O’Sullivan v Sea Fisheries Protection Authority: Minister’s administrative scheme breached fair procedure

Here, O’Sullivan v Sea Fisheries Protection Authority & Anor (Minister for Agriculture Food and the Marine), the Supreme Court overturned the High Court’s decision in this case in part and upheld it in part.

The Court found that Council Regulation (EC) 1224/2009 severely straitjackets Member States’ policy decisions on applying points for breaches of fishing rules; it only leaves open the choice of mechanism for applying points to fishing licences. Therefore, the Minister had not acted beyond his powers in creating a stand-alone administrative system for the application of points under the European Union (Common Policy) (Points System) Regulations 2014.

The Court, however, upheld the High Court decision that the administrative regime introduced under the 2014 Regulations breached the standard of fair procedure required by the Constitution, and the Regulations were therefore invalid.

 

Background

O’Sullivan owns a fishing vessel, The Tea Rose. In April 2015, Sea Fisheries Protection Officers boarded the vessel as it returned to harbour. After inspection and weighing of the fish on board, a garda cautioned the Master of the vessel and brought him before Bantry District Court to be charged for under-recording his catch contrary to the Sea Fisheries Regulations 2011. The following day, O’Sullivan requested that the Sea Fisheries Protection Authority suspend the application of points to the vessel’s licence under the 2014 Regulations pending the outcome of the criminal proceedings. The Agency informed the O’Sullivan that it had no discretion to defer the assignment of points to a fishing licence once it is notified of a serious infringement.

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 Master has the opportunity to submit comments to the Officer, who includes those in the report to the Authority. The Authority appoints a panel to review the seriousness of any infringements. Where the Authority 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

The High Court granted O’Sullivan an injunction preventing the Authority from applying points to his fishing licence, prior to a full hearing of his challenge to the 2014 Regulations. O’Sullivan argued that the 2014 Regulations breach a number of Articles of the Constitution: Art 15.2.1, which vests sole power to make laws in the Oireachtas; Art 34.4, which does not permit a minister to restrict the right of appeal from a decision of the High Court; and O’Sullivan argued that the 2014 Regulations went beyond the limited functions of a judicial nature which Art 37.1 permits an administrative body to perform.

O’Conor Tony J held that the 2014 Regulations were ultra vires s 3 of the European Communities Act 1972 and were, as a consequence, invalid having regard to the provisions of Art 15.2.1 of the Constitution.

The State sought leave to appeal directly to the Supreme Court. The Court granted leave to appeal on three issues (subject to refinement during case management):

(i) That the trial judge was incorrect to conclude that the Regulations contained measures which were not necessitated by Ireland’s membership of the European Union by virtue of those measures going beyond the principles and policies contained within relevant EU law;

(ii) That, consequently, the determination of the trial judge that the Regulations were ultra vires s.3 of the European Communities Act and thus invalid having regard to Art. 15 of the Constitution was incorrect; and

(iii) That the trial judge failed to have adequate regard to the requirement that it must be assumed that all procedures mandated by the Regulations will be operated fairly and in accordance with the principles of natural justice.

 

Supreme Court

O’Donnell J wrote the judgment for a unanimous five judge panel.

On review of Council Regulation (EC) 1224/2009, O’Donnell J found that it operated as a “regulatory straitjacket” on Member States, setting down uniform rules on the method of enforcement. Among other things, the Council Regulation set out the categories of transgressions attracting points; the number of points for each category of transgression; and the number of points which lead to the suspension of a licence [41].

Drawing a comparison between the facts of this case and Maher v Minister for Agriculture, O’Donnell J held that the matters dealt with in the 2014 Regulations were “incidental, supplemental and consequential” to the provisions of the Council Regulation, and the 2014 Regulations did not contravene Article 15.2.1 [43].

But on an overall assessment of the fairness of the procedures introducedthe requirement that the licence holder initiate proceedings and carry the burden of proof, the serious consequences for a licence holder of losing a licence, and the limitation on the right to appeal to the High Court on a point of lawO’Donnell J held that the High Court decision that the 2014 Regulations are invalid must be upheld on the narrow grounds of breaching fair procedure [44-52].

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New Appeal: Does the duty to make full disclosure when seeking leave for judicial review continue to have force as a legal principle?

