Crayden v Sea Fishiries Protection Authority: Supreme Court addresses seeming conflict of authorities on right to a fair hearing in administrative law

Here, Crayden Fisheries v Sea-Fisheries Protection Authority, the Supreme Court upheld the High Court’s decision that the European Union (Common Fisheries Policy) (Points System) Regulations 2014 breached the right to a fair hearing, but on narrower grounds. The Court rejected the High Court’s statement that “O’Ceallaigh and Dellway represent the modern law on the subject of the right to participate in proceedings which may result in an adverse decision” [HC 125] [SC 23, 31]. O’Donnell J, writing for a unanimous five judge panel, stated that:

the default position is that a person conducting a preliminary investigation which itself does not lead directly in law to a binding and adverse decision, is not normally under an obligation to comply with a requirement of a fair hearing. … [But the right to a fair hearing may be] seen as an integral and necessary part of a process which could terminate in an action adverse to the interests of the person claiming to be heard [31].

 

Background

This appeal was heard along with O’Sullivan Sea-Fisheries Protection Authority (see previous post). Crayden Fisheries is a limited company which operates a fishing vessel, the Anders Nees. On the 2nd of December 2014, Sea Fisheries Protection Officers boarded the Anders Ness as it returned to port. The Officer in charge alleges that the vessel’s master informed her that the electronic logbook was up to date, but on inspection she found quantities of whiting which were not recorded and in breach of the vessel’s quota.

On the 15th of December, Crayden received the Officer’s report, which outlined alleged breaches of the Regulations. But the report made no reference to contemplated action nor did it invite Crayden to submit a comment or response.

In January 2015,  the Authority notified Crayden that it had examined the evidence, determined the breaches to be serious and was proposing to assign 12 points (the maximum permissible number) to the vessel’s fishing licence. The notification informed Crayden that under the 2014 Regulations it had 21 days to appeal that decision in writing.

Crayden appealed the decision while also seeking leave of the High Court for judicial review. In February 2015, the High Court granted leave. Crayden sought an order of certiorari of the Authority’s decision to assign points; a declaration that the procedures set out in the Regulations are contrary to fair procedures and natural and constitutional justice; and a declaration that the manner by which the Authority purported to impose points was contrary to natural and constitutional justice.

 

2014 Regulations

Under the 2014 Regulations, the Officer in charge of an inspection of a vessel issues a report of any infringements to the Master of the vessel. The Officer submits a report to the Authority on any infringements by a licence holder. The Authority appoints a panel to determine the seriousness of any infringements. Where the panel finds that there has been a serious infringement, it determines how many points to assign to the licence and notifies the Master (or licence holder) with information on the right to appeal that decision in writing within 21 days. An appeals officer (Ministerial appointment) may allow an appeal where it is proven on the balance of probability that an infringement did not occur. A licence holder may appeal to the High Court on a point of law. The High Court’s decision is final and conclusive. There is no provision to defer the appointment of points pending a High Court decision.

 

High Court

O’Malley, Iseult J (here) granted Crayden a declaration that the manner by which the Authority sought to impose points on its fishing licence was contrary to fair procedure. The State (the Authority, Minister for Marine & Attorney General) sought leave to appeal directly to the Supreme Court, leapfrogging the Court of Appeal. The Supreme Court granted leave.

 

Supreme Court

O’Donnell J’s judgment looked at two questions. Firstly, was the decision of the determination panel and the subsequent appeal (if the licence holder decided to appeal) a single unified process? Or was it a two stage process? And secondly, if it was a two stage process, does the law require that Crayden had a right to a hearing before the determination panel?

The High Court had held that the determination and appeal was a two stage process. O’Malley J reviewed the case law on the right to a hearing and held that Dellway Investments Ltd & Ors v The National Asset Management Agency & Ors [2011] 4 IR 1 is authority for the modern law view that a person affected by a decision is entitled to have an input into the decision-making process.

On appeal, O’Donnell J reviewed the authorities on the right to a hearing before a determination panel and distinguished the factual circumstances where the law requires the right to a hearing and where it is not necessary. The seemingly conflicting Irish authorities were O’Ceallaigh v An Bord Altranais [2011] IESC 50 and McNamee v Revenue Commissioners [2016] IESC 33.

In O’Ceallaigh, a committee of the Bord had determined that, following complaints, there was a prima facie case of misconduct against her. Under a provision of the Nurses Act 1985, the Board sought a High Court injunction limiting O’Ceallaigh’s right to practise as a midwife pending a full inquiry. In that case, the Supreme Court held that it was a breach of natural justice to deny O’Ceallaigh a hearing prior to the seeking of the injunction.

In McNamee (see post), a Nominated Officer under the Tax Consolidation Acts 1997 formed an opinion that McNamee had made the transaction under investigation for the purpose of tax avoidance, calculated the tax advantage and notified Revenue and McNamee. McNamee had no right to a hearing before the Nominated Officer but could appeal the decision to an Appeals Commissioner or the Circuit Court. In that case, the Supreme Court held that the right to an appeal, including a full rehearing, meant that there was no breach of natural or constitutional justice.

O’Donnell J distinguished between the two cases on the facts: O’Ceallaigh, who was a self-employed midwife, would suffer a loss of income and possibly irreparable damage to her reputation; whereas McNamee would not be subject to any penalty prior to the conclusion of proceedings.

Stating that it was not “appropriate, necessary or indeed possible at this stage to offer a single bright line rule”, O’Donnell J clarified that:

the default position is that a person conducting a preliminary investigation which itself does not lead directly in law to a binding and adverse decision, is not normally under an obligation to comply with a requirement of a fair hearing. … [But the right to a fair hearing may be] seen as an integral and necessary part of a process which could terminate in an action adverse to the interests of the person claiming to be heard [31].

Outlining the policy reasons for that position, O’Donnell J stated:

32 It is also worth considering why the courts have remained slow to require the full panoply of a fair hearing at a preliminary stage. First, it might be observed that even if this is so, any preliminary procedure is not without legal constraint. It must be conducted intra vires, and if for example conducted with actual bias or the appearance of bias, could be restrained and/or quashed. It may be that there are other examples of cases where the procedure will be subject to judicial review. Accordingly the question is really whether fair procedures require notification and an opportunity for submissions at a preliminary stage, initiating a procedure which itself is obliged to be conducted in accordance with fair procedures. If however fair procedures apply without qualification at the preliminary stage, then as the decision in Re Haughey [1971] IR 217, and its progeny show, it is a very short step to requiring that process to be conducted by analogy with the demands of fairness observed in a full criminal trial. If for example there is a right to be consulted, then it may be argued that there is a right to be provided with the evidence, a further entitlement to demand disclosure or discovery of additional documentation, and if a factual dispute is asserted, to confront and cross-examine the accuser. Not only does this create a risk of endlessly self-replicating procedure, but any uncertainty as to what is required may lead to elaborate, costly and time consuming procedures being conducted at an early stage in an inquiry. This may extract a very high price in terms of efficiency, effectiveness and most of all, justice to all the parties concerned and the public. For this reason and others, it is critical to consider if the procedure as a whole has been fair to the individual concerned.

 

Conclusion

Dismissing the Authority’s appeal, O’Donnell J stated :

I conclude however that the minimal procedures which the Regulations of 2014 provide, which sets up in effect a single decision making process with an onus of disproof on the licence holder, falls short of the requirement of fair procedures. Accordingly, I would uphold the conclusion of the trial judge, albeit on this narrower basis [38].

 

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