”have been considered in many cases but the principles are summarised in passages from two of the cases. In Local Government Board v. Arlidge (1) Viscount Haldane said (at p. 132) that “when the duty of deciding an appeal is imposed, those whose duty it is to decide it must act judicially. They must deal with the question referred to them without bias, and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must be come to in the spirit and with the sense of responsibility of a tribunal whose duty it is to mete out justice. But it does not follow that the procedure of every such tribunal must be the same. In the case of a Court of law tradition in this country has prescribed certain principles to which in the main the procedure must conform. But what that procedure is to be in detail must depend on the nature of the tribunal . . . I agree with the view expressed in an analogous case by my noble and learned friend Lord Loreburn. In Board of Education v.Rice (2) he laid down that, in disposing of a question which was the subject of an appeal to it, the Board of Education was under a duty to act in good faith, and to listen fairly to both sides, inasmuch as that was a duty which lay on everyone who decided anything. But he went on to say that he did not think it was bound to treat such a question as though it were a trial. The Board had no power to administer an oath, and need not examine witnesses. It could, he thought, obtain information in any way it thought best, always giving a fair opportunity to those who were parties in the controversy to correct or contradict any relevant statement prejudicial to their view”; and in The State (Horgan) v. Exported Live Stock Insurance Board (3) Mr. Justice Overend said (at p. 609):”The duty to determine involves the duties:to act in good faith, to listen fairly to both sides, to obtain information in a way which would give a fair opportunity to the parties to correct or contradict any statement prejudicial to their case. If a tribunal failed in any of these duties its decision must be the subject of certiorari and it must itself be the subject of mandamus.” See also the advice of the Privy Council in University of Ceylon v. Fernando (4).

None of the requirements dictated by “natural justice”are referred to in sect. 47. Sub-sect. 2 does not require the Board to give the person against whom it is proposed to make an exclusion order notice of the charge: he must be given notice of the proposal to make an exclusion order. If a board or tribunal acting in a judicial or semi-judicial matter is to be dispensed from the obligation to observe the rules of “natural justice,” the section having this effect must state it in clear language. But those requirements are not referred to at all in s. 47 and, in my opinion, therefore, the Board when making an exclusion order under s. 47 is bound to observe the rules of natural justice.
When an exclusion order made by the Board under s. 47 is considered against its legal background, its features are 1, it prohibits entry upon greyhound race tracks and attendance at authorised coursing meetings and at public sales of greyhounds; 2, it corresponds in form to an injunction and is thus an order characteristic of a Court of law in this country except that it is not enforced by the executive power of the State; 3, it is final as there is no appeal on the merits against it; 4, it is based upon a determination by the Board of the guilt of the person of the charge against him; 5, it is enforceable by physical force; 6, it deprives the person against whom it is made of the contractual rights which he acquires by paying for admission to a greyhound race track and of the benefit of the liberty or licence which most citizens of the State have to attend at authorised coursing meetings and at public sales of greyhounds; 7, it imposes a penalty similar to that which Courts in this country may impose, for it seems to me that there is some similarity between an exclusion order and a disqualification order made under the Road Traffic Acts.
The arguments on the constitutional issues in this case dealt with three matters: the first was whether the Board were administering justice when they made an exclusion order; the second was whether the Board were exercising”limited functions and powers of a judicial nature” if they were administering justice; and the third was whether s. 47 was a breach by the State of the guarantee in Article 40, 3, 1,”in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen,”and also whether it was a breach of the guarantee in Article 43, 1, 2, “to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.”
The relevant provisions of the Constitution restricting the exercise of judicial power by persons other than judges are: Article 6, 1: “All powers of government, legislative, executive and judicial, derive, under God, from the people . . .
2. These powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”
Article 34, 1: “Justice shall be administered in public courts established by law by judges appointed in the manner provided by this Constitution.”
Article 37: “Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.”
Every exercise of the judicial power referred to in Article 6 is not an administration of justice for the Courts in this country have jurisdictions and powers the exercise of which is not an administration of justice and new powers and functions may be conferred on Courts and judges although the exercise of these powers and functions is not an administration of justice. Article 26 of the Constitution, dealing with the reference of Bills to the Supreme Court, is an example of this, for if the President refers a Bill to the Supreme Court for a decision as to whether it or any part of it is repugnant to the Constitution, it seems to me that the Supreme Court when deciding the matter is not administering justice but is giving an advisory opinion. Another example is the jurisdiction which the Court possesses over wards of Court: in Scott v.Scott (1), a case relating to the power of a Court to hear a petition for nullity of marriage in private, the Law Lords held that the exercise by Judges of jurisdiction over wards of Court is not an administration of justice but is the exercise of a semi-parental jurisdiction. In the judgment of the Supreme Court in In re Solicitors Act, 1954 (2), it was pointed out (at P. 263) that what is justice or what is the administration of justice is nowhere defined in the Constitution.
The decision of the Supreme Court in that case and the subsequent decision of Mr. Justice Haugh in Cowan v.Attorney General and Others (3) make it unnecessary for me to refer to the earlier cases which deal with the judicial power, though I would like to refer to the judgment of Sir Owen Dixon in The Queen v. Davison (4) in which the nature of that power is analysed.
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 of 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.
In this connection there is a passage (at p. 263) in In re Solicitors Act, 1954 (1) which is of particular significance:”That the trial of criminal matters and ‘offences’ is administration of justice is clear from Article 38 which, by way of exception, authorises, in particular cases, the trial of offences by special courts and military tribunals. A characteristic feature of criminal matters is the infliction of penalties, a consideration which gives weight to the submission that a tribunal which is authorised to inflict a penalty, especially a severe penalty, even in cases where the offence is not strictly criminal, should be regarded as administering justice.”
It seems to me that an exclusion order made by the Board under s. 47 of the Act of 1958 possesses all the characteristics I have mentioned of the administration of justice. The Board may make an exclusion order only when they are satisfied that there has been some violation of the code of conduct which should govern greyhound racing and this necessarily involves a controversy. An exclusion order is the imposition of a liability: it is significant that the Control Committee is given power by Article 31 (4) of the Greyhound Race Track (Racing) Regulations, 1960, to impose unlimited fines. The making of an exclusion order involves a determination (not subject to appeal) that the person against whom it is proposed to make it has been guilty of some disreputable behaviour or conduct. It was argued by counsel for the Attorney General that an exclusion order is not an order of the same nature as an injunction because an injunction is enforced by the executive authority of the State while an exclusion order can be enforced only by the licensee of a greyhound racing track or those acting under his authority. It was also said that the administration of justice is characterised by the enforcement of the Court’s orders by the Court or by the executive power of the State which the Court invokes. It seems to me, however, that a body or tribunal which may lawfully execute its orders by physical force or authorise others to do so does not differ from a Court in this respect. The effect of an exclusion order is that the licensee of any greyhound race track or those authorised by him may remove by force the person against whom the order is made from the track and may thereby override his contractual rights. Lastly, an exclusion order seems to me to be similar in form and in effect to an injunction against trespass and such an injunction is an order characteristic of Courts in this country.
I am not dealing with a power of exclusion or a power to expel derived from contract but with a power derived solely from an Act of the Oireachtas. A rule deriving its force from contract and similar to that in s. 47 of the Act of 1958 would not necessarily be invalid because it authorised the administration of justice by persons who were not Judges.
In my opinion, the Board when making an exclusion order under s. 47 of the Act of 1958 is administering justice.
The next matter is whether the making of an exclusion order by the Board is an exercise of “limited functions and powers of a judicial nature in matters other than criminal matters.” Mr. Conolly argued strenuously that the proceedings before the Board were a criminal matter because, he said, the Board may have to investigate matters which could be the subject-matter of a criminal charge. The submission was that a matter is a criminal matter when the facts proved disclose the commission of a criminal offence. I think that this is plainly wrong. In many civil cases the facts alleged or proved may disclose the commission of a criminal offence but the proceedings do not thereby become criminal. If the defence in a probate action tried by a Judge is that the signature to the will was a forgery, the case does not thereby become a criminal matter. In Clifford and O’Sullivan (1)Viscount Cave said (at p. 580):”. . . but in order that a matter may be a criminal cause or matter it must, I think, fulfil two conditions which are connoted by and implied in the word ‘criminal.’ It must involve the consideration of some charge of crime, that is to say, of an offence against the public law . . . and that charge must have been preferred or be about to be preferred before some Court or judicial tribunal having or claiming jurisdiction to impose punishment for the offence or alleged offence”; and in Amand v. Secretary of State (2),Viscount Simon said (at p. 385):”If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a Court claiming jurisdiction to do so, the matter is criminal. This is the true effect of the ‘two conditions’ formulated by Viscount Cave in Clifford and O’Sullivan (1).”
I am satisfied that the proceedings before the Board relating to the making of an exclusion order are not a criminal matter.
Article 37 of the Constitution validates the exercise by a body of persons who are not judges of powers of a judicial nature if the functions and the powers are “limited.” If the functions are not limited, the fact that the powers which the body of persons exercising the powers have are limited does not validate the exercise under Article 37.
The powers of the Board are limited in the sense that the Board has not power to summon witnesses (though an investigating officer is entitled to require any individual to give him such information as he has) or to administer an oath and the refusal of a witness giving evidence before the Board to answer a question would not be a contempt. Similarly, its functions are limited for they are limited to those specified in the Act. But these considerations are made irrelevant by the passage in re Solicitors Act, 1954 (2)so strongly relied on by Mr. Conolly. The passage (at p. 264) is:”The test as to whether a power is or is not ‘limited’ in the opinion of the Court, lies in the effect of the assigned power when exercised. If the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far-reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised they cannot properly be described as ‘limited.'”
Mr. Conolly gave two examples to illustrate the effect of an exclusion order on persons against whom it might be made: the first was that of a bookmaker who confined his business to course betting at greyhound tracks and the second was that of a trainer of greyhounds. The making of an exclusion order against such a bookmaker would seriously affect his fortune and would, I think, affect his reputation. The effect of such an order against an owner or trainer of a racing greyhound is vividly illustrated by Art. 19 (3) of the Greyhound Race Track (Racing) Regulations, 1960, which provides:
“(3) A greyhound shall not be qualified to be entered for or to run in any trial or race:
(a) if and so long as it is in the ownership or part ownership of a warned-off person or so long as such person has any interest in its winnings at race meetings, (b) if and so long as it is in the kennel of or under the care and management of a warned-off person,” and “warned-off person” is defined by Art. 1 of these Regulations as a person to whom an exclusion order under s. 47 of the Act applies.
One does not have to have any extensive knowledge of greyhounds or of greyhound racing to know that those against whom an exclusion order will be made will in most cases be owners and trainers of greyhounds and it seems to me that the power to make such an order is calculated ordinarily to affect in a most profound and far reaching way the fortunes and reputations of owners and trainers. Does it, however, make a difference to the constitutional position that owners and trainers have no right to be admitted to greyhound race tracks or to authorised coursing meetings or to public sales of greyhounds? The Act of 1958 refers to a greyhound industry; and greyhound races, authorised coursing meetings and public sales of greyhounds are the principal places where the industry is carried on. It would, I think, be too narrow an approach to a constitutional question to make the issue depend upon whether a greyhound owner or trainer has a legal right to go to meetings.
In my opinion the powers and functions conferred on the Board by s. 47 of the Act are not limited in the sense which that word has been given by the decision of the Supreme Court in In re Solicitors Act, 1954 (1).
It follows that the section is repugnant to the Constitution.
Mr. Connolly also argued that s. 47 was repugnant to Article 40, 3, 1 and 2, and to Article 43, 1, 2, of the Constitution. These provisions are:
40, 3,: “1 The State guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.
2 The State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name, and property rights of every citizen.”
43, 1, 2: “The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath, and inherit property.”
It was argued that the right to earn a living is a personal and a property right and that the State had failed in its obligation to defend and vindicate this right as the grounds on which the order was to be made were not defined, as the section did not give the Board any terms of reference and as it had not given a right of appeal against an exclusion order. While the Court has power to declare an Act to be unconstitutional because it does not defend and vindicate the personal rights of the citizen, it is a jurisdiction to be exercised with extreme care and caution, particularly having regard to the now accepted extensive role of the State in economic and social matters. As the Board is bound to observe the rules of natural justice before it makes an exclusion order, it seems to me that the State in enacting s. 47 has respected and, as far as practicable, defended the right of the plaintiff to earn his livelihood. The existence of this right was disputed in the course of the argument and I do not think it necessary to decide whether there is such a right. If there be such a right, it has not been established that s. 47 of the Act of 1958 does not respect, defend and vindicate this right. The whole of the plaintiff’s argument on this aspect of the case was based on the fallacy that the Board were not bound to inform an individual against whom it was proposed to make an exclusion order of the nature of the charge against him and were not bound to hear his case. In my view this construction of the section is incorrect and that disposes of the arguments based on Articles 40 and 43 of the Constitution.
I shall accordingly declare that s. 47 of the Act of 1958 is repugnant to the Constitution.

From the above judgment the defendants, the Attorney General and Bord na gCon appealed to the Supreme Court (1).
The grounds of appeal relied upon by the Attorney General were “that the learned High Court Judge misdirected himself in law in holding 1, that s. 47 of the Greyhound Industry Act is repugnant to the Constitution.
2, That an exclusion order is a legal prohibition binding on the person against whom it is made against his being present at the functions mentioned in s. 47, sub-s. 1, of the Greyhound Industry Act, 1958.
3, That if any person against whom an exclusion order is made obtains entrance to a greyhound race meeting without misrepresentation, he would by payment acquire a contractual right to remain on the greyhound race track until the races had concluded.
4, That an exclusion order is similar in nature to an injunction granted by a Court.
5, That an exclusion order, when considered against its legal background, (a) prohibits entry upon greyhound race tracks and attendance at authorised coursing meetings and at public sales of greyhounds;
(b) Corresponds in form to an injunction and is thus characteristic of a Court of law in this country except that it is not enforced by the executive power of the State;
(c) Is based upon a determination of the guilt of a person of a charge against him;
(d) Deprives the person against whom it is made of contractual rights which he would acquire by paying for admission to the greyhound race track and of the benefit of the liberty or licence which most citizens of the State have to attend at authorised coursing meetings and at public sales of greyhounds;
(e) Imposes a penalty similar to that which Courts in this country may impose.
6, That the making of an exclusion order under s. 47 of the Greyhound Industry Act, 1958, is an administration of justice.
7, That the making of an exclusion order involves a determination (not subject to appeal) that the person against whom it is proposed to make it has been guilty of some disreputable behaviour or conduct.
8, That the powers and functions conferred on Bord na gCon by s. 47 of the Greyhound Industry Act, 1958, are not limited functions and powers of a judicial nature in matters other than criminal matters.”
The grounds of appeal relied upon on behalf of Bord na gCon were as follows:
“1, That the trial Judge was wrong in law in declaring the said s. 47 to be unconstitutional.
2, That the trial Judge was wrong in law in holding that an exclusion order made pursuant to the said section was a legal prohibition binding on the person against whom such exclusion order was made against his being present at the functions mentioned in sub-s. 1 of the said sect. 47.
3, That the trial Judge was wrong in law in holding that the said defendants, Bord na gCon, were administering justice when they made an exclusion order.
4. That if the trial Judge was right in holding that the defendants, Bord na gCon, were administering justice when they made an exclusion order he was wrong in law in holding that the functions and powers of a judicial nature conferred on the defendants, Bord na gCon, by s. 47 of the said Act were not limited functions and powers.
5. That the learned trial Judge was wrong in law in holding that an exclusion order corresponds in form to an injunction or is an order characteristic of a Court of law.
6. That the learned trial Judge was wrong in law in holding that a person against whom an exclusion order is in force and who is aware that it is in force acquires by contract a right to remain on any licensed greyhound race track or at any authorised coursing meeting when he has paid an admission charge to a person who did not recognise him and would not have accepted payment or admitted him had he recognised him.
7. That the learned trial Judge was wrong in law in holding that an exclusion order imposes a penalty similar to that which Courts may impose and wrong in holding that there was any similarity between an exclusion order and a disqualification order made under the Road Traffic Acts.”
R. McGonigal S.C. and Niall McCarthy S.C. (with themFrancis Ryan ) for the appellant, the Attorney General.
T. K. Liston S.C. and J. G. McMahon S.C. (with themWilliam Binchy ) for the appellants, Bord na gCon.
P. J. McGilligan S.C. and T. J. Conolly S.C. (with themP. D. Conroy ) for the respondent.
The judgment of the Court was delivered by Walsh J.

WALSH J. :
16 Feb. 1965

This is an appeal from the judgment of Mr. Justice Kenny in favour of the plaintiff who sought a declaration in the High Court that s. 47 of the Greyhound Industry Act, 1958, is repugnant to the Constitution. That section provides as follows:
“47.(1) The Board, with the consent of the Club, or the Club, with the consent of the Board, may by order (in this section referred to as an exclusion order) prohibit a person from all of the following:

(a) being on any greyhound race track,
(b) being at any authorised coursing meeting,
(c) being at any public sale of greyhounds.
(2) Where the Board proposes to make or to consent to an exclusion order, the Board shall serve notice of the proposal on the person concerned and shall, if any representations are made in writing by such person within seven days, consider the representations.
(3) The Board may, after consultation with the Club, revoke any exclusion order made by the Board.
(4) The Club may, with the consent of the Board, revoke any exclusion order made by the Club.
(5) Where an exclusion order is made by the Board, the Board (a) shall cause notice of the making of the order to be served on the person to whom the order applies, and
(b) may cause notice of the making of the order to be served on any other persons whom the Board thinks proper to be notified.
(6) Where an exclusion order is made by the Club, the Club (a) shall cause notice of the making of the order to be served on the person to whom the order applies, and
(b) may cause notice of the making of the order to be served on any other persons whom the Club thinks proper to be notified.
(7) Where a person to whom an exclusion order applies is found on any greyhound race track, any person acting under the direction of the licensee under the greyhound race track licence relating to the track may remove such first-mentioned person therefrom and for this purpose may use such force as may be reasonably necessary.
(8) Where a person to whom an exclusion order applies is found at any authorised coursing meeting, any person acting on the direction of the person holding the meeting may remove such first-mentioned person from the coursing ground and for this purpose may use such force as may be reasonably necessary.
(9) Where a person to whom an exclusion order applies is found at any public sale of greyhounds, any person acting under the direction of the person conducting the sale may remove such first-mentioned person therefrom and for this purpose may use such force as may be reasonably necessary.”

Without going into all the objects of the Act in detail it appears from a perusal of its provisions that it has may different but related objects. It is, however, clear that the fundamental purpose of the Act is to develop, improve and regulate an industry. The Act deals with the breeding of greyhounds and with the export trade in greyhounds. It also deals with coursing, racing, the reorganisation of the Coursing Club and the establishment of the Board itself which is in effect the control board of the industry. In addition the Act deals with the question of betting and levies, and with the subject of irregularities and abuses. This latter subject is dealt with in ss. 43 to 47 inclusive. It is submitted that the provisions of s. 47 are repugnant to the Constitution as being in violation of Articles 34 and 38 of the Constitution in that the powers there conferred on the Board are, when exercised, the administration of justice in matters which call for the exercise of the judicial power of the State and are being exercised in respect of criminal matters by persons, namely, the members of the Board, who are not judges appointed under the Constitution. It is also submitted that the section is repugnant to Article 43 of the Constitution as amounting to an unjust and unlawful deprivation of, and an attack upon the right to, private property and is repugnant to Article 40, 3, 1 and 2, of the Constitution in that s. 47 is, it is submitted, an infringement of the guarantee by the State in its laws to respect, as far as it is practicable, and by its laws to defend and vindicate, the personal rights of the citizen and the obligation upon the State by its laws to protect as best it can from unjust attack and, in the case of injustice done, to vindicate the life, person, good name and property rights of every citizen.
The Greyhound Industry Act of 1958, being an Act of the Oireachtas, is presumed to be constitutional until the contrary is clearly established. One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant.
While s. 47 is the only section impugned in these proceedings it is impossible to consider this section in isolation and it must be considered in relation to ss. 43, 44, 45 and 46. These five sections are all in pari materia.

Sect. 47 deals with the making of what are called exclusion orders and by sub-s. 1 it gives the Board or the Club power to make such an order. Sub-sect. 2 prescribes the procedure to be followed by the Board after it is proposed to make or to consent to an exclusion order. This procedure is one for considering representations in writing rather in the nature of a plea to mitigate the proposed order and is a stage in the proceedings subsequent to the determination which has led to the point where the Board proposes to make or to consent to an exclusion order. It is to be noted that the Board, even in this matter, remains the governing authority in that it may itself make an order or, in the case of an order which is proposed to be made by the Club, must consent to the order before it can be made by the Club and that the Board is the only body which is to consider the representations, if any, made by the person affected by the proposed exclusion order.
The effect of an exclusion order may be serious for the person concerned. Where such an exclusion order is made it shall be served upon the person to whom the order applies and may be served on any other person whom the Board or the Club, as the case may be, think proper to be notified: see sub-ss. 5 and 6. The order, when made, is one which prohibits the person concerned from (a) being upon any greyhound race track, (b) being at any authorised coursing meeting, or (c) being at any public sale of greyhounds.
The Act defines a “greyhound race track” as a greyhound race track on which greyhound races are held for reward. The Act makes it a criminal offence for any person, other than the Board, to operate such a greyhound race track except under a licence granted by the Board. An “authorised coursing meeting” is defined as a coursing meeting authorised by the Club.
Public sales of greyhounds may be made subject to control by regulations made by the Board: see s. 38; for example, they may prohibit the holding of public sales of greyhounds save under licence granted by the Board and may vary the conditions attached to such licences, etc. The Act contains no definition of a public sale, so one must assume that it is to be construed in its ordinary meaning, namely, one to which members of the public are free to resort or resort by invitation or resort on payment of an entrance fee.
In the course of the arguments in this Court it was suggested that by the terms of s. 47, sub-s. 1, an exclusion order must prohibit a person from all three activities mentioned and that the Board or Club could not make an exclusion order to prohibit a person from any one or two of these activities. Some support for this interpretation may be gathered from the provision in s. 45 relating to the scope of a disqualification order made under that section. However, the words in s. 47, sub-s. 1, are permissive rather than mandatory in relation to the scope of the exclusion order and a permission to prohibit all three of the activities does not exclude the power to prohibit any one or two or them. The latter power would be more appropriate to the functions of the Board and it would require clear mandatory words to deprive the Board of this by requiring an order of a scope which in many cases might be largely inappropriate to the facts of the case. No such words are in the provision and in the opinion of the Court an exclusion order can be made to prohibit any one or two or all three of the activities specified. Sub-sects. 7, 8 and 9 of s. 47 would apply either severally or together according to the scope of the exclusion order.
It has been submitted in argument that an exclusion order is in some way directly enforceable. There is no provision in the Act for direct enforcement. Sub-sects. 7, 8 and 9 of s. 47 indicate the purpose of such an exclusion order. The effect of an exclusion order is to give to a person who has a licence from the Board granted under s. 22 to operate a greyhound race track, or a person acting under his direction, or to the person acting under the direction of the person holding a coursing meeting authorised by the Club, or to the person conducting the public sale, power to remove the excluded person, using if necessary reasonable force, from the race track, coursing ground or public sale, as the case may be, if he is found there. This is a statutory power, which is conferred on each of these persons (hereinafter referred to as the”authorised person”) but which the statute does not oblige him to exercise. In the ordinary course of events the person conducting the race, coursing meeting or auction, would most probably have these powers by virtue of his occupation of the premises concerned. The Court agrees with Mr. Justice Kenny in his conclusion that one effect of s. 47 is to give to a mere licensee of a greyhound race track, coursing ground or place of public sale the same right of excluding the “prohibited”person which he would have had if he were the occupier within the legal definition of that term. This power could be exercised even in the case where the “prohibited” person had some contractual right to be present, either with the occupier, where the authorised person was not the occupier, or even with the authorised person himself if at the time the contract was made the authorised person was not aware that the other person was a prohibited person or where the exclusion order came into effect after the contract had been made with the licensee. However, the power to exclude would not legally justify the exclusion or ejection of the prohibited person if he had been permitted in under a contract by the authorised person when the latter was aware of the fact that he was a prohibited person. The Court does not consider an exclusion order constitutes a legal prohibition binding the prohibited person from being present at any of the occasions mentioned in sub-ss. 7, 8 or 9 unless and until the authorised person concerned exercises the right conferred upon him. In an appropriate case the authorised person might well obtain an injunction to restrain the prohibited person from entering the place or places covered by the particular exclusion order. The Court, however, does not accept that the Board or the Club would have the right to obtain an injunction to enforce a prohibition which by virtue of the Act itself is only effectively enforceable at the will of the authorised person.
It is correct that when such exclusion order is enforced in the manner described it could affect the rights of the prohibited person in that it might restrict his existing right to trade or his right to enjoy some benefits contracted for. Such a possible result is sufficient to require that the procedure which can lead to that result must conform to the principles of natural justice. In the context of the Constitution natural justice might be more appropriately termed constitutional justice and must be understood to import more than the two well established principles that no man shall be judge in his own cause and audi alteram partem.
When the Board proposes to make or consent to an exclusion order according to the procedure described in s. 47, sub-s. 2, the stage where there is a factual determination in accordance with principles of natural justice has already been passed. One therefore must look for what comes before this. Sect. 47 does not itself refer to any other stage of the matter prior in time to the proposal to make or consent to the exclusion order. If, in fact, s. 47 stands alone and there is no earlier stage it would suggest that the Board is entitled to act completely arbitrarily and without reference to the person concerned. One must therefore see if that is borne out by the terms of the statute. In the view of the Court it is not. As has been pointed out earlier in this judgment, s. 47 cannot be read divorced from ss. 43, 44, 45 and 46. It is quite clear that a decision on the factual determination grounding the proposal to exclude a person must be the result of some form of consideration of the matter. One must look to the other sections to ascertain if there is any provision made for an inquiry, investigation or consideration of the type which would ordinarily precede such a factual determination. In the view of the Court ss. 43 and 44 provide the answer. The type of investigation envisaged in ss. 43 and 44, while not confined to matters which must ordinarily or even necessarily lead even to the consideration of making an exclusion order, or confined to what may loosely be referred to as contentious matters, must precede and in its result must ground the proposal to make an exclusion order under sect. 47. The wording of the provisions of ss. 43 and 44 does not exclude the application of the principles of natural justice to these investigations. While the Board may determine the manner in which the investigation shall be carried out the clear words or necessary implication which would be required to exclude the principles of natural justice from such investigation are not present in the sections.
It is to be noted that the investigations contemplated by ss. 43 and 44 are confined to “occurrences.” There is no special definition in the Act of “occurrence” and therefore, giving it the normal or natural meaning, it means that the subject-matter of the investigation can only be some happening or incident or event. Furthermore, according to s. 43, so far as the Board is concerned, it has power to investigate such an event or incident only if it is connected with the greyhound industry. So far as the Club is concerned, the field of investigation is somewhat narrower in that it must be connected with the breeding, registration, identification or coursing or greyhounds, etc. In so far as s. 44 is concerned, it is confined to matters in relation to any race or coursing meeting in respect of something actually observed by the authorised officer or brought to his notice in respect of a race or coursing meeting at which he is present. Within these various limitations the incident or event must be one which may reasonably be regarded as injurious to or calculated to injure the greyhound industry in any of the several aspects of it which are dealt with in the Act. While this is not expressly stated in the Act it is a necessary implication because the eventual result may be the imposition of a disability on some person within that industry and, in the absence of contrary indication, that suggests that it is only in respect of some injury or conduct calculated to injure that industry. Again unless it can be expressly read from the statute, or clearly implied, the investigating authority or the deciding authority cannot be deemed to have conferred upon it an unqualified discretion. The clear words which would be required for such an authority are not to be found in the sections. The result or finding of such investigation is one which has imposed upon it an objective condition precedent of fact. Before the finding of any such investigation can be relied upon as the justification for an exclusion order it must have been conducted in accordance with the dictates of natural justice and have been decided objectively. When these conditions have been observed the Board, or the Club, as the case may be, may make the exclusion order provided for by s. 47 on the result of such investigation if the matter has been concluded or decided against the person concerned even though the investigation may not have been conducted by the Board or the Club itself, but may have been investigated at the direction of the Board or the Club or by the authorised officer.
In the Court’s view the bodies or persons conducting the investigations under ss. 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 ss. 43 or 44 affect any right or impose any penalty or liability on anybody. 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 s. 47 violates the provisions of Articles 34, 37 and 38 of the Constitution fails.
It has been submitted with some force that until the inquiry is brought to the attention of the person concerned he may have no reason to know that the conduct which is being impugned is conduct which is capable of leading to the making of an exclusion order against him. Examining that in the light of the opinion already given above the person will know, even before the episode, (a) that it must be some occurrence arising in one of the ways already mentioned, and (b) of a nature which injures or is calculated to injure the greyhound industry. Furthermore, these matters will be determined on an objective basis only. Within those limitations the field of investigation might appear to be wide but it is admittedly not practicable to attempt to list all the possible forms of conduct which may be reasonably thought to injure or tend to injure the greyhound industry and which arise in the form of an incident or occurrence. The same objection might, however, be made by any person whose conduct may lead to his becoming a defendant in any action for tort. Yet could any such defendant be heard to say that he was not given in advance a list of all the possible acts on his part which could be reasonably held to be the wrong alleged? Similarly, a person connected with the greyhound industry, whether trading, betting or otherwise participating in it or attending at its meetings, etc., should be expected to be aware of what type of conduct might reasonably be held to be injurious or inimical to the greyhound industry. If he were judged and excluded otherwise than by that standard he would have been dealt with in respect of matters not permitted by the Act and would have his remedies in law.
The foregoing examination of the section impugned does not disclose any infringement of the rights guaranteed by Article 40, 3, 1 and 2, and Article 43 of the Constitution. In the opinion of the Court s. 47 of the Act has not been shown to be repugnant to the Constitution on any of the grounds advanced. The appeal will therefore be allowed and the declarations sought by the respondent in sub-paras. 1 and 2 respectively of para. 19 of the statement of claim will be refused.

 

Goodman International v. Mr. Justice Hamilton

[1992] 2 IR 542
.
Finlay C.J.
1st November 1991

This is an appeal by the applicants against the order of Costello J. in the High Court, made on the 21st October, 1991, dismissing their application for judicial review. In May, 1991, Dail Eireann and Seanad Eireann adopted a resolution that it was expedient that a Tribunal of Inquiry be established to inquire into certain matters which were definite matters of urgent public importance. These matters were:
(1) Allegations concerning illegal activities, fraud and malpractice in and in connection with the beef processing industry made or referred to
(a) in Dail Eireann, and
(b) on a television programme transmitted on May 13th, 1991;
(2) Any matters connected with or relevant to the matters aforesaid which the Tribunal considers it necessary to investigate in connection with its inquiries into the matters mentioned at (1) above.
Pursuant to those resolutions the Minister for Agriculture and Food, by order dated the 31st May, 1991, appointed the President of the High Court the sole member of the Tribunal of Inquiry.
The applicants’ claim in these judicial review proceedings is for a series of declarations and for orders of prohibition preventing the continuance of the holding of sittings of the Tribunal of Inquiry otherwise than in accordance with those declarations.
In short, the grounds which are relied upon in pursuing these claims are that the Dail and Seanad, in passing the resolution and identifying the allegations which were to be inquired into as a matter of urgent public interest acted in breach of the Constitution, in so far as the allegations included allegations falling into four separate categories.
These categories are:
(1) Allegations about matters which are the subject of current civil proceedings;
(2) Allegations about matters which are the private affairs of the parties;
(3) Allegations which relate to crimes which have already been heard and determined by the courts;
(4) Allegations of criminal conduct.
In addition, the applicants challenge four procedural rulings which have already been made by the sole member of the Tribunal, and seek an order prohibiting the continuance of the Tribunal otherwise than in accordance with the following claimed procedural rulings, viz.

(a) that no evidence is admissible before the Tribunal which would not be evidence in a court of law;
(b) that certain evidence should be heard in private;
(c) that statements of evidence should be prepared and furnished to the parties; and
(d) for a declaration that the Tribunal had made an unconstitutional selection of the matters into which it would inquire.
In support of these claims the applicants relied upon the following Articles of the Constitution.
Article 38
The applicants submitted that insofar as the resolution directed the Tribunal to inquire into allegations of criminal conduct that it was in breach of Article 38 because it was providing for the trial of persons on criminal charges otherwise than in due course of law and without a jury.
Article 34
The applicants submitted that insofar as the resolution directed an inquiry into matters which were or could be the subject matter of civil litigation between the applicants and other parties that it was in breach of Article 34 of the Constitution, purporting to direct the administration of justice otherwise than by courts established by law, by judges appointed in the manner provided by the Constitution.
Secondly, it was submitted that in so far as the matters to be inquired into in the resolution involved the determination of the truth or falsity of questions which were or could be the subject of civil litigation in the courts the resolution was in breach of Article 34 in that it was directing a process which would inevitably usurp the functions of the courts established under the Constitution.
Article 37
It is further submitted that the task imposed on the Tribunal by the resolutions could not be permissible under the provisions of Article 37, s. 1 of the Constitution, because even if it could be viewed as the exercise of limited functions and powers of a judicial nature, it would clearly be that exercise in criminal matters, something not within the saver contained in the Article.
Article 40, section 3
It is submitted that the nature of the resolutions, coupled with the inquisitorial nature of the Tribunal, constitutes a failure by the State by its laws to protect as best it may from unjust attack and to vindicate the good name and property rights of the applicants. A further submission under this Article of the Constitution is made on the basis that even if the resolution and the inquiry directed by it to be held did not necessarily constitute such a failure, the procedural deficiencies which it is alleged existed in preliminary rulings made by the sole member of the Tribunal constituted a want of due process or fair procedure which put the activities of the Tribunal in conflict with the Article.
Decision in the High Court
With regard to these issues, the decision of Costello J. in the High Court in the course of his judgment dismissing the applicants’ claims may be summarised as follows:
1. He held that there was nothing in the Constitution which prohibited the two Houses of the Oireachtas from directing the Tribunal of Inquiry to inquire into allegations of matters the subject of current civil proceedings and that such a direction did not infringe the principle of the separation of powers and did not usurp judicial function.
2. He held that there was nothing in the Constitution to prohibit the inquiry into matters which were the subject of disputes between private persons once the two Houses of the Oireachtas had properly concluded that they were matters which, in addition, were of public importance.
3. He held that the terms of reference of the Tribunal contained in the resolution, and the intentions of the Tribunal itself, having regard to the rulings already made, did not involve any questions of the review of orders already made in criminal courts, but did direct inquiry into the allegations concerning the circumstances surrounding past prosecutions, something which he was satisfied was constitutionally permissible.
4. He held that an inquiry into allegations of criminal conduct neither infringed Article 38 nor Article 34, and that the procedure and form of the Tribunal of Inquiry was not a failure to vindicate or defend the good name of the applicants.
5. With regard to the procedural complaints made, the learned trial judge held that there was no want of fair and proper procedures on any of the indications that had already been given as to the manner in which the Tribunal would be conducted.
I am satisfied that Costello J. was correct in the conclusions he reached and in the reasoning by which he reached them. I have come to this conclusion for the following reasons.
Presumption of constitutional validity
I am satisfied that the presumption of constitutional validity which has been applied by this Court, in a number of cases, to statutes enacted by the Oireachtas and to bills passed by both Houses of the Oireachtas and referred to this Court by the President pursuant to Article 26, applies with equal force to these resolutions of both Houses of the Oireachtas. It seems to me inescapable that having regard to the fact that the presumption of constitutional validity which attaches to both statutes and bills derives, as the authorities clearly establish, from the respect shown by one organ of State to another, and by the necessary comity between the different organs of State, that it must apply in precisely the same way to a resolution of both Houses of the Oireachtas, even though it does not constitute legislation.
The effect of the presumption of constitutional validity thus arising is the same mutatis mutandis as that referred to in the decision of this Court delivered by Walsh J. in McDonald v. Bord na gCon [1965] I.R. 217 at p. 239, where he stated as follows:
“The Greyhound Industry Act of 1958, being an Act of the Oireachtas, is presumed to be constitutional until the contrary is clearly established. One practical effect of this presumption is that if in respect of any provision or provisions of the Act two or more constructions are reasonably open, one of which is constitutional and the others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and a Court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provisions should be held to be repugnant.”
The presumption of constitutional validity also, in application to these resolutions, must contain the principle set out by the decision of this Court in East Donegal Co-Operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317, in the judgment delivered by Walsh J., where at p. 341, he stated as follows:
“At the same time, however, 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.”
In applying this principle to these resolutions and the issues arising in this case, clearly, in so far as the applicants contend for a constitutional invalidity in the resolutions setting up the Inquiry, this Court must presume that the proceedings of the Inquiry and the rulings and conduct of the Inquiry by the Tribunal will be in accordance with constitutional justice.
Applying these principles to the issues which have arisen, I have come to the following conclusions on the contentions that have been made on behalf of the applicants on this appeal.
Alleged breaches of Article 38
Article 38 of the Constitution is exclusively confined to the trial of persons on criminal charges or the trial of offences. I am quite satisfied that an inquiry, conducted as this resolution provides, into the question as to whether criminal acts have been committed, even to the extent of inquiring whether criminal acts have been committed by a named person or persons, and the reporting of the truth or falsity of such an allegation to the Legislature by the sole member of the Tribunal cannot under any
circumstances be construed or deemed as a trial on a criminal charge or of an offence within the meaning to be attached to those phrases in Article 38 of the Constitution.
The essential ingredient of a trial of a criminal offence in our law, which is indivisible from any other ingredient, is that it is had before a court or judge which has got the power to punish in the event of a verdict of guilty. It is of the essence of a trial on a criminal charge or a trial on a criminal offence that the proceedings are accusatorial, involving a prosecutor and an accused, and that the sole purpose and object of the verdict, be it one of acquittal or of conviction, is to form the basis for either a discharge of the accused from the jeopardy in which he stood, in the case of an acquittal, or for his punishment for the crime which he has committed, in the case of a conviction.
The proceedings of the inquiry to be held by this Tribunal have none of those features. The Tribunal has no jurisdiction or authority of any description to impose a penalty or punishment on any person. Its finding, whether rejecting an allegation of criminal activity or accepting the proof of an allegation of criminal activity, can form no basis for either the conviction or acquittal of the party concerned on a criminal charge if one were subsequently brought, nor can it form any basis for the punishment by any other authority of that person. It is a simple fact-finding operation, reporting to the Legislature.
This view of the essential ingredients of a criminal trial is supported by the decisions of both the former Supreme Court and of this Court. Kennedy C.J., in Lynham v. Butler [1933] I.R. 74 dealt with these essential ingredients in a passage of his judgment in that case, which was expressly cited with approval by O’Dalaigh C.J. in Deaton v. Attorney General [1963] I.R. 170. The passage is as follows, referring to the judicial power of the State:
“It is one of the activities of the government of a civilised state by which it fulfils its purpose of social order and peace by determining in accordance with the laws of the State all controversies of a justiciable nature arising within the territory of the State, and for that purpose, exercising the authority of the State over person and property. The controversies which fall to it for determination may be divided into two classes: criminal and civil. In relation to the former class of controversy, judicial power is exercised in determining the guilt or innocence of persons charged with offences against the State itself and in determining the punishments to be inflicted upon persons found guilty of offences charged against them, which punishments it then becomes the obligation of the Executive Department of Government to carry into effect.”
I am satisfied that there is no warrant for suggesting that the activities of this Tribunal could conceivably constitute any invasion of the right to trial on a criminal charge with a jury, which is expressly contained in Article 38, for the very simple reason that it is not a trial on a criminal charge.
Article 34
The meaning of the constitutional concept of the administration of justice involved in this Article was identified in the tests set out in the judgment of Kenny J. in the High Court in McDonald v. Bord na gCon [1965] I.R. 217 in a passage which was later accepted by the decision of the Supreme Court in the judgment of Walsh J. I, like Costello J. in the course of his judgment in this case, would adopt them as being appropriate tests. The passage is as follows:
“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 of liabilities or the infliction of a penalty;
3. The final determination (subject to appeal) of legal rights and 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.”
I am satisfied that with the possible exception of the first clause in this statement of the characteristics of the administration of justice, where it speaks of a controversy as to the existence of a violation of the law, the activities of this Tribunal of Inquiry fulfils none of the other fundamental conditions or characteristics of the administration of justice as laid down in this case. It can be argued, I suppose, that by reason of the inquisitorial nature of the Tribunal that it is not accurate to speak of a controversy concerning the violation of the law, but even if it is, and I would incline to the view that it would come within that category, that fact alone could not conceivably make the proceedings of this Tribunal an administration of justice within the meaning of Article 34 of the Constitution.
In a sense, a positive test which can be applied, and very strikingly, is that contained in clause 5 of the principles laid down by Kenny J. It is no part, and never has been any part of the function of the judiciary in our system of law, to make a finding of fact, in effect, in vacuo and to report it to the Legislature. The courts do not even exercise a function of making, in cases between litigants, a finding of fact which does not have an effect on the determination of a right.
With regard to the suggestion that the findings of the Tribunal, if not an impermissible administration of justice by a body other than a court, is a usurpation of the activities of courts in cases where either civil cases are pending or may be instituted, it seems to me that again this submission arises from a total misunderstanding of the function of the Tribunal. A finding by this Tribunal, either of the truth or the falsity of any particular allegation which may be the subject matter of existing or potential litigation, forms no part of the material which a court which has to decide that litigation could rely upon. It cannot either be used as a weapon of attack or defence by a litigant who in relation to the same matter is disputing with another party rights arising from some allegation of breach of contract or illegal contract or malpractice. I am, therefore, satisfied that the submission under Article 34 must fail.
Article 37, section 1
The submission made on behalf of the applicants concerning this Article was, in a sense, dependent on establishing that the activities of the Tribunal constituted an administration of justice within the meaning of Article 34. I find it difficult to distinguish between the exercise of the functions and powers of a judicial nature and the administration of justice, and I am satisfied that the same considerations apply to the test to be applicable to each of these.
My conclusion is that the activities of the Inquiry are not in any way the exercise of a judicial power or function, it being no part of a judicial function, nor part of the judicial domain, to ascertain the truth or falsity of facts and report them to Parliament. The question as to whether the exception, or saver, contained in Article 37, s. 1 arises by reason of the existence of criminal matters becomes, therefore, wholly irrelevant.

Article 40, section 3
Two main arguments were submitted under this Article. One was that certain procedural decisions which have been indicated by the Tribunal would lead to unfair procedures and a want of constitutional justice in the activities of the Tribunal. For the reasons set out by Costello J. in his judgment, I would reject that contention, and I see no reason to assume or presume that the Tribunal will act otherwise than in accordance with constitutional justice. I have already indicated that a presumption contrary to that effect exists by reason of the presumption of constitutional validity concerning these resolutions, and I am satisfied that nothing adduced on behalf of the applicants displaces that presumption.
The other submission made in this context was a submission to the effect that in relation to the applicants’ good name, in particular, that the publicity attendant on the proceedings of the Tribunal could make the applicants incapable of having a fair trial by a jury on a criminal charge if one were brought against them, and that therefore they would be deprived of the possibility of obtaining an acquittal on such a trial, which would clear their good name. I am satisfied that this submission does not invalidate the resolutions of the two Houses of the Oireachtas nor the proceedings of the Tribunal being carried out in pursuance of those resolutions. If a person charged with a criminal offence can for any reason establish that due to pre-trial publicity a fair trial is impossible the courts have jurisdiction to prevent an injustice occurring.
I would accept, as was accepted by Costello J. in the High Court, that there is no indication of an intention on the part of the Tribunal, and no obligation, having regard to the terms of the resolutions in pursuance of which it is acting, for the Tribunal to inquire into any private matter or dispute which has not also got a public effect. To the extent that questions of private law were relied upon as being outside the terms of the Tribunal, it seems to me quite clear that there is no substantial disagreement that if they have a public connotation as well, they are properly within the remit of the Tribunal. The question as to whether in respect of any individual item of allegation it has got a public connotation is a matter to be dealt with and determined as the proceedings of the Tribunal continue.
With regard to the questions of the common law precedents concerning commissions of inquiries in other common law countries, and with regard to the other questions raised concerning the construction of ss. 4, 5 and 6 of the Act of 1979, I have had the opportunity of reading the judgment which is about to be delivered by McCarthy J., and I agree with it.
It is, I think, necessary in conclusion to emphasise the broad issues which have occurred in this case and the view which I have formed of them. There can be no question, and no dispute has been raised, as to the propriety of the resolution made by both Houses of the Oireachtas to the effect that allegations of fraud, illegal practices and malpractice in the beef trade in Ireland were of such importance and magnitude, having regard to the place of that trade in the national economy, that it was a matter of urgent public importance that they should be independently inquired into. It would, as I have indicated, require a very clear breach of an unambiguous constitutional provision for the courts to consider impeding such an inquiry, which is of such manifest public importance. I reject the contention which was made in regard to a number of the submissions that are concerned in this Inquiry, that it is irrelevant that the Executive has chosen the holder of a high judicial office, namely the President of the High Court, to conduct the inquiry. In addition to the other features of fair procedure which are mentioned in the judgment about to be delivered by Hederman J., I am satisfied that the fact that the sole member of the Tribunal charged with the duty of carrying out this investigation in accordance with the rules and principles of constitutional justice is the President of the High Court is a significant contributing factor to the fairness of the proceedings that are being undertaken.
I would, therefore, dismiss this appeal.