In this determination, Shatter v Guerin, the Supreme Court granted Guerin leave to appeal the judgment of the Court of Appeal that he, Mr Seán Guerin SC, breached the then Minister Shatter’s right to fair procedure in the compilation of a report into handling of “allegations of grave deficiencies in the investigation and prosecution of crimes, in the County of Cavan and elsewhere, made by Sergeant Maurice McCabe”.

 

Background

In February 2014 the Government appointed Guerin to examine the handling of complaints by the Garda authorities and other public bodies, including the Department of Justice and Equality, of which Shatter was the minister. In May that year Guerin presented his report to the Taoiseach.

The report stated:

It is important to emphasise before embarking upon the review of individual incidents, that it is understood that the purpose of this review is not to make findings of fact or to determine any disputed question either of fact or law. Insofar as any views are expressed on factual matters, these are only facts as they appear from a review of the files that I have received. Any such expression is not an adjudication on any matter affecting the persons named or referred to in this report. It is possible that, with the benefit of an opportunity to interview or hear evidence from the individual members and officers of An Garda Síochána and civilians, including victims of crime, involved in these matters, a different view of the facts would emerge.

 

Later in the report, Guerin was critical of Shatter’s handling of Sergeant McCabe’s complaints.

On reading the report, the Taoiseach informed Shatter that he could no longer express confidence in him as minister. Shatter resigned.

In the High Court, Shatter instigated judicial review proceedings seeking any order of certiorari quashing Guerin’s findings relating to Shatter. One of Shatter’s grounds was a reasonable apprehension of bias: that Guerin “was a member of Professional Practice Committee which engaged in criticism of the applicant as Minister in respect of the Legal Services (Regulation) Bill 2011, which bill the applicant [Shatter] was centrally involved in promoting through the legislature”.

Dismissing Shatter’s application, Noonan J (here) stated:

158. It is clear from the evidence that the principle focus of these proceedings following their commencement was an attempt by the applicant to prevent the Commission investigating his role in relation to Sergeant McCabe’s complaints. That is now a fait accompli yet the applicant still seeks to curtail the statutory investigation by undermining the conclusions on which he says it is based. In that respect, I am of the view that the applicant seeks to mount a collateral attack on the Commission where a conscious decision was made not to join either the Commission or the Government in these proceedings. That cannot be permitted. It is a matter that goes to discretion as does the totally unwarranted allegation of bias publicly made against the respondent at the ex parte stage. Thus, even in the absence of the foregoing conclusions, I would exercise my discretion against granting relief.

 

The Court of Appeal agreed with the High Court’s finding that Shatter’s allegation of bias was unacceptable behaviour. But it allowed Shatter’s appeal (here, Ryan P) and upheld his complaint, stating:

103. My view, in summary, is that the appellant has established that he was a person whose constitutional rights were in jeopardy by reason of the conclusions that Mr. Guerin was proposing to include in his report, that the author was obliged to observe the rules of natural justice and in particular audi alteram partem, that there was in the circumstances breach of those rights because of the defective procedure that was adopted and that he is entitled to a declaration accordingly. I would therefore allow the appeal.

 

Supreme Court

Granting Guerin leave to appeal, the Supreme Court determined that he raised a point of law of public importance and that an appeal is in the public interest. The Court certified three questions:

a. Whether Mr. Shatter’s claim is justiciable in the circumstances in which and/or at the point in time at which, it was initiated.

b. The applicability and scope of fair procedures and constitutional issues to a task of the kind undertaken by Mr. Guerin, and the nature of requirements imposed thereby. Whether or not the judicial review amounted to a collateral attack on the decision to establish a Commission of Investigation, and, in particular, an attempt to have Mr. Shatter excluded from the Terms of Reference of such Commission.

c. Whether or not the duty to make full disclosure when seeking leave for judicial review continues to have force as a legal principle, and if so was it breached in this case by the allegation of bias against Mr Guerin.

Donegal Investment v Danbywiske: Trial judge must explain reasons for disregarding expert evidence

Here, the Supreme Court (Clarke J writing) held that the High Court trial judge (McGovern J) erred by not expressly explaining his reasoning for adopting a different approach for the valuation of shares to that proposed by expert evidence by either parties to the dispute.

 

Background

The background to these proceedings are explained in the Court of Appeal judgment (here). The parties are shareholders in a holding company, Elst, which owns Monaghan Mushrooms. Donegal issued High Court proceedings under s 205 of the Companies Act (shareholder oppression). The High Court ordered that Danbywiske purchase Donegal’s shares.