Hederman J.
This is an appeal brought by the applicants, Goodman International and Laurence Goodman, from the judgment and order of the High Court (Costello J.) of the 21st October, 1991, dismissing their application for judicial review concerning the jurisdiction, authority and workings of the Tribunal which is to inquire into the beef processing industry (“the Tribunal”).
On the 24th May, 1991, Dail Eireann passed a resolution in the following terms:
“That it is expedient that a Tribunal be established for –
1. Inquiring into the following definite matters of urgent public importance:

(i) allegations regarding illegal activities, fraud and malpractice in and in connection with the beef processing industry made or referred to
(a) in Dail Eireann, and
(b) on a television programme transmitted by ITV on the 13th May, 1991;
(ii) any matters connected with or relevant to the matters aforesaid which the Tribunal considers it necessary to investigate in connection with its inquiries into the matters mentioned at (i) above;
and
2. Making such recommendations (if any) as the Tribunal having regard to its findings thinks proper.”
On the 29th May, 1991, Seanad Eireann passed a resolution in identical terms.
On the 31st May, 1991, the Minister for Agriculture and Food made an order establishing the Tribunal and appointing Mr. Justice Liam Hamilton, President of the High Court, as the sole member of the Tribunal and providing that the Tribunals of Inquiry (Evidence) Act, 1921, as adapted by or under subsequent enactments, and the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, should apply to the Tribunal.
At a preliminary hearing of the 21st June, 1991, the Tribunal indicated to those present the nature of the allegations made and it was emphasised that the Tribunal was neither a civil nor a criminal trial. It was pointed out that it was, however, a judicial proceeding and that the principles of natural justice would apply. All parties would have to be given a full and fair hearing and natural justice further required parties who made or had made allegations against any other party or parties to be required to substantiate them and that the other party or parties would be given the fullest opportunity of dealing with such allegations. The Tribunal went on to state:
“As this is neither a civil nor a criminal action counsel to the Tribunal will lead all the evidence relevant to the issues involved, evidence which may tend to support the allegations and evidence which tends to refute the allegations. This is a heavy and onerous task and to discharge it fairly will require the assistance of all interested parties, those making the allegations and those refuting them. The Tribunal is gratified to note that all parties have welcomed this Inquiry and have promised to give it their full co-operation.
The Tribunal would also welcome the assistance of any person or persons who was not party to the making of allegations being inquired into but who have information with regard thereto tending to support or refute the allegations, and such persons should forward their names and addresses to the Registrar . . . together with a brief statement setting forth the matters in which they are in a position to assist the Inquiry.”
It has been deposed to on behalf of the first applicant that it is the parent company of a group of companies which together constitute 30% of the Irish beef processing industry and that it employs about 1,600 people. Mr. Goodman is the chief executive of the company. The applicants had been the target of allegations of improper conduct of one kind or another both in the television programme referred to in the resolutions as well as on numerous occasions in Dail Eireann. While, undoubtedly, the activities of other parties fall to be investigated in the course of the Tribunal’s deliberations, as far as these proceedings are concerned the appellants are in the central position of being at the receiving end of allegations of the most far-reaching kind, including many allegations of criminality. Clearly the beef industry is important in the economic life of the country. It is in receipt of many financial aids arising from this country’s membership of the European Economic Community. That the industry is properly controlled and managed is a matter of national importance and of acute concern for the common good of the people. The country’s duties and obligations arising from membership of the European Economic Community are bound to be involved if anything untoward occurs in such an important industry.
At the Tribunal’s first sitting, already referred to, a broad outline of the allegations which would be the subject of inquiry by the Tribunal were read out by counsel on behalf of the Tribunal: it appears that thereafter, on the 26th July, the allegations were reformulated and a further list was circulated to the parties represented at the Tribunal. On the 27th September, 1991, the Tribunal delivered to the applicants’ solicitors some eleven books of material which, at the time, the solicitors considered would be adduced at the hearings of the Tribunal but in the course of the proceedings in the High Court and before us it became clear that what the Tribunal did was to make available all the material that it had at its disposal without, necessarily, warranting that all the material would be used in the course of the inquiry.
On the 27th June, 1991, the solicitors for the applicants had written to the Tribunal’s solicitor expressing dissatisfaction with the unsubstantiated nature of the allegations and pointing out how difficult it was to respond to the allegations in their present form, making a plea for the invocation of fair procedures and so forth and then the letter concluded as follows:
“Our clients are most anxious to co-operate with the Tribunal in the efficient and expeditious discharge of its onerous task. Our clients are particularly anxious to take the opportunity which the Tribunal affords, of protecting their name and first class commercial reputation which have been unfairly attacked in the television programme and in Dail Eireann.
It is our intention to furnish to the Tribunal, in the very near future, such material as we can, particularly in relation to the background to the beef processing industry, in both an Irish and European context. We hope and believe that this material will be of assistance to the Tribunal in its deliberations.
If the Tribunal were to consider that oral, rather than written, submissions on the matters referred to in this letter were more appropriate, we will be happy to present and develop these sub-missions orally. If the Tribunal requires clarification or elaboration on any matter raised in this letter we will be glad to provide it.
We would welcome an indication that our understanding of the procedures which the Tribunal will adopt as set out in this letter is correct.”
Thereafter, the Tribunal furnished revised lists of allegations, including one furnished at the hearing of the 8th October, 1991. It appears that while the allegations may have been previously ordered under different headings, essentially they were an elaboration of allegations made in the Dail at various dates since February, 1988 (as well as some references to matters in the Seanad which are not referred to expressly in the terms of the resolutions). In addition, there was a summary of the allegations contained in the television programme referred to in the resolutions. On that date submissions were made to the Tribunal in relation to its jurisdiction to inquire into the major allegations made against the applicants and the Tribunal rejected these submissions on the 9th October. Thereafter, application was made to the High Court for judicial review on two bases, viz. the alleged constitutional frailty of the proceedings before the Tribunal and, secondly, alleged procedural frailties. I will deal with the procedural matters at the end of my judgment.
The constitutional objections took the form of seeking declarations that the Tribunal was not entitled to inquire into:
(i) matters which are the subject of civil litigation;
(ii) matters which are or may be the subject of purely private disputes;
(iii) matters which have already been the subject of criminal prosecution; and
(iv) that it could not inquire into or determine the truth or otherwise of allegations of criminal conduct.
It is common case and, in any event, I am prepared to assume for the purposes of giving a decision in this case, that the allegations made and the evidence that is likely to be adduced in regard to them will, undoubtedly, enter the area of one or more of these headings.
Counsel for the applicants and including also officers and employees of the company and its subsidiaries said they were the target of allegations of criminal conduct. It was said – and this was at the forefront of counsels’ submissions – that the proceedings of the Tribunal would involve in everything except a legal definition of the trial of persons for crimes in a manner not sanctioned by Article 38 of the Constitution. It was said that the proceedings of the Tribunal represented a “full frontal attack” on the judicial domain and further, it was submitted, that if the Tribunal was allowed take its course it would involve an invasion of, and something that was tantamount to the abolition of, the right to trial by jury.
It is undoubtedly the case that if the proceedings of the Tribunal amount to the trial of any person on a criminal charge, whatever the form, then clearly such a “trial” would not be in accordance with Article 38 of the Constitution. Article 38 is comprehensive in setting forth the only forms of trial on criminal charges that are permitted by the courts. It was further submitted that all the trappings of a trial were present except formal matters such as the laying of a complaint and conformity with the Criminal Procedure Acts, as well as the fact that there was no penalty to be expressly inflicted – in every other respect it was said that the proceedings before the Tribunal were identical to a criminal trial. Reliance was placed on the fact that the Tribunal had said that it would only make findings in regard to allegations of criminal conduct if satisfied beyond reasonable doubt and that this was a further indication that what the Tribunal was engaged in was, in effect, a criminal trial.
The alternative submission was that this is a Tribunal contemplated and within the terms of Article 37 of the Constitution: that it is involving itself in the administration of justice – which is permitted, of course, under Article 37, in respect of “limited functions and powers of a judicial nature” but decisively excluded from such a body are “criminal matters”and the Tribunal, it is submitted, is concerned with “criminal matters”,because the allegations made are of grave criminal conduct and it has been submitted that the courts have made quite clear that even in regard to matters tangential to a criminal trial – such as the granting of bail and remand hearings – they are to be carried out by the judicial organ of the State.
Before dealing with the arguments adduced under this heading, it is necessary to say something about the nature of tribunals that are established under the Tribunals of Inquiry (Evidence) Acts, 1921 and 1979.
While Article 15, s. 10 of the Constitution provides that each House of the Oireachtas shall make its own rules and standing orders, with power to attach penalties for their infringement, and provides that each House shall have power to ensure freedom of debate, to protect its official documents and the private papers of its members and to protect itself and its members against any person or persons interfering with, molesting or attempting to corrupt its members in the exercise of their duties, it does not provide for the establishment of parliamentary tribunals. But in any parliamentary democracy it is essential that the parliament should have powers to initiate inquiries. Many inquiries have in the past emanated from something said in Parliament. By Article 15, s. 12 of the Constitution absolute privilege attaches to whatever is said in the Houses of the Oireachtas.
In the course of his submissions, counsel for the applicants put forward the possibility that there could be established a tribunal comprised exclusively of Dail deputies. It was the failure of such a select committee of Parliament in regard to the Marconi Scandal contrasted with the success of the Parnell Commission which had been established by the Special Commission Act, 1888, that led to the passing of the Act of 1921. The Royal Commission on Tribunals of Inquiry, 1966 (under the chairmanship of Lord Justice Salmon, Cmnd. 3121) sets out the historical background to the legislation and advocates the continuation of such tribunals as being an essential concomitant to the efficient working of Parliament in contrast to inquiries or tribunals that do not have the necessary powers to compel witnesses and so forth.
That report, also, however, referred to the exceptional inquisitorial powers conferred upon such a tribunal and that it necessarily exposes the ordinary citizen to the risk of having aspects of his private life uncovered which would otherwise remain private, and to the risk of having baseless allegations made against him. This may cause distress and injury to reputation. For these reasons, the Salmon Commission (at para. 27) was strongly of the opinion that the inquisitorial machinery set up under the Act of 1921 should never be used for matters of local or minor public importance but always be confined to matters of vital public importance concerning which there was something in the nature of a nationwide crisis of confidence.
In the United States of America the Supreme Court has held that the power of the Congress to conduct investigations “is inherent in the legislative process”: Watkins v. United States (1956) 354 U.S. 178 at 187.
Professor Sir William Wade in his book Administrative Law (6th ed.) (1988) at p. 1001, categorises tribunals under the 1921 legislation as having no partiular connection with administrative powers or with administrative law; for although they have often been used to investigate allegations of administrative misdeeds by ministers, civil servants, local authorities or the police, they are not confined to such matters. “An inquiry of this kind is a procedure of last resort, to be used when nothing else will serve to allay public disquiet, usually based on sensational allegations, rumours, or disasters.” I consider that the Irish experience has been similar.
Finally, in this regard, it is pertinent to note that this Court has pointed out that a tribunal established under the Act of 1921 is not vested with a power of trial “although a provision to such effect under the British Constitution (the cardinal principle of which is the supremacy of Parliament) would be wholly unexceptionable, however unusual”:see In re Haughey [1971] I.R. 217 at 251. In summary, therefore, there is a strong historical basis for saying that a tribunal, such as the one in question here, is appropriate and, indeed thoroughly necessary for the proper functioning of the legislative and executive organs of the State.
Nevertheless, while previous tribunals set up under the legislation may have been concerned with and had an implicit power to investigate criminal behaviour and, without prejudice to their entitlement to suggest that these tribunals were also misconceived, nonetheless, counsel submitted that in regard to the present Tribunal it is unique in the history of the State in being called upon to investigate explicit charges of criminal conduct. Counsel placed strong reliance on the powerful dissent of Murphy J. in a case decided by the High Court of Australia:
Victoria v. Australian Building Construction Employees’ and Builders Labourers’ Federation (1982) 152 C.L.R. 25. The facts of that case, shortly stated, were that the Commonwealth and the State of Victoria appointed a Royal Commissioner to inquire into various activities concerning a trade union. Amongst the matters for inquiry were whether the organisation or its officials had been engaged in activities contrary to law. The organisation challenged the validity of the appointment of the Commissioner and claimed that the conduct of the Commission would be in contempt of court, in as much as it would interfere with the course of justice.
The majority held that in the absence of any law to the contrary the Crown might appoint a Commission of Inquiry into the question of whether an individual had committed an offence but in the course of his dissent Murphy J., having referred to Blackstone’s Commentaries in regard to the role of the jury in a criminal trial, went on to say at pp. 110-111:
“The authority given to the Commissioner to exercise such an important ingredient of judicial power as finding a person guilty of ordinary crimes, is in itself an undermining of the separation of powers. It is a fine point to answer that the finding is not binding and does not of itself make the person liable to punitive consequences. It is by fine points such as this that human freedom is whittled away. Many in governments throughout the world would be satisfied if they could establish commissions with prestigious names and the trappings of courts, staffed by persons selected by themselves but having no independence (in particular not having the security of tenure deemed necessary to preserve the independence of judges), assisted by government-selected counsel who largely control the evidence presented by compulsory process, overriding the traditional protections of the accused and witnesses, and authorised to investigate persons selected by the government and to find them guilty of criminal offences. The trial and finding of guilt of political opponents and dissenters in such a way is a valuable instrument in the hands of governments who have little regard for human rights. Experience in many countries shows that persons may be effectively destroyed by this process. The fact that punishment by fine or imprisonment does not automatically follow may be of no importance; indeed a government can demonstrate its magnanimity by not proceeding to prosecute in the ordinary way. If a government chooses not to prosecute, the fact that the finding is not binding on any court is of little comfort to the person found guilty; there is no legal proceeding which he can institute to establish his innocence. If he is prosecuted, the investigation and findings may have created ineradicable prejudice. This latter possibility is not abstract or remote from the case. We were informed that the public conduct of these proceedings was intended to have a ‘cleansing effect’.”
This passage identifies a danger that such powers might be abused. If this were to happen the courts would restrain it.
Reliance was also placed on the judgment of the Court of Criminal Appeal in The People v. Madden [1977] I.R. 336 and to a dictum of Egan J. in The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550 at p. 565 where he said:
“Courts have no higher duty to perform than that involving the protection of constitutional rights and if at any time the protection of these rights should delay or even defeat, the ends of justice in the particular case, it is better for the public good that this should happen rather than that constitutional rights should be nullified.”
I have reached the conclusion that there can be no question of the proceedings before this Tribunal being categorised as a “trial” of any description. What the Tribunal is concerned with is to investigate and make findings. It may well not have been necessary for the Tribunal to set a standard of proof “beyond reasonable doubt” but that is a procedural requirement which it was well within the competence and entitlement of the Tribunal to lay down. It does not have the effect of transmuting what is an inquiry into a “trial”. The following essentials to any criminal trial are missing: a prosecutor, the possibility of convictions (or acquittals) and the infliction of any penalty.
Counsel for the appellants highlighted the following matters as being likely to put his clients at a disadvantage at the Tribunal’s proceedings:
(i) the procedure was inquisitorial;
(ii) rules of evidence will not be adhered to in their entirety;
(iii) there is no “direction” stage (the jury is not there from whom the case can be withdrawn); and
(iv) a “not proven” verdict might be entered.
This was put forward by way of contrast to the proceedings in the criminal trial. Whether these are disadvantages to the appellants or not, time will tell but it is clear that they represent a further demarcation between what is a criminal trial and what decisively is not.

Further, it is true that the allegations before this Tribunal are, by reference to Dail statements, more explicit than are to be found in the terms of reference of any previous tribunal but that is simply a matter of form rather than of substance; there is no doubt that previous tribunals – to take the last five in reverse chronological order: “The Kerry Babies Case” (Pl. 3514; October, 1985); Report on the Fire at the Stardust, Artane, Dublin (Prl. 853; June, 1982); Report on the Disaster at Whiddy Island (Prl. 8911; May, 1980); Inquiry into the programme on Illegal Moneylending broadcast by the Seven Days programme on R.T.E. (Prl. 1363; August, 1970); and Report into the death of Liam O’Mahony (Pr. 9790; November, 1967) were all concerned, among other things, with possible criminal conduct on the part of somebody or other.
Further, I do not accept that this Tribunal is within the contemplation of Article 37 at all. In order for a tribunal to come within Article 37 it must take the place of a judge or a court. Normally a judge or a court is concerned in the first instance with disputes between rival parties and such do not exist in the case of this Tribunal and, secondly, there is no power to inflict any penalty. All this Tribunal can do is to investigate, make findings and report these findings to the Minister.
Reference was made to certain sections of the Act of 1979 as indicating that this Tribunal was administering justice. In particular, reference was made to s. 4 which provides:
“A tribunal may make such orders as it considers necessary for the purpose of its function, and it shall have, in relation to their making, all such powers, rights and privileges as are vested in the High Court in respect of the making of orders.”
Reference was also made to s. 6 which gives the Tribunal power to order that the costs of a person appearing before the Tribunal should be paid by someone else appearing before the Tribunal. It is clear that these amendments to the Act of 1921 are to give tribunals set up under the relevant legislation further efficacy. For example, in the past it was regarded as anomalous that the most a tribunal of inquiry could do was to “recommend” to the Attorney General that certain costs should be paid out of public funds. Section 4 does no more than to increase the efficiency of tribunals. Many administrative tribunals, as well as an inquiry such as this Tribunal, are clothed with what history has shown are efficacious powers when exercised in the courts. The fact that powers similar to those exercised by the High Court are conferred on a
particular administrative tribunal or tribunal of inquiry does not constitute such bodies courts.
Further, I am convinced that the reference to “criminal matters” has to relate to a form of trial of “criminal matters”. I reach this conclusion because, when Article 37 is in operation, there is of necessity a form of trial or adjudication. In this regard I respectfully endorse the reasoning of the Chief Justice, then President of the High Court, when he gave the judgment of a Divisional Court in The State (Murray) v. McRann [1979] I.R. 133, with which the other members agreed. He said at p. 135: “A crime or criminal charge must be defined, as it was in Deaton v. The Attorney General [1963] I.R. 170 as an offence against the State itself or as a public offence. A criminal matter within the meaning of Article 37 can be construed as a procedure associated with the prosecution of a person for a crime. It may be the preliminary investigation of such a charge, it may be the trial itself, it could be an appeal from the trial or, presumably, an application for bail pending trial or appeal. The essential ingredient of a criminal matter must be its association with the determination of the question as to whether a crime against the State or against the public has been committed.”
I can dispose of the remaining constitutional arguments as follows. It has been submitted that there should be no interference in the judicial domain as regards pending civil litigation; it is common case that this should not occur. Otherwise, I can see no constitutional bar, based on the separation of powers or otherwise, to the Tribunal inquiring into matters that are the subject of such civil litigation. The Tribunal would not be entitled, and doubtless would not wish, to inquire into matters that are purely private disputes. But if there is a public element to what are otherwise matters of ordinary litigation (relevant to the terms of the resolution) then the Tribunal is entitled to make inquiries.
As regards past findings of convictions or acquittals, it is likely that the Tribunal will need to do no more than put these matters on the record. The actual fact of conviction or acquittal speaks for itself. That is not to say, however, that the circumstances surrounding the initiation of prosecutions, the course of such prosecutions and the results thereof is not properly a matter for the Tribunal. I believe it is.
A constant theme in the argument of counsel for the applicants was that the hearings before the Tribunal would affect the good name of their clients as well as various officers and employees of the various companies and that any findings of misconduct indubitably would bring about the tarnishing of their reputations and added gravity would be attached to any findings of misconduct because the sole member of the Tribunal was the President of the High Court. No one could gainsay this proposition. But it has to be said that the constitutional requirement which is reposed in all organs of State is “to respect, and, as far as practicable, by its laws to defend and vindicate the personal rights of the citizen.” These rights include the citizen’s good name. Here all the requirements will be present in this Tribunal to see that each citizen’s good name is vindicated and every opportunity will be afforded to anyone in respect of whom any allegation of impropriety is levelled to establish his version of events.
The applicants challenge four procedural rulings which have already been made by the sole member of the Tribunal, seeking an order prohibiting the continuance of the Tribunal otherwise than according to the following claimed procedural rulings:
(a) that the only evidence admissible is evidence admissible in a court of law;
(b) that certain evidence should be heard in private;
(c) that statements of evidence should be prepared and furnished to the interested parties;
(d) that the Tribunal having collected the allegations into which it will inquire has made a constitutionally invalid selection of the matters into which it will inquire.
With regard to the first there was a fear that there might be an over-use of hearsay evidence. This because, undoubtedly, in the material furnished to the solicitors for the applicants there was included much hearsay, but the Tribunal will doubtless adopt the same approach as the Tribunal of Inquiry into dealings in Great Southern Railway Stock (Prl. 6792; 1943), the members of which were Mr. Justice Overend, Judge Davitt and Judge Barra Ó Briain . While it sifted through rumour and hearsay it relied only on admissible evidence for its findings.
In the course of this inquiry it may be necessary for the Tribunal to relax the rules of evidence in regard to some particular party – including the applicants. It would be very unwise for this Court to attempt to fetter the discretion which the Tribunal undoubtedly possesses to regulate its own procedure. Similarly, in regard to whether any evidence should be taken in private – that would be a matter for the Tribunal to rule on as the occasion requires. With regard to the remaining grounds we have been told that counsel for the Tribunal had prepared a list of witnesses and the statements of proposed evidence that they would give for the scheduled hearing and we have been assured that that is the way that the Tribunal will operate. The allegations have been chosen by reference to the terms of the resolutions which, in turn, meant that the Tribunal had to list them by reference to the particular allegations made from time to time in Dail Eireann. I think that is a wholly unexceptional course of conduct. I would dismiss the appeal.

McCarthy J.
I agree that this appeal should be dismissed. In my judgment, neither the passing of the relevant resolutions by the Dail and Seanad nor the appointment of the Tribunal infringes Articles 34, 37 or 38 of the Constitution. There is no usurpation of the role of the judiciary in the administration of justice; shorn of procedural requirements, the essence of a criminal trial is verdict and, if appropriate, sentence; absent these, it is not a criminal trial. The fact, if it be the fact, that others may read into the hearing or the findings of the Tribunal more than is done cannot affect its constitutional validity.
The requirement of fair procedures remains. I find nothing in the material presented on this appeal that would show anything but the most diligent application of such procedures.
Having regard to the broad range of the argument advanced with such skill and industry by senior and junior counsel for the appellant, I wish to add further views.
1. I know of no principle that would preclude the Tribunal from investigating facts within its remit merely on the ground that some of them are the subject of civil litigation.
2. It may be that such a tribunal could be restrained from inquiring into civil disputes that only involve private parties and where there is no public element. Such is not the case here. In any event, the presumption of constitutionality would lead one to believe that Parliament would not authorise such an inquiry.
3. In coming to a conclusion either on uncontested or controverted issues, it may well be that a tribunal will identify findings which amount to criminal offences. So be it, but that is not the purpose of the Tribunal. The “fall-out” does not invalidate the Tribunal.
4. It is of the essence of such a tribunal that its hearings be in public; that is not to say that it may not, in accordance with the Act of 1921, hold sittings in private; such is a matter within the discretion of the Tribunal but, with respect, I do not wholly adopt the observations of McLoughlin J. in In re Haughey [1971] I.R. 217 in that regard.
5. No challenge was made to the constitutional validity of the Tribunals of Inquiry (Evidence) (Amendment) Act, 1979, but it must be construed as subject to the constitutional framework and, in particular, involving fair procedures.
(a) Section 4 authorises a tribunal to make such orders as it considers necessary “for the purposes of its functions”.The purposes of its functions are to carry out the remit of Parliament. This may involve the issuing of witness summonses in accordance with s. 1, sub-s. 1 of the Act of 1921, inspection of particular places, the taking of a shorthand note, arrangements for sittings, the printing of its report and so on.
(b) Section 5: The clear purpose of this section is to free persons giving evidence before a tribunal or in answer to a commission or request from the constraints that attend on those who wish to avoid self-incrimination. Because of s. 5 such a person is not to be faced with a recital of his evidence before a tribunal if and when he is subsequently charged with an offence arising out of the matter about which he testified. There is an exception to provide for a possible prosecution for perjury at the Tribunal. Such a prosecution was commenced after the publication of the Report of the Tribunal into the Whiddy Island Disaster; the charge was dismissed.
(c) Section 6: The liability to pay costs cannot depend upon the findings of the Tribunal as to the subject matter of the inquiry. When the inquiry is in respect of a single disaster, then, ordinarily, any party permitted to be represented at the inquiry should have their costs paid out of public funds. The whole or part of those costs may be disallowed by the Tribunal because of the conduct of or on behalf of that party at, during or in connection with the inquiry. The expression “the findings of the tribunal” should be read as the findings as to the conduct of the parties at the tribunal. In all other cases the allowance of costs at public expense lies within the discretion of the Tribunal, or, where appropriate, its chairman.
6. In Cowan v. Attorney General and Others [1961] I.R. 411, Haugh J. condemned the relevant provisions of s. 39 of the Local Government Act, 1941, as amended by s. 98 of the Local Government Act, 1946, in so far and only in so far as applied so much of the Municipal Corporations Act, 1882, and of the Municipal Election (Corrupt and Illegal Practices) Act, 1884, as related to election petitions, on the grounds that (1) the election court might make findings which would affect the life, liberties, fortunes or reputations of individuals; and (2) the election court might exercise its jurisdiction in matters partly criminal.
The applicants rely upon the first of these conclusions which is detailed by Haugh J. at p. 423:
“An election court when commencing the hearing of an election petition may know what it is about to try, but if and when, in any petition, the court should, of its own volition, order the attendance of a new witness or witnesses, entirely new issues may arise that may involve findings by the court that could well affect, in the most profound and far-reaching way, the lives, liberties, fortunes or reputations of those against whom they are exercised; and I am of opinion that the court, availing of all of the powers and duties conferred upon it in its ordinary day-to-day exercise of its powers and functions, is in fact not exercising the limited functions and powers allowable by Article 37, and is therefore unconstitutional.
However, I must go further. Assuming for the purpose of my further observations, that the exercise of its powers are of a limited nature in the manner envisaged by Article 37, a further important question arises. Does that court exercise even part of its powers and functions in matters that are criminal? From the pattern of the Acts as a whole, it seems to me that the court’s right to assume its criminal jurisdiction, at any time, should circumstances so warrant, is one that cannot be taken away from it without doing something that was contrary to the intention of Parliament.
And it is beyond question that the court has power to try persons on matters that are criminal and to fine and imprison a person whom it convicts on a criminal charge.”
It is to be noted that the declaration made by Haugh J. at p. 424 was:
“The Court being of opinion that the trial and adjudication upon the election petition in the statement of claim mentioned by the defendant Richard N. Cooke would if proceeded with amount to the exercise of judicial power and to the administration of justice by the said defendant contrary to the provisions of the Constitution of Ireland . . .”
The critical factor is trial and adjudication, not inquiry.
7. In Central Dublin Development Association v. Attorney General (1975) 109 I.L.T.R. 69 at p. 94, Kenny J. applied the tests laid down in In re the Solicitors Act, 1954 [1960] I.R. 239 and found that the question of what is exempted development under the Local Government (Planning and Development) Act, 1963, was not one that affects the fortunes of citizens in a profound way. Fundamental, however, to the judgment, is the fact that a decision is required.
8. I do not accept that the determining of truth or falsity is, necessarily, a judicial act in the sense that it may only validly be performed by judges. It does require the application of judicial standards, but it is an everyday occurrence that a variety of tribunals, collegiate or otherwise, have to decide disputes of fact. The added circumstance that the resolution of a dispute of fact in a particular way may involve a statement of fact amounting to offences under the Income Tax Acts, the Larceny Acts or the Criminal Justice Act, 1951, does not amount to a finding of guilt.
9. As to the law in other jurisdictions, the decision of the courts of New Zealand must be read with due respect but they have been overtaken by those of the Australian courts in which I find the analysis and reasoning of Brennan J. in Victoria v. Australian Building Construction Employees’ and Building Labourers Federation (1982) 152 C.L.R. 26 most convincing.
10. Part of the argument advanced for the applicants was based on the common law history which identified fundamental concepts which bore upon the legality of commissions to inquire and report. A like argument was advanced in the Victoria case where reference was made to an article by Dr. David R. Mummery in 97 L.Q.R. 287. This article places particular emphasis on the statute, chapter 3 of 42 Edward III (1368) which provided “that no man be put to answer without presentment before justices, or matter of record, or by due process and writ original, according to the old law of the land: and if any thing from henceforth be done to the contrary, it shall be void in the law, and holden for error.”
In his powerful argument Mr. O’Donnell has identified a common law right not to be put to answer without process; not to have a new court where matters are thrown into issue, and not to have a truncated court. In the Australian cases, there is no reference to any express constitutional requirement, the argument being related to the use of the royal prerogative and relevant statutes as well as the material identified in the article by Dr. Mummery. In the Victoria case, Brennan J. analysed this material and its history and in my view correctly summarised its effect when he said (at p. 152):
“What the common law and the early statutes forbade to the executive was the assumption of any judicial function or interference with the judicial process. A commission of mere inquiry and report – affecting no rights, privileges or immunities, imposing no laibilities, exposing to no new legal disadvantage – cannot be (unless the circumstances are exceptional) either an authority for the assumption of judicial functions or an intereference with the judicial process. Even if a commissioner be directed to inquire into and report upon a contravention of the law, the inquiry and report are sterile of legal effect. It is not the nature of the facts to be found, but the legal effect of the finding which may stamp an inquiry as judicial (see Huddart Parker (1909) 8 C.L.R. at p. 383.) In Reg. v. Davison (1954) 90 C.L.R. 353 at p. 370, Dixon C.J. and McTiernan J. cited a passage from the judgment of Holmes J. in Prentice v. Atlantic Coast Line Co. (1908) 211 U.S. 210 at p. 227:
‘But the effect of the inquiry, and of the decision upon it is determined by the nature of the act to which the inquiry and decision lead up . . . The nature of the final act determines the nature of the previous inquiry’.”
Later, at p. 156, Brennan J. continued:
“A commission to inquire and report cannot be issued in exercise of the prerogative or of the statutory power merely to satisfy an idle curiosity: what distinguishes a prerogative commission from an inquiry which any person is at liberty to make is that it is an inquiry on behalf of the executive government for a purpose of government. Absent that purpose and no support for the inquiry can be found either in the prerogative or in the statute. . . . Given the official purpose of the inquiry, however, there is no limit as to the subjects into which the inquiry might be authorized. In McGuinness (1940) 63 C.L.R. at 101 Dixon J. observed that Sir Harrison Moore had concluded ‘that at common law there was no limitation upon the executive power of inquiry even though the matter inquired of were of a private nature of some matter of offence or right capable of being brought to adjudication.’

It is not submitted that the Commissions are to inquire into subjects outside the range of legitimate inquiry by the respective executive governments. The circumstances that the inquiry may throw up information that offences have been committed is no ground for impugning the validity of the Commissions. The Commissions, whether dependent solely upon the prerogative or, in the case of the Commonwealth Commission, upon statute as well, are no more than inquiries on behalf of the executive governments for their respective purposes. The findings (if any) made by the Commissioner are entirely barren of legal consequences though the executive governments may choose to have regard to them in the administration of the affairs of the country or for the guidance of Parliament.”
11. In Ireland, having regard to the express provisions of Article 38, of which s. 1 is an echo of the phrase “due process of law” in the Fifth Amendment to the Constitution of the United States of America, it may be more relevant to look to decisions of the United States Supreme Court touching on the scope and range of parliamentary investigation or inquiries. The prescription of the Fifth Amendment, so far as relevant, is not to be deprived of life, liberty or property, without due process of law; this may have a wider scope than the prescription of Article 38, s. 1: “No person shall be tried on any criminal charge save in due course of law.” The rights identified at common law, such that no man be put to answer without presentment before justices, are in my judgment subsumed by the constitutional guarantees of fundamental rights. The prescripts of natural justice – to hear the other side and not to be a judge in one’s own cause, have, themselves, been subsumed by the constitutional right to fair procedures. The right to be heard incorporates the right to be put to answer, to be told of the allegation, and to confront the witnesses. History may well be a guide, but only a guide, to constitutional construction. Rights are to be found within the constitutional framework, some created, others identified and guaranteed.
Passing reference was made in the course of argument to Kilbourn v. Thompson (1880) 103 U.S. 169 and Watkins v. United States (1956) 354 U.S. 178; it is clear that in the United States little if any restriction has been imposed on Congress in the range of its investigative powers: see the analysis of this in “The Constitution of the United States of America” – Analysis and Interpretation (Corbin), Annotation of Cases to June 29 1972, together with Supplement to 1980.

12. The parliamentary resolution requires due respect from the judicial organ of government; whilst the range of the remit contained in the resolution has been alleged to trench upon the judicial power, there has been no suggestion of any impropriety or abuse of the parliamentary power. If an allegation of impropriety or abuse of power were to be made, then, both as to ascertaining the facts and enforcing constitutional rights, to echo the words of O’Dalaigh C.J. in The State (Quinn) v. Ryan [1965] I.R. 70 at p. 122: “the Courts’ powers in this regard are as ample as the defence of the Constitution requires.”

O’Flaherty J.
I agree with the judgments which have been delivered.

Egan J.
I also agree.

Croke v. Smith (No. 2)

[1998] 2 IR 101

 

Hamilton C.J.
31st July, 1996

Article 40.4.3 of the Constitution of Ireland, 1937, provides that:-
“Where the body of a person alleged to be unlawfully detained is produced before the High Court in pursuance of an order in that behalf made under this section and that Court is satisfied that such person is being detained in accordance with a law but that such law is invalid having regard to the provisions of this Constitution, the High Court shall refer the question of the validity of such law to the Supreme Court by way of case stated . . .”
The High Court, Budd J., being satisfied that the applicant is being detained in the Central Mental Hospital in accordance with the provisions of the Mental Treatment Act, 1945, as amended and in particular s. 172 of the Act, but that such law is invalid having regard to the provisions of the Constitution, referred to the Supreme Court by way of case stated, pursuant to the aforesaid Article of the Constitution, the question of the validity of such law, being s. 172 of the Act having regard to the provisions of the Constitution.
Section 172 of the Act provides:-
“(1) Where a chargeable patient reception order is made, any of the persons mentioned in subsection (2) of this section may receive and take charge of the person to whom the order relates and detain him until his removal or discharge by proper authority or his death and, in case of his escape, retake him within twenty-eight days thereafter and again detain him as aforesaid.
(2) The persons entitled to receive, take charge of, detain, and retake a person under this section shall be –
(a) the mental hospital authority maintaining the district mental hospital mentioned in the relevant chargeable patient reception order,
(b) the resident medical superintendent of such hospital,
(c) the other officers and the servants of such hospital.”
As the power to receive and take charge of a person in accordance with the provisions of the aforesaid section is based on a “chargeable patient reception order” having been made, it is necessary to refer to the particular provisions of the Act of 1945 which are set forth in Chapter 1 of Part XIV of the Act, providing for the making of the said chargeable patient reception order.
Before doing so, however, it is essential to state that the validity of such provisions having regard to the provisions of the Constitution is not an issue in this case. The jurisdiction of this Court is, and is only, to determine the question which was referred to it by the High Court in accordance with the provisions of Article 40.4.3 of the Constitution viz. the question whether s. 172 of the Act is invalid having regard to the provisions of the Constitution.
These provisions enjoy the presumption of constitutionality, as indeed do the provisions of s. 172 of the Act, unless and until the Court, orders otherwise.
Section 162 of the Act as amended by s. 6 of the Mental Treatment Act, 1961, (hereinafter referred to as “the Act of 1961”) provides,inter alia:-
“(1) Where it is desired to have a person received and detained as a person of unsound mind and as a chargeable patient in a district mental hospital for the mental hospital district in which he ordinarily resides, application in the prescribed form may be made to a registered medical practitioner (not being a registered medical practitioner disqualified in relation to such person) for a recommendation (in this Act referred to as a recommendation for reception) for the reception and detention of such person as a person of unsound mind in such district mental hospital.”
Sub-section (2) designates, subject to ss. 3 and 4 the persons entitled to apply for such recommendation for reception.

Section 163, as amended by s. 7 of the Act of 1961, deals with the making, or refusal, of the application for recommendation by the registered medical practitioner and sub-s. (2) thereof provides that:-
“The following provisions shall have effect in relation to a recommendation for reception –
(a) the recommendation shall state the date of the examination by the registered medical practitioner of the person to whom the recommendation relates and shall be signed . . . on the date of such examination;
(b) the recommendation shall contain a certificate that such person is of unsound mind, is a proper person to be taken charge of and detained under care and treatment, and is unlikely to recover within six months from the date of such examination;
(c) the recommendation shall contain a statement of the facts upon which the registered medical practitioner has formed his opinion that such person is a person of unsound mind, distinguishing facts observed by himself and facts communicated by others.”
Where a recommendation for reception is made, the applicant for the recommendation for reception or any person authorised by him may take the person to whom the recommendation relates and convey him to the district mental hospital mentioned in the recommendation (vide section 167).
Where such a person is removed to the district mental hospital, the resident medical superintendent or other medical officer of the hospital acting on his behalf, is obliged on the arrival of the person at the hospital and on presentation of the recommendation to examine the person. If, as a result of such examination, he is satisfied that the person is a person of unsound mind and is a proper person to be taken charge of and detained under care and treatment, he shall forthwith make an order in the prescribed form (in the Act and hereinafter referred to as “a chargeable patient reception order”) for the reception and detention of the person as a person of unsound mind in the hospital. If he is not so satisfied he is obliged not to make such order (vide section 171).
As appears from the judgment of Budd J. it had been argued by counsel on behalf of the applicant that the foregoing provisions of the Act were unconstitutional due to the lack of judicial or quasi-judicial intervention prior to the reception and detention of a patient.
In view of his finding that s. 172 of the Act was repugnant to the Constitution the learned trial judge did not consider it necessary to form any conclusion on this issue or to refer any question with regard to the validity of such provisions having regard to the provisions of the Constitution to this Court. Consequently, this Court is only concerned with the validity of s. 172 of the Act of 1945 having regard to the provisions of the Constitution.
Presumption of constitutionality
The approach of the Court when considering the constitutionality of a law passed by the Oireachtas or any provision thereof is well established.
It was held by the former Supreme Court in In re Art. 26 of the Constitution and the Offences Against the State (Amendment) Bill, 1940 [1940] I.R. 470 at p. 478 that:-
“Where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, we are of opinion, as a matter of construction, that such repugnancy must be clearly established.”
In delivering the judgment of the Court in East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317, Walsh J. stated at p. 341:-
“. . . an Act of the Oireachtas, or any provision thereof, will not be declared to be invalid where it is possible to construe it in accordance with the Constitution; and it is not only a question of preferring a constitutional construction to one which would be unconstitutional where they both may appear to be open but it also means that an interpretation favouring the validity of an Act should be given in cases of doubt.”
He further stated at p. 341:-
“At the same time . . . 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. In such a case any departure from those principles would be restrained and corrected by the Courts.”
As a result of these and other decisions of this Court, the Court, approaching the consideration of the provisions of s. 172 of the Act of 1945 and its determination of the question as to whether the provisions thereof are invalid having regard to the provisions of the Constitution, must
(1) grant to the impugned provision the presumption of constitutionality unless and until the contrary is clearly established;
(2) not declare the impugned provision to be invalid where it is possible to construe it in accordance with the Constitution:
(3) favour the validity of the provision in cases of doubt; and
(4) must have regard to the fact that 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.
As stated by O’Byrne J., in delivering the judgment of the court, in In re Philip Clarke [1950] I.R. 235 at p. 250 of the report:-
“This Act as shown in the title, was primarily intended to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom”
and at p. 247:-
“. . . is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally.”
Section 172 of the Act of 1945 cannot be construed solely in relation to the facts of one particular case: it must be construed in the light of its own language within the framework of the Act in its entirety and within a constitutional framework.
As appears from the judgment of the former Supreme Court in In re Philip Clarke it had been submitted to that Court that the provisions of Part XIV of the Act and in particular s. 165 thereof, were repugnant to the Constitution.
Section 165 empowered a member of the Garda Siochana, who was of the opinion that it was necessary that a person believed to be of unsound mind should, for the public safety or the safety of the person himself be placed forthwith under care and control, to take such person into custody and remove him to a garda station.
By virtue of the provisions of s. 165 (3) of the Act, the member of the Garda Siochana who had taken the person into custody was obliged to apply forthwith to a registered medical practitioner for a recommendation for the reception and detention of the person as a person of unsound mind in a district mental hospital.

Such medical practitioner is empowered to make the recommendation if he is satisfied that it is proper to do so and if such recommendation is made, the member of the Garda Siochana may take the person and convey him to the district mental hospital, whereupon the provisions of s. 171 of the Act become applicable.
The provisions of s. 171 are applicable in all cases where a recommendation for reception is made, whether in pursuance of the provisions of ss. 162, 165 or 166 of the Act and may result in the making of a “chargeable patient reception order” in respect of the person the subject of the application.
As appears from the judgment of the Court in In re Philip Clarke [1950] I.R. 235, the main argument against the validity of s. 165 of the Act of 1945 was based upon the absence of any judicial intervention or determination between the arrest of the person alleged to be of unsound mind and his subsequent detention under a reception order.
In rejecting this argument, the Court stated at p. 247:-
“The impugned legislation is of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally. The existence of mental infirmity is too widespread to be overlooked and was, no doubt, present to the minds of the draughtsmen when it was proclaimed in Article 40.1 of the Constitution that, though all citizens, as human beings, are to be held equal before the law, the State may, nevertheless, in its enactments, have due regard to differences of capacity, physical and moral, and of social function. We do not see how the common good would be promoted or the dignity and freedom of the individual assured by allowing persons, alleged to be suffering from such infirmity, to remain at large to the possible danger of themselves and others.
The section is carefully drafted so as to ensure that the person, alleged to be of unsound mind, shall be brought before, and examined by, responsible medical officers with the leaset possible delay. This seems to us to satisfy every reasonable requirement, and we have not been satisfied, and do not consider that the Constitution requires, that there should be a judicial inquiry or determination before such a person can be placed and detained in a mental hospital.
The section cannot, in our opinion, be construed as an attack upon the personal rights of the citizen. On the contrary it seems to us to be designed for the protection of the citizen and for the promotion of the common good.

In our opinion the section in question is not repugnant to either the letter or spirit of the Constitution and, accordingly, we are of opinion that this ground of appeal fails.”
The power to make a chargeable patient reception order is provided for in s. 171 and detention on foot thereof in section 172.
Though the decision made by the registered medical practitioner to make a recommendation for a reception order may, and the decision of the medical superintendent to make a chargeable patient reception order will, result in the deprivation of the liberty of the person to whom they relate, such decisions cannot be regarded as part of the administration of justice but are decisions entrusted to them by the Oireachtas in its role of providing treatment for those in need, caring for society and its citizens, particularly those suffering from disability, and the protection of the common good. These decisions can only be made when it is established that the person to whom they relate is a person of unsound mind and is a proper person to be taken in charge and detained under care and treatment. These decisions can be set aside in the appropriate circumstances by the court upon an application for judicial review or upon complaint made to the High Court in accordance with Article 40.4.2 of the Constitution but this does not mean that the decisions are part of the administration of justice.
In the course of his judgment in Application of Neilan [1990] 2 I.R. 267, Keane J. stated at p. 286 that:-
“No doubt in any case where it could be shown to the satisfaction of the court that the executive has exercised the power purportedly given to them by the section in an unlawful manner, whether because their decision was arbitrary, capricious or unreasonable or was in some other sense vitiated by illegality, the decision could be set aside by the court as the result of an application for judicial review. But that is not a material consideration in determining whether the exercise of the function in question is properly regarded as part of the administration of justice.”
The Court is satisfied that the original detention of a person considered to be of unsound mind and a proper person to be taken charge of and detained under care and treatment pursuant to a chargeable patient reception order made in accordance with the provisions of s. 171 of the Act is not part of the administration of justice and does not require a judicial inquiry or determination and that the sections which permit of such detention do not constitute an attack upon the personal rights of the citizen but rather vindicate and protect the rights of the citizens concerned by providing for their care and treatment and are not repugnant to the Constitution on this ground.
It was submitted however on behalf of the applicant that even if the original detention was lawful and not repugnant to the Constitution the power given to the mental hospital authority, to the resident medical superintendent of such hospital and the officers and servants of such hospital by s. 172 of the Act of 1945 to detain a person until his removal or discharge by proper authority or his death rendered the provisions of such section repugnant to and invalid having regard to the provisions of the Constitution: that in granting such powers of detention of an indefinite nature, without a judicial adjudication prior to detention that he was a person to whom the section applied, without an opportunity to challenge before a court or independent tribunal the reliability of the diagnosis of mental illness, the legality of the procedures used to commit him, the treatment proposed in respect of his alleged or actual illness and the necessity for compulsory treatment, and without a right of appeal against such decision to a court or other independent tribunal and without providing for an automatic independent judicial or other review of the justification for his continued detention, the Oireachtas failed to exercise its constitutional obligation to respect and so far as practicable to defend and vindicate his personal rights, including his right to liberty.
Article 40.1 of the Constitution provides that:-
“All citizens shall, as human persons, be held equal before the law.
This shall not be held to mean that the State shall not in its enactments have due regard to differences of capacity, physical and moral, and of social function.”
In enacting the Act of 1945 and the provisions of s. 172, the Oireachtas was entitled to have due regard to the differences of capacity of the persons to whom the Act applied, the requirements of their welfare and its obligation to respect and, so far as practicable, to defend and vindicate their personal rights.
For the purpose of considering whether or not the Oireachtas has failed in its obligation in this regard it is necessary to consider
(a) the person to whom s. 172 applies;
(b) the nature of the powers conferred by s. 172, and
(c) whether the constitutional rights of the persons affected were breached by the provisions of s. 172 of the Act and by the alleged failure of the Oireachtas to provide adequate safeguards in the administration thereof which would ensure that, not even for a short period, is a citizen unnecessarily deprived of his liberty.
Persons to whom the provisions of s. 172 of the Act of 1945 apply
A person to whom the provisions of s. 172 of the Act applies is
(i) a person of unsound mind in respect of whom an application has been made, in accordance with the provisions of either s. 162 or s. 165 of the Act, to a registered medical practitioner for a recommendation for reception and detention as a person of unsound mind;
(ii) a person, who has been examined by the said registered medical practitioner before he granted the application for the recommendation for reception and detention and who has been certified, in accordance with the provisions of s. 163 (2) (b) of the Act, as being a person of unsound mind and being a proper person to be taken charge of and detained under care and treatment and unlikely to recover within six months from the date of such examination;
(iii) a person who, on arrival at a district mental hospital in pursuance of a recommendation for reception, is examined by the resident medical superintendent of the hospital, or by another medical officer of the hospital acting on his behalf, who before making an order, in accordance with the provisions of s. 171 of the Act, must be satisfied as a result of such examination that the person is a person of unsound mind and is a proper person to be taken charge of an detained under care and treatment and was so satisfied.
Before a “chargeable patient reception order” can be made in respect of any person, two doctors viz. the registered medical practitioner to whom the application, in accordance with the provisions of s. 162 of the Act, was made and the resident medical superintendent of the district mental hospital, to which he had been removed, must be satisfied that the person is a person of unsound mind and is a proper person to be taken charge of and detained under care and treatment.
The Court is satisfied that the sections of the Act of 1945 which permit the detention of a citizen, who is of unsound mind and requiring care and treatment and who has been so certified, after examination, by two separate medical practitioners, satisfy every reasonable requirement and do not constitute an attack upon the personal rights of the citizen.
Effect of s. 172 of the Act of 1945
Where a chargeable patient reception order has been made, the person to whom the order relates may be received and taken in charge and detained until his removal or discharge by proper authority or his death by the persons designated in sub-s. (2) of s. 172, i.e. the mental hospital authority, the resident medical superintendent and the other officers and servants of such hospital.
In the course of his judgement in O’Dowd v. The North Western Health Board [1983] I.L.R.M. 186, Henchy J. after setting fourth the provisions of Article 40.3.1 of the Constitution stated at p. 2 05:-
“It was the implementation of those constitutional guarantees that caused the Legislature to hedge around the making of a chargeable patient reception order with the formalities mandated by the Act and the regulations made under it. As Clarke’s case shows, some of those formalities are only formalities; but others are clearly obligatory, designed to implement the constitutional guarantees I have quoted, and in particular to ensure that, not even for a short period, will a citizen be unnecessarily deprived of his liberty and condemned to the tragic and degrading status of a compulsory inmate of a mental hospital, with the dire social consequences that such a fate is likely to have on his future and on that of his relations.”
By virtue of the aforesaid provisions of the Constitution, the Oireachtas was, in permitting the detention of a citizen pursuant to the provisions of s. 172 of the Act, obliged to ensure that, not even for a short period, would a citizen be unnecessarily deprived of his liberty and the court must be vigilant to ensure that no citizen can be unnecessarily deprived of his liberty.
In the course of his judgment in R.T. v. Director of the Central Mental Hospital [1995] 2 I.R. 65, which dealt with a detention pursuant to the provisions of s. 207 (2) (c) of the Act of 1945, Costello P. stated at p. 78:-
“The applicant’s constitutional right to liberty is central to this case. It is to be found in Article 40, s. 4, sub-section 1. This article provides that no citizen shall be deprived of his personal liberty save in accordance with law. This does not mean that the Oireachtas is free to enact any legislation it wishes trenching on the guaranteed right. It is however well established that legislative restrictions on the citizen’s liberty must be in accordance with the fundamental norms of the legal order postulated by the Constitution (see King v. Attorney General [1981] I.R. 233). These fundamental norms are manifold –
that with which this case is concerned is the constitutional requirement that the State should defend and vindicate the citizen’s personal rights, and these include the right to liberty. So, if it can be shown that a law fails to defend and vindicate the right to liberty, it infringes a fundamental norm of the legal order postulated by the Constitution and will be invalid as trenching on the rights guaranteed by Article 40, s. 4, sub-section 1.
The right to liberty is, of course, not an absolute right and its exercise is in fact and in many different ways restricted by perfectly valid laws, both common law and statutory. Adjudication on a challenge to restrictive laws will be helped by considering the object and justification advanced in support of the law. It is obvious that if the object of the law is to punish criminal behaviour different considerations will apply than when the impugned law has a totally different object, such as the welfare of the person whose liberty is restricted.
The reasons why the Act of 1945 deprives persons suffering from mental disorder of their liberty are perfectly clear. It does so for a number of different and perhaps overlapping reasons – in order to provide for their care and treatment, for their own safety, and for the safety of others. Its object is essentially benign. But this objective does not justify any restriction designed to further it. On the contrary, the State’s duty to protect the citizens rights becomes more exacting in the case of weak and vulnerable citizens, such as those suffering from mental disorder. So, it seems to me that the constitutional imperative to which I have referred requires the Oireachtas to be particularly astute when depriving persons suffering from mental disorder of their liberty and that it should ensure that such legislation should contain adequate safeguards against abuse and error in the interests of those whose welfare the legislation is designed to support.”
The obligation which rested and rests on the Oireachtas is to ensure that a citizen, who is of unsound mind and requiring treatment and care, is not unnecessarily deprived, even for a short period, of his liberty and to ensure that legislation which permits the deprivation of such liberty contains adequate safeguards against abuse and error in the continued detention of such citizens.
Section 172 of the Act permits the detention of a person to whom a chargeable patient reception order relates until
(a) his removal, or
(b) his discharge by proper authority, or
(c) his death.

The removal of such a patient is authorised by the provisions of s. 208 of the Act of 1945 which provides that:-
“(1) Where a mental hospital authority, acting on the advice of the resident medical superintendent of their district mental hospital, are of opinion that a person detained in such hospital or in any other institution maintained by them requires treatment (including surgical treatment) not available save pursuant to this section, the authority may direct and authorise the removal of such person to any hospital or other place where the treatment is obtainable and in which he may be received in pursuance of an arrangement under this section.
(2) Subject to the provisions ofsubsection (1) of this section, a mental hospital authority and the controlling authority of any hospital or other place where treatment is obtainable may make and carry out an arrangement for the purposes of that subsection.
(3) Where the medical attendant of a person detained in a mental institution not maintained by a mental hospital authority is of opinion that such person requires treatment (including surgical treatment) not available save pursuant to this section, he may direct and authorise the removal of such person to any hospital or other place where the treatment is obtainable and in which it has been agreed to receive him.
(5) A person removed under this section to a hospital or other place may be kept there so long as is necessary for the purpose of his treatment and shall then be taken back to the place from which he was removed unless it is certified by a registered medical practitioner that his detention is no longer necessary.”
A patient is removed in accordance with the section only when he or she requires treatment, not available in the institution in which he or she is detained but is available in the institution to which he or she has been removed.
Sub-section (5) provides for the detention of a person in such institution only as long as is necessary for the purpose of treatment.
When the treatment is completed, the patient must be taken back to the place from which he was removed unless it is certified by a registered medical practitioner that his detention is no longer necessary.
The powers conferred on the resident medical superintendent by this section are for the benefit of the patient who requires treatment which is not available in the institution in which he is being detained and do not constitute in any way an attack on his personal rights. On the contrary by making provision for such treatment, when necessary, they amount to a vindication of such right. If the patient recovers as a result of such treatment he must be discharged if a registered medical practitioner certifies that his detention is no longer necessary.
Discharge by proper authority
Section 218 of the Act of 1945, as amended, provides that:-
“(1) Where the person in charge of a district mental hospital or other institution maintained by a mental hospital authority is satisfied that a person detained therein as a chargeable patient has recovered, he shall give notice to that effect to such relative (if aware of any) of the person detained as he thinks proper, and the notice shall contain an intimation that, unless the person detained is removed before a specified date not earlier than seven days after the date on which the notice is given, he will be discharged.
(2) If a person in respect of whom a notice under this section is given is not removed from the institution in which he is detained before the date specified in that behalf in the notice, he shall be discharged.
(3) A notice under this section in re lation to a person detained in a district mental hospital or other institution maintained by a mental hospital authority shall not be given save with the approval of the resident medical superintendent.
(4) Where, consequent upon a notice under thissection, a person detained in a district mental hospital or other institution maintained by a mental hospital authority is removed or discharged, the authority may, if they so think proper, pay to or in respect of him such sum as they consider reasonable towards his travelling expenses on his journey to his home.”
It is clear from the provisions of ss. 208 and 218 of the Act of 1945 that the continued detention of a patient, the subject of a chargeable patient reception order, must be terminated on the recovery of the patient and that he must be discharged on recovery by the resident medical superintendent of the institution in which he is detained.
In addition the resident medical superintendent may on the application of any relative or friend of a chargeable patient willing to take care of him or her discharge the person detained if he thinks fit and provided he is satisfied that the person detained will be properly taken care of.
Section 220 of the Act of 1945, as amended, provides that:-

“(1) Any relative or friend of a person detained as a chargeable patient in a district mental hospital or other institution maintained by a mental hospital authority may apply to the person in charge of the institution to allow him to take care of the person detained and, upon such application, the person in charge of the institution may, if he so thinks fit and provided that he is satisfied that the person detained will be properly taken care of, discharge the person detained.
(2) A person detained in a district mental hospital or other institution maintained by a mental hospital authority shall not be discharged under this section save with the approval of the resident medical superintendent.”
However, s. 221 of the Act provides:-
“(1) Notwithstanding anything contained in this Part of this Act, a person detained in a mental institution shall, save where the Minister directs the discharge of such person under this Act, not be discharged where (in the case of a district mental hospital or other institution maintained by a mental hospital authority) the resident medical superintendent, or (in any other case) his medical attendant, gives a written certificate, containing a statement of the grounds therefor, that he is dangerous or otherwise unfit to be discharged.
(2) Where a certificate is given under this section, the following provisions shall have effect:-
(a) notice in writing of objection to the certificate may be given to the Minister by or on behalf of the person to whom the certificate relates,
(b) on receipt of such notice, the Minister may, by notice in writing given to the person in charge of the relevant mental institution, require such person to give to the Minister a copy of the certificate and such person shall comply with such requisition forthwith,
(c) the Minister, on receipt of such copy of the certificate, may require the Inspector of Mental Hospitals to examine the person to whom the certificate relates,
(d) after consideration of the report of the Inspector of Mental Hospitals on his examination of the person to whom the certificate relates, the Minister, if he so thinks fit and provided that not more than fourteen days have elapsed since he received such copy of the certificate, may by order direct the discharge of the person to whom the certificate relates and, if the Minister so directs, such person shall be discharged accordingly.”
By reason of the provisions of s. 221 of the Act, the power given to the resident medical superintendent to discharge a person is restricted when he or the patient’s medical attendant gives a written certificate containing a statement of the grounds therefor that he is dangerous or otherwise unfit to be discharged.
When such a certificate is issued the provisions of subs. (2) come into operation and the matter becomes subject to review by the Minister.
In addition to the powers given to the Minister under subs. (2) of s. 221 of the Act of 1945, s. 222 of the Act provides that:-
“(1) Any person may apply to the Minister for an order for the examination, at the expense of the applicant, by two registered medical practitioners approved of by the Minister, of a person detained in a mental institution, and the Minister, if he so thinks fit, may make such order.
(2) Where the Minister makes an order under subsection (1) of thissection for the examination by two registered medical practitioners of a person detained in a mental institution, the practitioners shall, on presentation by them at the institution of the order, be admitted and allowed to examine such person on two occasions, at least seven days intervening between the first and second occasion, and if the practitioners certify that such person may be discharged without risk of injury to himself or others, the Minister may, if he so thinks fit, by order direct the discharge of such person and, if the Minister so directs, such person shall be discharged accordingly.”
While there is no definition of “proper authority”contained in the Act, the persons vested by the Act with the power to discharge a person the subject of a chargeable patient reception order are the resident medical superintendent of the institution in which he or she is detained and in the circumstances set forth in ss. 221 and 222 of the Act, the Minister.
It had been decided in In re Philip Clarke [1950] I.R. 235, that the Constitution did not require that there should be a judicial inquiry or determination before a person to whom the Act applied can be placed and detained in a mental hospital.
It must be presumed however that the Oireachtas intended, when giving to the resident medical superintendent the power of detention, and to him and the Minister the power of discharge, that the permitted
discretions and adjudications given to them are to be exercised in accordance with the principles of constitutional justice and that any departure therefrom would be restrained and corrected by the courts.
In the exercise of the powers conferred and the obligations imposed by the Act, the resident medical superintendent and the Minister are obliged to act in accordance with the principles of constitutional justice, are not entitled to act in an unlawful manner, are not entitled to act arbitrarily, capriciously, or unreasonably and must have regard to the personal rights of the patient, including the right to liberty which can be denied only if the patient is a person of unsound mind and in need of care and treatment who has not recovered and must be particularly astute when depriving or continuing to deprive a citizen, suffering from mental disorder of his or her liberty.
It is important that any person exercising any power or discretion under the Act, which touches on the rights of a patient, should be conscious, not only of the wording of the power or discretion which the statute appears to confer upon him or her but also of the constitutional rights of the patient which the statute presumes that he or she will respect when purporting to exercise that power or discretion.
There is a statutory and constitutional obligation on the resident medical superintendent and the Minister to discharge a person detained as a chargeable patient when he is satisfied that such patient has recovered.
In addition, it must be presumed that in the enactment of the Act and in particular s. 172 thereof and the provision therein providing for “discharge by proper authority”, that the Oireachtas was conscious of and had regard to the constitutional obligation on the courts to protect as best they may from unjust attack and in the case of injustice done, to vindicate the life, person, good name and property rights of every citizen, including in particular citizens suffering from mental disorders and to the jurisdiction of the President of the High Court in lunacy matters and that “discharge by proper authority” included a power by the court and the President of the High Court to order the discharge of a patient detained who had recovered or who has been otherwise unlawfully detained and consequently was being detained other than in accordance with the provisions of the Act.
Article 40.4 provides that:-
“1 No citizen shall be deprived of his personal liberty save in accordance with law.
2 Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose custody he is detained an opportunity of justifying the detention, order the release of such person from such detention unless satisfied that he is being detained in accordance with the law.”
In the course of his judgment in In Re The Midland Health Board, [1988] I.L.R.M. 251, Finlay C.J. stated at p. 258:-
“Though on my view of the case it does not arise for decision I feel I should express my view that on my understanding of the provisions of Article 40.4.2 of the Constitution the High Court, on the hearing of an application pursuant to that sub-article must reach a single decision, namely, whether the detention of the person concerned is or is not in accordance with law. If it is, then the application must be refused. If it is not, the person must be discharged from the custody in which he is. Such a procedure does not appear to me to admit of any supervision or monitoring of the interests of the person concerned, even allowing for a condition of mental retardation or other want of capacity.”
By virtue of the provisions of Article 40.4.2 of the Constitution, the complaint may be made to the High Court by or on behalf of a patient detained pursuant to the provisions of the Mental Treatment Act, 1945, as amended, alleging that he is being unlawfully detained and once such a complaint is made, the High Court is obliged to conduct an inquiry into the lawfulness of the applicant’s detention.
The onus is on the person in whose custody the applicant is to justify the detention and the High Court must be satisfied that such detention is in accordance with law before permitting the continued detention of the applicant.
Upon the hearing of the application the High Court must be satisfied that:-
(1) the person detained is a person of unsound mind and in need of care and treatment,
(2) that the procedures outlined in the Act have been complied with,
(3) the person detained has not recovered, and

(4) the person detained is not being unnecessarily deprived of his liberty.
Unless it is satisfied with regard to each of the foregoing, the High Court must order the discharge or release of the person detained.
In addition to the constitutional right of a patient to apply to the High Court pursuant to the provisions of Article 40 of the Constitution, s. 266 of the Act of 1945 provides that a letter addressed to, inter alia, the President of the High Court and the Registrar of Wards of Court shall be forwarded unopened.
This is an acknowledgement by the Oireachtas of the role of the President of the High Court in the exercise of the jurisdiction formerly exercised by the Lord Chancellor in lunacy matters.
This jurisdiction is very wide. In the course of his judgment in In re the Midland Health Board [1988] I.L.R.M. 251, Finlay C. J. at p. 257 quoted with approval the statement made by the Lord Chancellor in the course of his judgment in In Re Godfrey (1892) 29 L.R. IR. 278, where he stated:-
“The power given by the Queen’s sign-manual creates a high and reasonable duty in the Lord Chancellor towards these afflicted persons, calling on him to act on their behalf whenever it may come to his notice that their liberty or happiness require his intervention, and this beneficent jurisdiction is not confined to those so found by process of law, or narrowed to any special class. The power and duty so given and created afford in this case an illustration of the most salutary and protective exercise of the prerogative of the Sovereign.”
In this case, the Lord Chancellor made an order f reeing a person alleged to be of unsound mind from detention in an institution upon finding that she was no longer of unsound mind. The person had not at any time been a ward of court.
The President of the High Court upon receipt of a complaint from a person of unsound mind not only has jurisdiction but a duty to intervene on his or her behalf and cause an inquiry to be made into the lawfulness of such a person’s detention and to direct his or her release if he or she has recovered or is otherwise being unlawfully detained.
Power of detention
Whilst the powers of detention conferred by s. 172 of the Act on the persons named in subs. (2) of that section are extensive, the Court, in considering whether or not the provisions of s. 172 of the Act of 1945 are invalid having regard to the provisions of the Constitution, must have regard to:-
(a) the objectives of the Act and the other provisions thereof;
(b) the safeguards and other protections afforded by the Act; and
(c) the fact that
(i) the powers of detention therein contained relate only to persons in respect of whom a chargeable patient reception order has been made;
(ii) before a chargeable patient reception order can be made in respect of any person, the formalities mandated by ss. 163 and 171 of the Act must be complied with;
(iii) these sub-sections require that before a chargeable patient reception order may be made, an application for such an order must be made in accordance with the provisions of s. 163 of the Act which requires that a registered medical practitioner must examine the patient and certify that he is a person of unsound mind, is a proper person to be taken in charge and detained under care and treatment and an examination of the patient by the resident medical superintendent or other medical officer of the hospital acting on his behalf who before making an order must be satisfied as a result of such examination that the person is of unsound mind and is a proper person to be taken in charge of and detained under care and treatment;
(iv) such person may only be detained while he remains a person of unsound mind and in need of care and treatment;
(v) he or she may be discharged by “proper authority”;
(vi) such proper authority includes the resident medical superintendent of the institution in which the patient is being detained, the Minister for Health, the High Court upon an application in accordance with the provisions of Article 40.4.2 and the President of the High Court in the exercise of his jurisdiction in lunacy matters or by any other judge of the High Court designated by the President thereof to exercise such jurisdiction;
(vii) the resident medical superintendent is obliged by s. 218 of the Act to discharge a patient when he is satisfied that he has recovered and by virtue of the provisions of s. 220 of the Act is entitled to discharge the patient upon the application of any relative or friend of a person detained provided he is satisfied that the person detained will be properly taken care of;
(viii) in accordance with the provisions of s. 222 of the Act the Minister may, if he so thinks fit, by order direct the discharge of a person;
(ix) the powers and discretions given to the resident medical superintendent and the Minister in regard to the discharge of patients must be exercised in accordance with the principles of constitutional justice and are subject to review by the courts in the event of failure to so act.
Inspector of Mental Hospitals
Section 12 of the Act provides for the office of an Inspector of Mental Hospitals (“the inspector”).
The powers and duties of the inspector are set forth in Part XVIII of the Act of 1945.
The inspector is empowered by s. 235 to visit, whenever and so often as he thinks fit at any time during the day or night, any mental institution and may visit and examine any patient therein.
Section 237 of the Act of 1945, as amended by s. 33 of the Act of 1961, provides,inter alia, that:-
“When making a visit and inspection of a mental institution required by this Act, the Inspector of Mental Hospitals shall –
(a) see every patient –
(i) whom he has been requested to examine by the patient himself or by any other person or persons (including, in particular, the person in charge of the institution and in the case of a district mental hospital, the visiting committee), or
(ii) the propriety of whose detention he has reason to doubt,¦
(g) with respect to any patient the propriety of whose detention he doubts, notify the person in charge of the institution that he has doubts as to the propriety of such patient’s detention.”
Section 239 provides that:-
“(1) Where the Inspector of Mental Hospitals becomes of opinion that the propriety of the detention of a patient detained in a district mental hospital or other institution maintained by a mental hospital authority requires further consideration, he shall report the matter to the Minister.
(2) After consideration of a report under subsection (1) of thissection, the Minister may, if he so thinks fit, require the Inspector of Mental Hospitals to visit the patient to whom the report relates and to make a report on his mental condition to the Minister.
(3) After consideration of a report undersubbsection (2) of this section, the Minister may, if he so thinks fit, by order direct the discharge of the patient to whom the report relates and, if the Minister so directs, the patient shall be discharged accordingly.”
In addition, s. 241 provides that:-
“The President of the High Court may by order require and authorise the Inspector of Mental Hospitals to visit and examine any person detained at any place as a person of unsound mind and to report to the President of the High Court on the condition of such person.”
Section 266 of the Act of 1945, as amended by s. 36 of the Act of 1961, provides that:-
“Any letter addressed by a patient in a mental institution to the Minister, the President of the High Court, the Registrar of Wards of Court, a mental hospital authority, a visiting committee of a district mental hospital, or the Inspector of Mental Hospitals shall be forwarded unopened.”
By virtue of this section, a patient in a mental institution may by letter invoke the assistance of the bodies named in the said section, if he or she alleges that he or she is unlawfully detained.
It must be presumed that any complaint made to any of these authorities will be considered and appropriate action taken, if considered necessary.
It is submitted on behalf of the applicant that the safeguards outlined herein are inadequate and do not afford constitutional protection to a person being detained in a mental institution.
It is submitted that the protection afforded by ss. 218 and 220 do not adequately protect the rights of a person detained because the determination of the issue as to whether the patient has recovered rests on the medical superintendent.
It is further submitted that the safeguards contained in ss. 222, 237 and 239 are inadequate because the decisions in regard thereto are made by the Minister.

It was further submitted by the applicant that the right of a patient to send an unopened letter to the persons mentioned in s. 266 is inadequate because it does not help the illiterate, uneducated or inarticulate patient who may not be aware of his rights in this regard.
It was further submitted on behalf of the applicant that the Act of 1945 and in particular s. 172 thereof does not provide any mechanism whereby the legal and medical propriety of a patient’s continued detention or treatment is automatically reviewed by a court or an independent tribunal and that the nature of mental illness itself requires that there be a periodic automatic and independent assessment of the necessity for further detaining or treating a patient and that s. 172 of the Act was unconstitutional because there were no safeguards to protect the applicant against error or abuse in the operation of the section and that in the absence of such automatic review by a court or independent tribunal of decisions made by the resident medical superintendent and/or the Minister, the Oireachtas failed to respect and, as far as practicable, defend and vindicate the personal rights of the patient particularly his right to liberty.
In the exercise of the powers conferred on them by the Act, both the resident medical superintendent in the first instance and the Minister, in the circumstances outlined in the Act, are obliged to inquire into the mental health of the patient and the necessity for his or her detention under care and treatment.
The nature of this inquiry is not “a contest between the parties” and does not involve a dispute or controversy as to the existence of the legal rights or a violation of the law. It is simply an inquiry.
In the course of his judgment in Keady v. Commissioner of An Garda Siochana [1992] 2 I.R. 197, O’Flaherty J. stated at p. 212:-
“The arguments advanced on behalf of the plaintiff had two prongs. In the first place, it was submitted that the inquiry held constituted an administration of justice and this should be reserved solely for the courts; and secondly, it was said that the powers capable of being exercised by the inquiry could not be regarded as ‘limited functions and powers of a judicial nature’ as provided for in Article 37 of the Constitution. The main question that must be confronted, therefore, is: did the operation of the inquiry constitute an administration of justice?
In McDonald v. Bord na gCon (No. 2) [1965] I.R. 217 at p. 231 the learned High Court Judge, Kenny J., in a passage which was accepted by this Court on appeal, identified the following as the characteristic features of the administration of justice, viz.,

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 of 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.
In turn it is possible to isolate two essential ingredients from these characteristics and they are that there has to be a contest between parties together with the infliction of some form of liability or penalty on one of the parties. Here while undoubtedly there was the infliction of a penalty – and a severe one – the other essential ingredient is not present. This was not a contest between parties; it was, as its name says, an inquiry.
I conclude with the learned trial judge, therefore, that the inquiry under the Regulations of 1971 (incidentally no longer extant: see, now: Garda Siochana (Discipline) Regulations, 1989 (S.I. No. 94 of 1989) had to be conducted in a fair and just manner but that it did not involve either any trespass on the judicial domain or the exercise of judicial functions. It is right to emphasise, too, that the correct operation of domestic tribunals and inquiries such as the one here impugned has been delineated in many cases such as McDonald v. Bord na gCon (No. 2) [1965] I.R. 217; East Donegal Co-operative Livestock Mart Ltd. v. The Attorney General [1970] I.R. 317; In re Haughey [1971] I.R. 217; Kiely v. Minister for Social Welfare (No. 2) [1977] I.R. 267 and O’Keeffe v. An Bord Pleanβla [1992] I.L.R.M. 237.
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 the 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.”
The Court is satisfied that, in exercising the powers conferred on them by the Act of 1945, the resident medical superintendent and the Minister are not engaged in the administration of justice and that no judicial intervention is necessary or required unless they or either of them fail to comply with the requirements of fair procedures and constitutional justice or fail to have regard to the constitutional right to liberty of the patient.
While it may be desirable that the necessity for the continued detention of the person, in respect of whom a chargeable patient reception order has been made, be subject to automatic review by an independent review board as provided for in the Mental Treatment Act, 1981, which has not, unfortunately, after fifteen years, been brought into force by the Minister, the failure to provide for such review in the Act has not been shown to render the provisions of the Act of 1945, and in particular s. 172 thereof, constitutionally flawed because of the safeguards contained in the Act, which have been outlined in the course of this judgment. If, however, it were to be shown in some future case, that there had been a systematic failure in the existing safeguards, and that the absence of such a system of automatic review was a factor in such failure, that might cause this Court to hold that a person affected by such failure was being deprived of his constitutional rights.
If they so fail, their decisions are subject to review by the High Court, whether by way of an application for judicial review or by way of a complaint made to the High Court in accordance with the provisions of Article 40.4.2 of the Constitution.
The Court is further satisfied that the detention of a patient does not require automatic review by an independent tribunal because of the obligation placed on a person in charge of a district mental hospital to discharge a patient who has recovered. Inherent in this section is the obligation placed on the resident medical superintendent to regularly and constantly review a patient in order to ensure that he or she has not recovered and is still a person of unsound mind and is a proper person to be detained under care and treatment. If such review is not regularly carried out, in accordance with fair procedures and rendering justice to the patient then the intervention of the court can be sought because of the obligation placed on the resident medical superintendent to exercise the powers conferred on him by the Act in accordance with the principles of constitutional justice. There is no suggestion that such a review is not carried out.
There is no doubt that the provisions of s. 172 of the Act empowers the persons, set forth in sub-s. (2) thereof, to deprive a person, in respect of whom a chargeable patient reception order has been made, of his liberty.
By virtue of the provisions of Article 40 of the Constitution, the State, however, in its enactments is obliged to have due regard to differences of capacity, physical and moral, and of social function.
The Mental Treatment Act, 1945, was, as stated in the preamble thereto, “An Act to provide for the prevention and treatment of mental disorders and the care of persons suffering therefrom . . .”
As stated by the Supreme Court in In re Philip Clarke [1950] I.R. 235, the legislation was “of a paternal character, clearly intended for the care and custody of persons suspected to be suffering from mental infirmity and for the safety and well-being of the public generally”.
The purpose of s. 172 of the Act was to provide for the detention of persons of unsound mind and certified to be proper persons for detention under care and treatment.
The State, including the Oireachtas, is obliged by virtue of the provisions of Article 40.3.1 in its laws to respect, and as far as practicable by its laws to defend and vindicate the personal rights of the citizen but in its laws is entitled to have due regard to differences of capacity and the particular requirements of citizens, particularly those suffering from incapacity including mental disorders.
Do the provisions of s.172 of the Act, having regard to the citizen to whom it is applicable, constitute a failure by the Oireachtas to respect and, as far as practicable, defend and vindicate the personal rights of such citizens?
In view of the requirements set forth in ss. 163 and 171, which do not of themselves constitute an attack upon the personal rights of the citizen affected thereby or a failure to defend and vindicate such rights, the Court is satisfied that it has not been established that the provisions of s. 172 constitutes a failure by the Oireachtas to respect and, as far as practicable, to defend and vindicate the right of such citizens affected thereby.
In being so satisfied, the Court has had regard to the presumption of constitutionality which the Act is entitled to enjoy and in particular the presumption that the Oireachtas intended that the proceedings, procedures, discretions and adjudications by the resident medical superintendent, the Inspector of Mental Hospitals and the Minister permitted by the Act are to be conducted in accordance with the principles of constitutional justice and in particular with regard to the principle thereof that no person should be unnecessarily deprived of his liberty even for a short period.
This requirement places a heavy responsibility on these officers to ensure that no person detained pursuant to the provisions of s. 172 of the Act is detained for any period longer than is absolutely necessary for his proper care and treatment and that the safeguards provided for in the Act be stringently enforced. The necessity for the continued detention of a patient, to whom s. 172 of the Act applies must be regularly reviewed to ensure that he or she is not being unnecessarily detained.
Decisions made in this regard are not decisions made in the administration of justice but the decision makers are obliged to act in accordance with the principles of constitutional justice and to have regard to the constitutional right to liberty.
Consequently, the Court is satisfied that it has not been established that the provisions of s. 172 of the Mental Treatment Act, 1945, are invalid having regard to the provisions of the Constitution and will so answer the question referred to it by the High Court in accordance with the provisions of Article 40.4.3 of Bunreacht na hÉireann .

Buckley and Others (Sinn Fein) v. Attorney General and Another.

[1950] IR 67
Gavan Duffy P.

 

. :
This application, made to the High Court of Justice by junior counsel on behalf of the Attorney General, raises a constitutional issue of transcendent importance, because the applicant challenges directly in this Court the primacy of the law in the legal domain, and the High Court of Justice of Ireland is the bastion of the Constitution of Ireland. The plaintiffs, in an action now awaiting trial in the High Court, are asserting a claim to specific funds, a right of property. The pleadings are closed and the action stands for hearing as soon as a Judge can be found, in the now congested state of our legal business, to set aside the necessary time for the hearing. I am not to-day concerned with the merits of the plaintiffs’ claim, but with their right to have it tried by a Judge of the High Court. That the plaintiffs are citizens of this State is not disputed and, since the defendants have taken no steps to defeat the action under the Rules of Court as an irregular proceeding, I must assume that the action is properly constituted under the Rules, that it is neither frivolous nor vexatious, and that the statement of claim discloses a cause of action.
Accordingly, this application to dismiss the action is made in an action wherein the plaintiffs appear to be exercising in a regular way their constitutional right of seeking from the High Court of Justice a determination according to law of a claim to property. The Constitution, laying down the fundamental rights, recognises the equality of all citizens before the law and declares that the State guarantees in its laws to respect the personal rights of the citizens; I think their right to hold property individually or collectively is one of the first of those rights. Yet I am solemnly asked in this Court, sitting as a Court of Justice, independent in the exercise of its functions, instead of giving a judicial decision in the action, to make a summary order, dismissing the pending action out of Court, without hearing the plaintiffs on the merits of their claim and without even listening to anything that they may have to say against this unprecedented application.
Now, the Constitution, after declaring all powers of government, legislative, executive and judicial, to derive, under God, from the people, makes those powers exercisable only by or on the authority of the organs of State established by the Constitution. Then, after making provisions, of the type normal in a democracy, for the separation of powers, legislative, executive and judicial, the Constitution entrusts to the Courts of Justice, and to no other organ of State, the general power to administer justice and, subject to a right of appeal to the Supreme Court, it proceeds to invest the High Court of Justice with full original jurisdiction and power to determine all matters and questions; that is, of course, in legal proceedings duly brought before the High Court.
Justice involves due process of law, and that law, to recall the monumental declaration of Daniel Webster, is the general law, a law which hears before it condemns, which proceeds upon inquiry and renders judgment only after trial, so that every citizen shall hold his life, liberty, and property and immunities under the protection of the general rules which govern society; arbitrary executions of power under the forms of legislation are thus excluded and no organ of the State can deny to the citizens the equal protection of the law.
I assume the Sinn Fein Funds Act, 1947, under which this application is made, to have been passed by the Legislature for excellent reasons, and, as a matter of course, I give to the Oireachtas all the respect due to the legislative assembly of the nation; but I cannot lose sight of the constitutional separation of powers. This Court cannot, in deference to an Act of the Oireachtas, abdicate its proper jurisdiction to administer justice in a cause whereof it is duly seized. This Court is established to administer justice and therefore it cannot dismiss the pending action without hearing the plaintiffs; it can no more dispose of the action in that arbitrary manner at the instance of the Attorney General than it could give judgment for the plaintiffs without hearing the Attorney General against their claim. Moreover, this action is not stayed unless and until it is stayed by a judicial order of the High Court of Justice; the payment out of the funds in Court requires a judicial order of this Court, and under the Constitution no other organ of State is competent to determine how the High Court of Justice shall dispose of the issues raised by the pleadings in this action.
This application stands refused. It may be renewed hereafter, if the assent of all parties to the action is forthcoming.

MURNAGHAN J. :
31 July

The Judgment of the Court will be delivered by Mr. Justice O’Byrne.

O’BYRNE J. :
In the year, 1924, Mr. Eamonn Duggan and Mrs. Jennie Wyse Power, Honorary Treasurers of the Sinn Fein Organisation, which was established in the year, 1905, and reorganised and re-constituted in the year, 1917, had in their hands, as such Treasurers, the sum of £8,663 12s. 2d., representing the Central Fund of the said Organisation. Controversies having arisen in the said Organisation owing to political differences arising out of the ratification of the Treaty between Great Britain and Ireland, dated the 6th December, 1921, the said trustees were unable to determine who were the persons interested in, or entitled to, the said moneys and, accordingly, they lodged the said sum of £8,663 12s. 2d., less a sum for costs, in Court, under the provisions of the Trustee Act, 1893. The said moneys, with accretions thereto, have since remained and are now in Court to the following credit, viz., “In the Matter of the Trusts of the Funds of the Sinn Fein Organisation, established in the year, 1905, and reconstituted in the year, 1917, And in the Matter of the Trustee Act, 1893.” In the year, 1942, when the statement of claim in these proceedings was delivered, the said moneys were represented by (a)£13,041 1s. 5d., Irish Free State 4% Conversion Loan, 1950-70, (b) £4,927 14s. 8d., Irish Free State Second National Loan, and (c) £616 3s. 9d. cash. I shall hereafter refer to the said fund, together with all accretions thereto, as the trust moneys.
The said Eamonn Duggan and the said Jennie Wyse Power have since died, the said Eamonn Duggan having predeceased the said Jennie Wyse Power. The defendant, Charles Stewart Wyse Power, is the personal representative of Mrs. Jennie Wyse Power.
These proceedings were instituted by originating plenary summons issued on the 19th January, 1942. In the endorsement of claim, the plaintiffs claim to be officers and members of the said Organisation, and as such officers and members they bring the action on behalf of themselves and all other members of the said Organisation. The defendant, the Attorney General, is sued as representing the People of Ireland and the defendant, Charles Stewart Wyse Power, is sued as personal representative of the surviving trustee of the trust moneys. In their statement of claim the plaintiffs seek (a) a declaration that the trust moneys are the property of the said Organisation and (b) an order directing the Accountant of the Courts of Justice to pay and transfer to the plaintiffs, or, alternatively, to the plaintiffs, Padraig Power and Mairéad McElroy, as Honorary Treasurers for and on behalf of the said Organisation, the funds in Court to the credit of the said matter. Defences were filed on behalf of the respective defendants and various other steps, to which it is unneccessary to refer in detail, were taken in the action. The action has not yet been brought to trial.
On the 27th May, 1947, whilst these proceedings were pending, the Sinn Fein Funds Act, 1947, was passed. That Act establishes a board (to be styled and known as Bord Cistí Sinn Fein) to fulfil the functions assigned to it by the Act. The board is a body corporate with perpetual succession and an official seal. It makes provisions for the constitution of the board, the procedure at its meetings and the appointment of officers. Sect. 9 provides that the Board shall keep and maintain a fund and manage it in accordance with the Act (sub-s. 1) and that all moneys received by the Board under the Act shall be paid into such fund (sub-s. 2).
Sect. 10 provides as follows:
“(1) On the passing of this Act, all further proceedings in the pending action shall, by virtue of this section, be stayed.
(2) The High Court shall, if an application in that behalf is made ex parte by or on behalf of the Attorney General, make an order dismissing the pending action without costs.
(3) (a) The Board shall, after the pending action has been dismissed, pay to
(i) Charles Stewart Wyse Power, party thereto, his costs of and incident to the pending action, as between solicitor and client, when taxed and ascertained, and all other costs properly incurred by him as a trustee and incident to the Court funds and the moneys on deposit in the Bank, when taxed and ascertained,
(ii) the said Charles Stewart Wyse Power, as personal representative of the late Jennie Wyse Power, all costs properly incurred by her as a trustee and incident to the Court funds and the moneys on deposit in the Bank, when taxed and ascertained,
(iii) the other parties thereto, their respective costs of and incident to the pending action, as between party and party, when taxed and ascertained.
(b) The costs to be paid in pursuance of paragraph (a)of this sub-section shall not include any costs incurred after the 11th day of March, 1947, other than costs of taxation.
(4) From and after the passing of this Act, no action or other proceedings shall, save as provided by this section or section 11 of this Act, be brought or instituted in respect of the Court funds or the moneys on deposit in the Bank,”
In s. 1 “pending action” is defined, and means the present proceedings.
Sect. 11 provides that (1) the High Court shall on the application of the Board, made ex parte, make an order directing the funds in Court (i.e., the trust moneys) to be paid to the Board, and (2) the Provincial Bank of Ireland shall, on the application in writing of the Board, pay to the Board certain moneys lodged on deposit in that Bank in the joint names of the said Eamonn Duggan and Jennie Wyse Power. This latter provision refers to a sum of £518 15s. 7d. standing on deposit receipt in the said Bank in the names of the said Eamonn Duggan and Jennie Wyse Power, which sum was, admittedly, part of the funds of the said Organisation but was not lodged in Court with the remaining funds.
Sect. 12 provides that when the Court funds and the moneys on deposit in the Bank shall have been paid to the Board “(a) the Court funds and the moneys on deposit in the Bank shall, by virtue of this section, stand discharged from such trusts (if any) as are attached thereto immediately before such payment, and (b) Charles Stewart Wyse Power, the personal representative of the late Jennie Wyse Power, the survivor of the deceased trustees, shall, by virtue of this section, stand released from all actions, proceedings, accounts, claims and demands in respect of the Court funds and the moneys on deposit in the Bank.”
Sect. 14 enables the Board to accept gifts of real or personal property for the purposes of the Act and s. 13 contains provisions for the application by the Board of the Trust Fund.
On the 10th June, 1947, counsel on behalf of the Attorney General applied to the President of the High Court pursuant to s. 10, sub-s. 2, of the Act, for an order dismissing these proceedings, and the learned President refused the application. Counsel for the Attorney General thereupon applied, ex parte, to this Court, by way of appeal from the order of the President, for an order dismissing the proceedings. This Court directed that the hearing of the application should stand adjourned until the 23rd June, 1947, and that, in the meantime, notice of the application should be served on the plaintiffs. Such notice having been duly served, this Court resumed the hearing of the application on the said and subsequent dates and heard counsel on behalf of the Attorney General and the plaintiffs, respectively.
The plaintiffs contend that the said Act contravenes the Constitution in that it is repugnant to the Constitutional declarations and guarantees as to the fundamental rights of citizens of the State. In addition, or alternatively, it is contended that it is a purported exercise by the Legislature of powers which, by the Constitution, are given exclusively to the judiciary.
It has not been, nor could it, in our opinion, be, contended that the statement of claim does not disclose a good cause of action. The evidence in support of the plaintiffs’ claim has not been produced and we are not in a position to form any view, or make any forecast, as to the possible result of the action, if and when brought to trial. It is sufficient to say that the allegations contained in the statement of claim, if established by evidence, would entitle the plaintiffs to succeed. In these circumstances counsel on behalf of the Attorney General conceded in argument that the Court should deal with the application upon the basis that the plaintiffs, in the capacity in which they sue, are the owners of the trust moneys. In the circumstances of this case we do not see how counsel could legitimately have adopted any other course. Dealing with the case on this basis, the effect of the Act is to take away from the plaintiffs the trust moneys and to deprive the plaintiffs of all rights therein. The purposes for which the Fund is to be applied are set out in s. 13. The meritorious nature of these purposes is not a proper subject-matter for our consideration. From the Constitutional point of view, and in the circumstances of this case, we are of opinion that the result is the same as if s. 13 had provided that the moneys should be applied for quite a different and less meritorious purpose, or as if they had been appropriated by the State or transferred to some individual. We have now to consider whether such a law is within the powers conferred by the Constitution on the legislative organ of the State, viz., the Oireachtas.
Where a particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugancy, it has already been laid down in this Court that such repugnancy must be clearly established. Such a principle, in our opinion, springs from, and is necessitated by, that respect which one great organ of the State owes to another.
In the enacting portion of the Constitution, contained in the Preamble, the people of Ireland, seeking, amongst other things, “to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured . . . adopt, enact and give” to themselves the Constitution. These most laudable objects seem to us to inform the various Articles of the Constitution, and we are of opinion that, so far as possible, the Constitution should be so construed as to give to them life and reality.
Article 6 provides that all powers of government, legislative, executive and judicial, derive, under God, from the people, and it further provides that these powers of government are exercisable only by or on the authority of the organs of State established by the Constitution. The manifest object of this Article was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.
Articles 15 to 27, inclusive, deal with the exercise, through the Oireachtas, of the legislative powers of the State; Art. 28 provides for the establishment of a Government to exercise the executive powers of the State, and Arts. 34 to 37, inclusive, provide for the establishment of Courts and the appointment of Judges to exercise the judicial powers of the State. At the commencement of the latter set of Articles it is provided, by Art. 34, that justice shall be administered in Courts established by law by Judges appointed in the manner provided by the Constitution. This seems to us to contemplate and require that justice shall be administered in such manner and not otherwise. Counsel for the Attorney General relied upon the distinction between the latter Article and Art. 64 of the Constitution of Saorstat Eireann; but we are of opinion that when regard is had to Art. 6 there is no substantial distinction.
Article 40 deals with the fundamental right of the citizens of the State. In clause 3, 1, of that Article, the State guarantees in its laws to respect, and, as far as practicable, to defend and vindicate the personal rights of the citizen and, in the next succeeding clause (viz., 3, 2), it is provided that the State shall, in particular, by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. It is clear, from the latter clause, that rights of property are included amongst the personal rights which, by the former clause, the State guarantees to respect, defend and vindicate.
The Article upon which the argument before us principally turned is Art. 43, which deals with private property. The Article provides as follows:
“1. 1 The State acknowledges that man, in virtue of his rational being, has the natural right antecedent to positive law, to the private ownership of external goods.
2 The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property.”2. 1 The State recognises, however, that the exercise of the rights mentioned in the foregoing provisions of this Article ought, in civil society, to be regulated by the principles of social justice.
2 The State, accordingly, may as occasion requires delimit by law the exercise of the said rights with a view to reconciling their exercise with the exigencies of the common good.”
We do not feel called upon to enter upon an inquiry as to the foundation of natural rights or as to their nature and extent. They have been the subject-matter of philosophical discussion for many centuries. It is sufficient for us to say that this State, by its Constitution, acknowledges that the right to private property is such a right and that this right is antecedent to all positive law. This, in our opinion, means that man by virtue, and as an attribute, of his human personality is so entitled to such a right that no positive law is competent to deprive him of it and we are of opinion that the entire Article is informed by, and should be construed in the light of, this fundamental conception. Consistently with, and as an adjunct to, this recognition, the Constitution proclaims (1) that in a civil society, such as ours, the exercise of such rights should be regulated by principles of social justice, and (2) that, for this purpose, the State may pass laws delimiting the exercise of such rights so as to reconcile their exercise with the requirements of the common good.
It was contended by counsel for the Attorney General that the intendment and effect of Art. 43, 1, 2, was merely to prevent the total abolition of private property in the State and that, consistently with that clause, it is quite competent for the Oireachtas to take away the property rights of any individual citizen or citizens. We are unable to accept that proposition. It seems to us that the Article was intended to enshrine and protect the property rights of the individual citizen of the State and that the rights of the individual are thereby protected, subject to the right of the State, as declared in clause 2, to regulate the exercise of such rights in accordance with the principles of social justice and to delimit the exercise of such rights so as to reconcile their exercise with the exigencies of the common good.

Clause 2 of this Article introduces a principle of paramount importance. It recognises in the first instance, that the exercise of the rights of private property ought, in a civil society such as ours, to be regulated by the principles of social justice and, for this purpose, (i.e. to give effect to the principles of social justice) the State may, as occasion requires, delimit by law the exercise of such rights so as to reconcile their exercise with the exigencies of the common good. In particular cases this may give rise to great difficulties. It is claimed that the question of the exigencies of the common good is peculiarly a matter for the Legislature and that the decision of the Legislature on such a question is absolute and not subject to, or capable of, being reviewed by the Courts. We are unable to give our assent to this far-reaching proposition. If it were intended to remove this matter entirely from the cognisance of the Courts, we are of opinion that it would have been done in express terms as it was done in Art. 45 with reference to the directive principles of social policy, which are inserted for the guidance of the Oireachtas, and are expressly removed from the cognisance of the Courts.
Article 15, 4, of the Constitution provides (1) that the Oireachtas shall not enact any law which is in any respect repugnant to the Constitution or to any provision thereof, and (2) that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof, shall, to the extent only of such repugnancy, be invalid. Where it is alleged that a law is repugnant to the Constitution, the jurisdiction and duty to determine such question is expressly conferred on the High Court by Art. 34, 3, 2, with appeal in all such cases to this Court (Art. 34, 4, 4). This is a duty of fundamental importance which must be discharged in every case where such a question arises, however onerous that duty may be.
In the present case there is no suggestion that any conflict had arisen, or was likely to arise, between the exercise by the plaintiffs of their rights of property in the trust moneys and the exigencies of the common good, and, in our opinion, it is only the existence of such a conflict and an attempt by the Legislature to reconcile such conflicting claims that could justify the enactment of the statute under review.
In the opinion of this Court, the Sinn Fein Funds Act, 1947, is repugnant to the solemn declarations as to the rights to private property contained in Art. 43 of the Constitution and, accordingly, we are of opinion that it was not within the power of the Oireachtas to pass such an Act. We are not purporting, in this opinion, to deal with the Act in so far as it is confined to the administration of gifts made to the Board under s. 14. To that extent the Act is quite unobjectionable.
There is another ground on which, in our view, the Act contravenes the Constitution. We have already referred to the distribution of powers effected by Art. 6. The effect of that article and of Arts. 34 to 37, inclusive, is to vest in the Courts the exclusive right to determine justiciable controversies between citizens or between a citizen or citizens, as the case may be, and the State. In bringing these proceedings the plaintiffs were exercising a constitutional right and they were, and are, entitled to have the matter in dispute determined by the judicial organ of the State. The substantial effect of the Act is that the dispute is determined by the Oireachtas and the Court is required and directed by the Oireachtas to dismiss the plaintiffs’ claim without any hearing and without forming any opinion as to the rights of the respective parties to the dispute. In our opinion this is clearly repugnant to the provisions of the Constitution, as being an unwarrantable interference by the Oireachtas with the operations of the Courts in a purely judicial domain.
For these reasons we are of opinion that the decision of the President of the High Court was correct.

 

Maher v. Attorney General

[1973] IR 140
FitzGerald C.J.
16 July

On the 22nd September, 1971, the plaintiff was convicted of an offence under s. 49 of the Road Traffic Act, 1961 (the principal Act) as amended by s. 29 of the Road Traffic Act, 1968. The combined effect of those two sections is to make it an offence to drive a motor vehicle while there is present in the driver’s body “a quantity of alcohol such that, within three hours after so driving or attempting to drive, the concentration of alcohol in his blood will exceed a concentration of 125 milligrammes of alcohol per 100 millilitres of blood.” Section 44 of the Act of 1968 deals with questions of proof in the prosecution of such offences; it provides6 as follows:”
“44.”(1) A certificate expressed to be issued under s. 43 (1) shall, without proof of the signature of the person purporting to sign the certificate or that that person was the proper person so to sign, be sufficient evidence in any legal proceedings of the matters certified in the certificate, until the contrary is shown.
(2) Where a certificate is expressed to have been issued under section 43 (3), the following provisions shall, without proof of the signature of the person purporting to sign the certificate or that that person was the proper person so to sign, apply:
(a) where the certificate states that it has been determined that a specimen of blood contained a specified concentration of alcohol or that a specimen of urine contained a concentration of alcohol equivalent to a specified concentration of alcohol in the blood, the certificate shall, in a prosecution for an offence under section 49 or 50 of the Principal Act, but subject to section 45 (4) of this Act, 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 or by whom the specimen was provided was the specified concentration of alcohol;
(b) where the certificate states other facts obtained from records required to be kept under this Part, it shall be sufficient evidence in any legal proceedings of the correctness of those facts until the contrary is shown.”
Section 43 of the Act of 1968 sets out a procedure which must be followed when a specimen of blood has been obtained from a person and s. 45 of that Act makes provision whereby the person concerned has a right to a further analysis of the blood specimen. Section 46 makes provision for the taking or giving of additional specimens of the blood of the person in question.
In proceedings which the plaintiff issued in the High Court he sought a declaration that the provision in s. 44, sub-s. 2 (a), of the Act of 1968 (that the certificate shall 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, or by whom the specimen was provided, was the specified concentration of alcohol) was repugnant to the Constitution and therefore invalid. The learned President of the High Court, who heard the action, refused the declaration sought and held that the provision in question was not invalid, though with some misgivings. It is against that judgment that this appeal was taken. The plaintiff has relied particularly on Article 34, s. 1, of the Constitution which provides that:” “Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution . . .” He also relied upon the provisions of Article 38, s. 1, of the Constitution which provides that no person shall be tried on any criminal charge save in due course of law, and on Article 37 which prohibits the exercise of limited functions and powers of a judicial nature in criminal matters by any person or body other than a judge or a court appointed or established under the Constitution. He has submitted that the procedure leading to the making of the certificate and the evidential effect of the certificate under the statutory provision in question are an exercise of a power which is by the Constitution reserved to the judges and courts established under the Constitution.
The combined effect7 of s. 49 of the Act of 1961 and s. 29 of the Act of 1968 is that the necessary proofs, for the prosecution to establish the guilt of a person charged with the offence of which the plaintiff was convicted, are as follows:”
(1) that the accused drove or attempted to drive a mechanically-propelled vehicle in a public place;
(2) that he did so while there was present in his body a quantity of alcohol;
(3) that the quantity of alcohol in his body at the time was such that within three hours after so driving, or attempting to drive, the concentration of alcohol in his blood exceeded 125 milligrammes of alcohol per 100 millilitres of blood.
The first ingredient is proved in the ordinary way in which any other activity on the part of an accused person is proved in a criminal case. The second ingredient, namely, the presence of a quantity of alcohol in his body at the time he was driving or attempting to drive, may also be proved in the ordinary way of proof in a criminal case. In respect of each of these ingredients the District Justice must hear whatever admissible and relevant evidence is offered and, if there is a conflict, he must make up his mind on whether or not the matters alleged by the prosecution have been proved beyond reasonable doubt. The third essential proof is to establish that the alcohol which was in the body at the time of driving or attempting to drive was such that within three hours after so driving, or attempting to drive, the concentration in the blood of the person concerned exceeded the level stated in s. 29 of the Act of 1968. Unless the District Justice is satisfied beyond reasonable doubt that this is so, he is bound to acquit the accused. It is the District Justice’s duty, as it is the duty of every court trying a criminal matter, to direct his mind to the evidence and to arrive at a conclusion based on his own judgment of the matters of fact put in evidence.
However, in respect of this third ingredient the statutory provision in s. 44, sub-s. 2 (a), of the Act of 1968 provides in effect (a) that a certificate stating that it has been determined that a specimen of blood contained a specified concentration of alcohol, or that a specimen of urine contained a concentration of alcohol equivalent to a specified concentration in the blood, shall be admissible in evidence and (b) that the certificate shall be conclusive evidence in a prosecution 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 obtained was the specified concentration of alcohol. In the result it precludes the District Justice from forming any other judgment in respect of this vital ingredient of the prosecution’s case: he is bound under the terms of the statutory provision to proceed and act as if this had been his own judgment on the matter. It was clearly intended by the Oireachtas that this should be the effect of the evidence because, when one compares it with the phrase “until the contrary is shown”in the following paragraph and the same phrase in the preceding sub-section, 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 an accused person is not free to contest the determination of the concentration of alcohol set out in the certificate. The best he could hope to do would be to endeavour to show that the procedure prescribed for the making of the analysis had not been followed in accordance with the statute and the regulations made under the statute.
It is true that under s. 45 of the Act of 1968 the accused person has the right to request a further analysis to be made. This is also carried out by the Bureau, which is the body set up for this purpose under s. 37 of that Act. This second analysis is to be made in the presence of the accused or in the presence of a person nominated by him. If it should turn out that the concentration of alcohol is lower than the one first specified, then the lower amount will be deemed to be the correct one. If it should turn out to be higher than the original amount specified, then the lower shall still remain in the certificate. Section 46 of the Act of 1968 provides that the suspect shall be afforded an opportunity to have an additional specimen taken or shall be supplied with portion of a specimen so that, if he wishes, he can have his own analysis carried out; the result of such analysis may give him grounds for asking for the second analysis provided for in 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. It would not, however, enable him to produce his own experts to give their conclusion or determination for the purpose of refuting the determination certified by the Bureau.
So far as this important element of the offence is concerned, the result is that, provided the regulations have been complied with, the evidence furnished by the certificate from the Bureau is incontestable and therefore the District Justice is precluded from exercising his judgment in respect of this matter and the accused is precluded from challenging it.
The administration of justice, which in criminal matters is confined exclusively by the Constitution to the courts and judges set up under the Constitution, necessarily reserves to those courts and judges the determination of all the essential ingredients of any offence charged against an accused person. In so far as the statutory provision in question here purports to remove such determination from the judges or the courts appointed and established under the Constitution, it is an invalid infringement of the judicial power. This principle has already been clearly established by the decisions of this Court and of its predecessor in Buckley and Others (Sinn Féin) v. The Attorney General 8, Deaton v. The Attorney General 9 and The State (C.) v. The Minister for Justice. 10 As far as this case is concerned, the offending element of the provision is the evidential conclusiveness given to the certificate. If the word “conclusive” had not been in the paragraph, it would not be open to the objection which has now been taken. By giving the certificate this evidential quality, the Oireachtas has invalidly impinged upon the exercise of the judicial power and to that extent the statutory provision is invalid having regard to the provisions of the Constitution.
In his statement of claim the plaintiff has sought a declaration that the whole of s. 44, sub-s. 2 (a), of the Act of 1968 is repugnant to the Constitution and therefore invalid. His counsel, in opening this appeal, maintained that stand. Counsel for the Attorney General, having obtained specific instructions on the point, submitted that sub-s. 2 (a) must stand or fall in its entirety and that it was not open to the Court to rule that the paragraph, with the adjective “conclusive” removed, could survive as a constitutionally valid and operable provision. However, when counsel for the plaintiff came to address the Court in reply, he adopted the proposition that the paragraph need not wholly fail. So it is necessary to consider if that proposition is well founded.
The submission means that it is within the jurisdiction of the Court to sever or separate the word “conclusive” so as to give the paragraph, with that word removed, constitutional validity. The application of the doctrine of severability or separability in the judicial review of legislation has the effect that if a particular provision is held to be unconstitutional, and that provision is independent of and severable from the rest, only the offending provision will be declared invalid. The question is one of interpretation of the legislative intent. Article 15, s. 4, sub-s. 2, of the Constitution lays down that every law enacted by the Oireachtas which is in any respect repugnant to the Constitution or to any provision thereof shall, but to the extent only of such repugnancy, be invalid; therefore there is a presumption that a statute or a statutory provision is not intended to be constitutionally operative only as an entirety. This presumption, however, may be rebutted if it can be shown that, after a part has been held unconstitutional, the remainder may be held to stand independently and legally operable as representing the will of the legislature. But if what remains is so inextricably bound up with the part held invalid that the remainder cannot survive independently, or if the remainder would not represent the legislative intent, the remaining part will not be severed and given constitutional validity. It is essentially a matter of interpreting the intention of the legislature in the light of the relevant constitutional provisions, and it must be borne in mind in all cases that Article 15, s. 2, sub-s. 1, of the Constitution provides that”the sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make law.s for the State.”If, therefore, the Court were to sever part of a statutory provision as unconstitutional and seek to give validity to what is left so as to produce an effect at variance with legislative policy, the Court would be invading a domain exclusive to the legislature and thus exceeding the Court’s competency. In other words, it would be seeking to correct one form of unconstitutionality by engaging in another. The usurpation by the judiciary of an exclusively legislative function is no less unconstitutional than the usurpation by the legislature of an exclusively judicial function. The right to choose and formulate legislative policy is vested exclusively by the Constitution in the national parliament.
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 facieevidence 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 proposition that s. 44, sub-s. 2 (a), should be saved by severing from it the word “conclusive” necessarily involves setting aside the legislative decision arrived at after mature consideration that the certificate should prove conclusively that the blood-alcohol level determined in the certificate was that of the person from whom the specimen was taken at the time it was taken. In its place, legislative effect would be given to the certificate as merely “evidence”of that fact ” thus giving legislative force to the rejected recommendation, or something akin to it. Apart from doing violence to the verbal integrity of the provision as enacted by the legislature, a judicial preservation of s. 44, sub-s. 2 (a), with the word “conclusive” omitted, would amount to an impermissible usurpation of the legislative function by setting up as law something that the legislature had deliberately and unambiguously rejected. The unlikelihood that s. 44, sub-s. 2 (a), with the word”conclusive” omitted would represent the will of the legislature is borne out when one considers how it would operate in that form. The certificate of the result of the analysis would then be merely “evidence” that the blood-alcohol level of the person from whom the specimen was got was the specified amount. But what sort of evidence? The immediately preceding and succeeding parts of the same section state meticulously that the certificate in question shall, as to the matters specified, be “sufficient evidence . . . until the contrary is shown.” Would s. 44, sub-s. 2 (a), with the word “conclusive” omitted, have the same probative effect, or more, or less? It is scarcely conceivable that, if the word “conclusive” were to be dropped, the legislature would have been content to use the word “evidence” without the precision of qualifying words which is to be found elsewhere in the same section.
All the indications lead to the conclusion that the legislature, in opting to make the certificate conclusive evidence of the analysis, had not directed its attention to what would happen if the certificate were not conclusive and that, if it had, it would not have allowed s. 44, sub-s. 2 (a), to go forth merely with the word “conclusive”omitted.
The decision of the Court is that s. 44, sub-s. 2 (a), of the Act of 1968 in its entirety must be declared invalid as being repugnant to the Constitution. Because of the crucial part played by the paragraph in the scheme of this important legislation, the Court reaches this conclusion reluctantly and with regret; but to hold that the paragraph could survive with the word “conclusive” omitted would amount to an amendment rather than an interpretation, thus requiring the Court to act in a legislative rather than a judicial role. The Court accepts as correct the argument on behalf of the Attorney General that if the paragraph is invalid it is totally invalid. The plaintiff’s appeal will be allowed and his conviction will be declared invalid.