In the High Court (here), McGovern J heard expert evidence from both sides but chose a different method of valuation from either of the proposed methods. He ordered that Danbywiske pay Donegal €30.6 million for its 30% share in Elst.

The Court of Appeal overturned that valuation and ordered that the case be returned to the High Court for a determination of value. The CoA held that McGovern had not adequately explained his reasons for reaching his determination on value. Danbywiske applied to the Supreme Court for leave to appeal that decision.

The Supreme Court granted leave on three questions:

(a) Whether the principles set out in Hay v O’Grady as to the limits of an appellate court’s review of fact apply both generally and to expert testimony and, as such, constitute a complete code which cannot be departed from?

(b) Whether these principles were departed from in the rulings of the Court of Appeal on the findings of fact in the High Court relating to share valuation?

(c) Does the costs order of the Court of Appeal require to be reviewed?

Dismissing the appeal the Supreme Court stated:

9.1 For the reasons set out in this judgment I am satisfied that it is open to a trial judge to adopt a methodology or approach which differs from each of the approaches advocated in the expert testimony tendered by the parties. However, where a trial judge is persuaded to adopt a different approach, it is necessary for the judge to structure the judgment in such a way that either expressly explains why the approach adopted is considered to be appropriate notwithstanding the expert evidence tendered or that, at a minimum, the reasoning of the trial judge in that regard can be inferred with some reasonable level of confidence.

9.2 There is even some doubt as to the precise approach actually adopted by the trial judge in this case. But even if the approach actually adopted can be inferred to a sufficient level of confidence, I am satisfied that the Court of Appeal was correct to hold that the reasons why the trial judge utilised the approach which he did are neither clear from the judgment nor can safely be inferred.

CFA v McG: Habeas corpus can be an appropriate remedy in childcare proceedings where there has been a fundamental breach of justice

shutterstock-2918689-630x420Here, the Supreme Court upheld the High Court’s judgment granting McG a writ of habeas corpus against the District Court’s order placing her children in the CFA’s care. The Court held that an application under Article 40.4.2° of the Constitution (habeas corpus) was appropriate as the District Court had breached McG’s constitutional right to fair procedure in the custody hearing.

Background

This case began in the District Court, where the Child and Family Agency (CFA) was seeking an interim care order for two children. The children’s mother (McG) and father (JC) both suffered from drug addiction. Their relationship was chaotic and often violent. And McG and the children (14 and 5) had no settled home. But the children were in no immediate danger. Legal aid was provided to McG on the morning of the hearing. The solicitor provided only had a few minutes to meet the mother and did not have time to review the social worker reports on which the application was based. JC was awaiting legal aid. The parties agreed to seek a one week adjournment to allow the legal aid solicitors to prepare. However, the judge had read the CFA’s submission and refused the application for an adjournment. She made an order transferring custody of the children to the CFA.

McG brought a High Court habeas corpus application under Article 40.4.2º of the Constitution seeking an order that her children were unlawfully detained.

In the High Court, Baker J (here) ordered the release of the children, stating:

50. I am satisfied that the order was not lawfully made and was made without affording an opportunity to the applicants to fully engage with the evidence. Because the question before the District Court related to the day-to-day relationship and care of the children by their mother, and the ongoing contact between the children and their mother, the frailty in the making of the order impacts on its validity in a way that failed to engage the welfare of the children and their place in a family unit.

The CFA applied to the Supreme Court for a leapfrog appeal, bypassing the Court of Appeal. Granting leave to appeal, the Court determined that the CFA had met the applicable constitutional threshold. The Court certified one question:

Where children are made subject to an interim care order under section 17 of the Child Care Act 1991 requiring “that the child named in the order be placed or maintained in the care of” the applicant Child and Family Agency, are such children ever subject to a habeas corpus remedy under Article 40.4.2º of the Constitution as being “unlawfully detained”?

Supreme Court

MacMenamin J wrote the judgment for the majority of the seven judge Court; only Charleton J dissentedand only in part.

The CFA argued, among other things, that habeas corpus proceedings are ill-suited to childcare issues and transfer of custody is not detention. Such proceedings are limited to orders for detention issued without jurisdiction, and McG should have appealed the decision on merits.

MacMenamin dismissed those arguments. Firstly, there is long held Supreme Court authority permitting the use of Article 40 proceedings in child custody proceedings, most recently in N v HSE [2006] IESC 60. Secondly, the order was comparable to detention, as the children were placed under the complete control and supervision of the CFA and were not free to leave. And thirdly, this is a case where the order was issued in breach of a fundamental breach of fair procedure and was therefore without jurisdiction.

MacMenamin J stated in conclusion:

  1. In the instant case, the practical vindication of the rights of parents warranted an appropriate, proper and effective level of legal representation in the District Court proceedings permitting real engagement therein. The situation which arose in this case, although undoubtedly motivated by proper intentions, unfortunately amounted to a denial of the constitutional rights of the parents. As a matter of fair procedures, both respondents had the right to meaningfully engage in the proceedings. This necessitated effective legal representation for both parents. In the absence of such fair procedures and natural justice, the hearing was not in accordance with law.
  1. In holding that Article 40 is appropriate, in these exceptional circumstances, where there has been a denial of constitutional justice, I would not wish to be taken as, in any way, derogating from the clear observations of this Court made in Ryan or Roche (Dumbrell). I would hold that a constitutional application of s.23 requires that the orders of the Court be effected in a constitutionally compliant sequence, vindicating, where so required, in the first instance, the right to liberty by an order for release, and second, if necessary, by an ancillary order under s.23 of the Act, protecting the welfare of children. I would entirely deprecate the usage of Article 40 proceedings in routine inter-parental care disputes. Moreover, the duty of the court hearing such an application is always to have the welfare of children as the paramount consideration.

O’Donnell J issued a concurring judgment (here).

Charleton J dissented (here). He believed that the parents had not established that the District Court issued the order without jurisdiction, stating:

  1. Finally, and concurring with the majority, habeas corpus applications in child care and custody cases are not to be encouraged. In the event that matters are not ready to proceed and in the event that the applicant consents to an adjournment but the District Court having read all the papers considers that the children are in danger, then evidence can be called which may justify the making of an emergency care order on an application by the Child and Family Agency. It was the failure to prove that these children were not in such danger when the District Court made its determination that required this dissent, which is essentially one as to the failure of the mother and father to prove that the judge dealing with the case of these children at first instance was so much in error as to be a failure of jurisdiction.

Dr Vicky Conway provides a case comment on DPP v Doyle

vicky_conway_001Dr Vicky Conway of the Department of Law and Government at Dublin City University has commented on DPP v Doyle [2017] IESC 1.

This post was originally published on humanrights.ie.

 

 

The Supreme Court yesterday ruled (6 agreeing, though for different reasons, and 1 dissenting) that the constitutional right to reasonable access to a lawyer does not extend to a right to have a solicitor present during Garda interviews. In May 2014 the DPP had instructed gardaí to permit solicitors to attend interviews where requested, stemming from the fact that Irish and European jurisprudence and regulation was moving in that direction. There had not, at that point, been a ruling that there was such a right under the Irish Constitution, and Ireland has not opted into the EU Directive on Right of Access to a Lawyer in Criminal Proceedings. However, it had been strongly indicated in obiter statements in the case of DPP v Gormley and White that this was possible. The decision in Doyle indicates that Irish constitutional law has not reached that point, not yet at least.

The dissenting judgment of Justice McKechnie has not been posted online at the time of writing, but an initial reading of the five majority judgments indicates that while they are not willing to determine that such a right exists in this case, they can envisage a situation where that becomes the position in Irish law in the future.

In November 2008 Shane Geoghegan was murdered in Limerick, having been mistaken for a member of a criminal gang. Mr Barry Doyle was convicted of this murder on the basis of a confession he made while in garda custody in February 2009. The circumstances of the confession, in particular a concern as to inducements, and the fact that he did not have a lawyer present during the interview in which he made the admission, formed the grounds of this appeal. I will focus here solely on the issue of whether there is a right of presence of a lawyer.

Mr Doyle was detained for over 60 hours and spent over 20 hours being interviewed by gardaí. During this time he had some 40 minutes of consultation with his solicitor, no longer than 10 minutes in any instance. He was not denied access to his lawyer at any point and gardaí obliged and stopped interviews to facilitate consultations on request. He made a confession in the 15th interview, which formed the basis of this appeal.

Justice Charleton, with Justice Laffoy concurrning, offers perhaps the strongest resistance to the finding of such a right. Charleton J outlines the existing jurisprudence on this issue, which in Ireland has clearly indicated that a detainee has a right of reasonable access to a lawyer, which includes numerous consultations with solicitors but does not extend to their presence in interview. In doing so his focus is very much on the implications: a finding of a right would mean that any detention in breach of that right would be unlawful and so any evidence gathered during that detention would be excluded. In the instant case it would mean Barry Doyle’s conviction for the murder of Shane Geoghegan would be overturned, despite a voluntary confession.