 

Deaton v. The Attorney General and the Revenue Commissioners.

[1963] IR 170

18. Dec.

This is an appeal by the plaintiff against an order of Mr. Justice Kenny, dismissing the plaintiff’s action.
The action was for a declaration that such of the provisions of the Customs Acts and, in particular, of s. 186 of the Customs Consolidation Act, 1876, as purport to confer on the Revenue Commissioners the right to elect on the hearing of a criminal charge the punishment by way of penalty or otherwise to be imposed by the Court are inconsistent with the provisions of the Constitution of Saorstat Eireann and are inconsistent with the provisions of the Constitution of Ireland and are invalid, having regard to the provisions of the said Constitution of Saorstat Eireann and the said Constitution of Ireland and were, and are, of no force and effect. The plaintiff claimed, further, as consequential relief, an injunction to restrain the defendant, the Attorney General, from proceeding, or attempting to proceed, with two summonses, dated the 6th March, 1959, in which the Attorney General as complainant has purported to charge the plaintiff respectively with (a) knowingly keeping certain goods on the 27th day of June, 1958, at 136 Emmet Road, Inchicore, Dublin, to wit, 541 pounds of butter, the importation of which at that time was prohibited by s. 24 of the Dairy Produce (Price Stabilisation) Act, 1935, as amended by s. 8 of the Dairy Produce (Price Stabilisation) (Amendment) Act, 1938, contrary to s. 186 of the Customs Consolidation Act, 1876; and
(b) being knowingly concerned in dealing with certain goods on the same date and at the same place, to wit, 541 lb. of butter the importation of which at that time was prohibited by s. 24 of the Dairy Produce (Price Stabilisation) Act, 1935, as amended by s. 8 of the Dairy Produce (Price Stabilisation) (Amendment) Act, 1938, contrary to s. 186 of the Customs Consolidation Act, 1876.
In respect of each charge the Revenue Commissioners have purported to elect for a penalty of £327 17s. 3d.
The penalty provision of s. 186 of the Act of 1876, is that every person who is guilty of an offence under the section”shall for each such offence forfeit either treble the value of the goods, including the duty payable thereon, or one hundred pounds, at the election of the Commissioners of Customs” (now the Revenue Commissioners); “and the offender may either be detained or proceeded against by summons.” It is this power of the Revenue Commissioners to elect the penalty that shall be imposed by the Court which the plaintiff says is unconstitutional, either as amounting to the administration of justice by persons not being a Court established under the Constitution, or as being an interference with the Courts in a purely judicial domain.
The summonses against the plaintiff have been adjourned from time to time. On the 8th February, 1961, in the judgment of this court in Melling v. O Mathghamhna and the Attorney General (1) it was, inter alia, laid down that proceedings under s. 186 of the Act of 1876 were criminal in character. The plenary summons in this action was issued on the 30th May, 1961. The arguments submitted to this Court have revolved in a narrow field.
It is common ground that it is for the Legislature, when it it creates an offence, to prescribe what punishment shall attach to the commission of such offence. It is also common ground that the Legislature may for a particular offence prescribe a single or fixed penalty, or a maximum penalty, or a minimum penalty, or alternative penalties, or a range of penalties. Where a choice of penalty is prescribed by the Legislature, either by reference to alternatives or a range of penalties, the choice of the penalty to be imposed in a particular case cannot, the appellant says, be committed to any person or body not being a judge or Court. The selection of penalty, where the Legislature affords a choice, is, he submits, part of the administration of justice. The respondent’s contention, on the contrary, is that the selection of penalty is not a judicial function or part of the administration of justice, but that it falls into the domain of administrative or executive action and, accordingly, in the present case, that the power of the Revenue Commissioners to elect for a higher penalty is constitutional. It was submitted that when the Legislature prescribes a fixed penalty it selects the penalty for a particular case, and that this demonstrates that the selection of a penalty is not a judicial function, or part of the administration of justice, or otherwise in the judicial domain.
For the purpose of examining the opposing contentions which are put forward in this case it will be convenient to divide the functions which a judge discharges in a criminal case under the following three heads:(i) (a) sitting with a jury, he presides over the trial and directs the jury on matters of law; (b) sitting in a Court of summary jurisdiction, he determines whether accused is guilty or not guilty; (ii) he selects the sentence to be imposed; and (iii) he imposes the sentence so selected. Traditionally these three functions have been the functions of judges or Courts. Apart from the case now under consideration we have not had our attention called to any instance of the second of these functions having been vested in any other person or body than a judge or Court. That functions (i) and (iii) are part of the administration of justice has not been questioned. But the second function, it is argued, is not exclusively a judicial function because it is competent for the Legislature to prescribe a fixed penalty for an offence and, thereby, as it is said, to select the punishment to be imposed in a particular case. While the selection of a punishment by the Legislature is a legislative act, and a judicial act when performed by a judge, it is also, it is said, an administrative or executive act when, as here, the selection of the punishment is committed to a branch of a State department.
In my opinion this argument is unsound. There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular case. The prescription of a fixed penalty is the statement of a general rule, which is one of the characteristics of legislation; this is wholly different from the selection of a penalty to be imposed in a particular case. It is here that the logic of the respondents’ argument breaks down. The Legislature does not prescribe the penalty to be imposed in an individual citizen’s case; it states the general rule, and the application of that rule is for the Courts. If the general rule is enunciated in the form of a fixed penalty then all citizens convicted of the offence must bear the same punishment. But if the rule is stated by reference to a range of penalties to be chosen from according to the circumstances of the particular ease, then a choice or selection of penalty falls to be made. At that point the matter has passed from the legislative domain. Traditionally, as I have said, this choice has lain with the Courts. Where the Legislature has prescribed a range of penalties the individual citizen who has committed an offence is safeguarded from the Executive’s displeasure by the choice of penalty being in the determination of an independent judge. The individual citizen needs the safeguard of the Courts in the assessment of punishment as much as on his trial for the offence. The degree of punishment which a particular citizen is to undergo for an offence is a matter vitally affecting his liberty; and it is inconceivable to my mind that a Constitution which is broadly based on the doctrine of the separation of powersand in this the Constitution of Saorstat Eireann and the Constitution of Ireland are at onecould have intended to place in the hands of the Executive the power to select the punishment to be undergone by citizens. It would not be too strong to characterise such a system of government as one of arbitrary power. It is, however, right to add that in this case we are concerned with a statute which was enacted in 1876, the machinery of which was adopted for the Dairy Produce (Price Stabilisation) Acts, 1935 and 1938, and that we are dealing with a subject-matter which until very recent times was thought to lie in the field of civil, and not of criminal, jurisdiction. It therefore need hardly be said that there is no question of an attempt by the Oireachtas to place the choice of punishment which a citizen is to undergo in the hands of the Executive. But perhaps it should be said that if the principle contended for by the respondents were valid, then, within the limits stated by the Oireachtas, the selection of the punishment to be imposed on a citizen who broke the law could lawfully be committed, wholly and exclusively, into the hands of the Executive.
In my opinion the selection of punishment is an integral part of the administration of justice and, as such, cannot be committed to the hands of the Executive as Parliament purported to do in s. 186 of the Customs Consolidation Act, 1876.
I am strengthened in the conclusion I have arrived at by the words of Chief Justice Kennedy in Lynham v. Butler (No. 2) (1). There, at p. 99, the Chief Justice says:”. . . the Judicial Power of the State is, like the Legislative Power and the Executive Power, one of the attributes of sovereignty, and a function of government. (See Article 2 of the Constitution.) It is one of the activities of the government of a civilised state by which it fulfils its purpose of social order and peace by determining in accordance with the laws of the State all controversies of a justiciable nature arising within the territory of the State, and for that purpose exercising the authority of the State over person and property. The controversies which fall to it for determination may be divided into two classes, criminal and civil. In relation to the former class of controversy, the Judicial Power is exercised in determining the guilt or innocence of persons charged with offences against the State itself and in determining the punishments to be inflicted upon persons found guilty of offences charged against them, which punishments it then becomes the obligation of the Executive Department of Government to carry into effect.”
The Constitution invalidates the section only to such extent as it is inconsistent with, or repugnant to, the Constitution, i.e., to the extent that the selection of the penalty is committed to the Commissioners of Customs (now, the Revenue Commissioners). The section therefore remains intact but with the words, “at the election of the Commissioners of Customs” (now, Revenue Commissioners), deleted therefrom.
Which of the alternative penalties prescribed by the section is proper to be imposed is, together with the issue of the guilt of the accused, a matter to be determined by the Court that tries him.

DPP v Finn

[2000] IESC 75

Court: Supreme Court (Ireland)
Keane C.J.The factual background
This is an appeal brought by the defendant pursuant to s. 3 of the Criminal Justice Act, 1993from the determination by the Court of Criminal Appeal of an application under s. 2 of that Act, the court having certified that its determination involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to this court.

The applicant was convicted by the Central Criminal Court (Lavan J.) on a plea of guilty in respect of charges of

(a) rape contrary to s. 48 of Offences Against the Person Act, 1861 as amended by s. 2 of the Criminal Law (Rape) Act, 1991 and

(b) assault occasioning actual bodily harm contrary to s. 47 of Offences Against the Person Act, 1861.

The details of the rape and the assault were as follows. The applicant and the injured party, M. were on the beach at Rosses Point, Co. Sligo in the early hours of the 18th January 1996. M. made what is accepted to have been an innocent remark as to the applicant not being the father of his girl friend’s child. He thereupon subjected her immediately to a physical assault of such ferocity that she suffered relatively serious injuries and was rendered unconscious. While she was lying unconscious on the beach, he then raped her. When she recovered consciousness, he brought her to a nearby house under the pretence that she had been assaulted by someone else and that he (the applicant) was, as it were, coming to her rescue. M. was not aware that she had been raped and did not become so aware until a subsequent medical examination showed evidence of semen in her vagina.

The applicant, when first questioned by the gardai, admitted to having assaulted M. when she made the comment about his girlfriend. In his second statement, he admitted to the rape. It is clear from the Victim Impact Report furnished to the Central Criminal Court that, in addition to the physical injuries she sustained, her ordeal had significant psychological consequences for M. She was particularly concerned that the applicant should be imprisoned for what he had done, not simply because she thought he should be punished, but because she was afraid of what might happen to her if he were at liberty.

At the stage when sentence was imposed by the Central Criminal Court, the court had before it reports from a probation and welfare officer and a psychiatrist. From them it appeared that the applicant, who was then aged 21, came from a significantly disturbed family background, although he had done well at school. His problems derived from the fact that his father died when he was only 10 months old and that his mother’s second husband was abusive and violent on a regular basis, both towards her and her children, including the applicant. He appeared to have a good relationship with his girlfriend, with whom he lived in a flat and with whom he had a child who was three weeks old at the date of the offences to which he was now pleading guilty.

The learned High Court judge approached the imposition of the sentence with considerable care. Having been addressed in detail by counsel for the prosecutor as to the circumstances of the offences, he heard the evidence of the investigating Garda sergeant, of the applicant’s mother and girlfriend and of the applicant himself and then heard submissions from counsel for the applicant and counsel for the prosecutor.

Before imposing sentence, the trial judge referred to the principles by which he considered himself bound, as laid down by this court and the Court of Criminal Appeal. He said that, as to the facts of the present case, he was satisfied that the injured party, as he put it, had been beaten “to within an inch of her life”. He also accepted entirely the conclusions in the Victim Impact Report as to the long term effects which this had had on M. He said that he was bearing in mind fully the mitigating factors in the case, i.e. that the applicant, having subjected the girl to this appalling ordeal, was sufficiently conscious of what he had done to seek assistance for her, that he made a full confession and had pleaded guilty, that he had no previous convictions and had to be regarded as being of blameless character until the night of the assault and that he had also entered the witness box and given sworn evidence as to his remorse for what he had done. The trial judge also accepted that the applicant’s family would have been prepared to pay compensation, so far as their means allowed, to M. but that M. and her family were not prepared to accept such compensation, a decision which the trial judge said that he understood and respected.

The trial judge concluded that the appropriate sentence in this case was one of seven year” imprisonment in respect of the first count and three years” imprisonment in respect of the second count. He also said, however, that, having regard to the factors to which he had referred, he would order the case to be re-listed before him, at which stage he would consider “reviewing how I will deal with the remainder of the sentence”. He made it clear to counsel that, since he was aware of the limited resources available in the form of a sex offenders programme in the prison system, he would strongly recommend that, if that programme were not available to the applicant, his family should make arrangements that other professional care would be available to him. He said that he would, accordingly, hear evidence at the review date as to the conduct of the applicant in prison and the counselling which he had. undergone and he would also require a report at that stage on the injured party.

When the matter came before the court again on October 22nd, 1998, a further Victim Impact Report was produced. M. had seen a psychologist for the first 12 months of the period, but not during the past 12 months because she did not want to take time off work. She said that, while she was getting on with her life, she was in constant fear of a similar event happening to her and was scared because of the possibility of the applicant being released from prison. She had a particular fear that he might come back to Sligo and endeavour to make contact with her, in which case she would have to leave the town, which she did not wish to do.

There was also a report before the trial judge of Mr. Paul Murphy, a clinical psychologist concerned in the Sex Offenders” Programme in Arbour Hill prison. While that report concluded that the applicant had co-operated consistently in the programme and had good support available to him from an uncle and from his girlfriend, it also said that it was important that there should be ongoing therapeutic work with him and his girlfriend in order to address significant therapeutic issues that became apparent during the programme. The report also concluded that the applicant needed to have “ongoing supervision in the community and access to appropriate professional support”.

During the course of this hearing, the trial judge indicated to counsel for the applicant his concern that, if the applicant were released, he should under no circumstances return to Sligo, having regard to the security implications for the injured party and the anxieties that she had expressed. The applicant gave evidence that he was prepared to reside with his uncle in Longford, to give an undertaking that he would not cross the Shannon or go anywhere near Sligo and that he would avail of ongoing therapy. He then gave a voluntary undertaking not to visit the county of Sligo until the 10th December 2003, to reside with his uncle and to arrange for ongoing supervision in the form of therapy. The trial judge then went on:

“On the basis of the undertakings that the accused has sworn on evidence given before me, I am prepared to release him. The court has to balance the possibility of his being regenerated into the future. He is a young man. It has to afford him hope that he can address his future from here on in”.

The trial judge accordingly released the applicant but directed that the case should be listed again in three months time so that the judge could be told of the position as to supervision. There was in fact a further hearing on April 14th at which the trial judge heard evidence from the applicant that he was living in Longford with his girlfriend, that he was doing a two-year computer course in that town, that he had had no contact with the injured party and that he was under the care of Mr. Ryan O’Neill, a psychologist with the Midland Health Board. He said that Mr. O’Neill had been informed of the circumstances of his case by Mr. Paul Murphy who had attended their first meeting. The trial judge, having heard this evidence, suspended the balance of the two sentences, subject to the conditions imposed by him at the earlier hearing.

The application to the Court of Criminal Appeal
On the 18th November 1998 the prosecutor gave notice of an application to the Court of Criminal Appeal pursuant to s. 2 of the 1993 Act

“to review the sentence passed upon the accused herein on the 22nd day of October 1998 by the Central Criminal Court, the Honourable Justice Lavin (sic)”.

The notice of application said that:-

“It is submitted that the sentence imposed on the 22nd of October 1998 is unduly lenient having regard to all the circumstances of the case, including: the gravity of the offence, the unprovoked nature of the assault, the severity of the violence inflicted on the injured party, the Victim Impact Report submitted to the court, the oral evidence submitted to the court by a member of An Garda Síochána in 1996 and 1998, and in particular the contents of the report prepared by Paul Murphy, clinical psychologist at the Department of Justice dated the 15th of October 1998, together with a transcript of the evidence tendered before the Central Criminal Court and the judgment of the Central Criminal Court.”

When this application came before the Court of Criminal Appeal, counsel for the applicant objected that it was out of time, not having been made within 28 days from the day on which the sentence was imposed as required by s. 2 of the 1993 Act. In a short ex-tempore judgment delivered on the 14th June 1999, the court rejected that objection. It then proceeded to deal with the application itself and, again in a brief ex-tempore judgment, the court acceded to the prosecutor’s application and substituted for the sentence imposed in respect of the charge of rape a sentence of six years” imprisonment, with no suspension in respect of either of the sentences.

On the application of counsel for the applicant, the court then certified that it was in the public interest that an appeal should be taken to this court on the point set out in a certificate, i.e.

“was it permissible for the DPP to appeal against the undue leniency of the said sentences pursuant to s. 2 of the Criminal Justice Act, 1993when no application was made until almost two years after the original sentence was imposed?”

Submissions on behalf of the applicant
Mr. Blaise O’Carroll, S.C., on behalf of the applicant, submitted that the words of the statute in this case should be literally construed and given their ordinary and natural meaning. So construed, the time limit for the purpose of an appeal was “28 days from the date on which the sentence was imposed”. He submitted that that could only refer to the 10th December 1996 when the sentence was imposed by the Central Criminal Court.

Mr. O’Carroll submitted that the definition of “sentence” in s. 1 of the 1993 Act did not include a review of the sentence, which was a process occurring after sentence aimed primarily at the rehabilitation of the offender. He further submitted that, since the review of sentences was a feature of the criminal justice system which had been in existence for a number of years prior to the coming into force of the 1993 Act, the legislature, if it intended to include such reviews within the scope of the expression “sentence imposed by a court” in s. 2 would have done so in clear and unambiguous language.

Mr. O’Carroll further submitted that the prosecutor was not precluded from appealing a decision of a court to impose a sentence subject to its being reviewed within a specified time, on the ground that it appears to him that such a sentence is “unduly lenient” The Director of Public Prosecutions is represented in court when the sentence is imposed and will be aware that, when a sentence provides for a review within a specified period, the probability is that, if the offender complies with any conditions laid down by the trial judge, he or she will be released on the review date with the balance of the sentence being suspended. He said that the Director of Public Prosecutions had impliedly accepted that the appropriate course for him to take where it appeared to him that the provision for a review date in the sentence was unduly lenient was to apply to the court under s. 2 of the 1993 Act for a finding to that effect within the 28 days provided for in the Act, as he had done in the case of The State at the prosecution of the Director of Public Prosecutions .v. James Kelly(unreported: judgment delivered 3rd July 2000).

On behalf of the prosecutor, Mr. Peter Charleton, S.C. said that the appeal on the point of law as certified by the Court of Criminal Appeal raised issues of fundamental importance as to the entire review procedure on which the Director was anxious to obtain guidance from this court.

Mr. Charleton submitted that the date “on which the sentence was imposed” within the meaning of s. 2(1) of the 1993 Act was the 22nd October 1998, since it was only at that stage that the order of the Central Criminal Court disposing of the case was finalised. An application by the prosecutor within the period of 28 days from the 10th December 1996 would have been premature, since at that stage the Central Criminal Court had not given any indication as to what course of action it proposed to take on the review date. In circumstances where a trial judge effectively adjourns a case pending a review of a sentence – as happened here – he necessarily continued to exercise a jurisdiction affecting the operation of the sentence. In those circumstances, the sentence could not be said to have been “imposed”within the meaning of the legislation until the review date.

A term of imprisonment was the period fixed by the judgment as the punishment for the offence and, accordingly, a sentence was not “imposed” until such time as the term of imprisonment was actually fixed. He cited in this connection observations of Dixon C.J. in the High Court of Australia in Windsor .v. Boaden (1953) 90 CLR 345 at 347. As to the meaning of the word “imposed”, it was submitted that this connoted an action taken unilaterally by the court rather than an action voluntarily undertaken by the accused in a case and, accordingly was an appropriate use of language to describe what happened at the review stage.

Mr. Charleton further submitted that it was clear from the decision of this court in O’Brien .v. The Governor of Limerick Prison (1997) 1 ILRM 349 that where a judge provides for a review of a sentence imposed by him at some future date he or she retains seisin of the case. He said that it was a logical consequence of that finding that such a case could not be regarded as finally disposed of until such time as the review procedure was completed by the court of trial.

The applicable law
Section 2 of the 1993 Act provides that:

2 “(1) If it appears to the Director of Public Prosecutions that a sentence imposed by a court (in this Act referred to as the “sentencing court”) on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence.

(2) An application under this section shall be made, on notice given to the convicted person, within 28 days from the date on which the sentence was imposed”.

Section 1(1) of the Act provides that:

“In this Act, unless the context otherwise requires -”

“sentence” includes a sentence of imprisonment and any other order made by a court in dealing with a convicted person other than

(a) an order under s. 17 of the Lunacy (Ireland) Act, 1821 or s. 2(2) of the Trial of Lunatics Act, 1883, or

(b) an order postponing sentence for the purpose of obtaining a medical or psychiatric report or a report by a probation officer…”

Article 13.6 of the Constitution provides that

“The right of pardon and the power to commute or remit punishment imposed by any court exercising criminal jurisdiction are hereby vested in the President, but such power of commutation or remission may, except in capital cases, also be conferred by law on other authorities”.

Section 23 of the Criminal Justice Act, 1951provides that

2 “(1) except in capital cases, the government may commute or remit, in whole or in part, any punishment imposed by a court exercising criminal jurisdiction, subject to such conditions as they may think proper;

(2) The government may remit, in whole or in part, any forfeiture or disqualification imposed by a court exercising criminal jurisdiction and restore or revive, in whole or in part, the subject of the forfeiture;

(3) The government may delegate to the Minister for Justice any power conferred by this section and may revoke any such delegation;

(4) This section shall not affect any power conferred by law on other authorities”.

For a period of over 20 years, a practice has developed in the Central Criminal Court and the Circuit Court of including in a custodial sentence imposed by the court a provision for a review of the sentence at the expiration of a specified period. The normal practice has been for the trial judge, when the matter comes before him or her by way of review, to receive and consider reports from the prison service as to the behaviour of the convicted person. In cases where the person has been convicted of a sexual offence, reports will normally be forthcoming as to whether a place was available in a sex offenders programme and, if so, whether it was availed of by the convicted person. Similarly, where the convicted person is addicted to drugs or alcohol or both, reports would normally be available to the court indicating whether he has received appropriate forms of counselling or therapy and, if so, the degree to which he has benefited from them.

The Court of Criminal Appeal expressed its disapproval of sentences of this nature at an early stage in The People (DPP) .v. Fagan(unreported: judgment delivered 7th November 1977) and The People (DPP) .v. O’Toole (unreported: judgment delivered 26th May 1978). There was no written judgment in either of those cases, but in The People (DPP) .v. Cahill (1980) IR 8, the desirability of such sentences was considered at length by Henchy J. delivering the judgment of the court.

In that case, the applicant was sentenced to seven years” imprisonment by the Central Criminal Court, having been convicted of burglary. The trial judge, however, directed that the court would “consider suspending the then balance of the sentence” if the applicant were to be brought before the court after the expiration of 36 months and if he then showed that in the meantime that he had obeyed normal prison discipline and had shown a willingness to co-operate in preparing himself for integration into normal society.

In his judgment, Henchy J. having referred to the two earlier decisions, went on –

“Because the opinion of this Court (that a sentence in this form should not be imposed) has not been expressed in a written judgment and may, therefore, have escaped notice, the Court takes this opportunity of re-stating that opinion and giving reasons for it. There are a number of grounds on which this form of reviewable sentence could be said to be undesirable”.

The first of these grounds was that, in making such an order, a High Court judge sitting in the Central Criminal Court, would effectively be pre-empting the functions of the President of the High Court since s. 11 of the Courts (Supplemental Provisions) Act, 1961stipulates that the jurisdiction exercisable by the Central Criminal Court shall be exercised by a judge nominated from time to time by the President 0of the High Court. Henchy J. pointed out that the projection by a trial judge of a sentencing jurisdiction into the distant future ignores the fact that, for a variety of reasons (including the statutory provisions therein referred to), he may not be available to exercise the purported jurisdiction on that date in the future. While that case was concerned only with the practice in the Central Criminal Court, the observations of Henchy J. would appear to apply mutatis mutandis to the position in the Circuit Court.

The second ground was that a sentence in this form did not seem compatible with the right of appeal against sentence given to a person convicted on indictment. Having regard to the time constraints applicable to the appeal procedure, a convicted person would be in difficulties in exercising his right of appeal on the ground of severity, since he would not know at that stage the length of the sentence which he would in fact be required to serve. If, however, the expression “the close of the trial” in the relevant rule of court, which was the time from which the appeal period ran, were to be the date when the sentence was being reviewed, the sentenced person’s right to seek to appeal would be postponed until then which would be “palpably unfair and unjust”.

Henchy J. observed:

“The inevitable conclusion seems to be that the appellate system postulates a trial that comes to a close with a final order which identifies once and for all the particular conviction and the particular sentence. From then on (save where it is specifically provided otherwise, by statute or under the rules) the trial judge is functus officio as far as the trial is concerned”.

The third ground was that such a sentence gave the appearance of trenching on a function of the Executive. Henchy J. commented that

“It is part of the judicial function to determine the nature and extent of the sentence, whenever the general rule laid down by statute or common law gives a range of choice. Thereafter, it is with the power of the Government, or the Minister for Justice as its delegate, to commute or remit, in whole or in part, “any punishment imposed by a Court exercising criminal jurisdiction” – see the provisions of s. 23 of the Criminal Justice Act, 1951. A direction that a prisoner is to be brought back to the court of trial for a review of his sentence after three years impliedly seeks to freeze the Executive discretion as to remission during that period, and then to vest in the court a power of review which is not readily compatible with the powers withheld from the Courts and vested in the Executive by s. 23 of the Act of 1951”.

Finally, it was said that such a sentence was not in accord with correct principles of penology, since it was desirable that both the prison authorities and the prisoner should be in a position to plan for the date of release and that the appropriate rehabilitative procedures should be in place leading up to the date of release.

The judgment concluded as follows:-

“For the foregoing reasons amongst others, the Court is of opinion that a sentence of a term of penal servitude or imprisonment which is coupled with the reservation to the court, or to the particular judge, of a power to review the sentence at a future date should not be imposed.”

“In this case the Court will quash the sentence imposed and, in lieu thereof, will impose a sentence of four years imprisonment from the date of the imposition of the sentence hereby quashed”.

Despite this disapproval by the Court of Criminal Appeal of sentences of this nature, they have been imposed in many cases since then by judges sitting in the Central Criminal Court and the Circuit Court. They were also considered in a more recent decision of the Court of Criminal Appeal, The People at the suit of the Director of Public Prosecutions .v. Philip Sheedy (unreported: judgment delivered 15th October 1999). In that case, the applicant had pleaded guilty to counts of dangerous driving causing death and of driving a motorcar while above the alcohol limit. The trial judge imposed a sentence of four years to be reviewed in two years time. Delivering the judgment of the court, Denham J. said

“The issue of the review date formula of sentencing was not fully argued. The review structure is a process by which a judge is able to individualise a sentence for the particular convicted sentence. It is a tool by which the judge may include in a sentence the appropriate element of punishment (retribution and deterrence) and yet also include an element of rehabilitation. For example, it may be relevant to a young person or a person who has an addiction or behavioural problem and at least some motivation to overcome that problem, it may well be appropriate as part of a rehabilitation aspect of the sentence to provide for a programme or treatment within the sentence as a whole and then to provide for a review of the process at a determinate time. However, this was not such a case. There was no evidence of, for example, addiction. There were no factors such as would render it appropriate to invoke a structure of treatment and then to review the sentence. This is not an appropriate case to sentence on the review date formula of sentencing. Thus, the trial judge erred in principle in this aspect of the sentence”.

From the summary of counsel’s arguments at an earlier part of the judgment it would appear that the court was referred to Cahill,but it is not otherwise referred to in the judgment.

A sentence containing such a review provision was considered by this court in The People .v. Aylmer (decided in 1986 but not reported until (1995) 2 ILRM 624). A sentence providing for a review had been imposed in 1979 and the balance of the sentence was suspended in 1982 on condition that the applicant would remain of good behaviour. However, following a further separate conviction in 1984, the DPP applied to have the suspension of the balance of the 1979 sentence revoked and the Central Criminal Court duly ordered the applicant to serve the remaining balance of the sentence. The Supreme Court dismissed an appeal against the sentence, but the reasons given in the five judgments delivered are not the same.

Walsh J. said that the sentence originally imposed by the Central Criminal Court was valid. He rejected a submission that it in some way trenched on the powers vested in the Executive by s. 3 of the Criminal Justice Act, 1951, pointing out that the Executive were not precluded from commuting the sentence in its entirety and that, if they had chosen so to do, the review provision in the sentence would simply have been inoperable. He also rejected the suggestion that the trial judge had in some way been usurping the functions of the President of the High Court, since the sentence simply envisaged that the order on the review procedure would be made by a judge of the Central Criminal Court, not necessarily himself. He declined to deal with the other grounds of appeal raised, on the ground that they raised questions as to whether the sentence imposed was in accordance with principles of good penology, which, he said, could only have been raised if an appeal had been taken against the sentence.

As to the decision in Cahill, Walsh J. commented that

“It should be pointed out that that in that case the court was dealing with a sentence of penal servitude and not one of imprisonment. When the question of whether any particular sentence is in an undesirable form or not falls to be considered by the appropriate appellate court it is one which must be determined by the circumstances of the case”.

It should be noted that Walsh J. accordingly, does not deal with two of the grounds mentioned by Henchy J. in Cahill, i.e. whether a sentence containing a review procedure is incompatible with the right of appeal of a convicted person against sentence and whether it is in accordance with correct principles of penology. The reasons he declined to deal with the latter ground have already been mentioned and it may be that the first ground was not relied on in Aylmer.

Henchy J. said that the appeal should be dismissed because the applicant was estopped from claiming that the original sentence was invalid, since he had sought to take advantage of it by getting the balance of his sentence suspended. As to Cahill, he contented himself with saying that

“It is true that the Court of Criminal Appeal on 26th July 1979 in People (DPP) .v. Cahill held that an order of the kind made by Butler J. in this case was undesirable. In my opinion, it is not necessary for the purpose of this appeal to make a ruling as to whether such an order is also invalid, as distinct from being undesirable”.

Griffin J. also found it unnecessary to express any view on the validity of the original sentence: he held that, since it had not been appealed, its validity could not now be successfully challenged and that it followed that the order appealed from to the Supreme Court, deriving as it did its efficacy from its initial order, also could not be challenged.

Hederman J. also declined to express any view on the propriety or validity of sentences of this nature. He was satisfied that the appeal in the instant case failed because there had been no appeal within time from the original sentence and there were no grounds on which the court could grant any extension of time for such an appeal. McCarthy J., in common with Walsh J., was satisfied that the sentence containing the review provision was valid, but was not prepared to express any view as to its desirability, saying

“I think it would be invidious for me to express any view of intended general application in a sentencing matter. I would not wish to circumscribe the judicial power in its application to the circumstances of a particular case”.

Two members only of the court (Walsh and McCarthy JJ.), accordingly, upheld the validity of this form of sentence in that case. The majority (Henchy, Griffin and Hederman JJ.) were of the view that it was unnecessary to express any view on the validity or propriety of such a sentence and declined so to do.

The topic was considered more recently by the court in Michael O’Brien .v. Governor of Limerick Prison (1997) 2 ILRM 349. In that case, the applicant was sentenced to imprisonment for a term of 10 years, the final six years of which were to be suspended subject to certain conditions which were to take effect when the period of suspension began. However, the applicant claimed to be entitled to be released before the expiration of the four year period on the ground that he had at that stage served three-quarters of the custodial sentence and was entitled to be released pursuant to Rule 38(1) of the Rules of the Government of Prisons 1947. That rule provides that a prisoner sentenced to imprisonment for a period exceeding one calendar month is to be eligible, by “industry and good conduct”, to earn a remission of a portion of his imprisonment, not exceeding one-fourth of the whole sentence. The applicant in that case was entitled to the remission for industry and good conduct, provided – and this was the matter at issue – the provisions of Rule 38(1) applied to the term of four years and not to the term often years only.

The court (Hamilton C.J., O’Flaherty, Denham, Barrington and Murphy JJ.) held that a sentence in that form could not be reconciled with the provisions of the Prisons (Ireland) Act 1907 and the Rules for the Government of Prisons 1947 which, in the view of the court, clearly contemplated that the period of imprisonment should be identical with the period of the sentence. It was also inconsistent with the provision in the Act that on the discharge of a prisoner “a sentence shall be deemed to have expired”: this, it was pointed out, seemed to be inconsistent with a period of imprisonment remaining suspended over a prisoner’s head after his release pursuant to the rules and the Act. Accordingly, the sentence of ten years, suspended as to the final period of six years, could not have been lawfully imposed, but a sentence of four years had been lawfully imposed and the applicant was entitled to a remission of one-quarter of that four years” term. He was therefore entitled to be released after the expiration of three years.

O’Flaherty J. indicated in the course of his judgment that, had the trial judge made use of the review procedure instead of purporting to suspend the sentence as from a specified date, the sentence would have been valid. O’Flaherty J. commented:

“This form of order was held to be undesirable by the Court of Criminal Appeal in the case of People (DPP) .v. Cahill but when the question was revisited, this court in People (DPP) .v. Aylmer upheld the validity of this form of order. The desirability of such form of order was touched upon only to a degree in some of the judgments in the latter case”.

As has already been pointed out, the majority of the court in Aylmer declined to express any view on the validity of the review procedure and, accordingly, the view of Walsh J. and McCarthy J. that such sentences were valid did not form part of the ratio decidendi of that case.

The validity of the review procedure was also referred to in The State (Woods) .v. Attorney General (1969) IR 385. The facts in that case were somewhat complex: it is sufficient to say that a sentence containing a review clause was found to be invalid by Henchy J. in the High Court, but solely on the ground that he construed the sentence as entrusting the decision as to whether the prosecutor was to be released to the prison authorities, which he considered to be an unlawful assignment of a purely judicial function to the Executive. On the hearing in this court, however, it emerged that the warrant in that case did not fully or accurately reflect what the High Court judge had said when imposing sentence. Ó Dálaigh C.J. in the course of his judgment said that it was clear that the High Court judge had in fact retained seisin of the case and that, accordingly, the sentence could not be regarded as invalid on the ground on which Henchy J. had based his decision in the High Court. The learned Chief Justice expressed no view on the wider issue which was subsequently debated in Cahill – as to whether such sentences were invalid in principle irrespective of how the review provision was worded – and, while in accordance with the then prevailing practice there is virtually no report of any of the arguments advanced to the court, it would seem reasonable to assume that the issues canvassed in Cahill were not the subject of any submissions to the court.

The issue as to whether sentences of this nature are valid and, if so, whether their imposition is desirable has, accordingly, never being authoritatively resolved. On three occasions, the Court of Criminal Appeal has held that they are undesirable. In Sheedy, however, it was accepted that their imposition in cases concerning young people and convicted persons with behavioural or addiction problems might be appropriate. In Woods, this court held that a sentence containing a review clause in particular terms was not invalid on a ground which had prevailed in the High Court. In Aylmer, two members of the court were of the view that such sentences were valid, but expressed no opinion as to their desirability. The majority of the court expressly reserved the question as to whether they were either valid or desirable. In O’Brien, the determination of the issue was not necessary for the disposal of the appeal and, accordingly, the observations of O’Flaherty J., not dissented from by the other members of the court, that their validity had been established in Avlmer were obiter.

It remains to be noted that s. 5 of the Criminal Justice Act, 1999, which provides for the imposition of a mandatory minimum term of imprisonment of ten years for certain drugs offences, also provides that

“In imposing a sentence on a person convicted of an offence under s. 15A of [The Misuse of Drugs Act 1977], a court -”

(a) may enquire whether at the time of the commission of the offence, the person was addicted to one or more controlled drugs, and

(b) If satisfied that the person was so addicted at the time and that the addiction was a substantial factor leading to the commission of the offence, may list the sentence for review after the expiry of not less than one-half of the period specified by the court under sub-s. 3(b) of the section.

3(h) On reviewing a sentence listed under sub-s. 3(g)(b) of this section, the court –

(a) may suspend the remainder of the sentence on any conditions it considers fit, and

(b) in deciding whether to exercise its powers under this sub-section, may have regard to any matters it considers appropriate”.

Conclusion
The central issue raised by this appeal is whether the expression “the sentence” in s. 2(2) of the 1993 Act refers to the sentence imposed by the learned trial judge on the 10th December 1996 or to the orders made by him on the 22nd October 1998 and the 14th April 1999 or to all three.

The arguments advanced on behalf of the prosecution necessarily involved the proposition that there were in this case at least two, if not three, sentences imposed by the Central Criminal Court. At the conclusion of a criminal trial, in the event of the jury having returned a verdict of guilty on one or more counts, the trial judge is required to impose sentence on the convicted person. When he has done so, he is, as a general rule, functus officio and he cannot thereafter impose a further sentence: the jurisdiction to substitute another sentence for the sentence actually imposed is exclusively a matter for the appellate court. If the review procedure availed of by the court in this case were to be regarded as the imposition by the trial judge of a different sentence at a later stage, its invalidity would be beyond argument: it is clear from the authorities already cited that, to the extent that such sentences are valid, it is because the trial judge is entitled to reserve to himself a power, when imposing sentence, to consider at a later date whether it should be suspended in whole or in part having regard to the behaviour of the applicant in the interim period. To that extent, and to that extent alone, the trial judge is not functus officio: the order made by him at the review procedure is no more than the carrying into effect of the sentence already imposed by him.

The court is, accordingly, satisfied that, to the extent that the legislature directed their minds to the possibility of a sentence containing a review clause when enacting s. 2(2) of the 1993 Act, they would have envisaged that any appeal taken by the DPP in the case of such a sentence on the ground of undue leniency was to be taken within 28 days from the imposition of the sentence and not of the order implementing the review procedure. It is important to note in this context that a number of the grounds advanced on behalf of the DPP at the appeal stage in this case, and which appear to have been the grounds which found favour with the Court of Criminal Appeal, related exclusively to the sentence as originally imposed, i.e. the gravity and severity of the assault and rape, the unprovoked nature of the assault and the grave impact of the assault and rape on the injured party. Clearly, given the express statement by the trial judge when imposing sentence that he would, at the review date, entertain evidence as to the conduct of the applicant in prison and the counselling he had undergone, it must have been anticipated on behalf of the DPP that, in the event of such reports being favourable, the balance of the sentence would be suspended. Arguments based on those grounds were, accordingly, appropriately directed to the sentence as originally imposed, containing as it did the review clause, and not to the order actually made at the review stage.

As to the definition of “sentence” in s. 1(1) of the 1993 Act, the legislature no doubt considered it desirable to make it clear that the expression “sentence imposed by the court” in s. 2(1) applied, not merely to custodial sentences, but also to the wide range of other sentences available to a court in dealing with a convicted person, e.g. fines, community service orders, orders forfeiting property or providing for the payment of compensation, etc. It also seems clear that, having regard to sub-paragraph (b), an order by the trial judge adjourning the imposition of sentence for a period of time, such as a year, in order to afford the convicted person an opportunity of demonstrating a bona fide intention of rehabilitating himself, is a “sentence” for the purposes of the section, as distinct from a an order adjourning sentence for the purpose of obtaining reports. That was so held by the English Court of Appeal in Attorney General’s Reference (No. 22 of 1992) ( 1994 1 All ER 106) when it was considering a somewhat analogous provision in that jurisdiction. It can, accordingly, be said that, in such a case there are in effect two sentences, but that is because the legislature has elected to extend the definition of the word “sentence” to an order which in fact defers sentence. An appeal thus lies from either or both sentences and the time limit prescribed by s. 2(2) applies to both. An appeal would lie from the order deferring sentence on the ground that such a “sentence” was unduly lenient because the circumstances required the imposition of an immediate sentence, whether custodial or otherwise. Similarly, an appeal would clearly lie from the sentence ultimately imposed.

Similarly, an appeal undoubtedly lay from the sentence imposed in this case on the ground that the incorporation of a review procedure in the sentence was “unduly lenient” within the meaning of s. 2(1). No doubt, on a literal reading of the section each of the orders made in this case on the 22nd October 1998 and the 14th April 1999 was an “order made by a court in dealing with a convicted person” within the meaning of s. 1(2). That might suggest that, in an appropriate case, it would be open to the DPP, even where he had made no application to the Court of Criminal Appeal in relation to the original sentence, to apply to that court on the ground that an order made by the trial judge on the review date was “unduly lenient”, as where it was clear from the reports from the prison authority or from any other evidence before the trial judge that the conditions prescribed in the sentence for the reviewing of the sentence had not been complied with by the applicant.

However, s. 1(2) cannot be read in isolation: in accordance with normal principles of statutory interpretation, it must be read in the context of the statute as a whole, including the provisions of s. 2. Subsection (2) of that section refers to

“a sentence imposed by a court on conviction of a person on indictment…” [Emphasis added].

While it can readily be accepted that, given the extended definition of “sentence” in s. 1(1), an order deferring sentence for a specified period for the purpose already mentioned is a sentence imposed by the court “on conviction”, the same cannot be said of the order made by a court giving effect to a review provision.

It must be remembered that the facility afforded by these provisions to the State, through its prosecuting authority, to challenge a sentence as being “unduly lenient” constitutes a significant encroachment upon the finality of a judicial decision in favour of a convicted person which, at least in the case of sentences imposed on persons convicted on indictment, is without precedent.

Hence, the importance of the time limit of 28 days for making such an application prescribed by s. 2(2) and the absence of any power in the court to extend that time.

The court is satisfied that it would not be consistent with that approach to construe s. 2(2) as affording the Director two separate opportunities of applying to the Court of Criminal Appeal, the first arising on the imposition of the sentence containing the review provision and the second when the court actually reviews the sentence in accordance with the first decision. There is nothing in the statutory scheme to suggest that it was the intention of the Oireachtas to permit the DPP to intervene on two separate occasions to obtain a review from the court of what is effectively the same sentence.

The court is, accordingly, satisfied that, not having applied to the Court of Criminal Appeal within the 28 days prescribed by s. 2(2) on the ground that the incorporation of the review procedure was “unduly lenient” within the meaning of s. 2(1), the prosecutor was precluded from making an application to the court in respect of the two orders subsequently made by the trial judge and that the Court of Criminal Appeal was wrong in law in substituting sentences of six years imprisonment and three years imprisonment with no suspension of either sentence for the sentence originally imposed by the trial judge.

That is sufficient to dispose of the appeal in the present case. However, it will be apparent from the earlier part of this judgment that there is considerable uncertainty as to the legal validity of the practice of providing in custodial sentences for the review of the sentence at a later date by the court imposing the sentence. Members of this court who have sat regularly on the Court of Criminal Appeal and have also experience of the practice in the Central Criminal Court or in the Circuit Court are aware that, while some judges consider the practice not only valid, but desirable, others take the view that they should not impose such sentences. In a matter of such importance it is to be expected that this court will afford clear guidance to trial judges and, accordingly, while mindful of the fact that in legal terms everything it says on this topic must be regarded as obiter, it is satisfied that it is desirable in the public interest that such guidance should be available to trial judges.

There can be no doubt that, in the opinion of some judges, the review procedure is an important mechanism which helps to ensure the rehabilitation of convicted persons. There are, however, two important aspects of such sentences which must be borne in mind in considering their legal validity.

First, there is the factor identified by Henchy J. in The People (DPP) .v. Cahill i.e. that a sentence in this form is, in effect, an invasion by the judicial arm of government of the executive domain which is not authorised by law. The court recognises the force of the view expressed by Walsh J. in Aylmer that a trial judge, in imposing a sentence in this form, does not in any way interfere with the statutory power of the Minister for Justice to commute or remit the sentence pursuant to s. 23 of the Criminal Justice Act 1951. It is undoubtedly the case that, where such a sentence is imposed, there is in law nothing to prevent the Minister for Justice from exercising his power of commutation or remission during the period between the imposition of the sentence and the review date.

However, the essential legal frailty of the review procedure is not that it deprives the executive of its statutory power to commute or remit the sentence during that period. It is that, when the review date arrives and the Central Criminal Court or the Circuit Court, on being satisfied that the relevant conditions have been met, suspends the balance of the sentence and orders the release of the convicted person, it is in substance exercising the power of commutation or remission which the Oireachtas has entrusted exclusively to the government or the Minister for Justice to whom the power may be delegated. The Minister cannot, of course, in exercising that power do what the court purports to do at the review stage, i.e. impose a suspended sentence which would normally involve the convicted person being returned to prison on foot of the order of a court in the event of his being convicted of further offences or breaking other conditions attached to the sentence. But if one looks to the substance of the order made by the court at the review date it is clearly an order which releases the convicted person before the completion of the sentence which the judicial arm of government considered appropriate at the sentencing stage and must, accordingly, be regarded as, in all but name, the exercise by the court of the power of commutation or remission which, during the currency of the sentence imposed by the court, is vested exclusively in the Executive.

The making of such orders is not merely inconsistent with the provisions of s. 23 of the 1951 Act: it offends the separation of powers in this area mandated by Article 13.6 of the Constitution. That provision expressly vests the power of commutation or remission in the President but provides that the power may also be conferred by law on other authorities. Since under Article 15.2.1° of the Constitution the sole and exclusive power of making laws for the State is vested in the Oireachtas, it was for the legislative arm alone to determine which authorities other than the President should exercise that power. In enacting s. 23 of the Criminal Justice Act 1951, the Oireachtas conferred the power of commutation or remission on the government or, where it delegated its power, the Minister. In The State (O.) .v. O’Brien, (1973) IR 50, Walsh J. with whom Budd J. agreed, categorised the power in question as being essentially judicial, but pointed out that it had been

“nonetheless expressly conferred by provisions of the Constitution upon the President and, in certain instances, upon the Executive or members thereof”.

It would seem to follow that the remission power, despite its essentially judicial character, once vested under the Constitution in an executive organ, cannot, without further legislative intervention, be exercised by the courts. That, as has been noted, has been done in the case of certain drugs offences by the Criminal Justice Act, 1999.

It is also, of course, open to the Oireachtas to provide by legislation, as has been done in other countries, for the regular review of sentences by a parole board and such an approach might well be consistent with modern penological principles. These again, however, are entirely matters for the legislature and not within the competence of the courts, having regard to Article 13.6, to determine.

It must also be said that, altogether apart from those considerations, the reservation by trial judges to themselves of a power to review the sentence being imposed by them at some later date appears to be fundamentally at variance with the appeal structure prescribed by Order 86, Rule 3 of the Rules of the Superior Courts. That provides that

“Every application for a certificate of the judge of the court of trial that the case is a fit case for appeal shall be made at the close of the trial or within three days thereafter…”

The “close of the trial” would normally be taken as referring to the stage at which the trial judge imposes sentence. If, however, the sentencing process is not completed until the review date, that would appear to be “the close of the trial”for the purposes of the rule and a convicted person would effectively be deprived of his right of appeal against the sentence until such time as he had served at least part – and it may be in some cases a significant part – of the sentence imposed by the trial judge.

The form of sentence imposed in this case came into use for a variety of reasons. First, there was a very striking increase in crime committed by persons who were drug addicts or were otherwise in need of treatment which gave rise to a need to give positive encouragement to avail of it. Secondly, and at about the same time, the “revolving door syndrome” created a need to ensure, as far as possible, that certain prisoners would actually serve some minimum sentence. Thirdly, the absence of any significant legislative initiative on these topics encouraged and virtually constrained trial judges dealing with such cases on a day to day basis to attempt to supply the deficiency in the course of dealing with individual cases. In this context, it may be noted that even the suspended sentence, though apparently in use for upwards of a century, has no statutory basis in Irish law. And fourthly, while the executive power of remission of sentences (apart from the usual remission obtainable under the prison rules) always existed, it was exercised in a manner which a leading academic authority has moderately described as “rather haphazard”.Certainly, it was neither sufficiently clear in its principles nor transparent in its operation to meet the penological requirement of reasonable certainty.

In those circumstances, it appears to us that Professor Thomas O’Malley, the author quoted above, is correct when he says in his book Sentencing Law and Practice (Dublin 2000) that:-

“In developing the part suspended and reviewable sentences, judges had very honourable motives. They were endeavouring, in many cases, to counteract the “revolving door syndrome” by ordering that certain offenders should remain in prison for a minimum period of time. The public would thus have a greater measure of protection and the offender might hopefully be able to get some treatment for drug addiction, aggressive tendencies or some similar problem”.

It now appears extremely desirable, to say the least, that the question of remission of sentence, and any review which is to precede it, should be placed on a clear and transparent basis. The Law Reform Commission in their Report on Sentencing [LCR 53–96] reviewed a number of options in this regard. This is not a matter within the competence of this court. It is clearly for the Oireachtas to decide whether to retain the present system unaltered, to retain it on a clearer and more transparent basis, to devolve the function wholly or partly to a parole board or some other entity, or indeed to confer it on the courts. But as the law presently stands the courts cannot exercise this function in individual cases by reason of the separation of powers mandated in this regard by Article 13 of the Constitution. Nor can they prescribe or advocate an alternative system because that is in the remit of the legislature.

The court has already pointed out that its observations in this area are necessarily obiter. They are not to be taken as impugning the validity of such sentences imposed by trial judges in cases which have already come before the courts, either because of the incorporation of review provisions or the manner in which such review provisions have been implemented or not implemented or the manner in which they may be implemented or not implemented in the future. That also applies to the sentence imposed by the trial judge in the present case and the manner in which he operated the review procedure on two subsequent occasions.

It must also be borne in mind that, given the clear disapproval of sentences in this form voiced by the Court of Criminal Appeal in 1979, it would have been open to a convicted person to challenge the validity of such sentences either by way of appeal to the Court of Criminal Appeal, or, in the case of the Circuit Court, in judicial review proceedings. That of itself might render challenges now brought to the validity of such sentences, or the manner in which the review clauses were implemented or not, unsustainable. For the purposes of this judgment, however, it is sufficient to say that the court is satisfied that sentences in this form are undesirable, having regard to the serious legal questions which arise as to their validity, and that the practice of imposing them should be discontinued.

In the present case, the court will allow the appeal and will substitute for the sentence imposed by the Court of Criminal Appeal the sentence originally imposed in the Central Criminal Court and will also affirm the orders made by the Central Criminal Court on October 26th, 1998 and April 14th, 1998.

 

 

Curtin v Dáil Éireann

[2006] IESC 14

Article 6 of the Constitution designates the powers of government as “legislative, executive and judicial” and as deriving, “under God, from the people…” The Constitution prescribes the methods of choosing the persons who exercise those several powers and allocates tasks between the respective constitutionally designated organs. The judicial power is principally described in Article 34.1:

“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution……”

Thus, only judges appointed to such courts may administer justice. The importance of the judicial function in the carefully balanced constitutional scheme is underlined by two specific powers expressly assigned to the Courts. Article 34.3.2 provides that “the jurisdiction of the High Court shall extend to the question of the validity of any law having regard to the provisions of the Constitution…” Article 26 empowers the President to refer to the Supreme Court any Bill for its “decision on the question as to whether such Bill or any specified provision or provisions of such Bill is or are repugnant to this Constitution or any provision thereof.” These two provisions, and others, highlight the supreme importance of the tasks assigned to the courts by the framers of the Constitution. The courts are required to act as custodians of the Constitution and as such, to act as a check on the actions of the other two arms of government and to ensure that they act in accordance with the rule of law, respect individual constitutionally protected rights and observe the provisions of the Constitution.

It is inherent and essential for the performance of these functions that the independence and integrity of the courts be guaranteed and respected. Hence, Article 35.2 provides:

“All judges shall be independent in the exercise of their judicial functions and subject only to this Constitution and the law.”

Provisions of Article 35, other than Article 35.4, give further effect to this fundamental principle. Article 35.3 provides:

“No judge shall be eligible to be a member of either House of the Oireachtas or to hold any other office or position or emolument.”

Article 35.5 provides:

“The remuneration of a judge shall not be reduced during his continuance in office.”

By these important provisions, the Constitution declares unambiguously the principle that courts and judges are independent of both the government and the legislature. Not content with that declaration, the Constitution gives concrete effect to the principle of judicial independence in the provisions cited, most pointedly in Article 35.4.1 itself. The principle of judicial independence does not exist for the personal or individual benefit of the judges, even if it may have that incidental effect. It is a principle designed to guarantee the right of the people themselves from whom, as Article 6 proclaims, all powers of government are derived, to have justice administered in total independence free from all suspicion of interference, pressure or contamination of any kind. An independent judiciary guarantees that the organs of the State conduct themselves in accordance with the rule of law.

A necessary corollary of judicial independence is that the judges themselves behave in conformity with the highest standards of behaviour both personally and professionally.

The most significant judicial pronouncements on the constitutional notion, as enshrined in the Constitution of Saorstát Éireann, of independence of the judiciary are to be found in the judgments of the former Supreme Court in O’Byrne v Minister for Finance, already cited. The widow of a Supreme Court judge claimed that the imposition of income tax on a judge’s salary contravened the prohibition, contained in Article 68 of the Constitution of Saorstát Éireann, on diminution of a judge’s remuneration during continuance in office. Maguire C.J., speaking for the majority, held, at page 38, that:

“The purpose of the Article is to safeguard the independence of judges. To require a judge to pay taxes on his income on the same basis as other citizens and thus to contribute to the expenses of Government cannot be said to be an attack upon his independence.”

In his concurring judgment in the same case, at page 64, Kingsmill Moore J stated:

“I must take into account the history of the legislation, the evil sought to be avoided and the nature of the remedy devised to avoid such evil. All these matters are plain from the titles and preambles to the statutes I have cited. The object was to secure the independence of the judges and the impartial administration of justice. The legislation was for the protection of the people, not for the interests of the judges.” (emphasis added).

While those remarks concerned the diminution of judicial salaries, it cannot be doubted that they are at least equally applicable to the provisions of Article 35.4.1. Judges enjoy a special constitutional protection from removal from office, in common with some other constitutionally designated persons. That protection is not intended to benefit individual persons holding judicial office. As individual human persons, judges are no more deserving of protection than any other office-holder. The constitutional task that they perform requires them to be able authoritatively to resolve disputes between the three organs of government. They must be guaranteed the freedom to decide without fear or favour and, hence, that they be independent of the other branches of government.

Separation of powers
The doctrine of separation of powers, as already indicated, protects the independence of the judiciary. Equally, however, both the legislative and executive branch must be permitted to perform their allotted constitutional functions without improper encroachment from the other branches. The classical and oft-quoted formulation of the doctrine remains that found in the judgment of the Court delivered in Buckley v Attorney General (Sinn FÉin Funds) [1950] I.R. 67 by O’Byrne J, stating at page 81:

“Article 6 provides that all powers of government, legislative, executive and judicial, derive, under God, from the people, and it further provides that these powers of government are exercisable only by or on the authority of the organs of State established by the Constitution. The manifest object of this Article was to recognise and ordain that, in this State, all powers of government should be exercised in accordance with the well-recognised principle of the distribution of powers between the legislative, executive, and judicial organs of the State and to require that these powers should not be exercised otherwise. The subsequent articles are designed to carry into effect this distribution of powers.”

The Court considered that principle extensively in its judgments in T.D. v Minister for Education [2001] 4 I.R. 259. All judgments cited Buckley (save that Murphy J, by agreeing with Keane C.J., did so indirectly). That case concerned orders made by the High Court directing the State to act in vindication of the constitutional rights of a category of disadvantaged children by providing physical accommodation for them. The making of those orders was based on the proposition that the Constitution implied respective rights for individuals and correlative powers of the State and the courts.

This Court, however, held, on appeal, that the orders made by the High Court constituted an invasion of the executive power of the State. The case is, on its facts, sharply distinguishable from the present case, where the debated Article provides that a specified express constitutional function is to be performed exclusively by one organ of the State. Nonetheless, the judgments contain pronouncements of general application. For example, Denham J stated at page 300 of her dissenting judgment:

“In exercising the functions of State it behoves each organ of State to respect the other organs of State and their independence and functions and to act accordingly.”

Murray J, as he then was, stated at page 331:

“……in order to avoid the paramountcy of one organ of State, each must respect the powers and functions of the other organs of State as conferred by the Constitution. Each must exercise its powers within the competence which it is given by that Constitution.”

Hardiman J stated at page 359:

“It is right that the judiciary, within their constitutional sphere, should be quite independent of the legislature and the executive, but it is no less right that these, within their respective constitutional spheres, be independent of the judiciary.”

Those statements are at a level of high generality, whereas more particular considerations are at stake in the present case. The present appeal makes it necessary for this Court for the first time to pronounce on the limits, if any, on the powers conferred on the Houses of the Oireachtas by Article 35.4.1 of the Constitution. To that extent, it may be said to be unique. However, relevant precedent is not wanting. Since shortly after the enactment of the Constitution, the High Court and this Court have had to exercise their constitutionally conferred powers to pronounce on the validity of legislation passed by the Oireachtas. They developed, in that context, the principle of the presumption that such legislation is in accordance with the Constitution. Shortly after the entry into force of the Constitution, in Pigs Marketing Board v. Donnelly (Dublin) Ltd. [1939] I.R. 413, Hanna J. stated at p. 417:-

“When the Court has to consider the constitutionality of a law it must, in the first place, be accepted as an axiom that a law passed by the Oireachtas, the elected representatives of the people, is presumed to be constitutional unless and until the contrary is clearly established.”

This is a presumption universally applied ever since. The Court has explained that the principle “…springs from, and is necessitated by, that respect which one great organ of State owes to another.” (per O’Byrne J in Buckley v Attorney General and another, already cited, at page 80). That presumption and the reasoning underlying it have more recently been held also to apply to resolutions of both Houses of the Oireachtas. In Goodman International Ltd v Mr. Justice Hamilton and others, already cited, Finlay C.J., speaking with the agreement of a majority of the Court, stated, at page 586:

“I am satisfied that the presumption of constitutional validity which has been applied by this Court, in a number of cases, to statutes enacted by the Oireachtas and to bills passed by both Houses of the Oireachtas and referred to this Court by the President pursuant to Article 26, applies with equal force to these resolutions of both Houses of the Oireachtas. It seems to me inescapable that having regard to the fact that the presumption of constitutional validity which attaches to both statutes and bills derives, as the authorities clearly establish, from the respect shown by one organ of State to another, and by the necessary comity between the different organs of State, that it must apply in precisely the same way to a resolution of both Houses of the Oireachtas, even though it does not constitute legislation.”

Hederman and McCarthy JJ did not expressly refer to the presumption but agreed with the result proposed by the Chief Justice. Having recalled the principle of double construction and the presumption that “all proceedings, procedures, discretions and adjudications which are permitted, provided for, or prescribed…” would also be conducted in accordance with the principles of constitutional justice (citing McDonald v Bord na gCon [1965] I.R. 217 at 239; East Donegal Co-Operative Livestock Mart Ltd v Attorney General [1970] I.R. 317), Finlay C.J. continued, at page 587:

“In applying this principle to these resolutions and the issues arising in this case, clearly, in so far as the applicants contend for a constitutional invalidity in the resolutions setting up the Inquiry, this Court must presume that the proceedings of the Inquiry and the rulings and conduct of the Inquiry by the Tribunal will be in accordance with constitutional justice.”

The foregoing provides clear authority for the broad proposition that the parliamentary procedures followed to date in respect of the resolutions to remove the Appellant from office must be presumed, by the courts, to be constitutional. This presumption applies in particular to the amended Standing Orders and to the resolutions appointing the Joint Committee adopted in June 2004.

More generally, the Constitution specifically and with all deliberation assigns the power to pass resolutions as provided for in Article 35.4.1 to the Houses of the Oireachtas and to no other body. It is an exclusive power. The words of Keane J, expressed in his judgment, with which a majority of the Court agreed, in Kavanagh v Government of Ireland [1996] 1 I.R. 321 at 363 seem particularly relevant:

“……where the Constitution has unequivocally assigned to either the Government or the Oireachtas a power to be exercised exclusively by them, judicial restraint of an unusual order is called for before the courts intervene. That is also no more than recognition that, while all three organs of State derive their powers from the people, the Government and the Oireachtas are accountable, directly and indirectly, to the people in the electoral process.”

In that case an attempt was made to contest the validity of the Government proclamation of 1972 that the ordinary courts are inadequate to secure the effective administration of justice and preservation of public peace and order.

It is important to any consideration of the use by the Houses of the Oireachtas of their powers to mention Article 15.10 of the Constitution, which, so far as relevant reads:

“Each House shall make its own rules and standing orders, with power to attach penalties for their infringement……”

This Court made brief reference to this constitutional provision in O’Malley v An Ceann Comhairle [1997] 1 I.R. 427, where the Court affirmed a High Court decision refusing to grant leave to apply for judicial review of a decision of the Ceann Comhairle disallowing part of a question put down for answer by a minister. O’Flaherty J (Murphy and Lynch JJ concurring) stated at page 431:

“How questions should be framed for answer by Ministers of the Government is so much a matter concerning the internal working of Dáil Éireann that it would seem to be inappropriate for the court to intervene except in some very extreme circumstances which it is impossible to envisage at the moment. But, further, it involves to such a degree the operation of the internal machinery of debate in the house as to remain within the competence of Dáil Éireann to deal with exclusively, having regard to Article 5, s. 10 of the Constitution.”

The Supreme Court of the United States has had occasion from time to time to consider the corresponding provision of the Constitution of the United States. Article 1, section 5 provides: “Each house may determine the rules of its proceeding……” In United States v Ballin ( 144 U.S. 321), the Court declined to consider whether an Act of Congress had been validly passed. The following dictum appears in the judgment of the court delivered by Brewer J, at page 324:

“The Constitution empowers each house to determine its own rules of proceedings. It may not by its rules ignore constitutional restraints or violate fundamental rights, and there should be a reasonable relation between the mode or method of proceeding established by a rule and the result which is sought to be attained. But within these limitations all matters of method are open to the determination of the House, and it is no impeachment of the rule to say that some other way would be better, more accurate, or even more just.”

In Nixon v United States, cited above, a judge was impeached before the Senate of the United States, having been convicted of making false statements before a federal grand jury in a matter concerning acceptance by him of a bribe. The Senate convicted him on articles of impeachment prepared by the House of Representatives and removed him from office. The Senate had appointed a committee pursuant to its impeachment rules already mentioned. In subsequent proceedings, the judge claimed that the rule authorizing the appointment of the committee violated the Federal Constitution’s impeachment trial clause. The majority of the Supreme Court rejected the former judge’s claim as being non-justiciable. White J, with whom Blackmun J concurred did not agree that the matter was non-justifiable. Unlike the majority, therefore, which did not reach the issue, he considered the challenge to the Senate Rule on its merits. That judgment is of some interest in the present context. Following a historical account which treads some of the ground described earlier in this judgment, White J concluded, at page 22, that the trial clause of the Constitution “was not designed to prevent employment of a fact-finding committee.” He continued:

“In short, textual and historical evidence reveals that the Impeachment Trial Clause was not meant to bind the hands of the Senate beyond establishing a set of minimal procedures. Without identifying the exact contours of these procedures, it is sufficient to say that the Senate’s use of a fact-finding committee under Rule XI is entirely compatible with the Constitution’s command that the Senate “try all impeachments.””

These decisions of the Supreme Court of the United States can have persuasive value only to the extent that they relate to the interpretation of analogous provisions of our Constitution and are consistent with the approach of our courts to issues of interpretation. There is no apparent difference of substance between the power conferred on the Houses of the Oireachtas by Article 15.10 of the Constitution, “to make its own rules and standing orders,” and that of the houses of the US Congress to “determine the rules of its proceeding…” The approach of the US Supreme Court in the two cases cited (in one case, in a minority opinion) is not significantly different from that expressed on behalf of this Court by O’Flaherty J, as already quoted, in O’Malley v An Ceann Comhairle. O’Flaherty J in an obiter dictum, somewhat like Brewer J in Ballin, hinted at possible limits to the deference which the judicial arm owes to the legislative arm of government, when he said, at page 431:

“Yet if, for example, the Government used its majority in the Dáil and Seanad to prevent the Oireachtas holding at least one session per year (Article 15, s. 7); or if the Dáil did not meet within thirty days from the date of a general election (Article 16, s. 4, sub-s. 2) is it to be said that the courts would not have a jurisdiction to intervene? Since the court is not called on to resolve these questions now, it is sufficient to state that the problem posed for resolution here is a different one.”

Constitutional justice; Fair procedures
It is not contested by the Attorney General or by or on behalf of the Houses of Oireachtas that the Appellant, faced with a resolution calling for his removal from the bench for stated misbehaviour, is entitled to full plenitude of the protection of all of the rules of fair procedures guaranteed by the Constitution. The Appellant says that the corollary of the existence of the power to remove a judge from office is that the people have a right not to have judicial independence threatened or undermined through a process which falls short of full respect for the core value of judicial independence.

The Standing Orders of each of the Houses contains, as already seen, an express recognition of these principles as applicable to the Select Committee:

“The Select Committee shall at all times have due regard to the constitutional principles of basic fairness of procedures and the requirements of natural and constitutional justice.”

The resolutions passed on 3rd June 2004 contain substantially similar provisions. In fact, the Appellant has been heard by the Committee through his solicitors and counsel on several occasions and has made no complaint regarding the fairness of the procedures which have, in fact, been followed.

The Appellant’s complaint is that the procedures adopted by the Houses are not capable of meeting the admitted standards of constitutional fairness. His complaint relates to the entire structure of the Joint Committee and the reporting system established by the Standing Orders.

The core of the complaint is that the remit of the Committee is that it will simply collect evidence and that it will not and cannot do anything more (Order 63A.2). The Committee will not consider what evidence should or should not be heard. It will have no power to rule on the admissibility of evidence, to consider and weigh the credibility of witnesses or their expertise. Examination of the Appellant’s computer and hard drive will require the hearing of experts who are appropriately qualified in matters of information technology to enable them to give expert opinion on the presence, absence or function of the “Trojans” or viruses said to be on that hard drive. Consequently, the entirety of all evidence gathered, include expert evidence, whether in the form of transcripts or video or audio tapes and any documentary will simply be gathered and handed over in an entirely undigested form to all the members of each House.

The result will be, accordingly, it is submitted, that there cannot be a fair hearing before either House. The members cannot reasonably or realistically be expected to absorb and consider such evidence, “in all its abundance,” in such undigested form. The Appellant complains that he will not be allowed to give or call witnesses or otherwise produce evidence before either House. Counsel for the Attorney General and for the Houses disputes this and says that there is nothing to prevent such evidence being given as is required.

Constitutionality of section 3A of 1997 Act
The Court, in accordance with long established principles, must presume that legislation duly enacted by the Oireachtas is in conformity with the Constitution. The courts, as the judicial arm, must accord due respect laws passed by the Oireachtas, the designated organ of State with the exclusive power to pass laws.

This principle has particular significance in the case of the section under attack. It was passed for the particular purpose of assisting the Oireachtas in the performance of its exclusive and important function of considering a resolution proposing the removal of a judge from his judicial office. In order to do so, the Houses of the Oireachtas are obliged by the Constitution to consider whether the judge in question has been guilty of misbehaviour. This is a weighty responsibility. It necessarily involves the Houses in an investigation of acts alleged against a judge.

The Appellant contends that a requirement that the judge appear before the Committee constitutes an encroachment on the independence of the judiciary. He argues that a resolution may be proposed on the basis of a mere allegation.

It is axiomatic that any resolution proposed pursuant to Article 35.4.1 of the Constitution will involve some sort of intrusion into the life or affairs public or private of the judge. That is the nature of the function assigned to the Oireachtas. For reasons given elsewhere in this judgment, it is to be presumed that the powers of the House of the Oireachtas will be exercised in respect of the principles of basic fairness and constitutional justice. Furthermore, the courts will, if necessary, protect the independence of the judiciary and the rights of an individual judge from irresponsible, irrational or malicious abuse of these powers.

In the light of these basic principles, the Court considers that there is no ground for challenge to the power of a Committee of the Houses of the Oireachtas to call a judge before it or to require him or her to produce documents or other things, which the Committee considers necessary for its investigation of matters relating to a motion duly proposed pursuant to Article 35.4.1. It is legitimate for the Committee to ask a judge to provide relevant documents and articles.

The Court does not consider that the power to call a judge as a witness or to produce articles as evidence involves any improper or unconstitutional invasion of judicial power or judicial independence. On the contrary, the power is included in the Constitution for the purpose of ensuring the fitness and integrity of the judiciary. The Court finds nothing unconstitutional in the impugned provision.

Conclusion on interpretation of Article 35.4.1
The first key question of interpretation is whether the Houses of the Oireachtas may or may not appoint a committee, joint or otherwise, for the purpose, to use a neutral term, of assisting them in their consideration of a resolution pursuant to Article 35.4.1 of the Constitution. While the Appellant does not question the power of the Houses to appoint a committee with appropriate powers, the Court must express its opinion on the point, as it is an essential link in the reasoning. The second, related question is whether, assuming the power to appoint a committee, it may be of the type which has been adopted by the Houses in their amended Standing Orders or whether, as the Appellant contends, any such committee must have power to assess, evaluate and report findings on the evidence heard.

Article 35.4.1 is entirely silent on both these questions. It does not require the Houses to appoint committees, nor does it prescribe any particular type of Committee. It would not be right, however, to treat Article 35.4.1 as containing a complete code. The Article must be read with other relevant provisions of the Constitution. It is necessary to consider whether a requirement to operate through committees of any particular kind should be read into the provision.

The principle of the separation of powers, combined with Article 15.10 of the Constitution, is necessarily relevant. The Oireachtas is the body exclusively charged with considering whether a judge has so misbehaved (or is so incapacitated) as to render him or her no longer fit to hold the office of judge under the Constitution. Whether or not it is unsatisfactory or undesirable that elected political representatives should sit in judgment on the behaviour of a judge, whether the power is open to abuse through a government’s use of its majority in the Oireachtas, whether, as has been suggested, a simple majority vote, as provided by Article 15.11, should not suffice are all irrelevant. The Constitution is clear. A judge may be removed from office only by means of a resolution of both Houses and by no other means whatever.

Two observations may, nonetheless, legitimately, be made. Firstly, there is no evidence whatever in the history of this State or, indeed, of any of the countries of the common law, in modern times that the corresponding power of removal of judges has ever been abused by government. As has been submitted on behalf of Ireland and the Attorney General, the constitutional history lends little support to the Appellant’s stated apprehension of infringements of judicial independence. The material placed before the court includes many examples of parliamentary restraint in considering the exercise of the power. Secondly, though the matter need not be considered in this case, in the event of irrational or irresponsible abuse of the power, as by the proposal of a resolution in response to an unpopular judicial decision, or otherwise maliciously or in bad faith, it is not to be doubted that the courts would be prepared to exercise an appropriate level of judicial review. They would have a duty, apart entirely from their duty to guarantee fair procedures, to preserve the constitutional balance and to protect a judge from abuse of power. The obiter dictum of O’Flaherty J in O’Malley v An Ceann Cómhairle suggests that the courts would not, in a clear case, permit even the Oireachtas to default on its constitutional obligations.

Since the Houses of the Oireachtas have the exclusive power to consider the passing of resolutions for the removal of a judge from office, the Courts must, in accordance with the principle of the separation of powers, exercise a significant level of judicial restraint when considering the exercise of that power. The Appellant has not, in these proceedings, challenged the right of the Houses of the Oireachtas to pass resolutions for the purposes of Article 35.4.1. He does not deny to the Oireachtas the power to investigate allegations of misbehaviour by a judge, to find facts and, inherent in the constitutional allocation of that function, to decide what constitutes such misbehaviour as would warrant the removal of a judge from office. The Appellant demands only that the procedures followed by the Houses meet the fundamental constitutional requirements of fairness and justice. The Court is asked to decide that the procedures proposed do not meet that standard.

The Houses of the Oireachtas explicitly guarantee in the measures already adopted and in the resolutions proposed to respect the “principles of basic fairness of procedures and the requirements of natural and constitutional justice.” (see paragraph (5) of Standing Orders 63A and 60A.) By the use of this language, the Houses have rightly and necessarily undertaken to accord to the Appellant the procedural rights historically and universally seen as essential, where a person’s good name, livelihood, liberty or other rights are at stake. This Court, in In re Haughey [1971] I.R. 217 unambiguously declared that they were guaranteed by Article 40.3 of the Constitution.

It is necessary to identify a standard by which the Court can measure whether a designated organ of government is or is likely to fall short of its constitutional obligations.

Murray J, as he then was, in T.D. v Minister for Education, at page 337, considered the circumstances in which a court might consider making an order directing, in that case, the executive to fulfill a legal obligation. He said:

“I have already made the distinction between “interfering” in the actions of other organs of State in order to ensure compliance with the Constitution and taking over their core functions so that they are exercised by the courts. For example, a mandatory order directing the executive to fulfill a legal obligation (without specifying the means or policy to be used in fulfilling the obligation) in lieu of a declaratory order as to the nature of its obligations could only be granted, if at all, in exceptional circumstances where an organ or agency of the State had disregarded its constitutional obligations in an exemplary fashion. In my view the phrase “clear disregard” can only be understood to mean a conscious and deliberate decision by the organ of state to act in breach of its constitutional obligation to other parties, accompanied by bad faith or recklessness.”

The standard of “clear disregard” was used, in that case, in the somewhat different context of an order directed to the government to make provision for certain disadvantaged children. The legal basis for the adoption of this standard was, however, the fact that the matters at issue fell primarily within the executive province of government. The standard should also be applied, in the opinion of the Court to the performance of the exceptional and sensitive function constitutionally assigned to one organ of government, the legislature, of removing of judges from office. It accords with the presumption of constitutionality.

The Appellant claims that it is necessary, in order to assure the basic fairness of the procedures proposed, that the Houses appoint a committee to investigate, gather evidence and report their findings and conclusions to the Houses. It is not open to the courts to read such extensive additional provisions into the Constitution in the absence of a constitutional mandate. Article 35.4.1 must be read in the light of Article 15.10. Insofar as the former provision is silent as to matters of procedure, it must be recalled that Article 15.10 empowers each House to make its own “rules and standing orders,” and places no express limits or restrictions on that power. It is acknowledged, of course, as already stated, that the Houses must respect constitutional justice and fair procedures.

There is nothing, therefore, in either Article 35.4.1 or Article 15.10 to prevent the Houses from adopting Standing Orders providing for the establishment of a Committee to investigate the question of whether a judge has been guilty of “stated misbehaviour,” as alleged in a resolution “calling for his removal,” which has been duly proposed pursuant to Article 35.4.1. It is the proposal of the resolution that confers that power. Having regard to the draconian character of that power, it is clear that neither a House of the Oireachtas nor any of its committees would have power to investigate alleged misbehaviour by a judge in advance of and merely in contemplation of the possible proposal of such a resolution.

Having regard to the potentially complex nature of any allegation of misbehaviour, it is obvious that any House of any parliament charged with the performance of this constitutional function will need to use a committee to gather evidence. Apart from its being obvious and uncontested, it has been demonstrated that it has been historically the practice of parliaments to appoint committees and assign to them, to varying degrees, the role of investigation.

The nub of the Appellant’s complaint is that the Houses do not have power to appoint a Committee of the sort provided for respectively by the new Standing Orders 63A and 60A respectively of the Dáil and Seanad, containing the key provision:

“…provided that the Select Committee shall make no findings of fact nor make any recommendations in respect of same or express any opinions in respect of same.”

However, neither Article 35.4.1 nor Article 15.10 prohibits the Houses of the Oireachtas from adopting such a provision. Ultimately, this Court could conclude that this provision was beyond the power of the Houses only if it was clear that it would be, recalling the dictum of Murray J, cited above, in “clear disregard” of the right of the Appellant to the benefits of basic fairness of procedures and constitutional justice. As is clear from the terms of the Standing Orders themselves, the Committee must “at all times have due regard to the constitutional principles of basic fairness of procedures and the requirements of natural and constitutional justice.” It follows, therefore, that the Appellant’s complaint is necessarily narrowed down to an issue of whether he can show that the procedure before each House, following receipt of the Committee report, will necessarily be in clear disregard of those principles.

Part of the Appellant’s complaint is that he will not have the right to give or call witnesses before the Houses. This contention is apparently based on the assumption that all of the evidence will have been taken by the Committee. However, there is nothing in the Standing Orders to prevent the Houses hearing evidence, however unprecedented that course of action might be. Insofar as the Appellant claims that that possibility must be open if constitutional justice is to be respected, then it follows that the Houses must be open to considering further evidence. More generally, the Appellant complains that it is, in general highly unsatisfactory to expect all the members of each House to consider, absorb and adjudicate upon the great mass of evidence which will be placed before them.

No doubt, it is true that it will be difficult for an entire House of the Oireachtas to perform those tasks as each individual member must make his or her own decision on the issues raised by the resolution. But that is of the very nature of the process laid down by the Constitution. Whether the debate upon the resolutions takes place upon consideration of the considered report and opinion of a Committee, as the Appellant proposes, or on the “undigested” evidence as envisaged by the Standing Orders, the task for the elected members will be extremely difficult. It is important to recall that the Appellant, even while advocating the first type of Committee, submits that its opinions on the evidence or otherwise would not be binding.

The Court accepts that it might well have been more satisfactory for the Houses to have opted for the first type of committee. A committee empowered to hear evidence, rule on admissibility, resolve conflicts of evidence and report its findings to the Houses would have had obvious advantages. The Committee would have been in a position to schedule hearings, hear and evaluate the evidence of witnesses, eliminate irrelevant material, concentrate on the principal points at issue and furnish a coherent and cogent report to the Houses. In the opinion of the Court it would have been open to the Houses to have chosen such a committee, but they have not done so. It may well be that the Houses were concerned that such a committee could not validly be appointed, having regard to the decision of this Court in Maguire v Ardagh, already cited. If so, it should be said that, so far as the power to appoint a committee was concerned, that case related to the question whether the Oireachtas had inherent implied power to appoint Committees to investigate the behaviour of individuals. It has no application to a case where the Oireachtas is acting in the exercise of a power expressly conferred on it by the Constitution.

In any event, the Court is satisfied that it was within the power of the Houses of the Oireachtas to adopt Standing Orders 63A and 60A respectively and to depute to the Select Committee the power to report without making findings of fact, making recommendations or expressing opinions. The Court is satisfied that the Committee and, following the report of the Committee, the Houses can, as it is agreed they must, accord to the Appellant his full rights to constitutional justice and fair procedures.

It should be added that the powers of the Committee need not be interpreted as restrictively as the Appellant suggests. It is true that the Standing Orders preclude the Committee from: (a) making findings of fact; (b) making any recommendations concerning the facts; (c) expressing any opinions in respect of same. It is not correct, however, to suggest that the Committee is required merely to place all the evidence gathered in an entirely undigested and disorganized form before each House. Paragraph (8) is material. Its says that ” [f] ollowing the completion of its proceedings, the Select Committee shall furnish a report of those proceedings to the Dáil, together with appropriate transcripts and associated audio-visual material.” There is a distinction between the Report and the associated raw evidence which will be in the form of transcripts and audio-material. The paragraph proceeds to require that the “Committee shall first send its report to the Clerk of the Dáil, who shall arrange in the first instance for the report to be circulated to the members of the Dáil and to the Judge……” None of this prevents the Committee, nor could it ever have been intended, from organising the evidence gathered into a manageable form. It may and probably must prepare indices and summaries of the evidence. Those summaries may be related to distinct issues of fact raised in the resolution including the introductory paragraphs of the resolution. The entire will, no doubt, be subdivided into chapter headings. While the Committee may express no opinions, it is not prevented from pointing out issues or conflicts in the evidence. In short, the Committee is required to produce a report which will act as a useful guide to the members for their consideration, when debating the resolution, and to the Appellant and his advisers in representing him.

Properly understood, therefore, and in light of the explicit guarantees of basic fairness and respect for constitutional justice, the steps taken by the Houses of the Oireachtas to date do not infringe either Article 35.4.1, Article 15.10 nor, indeed, any provision of the Constitution. The Court therefore rejects the Appellant’s challenge to the Standing Orders.

At the hearing, an issue emerged, which had not figured explicitly among the grounds upon which leave to apply for Judicial review was granted, but which is intimately related to the Appellant’s complaint concerning the Committee’s role in the conduct of the investigation of his alleged misbehaviour. The Appellant’s essential complaint is that the scheme adopted denies him the right to a decision on whether he, in fact, committed any of the acts alleged, prior to a debate on his removal. The essence of that complaint can, however, be transferred to the stage of the debate. The Appellant’s concerns is that the members might debate and consider passing the resolutions as if they constituted one single issue, namely whether he should be removed from office for the misbehaviour stated in the resolutions. The Appellant contends that there are, in truth, two distinct issues. The first is whether, as a matter of fact he is guilty of the misbehaviour alleged. He claims that there should, first, be an adjudication on that issue before either House goes on to consider whether he should be removed from office.

The Appellant argues that a single vote might include among the majority passing the resolution deputies or senators who had not decided whether the allegations were true (or even who did not believe them to be true) but nonetheless voted for the resolution. Most precisely, he claims the right to know whether or not the members accept that he engaged in the use of websites containing child pornography as alleged.

It has to be repeated that this particular point, at least in the form in which it has been presented, did not figure among the grounds upon which leave to apply for Judicial review was granted. Presumably, it could not have done. Neither the Resolution nor the Standing Orders prescribe any particular mode of debating the resolution. Paragraph (9) of the Standing Order provides that the (respective) House “may by order make provision for the debate on the said Article 35.4.1 motion…….” It proceeds to mention some of the rights guaranteed to the Appellant and concludes with “such special rules of procedure as may be deemed appropriate.” Therefore, it is open to the Houses to adopt a rule providing either for a single vote on the resolution to remove or to divide the issue in the manner for which the Appellant contends. In that sense, it is clear that, in the ordinary way it is premature to deal with this matter. However, this is a quite exceptional case in very many respects. It is the only case in which this Court has ever been asked to pronounce on the interpretation of Article 35.4.1. The argument on the debate procedure is logically quite closely linked with the Appellant’s principal criticism of the Oireachtas scheme. Although the Houses have not yet indicated which course they are bound to follow, their counsel took the stand that it was premature to conclude whether there would be any want of fair procedures.

This appeal places the Court in an exceptional position in relation to another great organ of state, the Oireachtas. In the view of the Court, it should take the opportunity, having regard to the several circumstances mentioned in the preceding paragraph, to provide constructive guidance to the Houses in the exercise of its unique constitutional power to remove a judge. It is undesirable and would not be in the public interest to leave this matter in a state of uncertainty until the matter reaches the stage of debate before the two houses.

It is certainly within the power of the Houses of the Oireachtas, particularly having regard to Article 15.10 of the Constitution, to regulate their own procedures. The courts should intervene only where it is clear that a particular course of action would be in clear breach of the principles already frequently mentioned of basic fairness and constitutional justice. A resolution proposing the removal of a judge from office for “stated misbehaviour” necessarily and logically involves consideration of two distinct matters. The first is whether the judge who is the subject of the resolution has committed the acts alleged against him. The second is whether those acts constitute such misbehaviour as would justify his being removed from his judicial office.

It is undesirable to speculate on the possible outcome of the investigation of the Joint Committee or of the debate in the Houses. It suffices to say that it is not inevitable that one clear result will emerge. Findings may be partial or equivocal; issues of intent or accident may arise; there may be explanations, some meritorious, some less so. It is conceivable that some but not all of the facts alleged will be established to the satisfaction of members to be true. All these issues would merge into the single resolution for removal, unless the issues are separated.

It is the opinion of the Court that, as a matter of basic fairness, the Appellant should be entitled to a distinct hearing and decision on the issues of fact before he must confront the ultimate and drastic decision to remove him from office. Some support is to be found in the words of Article 35.4.1. The first part of the sentence declares that a judge may not be removed “except for stated misbehaviour or incapacity.” The second part goes on to provide that this may happen: “and then only upon resolutions passed……” These remarks are not intended to impose onerous legal requirements on the Houses. They retain a large area of discretion as to how the resolutions are put. They are not necessarily obliged to break the allegations against the Appellant into several components. They may decide that the factual issues may fairly be expressed in the form of a single proposition.

Conclusion on section 3 order
The Appellant has not, in this Court, pursued his argument that the direction made by the Committee on 1st December 2004, infringed his right not to be forced to incriminate himself. It is important, nonetheless, to draw attention to the nature of the power conferred on a Select Committee of a House of the Oireachtas by section 3 of the 1997 Act. The Committee has power to “direct in writing any person to send to the committee any document in his or her possession or power specified in the direction……” The term “document” is defined by section 1 as including a “thing.”

It is common case that this section is capable of being applied to the Appellant. The dispute relates only to the nature of the materials being sought from him. It is also common case that these materials are in the possession of the Garda Síochána and that this possession arose from their seizure by members of that force pursuant to the unlawful, and as held by the learned Circuit Judge, unconstitutional execution of a search warrant. While originally held for the purposes of the then pending trial of the Appellant, it has subsequently been retained following correspondence with the Chairman of the Committee. In correspondence in July 2004, summarised in the judgment of the Court, the Appellant accepted that he had sought access to adult pornography and that he became aware that his computer had been invaded by unwanted images. He said that he had at no time knowingly brought images of child pornography onto his computer.

It is not strictly necessary to review the argument that the section 3 order unconstitutionally requires the Appellant to incriminate himself. It has not been pursued in this Court. However it is appropriate to draw attention to the distinction between a requirement that a person make a statement or give evidence which may tend to incriminate him and a requirement that a person produce for inspection whether by the Garda Síochána or other organs of the State a physical article, including a document. The first right or privilege is recognised in our law and protected by the Constitution and, incidentally by the European Convention on Human Rights and Fundamental Freedoms, and it is not necessary to say any more about it in this case. The State or designated State organs have power to demand the production for inspection or examination of articles, premises, animals, licenses or other documents or things pursuant to a host of regulatory laws. For the investigation of crime, the Garda Síochána have certain powers, regulated by statute, subject sometimes, but not always to judicial supervision, to enter upon and search premises, including dwelling houses, and to take away articles to be used as evidence for the purpose of investigating crime. The last type of power may require the owner of the dwelling house to permit the search to take place and cooperate with the Gardaí in finding materials to take away. It cannot be said that this type of power involves any element of self-incrimination. This distinction is well described in the important decision of the European Court of Human Rights in the case of Saunders v. United Kingdom [1997] 23 EHRR 313 recognising the right to silence as guaranteed by Article 6 of the Convention. The judgment contains the following passage at paragraph 69:

“The right not to incriminate oneself is primarily concerned, however, with respecting the will of an accused person to remain silent. As commonly understood in the legal systems of the Contracting Parties to the Convention, and elsewhere, it does not extend to the use in criminal proceedings of a material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect such as, inter alia, documents acquired pursuant to a warrant, breath blood and urine samples and bodily tissues for the purposes of DNA testing.”

An analogous distinction was adopted by the Supreme Court of the United States in the Schmerber ûv- California 384 U.S. 757 when it considered a citizen’s right to silence and privilege against self-incrimination under the Fifth Amendment (the Court also referring to similar protections under State constitutions) which reflects the historic common law rule against self-incrimination. In that case, after the defendant’s arrest on suspicion of driving under the influence of alcohol, while at a hospital receiving treatment for injuries suffered in a motorcar accident, a blood sample was withdrawn by a physician at the direction of a police officer, acting without a search warrant, despite the defendant’s refusal, on the advice of counsel, to consent to the blood test. In delivering the opinion of the Court, Brennan J. in acknowledging that the Fifth Amendment of the Constitution of the United States guaranteed the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will and to suffer no penalty for such silence, went on to state:

“We hold that the privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature, and that the withdrawal of blood and use of the analysis in question in this case did not involve compulsion to these ends.”

Later in his opinion in referring to the privilege against self-incrimination he stated:

“On the other hand, both federal and state courts have usually held that it offers no protection against compulsion to submit to fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture. The distinction which has emerged, often expressed in different ways, is that the privilege is a bar against compelling “communications” or “testimony”, but that compulsion which makes a suspect or accused the source of “real or physical evidence” does not violate it.”

In the view of the Court, the use of the power conferred on a Committee does not give rise to considerations of self-incrimination. It is important, nonetheless, to draw attention to the provisions of sections 6 and 11 of the 1997 Act. Section 11 provides that a witness before a Committee “shall be entitled to the same privileges and immunities as if the person were a witness before the High Court.” Furthermore, where a person directed to give evidence before a Committee or has been required to produce a document (which includes any thing), section 6 permits him to claim that he “is of opinion that, by virtue of section 11(1), he or she is entitled to disobey the direction…” Thereupon, the Committee is required by section 6(2) to “apply to the High Court in a summary manner for the determination of the question…”

Turning to the Appellant’s substantive arguments, it is most convenient to deal, in the first instance, with the contention that the computer materials are not in the Appellant’s “possession or power,” as is required by section 3(1)(c) of the 1997 Act. The Court accepts that, where a person is not in actual possession, “power” is equivalent to an enforceable legal right as was held in Bula Limited v Tara Mines Limited. The Appellant is indisputably the owner of the computer materials. They were unconstitutionally seized from him and he is entitled to their return. This is an “enforceable legal right.” He claims to apprehend that he cannot lawfully take possession of them, because there are unlawful images of child pornography on the computer. This does not affect his legal title to the goods. In any event, section 1 of the Child Trafficking and Pornography (Amendment) Act, 2004 amends the 1998 Act, by inserting section 13, which provides that:

“Nothing in this Act preventsù

(a) the giving of or compliance with a direction under section 3 of the Committees of the Houses of the Oireachtas (Compellability, Privileges and Immunities of Witnesses) Act 1997,……”

In the opinion of the Court, this provision conclusively deprives the Appellant’s argument of any merit. The argument based on suggested circularity is entirely unconvincing. At the time the Committee gave its direction, the Appellant was the undisputed owner of the computer materials. To the extent that his possession or possible possession at that time was unlawful, the matter is cured by rendering lawful the “giving” of the direction. If there were to be any problem of illegality in his taking possession of the materials, it is removed by the provision regarding “compliance.”

It remains to consider the appellant’s reliance on the exclusionary rule, in respect of which the parties made particular reference to The People (Attorney General) ûv- O’Brien and The People (Director of Public Prosecutions) ûv- Kenny.

In the particular circumstances of this case it is not pertinent to review the full ambit and effect of the exclusionary rule or the principles as set out in those cases. This case has individual features which allow the issues it raises to be resolved on its facts without reference to arguments of general application.

As already mentioned there is no doubt that the computer materials in question, when seized on foot of the search warrant, were seized unlawfully and in breach of the appellant’s constitutional rights.

As a consequence evidence related to the seized computer materials was declared inadmissible at his subsequent trial on criminal charges and he was acquitted of those charges. He cannot be prosecuted again on such charges.

The computer remains in the ownership of the appellant. In the ordinary course of events he was entitled the return of his property by reason of that ownership and in a complete vindication of the constitutional right which was breached. He did not seek to do this because, as he has stated, it contained pornographic material of children the possession of which is prohibited by law. A particular feature of this case is that the appellant, in response to the allegations of stated misbehaviour, has told the Select Committee that at no time did he knowingly subscribe to or access websites containing child pornography and that an expert retained on his behalf confirmed that there were viruses found on the disk of his computer. Such viruses are capable of manipulating the computers so as to download child pornographic images, or any other images, onto a computer without the knowledge or consent of its owner. Thus, while the appellant asserts that he was never personally responsible for access to or use of child pornography on a website, he has acknowledged and accepted that there is some child pornography to be found on his computer. Accordingly, he also adopted the position that as a consequence the Gardaí could not return it to him and he could not receive it.

It is also an exceptional feature of the situation that the inhibition in returning the computer to the actual possession of its owner stems not so much from the unlawful search and seizure of the computer but primarily, as the appellant himself acknowledges, from the unlawful nature of the material on it. The situation is analogous to one where heroin had been unlawfully seized on foot of an invalid search warrant but which could not be returned to its owner, not as a consequence of an unlawful search of premises in breach of that person’s constitutional rights, but by reason of the unlawful nature of the substance seized.

If the computer could have been and had been returned to his possession it could not be said that the exclusionary rule means it was forever immune, in all circumstances, from a lawful seizure or order for production. In the present case the order for production might be regarded as legitimately triggered, apart from any other consideration, by the appellant’s express and public reliance, in the course of the Article 35 process, on the assertion that his computer material was affected by the placing on it of unlawful material albeit which he did not want and had not sought.

As a result of the foregoing situation the appellant has maintained that the computer was neither in his power nor possession and he was therefore not bound to comply with the direction of the Select Committee.

On 1st of December, 2004, the date of the s. 3 Order, it was lawful, having regard to s. 13 of the Act of 1998 as amended, for the appellant to seek and obtain the computer, his property, from the Gardaí for the purposes of complying with the direction of the Select Committee. When the direction was made the computer was within his own “power or possession”.

That section, in enabling the Oireachtas, through a Select Committee, to require a person who has either in their possession or within their power a computer containing child pornography material to produce such material is a legitimate means of ensuring that such a Committee can fulfil their constitutional functions where those functions are legitimately concerned with such an issue.

Accordingly, the adoption of the amending Act of 2004 was not a colourable device but rather a clearly defined and lawful means by which, in the circumstances of this case, a committee of the Oireachtas, in the exercise of its constitutional powers, could require an individual to produce his own property insofar as it is lawfully available to him. Accordingly this ground of appeal must fail.

Double jeopardy
The Appellant obtained leave to apply for judicial review in part on the ground that, having been acquitted at a criminal trial, he could not, in effect, now be tried by the Houses of the Oireachtas effectively for the same offence. As already stated, the learned trial judge rejected this argument. The Appellant has included the matter in his notice of appeal, but has, in the view of the Court, rightly, not pressed the matter on appeal. The acquittal of the Appellant of the charges laid against him in the indictment means that he can never be prosecuted again in respect of those matters. The Houses of the Oireachtas are considering an entirely different matter. It is whether the Appellant has conducted himself in respect of those or very similar matters to the extent that constitutes “misbehaviour” of sufficient gravity to warrant his removal from the bench.

Conclusion
For the reasons given in this judgment, the Court will dismiss the appeal and affirm the order of the learned High Court Judge.