Central to Charleton J’s resistance to find the existence of the right is a belief that there is a lack of jurisprudential support for such a move. Looking to jurisprudence from Europe and other jurisdictions Charleton concludes that “What is of importance is that there is no decision of the European Court of Human Rights stating that there must be a solicitor in the room during the time when a person is being questioned by police in relation to a crime.”

Many familiar with ECtHR law will be surprised by this conclusion. The decision in Salduz v Turkey (2008) is generally credited with having achieved exactly that. In that case the European Court of Human Rights found:

“that in order for the right to a fair trial to remain sufficiently “practical and effective” Article 6 § 1 requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right. Even where compelling reasons may exceptionally justify denial of access to a lawyer, such restriction – whatever its justification – must not unduly prejudice the rights of the accused under Article 6. The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation without access to a lawyer are used for a conviction.”

Justice Charleton does not feel that this requires the presence of a lawyer in the interview. The only precedent he can identify in support of the presence of lawyers in the US case of Miranda, where the provision of this right was justified as a requisite balance to address substantial concerns about police brutality, oppression and coercion:

 “In contrast to the situation described [in the case of Miranda] are the safeguards applicable from the moment of arrest in this jurisdiction that have been closely and carefully constructed over decades of experience. In contract too is the direct applicability of such rights… [the ruling in Miranda was] designed to lance a poisoned boil of secret compulsion which is utterly foreign to modern police methods.”

He then outlines the extensive safeguards provided to detainees in Ireland: they are informed about their rights when detained, there is a custody officer to ensure their rights are complied with and they have access to legal advice prior to questioning. Further, the video recording of interviews means that these are subject to judicial scrutiny.

Justice Charleton states “It cannot therefore be concluded that it is a necessary part of the right to a trial in due course of law under Article 38.1 of the Constitution that a lawyer should be present for the interviewing of a suspect in garda custody.” Justice Denham, in a shorter judgment, equally states that “the right is one of access to a lawyer, not of the presence of a lawyer during an interview.” She is satisfied that both constitutional and Convention rights have been met in the current case.

Justice MacMenamin, following a review of recent jurisprudence and noting the recently implemented EU Directive, finds that “I would now be prepared to recognise such a right under Article 38.1 in future cases”. His reasoning for not doing so in the current case is that he feels the appellant is seeking a ‘retrospective recognition and application of a then unrecognised constitutional right’ and that this ‘proposition stands logic on it’s head.’

As regards the decision of Salduz, Justice MacMenamin distinguishes the case on the facts as the detainee in that case was a 16 year old, who was beaten by police in custody. The fact that the current applicant was not vulnerable, was not mistreated in such ways, and had continued consultation access to his lawyer, distinguishes it from that case.

Justice O’Malley appears similarly open to the finding of such a right but not in the current case. She finds there is “some strength in the argument that” the Irish decision in Gormely and White, combined with the decision in Salduz and the jurisprudence of other countries “could logically lead to a reconsideration of the decision in Lavery and to a ruling that the right to a fair trial implies a constitutional right to the presence of a solicitor during questioning.” She predicts that this is likely to arise soon in relation the inference from silence provisions, an indication that she sees this as the space where the solicitor’s presence in the interview might be of particular importance in the vindication of rights.  Ultimately she takes the rather unusual step of stating: “I do not believe that the instant case is an appropriate one in which to reach a definitive view on the matter and would prefer to reserve my position on it… “

Justice O’Donnell also finds that the right does not extend to the presence of the solicitor in garda interviews but it is clear in his judgment that he can foresee it becoming a part of the right in the future. He places particular relevance on the current decision for cases prior to May 2014, when solicitors were permitted to attend interviews, though recognises that for post 2014 cases there may be ramifications for a finding that there is a constitutional right.

He distinguishes Salduz as relating to a civil law system with early supervision of investigation by a magistrate so it cannot be said that it has been conclusively determined that the accused should have solicitor present in common law systems. This is a rather unusual way to distinguish European case law, particular given that the earlier judicial involvement in civil systems arguably means that they have greater safeguards than we do. Solicitor presence should therefore be a great imperative in Ireland.