 

Prendiville v The Medical Council

[2007] I.E.H.C. 427

JUDGMENT of Mr. Justice Kelly delivered the 14th day of December, 2007.
Introduction
Professor Walter Prendiville (Prof Prendiville) and Dr. John Francis Murphy (Dr. Murphy) both seek to quash decisions of the Medical Council (the Council) confirming a report of the Council’s Fitness to Practise Committee (FPC) finding them guilty of professional misconduct. If necessary, they also seek to quash the report of the FPC. In the event of their applications for certiorari not being successful, they seek declaratory orders concerning the alleged unconstitutionality of certain provisions of the Medical Practitioners Act, 1978 (the Act). They also seek a declaration that those provisions of the Act are incompatible with the State’s obligations pursuant to Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms (the Convention). As these latter questions will only arise if the applicants fail to obtain certiorari on conventional grounds, consideration of them was, by agreement, postponed to await my findings on that issue.
There are many similarities between the two cases but they are not identical. Both applications for judicial review were heard together and joint submissions were made by the applicants.
Professor Prendiville
Professor Prendiville has had a distinguished medical career specialising in the field of obstetrics and gynaecology. He is an associate professor of obstetrics and gynaecology at the Royal College of Surgeons in Ireland and at the Department of Obstetrics and Gynaecology at the Coombe Women’s Hospital in Dublin. He is chairman of the Department of Gynaecology at Tallaght Hospital and is a consultant in those hospitals. He has had a major research interest in the prevention of primary post partum haemorrhage. He has published widely in this field and has twice been an advisor to the World Health Organisation and a member of its task force on the subject. He has many publications to his name.
Dr. Murphy
Dr. Murphy is a consultant obstetrician and gynaecologist at both the National Maternity Hospital and St. Vincent’s University Hospital in Dublin. He holds Fellowships of the Royal College of Physicians of Ireland and the Royal College of Obstetrics and Gynaecology. He has had a distinguished career for more than 40 years with over 50 articles to his name in peer reviewed publications. As a mark of the esteem in which he was held by his colleagues he was elected President of the Royal College of Physicians of Ireland but because of the decision of the Council in suit he felt obliged to resign from that position.
Events of November 1998
In November, 1998 the name of Dr. Michael Neary (Dr. Neary) was not well known, as it is now, to the general public. He was then a consultant obstetrician and gynaecologist at Our Lady of Lourdes Hospital in Drogheda. He had served in that capacity for many years and had an extensive public and private practice. He was a busy, hard working consultant operating a 1 in 3 rota at that hospital.
For a time both Dr. Neary and Dr. Murphy served on the Council of the Irish Hospital Consultants Association (IHCA). Dr. Murphy met him in that capacity and also at a number of medical seminars. It was his belief that Dr. Neary enjoyed a very sound professional reputation based on first hand reports which he had received from both medical colleagues and midwives attached to the Drogheda hospital and patients of his practice.
On the 3rd November, 1998 Mr. Finbar Fitzpatrick the Secretary General of the IHCA contacted Dr. Murphy. He told him that Dr. Neary had returned from leave and was about to be suspended on pay from his position as a consultant at the Drogheda hospital. That hospital had formerly been in the care of the Medical Missionaries of Mary but was taken over by the North Eastern Health Board. It was well known in medical circles that, since the time of that transfer of ownership, relations between the medical staff and that health board were very strained. Mr. Fitzpatrick told Dr. Murphy that the suspension of Dr. Neary was due to take place almost immediately notwithstanding the fact that a peer review of his practice was due to be carried out very soon by the Institute of Obstetrics and Gynaecology in Dublin (the Institute). The reason for all of this activity concerning Dr. Neary arose from a complaint, which had been made by a person who was not a patient, concerning the number of caesarean hysterectomies which he had performed over the previous few years.
Dr. Murphy took the view that the suspension of Dr. Neary (even on pay) pending the peer review of his work by the Institute would be devastating for him both personally and professionally and it seemed to Dr. Murphy that the process was unfair. Following two further telephone conversations with Mr. Fitzpatrick on the same day he agreed to assist the IHCA in the preparation of a report on Dr. Neary.
Having procured Dr. Murphy’s agreement to become involved, Mr. Fitzpatrick then contacted Prof. Prendiville and persuaded him to do likewise. A third consultant obstetrician and gynaecologist, Dr. Bernard Stuart, subsequently agreed to become involved.
The three consultants were asked to submit their report within 72 hours. This was because of Mr. Fitzpatrick’s belief that time was of the essence in the context of the health board threatening to apply to court for an order suspending Dr. Neary from his employment. It was in this atmosphere of urgency that the three consultants undertook their task.
A number of other important features concerning the task being undertaken by the three consultants must be borne in mind. First, none of them had any experience of being asked to prepare a report in these circumstances and for such purpose. Secondly, there was no template or set of rules to which they could refer. Thirdly, the report was being prepared in an industrial relations context. Finally, it was the view of the three consultants that they were to prepare interim reports solely for the use of the IHCA in its dispute with the health board.
The Meeting with Dr. Neary
Mr. Fitzpatrick arranged for Dr. Neary to come to Dublin on the evening of the 3rd November, 1998. He attended at Dr. Murphy’s house where there were present Prof. Prendiville, Dr. Murphy and Dr. Stuart. The meeting began at 7 o’clock and lasted for 4 hours.
Dr. Neary brought along photocopies of medical records of 17 patients. Dr. Neary explained that 8 of the patients had had hysterectomies carried out on an elective basis. They were not of any relevance from the point view of the preparation of the interim report. No issue turns on that.
Concentration was directed to the remaining 9 patients. Over the four hour period these cases were discussed and Dr. Neary was questioned in respect of them. He gave clear, comprehensive and coherent answers and explanations. He took the three consultants through his operating notes in respect of each of the patients. It was not possible in the time available to carry out any analysis of the other medical records, which in any event were not arranged in good order.
It was evident to the three consultants that Dr. Neary had a low threshold for carrying out peri partum hysterectomies (pph). The consultants were aware that no complaint had been made against Dr. Neary by any particular patient. They were au fait with the ethical code of the hospital which prohibited sterilisation even in situations where medical opinion was to the effect that further pregnancy would be life threatening. They also knew of the lack of availability of certain drugs, which would be readily to hand in the bigger Dublin maternity hospitals, to deal with severe post-partum haemorrhage.
They brought to Dr. Neary’s attention the fact that he had a low threshold for intervention by way of pph. Because of that, the three consultants obtained from him an undertaking not to perform any further pph without a supporting opinion from a second consultant. The purpose of this undertaking was to protect Dr. Neary’s patients pending the peer review due to be carried out by the Institute. The need for a peer review was clear and in any event had already been agreed to by Dr. Neary.
At the conclusion of the meeting Dr. Neary left, taking the copy charts with him.
Following the meeting, Prof. Prendiville, Dr. Stuart and Dr. Murphy began the preparation of their respective reports.

The Reports
The report of Prof. Prendiville is set forth in full at appendix 1 to this judgment. The report of Dr. Murphy is set forth in full at appendix 2 to this judgment. These reports speak for themselves. They supported the continuation of Dr. Neary in his work at the Drogheda hospital pending the review by the Institute. The purpose of these reports was to assist the IHCA and its legal advisors. The reports were sent by the IHCA to its solicitors, Daniel Spring and Co. who by a letter of the 6th November, 1998 sent them on a private and confidential basis to Mr. Gary Byrne solicitor of BCM Hanby Wallace, solicitors for the North Eastern Health Board. The covering letter enclosing the reports made it clear that they were being sent on the strict understanding that they were for the information of Mr. Byrne and the Chief Executive Officer of the North Eastern Health Board only and were not to be disclosed to any other parties without the permission of the authors to be obtained through Spring and Co.
The Health Board Response
Dr. Neary was not suspended from his employment at the Drogheda Hospital. He continued to work there and honoured his undertaking that he would not conduct any pph unless he obtained a second opinion confirmatory of the need for such a procedure.
The health board then commissioned Dr. Michael Maresh a consultant obstetrician and gynaecologist at St. Mary’s Hospital, Manchester in England to conduct a review of the nine cases considered in the reports of Prof. Prendiville and Dr. Murphy. Dr. Maresh was furnished with statistics relating to the rates of obstetric hysterectomy in the Drogheda hospital from 1994 to 1998 and the rates for the Dublin maternity hospitals.
Dr. Maresh produced a report dated 3rd December, 1998. He spent several weeks preparing this report. He did not meet Dr. Neary in the course of its preparation. In evidence, which he gave to the FPC, he said that he had approximately 1200 pages of charts before him and that it took at least an hour to collate each of the 9 sets of notes and another four to six hours to draw his conclusions in respect of each case. He came to a different conclusion to Prof. Prendiville and Dr. Murphy concerning Dr. Neary. His report is set forth at Appendix 3 to this judgment. I have removed the names of patients from the reports in all these appendices to preserve patient anonymity.
Following Dr. Maresh’s report, Dr. Neary was suspended from employment on December 11th, 1998. Thereafter the Council became involved. It sought his suspension from the practice of medicine under
s. 51 of the Act and such an order was made by this court on 5th February, 1999. Dr. Neary resigned from the practice of medicine in June 1999 and has not practised since. A lengthy FPC hearing on his conduct took place and he was struck off the medical register in September 2003. Dr. Stuart, the co-author of Prof. Prendiville’s report gave evidence on Dr. Neary’s behalf before the FPC. The Chairman of the FPC thanked him for that evidence which was described as most helpful.
The Government Response
Such was the level of concern at what had occurred at the Drogheda hospital that the Government decided on the 6th April, 2004 to set up a non-statutory private inquiry (the Inquiry) into the events at the hospital. Of particular concern was the rate of pph at the Drogheda hospital and Dr. Neary’s practice in that regard. The Inquiry also covered whether his practice was commented on or acted upon by consultants or other medical staff or the management of the hospital. The Inquiry was conducted by Judge Harding Clark S.C. (now Harding Clark J.). It reported in January 2006.
The Inquiry’s Report
Two particular statements contained in para. 1.8 of the Introduction and Overview to the Inquiry’s report have given rise to great concern and a sense of an injustice having been done to them on the part of Prof. Prendiville and Dr. Murphy. These statements also triggered the events which have given rise to this application for judicial review.
In dealing with the reports prepared by Prof. Prendiville and Dr. Murphy on Dr. Neary the Inquiry said this at para. 1.8:-
“The Inquiry accepts that permitting Dr. Neary to work pending the review by the Institute of Obstetricians and Gynaecologists may well have been the intention of his union advisors and his three colleagues in presenting their report. The report may have been prepared for limited viewing but the language, which is not qualified, is regrettable. I believe that the three obstetricians involved have had serious regrets for their part in producing these reports, which were motivated by compassion and collegiality. They ought to have been alarmed that one obstetrician carried out seventeen caesarean hysterectomies in three years in a middle sized Maternity Unit notwithstanding the lack of tubal ligations, a vascular surgeon or the use of prostaglandins.
As a result of their report, Dr. Neary returned to work – subject to restrictions – and the health board sought the views of an independent specialist outside the jurisdiction.”
Neither applicant accepts the characterisation of the language of their reports as being “not qualified”. Neither do they accept that in producing these reports they were motivated by compassion and collegiality.
It is clear that the judge, prior to finalising her report, followed a course which is now well established as a matter of fair procedures by tribunals of inquiry in cases such as this one. She furnished to persons to be criticised in the report a draft of that criticism in advance of its finalisation and publication. This was to enable such persons to make submissions and observations on that criticism before the final report was produced.
Whilst that procedure was apparently followed for everyone else, it was not followed in the case of either Prof. Prendiville or Dr. Murphy. They are aggrieved that they were so treated.
The matter is neatly summarized by Prof. Prendiville at para. 15 of his affidavit sworn on the 8th March, 2007 where he says:-
“I am afraid that I cannot agree with Ms. Justice Harding Clark that the report was prepared out of compassion or collegiality. It was not. It was prepared on the basis of the information made available to me and I had no reason to doubt the veracity of the account given to me by Dr. Neary. Furthermore, I have no recollection of ever expressing regret for my role in preparing the report. These were not observations that I had an opportunity to make to Ms. Justice Harding Clark, as, unlike other persons criticised in her report, I was not provided with a copy of her draft report. Otherwise, I would certainly have made my position on the contents of para. 1.8 of her report known to Ms. Justice Harding Clark.”
Neither the report of Harding Clark J. nor the procedures followed by her pertaining to the applicants fall for consideration in this judicial review. It is however clear that both applicants believe they were unfairly dealt with by the Inquiry and as para. 1.8 of the report was the genesis for the matters that I have to consider, their sense of injustice has not diminished as events have developed.

The Medical Council Involvement
As a result of the findings of the Inquiry, a group known as Patient Focus made a complaint to the FPC concerning the three consultants who had prepared interim reports into the conduct of Dr. Neary. The Patient Focus complaint was dated the 20th March, 2006. On foot of it, the Council wrote to the applicants informing them of the complaint and inviting observations from them. Both applicants responded.
Subsequent to the making of the complaint by Patient Focus the Council itself considered the Inquiry’s report. It decided to apply to the FPC for an inquiry into the conduct of the applicants. That decision was made on the 21st March, 2006. The decision was the subject of a press statement issued by the President of the Council which announced the application for an inquiry and inter alia emphasised the “ethical imperative there is on all Medical Practitioners to deal with underperforming colleagues rapidly and fairly in a way that always keeps the safety of patients as the prime goal”. Although that press statement was published on the 21st March, 2006 it was not until the 2nd May, 2006 that any official notification was sent to the applicants concerning the decision of the Council. On that occasion, they were notified of the Council’s complaint and were again asked for their observations and they responded.
On the 29th June, 2006 the FPC considered the complaint of the Council and concluded that there was a prima facie case for holding an inquiry under Part V of the Act. At a further meeting of the FPC held on 25th July, 2006 it considered that a prima facie case for the holding of an inquiry under Part V of the Act was made out in respect of the Patient Focus complaint.
As a result of these decisions the Registrar of the Council prepared Notices of Inquiry setting out allegations of professional misconduct against Prof. Prendiville and Dr. Murphy. These notices are appendices 4 and 5 to this judgment.

The FPC Hearing
The hearing of the allegations against the applicants took place before the FPC on November 29th and 30th and December 1st and 20th, 2006. The FPC was chaired by Mr. Brendan Healy. He sat with Dr. Miriam Hogan, Professor Arthur Tanner, Professor Anthony Cunningham and Dr. Deirdre Madden. All but Dr. Madden are registered medical practitioners. Mr. Kevin Cross SC was legal assessor to the FPC. Both applicants were represented by Senior Counsel.
Reports were prepared and evidence was lead from Dr. Maresh and Dr. Peter McKenna on behalf of the Registrar of the Council who prosecuted the complaints. Mr. Finbar Fitzpatrick likewise gave evidence.
Prof. Prendiville, Dr. Murphy and Dr. Stuart gave evidence on their own behalf. Evidence from Dr. Patricia Crowley and Dr. Peter Lenehan was led on behalf of Prof. Prendiville and Dr. Stuart. Dr. Malachy Coughlan gave evidence on behalf of Dr. Murphy.
By letters of the 15th January, 2007, each applicant was provided with a report of the FPC purportedly prepared pursuant to s. 45(3)(c) of the Act. The report was dated the 12th January, 2007. It is appendix 6 to this judgment.
In the case of Prof. Prendiville of the twelve allegations of professional misconduct made against him, the FPC found by a majority that allegations 1, 3, 5, 9, 10 and 11 had been proved. It found that allegations 1, 3, 5, 10 and 11 as proved did not amount to professional misconduct. By a majority, it found that allegation 9 as proved did amount to “professional misconduct as defined by Keane J. in O’Laoire v. The Medical Council being conduct in connection with his profession in which the medical practitioner has seriously fallen short of the standards of conduct expected among medical practitioners and not in a sense of any ‘infamous’ or ‘disgraceful’ conduct or any conduct involving any degree of moral turpitude, fraud or dishonesty.”
In the case of Dr. Murphy, the FPC found by a majority that allegations 1, 3, 5, 8, 9 and 10 were proved. It found that allegations 1, 3 and 5 as proved did not amount to professional misconduct. By a majority it found that allegations 8, 9 and 10 as proved did amount to professional misconduct. The FPC used precisely the same formula in describing the professional misconduct on the part of Dr. Murphy as it did in respect of Prof. Prendiville.
In the case of Prof. Prendiville, the FPC recommended that he be advised that should he have any reservations in any future report undertaken then those reservations should be included in his report. (The actual formulation of this recommendation in the FPC report contains an error in that it refers to Dr. Stuart but no point is taken in respect of that).
In the case of Dr. Murphy, the recommendation to the Council was that he should be admonished in relation to his professional conduct.
The letter accompanying the report of the FPC invited both applicants to attend before the Council on the 6th February, 2007, to “afford you the opportunity to make a submission to the Council before it reaches a decision in accordance with part V of the Medical Practitioners Act 1978”.
The Meeting of the Council
The meeting of the Council took place on the 6th February, 2007 and both applicants were present at it and were represented by counsel. Twenty-two members of the Council were present. All five members of the FPC who heard the complaints against the applicants were present and participated in the Council’s deliberations. Professor Arthur Tanner’s name does not appear on the transcript but he was in fact at the Council meeting.
At the outset of the meeting it became clear that the members of the Council had not been provided with a copy of the reports which had been prepared by Professor Prendiville and Dr. Murphy in November, 1998 and which were the subject of the FPC inquiry. These reports were only then furnished to the Council members. The explanation for the fact that the Council members did not have the reports was given by the President of the Council where he said:-
“Normally the Council just receive the transcripts and do not get the exhibits, just receive the report of the Inquiry team (sic) so the Council does not have copies of the original reports. I think the basis of that is that the Council has to accept the report of the inquiry team and then to listen to submissions and decide as to sanction.” (my emphasis)
I read the reference to “inquiry team” as meaning the FPC.
Thus, at the very outset of the Council meeting, the President was clearly of the view that the meeting was confined to the question of sanction and had to accept the findings of the FPC on professional misconduct.
That view was confirmed by a further comment from the President of the Council made shortly after the one which I have just quoted and before any submissions had been heard from counsel on behalf of either applicant. The comment came in circumstances where counsel for Professor Prendiville, having circulated the reports, indicated that it would be an injustice to reach any conclusion of any kind without having very carefully considered them. He invited the Council not to rush to judgment without considering everything that was relevant. The President said:-
“Thank you Mr. Butler. First of all in relation to your last remark, we will not be rushing to judgment. The inquiry team (sic) has made a decision and we will be accepting the inquiry team’s decision.” (my emphasis)
These observations of the President make it clear as to what his state of mind was concerning the exercise which was being undertaken by the Council on the afternoon on the 6th February, 2007. The Council was to consider only the question of what sanction, if any, was to be visited on the applicants.
It is clear from the submissions made by counsel on behalf of the applicants on that occasion that they did not see the role of the Council as being confined only to the question of sanction. Rather they made submissions to the effect that the Council ought, for a variety of reasons advanced, to refuse to accept the substantive findings of the FPC.
Subsequent to making their submissions counsel on behalf of both applicants withdrew from the meeting to allow the Council members to deliberate.
There remained in the room two persons who had been present throughout the meeting. They were the Registrar of the Council (in whose name the complaints against the applicants had been prosecuted before the FPC) and an in-house legal advisor Mr. William Kennedy. During the course of the meeting, both of these gentlemen spoke privately to the President of the Council. As they did not withdraw at the same time as the legal teams representing the applicants, neither Professor Prendiville nor Dr. Murphy were aware of what transpired thereafter. In particular, they were not aware of whether any legal advice was sought by, or given to, the Council on two important matters which had been the subject of submissions on their behalf. They were:
a) the obligation of the Council to consider submissions and, if appropriate, to refuse to accept the FPC findings on guilt (the applicants argued that such a course was appropriate); and
b) the proper definition of professional misconduct.
It was not until the applicants had sight of the replying affidavit sworn by the President of the Council in these proceedings that the applicants became aware of what actually happened after they and their lawyers withdrew at the conclusion of their submissions to the Council. It is dealt with in para. 44 of the President’s affidavit sworn in Professor Prendiville’s proceedings. There Dr. Hillery says:
“As appears from the transcript, the applicant’s counsel urged the first respondent to reject and effectively overturn the decision of the Fitness to Practise Committee. After a detailed discussion, the meeting adjourned, and the Vice President of the respondent Dr. Colm Quigley and I met with the registrar of the first respondent, Mr. John P. Lamont, and the first respondent’s in house legal advisor, Mr. William Kennedy, to discuss the suggestion made by the applicant’s counsel that the first respondent could reject the findings of the Fitness to Practise Committee. I submit that there is nothing improper about meeting with the first respondent’s officers in this way, and there was no want of fair procedures in the fact that the applicant’s lawyers were not part of this meeting. At the meeting, we discussed the suggestion made by the applicant’s counsel, and were advised by Mr. Lamont and Mr. Kennedy that the function of the first respondent was to consider the report of the Fitness to Practise Committee, and decide as to sanction and publication. The meeting of the first respondent then reconvened, and following some further discussion, it was decided that no sanction would be imposed on the applicant(s) but that the report of the Fitness to Practise Committee would be published.”
A similar paragraph is sworn in the replying affidavit to Dr. Murphy’s judicial review application.
The Council reconvened at the conclusion of its deliberations and announced through its President that it had “decided to accept the verdict (sic) of the Fitness to Practise Committee in each case but to impose no sanction in any case”. He also announced that it had decided to publish this decision by way of a press release and to make available the transcripts of the inquiry on the Council website as soon as arrangements could be made to suitably “anonymise” (sic) the transcripts as regard patient information.
The press release that was issued through a public relations company was extraordinary. It recorded the decision to “accept the findings of professional misconduct” against the applicants but did not record the decision of the Council not to impose any sanction against them. It is quite clear that the Council took the view that it could do nothing other than accept the FPC findings on all but penalty. Why the statement should record the decision on which the Council had, according to itself, no discretion and not record the only issue on which it had discretion and which was favourable to the applicants is bizarre. It was very unfair to the applicants who were entitled to expect better from the Council.
Effect of Council decision
A finding of professional misconduct against any professional person is very serious. It has had profound consequences for the applicants in the present case.
Prof. Prendiville, at paragraph 33 of his grounding affidavit, gives the following uncontroverted testimony.
“I am distressed and embarrassed by the FPC finding and the respondent’s decision, which I believe to be unwarranted, and by the extent of the publicity surrounding it. I am distressed not only for myself but also for my family. In particular, my family is upset at the calls made in certain quarters that I should not be permitted to practise as a doctor at all. I have dedicated my professional life to the care of pregnant women for more than three decades now. While I readily acknowledge the deep hurt and trauma experienced by the women represented by, for example, Patient Focus and their families, I nonetheless consider the finding of professional misconduct made against me by the Medical Council to be unfounded and irrational. The effects on my professional reputation and my career of the respondents action in finding me guilty of professional misconduct will be profound and longstanding. I have been described in the press and in the Oireachtas as a disgrace to the medical profession.”
That affidavit was sworn on the 8th March, 2007.
Prof. Prendiville’s forebodings proved to be correct. In a subsequent affidavit sworn by him on the 18th July, 2007 he outlined what he described as the “identifiable adverse effects” of the decision in suit upon him. On the 20th February, 2007 the Royal College of Surgeons in Ireland wrote to him indicating that his continued involvement in its teaching programmes would need to be reviewed in the light of the decision of the Council. He requested that any such review should await the outcome of these proceedings and the college agreed to do so. He says that his continued involvement in the teaching programme of the Royal College of Surgeons in Ireland is fundamental to his position as an associate professor.
He was also a member of the most recent Irish Cervical Screening Committee having served on a number of such committees in the past. He has been asked by the chairman of the committee to consider his position as a committee member. He did not consider it appropriate to resign as a member of the committee. Subsequently, responsibility for the Irish Cervical Screening Programme was transferred to Breast Check. He was not invited to become a member of the newly constituted committee.
The Irish Cervical Screening Programme recently advertised for the position of lead colposcopist/chair of the colposcopy quality assurance committee. He applied for that position. However the chief executive officer of that body telephoned him to say that he would not be appointed to the position and that the reason for so doing was the decision of the Council in suit.
As part of Prof. Prendiville’s continued involvement in national and international postgraduate education he has been running postgraduate clinical skills training courses for the last 15 years. As the technical demand of surgical training increased, he felt it was necessary to set up a national clinical skills centre. To do that, he sought and obtained funding from the Royal College of Surgeons in Ireland, the Institute, the Coombe Hospital, the Health Service Executive and the Postgraduate Medical and Dental Boards. The centre was opened in late June and, as it was he who had proposed and then established it, he became its foundation director. On the 23rd June of this year his involvement with the centre was the subject of an editorial and a front page article in the Examiner newspaper. These articles made reference to the views expressed in certain quarters that he should consider whether he and Dr. Murphy are fit to continue teaching medical students. The newspaper concluded that it should be asked why he was appointed to the position in advance of the determination of this court.
In the case of Dr. Murphy he, in his grounding affidavit said:
“The effects on my professional reputation of a finding of professional misconduct (however defined) have caused me profound professional and personal embarrassment, and this will endure for the rest of my life. It will mean that for the residue of my professional career, I will be operating under a cloud of suspicion. It will mean that I will be deemed unworthy to offer professional opinion on a medico legal matter in court, and of course I will be unable to furnish any further publications for peer review, or address any seminars. As this honourable court will appreciate, these tasks are undertaken by members of the profession for the enhancement of the profession, and not for reasons of vanity or otherwise.”
In a subsequent affidavit sworn by him on the 20th July, 2007 he said as follows:-
“At the time of the inquiry conducted by the respondent I had been elected president of the Royal College of Physicians of Ireland, perhaps the highest honorary position in medicine in the country. As a direct result of the decision of the respondent, I felt it necessary to resign this position which was personally humiliating and upsetting for both myself and my family. It is my belief that I will not be asked to sit on important boards involving my profession or to chair meetings with my peers, nor do I believe that I will be requested to offer a medico legal opinion in court proceedings, so long as the decision of the respondent remains. Quite clearly, this will have a profound effect on my professional reputation and standing.
I say that in addition to the foregoing, the media attention since the first announcement of an inquiry into three un-named obstetricians has been huge and intrusive. I say that I work in a highly personal speciality where reputation is of the utmost importance. As a result of my involvement in this inquiry I believe that I have been the subject of extensive comment by patients, staff and the public in general. The decision of the respondent has had a highly corrosive effect on both myself and my family, and has also affected my relationship with friends and colleagues. In my view, the decision has had the effect of negating much of the effort and work I have been engaged in in my profession over the past four decades.”
In his replying affidavit the President of the Council asserts that in circumstances where a decision not to impose a sanction of erasure or suspension or attachment of conditions was arrived at, the right of the applicants to practice medicine has not in any way been infringed. It is of course true that there is no legal restriction on them but such an approach is highly artificial and takes no account of the practical consequences of the findings upon them and their professional reputations. There can be no doubt that they have sustained considerable damage to their standing, reputation and the practise of their profession.
In these circumstances, it is hardly surprising that the applicants sought to appeal the decision of the Council.
The Appeal
As the applicants were dissatisfied with the decision of the Council, they sought to appeal the decision to this court in purported compliance with the provisions of Part V of the Act.
The applicants were met with an objection on the part of the Council to the effect that no such appeal lies to the court having regard to the wording of sections 46, 47 and 48 of the Act.
In short, those statutory provisions only provide for an application being made for the cancellation of a decision of the Council in circumstances where it has decided to erase or suspend the name of a medical practitioner from the register or to attach conditions to the retention of that person’s name in the register. In circumstances where it decides to advise, admonish or censure the medical practitioner or to impose no penalty (as in the present case) no appeal on the merits lies to this court.
The applicants ultimately accepted this to be the position and consequently applied for judicial review. Were the position otherwise it is clear that this court could consider the Council’s case against the applicants on its merits as was done most recently by Finnegan P. in O’Connor v. Medical Council (17th July, 2007) where that judge cancelled the decision and findings of professional misconduct made against the appellant doctor.
Quite clearly judicial review was very much a “second choice” on the applicants part because of its narrower remit and the inability of the court to address the substantive merits of their case.
Judicial Review
The applicants complain that the Council misdirected itself as to its jurisdiction and acted ultra vires in following the legal advice tendered to it to the effect that it was obliged to confirm the findings of the FPC and confine itself solely to the question of penalty. Not merely was the legal advice which was offered incorrect but the procedure which was followed in giving such advice was defective, they say.
This is not the only procedural objection which is taken. It is contended that the Council was wrong in law in permitting members of the FPC who adjudicated upon the complaint against the applicants to sit as members of the Council which considered the findings of that FPC. Furthermore, it is alleged that the Council was guilty of an illegality in failing to provide any reasons for its decision.
Complaint is also made that an incorrect standard of professional misconduct was applied by the FPC and the Council. Criticism is also made of the FPC for the paucity of information or reasoning in its report.
Finally it is said that both the FPC in its findings and the decision of the Council was unreasonable and irrational having regard in particular to the evidence or indeed lack of it to support such findings.
I must now turn to a consideration of these arguments. Before doing so, it is necessary that I sketch out the statutory scheme insofar as it is relevant to them.
The Act
In its long title the Act describes itself as being one to provide for the setting up of a Council known as the Medical Council which is to provide for the registration and control of persons engaged in the practice of medicine and to provide for other matters relating to the practice of medicine and the persons engaged in such practice. It consists of 69 sections divided up into six parts together with four schedules.
It is Part II of the Act which sets up the Council. It is constituted as a body corporate with perpetual succession and is, subject to the provisions of the Act, entitled to regulate its own procedure (see section 6).
Section 9 of the Act provides that the Council is to consist of 25 members appointed in the manner prescribed by that section. Section 13 of the Act deals with committees of the Council. It provides as follows:-
“13. – (1) The Council may, subject to the subsequent provisions of this section, from time to time establish committees to perform such, if any, functions of the Council as, in the opinion of the Council, may be better or more conveniently performed by a committee, and are assigned to a committee by the Council.
(2) In particular and without prejudice to the generality of subsection (1) of this section, the Council shall-
(a) establish a committee to act in relation to its functions pursuant to part IV of this Act, and
(b) establish a committee to act in relation to its functions pursuant to part V of this Act.
(3) A committee established under this section, other than the committee referred to in subsection (2)(b) of this section may, if the Council thinks fit, include in its membership persons who are not members of the Council.
(4) The chairman of every committee established under this section shall be a member of the Council provided that in the case of the committee referred to in subsection (2)(b) of this section the chairman shall be a member of the Council other than the President or the Vice-President of the Council.
(5) The committee established under subsection (2)(a) of this section shall include in its membership each person appointed to the Council pursuant to section 9(1)(a) of this Act.
(6) Every member of the committee referred to in subsection (2)(b) of this section shall be a member of the Council and –
a. a majority of the members of such committee shall be persons who have been appointed by election to the Council and
b. at least one member of such committee shall be a person other than a registered medical practitioner who has been appointed to the Council by the Minister pursuant to section 9(1)(g) of this Act.
(7) The acts of a committee established under this section shall be subject to confirmation by the Council unless the Council at any time, dispenses with the necessity for such confirmation.
(8) The Council may, subject to the provisions of this Act, regulate the procedure of committees established under this section, but, subject to any such regulation, committees established under this section may regulate their own procedure.”
It is to be noted that the Council is obliged to set up a committee in relation to its functions pursuant to part V of the Act. That committee is given the title of the “Fitness to Practise Committee” pursuant to s. 2 of the Act.
Part V of the Act deals with fitness to practise. It consists of 11 sections running from sections 45 to 55 of the Act inclusive.
Section 45 provides that the Council or any person may apply to the FPC for an inquiry into the conduct of a registered medical practitioner on the grounds of his alleged professional misconduct or his fitness to engage in the practice of medicine by reason of physical or mental disability. Such an application must, subject to the provisions of the Act, be considered by the FPC (see section 45(1)).
Section 45(2) provides as follows:-
“Where an application is made under this section and the Fitness to Practise Committee, after consideration of the application, is of opinion that there is not sufficient cause to warrant the holding of an inquiry, it shall so inform the Council and the Council, having considered the matter, may decide that no further action shall be taken in relation to the matter and shall so inform the Committee and the applicant, or it may direct the Committee to hold an inquiry into the matter in accordance with the provisions of this section.”
Subsection (3) reads:-
“Where an application for an inquiry is made under this section and the Fitness to Practise Committee, after consideration of the application, is either of opinion that there is a prima facie case for holding the inquiry or has been given a direction by the Council pursuant to subsection (2) of the section to hold the inquiry, the following shall have effect
(a) the Committee shall proceed to hold the inquiry
(b) the Registrar, or any other person with leave of the Fitness to Practise Committee, shall present to the Committee the evidence of alleged professional misconduct or unfitness to practise by reason of physical or mental disability, as the case may be,
(c) on completion of the inquiry, the Committee shall embody its findings in a report to the Council specifying therein the nature of the application and the evidence laid before it and any other matters in relation to the registered medical practitioner which it may think fit to report including its opinion, having regard to the contents of the report, as to –
(i) the alleged professional misconduct of the registered practitioner or
(ii) the fitness or otherwise of that practitioner to engage in the practice of medicine by reason of his alleged physical or mental disability
as the case may be.
Subsection (4) reads:-
“When it is proposed to hold an inquiry under subsection (3) of this section the person who is the subject of the inquiry shall be given notice in writing by the Registrar sent by pre-paid post to the address of that person as stated in the register of the nature of the evidence proposed to be considered at the inquiry and that person and any person representing him shall be given the opportunity of being present at the hearing.
(5) The findings of the Fitness to Practise Committee on any matter referred to it and the decision of the Council on any report made to it by the Fitness to Practise Committee shall not be made public without the consent of the person who has been the subject of the inquiry before the Fitness to Practise Committee unless such person has been found, as a result of such inquiry, to be –
(a) guilty of professional misconduct, or
(b) unfit to engage in the practice of medicine because of physical or mental disability,
as the case may be.”
Subsection 6 invests the FPC with certain powers, rights and privileges vested in the High Court. Subsection 7 makes it an offence for a person not to respond to a summons issued by the FPC. Subsection 8 provides for immunities and privileges for witnesses before the FPC identical to those which apply to witnesses before this court.
Section 46 provides that where a registered medical practitioner has been found by the FPC, on the basis of an inquiry and report pursuant to s. 45, to be guilty of professional misconduct or to be unfit to engage in the practice of medicine because of physical or mental disability, the Council may decide that the name of such person should be erased from the register or that, during a period of specified duration, registration of his name in the register should not have effect. When such a decision is made by the Council it is obliged to send notice of it to the medical practitioner to whom the decision relates. That person then has a period of 21 days within which to apply to this court for cancellation of the decision and if he so applies this court is empowered to either cancel the decision or declare that it was proper for the Council to make a decision under the section in relation to such person and either direct the Council to erase his name from the register or direct that during a specified period the registration of his name in the register shall not have effect.
Under subs. (4) it is provided that in the case of a person to whom a decision of the Council under the section relates not applying to the High Court within time for cancellation of the decision then the Council is entitled to apply ex-parte for confirmation of such decision. Upon such an application, this court is obliged, unless it sees good reason to the contrary, to confirm the decision and direct erasure or suspension from the register.
The decision of the High Court on an application under s. 46 is final save that, by leave of this court or the Supreme Court, an appeal by the Council or the person concerned from the decision shall lie to the Supreme Court on a specified question of law.
Under subs. (7) the name of any person which has been erased from the register may be restored to it by direction of the Council but not otherwise. Upon such restoration the Council may attach such conditions as it thinks fit.
Under subs. (9) it is provided:-
“On the hearing of an application under this section, the High Court may, if it thinks proper to do so, admit and have regard to evidence of any person of standing in the medical profession as to what is professional misconduct.”
Section 47 entitles the Council, following an inquiry and report by the FPC pursuant to s. 45, to decide to attach conditions to the retention in any register maintained under the Act of a person whose name is entered on such register. The practitioner must be given notice of this and again is provided with a period of 21 days in which to apply to this court for cancellation of the decision. The High Court is empowered, on the hearing of such application, to either cancel the decision or declare that it was proper for the Council to make it. If the court considers it proper, it can direct the Council to attach such conditions as the court thinks fit to the retention of the name of such person in any register maintained under the Act. Again, as under s. 46, if a person to whom a decision of the Council under s. 47 relates does not apply to the High Court for cancellation of the decision the Council may apply ex-parte to the court for confirmation of it.
Section 48 provides that the Council, following an inquiry and report by the FPC pursuant to s. 45 into the conduct of a person on the register may, on receipt of the report of the FPC, if it so thinks fit, advise, admonish or censure such person in relation to his professional conduct. Under s. 48(2) it is provided that the powers conferred by subs. (1) may be exercised either in addition to or in substitution for any of the powers conferred by s. 46, 47 and 49 of the Act.
Section 49 deals with the topic of erasure from the register of persons convicted of indictable offences. It is the Council which makes such a decision but a person affected by it has a right to apply to this court for its cancellation. The court may cancel or confirm the decision. Section 53 deals with erasure or suspension from the register of medical specialists. Section 54 obliges the Council to notify the Minister of the erasure, restoration, suspension or termination of a period of suspension or the attachment of conditions to the retention of the name of any person on a register maintained under the Act. Section 55 deals with the restoration to the register of the name of a person removed from it.
It is the above sections which I have either summarised or set forth in full which fall for consideration in this judgment.
The respective roles of the FPC and the Council
The applicants contend that the Council acted ultra vires in considering itself bound to confirm the substantive decision of the FPC. They do not contend that the Council was obliged to conduct a rehearing of the matter that had been rehearsed extensively before the FPC. Rather they argue that it ought to have considered the arguments and submissions made by them as to why the majority finding of the FPC was flawed and ought not to be confirmed. It is clear from the evidence that the President of the Council at the outset was of the view that it could not so conduct itself. The legal advice which was proffered to the Council was to like effect and it is clear that the Council did not consider that it was open to it to adopt such a course. Rather it confined itself to a consideration of what penalty, if any, ought to be imposed having regard to the findings on the merits made by the FPC.
In so behaving, the applicants contend that the Council behaved unlawfully. By such behaviour, the applicants were denied the opportunity of having any aspect of the merits of their cases examined by the Council. As no appeal lies to this Court, the merits of the applicants’ cases were considered by the FPC and it alone.
The nub of the applicants’ case turns upon the provisions of
s. 13(7) of the Act. It provides that the acts of a committee established under the section “shall be subject to confirmation by the Council unless the Council at any time, dispenses with the necessity for such confirmation”.
It is clears that the FPC is a committee established under the section. It is established under s. 13(2)(b). Prima facie therefore, the acts of the FPC are subject to confirmation by the Council. There is no evidence that the Council ever at any time dispensed with the necessity for such confirmation. Indeed if it had done so, I would have expected it to have figured in the forefront of the response, not merely to this application, but during the hearing before the Council.
The applicants argue that if the decision of the FPC is subject to confirmation by the Council under s. 13(7) that must mean that it can refuse confirmation. It may confirm the decision or, at its option, refuse to do so. In so doing it must exercise an independent judgment. It is not a mere cypher or rubber stamp. It must be open to, and consider on their merits, submissions made (such as was the case here) as to why it ought not to confirm a decision of the FPC. This does not involve it in having to re-hear evidence or hear new evidence. But it does involve it in having to consider arguments as to why, on the basis of the evidence tendered, the FPC ought not to have found as it did. In the present case the Council shut out any such possibility, regarded itself as bound by the findings of guilt made by the FPC and concentrated solely on the question of what penalty, if any, should be visited upon the applicants.
The Council argues that it was perfectly correct in adopting this approach. It says that that is so by reference to certain of the statutory provisions and a body of case law. The Council contends that the applicants’ argument can only have validity if one considers the provisions of s. 13 and in particular subs. (7) thereof in isolation from the rest of the Act and in particular the provisions of ss. 45 to 48 thereof. The Council contends that those sections set out in detail the roles of the Registrar, the FPC and the Council.
That is of course true but nowhere in these sections is there any suggestion that the provisions of s. 13(7) are not applicable to the FPC. Indeed, the opposite is the case. The sections make it clear that findings of the FPC are at all times subject to a report being made by it to the Council and the Council making a decision on such findings. I find nothing in Part V of the Act to suggest that the FPC is anything other than a committee of the Council and as such subject to the provisions of
s. 13(7) of the Act.
The high water mark of the case on statutory construction which is made by the Council is to be found in the specific provisions of s. 45(2). The Council argues that if the applicants are correct those statutory provisions would be unnecessary. Section 45(2) deals with a situation where the FPC forms the opinion that there is not sufficient cause to warrant the holding of an inquiry. In such circumstances it has to so inform the Council. The Council, having considered the matter, may decide that no further action shall be taken in relation to it or may direct the FPC to hold an inquiry into the matter in accordance with the provisions of s. 45.
It seems to me that s. 45(2) has as its principal object the conferring of an additional power on the Council in circumstances where it differs from the view of the FPC that there was insufficient cause to warrant the holding of an inquiry. The sub-section confers a power of remittal on the Council to send the matter back to the FPC with a direction to hold an inquiry. No such power is given by s. 13(7) which requires the Council either to confirm or not a decision of the FPC. Section 13(7) contains no entitlement to remit a matter to the FPC and so such is provided for expressly in s. 45(2). While s. 45(2) does say that the Council may in effect confirm the decision of the FPC by deciding that no further action shall be taken in relation to the matter, that is doing no more than describing the entitlement which is contained in s. 13(7) i.e. to confirm the FPC report. It is not strictly necessary to do so but it is reasonable that the legislature would elucidate the full entitlements of the Council in circumstances where an additional entitlement to remit to the FPC is being created.
The Council also argues that the applicants’ approach is completely at variance with the case law which has developed on the interpretation of the Act. In a moment I will consider the cases relied upon by the Council. It is, however, important that I should point out that it appears that this is the first challenge of its type that has been made to the procedures followed by the Council in the almost 30 years since Act came into operation. A number of arguments are made which have not figured in previous cases.
The first case relied upon by the Council is the decision of Finlay P. (as he then was) in M. v. the Medical Council [1984] I.R. 485. The passage from that decision cited in support of the Council’s argument reads as follows (at p. 494):
“…On completion of the inquiry, the Committee report to the Council specifying the nature of the application, the evidence given before them and any other matters in relation to the registered medical practitioner which they may think fit to report as regards the alleged professional misconduct, and the fitness or otherwise of the practitioner to engage in the practice of medicine.

Where the practitioner has been found by the Committee to be guilty of professional misconduct, or to be unfit to engage in the practice of medicine, the Council may decide that his name be erased from the register or that the registration of his name in the register should not have effect during a specified period: section 46.

Following an inquiry and report by the Committee, and, apparently, irrespective of the precise findings of that inquiry and report the Council may:
(a) attach such conditions as it thinks fit for the retention in the register of a person whose name is entered therein (s. 47) or,
(b) advise, admonish or censure such person in relation to his professional misconduct: section 48.
In the event of a decision by the Council under s. 46 of the Act of 1978 that the name of a person should be erased from the register, or that the effect of his registration should be suspended, that person may apply to the High Court within twenty-one days to cancel the decision and, upon such application, the High Court may either –
(a) cancel the decision, or
(b) direct the Council to erase that person’s name from the register, or
(c) direct that during a specified period the registration in the register shall not have effect.
In the event of a decision by the Council under s. 47 to attach conditions to the retention of the registration of the person in the register, that person may apply within twenty-one days for the cancellation of that decision and the High Court on the application has jurisdiction:-
(a) to cancel the decision, or
(b) to direct the Council to attach such conditions as the court thinks fit to the retention of the name of the person in the register.
In the event of a decision by the Council to advise, admonish or censure under s. 48, the practitioner has no right of application to the High Court.”
For the most part this quotation is a recitation by the judge of the statutory provisions with little or no comment on them. The court was not called upon to consider the argument which is before me in this case. In fact s. 13(7) did not figure in the case at all. Accordingly, I find little, if anything, in this quotation or indeed any other aspects of the decision in M. v. The Medical Council which is of assistance.
The next case relied upon is the decision of Barrington J. in the Supreme Court in Barry v. The Medical Council [1998] 3 IR 368.
The principal passage cited from that decision is as follows:
“From the foregoing it can be seen that disciplinary proceedings against a doctor which run the full course pass through at least three major phases. First, is the procedure before the Fitness to Practise Committee, second, is the procedure before the Council and third, is the procedure before the High Court.
In the first phase, all the Fitness to Practise Committee can do is to hold an inquiry, make findings of fact and possibly make recommendations. In the second phase the Council may decide that the doctor should be removed from the register but it cannot remove him from the register itself. In the third phase, either the doctor can apply to the High Court for cancellation of the Council’s decision or, if the doctor makes no such application within twenty-one days from the date of the said decision, the Council may apply ex parte for confirmation of its decision.”
Again in this case neither this court nor the Supreme Court was asked to consider arguments of the type that I am dealing with here. The passage quoted contains a broad description of the three-fold nature of disciplinary proceedings that can be taken against a registered medical practitioner. Those statements are not inconsistent with what is argued on behalf of the applicants in this case. It is of course true that Barrington J. says that “in the second phase the Council may decide that the doctor should be removed from the register but it cannot remove him from the register itself”. That might suggest that the court decided that the sole power of the Council in the second phase was to decide on the question of penalty. But the judge was not asked to and did not purport to deal with an argument based on the provisions of s. 13(7). I do not, therefore, read his decision as touching upon the point that I am called upon to deal with here.
The third decision relied on is my own in Casey v. The Medical Council [1999] 2 IR 534. In that case I had to consider an argument which was made to the effect that by imposing conditions or admonishing a practitioner under the provisions of ss. 47 and 48 of the Act in circumstances where there had been no finding of professional misconduct, the Council was in effect reversing decisions of the FPC. The passage quoted from my judgment is as follows:
“There remains to be dealt with the contention that by utilising s. 47 and 48 the Council is effectively reversing the finding of the Committee which in the instant case was favourable to the applicant. I cannot accept that there is any validity in this view. The finding of the Committee on the complaint made against the applicant stands. The case was not made out against him and the finding is in his favour. Nothing that the Medical Council or this Court can do on an application by either side under s. 47 can alter that situation There is, therefore, no element of double jeopardy such as was contended for on behalf of the applicant.”
Once again the quotation has to be seen in the context of the matter which was at issue in Casey’s case. The case did not involve a consideration of s. 13(7) or the relationship between the Council and the FPC in that context.
In my opinion none of the cases cited deal with the point in issue. I am not convinced that they support the arguments made by the Council for the extremely limited role which its contends for itself in dealing with findings of the FPC.
The effect of the Council’s approach results in the following. A medical practitioner found guilty by the narrowest of margins of professional misconduct by the FPC but who does not have a sanction imposed which attracts recourse to this Court under ss. 45 or 46 of the Act, can never again have the merits of his case considered in any form either by the Council or this Court. The Council is, on its own argument, precluded from so doing and the only jurisdiction which this Court can exercise is by way of judicial review. Judicial review is concerned with the decision making process and not the decision on its merits.
Whilst I do not wish in any way to trespass upon the case which lies in reserve should this aspect of the applicants challenge fail, it seems to me that such a result is certainly open to challenge by reference to the provisions of Article 40 of the Constitution and Article 6 of the Convention.
Insofar as it may be said that there is an ambiguity surrounding the inter relationship between s. 13(7) and s. 45(2), I ought to construe the Act in a manner which is consistent with constitutional norms.
In McDonald v. Bord na gCon (No. 2) [1965] I.R. 217 Walsh J. said of the presumption of constitutionality (which the Act enjoys) as follows:
“One practical effect of this presumption is that if in respect of any provision or provisions of the Act, two or more constructions are reasonably open, one of which is constitutional and the other or others are unconstitutional, it must be presumed that the Oireachtas intended only the constitutional construction and the court called upon to adjudicate upon the constitutionality of the statutory provision should uphold the constitutional construction. It is only when there is no construction reasonably open which is not repugnant to the Constitution that the provision should be held to be repugnant”.
Whilst I am not (at this juncture in any event) adjudicating upon the constitutionality of the Act nonetheless the dictum is helpful in analysing the Council’s arguments.
A construction of the statutory provisions which renders the solemnly assembled Council impotent to consider and, if appropriate, refuse to confirm, a decision of the FPC on the most important decision affecting a doctors career, in circumstances where no appeal on the merits to this court is provided by the Act, is one which ought not to be preferred to the alternative construction urged by the applicants.
The alternative construction results in a report of the FPC being capable of review by the Council which is the body charged by the Act with the control of persons engaged in the practise of medicine. This alternative construction means that a doctor charged and found guilty of professional misconduct by the FPC is not deprived of having his case and that decision considered by the Council. Given the huge importance to any doctors career of a finding of professional misconduct, the alternative construction is, in my view, much more conducive to enjoyment of the rights conferred under the Constitution and the Convention. A decision of the FPC ought to be capable of independent reconsideration by the Council and, in my view, the Act so ordains.
It is, I think, of significance that the Council has never utilised the provisions of s. 13(7) to dispense with the necessity of confirmation of a decision of the FPC. If it had done, the exercise of that power would in circumstances such as the present case, leave itself open to challenge on constitutional and Convention grounds.
It follows that the Council in the present case was wrong in law in regarding itself as being bound by the decision of the FPC on the applicants guilt and confining itself solely to the question of penalty. By so doing the applicants were denied the opportunity of having the arguments addressed on their behalf considered in accordance with due process. The Council acted ultra vires in behaving as it did. Its decisions cannot stand and will be quashed.
It also follows that the advice proffered to the Council by its Registrar and in-house advisor was wrong in law. Such being so, it is not strictly necessary for me to consider the procedure that was adopted by the Council which led to that advice being given. Nonetheless, I think I ought to deal with it since it raises issues of some importance which may affect future cases. I ought also to deal with the other criticism made as to the Council’s composition on the 6th February, 2007. I will deal with this topic first.
Composition of the Council
The twenty-two members of the Council who sat on the 6th February, 2007 included the five members who constituted the FPC which made the findings against the applicants. Had the Council not been wrongly advised as to its role, they would have been deciding on whether or not to confirm their own findings. As it was, they did have to decide on whether or not to follow their own recommendations on sanction. In the event, no disadvantage occurred to the applicants, because the FPC recommendations on sanction were not accepted by the Council. It is of course a matter of conjecture as to whether a similar result might have followed had the Council properly considered the FPC report on the question of misconduct.
Whether considering the FPC report on the question of liability or sanction it was in my view wrong that members of the FPC should have participated in the work of the Council on that occasion. The involvement involved a breach of the nemo iudex in causa sua rule.
That rule is of fundamental importance in bodies exercising judicial and quasi judicial roles. It was in my view objectionable that members of the FPC should have sat as members of the Council to consider their own report on the conduct of the applicants. Gone are the days when it was considered permissible that a decision maker exercising judicial or quasi judicial functions should sit with an appellate or confirming body to hear an appeal or confirmation against his own decision. It was not unusual for that to occur, even in the judicial sphere, in the nineteenth century. However, s. 24 of the Courts of Justice Act, 1924 prohibits a judge who heard a case from sitting as a member of the court of appeal when the case over which he presided is being considered. That statutory prohibition is no more than a statement of what is now considered to be a practical application of one of the two rules of natural justice.
A good example of the application of this rule is to be found in the case of R (Snaith) v. Ulster Polytechnic [1981] N.I. 28 where the applicant’s dismissal was quashed because the members of the committee who had taken the initial decision to dismiss sat with the governors of the college when the appeal was heard.
Procedures of the Council
When the applicants case was before the FPC, the Registrar instructed counsel to present the Council’s case. The applicants were represented by counsel and the FPC was advised by its own legal assessor. The procedure before the Council was fundamentally different. There was no independent legal assessor or advisor and such advice as was given was provided by the Registrar (who had instructed counsel in the presentation of the case against the applicants before the FPC) and the in house lawyer. Was it appropriate the legal advice should be furnished to the Council by the Registrar given the role played by him before the FPC?
Issue was also taken by the applicants as to the way in which this advice was tendered. Information on that is to be found at para. 44 of Dr. Hillery’s affidavit, which I have already reproduced. There he acknowledges that the applicant’s counsel argued that the Council could (and indeed ought to) reject the findings of the FPC. That submission was apparently discussed by the members of the Council. Then Dr. Hillery together with the Vice President took advice from the Registrar and Mr. William Kennedy. The carefully drafted paragraph is rather opaque as to the terms of the advice given. It is however clear that the advice furnished and followed was that consideration ought not to be given to the submissions made seeking a rejection of the FPC’s report on the question of professional misconduct. The view was that such was not a function of the Council. Indeed the whole thrust of the Council’s argument before me was to that effect.
The advice given to the President and Vice President was then apparently conveyed by them to the other Council members who had reconvened and, following further discussion, it was decided to impose no sanction.
The applicants argue that all of this was irregular. The advice was provided in circumstances unknown to the applicants and where they had no opportunity of addressing through their legal advisors the correctness or otherwise of the advice tendered. It is said that this amounts to a denial of audi alteram partem since the Council here relied upon information obtained outside the formal hearing without disclosing it to the party adversely affected by it. It is said that what occurred is all the more offensive because of the apparent delegation by the Council to its President and Vice-President of the task of taking that advice which was then communicated to the other Council members. No form of delegation is provided for in the 1978 Act. No information has been provided as to precisely what was said to the other Council members by the President or Vice-President.
Natural Justice
There is no fixed standard of natural justice which is applicable in all circumstances. The standard is plastic. It varies in accordance with the circumstances. As was said by Keane J. in Mooney v. An Post [1994] E.L.R. 103:
“… the concept (of natural justice) is necessarily an imprecise one and what its application requires may differ significantly from case to case. The two great central principles – audi alteram partem and nemo iudex in causa sua – cannot be applied in a uniform fashion to every set of facts.”
The standard to be applied to a person whose conduct is under investigation therefore varies according to the circumstances. In the present case I am satisfied the high standards of natural justice must apply. The allegations made against the applicants were very serious and their whole professional standing was at stake. The applicants were entitled to expect that there would be strict adherence to the rules of natural justice and that justice would not only be done but be seen to be done in their dealings with the Council.
It was inappropriate that legal advice be tendered by the very officer who presented the case against the applicants before the FPC. I cannot see how such advice can be seen to be objective. I am not saying that the advice was in fact biased but there is the perception of bias arising from the role played by the advice giver when the cases where before the FPC.
Secondly, it was in my view quite wrong that the legal advice such as it was, was tendered only to the President and Vice President of the Council. If there was an entitlement on the part of the Council to legal advice, it should have been furnished to all and at the same time. It was not good enough that the verbal advice furnished to the President and Vice President should be retailed by them to the other members of the Council.
Thirdly, the method of receiving the advice was in my view deficient. It was a form of denial of the audi alteram rule because it enabled the Council to rely upon information obtained outside the hearing and not disclosed to the applicants who were adversely affected by it. The decided case which, in my view, most closely approximates to what occurred here is that of The State (Polymark Limited) v. ITGWU [1987] I.L.R.M. 357.
In that case the employer made a submission before the Labour Court to the effect that it had no jurisdiction to entertain an appeal from an equality officer. The Labour Court adjourned the case in order to seek legal advice from its Registrar. Having received it, it continued with the case. In the High Court, the employer complained that his counsel in the Labour Court had not been made aware of the advice given or afforded an opportunity of commenting upon it. Blayney J. took the view that even if this were correct he ought to exercise his discretion against granting relief since no useful purpose would be served by so doing. However, the judge was clearly of the view that the complaint made was correct in law and provided a rubric, which might be followed in the future. He said:
“It might be of assistance for the future, however, if I were to indicate what procedure the Labour Court could safely adopt if similar circumstances arise again. They should first inform the parties of their intention to ask the Registrar for legal advice; then having obtained the advice, they should, at a resumed hearing, inform the parties of the nature of the advice they had obtained and give the parties an opportunity of making submissions in regard to it, and finally, having heard the submissions, the members of the court should, on their own, without further reference to the Registrar, arrive at their own conclusion on the issue.”
I am conscious of the reliance which is placed by the Council on the later decision of Murphy J. as affirmed by the Supreme Court in Georgopolous v. Beaumont Hospital Board ([1994] 1 I.L.R.M. 58 and (Unreported, Supreme Court, 4th June, 1997)). I do not read the decision of either Murphy J. in the High Court or Hamilton C.J. in the Supreme Court as casting any doubt on the legal soundness of the observations of Blayney J. which I have just quoted. On the contrary, Murphy J. expressly agrees with the observations where he says:
“I would respectfully agree with what Blayney J. was quoted as saying in that judgment. It seems to me that his views were based on the practice traditionally adopted by judges of the High Court of repeating for the benefit of counsel any advice, information or observation given to him by a Registrar of the court…. However, in the present case it is essential to bear in mind that the function of the Board was to determine as a matter of fact whether the allegations made against their employee were well-founded. They were not determining any question of law nor would they have been competent to do so. The need for legal guidance was to ensure that a lay body was acquainted with what may be seen as the ever-expanding requirements of the rules of natural and constitutional justice. …Indeed one might expect something in the nature of a conference or informal seminar to brief the members of such a tribunal on the legal principles applicable to their functions. It seems to me inconceivable that a tribunal having obtained. … such advice should be required to lay it before any parties … pleading before them.”
In the Georgopolous case the plaintiff had been employed as a doctor by the hospital. The hospital board held an oral hearing for the purposes of enquiring into complaints that had been made about him. Both parties were legally represented. During the hearing the hospital board received supplementary legal advice concerning procedure from a retired judge who sat with it. The advice was not disclosed to the plaintiff.
On appeal, Hamilton C.J., again appeared to accept the correctness of the views of Blayney J. but distinguished the Polymark case on the basis that the issue between the parties in Polymark was purely a question of law relating to the jurisdiction of the Labour Court, whereas the function of the Beaumont Hospital Board was to determine as a matter of fact, whether allegations made against the plaintiff were well founded. The authors of the 3rd Edition of Administrative Law in Ireland, describe this distinguishing as being rather unconvincing. Whether that be so or not (and I tend to agree with them) I am quite satisfied that on the facts, the Polymark case is much closer to what I am concerned with here.
I am also satisfied that the view which I take is consistent with a line of authority in England on the same topic.
In Nwabueze v. General Medical Council [2000] 1 WLR 1760, the legal assessor to the Professional Conduct Committee of the General Medical Council gave that committee advice during its retirement. On the committee’s return, the assessor informed the parties what that advice had been. Without the parties having been given an opportunity to comment on the advice the chairman announced the decision of the committee. Lord Hope of Craighead, giving the opinion of the Privy Council, said:
“… The principle which lies behind the requirement that the party should be informed of the assessor’s advice to the committee is that of fairness, and that fairness requires that the party should be afforded an opportunity to comment on that advice and that the committee should have an opportunity to consider their comments before announcing their determination. The transcript of the proceedings indicates that the chairman regarded the legal assessor’s statement about the legal advice which he had tendered to the committee while they were deliberating in camera as a mere formality, as the committee had already arrived at their determination which he was about to announce. This was a misconception, as the reason why the legal assessor’s advice to the committee must be given or made known to the parties afterwards in public, is so that the parties may have an opportunity of correcting it or asking it to be supplemented as the circumstances may require. In this respect, the requirements of the common law would appear to be at one with those of Article 6 of the Convention.”
That decision has been applied more recently in Watson v. General Medical Council [2005] EWHC 1896. There, Stanley Burnton J. in the High Court quashed the determination of the Fitness to Practise Panel of the General Medical Council because the appellant’s counsel was not given an opportunity to address the panel on the substance of the medical assessor’s advice. The judge in considering the procedure followed in the context of Article 6 of the Convention followed Nwabueze’s case and held that the parties must be given an opportunity to make representations on legal advice given by a legal assessor to a disciplinary tribunal. Indeed he went further where he said:
“In my judgment the authorities to which I have referred above establish that those who advise a tribunal on issues of fact whether as its experts or assessors, should do so openly, in the presence of the parties, and in circumstances in which the parties have an opportunity to make submissions on that advice before the Tribunal makes its decision. That is, in general what fairness requires.”
In my view, the procedure followed in the present case was defective. Even if the correct advice as to jurisdiction had been given the procedure followed would warrant the decision of the Council being quashed.
As Blayney J. did in the Polymark case, I believe that I ought to indicate how the Council should in the future deal with reports of the FPC.
The Council should not have members of the FPC who conducted the hearing and prepared the report under consideration sitting when a s.13(7) meeting is taking place. The Council should hear and consider any relevant submissions from the doctor concerned and the Registrar. If it wishes to obtain legal advice it should obtain it from an independent lawyer (as the FPC does ). The procedure outlined by Blayney J. in the Polymark case ought to be followed in respect of that advice. Having done so (if such advice was necessary) the Council should then decide whether or not to confirm the FPC report both as to guilt and sanction.

Absence of Reasons – The Council
The decision of the Council is also criticised because of the absence of reasons given by it for concluding that no sanction ought to be imposed. It is said that if it was the case that no sanction was imposed because a majority of the Council did not consider the applicants to have been guilty of misconduct then that was a relevant fact which the applicants were entitled to know.
I do not propose to address this criticism, as it is not necessary for me to do so. Rather I will have some observations to make about the absence of reasons when I consider the findings of the FPC. A similar criticism is made of it.
Council Decision
As is apparent, the decision of the Council cannot stand and certiorari will go to quash it. The Council contends that I ought to remit the matter back to it so that it may reconsider the report of the FPC in the light of the findings which I have made. There would be something to be said for that argument if the decision of the FPC itself is not legally invalid. The applicants contend that it is for three reasons. First, they say that the FPC and indeed the Council applied an incorrect standard of professional misconduct. Secondly, they say that the report of the FPC is flawed by virtue of its failure to give reasons for the conclusions which it reached. Thirdly, they say that the decision arrived at was unreasonable in the legal sense of that term which is applied on judicial review. If the applicants succeed on some or all of these grounds then the report of the FPC itself will be at risk of being struck down.
I propose to deal with the complaint concerning the wrongful standard of professional misconduct first.
Professional Misconduct
Professor Prendiville was found guilty by a majority of the FPC of professional misconduct in the respect of one of the twelve allegations made against him. That allegation was that he
“Stated in the said report that there was no evidence of questionable clinical judgment or faulty decision making on the part of Dr. Neary in circumstances where there was such evidence in the material available to him”.
The three allegations in respect of which Dr. Murphy was found guilty were that he
“8. Stated in the said report that Dr. Neary had no case to answer in respect of the cases reviewed in the said report when this was not a conclusion that could be legitimately expressed without also expressing serious reservations about some or all of the cases, and/or
9. Stated in the said report that Dr. Neary should continue to work in Our Lady of Lourdes Hospital without any restrictions on his practice in circumstances where he knew or ought to have know there were grounds for placing restriction on Dr. Neary’s practice.
10. Stated that Dr. Neary should continue to work in Our Lady of Lourdes Hospital without any restriction on his practice in circumstances where that conclusion could not legitimately be expressed without also expressing serious reservations in that regard.”
In the case of each of the doctors, the FPC in making its findings did so on the basis that the allegations, which had been proved, amounted
“To professional misconduct as defined by Keane J. in O’Laoire v. The Medical Council being conduct in connection with his profession in which the medical practitioner has seriously fallen short of the standards of conduct expected among medical practitioners, and not in a sense of any “infamous” or “disgraceful” conduct or any conduct involving any degree of moral turpitude, fraud or dishonesty.”
Throughout the hearing this definition was described as the ‘expected standards of conduct’ test.
There is another standard of professional conduct which was referred to as the ‘moral turpitude’ standard. It can be defined as ‘conduct which doctors of experience, competence and of good repute consider disgraceful of dishonourable’.
It was submitted to the FPC that it was the ‘moral turpitude’ rather than ‘expected standards test’ that they ought to apply in considering the allegations made against the applicants.
It is common case that the Council has from time to time issued a guide to ethical conduct and behaviour for members of the medical profession. Such guides have been issued pursuant to the requirements of s. 69(2) of the Act. This section provides:
“It shall be a function of the Council to give guidance to the medical profession generally on all matters relating to ethical conduct and behaviour”.
In 1998 the Council issued the fifth edition of this guide. The guide is some forty eight pages in length dealing inter alia with conduct and behaviour, doctors and patients, professional responsibilities, doctors in practice and confidentiality and consent.
In section A of the guide, which deals with conduct and behaviour, professional misconduct is described at para. 1.5. The definition is as follows:
“Professional misconduct is conduct which doctors of experience, competence and good repute, upholding the fundamental aims of the profession, consider disgraceful or dishonourable”.
It is a perfect articulation of the ‘moral turpitude’ standard.
It is also common case that it was this fifth edition of the guide, which was in force during the time of the allegations of wrongdoing made against the applicants.
The sixth edition of the guide was published in 2004. In this edition, the definition of professional misconduct is different. It reads (again at para. 1.5) that professional misconduct is
“(a) conduct which doctors of experience, competence and good repute consider disgraceful or dishonourable; and/or (b) conduct connected with his or her profession in which the doctor concerned has seriously fallen short by omission or commission of the standards of conduct expected among doctors”.
Paragraph (b) is a perfect articulation of the ‘expected standards’ test.
It is clear that the FPC in making its findings, did so by reference to the decision of Keane J. in O’Laoire v. The Medical Council (Unreported, 27th January, 1995).
As the FPC relied upon this judgment to make its findings against the applicants, it is necessary to look at it in some little detail.

The Decision in O’Laoire’s case
The judgment of Keane J. (as he then was) is masterly and comprehensive. It runs to some 387 pages including appendices. From page 99 to 108, he deals with the meaning of professional misconduct. He points out that the term is not defined in the Act. He says that its meaning, and that of corresponding expressions which appeared in earlier legislation, has been considered in a number of authorities in Ireland and England. He begins his review of those authorities by reference to the decision of Kenny J. in Re Lynch & Daly [1970] 1 I.R.
He points out that in 1983 in the relevant legislation affecting dentists in England, the expression ‘infamous or disgraceful conduct in a professional respect’ was replaced by the expression ‘serious professional misconduct’. He recalls that that same legislation provided that a significantly less severe penalty than striking off the register could be imposed when such a finding of misconduct was made. i.e. suspension for a period not exceeding twelve months. He cites from the decision of Lord Mackay in Doughty v. General Dental Council [1987] 3 All E.R. 843. In that case it was held that while the findings against the appellant did not import any moral stigma, they were of a nature which the committee was entitled to hold rendered it right for it to direct the striking off of the appellant.
Having reviewed the authorities Keane J. deduced the following principles:
“1. Conduct which is ‘infamous’ or ‘disgraceful’ in a professional respect is ‘professional misconduct’ within the meaning of s. 46(1) of the Act.
2. Conduct which would not be ‘infamous’ or ‘disgraceful’ in any other person, if done by a medical practitioner in relation to his profession, that is, with regard to either his patients or to his colleagues, may be considered as ‘infamous’ or ‘disgraceful’ conduct in a professional respect.
3. ‘Infamous’ or ‘disgraceful’ conduct is conduct involving some degree of moral turpitude, fraud or dishonesty.
4. The fact that a person wrongly but honestly forms a particular opinion cannot of itself amount to infamous or disgraceful conduct in a professional sense.
5. Conduct which could not properly be characterised as ‘infamous’ or ‘disgraceful’ and which does not involve any degree of moral turpitude, fraud or dishonesty may still constitute ‘professional misconduct’ if it is conduct connected with his profession in which the medical practitioner concerned has seriously fallen short, by omission or commission, of the standards of conduct expected among medical practitioners.”
The judge went on:-
“I do not attach any significance to the fact that the adjective ‘serious’ does not appear before ‘professional misconduct’ in s. 46 (1)(a) unlike the provision under consideration in Doughty v. General Dental Council. Only conduct which seriously falls short of the accepted standards of the profession could justify a finding by the professional colleagues of a doctor (and a similar finding by this Court) of ‘professional misconduct’ on his part.
In considering how these principles should be applied to the facts of the present case, the standards applicable in the medical profession in this country, as laid down in official publications and discussed by various witnesses, are clearly of importance and are considered in more detail in a later section of this judgment. It should, however, be pointed out at this stage that s. 69 (2) of the Act provides that “it shall be a function of the Council to give guidance to the medical profession generally on all matters relating to ethical conduct and behaviour.”
The guide to Ethical Conduct and Behaviour and to Fitness to Practice (third edition, 1989) issued by the Council defines professional misconduct as:-
“conduct which doctors of experience, competence and of good repute, consider disgraceful or dishonourable”.
The principle at 5 above should be seen as modified in the light of that statement. Finally, section 46 (9) of the Act provides that:-
“on the hearing of an application under this section, the High Court may, if it thinks proper to do so, admit and have regard to evidence of any person of standing in the medical profession as to what is professional misconduct.” (Emphasis mine)
It seems clear from the above quotation that whilst Keane J. identified five principles which he deduced by reference to Irish and English case law, the fifth of those principles, in his view, fell to be modified by virtue of the definition of professional misconduct as contained in the third edition of the Council’s guide. The wording of the fifth edition of the guide differs from the third edition in that it interposes the phrase “upholding the fundamental aims of the profession” before the words “consider disgraceful of dishonourable”. Nothing turns on this.
The fifth edition of the guide post dated the judgment in O’Laoire’s case by about three years. It was not until the sixth edition of the guide in 2004 that the “expected standards” test was published by the Council. There can be no doubt, having regard to the wording of the sixth edition of the guide, that from the time of its publication the ‘expected standards’ test is applicable in relation to professional misconduct on the part of the members of the medical profession.
The applicants argue that that test was not appropriate to be applied in relation to the allegations made against them. They say that whilst Keane J. identified the ‘expected standards’ test at number 5 in the principles identified by him from a consideration of (mostly English) case law, he made it clear that it had to be modified in the light of the Council’s guide then in force.
The Council argue that the “expected standards” test was the appropriate test by which to judge the applicants’ conduct. They contend that the changes introduced by the Act were similar to those brought about five years later by the Dentists Act of 1983 in England, which in turn was considered in Doughty v. General Dental Council. By reference to that decision the Council contends that the “expected standards” test was in effect as and from the coming into force of the Act of 1978.
If that be so, it is astonishing that in the five editions of the guide published by the Council between its creation in 1978 and the year 2004, nowhere in the definition of professional misconduct is the ‘expected standards’ test mentioned. It is not until the publication of the sixth edition in 2004, that it is to be found.
The Council argues that the guide is no more than that. To suggest that professional misconduct can only be viewed in the light of the provisions of the guide is to elevate its provisions into legislation, which, it is argued, would repeal the express provisions of the Act of 1978. This would in turn put at nought the intent of the legislature in enacting the Act and would fly in the face of the decision in Doughty.
If all that be correct, then why did Keane J. in O’Laoire’s case make it perfectly plain that the fifth principle identified by him had to be modified in the light of the definition of professional misconduct contained in the third edition of the guide?
Doughty’s case postdates the Act as indeed does the (English) Dentists Act of 1983. It was Doughty’s case which introduced the ‘expected standards’ test and applied it, notwithstanding the fact that the Medical Council in its guide of April 1985 had said that the substitution of the expression “serious professional misconduct” for the phrase “infamous conduct in a professional respect” was intended to have the same meaning and significance. The Council argued that that same rationale should apply here, and that the ‘expected standards’ test has been appropriate since the coming into force of the Act, despite the fact that the test was not invented until the decision in Doughty’s case many years later. If they are correct in this view, it seems to make nonsense of the sentence from the decision of Keane J. in O’Laoire’s case to the effect that the fifth principle had to be seen as modified in the light of the statement in the Council’s guide.
I accept that the guide published by the Council is no more than that, namely a guide. It is however published pursuant to the provisions of s. 69(2) of the Act, which imposes a function on the Council to give guidance to the medical profession generally on all matters relating to ethical conduct and behaviour. It is not too much to expect that a doctor on consulting the guide would at least be apprised in general terms of what the Council understands professional misconduct to mean. Of course, one is not entitled to look for absolute precision in a guide. The notion of professional misconduct can change from time to time because of changing circumstances and new eventualities. It would be unreasonable to expect the Council to publish a catalogue of the forms of professional misconduct which may lead to disciplinary action. But if a new test is to be applied or a new species of conduct is to be regarded as amounting to professional misconduct, then one would expect the Council to notify its members of that. Indeed, that is precisely what it did by the publication of the sixth edition of the guide in 2004. There would have been no need to do so if the Council’s argument here is correct.
The statement of Keane J. in O’Laoire’s case which I have quoted contained an implicit invitation to the Council to alter the definition of professional misconduct if it so wished. It is the Council and not the Court that is charged by statute with the registration and control of medical practitioners. The invitation was accepted, but not until 2004, when the sixth edition of the guide was published.
Reliance was placed upon the words of Lord Clyde in Roylance v. General Medical Council [2000] AC 311, where he said:
“The expression ‘serious professional misconduct’ is not defined in the legislation and it is inappropriate to attempt any exhaustive definition. It is the successor of the earlier phrase used in the Medical Act, 1858, ‘infamous conduct in a professional respect’, but it was not suggested that any real difference of meaning is intended by the change of words. This is not an area in which an absolute precision can be looked for. The booklet which the General Medical Council have prepared ‘professional conduct and discipline; fitness to practice’ (December, 1993), indeed recognises the impossibility in changing circumstances and new eventualities of prescribing a complete catalogue of the forms of professional misconduct which may lead to disciplinary action. Council for the doctor argued that there must be some certainty in the definition so that it can be known in advance what conduct will, and what will not qualify as serious professional misconduct. But while many examples can be given the list cannot be regarded as exhaustive. Moreover, the professional misconduct committee are well placed in the light of their own experience, whether lay or professional, to decide where precisely the line falls to be drawn in the circumstances of particular cases, and their skill and knowledge requires to be respected. However, the essential elements of the concept can be identified.”
I have already accepted the impossibility of cataloguing what may amount to professional misconduct. But, to use the last sentence from the passage quoted, the essential elements of the concept can be identified. The Council did not identify the ‘expected standards’ test until the publication of the sixth edition of its guide. The standard ought not therefore to have, in my view, been applied prior to the Council making its position clear on the matter.
It is to be noticed that in O’Laoire’s case, although Keane J. identified the ‘expected standards’ test and went on to say that it should be seen as modified in the light of the definition of professional misconduct in the third edition of the guide, he found Mr O’Laoire guilty of conduct which was disgraceful and dishonourable. He does not appear to have applied the ‘expected standards’ test to Mr O’Laoire. This is entirely consistent with his acknowledgement that it had to be modified by reference to what was stated in the guide.
The Council also rely on a series of decisions of this Court, in particular those of O’Donovan J. in Perez v. An Bord Altranais [2004] 4 IR 298, of Hanna J. in Moore v. The Medical Council (Ex tempore, 19th December, 2006) and Charleton J. in Barry v. The Medical Council (Unreported, 2nd March, 2007).
All of these cases applied the ‘expected standards’ test and all of them did so by reference to the identification of that principle in the judgment of Keane J. in O’Laoire’s case. None of the judges in question appear to have had their attention drawn to the subsequent dictum of Keane J. concerning the modification of that principle by reference to the guide. Indeed it has to be said that the question was not in issue in those cases. Nobody appears to have adverted to the topic.
In the present case it appears clear that the FPC applied the ‘expected standards’ test by reference to the judgment of Keane J. in O’Laoire’s case without any account being taken of the modification. In my view, they were not entitled so to do, and it is unreasonable and unfair to expect medical practitioners to be subjected to a test of professional misconduct, which the Council had not promulgated or notified to the profession until years after the event.
Absence of Reasons – the FPC
The decision of the Council in suit was communicated to the applicants by letters of 7th February, 2007. The letter to Professor Prendiville, having made reference to the findings of the FPC, then stated:
“The Council took careful note of the submission which was made on your behalf in reaching its decision on the question of whether or not a sanction should be imposed. The Council has instructed me to inform you that it has decided not to impose any sanction on you in relation to your professional conduct, notwithstanding the findings of the Fitness to Practise Committee that the facts set out at allegations 1, 3, 5, 9, 10 and 11 in the Notice of Enquiry were proved and that allegation 9, as proved, does amount to professional misconduct. The decision was made by the Council at its meeting on February 6th, 2007.”
A similar letter was sent to Dr. Murphy with necessary modifications to reflect the findings of the FPC. These communications are criticised because they do not provide any reasons for the decision to confirm the findings of the FPC. That is hardly surprising since the Council took the view that it had no option but to confirm them.
Criticism is also levelled at the Council for not stating any reasons for deciding why no sanction ought to be imposed. As I have said I do not propose to deal with this complaint since no prejudice was suffered by the applicants arising out of this.
A similar criticism is levelled against the FPC. Appendix 6 contains the FPC report in full. It is eight pages long. Six of the pages are devoted to a recital of the identity of the parties to the enquiry and the dates on which it sat, a recitation that the criminal standard of proof was to be applied by the FPC and a setting out of the allegations made against each of the applicants, and Dr. Stuart. It is only in the final two pages that the FPC deals with its decision. The decision is set out in the tersest form possible. In the case of Dr. Murphy, it says as follows:
“Dr. Murphy
Having heard the evidence adduced the committee finds, by a majority, allegations 1, 3, 5, 8, 9 and 10 proved.”
In the case of Professor Prendiville, it says:
“Having heard the evidence adduced the committee finds, by a majority, allegations 1, 3, 5, 9, 10 and 11 proved.”
It then goes on to say under the heading “professional misconduct” in the case of Dr. Murphy:
“The committee finds that allegations 1, 3 and 5, as proved, do not amount to professional misconduct and by a majority that allegations 8, 9 and 10, as proved, do amount to professional misconduct as defined by Keane J. in O’Laoire v. The Medical Council, being conduct in connection with his profession in which the medical practitioner has seriously fallen short of the standards of conduct expected among medical practitioners and not in a sense of any ‘infamous’ or ‘disgraceful’ conduct or any conduct involving any degree of moral turpitude, fraud or dishonesty.”
The finding against Professor Prendiville is in precisely the same terms, save that the finding is in respect of allegations 1, 3, 5, 10 and 11 as having been proved but not amounting to professional misconduct and, by a majority, that allegation 9 does amount to professional misconduct. The report then contains the recommendations to the Council. It recommended admonishment in the case of Dr. Murphy and advice being given to Professor Prendiville, although the report mistakenly refers to him as Dr. Stuart.
There appears to be no consistency of practice on the part of the FPC as to the form of its reports to the Council. There is no dispute but that in, for example, the case of the FPC report on Dr. Neary himself, the document ran to in excess of one hundred pages, and clearly was a reasoned one.
The report in the instant case is more in the nature of an issue paper containing findings rather than a reasoned judgment.
The Council contends that there is no duty to give reasons on the part of the FPC. It does so by reference to the decision of Costello P. in McCormack v. Garda Complaints Board [1997] 2 I.R. 389 and a series of Privy Council decisions beginning with Libman v. GMC [1972] 1 A.C. 217, Rai v. GMC (Unreported, Lord Scarman, 14th May, 1984) and Gupta v. GMC [2002] 1 WLR 1691.
In McCormack’s case Costello P. said:
“The rules of natural justice are rules of the common law which are applied in our courts when considering the validity of administrative decisions. It is well established by the courts in England that the rules of natural justice do not require that reasons should be given for administrative decisions (R v. The Gaming Board [1970] 2 QB 417), and in England it was considered necessary for parliament to step in and to require that ‘tribunals’ (as defined) should be required to do so (Tribunals and Enquiries Act, 1971), whilst in Australia (another common law country) the federal parliament went further and enacted that this principle should be extended to administrative decisions generally (Administrative Decisions (Judicial Review) Act, 1997).
In this country, the Oireachtas has remained inactive in this field. In theory our courts would be free to extend the common law principles of natural justice as they are judge- made rules but it would seem preferable that the existence, scope and nature of the duty to provide reasons for an administrative decision should be considered in the light of the constitutional requirement relating to what the courts have termed “constitutional justice”, rather than as an extension of the common law rules of natural justice… It is not the law of this country that procedural fairness requires that in every case an administrative decision making authority must give reasons for its decisions.”

In Libman’s case Lord Hailsham said:
“Beyond a bare statement of its findings of fact the Disciplinary Committee does not in general give reasons for its decision as in the case of a trial in the High Court by judge alone from which on appeal by way of rehearing lies to the Court of Appeal.”
In Rai’s case Lord Scarman said:
“Though no obligation rests upon the Professional Conduct Committee to give reasons, in some cases where an acute conflict of evidence arises or where an important difference of opinion emerges, the committee may find it helpful to do so. Though there is no obligation, the committee has the power to give reasons: and their Lordships suggest that giving reasons can be beneficial and assist justice:-
(1) in a complex case to enable the doctor to understand the Committee’s reasons for finding against him; …
(3) because a reasoned finding can improve and strengthen the appeal process.”
In the present case not merely were there important differences of opinion between the various witnesses who gave evidence before the FPC but that committee was itself split on the issues since the decision in suit was a majority one (though by what majority we are not told).
In Gupta’s case the Privy Council was called upon to consider an earlier decision relied upon by the applicants called Selvanathan v. GMC [2001] Lloyds Rep Med 1. In Gupta’s case the Privy Council held that there was no general duty on the Professional Conduct Committee of the GMC to give reasons for its decisions on matters of fact, particularly where its decision depended essentially on resolving questions of the credibility of witnesses. In the course of his opinion, Lord Rodger considered the earlier opinion of Lord Hope in Selvanathan’s case. In that case Lord Hope had said:
“It is not to be expected of the committee that they should give detailed reasons for their findings of fact. A general explanation of the basis for their determination on the questions of serious professional misconduct and of penalty will be sufficient in most cases. In the present case the complaint is that reasons should have been given to explain the basis upon which the committee found against the appellant on the questions of fact raised by head 2(b). It was plain, however, from the outset that their decision on this point was going to depend upon inferences which it was open to them to make from agreed facts and on the committee’s assessment of the appellants credibility. The issue was a relatively simple one, and all the appellant needed to know in order to decide what to do next was the decision which the committee had reached upon it. There are no grounds for thinking that the appellant has suffered any prejudice due to the absence of reasons directed specifically to this finding. In these circumstances their Lordships do not consider that it was necessary for reasons for this part of the committee’s decision to be given.”
Lord Rodger said of that passage:
“In that passage their Lordships affirmed the existence of the duty to give a general explanation for the committee’s decisions on questions of serious professional misconduct and of penalty. By contrast, they rejected the existence of any such duty to give reasons for the committee decision on the matters of fact in that case.”
I do not read the decision in Gupta as absolving a committee such as the FPC from the obligation to give a general explanation of the basis for its determination on questions of serious professional misconduct. Without trespassing into a detailed consideration of the evidence which was given to the FPC, I do not think that the present case can be characterised as one involving only questions of fact, still less the credibility of witnesses.
I am of the opinion that the applicants were entitled to at least a general explanation of the basis for the majority decision of the FPC. I do not believe that what they obtained in the present case was such. I have already referred to the inconsistency in practice on the part of the FPC in this regard.
I believe that my views are in accordance with authorities in this jurisdiction dealing with the duty to give reasons. There is an ever-increasing body of case law on the topic, though I mention just some of the cases by way of illustration.
In Rajah v. The Royal College of Surgeons of Ireland [1994] 1 I.R. 384, Keane J. said:
“In general, bodies which are not courts but which exercise functions of a judicial or quasi judicial nature determining legal rights and obligations must give reasons for their decisions, because of the requirements of constitutional and natural justice and in order to ensure that the superior courts may exercise their jurisdiction to enquire into and, if necessary, correct such decisions: see The (State) Creedon v. Criminal Injuries Compensation Tribunal. The requirement to give reasons may extend even further to purely administrative bodies, at least where their decisions affect legal rights and obligations… a decision such as that of the respondents in the present case, however, was not, in my view, of a nature which necessitated the giving of reasons.”
More recently, the Supreme Court considered the topic in F.P. v. The Minister for Justice [2002] 1 IR 164. There Hardiman J. said:
“This Court in Ní Eili v. The Environmental Protection Agency (Unreported, Supreme Court, 30th July, 1999) surveyed the authorities in some detail and inter alia cited with approval the decision of Evans L.J. in MJT Securities v. Secretary for State for the Environment [1998] J.P.L. 138.
Dealing with statutory obligations to give reasons the trial judge said at p. 144 that:-
‘The Inspectors statutory obligation was to give reasons for his decision and the Courts can do no more than say the reasons must be proper intelligible and adequate as has been held. What degree of particularity is required must depend on the circumstances of each case…’
In the case of administrative decisions, it has never been held that the decision maker is bound to provide a ‘discursive judgment as a result of its deliberations’; see O’Donohue v. An Bord Pleanála [1991] I.L.R.M. 750 at p. 757.
Moreover, it seems clear that the question of the degree to which a decision must be supported by reasons stated in detail will vary with the nature of the decision itself. In a case such as International Fishing Vessels Ltd. v. Minister for Marine [1989] I.R. 149 or Dunnes Stores Ireland Company v. Maloney [1999] 3 IR 542, there was a multiplicity of possible reasons, some capable of being unknown even in their general nature to the person affected. This situation may require a more ample statement of reasons than in a simpler case where the issues are more defined.”
In my view, the FPC was obliged to give reasons for coming to the conclusion, which it did. It was not obliged to provide a discursive judgment, but I accept the applicants complaint that they were left “absolutely in the dark” as to the basis for the FPC’s findings. That is all the more so in the circumstances where it is clear that, contrary to the requirements of s. 45 (3)(c), the report did not specify the evidence laid before the FPC.
A statement of the reasons for the FPC decision would have been essential so as to enable the Council to hear submissions and decide on whether or not it ought to confirm the FPC’s findings. Even if I am wrong in the view which I take concerning the role of the Council, and it is in fact no more than a cypher for the FPC save on the question of sanction, the applicants are entitled to know the basis of the decision in the context of an application for judicial review. As was said by Keane J. reasons are necessary in order to ensure that the superior courts may exercise their jurisdiction to enquire into, and if necessary, correct such decisions.
In these circumstances, I am satisfied that the decision of the FPC is also deficient by reason of the lack of reasons given for its findings.
Irrationality
Counsel for the applicants and the Council both referred in considerable detail to parts of the evidence given to the FPC in order to demonstrate the unreasonableness or otherwise of the decision arrived at by it. Having regard to the other findings made by me, it is not necessary for me to explore this area. The task of attempting to do so was rendered very difficult by virtue of the absence of any reasons being given by the FPC for its decision. In the event it is not necessary to consider this topic since for all of the reasons already given the decision of the Council and FPC must be quashed.
Remission
It was submitted by the Council that in the event of the applicants being successful, the case ought to be remitted pursuant to provisions of order 84, rule 26(4) of the Rules of the Superior Courts, or the inherent jurisdiction of the court.
In Usk and District Residents Association Limited v. An Bord Pleanála and Others [2007] IEHC 86 I considered the discretionary jurisdiction of this Court to order remission and the exercise of that discretion.
As to the exercise of the discretion, I said:-
“The discretion to remit proceedings is a wide one. There is not a lot of assistance to be gleaned from such case law as there is on the topic as to the factors to taken into account in the exercise of that discretion. Many of the cases deal with the remission of criminal cases to the District Court. Those which involve the remission of cases such as the present one deal with the topic in little more than a sentence. For example in Hoborn Homes Limited v. An Bord Pleanála, [1993] I.L.R.M. 368, Denham J. made an order remitting the matter back to the Planning Board. She dealt with in a single sentence in the judgment by observing that it was an appropriate case to do so. Similarly in Aherne v. Kerry County Council, [1998] I.L.R.M. 392, Blayney J. remitted a matter back to the local authority in like manner. In Hurley v. Motor Insurers Bureau of Ireland, [1993] I.L.R.M. 886, Carroll J. similarly referred the matter back to the Council of the M.I.B.I. in the final sentence of her judgment.
The nearest one comes to any consideration of the topic is to be found in the judgment of Murray J. in Nevin v. Crowley [2001] I.R. 113. That was a case involving certiorari directed to a District Judge concerning a criminal conviction. In the course of his judgment Murray J. said:-
‘This Court, in Sweeney v. Judge Brophy, [1993] 2 I.R. 5202 at p. 201, held that the proper exercise of a Court’s discretion in such a case ‘would require that the matter should not be remitted to the District Court in circumstances where the applicant has endured enough and the prosecution cannot be acquitted of all the blame for some, at least, of what went wrong at the trial’.
This is not to be considered an exhaustive list of relevant considerations concerning exercise of discretion which could include such matters as the passage of time, any period of imprisonment already served, whether the offence was a serious one or a minor one’.
These observations do not have much relevance in the context of civil proceedings such as I am dealing with here.
I think the best that can be said is that the exercise of the discretion is a wide one and it would be both impossible and unwise to attempt to set out in a comprehensive fashion all the factors, which the court ought to take into consideration. That will have to be developed on a case by case basis. The one thing that can be said is that the discretion must be exercised both judicially and judiciously with the overall object of achieving a just result.”
These cases cited are merely illustrative of the wide discretion vested in the Court and some of the factors which ought to be taken into account.
In the present case the Court is quashing the decision of the Council and the FPC. If just the decision of the Council were being quashed, there might be something to be said for remittal to it. However, the decision of the FPC is also being quashed on a number of bases. In particular, it is my view, that the FPC was not entitled to apply the ‘expected standards’ test to the conduct complained of against the applicants. In these circumstances there would be no point in remitting the matter.
Even if I am wrong in that, I am quite satisfied that having regard to the passage of time since the events complained of, the number of years that disciplinary proceeding have been hanging over the applicants and the undoubted damage which has been done to them, it would be quite inequitable and unfair to remit the case.
Result
The decisions of the FPC and Council are quashed. The cases will not be remitted.

 

 

 

 

 

(e) The increase rate of primary caesarean section making repair section much more likely
2. Even in centres with a reputation for a low rate where huge efforts is expended to maintain low rates (National Maternity Hospital, Dublin) the overall rate is more than doubled in the past 15 years.
3. Caesarean section is like any other operation. It is associate with complications; the more carried out the more problems.

Fertility Issues
There is no doubt that issues of fertility and family planning have played a significantly greater role in obstetric practice over the past number of years. Elective tubal ligation is now commonplace in most maternity hospitals. Tubal ligation is usually discussed din women having a second or more caesarean sections or in a first caesarean section when there have been previous vaginal deliveries. Repeated pregnancy in women who have had a caesarean section propose a real risk, rupture of the uterus (a life threatening situation for mother and baby), difficulty with future surgery, haemorrhage, compromise to adjacent organs etc. One frequently advises women how had had multiple caesarean sections to carefully consider future pregnancies and tubal ligation is frequently offered at the time of such repeat operations. When tubal ligation is not possible because of the ethical code of a particular institution the operation of subtotal caesarean hysterectomy (with the patient’s agreement) is tempting. It could in other circumstances be classified as “an Irish solution to an Irish problem”. In decades past it was frequently carried out. In considering this the hospital authorities must be aware of the policy of the department of Health and indeed the |Patients Charter with regard to tubal ligation.

Haemorrhage
Since pre-history haemorrhage, particularly obstetric haemorrhage has been the course of human kind. There is little in medicine that would translate a healthy female into a corpse more quickly than obstetric haemorrhage. The history of Europe and perhaps the world had been altered dramatically consequent by an episode of post-partum haemorrhage in the early part of the 19th century. Severed obstetric haemorrhage is dramatic, like a blazing out of control fire. It has to be contributed immediately by dramatic measures. What one does with copious haemorrhage can only be decided on at the time. retrospection by others as to how an acute haemorrhage might have been managed is futile and unrewarding exercise.

The obstetrics under lay scrutiny
During the past decade or more obstetrics has changed dramatically in comparison with all other acute medical disciplines. This is because all actions of an obstetrician can be observed and scrutinised at an immediate level by non-medical or paramedical personnel. It is particular so at caesarean section in that
(a) The mother is often fully awake under spinal anaesthesia. This form of anaesthesia can make surgery much more difficult.
(b) There is almost invariably a husband/partner present.
No other branch of surgery is there a situation nowhere the patient and her husband are so involved in major surgery. At caesarean section blood loss of a significant amount is not uncommon. This is being observed by non-medial personnel. There is always also the possibility of difficulty with delivery of the baby again observed by non-professionals. This puts huge stress on the operator. If events (and there will always be events) go badly the stress is very great.
Resistance by patient and doctors to the transfusion of blood and blood products.
During the past number of years there has built up a great resistance to blood transfusion. This is for many reasons not least of which is the fear of Hepatitis consequent on the anti D situation. Obstetric practitioner go to very great lengths to avoid blood transfusions or when absolutely necessary to give a minimal transfusion. This may well have influenced Dr. Neary in hereditament present situation with regard to the low volume of blood transfusion and subsequent low haemoglobin’s in certain patients.

The individual case under scrutiny
I have divided these into four groups, firstly, patients who had a hysterectomy at the time of caesarean section ad where Dr. Neary was the principal surgeon, secondly, those patients who had a hysterectomy following a vaginal delivery (not really caesarean hysterectomy) thirdly, those patients who requested a caesarean hysterectomy who in other circumstances would have been offered a tubal ligation fourthly, those cases where Dr. Neary was called in to assist colleagues, consultant or junior. It is my opinion that it is only the first two groups that require detailed scrutiny.
Group 1 patients who had a caesarean hysterectomy with Dr. Neary as the principal operator.
Case 1 Chart No. 28144 3rd Child – repeats elective caesarean section under spinal operation. Dramatic haemorrhage from the fun of hereditament uterus, Oxytocin and ergotmetrine used. Adonic uterus with no response to usual medical therapy. Subtotal hysterectomy – loss estimated at 1300mls. Post-mortem haemoglobin 10. uneventful recovery. This was in my opinion appropriate management.

Case 2 Chart No. 25185 2nd child. Date of operation 31st January 1996. This was an emergency call in by a registrar with his membership following a failed attempt at vacuum delivery. The uterus had ruptured with copious bleeding from one of the angles. Hysterectomy was carried out. Baby weighed 9lbs 8ozs. Estimated blood loss 1500mls. This in my opinion was a life saving procedure, as rupture of the uterus is a well-known cause of maternal death.

Case 3 Chart No. 28092. This patient had previously spontaneous miscarriage at 23 weeks gestation. Labour started spontaneously. There was secondary arrest at 6cms following 10 hours of labour. a caesarean section was carried out. There was massive intraoperative bleeding with an estimated loss of 2.5lts. Appropriate medical therapy was tried without success. Spinal anaesthesia was in place and the patient was aware of the emergency and the decision to remove her uterus. The baby weighted 10lbs. This in my opinion was a life saving procedure.

Case 4 Chart No. 28055. Date of operation 30th January 1997. This patient had previous caesarean section and was having a repeats elective Caesarean section at 38 weeks gestation because of a large baby presenting by the breech. The baby was healthy and weighed 8lbs 15ozs. She had a substantial bleed during the Caesarean section with several bleeding points throughout the uterine cavity. She had a hysterectomy and the haemoglobin dropped form 13 to 9 grms%. There is a suggestion that this patient may have been very reluctant to receive blood.

Case 5 Chart No 32483. This patient was aged 20 and had previous surgery on her uterus, her left tube and ovary having been removed elsewhere, she was first seen at 33 weeks with significant anaemia. She had a breech presentation and the malpresentation remained. She had an elective Caesarean section at 39 weeks and anterior placenta previa was found. There was copious bleeding from the right angle of her uterus. The patient was under a spinal anaesthetic. Oxytocin ergometince hot packs etc. were used to no avail. A hysterectomy was carried out. It is likely that he patient’s previous surgery and the degree of placenta previa contributed significantly to this problem.

Case 6 Chart No. 31351. Aged 26 – two previous deliveries. Antepartum haemorrhage at 27 weeks. A scan showed a major degree of placenta previa. In-patient for the remainder of pregnancy. Elective Caesarean section at 38 weeks. Substantial bleeding below the whole Caesarean section scar. A clinical diagnosis of placenta increta. There was bleeding from the right uterine artery area and a haematoma developed in the right broad ligament. A subtotal hysterectomy was carried out. Dr. Neary describes this as one of the most difficult operations he has ever undertaken. The association of a previous Caesarean section a placenta increta and a broad ligament haematoma is a potentially lethal combination.

Case 7 Chart 28055. Aged 31. previous Caesarean section for foetal distress. Known placenta previa, no bleeding so no admitted. Admitted as an emergency at 31 weeks with a substantial antepartum haemorrhage. Every time she moved she bled. She was maintained in hospital for 13 days. Steroids were administered to mature the baby’s lungs. At 33 weeks she had an elective Caesarean section because of the bleeding. She had a grade IV placenta previa which was incrota. There was substantial intra-partum bleeding with multiple sutures placed. She was still bleeding following the hysterectomy and had to have her cervix removed by combined vaginal and abdominal approach. Dr. Neary considered this a life saving procedure and I agree with him.

Group 2 patents who had a peri-partum hysterectomy following vaginal delivery.

Case 1 Chart No. 25241. This patient had a spontaneous vaginal delivery and manual removal of the placenta, which was thought to be acreta on the right side. Massive post-partum haemorrhage, packing Oxytocin etc. Decision to carry out subtotal hysterectomy. Histology showed a placenta acreta. This was a life saving procedure.

Case 2 Chart No. 29641. this was a patient expecting her first baby who was admitted with spontaneous rupture of the membranes at 22 weeks. She developed pyrexia and presumably chorio anmionitis. The baby died. She had a drip induction delivering a macerated infant. There was massive haemorrhage following the delivery with the placenta still in place. The patient almost exhengranated and had an emergency hysterectomy. This was considered life saving by Dr. Neary and I agree.

Group 3 patients undergoing elective Caesarean section who required hysterectomy if in the opinion of Dr. Neary a further pregnancy carried a substantial risk to the mother’s life and/or health.

If the option of tubal ligation existed this would be the preferred choice of surgery. I regard these cases as a reflection of the attitude to female sterilisation prevailing in the Lourdes Hospital, a situation which has significantly changed in other hospitals; voluntary and health board. The policy in the Lourdes Hospital seems to contravene the wishes of the department of Health and indeed the patients charter.

Dr. Neary has over the years been in correspondence with the hospital authorities, the health board, the department of Health and his own defence union concerning this situation. It is my opinion that in ach instance Dr. Neary acted in the best interest of his patient in a difficult circumstance. I do not think in the limited time available to me at the moment that these cases need to be discussed in detail. A total of eight Caesarean hysterectomies were carried out on such patients in the years under review,
Group 4 cases where Dr. Neary was called in to assist in surgery initiated by another doctor.

I do not think these cases require scrutiny in the limited time available to me as Dr. Neary was essentially helping a colleague. The only question that Dr. Neary might have to answer the appropriateness of delegation when the other doctor was a junior. From my perusal of the notes it would seem that the delegation was appropriate.

 

Conclusion
I have scrutinised the photocopies of the notes presented to me of the nine patients who underwent emergency hysterectomy in the three years 1996 to 1998 at the practice of Dr. Michael Neary in Drogheda. Seven of these patients had intraoperative haemorrhage and tow had a post-partum hysterectomy because of haemorrhage, which had not responded to appropriate therapy. Dr. Neary was called in to a further five cases during the three years in question to help a colleague. Dr. Neary’s undoubted reputation at management of post-partum haemorrhage was in my opinion life saving in these cases. From data provided by Dr. Neary his rate of Caesarean hysterectomies is not dramatically different from that of his colleagues.

It is my conclusion that Dr. Neary has no case to answer concerning his management of any of the patient in question. On the contrary it would seem to me that the North Eastern Health Board has a number of situations which need to be dealt with urgently.
1. A more enlightened attitude by management is required into the intrinsic risks of motherhood and the stresses of contemporary obstetric practice on all involved at a clinical level.
2. Female sterilisation should be made available and this would significantly reduce the number of Caesarean hysterectomy.

3. There should be appropriate surgical backup and the provision of vascular surgery should be examined.
4. The methods of dealing with perceived high rates of intervention should be dramatically altered. There must be some way where the practice of a senior and highly respected obstetrical can be evaluate on a mutually agreed basis without fear of suspension, legal action and so on.

It is my firm conclusion that Dr. Neary should continue to work in Our Lady Of Lourdes Hospital pending any forma investigation. It would be wrong to put restrictions on his practice and it is my view that the mothers of the North Eastern Health Board hare fortunate in having the service of such an experienced and caring obstetrician.

 

John F. Murphy
Dr. J.F. Murphy, MD., FRCOG, FRCPI

5th November 1998

 

 

In re Solicitors Act, 1954.

[1960] IR 239
Maguire C.J.

 

MAGUIRE C.J. :
8 June

After an inquiry by the Disciplinary Committee of the Incorporated Law Society under s. 16 of the Solicitors Act, 1954, the two appellants have been found guilty of misconduct. The Committee has ordered that their names be struck off the roll of solicitors. Against these orders they both appeal on the ground amongst others that the sections of the Act under which the Committee purported to act are repugnant to the Constitution in so far as they purport to authorise the Disciplinary Committee which consists of persons who are not judges appointed in the manner provided by the Constitution to exercise judicial power.
It was agreed between the parties that this ground of appeal should first be argued.
I held that when hearing this appeal I was acting as a judge of the High Court.
As the history of the organisation and development of the solicitors’ profession has been so much referred to in the course of their arguments by counsel it is perhaps well before I come to deal with questions which I have to decide that I should shortly summarise it. It began of course in England where at an early period it was realised that it was essential for the proper administration of justice that litigants should be entitled to be represented by trained lawyers.
The history of the profession in Ireland is told in a scholarly essay by Mr. Eric Plunkett, the present Secretary of the Incorporated Law Society, published as part of the Centenary Record of the Society. We there learn that the attorney first appeared in Ireland following the Norman conquest. The first mention of attorneys on the Irish statute roll is to be found in the Statute, 3 Edw. 4, c. 2, 1643. It regulated the fees which attorneys were to take and the fees to be paid for writs and other records. In 1607 an order was made relating to the admission of “Practicers of Law Officers Attorneys and Others of the Several Courts” that their names should be entered in a book “as they shall appear and desire the same.” From this time onward until 1866 attorneys and solicitors were members of the King’s Inns along with barristers. Membership was however voluntary for members of both branches of the legal profession. Although they could be members of the King’s Inns, attorneys and solicitors had no voice in its government. Furthermore, they had no organisation to look after their interests. In the year 1830 the first body solely devoted to the welfare of attorneys and solicitors was formed. This was a voluntary body calling itself the Law Society of Ireland. It is unnecessary for my purpose to trace in any detail the developments which followed. Some important steps towards giving to the Society and its successors some measure of control of the solicitors’ profession may however be mentioned. In 1852 the Society of Attorneys and Solicitors of Ireland, which title had in 1841 replaced that of the Law Society of Ireland, obtained their first charter. Although claiming to speak on behalf of the profession and although it had been incorporated by Royal Charter it had not until 1866 any share in the government of the profession save in an advisory capacity. The regulation and government of the Society at an early period was in the hands of the judges and later was vested in the Society of the King’s Inns. The Attorneys and Solicitors Act of 1866 made an important change in as much as it provided that solicitors should not in future be obliged to be members of the King’s Inns. The control of legal education of attorneys’ apprentices passed from the Society of the King’s Inns to the Law Society acting with the consent of the judges. The issuing of solicitors’ annual certificates was made a function of the Society butand this is the important point to notethe disciplinary jurisdiction remained vested exclusively in the judges and so continued until the passing of the Solicitors (Ireland) Act, 1898. Under this Act custody of the roll of solicitors was transferred from the Court of Chancery to the Society. Application to strike the name of a solicitor off the roll was to be made to a committee of the council of the Society appointed by the Chief Justice. The Committee, after hearing the case, were required to embody their findings in a report to the Lord Chancellor and since 1924 to the Chief Justice who made such order on the report as he might think fit. He alone could make an order striking a solicitor’s name off the roll. The Solicitors Act, 1954, has changed this and it is the provisions by which the change is made which are challenged in these appeals. By s. 13 the Society is authorised to appoint annually a disciplinary committee chosen from its members, such appointment to have the approval of the Chief Justice. By s. 16 this Committee is empowered to consider applications for the striking off the roll of the name of a solicitor on the ground of misconduct. If they decide after inquiry that a solicitor has been guilty of misconduct they may by s. 18 admonish him, suspend him from practice, or, as was done in these cases, strike his name off the roll. They may also order him to pay costs. The submission of the appellants is that the Legislature by these provisions purported to confer on a body of persons not appointed as judges in manner provided by the Constitution judicial power and in so doing has contravened the Constitution.
It has been laid down by this Court that there is a presumption in favour of the validity of an Act of the Oireachtas and that the Court will not declare an Act to be repugnant to the Constitution unless its repugnancy is clearly established. The Supreme Court of the United States, since it first held that it had the power to declare Acts of Congress or State Legislatures to be invalid, has acted upon the same principle. Nowhere has the principle and the reason for it been better stated than by Justice Miller in his judgment in In re Garland (1). This was a dissenting judgment but his statement of the principle was not questioned. He says, at p. 382:”It is at all times the exercise of an extremely delicate power for this Court to declare that the Congress of the nation, or the legislative body of a State, has assumed an authority not belonging to it, and by violating the Constitution, has rendered void its attempt at legislation. In the case of an act of Congress, which expressed the sense of the members of a co-ordinate department of the government, as much bound by their oath of office as we are to respect that Constitution, and whose duty it is, as much as it is ours, to be careful that no statute is passed in violation of it, the incompatibility with the Constitution should be so clear as to leave little reason for doubt, before we pronounce it to be ‘invalid.'”
The power is all the more delicate and to be exercised with the greater caution when the ground of invalidity which is sought to be established is that the province which the Constitution in the division of powers entrusts exclusively to the Courts has been invaded. Although I would have thought that in considering the question raised it would be logical first of all to seek an adequate definition of the term,”judicial power,” Mr. Conolly took a different course. He argued that because the jurisdiction to strike the name of a solicitor off the rolls had prior to the Act been exercised by judges, it was undeniably an exercise of judicial power. There would be much force in that argument if the creation of the solicitors’ profession took place under a written constitution with a division of powers similar to our present Constitution. I gather from what I have studied of working of the Constitution of the United States that the Courts there are the sole depository of the judicial power of Government and that they decline to discharge any function which is not the exercise of such power. We have however in this country inherited a system to which the conception of the division of powers was foreign. Incidentally I may remark that one of the difficulties which the Legislature and Courts face is to adjust themselves to a system in which Parliament is not supreme. Prior to the enactment of the Constitution of the Irish Free State there could be no objection to a jurisdiction which did not fall within the definition of judicial powers being exercised by judges. For this reason I do not consider that I can accept Mr. Conolly’s argument that because the power to strike solicitors off the roll had hitherto been exclusively exercised by a judge that it must be regarded as an exercise of judicial power.
Mr. Conolly next argues that the exercise of the jurisdiction to admit and exclude solicitors from practice answers all the tests in the definition of judicial power arrived at by Kennedy C.J. in Lynham v. Butler (No. 2) (1). He supports this contention by reference to a number of cases in the United States of America where the meaning of the term, “judicial ower,” accepted is the same.
In Lynham v. Butler (No. 2) (2), Kennedy C.J. dealing with a challenge to the validity of certain provisions of the Land Act, 1923, having regard to the provisions of the Constitution of the Irish Free State arrived at a definition of the term, “judicial power.” This is to be found at page 99 and is as follows:”In the first place, the Judicial Power of the State is, like the Legislative Power and the Executive Power, one of the attributes of sovereignty, and a function of government. (See Article 2 of the Constitution.) It is one of the activities of the government of a civilised state by which it fulfils its purpose of social order and peace by determining in accordance with the laws of the State all controversies of a justiciable nature arising within the territory of the State, and for that purpose exercising the authority of the State over person and property. The controversies which fall to it for determination may be divided into two classes, criminal and civil. In relation to the former class of controversy, the Judicial Power is exercised in determining the guilt or innocence of persons charged with offences against the State itself and in determining the punishments to be inflicted upon persons found guilty of offences charged against them, which punishments it then becomes the obligation of the Executive Department of Government to carry into effect. In relation to justiciable controversies of the civil class, the Judicial Power is exercised in determining in a final manner, by definitive adjudication according to law, rights or obligations in dispute between citizen and citizen, or between citizens and the State, or between any parties whoever they be and in binding the parties by such determination which will be enforced if necessary with the authority of the State. Its characteristic public good in its civil aspect is finality and authority, the decisive ending of disputes and quarrels, and the avoidance of private methods of violence in asserting or resisting claims alleged or denied. It follows from its nature as I have described it that the exercise of the Judicial Power, which is coercive and must frequently act against the will of one of the parties to enforce its decision adverse to that party, requires of necessity that the Judicial Department of Government have compulsive authority over persons as, for instance, it must have authority to compel appearance of a party before it, to compel the attendance of witnesses, to order the execution of its judgments against persons and property.”
Although in his search for a satisfactory definition the learned Chief Justice examined Australian cases as well as cases in the United States Supreme Court I am satisfied that the definition is in all respects in accord with that which has been accepted in the United States.
Although Article 6 of the Constitution of the Irish Free State differs somewhat in its wording from Article 2 of our present Constitution, both accept the division of the powers of government under three headsLegislative, Executive and Judicial. Article 34 of the present Constitution, although it does not use the words, “judicial power,” and instead speaks of the administration of justice, has the effect of vesting in the judges appointed in manner provided by the Constitution, subject of course to the terms of Article 37, the judicial power of the State. Accordingly, in my view the definition of judicial power arrived at by Kennedy C.J. should be accepted as the starting point of the inquiry as to whether the sections of the Solicitors Act which are challenged do purport to confer upon the Disciplinary Committee judicial power.
The arguments of Mr. FitzGibbon and Mr. McCarthy for the Society and that of Mr. Kenny for the Attorney General are broadly speaking the same.
Their main contention is that the control of solicitors by the Courts was merely control over them as officers of the Court and that the exercise of this control was purely administrative. Mr. FitzGibbon submits that all that has been done is to hand over to the Committee these administrative powers. He argues that the functions and powers which have been conferred upon the Committee are not conversant with an exercise of the judicial power of the State but relate to the control by the Court over its own officers. The powers and functions given to the Committee, he submits, are analogous to the purely administrative functions performed by the Lay Commissioners which are considered in Lynham v. Butler (No. 2) (1). The Committee, he submits, has to act judicially just as the Commissioners must. They have to decide facts on which there may be controversy. In making up their report to the Chief Justice under the procedure which obtained before the present Act they had similarly to decide facts. If I follow his argument it is that this Act only enlarges the powers of the Committee which functioned formerly and that its task was and still is to implement the control of the Courts over their own officers. He states his argument in different ways. Striking a solicitor off is merely a domestic matter. There is no difference in principle between striking a solicitor off the rolls and the dismissal by the Government of a civil servant. He points next to the Acts which have committed to bodies drawn from different professions a somewhat similar measure of control of their members, e.g., the Medical Practitioners Act, 1927; the Dentists Act, 1928; the Veterinary Surgeons Act, 1931; the Nurses Act, 1950. He passes in review the various English Acts dealing with Attorneys, 3 Edw. IV (Ir.), c. 2, regulates the fees which attorneys and clerks might take; 7 Geo. II (Ir.), c. 5 (1733), dealt with admission by apprenticeship no examination being necessary; 13, 14 Geo. III (Ir.), c. 23 (1773), provided that an order to a solicitor to pay costs might be enforced by attachment for contempt of Court. This was described in In re Grey (2), as the exercise of a “punitive disciplinary” power which the Court exercises over its officers. He referred also to the fact that in 1793 the Benchers of the King’s Inns decreed that no one should be admitted as a solicitor or attorney unless he was a member of King’s Inns. This he submits was merely an administrative act by the Benchers who presumably were entitled to make this order because they had amongst their members the judges. He also points to the provision of s. 14, sub-s. 3, of the Solicitors Act, 1954, which he contends preserves the power of the Courts to strike solicitors off the rolls notwithstanding the provisions of s. 18. He also drew attention to the fact that in England since the Solicitors Act, 1919, the jurisdiction to strike solicitors off has been exercised by a committee of the profession.
One cannot escape the feeling that it was perhaps the provisions of the English Act which prompted the Society to attempt to achieve for the profession here the extent of self-government granted to the profession in England by that Act. It has to be remembered, however, that in England Parliament is supreme and there is no constitutional bar to legislation which entrusts persons other than judges with the exercise of powers which ordinarily are entrusted to the Courts and which would fulfil the tests laid down in the definition of judicial power above cited.
While I accept, as do the appellants, that solicitors are officers of Court I do not consider that the control and discipline exercised by the Courts over them can be regarded as a domestic matter or that the relationship which exists between them and the Court is analogous to that which exists between the State or Government and civil servants. The nature of the relationship was examined in a number of American cases. If I may summarise the result of a perusal of the cases of Ex parte Robinson (1); Ex parte Garland (2), and Ex parte Wall (3), the view taken by the Supreme Court of the United States is that the Order of Admission is the judgment by the Court that they (attorneys) possess the requisite qualifications, both in character and learning, and are entitled to appear as attorneys and counsellors and to conduct cases therein. Thenceforth they are responsible to the Court for professional misconduct and entitled to hold their office during good behaviour, and can only be deprived of it for misconduct ascertained and declared by the judgment of the Court. All attorney is obliged to take an oath the terms of which are set out in the judgment of Field J. in Ex parte Wall (3). The obligations undertaken are in effect the same as those which the Courts here have always imposed upon solicitors although no formal oath is exacted. The learned Judge goes on to say that “so long as he carried out the requirements of his oath he will come within the rule of good behaviour and no complaint of his professional standing can be made. The authority which the Court holds over him and the exercise of his profession extends so far and so far only as to insure compliance with these requirements.”The right to practice his profession is regarded as “his property” within the meaning of the Constitution.
The logical result of the view held by the Courts of the United States is that both the admission of attorneys and their being excluded is an exercise of judicial power. In Ex parte Garland (2) Mr. Justice Field said, at p. 378:
“The order of admission is the judgment of the Court that the parties possess the requisite qualifications as attorneys and counsellors and are entitled to appear as such and conduct causes therein. From its entry the parties become officers of the Court, and are responsible to it for professional misconduct. They hold their office during good behaviour and can only be deprived of it for misconduct ascertained and declared by the judgment of the Court after opportunity to be heard has been afforded. Their admission or their exclusion is not the exercise of a mere ministerial power. It is the exercise of judicial power, and has been so held in numerous cases. It was so held by the Court of Appeals of New York in the matter of the application of Cooper for admission. ‘Attorneys and counsellors’ said that Court, ‘are not only officers of the Court, but officers whose duties relate almost exclusively to proceedings of a judicial nature. And hence their appointment may, with propriety, be intrusted to the Courts, and the latter in performing this duty may very justly be considered as engaged in the exercise of their appropriate judicial functions.'”
As in my opinion the relationship between solicitors and the Courts Here is similar to the position of attorneys in the United States the same result must follow.
I am of opinion that the question whether a solicitor is to be allowed to continue to practise his profession is a justiciable controversy. By its adjudication the Committee purports to decide the controversy in a final manner and if necessary its decision will be enforced by the authority of the State. The fact that there is a right of appeal (s. 23) to the Courts does not take away from the finality of the decision. If the existence of a right of appeal were sufficient to deprive the exercise of its powers by a tribunal not composed of judges of the character of an exercise of judicial power this would have been a simple answer to the contention in Lynham and Butler (No. 2) (1) that in discharging the functions under s. 40, sub-ss. 1, 2 and 4, of the Land Act, 1923, the Commissioners other than the Judicial Commissioner purported to exercise judicial power as an appeal from their decision lies to the Judicial Commissioner.
I perhaps should advert to the argument pressed so strongly by Mr. FitzGibbon and Mr. McCarthy that powers similar to those now conferred upon the solicitors’ profession have without objection been exercised by committees chosen from their members by other professional bodies. As has been pointed out doctors, dentists, veterinary surgeons and nurses have a great measure of control over members of their various professions. The solicitors’ profession in one important particular stands in a different position. As has so often been emphasised they are officers of the Court and came into existence as part of the machinery for the administration of justice. Furthermore, although the Legislature has in the various Acts referred to given sanction to the procedure whereby these other professional bodies control the discipline of their members, none of these Acts have been challenged in the Courts. I am not suggesting that it might successfully be contended that the committees set up to control the members of these professions are exercising judicial power but I do not think that any argument can be based upon the fact that they have so far been functioning without objection. It was also suggested that there was an analogy between this Act and the Court Officers Act, 1926, which transferred to the Minister for Justice control previously exercised by the judges over Court officers. In answer it was pointed out that the question whether this Act was repugnant to the Constitution has not been raised for decision. Accordingly, I hold that the Disciplinary Committee in ordering that the appellant’s names be struck off the roll of solicitors were purporting’ to exercise Judicial power.
I turn now to the question whether the provisions of the Act which are impugned are within the terms of Article 37 of the Constitution and therefore not to be invalidated because the powers conferred upon the Disciplinary Committee are limited. The only case in which the effect of this Article was considered was Foley v. Irish Land Commission and Another (1). One of the questions which arose in that case was whether certain provisions of s. 2 of the Land Act, 1946, were valid having regard to the provisions of, amongst other Articles, Articles 34 and 37 of the Constitution. The provisions challenged entitled the Land Commission to give a direction to a purchaser of a holding to reside continuously in the dwelling-house (s. 2 (b) (i)) and, if a purchaser fails to do so, recover possession of the holding. It furthermore provides that a certificate that a direction under the section has not been complied with shall be conclusive evidence of the fact so certified. Mr. Justice O’Byrne giving the judgment of the Court said, at p. 156:”Conceding, but without deciding, that the power conferred on the Land Commission by the said clause is a function or power of a judicial nature, it seems to us, having regard to the matters which are to be determined before that certificate can properly be granted and to the nature of the authority by whom the determination is to be made, to be clearly a limited function or power within the meaning of Article 37 and to be expressly authorised by that Article.” The nature of the authority, however, set up under the Solicitors Act differs very much from the Land Commission, as do the matters which have to be decided before this authority makes its decision. Furthermore, as has been pointed out, this part of the judgment might be regarded as obiter.
I find great difficulty in giving a clear meaning to the words, “limited functions and powers of a judicial nature,”in the Article. The meanings of the adjective, “limited,”in the Oxford Dictionary are “circumscribed within definite limits, bounded, restricted.” The power given to the Committee in my opinion is limited in two ways. Firstly, the jurisdiction of the Committee is to be exercised only over a limited group of persons, namely, members of the solicitors’ profession. Secondly, there is an appeal to the Court against an order striking the name of a solicitor off the roll. While the existence of such a right of appeal does not prevent the power given from being regarded as an exercise of judicial power it does impose a restriction upon its exercise. Mr. Conolly submits that in order to be within the Article some material element must be abstracted from the power given. In this Act, he submits, no material element is abstracted and full powers are given to a subordinate tribunal. He also submitted that “limited”cannot mean “limited as to subject-matter.” I confess to some difficulty in following the first submission. I do not understand how it could supply a practical test to discover whether powers given are limited or not. I do not accept the second submission. I do not see why the word, “limited,” cannot apply to the subject-matter in relation to which judicial powers are given.
There is undoubtedly a debatable territory between powers of a limited nature and those which are unlimited. I find it extremely difficult to say where the boundary between them lies. As at present advised I would be inclined to hold that Article 37 would not protect the giving of power to decide all questions of negligence to persons who have not been appointed as judges in manner provided by the Constitution. I give this instance merely because it was put forward in argument by Mr. Conolly as a possible transfer of power from the Courts which, he submitted, would be on a par with what has been done by the Solicitors Act. In my view, however, there is a very big difference between conferring such powers on a lay tribunal and what has been done by the Act. Having regard to the nature and scope of the powers conferred upon the Committee and to the restriction upon their exercise imposed I have come to the conclusion that they are powers of a limited nature within Article 37 of the Constitution. Accordingly, I hold that the provisions of the Solicitors Act which have been challenged are not repugnant to the Constitution.

Supreme Court

MAGUIRE C.J. :
This is the first appeal to come before me under the Solicitors Act, 1954, and I have to approach it in the light of the provisions of that Act. The Act transfers to the Disciplinary Committee of the Incorporated Law Society of Ireland powers formerly exercised solely by the Chief Justice and enables the Committee on enquiry into the conduct of a solicitor to make an order striking the firm’s name off the roll of solicitors.
Under the Solicitors Act of 1898, the Committee set up under the Act was merely empowered to send forward a report to the Chief Justice with whom alone the jurisdiction lay to make such an order. I consider that it was the intention of the Act to place the Disciplinary Committee in control of the discipline of solicitors. While under the former procedure I was always anxious to know the view of the Society in a particular case as to the punishment to be meted out, the Society could not do more than suggest what punishment should be imposed. I consider that the Act has this effect, that in considering an appeal from the Disciplinary Committee I should not interfere with the decision of the Committee unless it is clear that the decision was wrong and, when it comes to the question of punishment, unless it seems to me that the punishment is out of proportion to the misconduct found I should not interfere with it.
I had this sort of case frequently before me before this Act was passed and I have often been seriously worried where financial difficulties lead to misconduct on the part of the solicitor. However sympathetic I felt I have always been reluctant not to make an order striking a solicitor off the rolls where there is such misconduct, because of the necessity of protecting the public. Solicitors and the solicitors’ profession should be above reproach. The position is now changed and the Disciplinary Committee is now given the power to punish. The Committee has to bear in mind the same considerations. The integrity of the profession and the protection of the public are the most important matters. It may or may not be that the solicitors themselves are harder taskmasters than I was. They may decide to strike off where I would have allowed an opportunity of reform. Where the money has been paid back and there is reasonable probability that the defaulter would not be guilty of the same misconduct again I have sometimes given him another chance.
Both solicitors were of good family and of some means. Both began to neglect their business about the same time for different reasons. I cannot understand how this happened. Mr. Conolly urges various reasons. O’Farrell allowed the business to get into a state of confusion. Gorman disclaims responsibility for the particular act of misconduct of which he and his partner have been found guilty by the Committee. It was, however, misconduct of the partnership. Gorman says that while it was going on he had nothing to do with the business. That might be so; but it was a very strange thing that it happened during the early period of last year and numerous claims of the client offended were made over a long period. If Gorman was unaware of what was happening it is more than strange that he did not appear before the Committee and explain. There was the obvious danger of the order being made that was in fact made. Yet he did not deign to appear before the Committee. I think that these men got into such a desparate position that they thought it was useless to fight. What Mr. Conolly says supports that view. Their inability to pay small amounts shows that their financial solvency was a marginal matter.
What Mr. Conolly said might have weighed more strongly with me had I been exercising the powers previously vested in me. Different considerations, however, apply now when I am deciding that matter on appeal.
The Disciplinary Committee took the only course open to them in the circumstances. Mr. McCarthy is quite right in saying their treatment of the Committee must be put in the scales against the applicants. I am, and have always been, worried at the position of solicitors who are struck off the rolls. But clients and the public must be protected.
I see that the Society has a power which they had not formerly of refusing to issue certificates to any solicitor, whether he is on the roll or not. That is a very drastic power. Even if I were to reverse this order these men would still have to apply for certificates in order to be able to practise and these might be refused because of the existing judgments against them.
While I feel how severe the punishment is, I ought to have regard to the view of the Society here. Had I felt that had these men been before the Committee and placed before that body the matters which have been placed before me to-day this drastic course would not have been taken I might have suggested to the Society to reconsider the matter and give them an opportunity of instructing counsel and presenting their case at a further hearing. Mr. McCarthy says, however, that there is no hope of a change of attitude on the part of the Society in these cases and therefore nothing would be gained by my suggesting such a course to them.

LAVERY J. :
7 March 1958

The judgment of the Court will be read by Mr. Justice Kingsmill Moore.

KINGSMILL MOORE J. :
The appellants were both solicitors, carrying on business in partnership, against whom a complaint was made that they were retaining monies of a client which should have been paid over to her. The secretary of the Incorporated Law Society, acting under the direction and on behalf of the Society, thereupon made application to the Disciplinary Committee of the Society, set up under the Solicitors Act, 1954, in respect of each of them. The application was that they might be required to answer the allegations of misconduct contained in an accompanying affidavit; that their names be struck off the roll of solicitors; or that such other order be made as the Committee should consider right under the powers given them by s. 14 of the Act. The Committee duly held an inquiry as provided by s. 16, sub-s. 3 (b). Neither appellant filed an affidavit, nor appeared in person or by solicitor or counsel. The Committee found each appellant guilty of misconduct; they ordered their names to be struck off the roll of solicitors; ordered them to pay to the Society the costs of the application, inquiry and order, taxed on the scale of costs applicable to a High Court proceedings: and ordered that the findings and order of the Committee he published in Iris Oifigiúil, three daily papers and the Gazette of the Society.
From this order the appellants appealed to the Chief Justice under the provisions of s. 23, on a number of grounds, of which it is only necessary to set out one. It runs:

“The entire of said Solicitors Act, 1954, and in particular sections 4, 5, 7, 13 to 23 inclusive, are ultra vires the Constitution of Ireland, in that they purport to delegate the constitutional judicial authority of the Chief Justice to a body or group of persons not created or sanctioned by the Constitution of Ireland and not appointed by the Chief Justice, and that the said Act is unconstitutional in that it is an unconstitutional and unwarranted limitation and usurpation of the powers, rights and duties of the Chief Justice and the Judiciary as constitutionally established by the Constitution of Ireland.”
The Chief Justice after a lengthy hearing and a full examination of authorities, both American and Irish, came to the conclusion that the Disciplinary Committee, in ordering that the appellants names be struck off the roll of solicitors, were purporting to exercise judicial power: that by the joint effect of Articles 6, 2 and 34 of the Constitution the judicial power of the State was vested in judges appointed in manner provided by the Constitution, subject to the qualification provided by Article 37: and that the power given to the Disciplinary Committee was properly described as “a limited function and power of a judicial nature”within the meaning of those words as used in Article 37, and so might constitutionally be exercised by the Disciplinary Committee. From this decision the appellants have appealed to the Supreme Court on the grounds that Part III of the Solicitors Act is unconstitutional and that the powers of the Disciplinary Committee are not “limited functions or powers” within the saving provisions of Article 37. The Attorney General and the Incorporated Law Society lodged notices of cross-appeal against so much of the judgment of the Chief Justice as holds that the powers conferred on the Disciplinary Committee involve an exercise of judicial power, and that the action of the Committee was an exercise of judicial power.
The relevant provisions of the Constitution restricting the exercise of judicial power by persons other than judges are as follows:
Article 6, 1. “All powers of government, legislative, executive and judicial, derive, under God, from the people. . . .
2. Those powers of government are exercisable only by or on the authority of the organs of State established by this Constitution.”
Article 34, 1. “Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution. . . .”
Article 37. “Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.”
“Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution. . . .” The corollary must be that justice is not to be administered by persons who are not judges appointed in the manner provided by the Constitution, save in those cases specially excluded by other provisions of the Constitution. What is “justice,” or what is “the administration of justice,” is nowhere defined. That the trial of criminal matters and “offences” is administration of justice is clear from Article 38 which, by way of exception, authorises, in particular cases, the trial of offences by special courts and military tribunals. A characteristic feature of criminal matters is the infliction of penalties, a consideration which gives weight to the submission that a tribunal which is authorised to inflict a penalty, especially a severe penalty, even in cases where the offence is not strictly criminal, should be regarded as administering justice.
Article 37 authorises the exercise of “limited functions and powers of a judicial nature” in matters other than criminal matters by a person or body of persons not being a judge or a court appointed or established as such under the Constitution. The corollary is that powers and functions of a judicial nature cannot be exercised by non-judicial persons unless they can be correctly described as “limited.”
What is the meaning to be given to the word “limited”?It is not a question of “limited jurisdiction” whether the limitation be in regard to persons or subject-matter. Limited jurisdictions are specially dealt with in Article 34, 3, 4. It is the “powers and functions” which must be”limited,” not the ambit of their exercise. Nor is the test of limitation to be sought in the number of powers and functions which are exercised. The Constitution does not say “powers and functions limited in number.” Again it must be emphasised that it is the powers and functions which are in their own nature to be limited. A tribunal having but a few powers and functions but those of far-reaching effect and importance could not properly be regarded as exercising “limited” powers and functions. The judicial power of the State is by Article 34 of the Constitution lodged in the Courts, and the provisions of Article 37 do not admit of that power being trenched upon, or of its being withdrawn piecemeal from the Courts. The test as to whether a power is or is not “limited” in the opinion of the Court, lies in the effect of the assigned power when exercised. If the exercise of the assigned powers and functions is calculated ordinarily to affect in the most profound and far-reaching way the lives, liberties, fortunes or reputations of those against whom they are exercised they cannot properly be described as “limited.”
The short point involved in this appeal is whether the Disciplinary Committee, set up by the Act, has been given owers and functions the exercise of which involves the”administration of justice” and which cannot properly be regarded as falling within the saving provisions of Article 37.
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 Stateit 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.
Such a question can only arise where there is a written constitution embodying the theory of the separation of powers. The cases give more assistance in determining what is not to be regarded as an encroachment on the administration of justice than what is. Thus in Shell Co. of Australia v. Federal Commissioner of Taxation (1), the question to be considered was what was meant by “the judicial powers of the Commonwealth” under Article 71 of the Constitution of the Australian Commonwealth. Lord Sankey delivering the opinion of the Board said, at p. 297:”. . . it may be useful to enumerate some negative propositions on this subject: 1. A tribunal is not necessarily a Court in this strict sense because it gives a final decision. 2. Nor because it hears witnesses on oath. 3. Nor because two or more contending parties appear before it between whom it has to decide. 4. Nor because it gives decisions which affect the rights of subjects. 5. Nor because there is an appeal to a Court. 6. Nor because it is a body to which a matter is referred by another body.”
Lord Sankey does not say that the existence of those attributes can be left out of account, but merely that no one of them is necessarily decisive.
The decisions of our Courts have been concerned chiefly with the distinction between administrative and judicial power, a distinction which is not cardinal in the present case. The leading authority is Lynham v. Butler (No. 2) (2),decided under the Constitution of 1922. Article 64 of that Constitution provided that “the judicial power of the Irish Free State shall be exercised and justice administered in the public Courts established by the Oireachtas by judges appointed in manner hereinafter provided,” wording very similar to that of our present Constitution. The Lay Commissioners of the Irish Land Commission had decided that certain lands were properly included in a provisional list of tenants’ lands to be vested in the Land Commission under the provisions of the Land Act, 1923. It was objected that in so doing they were exercising “the judicial power of the State” which by Article 64 could only be exercised by properly appointed judges. The decision of the Court was to the effect that, in making the ruling objected to, the Commissioners were exercising merely administrative and ministerial powers, but passages in the judgments help to mark out the limits of judicial as opposed to administrative or executive powers.
The fact that the powers entrusted to a tribunal must be exercised judicially does not in itself make their exercise an exercise of the judicial power. “The nature of some of their ministerial duties required that they be performed judicially, in the sense that they must be performed with fairness and impartiality, and in such a way as not to offend against the canons of natural justice, which requirement however will not convert a ministerial act into a judicial act in the sense of an act which must be performed by a judge in a Court of Justice,” per Kennedy C.J., at p. 104. Mr. Justice Johnston cites and adopts a passage from the judgment in People v. Hasbrouck (1) which is to the same effect:”Many executive officers . . . act judicially in the determination of facts in the performance of their official duties; and in so doing they do not exercise ‘judicial power’ as that phrase is commonly used and as it is used in the organic Act, in conferring judicial power upon specified courts.”
Nor does the fact that a tribunal may incidentally have to determine legal questions involve the conclusion that it is exercising judicial power. Mr. Justice Johnston cites and adopts a passage from the judgment in Reetz v.Michigan (2):”It not infrequently happens that a full discharge of their duties compels boards or officers of a purely ministerial character to consider and determine questions of a legal nature. Due process is not necessarily judicial process.”
Nor is it material that the tribunal surrounds itself with the “trappings of Courts” or follows the usual procedure of a trial.
Kennedy C.J. after referring to certain decisions on the constitution of the Commonwealth of Australia, and approving excerpts from the judgments given in those cases, gives his own summary of the elements of judicial power at page 99.
“In the first place, the Judicial Power of the State is, like the Legislative Power and the Executive Power, one of the attributes of sovereignty, and a function of government. (See Article 2 of the Constitution.) It is one of the activities of the government of a civilised state by which it fulfils its purpose of social order and peace by determining in accordance with the laws of the State all controversies of a justiciable nature arising within the territory of the State, and for that purpose exercising the authority of the State over person and property. The controversies which fall to it for determination may be divided into two classes, criminal and civil. In relation to the former class of controversy, the Judicial Power is exercised in determining the guilt or innocence of persons charged with offences against the State itself and in determining the punishments to be inflicted upon persons found guilty of offences charged against them, which punishments it then becomes the obligation of the Executive Department of Government to carry into effect. In relation to justiciable controversies of the civil class, the Judicial Power is exercised in determining in a final manner, by definitive adjudication according to law, rights or obligations in dispute between citizen and citizen, or between citizens and the State, or between any parties whoever they be and in binding the parties by such determination which will be enforced if necessary with the authority of the State. Its characteristic public good in its civil aspect is finality and authority, the decisive ending of disputes and quarrels, and the avoidance of private methods of violence in asserting or resisting claims alleged or denied. It follows from its nature as I have described it that the exercise of the Judicial Power, which is coercive and must frequently act against the will of one of the parties to enforce its decision adverse to that party, requires of necessity that the Judicial Department of Government have compulsive authority over persons as, for instance, it must have authority to compel appearance of a party before it, to compel the attendance of witnesses, to order the execution of its judgments against persons and property.”
It may be observed by way of anticipation of what is said subsequently that the decisions of the Disciplinary Committee may partake of the characteristics which in the opinion of Kennedy C.J. distinguish both civil and criminal justiciable controversies. They may determine the guilt or innocence of persons charged with offences against a code not indeed directly imposed by the State but recognised and authorised by it primarily in the interest of its citizens, and may inflict severe penalties for breaches of it, and may determine in a final manner rights and obligations in dispute between parties, which determination will be enforced by the authority of the State.
Fisher v. Irish Land Commission (1) was a case where the power of the Lay Commissioners to decide what land was to be resumed from a tenant was challenged as being an exercise of judicial power. Until the passing of the Land Act, 1933, questions of resumption were, by statute, reserved for the decision of the Judicial Commissioner who had the status of a judge. By the Land Act, 1933, and s. 39 of the Land Act, 1939, power was given to the Land Commission to resume a holding for certain purposes. If the tenant objected he could apply by petition to the Lay Commissioners who decided whether the holding should be resumed or not. An appeal lay to the Judicial Commissioner on a question of law only. The Supreme Court decided that no question of judicial power was involved.”In making these enquiries and coming to a final decision as to whether the particular parcel of land should be taken, we are of opinion that these officials are determining no question of legal right, but are considering and determining whether, for the purpose of effectuating the general purposes and policy of the Acts, it is necessary to acquire the particular parcel of land. Taking this view, we are of opinion that all the steps contemplated by sub-s. 2 are steps to be taken in an inquiry of a purely administrative character and that the sub-section does not contemplate or intend the determination of legal right, either by the Lay Commissioners or by the Appeal Tribunal” (p. 25). “The fact that certain functions were assigned to the Judicial Commissioner, in connection with resumption proceedings, does not of itself preclude the Legislature from giving those powers to an administrative body such as the Lay Commissioners, alone or in combination with the Appeal Tribunal” (p. 26).
Mr. Justice Gavan Duffy, in the initial hearing, gave a useful summary of what did not constitute judicial power.”Manifestly the Land Commission, operating under s. 39, does not cease to be classifiable as a non-judicial tribunal because it must not exceed the bounds of the statutory jurisdiction, nor because its final decision to resume entails the annulment of a vested right of property, as all compulsory purchase does, nor because, in reaching a decision on broad grounds of policy, it may sometimes have to consider some legal question (though no legal problem seems to have arisen here)” (p. 14).
The State (Crowley) v. Irish Land Commission (1) and Foley v. Irish Land Commission (2) merely emphasised that the Lay Commissioners, though not exercising judicial powers, were yet bound to act judicially.
The nature of judicial power has also come under consideration in Australia where the Constitution of the Commonwealth, by article 71, provides that “the judicial powers of the Commonwealth shall be vested in a Federal Supreme Court . . . and such other Federal Courts as the Parliament creates. . . .” The most important of the cases are Huddart, Parker & Co. v. Moorehead (3); Waterside Workers’ Federation of Australia v. Alexander (J. W.)
Ltd. (1); British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation (2); Shell Co. of Australia v. Federal Commissioner of Taxation (3) and Attorney-General for Australiav. The Queen (4). Most of the issues which arose in those cases are not pertinent to the present case and it is unnecessary to refer to them in detail, but some of the suggested definitions of judicial power require to be noted.
The decision in Huddart, Parker & Co. v. Moorehead (5)was that a power of interrogation (coupled with all obligation to answer) which had been conferred on an administrative officer, was not an exercise of the judicial power of the Commonwealth. Griffith C.J. gave a definition which has met with the approval of Kennedy C.J. in Lynham v. Butler (No. 2) (6) and Lord Sankey L.C. in the Shell Case (3) and was referred to as “a classic and widely accepted definition”by Viscount Simonds in Attorney-General for Australia v. The Queen (at p. 621) (4):”I am of opinion that the words ‘judicial power’ as used in Section 71 of the Constitution mean the power which every sovereign authority must of necessity have to decide controversies between its subjects or between itself and its subjects, whether the rights relate to life, liberty or property. The exercise of this power does not begin until some tribunal which has power to give a binding and authoritative decision (whether subject to appeal or not) is called upon to take action.” Mr. Justice Isaacs adopted as correct the words of Holmes J. in Purtis v.Atlantic Coast Line (7): “The nature of the final act determines the nature of the previous enquiry”; and further adopts as a correct test of what is judicial power (as opposed to administrative) the criterion laid down by Palles C.B. in R. (Wexford Co. Council) v. Local Government Board (8):”To erect a tribunal into a ‘Court’ or ‘Jurisdiction’ so as to make its determinations judicial, the essential element is that it should have power, by its determination,within jurisdiction, to impose liability or affect rights. By this I mean that the liability is imposed, or the right affected by the determination only, and not by the fact determined, and so that the liability will exist, or the right will be affected, although the determination be wrong in law or in fact. . . . But where the determination binds, although it is based on an erroneous view of facts or law, then the power authorising it is judicial.”
The Waterside Workers Case (1) decided that a Court of Conciliation and Arbitration was exercising judicial power in so far as it was empowered to impose penalties for breaches or non-observance of its orders and awards. Griffith C.J. gave a further definition of judicial power, which also met with the approval of Kennedy C.J. in Lynham’s Case (1):”Without attempting an exhaustive definition of the term ‘Judicial power’ it may be said that it includes the power to compel the appearance of persons before the tribunal in which it is vested, to adjudicate between adverse parties as to legal claims, rights, and obligations, whatever their origin, and to order right to be done in the matter”(at pp. 442 seq.). And at p. 443 he says:”In any view the duties which are to be declared by a tribunal consequent upon a legal obligation are matters for the exercise of judicial power. For myself I cannot understand the creation of a tribunal except for declaring and giving effect to some right existing at the time of such declaration and giving effect. If however the only powers conferred upon a so-called tribunal are in the nature of calculation, on the mere ascertainment of some physical fact or facts, and not the declaration of or giving effect to a controverted matter of legal rights, it may be that they do not appertain, except incidentally to the judicial power. It is not disputed that convictions for offences, and the imposition of penalties and punishments are matters appertaining exclusively to that power”. The learned Chief Justice was also of the opinion that “the exercise of the power to impose penalties is admittedly an exercise of the judicial power” (at p. 445) and that “whenever the tribunal is required to decide questions of conduct, whether under existing law or under its own decree, its functions are, to that extent at least, judicial.”He concludes that many, if not all of the functions of the Arbitration Court were matters appertaining to the judicial powers and that authority to deal with them could not be committed to any tribunal but a Court.
Mr. Justice Barton adopted the definition of judicial power suggested by Mr. Justice Miller in his lectures on the Constitution of the United States:”It is the power of a Court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision,” and adds:”It is important to observe that the judicial power includes, with the decisions and the pronouncement of judgment, the power to carry that judgment into effect between the contending parties. Whether the power of enforcement is essential to be conferred or not, when it is conferred as part of the whole the judicial power is undeniably complete.”
Isaacs and Rich JJ. considered that “the judicial power is concerned with the ascertainment, declaration and enforcement of rights and liabilities of the parties as they exist, or are deemed to exist at the moment the proceedings are instituted” but the function of an arbitral power was to ascertain and declare what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties. In so far as power was given to a Court to enforce the rights so declared, this was an exercise of judicial power.
Mr. Justice Power was of opinion that “a Court of judicature is a Court to settle existing rights between parties”which an arbitration court was not, but he also held that the power to enforce was essentially a judicial power. The definitions of judicial power in this case are concerned with drawing the line between judicial and arbitral power.
In British Imperial Oil Co. Ltd. v. Federal Commissioner of Taxation (1) the High Court of Australia held that a Board of Appeal, which had power to ascertain and declare finally the liability of a taxpayer to income tax, was unconstitutional because it exercised judicial power, even though the statute creating it provided that it was not to be bound by the rules of evidence and, in arriving at its decision, was to be guided by “good conscience and the facts of the case.”
In Shell Co. of Australia Ltd. v. Federal Commissioner of Taxation (2), already referred to, the Privy Council affirmed a decision of the High Court of Australia that a board of review, set up by a statute of 1925, did not trespass on the judicial power as it was only given, by way of appeal, the same functions and powers as those of the Commissioner of Taxation, and that those powers were purely administrative. Moreover the orders of the board were in no way final or conclusive, but were subject to modification by a further assessment.
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.

It is now necessary to consider the constitution, powers and functions of the tribunal whose jurisdiction is impugned as being unconstitutional.
It is set up under the Act of 1954 under the name of”The Disciplinary Committee” and is composed of practising solicitors who are or have been members of the Council of the Society, to a number of not less than seven or more than ten, appointed annually by the Society. Although it is a committee of the Society applications may be made to it by the Society itself acting as complainant, and the Secretary to the Society may do all necessary acts and appear for the Society at the hearing (Disciplinary Committee Rules, Rule 34). Their hearings are not public (Rule 33).
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 (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 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 are not administering justice the Constitution imposes no restrictions on the composition of the body.
The applications which may be made to the tribunal are set out in s. 14, and it is only necessary to consider those set out in sub-s. 1, (b) and (c), of the section.
“14.(1) The following applications shall be made to the Disciplinary Committee:
“(b) an application by another person or the Society to strike the name of a solicitor off the roll on any of the following grounds:”
“(i) that the solicitor has been guilty of misconduct, including conduct tending to bring the solicitors’ profession into disrepute,
(ii) that the solicitor has contravened a provision of this Act or of an order or regulation made under this Act,
(iii) that the solicitor has been convicted of treason or of a felony or misdemeanour or has been convicted outside the State of a crime or offence which would be a felony or misdemeanour if committed in the State,
“(c) an application to require a solicitor to answer allegations contained in an affidavit.”
If the Committee is not satisfied as a result of preliminary investigations that the application is unfounded it holds an inquiry (s. 16). Notice must be served on the parties to an application but, on proof of such service, if any party does not attend, the Committee may determine the matter in his absence (Rule 26). By s. 19 the Committeehave 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 or otherwise and in respect of the compelling of the production of documents; and a summons signed by a member of the Committee may be substituted for and is equivalent to “any formal process capable of being issued in an action for enforcing the attendance of witnesses and compelling the production of documents”(s. 19, sub-s. 1). Power to make an order for examination of witnesses on commission is given by Rule 21; and witnesses before the Committee are sworn, examined, cross-examined and re-examined in the same manner as in judicial proceedings (Rule 22). By s. 21 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.” As far as procedural matters go there have been conferred on the Committee powers assimilated to those of the High Court, and while mere matters of procedure taken by themselves would not necessarily be sufficient ground for declaring a tribunal unconstitutional it is an element for consideration that the Committee has in many respects been invested with powers equivalent to those of the High Court.

The decisive test in the opinion of the Court lies in the orders which by s. 18 the Committee is empowered to make. The Committee may remove or strike off the roll the name of a solicitor, award to either party costs (which by s. 20, sub-s. 3, and the rules made thereunder may be taxed by the Taxing Master under the scale of costs applicable to High Court proceedings and are to be recoverable as if taxed under an order of the High Court) and may order the making by the solicitor of such restitution or satisfaction to any aggrieved party as the Committee may think fit.
Presumably restitution or satisfaction could only be made where there had been something in the nature of misconduct, but misconduct would include fraud and negligence. Damages awarded by a Court for fraud or negligence are primarily an attempt to produce “restitutio in integrum” and the Court is unable to distinguish the power given to the Committee from the power given to a Court, unless indeed it be that the power given to the Committee is wider than any that a Court can exercise. The questions which can arise before the Committee are 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. In the opinion of the Court a tribunal which may make such an order is properly described as administering justice and such a tribunal unless composed of judges is unconstitutional.
The power to strike a solicitor off the rolls is a”disciplinary” and “punitive” power, to adopt the language of the judges in In re Grey (1) per Lord Esher, at pp. 443, 444, Bowen L.J., at p. 447, Kay L.J., at p. 449, although the process is not a “criminal cause or matter”within s. 47 of the Judicature Act, 1873: In re Hardwicke (2); In re Eede (3). It is a sanction of such severity that in its consequences it may be much more serious than a term of imprisonment. Admission to the roll of solicitors is only attained after a long apprenticeship and training and the attainment of a high standard of legal knowledge. A connection is only built up by years of work. When a solicitor is struck off the roll all his training and endeavours go for nothing. It becomes a penal offence for him to practise as a solicitor and he may not without the written permission of the Society even obtain work as a solicitor’s clerk (ss. 55-60). Does it matter that the offence for which the penalty is imposed is not one which is a criminal offence? The imposition of a penalty, which has such consequences, would seem to demand from those who impose it the qualities of impartiality, independence and experience which are required for the holder of a judicial office who, under the criminal law, imposes a fine or short sentence of imprisonment. The only justification for such penalties must be that they are necessary in the interest of the public and of a profession which serves the public. Members of the tribunal when they impose such penalties are in a real sense performing an act of justice in a matter which is a concern of the State as well as of the profession and which the State, by its judges, has hitherto reserved to itself. 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 Courts 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 requirements of the office but of retaining those who do. The Act does indeed preserve the power of the judges to strike off (s. 14, sub-s. 3) but in as much as similar power is given to the Committee it affects adversely the Court’s power to retain.
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.
It is urged that the existence of an appeal to the Chief Justice is sufficient to answer these objections. The Chief Justice in his judgment took the view that, notwithstanding his own opinion as to the merits, he was not at liberty to act as if he were engaged on an untrammelled re-hearing and he must not interfere with the decisions of the Committee unless he was clear that the decision was wrong, nor interfere with the punishment unless he was convinced that it was out of proportion to the misconduct. If this view be correct the appeal is but an indifferent protection, but, even if it be not correct, the existence of an appeal to the Courts cannot restore constitutionality to a tribunal whose decisions, if unappealed, amount to an 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. It follows that the two appellants were not validly struck off the roll of solicitors.