He acknowledges that a clear finding of a constitutional right, a so called “bright-line rule” would bring ‘neatness, clarity and simplicity’ but then proceeds to outline many reasons why this cannot be done here. Having distinguished Salduz as he has, he feels, like Charleton J, that Miranda is the only precedent for such the appellant’s position. On this point he holds that in Ireland

“a lawyer’s presence is no longer necessary as an independent witness of events during questioning. It is doubtful that it can be said that the function of a lawyer is to provide moral support or indeed that anything in lawyers’ training qualifies them for such a role. Indeed the function of a lawyer is to provide legal advice…”

This is, in itself, arguable. It is less than a decade since the most damning report of the Morris Tribunal report on the treatment of suspects in custody. While much has certainly changed, it would seem a backward step to suggest that we should not be vigilant regarding the conduct of interviews. Further, as John Jackson has analysed in a recent article in the Modern Law Review (paywalled), the role of the defence lawyer is much broader than providing legal advice: the defence lawyer should protect the detainees rights, including the privilege against self-incrimination, prevent miscarriages of justice, fulfil the aims of Article 6 of the ECHR, perform a representational (rather than advisory) role in complex cases, give the suspect time to instruct their legal advisor in the preparation of a defence. In Dayana v Turkey the ECtHR stated:

“the fairness of proceedings requires that an accused be able to obtain the whole range of services specifically associated with legal assistance. In this regard, counsel has to be able to secure without restriction the fundamental aspects of that person’s defence: discussion of the case, organisation of the defence, collection of evidence favourable to the accused, preparation for questioning, support of an accused in distress and checking of the conditions of detention.”

There is a need in Ireland for a broader conceptualisation of the role of the lawyer and this may be key to future development of the law in this area.

Justice O’Donnell continues, stating that if the Court found that there was such a right, the implication would be that the statement in this case, which was voluntarily given, should be excluded. He notes that if the Court thought this was the only way to achieve fair garda questioning it would do so but that was not the case in this instances.  He concurs with his colleague Justice O’Malley that cases involving inferences from silence present certain complexities and that he “recognise[s] the reality that it may in due course be simply easier and neater to provide for presence by a lawyer as the best guarantee that such provisions are operated properly and fairly.”

Comment

As regards the existence of a right to have a solicitor present in the garda interview, while Justice Charleton, Laffoy J concurring, is clear it does not form part of the right of access to a lawyer, there is great scope in the other judgments for a different interpretation in the future. We know from reference by others to his judgment that Justice MacKechnie believes the right currently exist. Justice MacMenamin believes it should exist in the future. Justices O’Donnell and O’Malley both explicitly reference inference from silence cases as ones where it might be explored further. A close reading of these judgments makes it clear that this is not a closed issue in the Irish Supreme Court.

Further, the current scheme whereby solicitors are permitted to attend interviews is relied upon substantively in the judgments. It is noted in each judgment. Justice Denham describes it as an ‘important factor’ in her judgment and a presumption that it is now the established practice seemed to underlie some of O’Donnell and O’Malley JJ’s comments. A valid question in light of the headline decision of the judgment is whether the DPP would now rescind the permission she had granted for solicitors to attend interviews, however, the judicial commentary on the scheme is supportive and seems to assume its continuation. It would, I contend, be difficult for the DPP to make that decision, particularly in light of the fact that she has permitted it for the past two and a half years when equally there was no established right. That has not changed.

I should also highlight the way in which the decision in Salduz has been discussed in the judgments. This decision has been distinguished in the current case by both Justices MacMenamin (on vulnerability grounds) and Justice O’Donnell (due to the nature of the legal system). Justice Charleton uses it only support of a statement that no general right has been found by the court, which is a somewhat unusual interpretation of the above. I contend that these are problematic grounds for not applying the test outlined in that case, which has been repeatedly applied as the appropriate standard in subsequent ECtHR cases.

Finally, it should not go with comment that, on the face of what is outlined in the judgments, questions should be asked about the standard of legal advice provided in this case. Forty minutes of advice over 60 hours of detention for a murder charge seems, without further detail, inadequate. Since that particular detention the context has changed and solicitors now attend interviews as well as consultations. The SUPRALAT project, of which I am a member, is undertaking the first training of solicitors in Ireland in relation attending garda interviews and has been accredited by the Law Society Professional Training unit. Such training is essential to ensure effective defence in the garda station.

McEnery v Garda Commissioner: Garda’s conviction for assault is not a self-evident reason for summary dismissal

In this judgment (here), the Supreme Court unanimously held that, for the purposes of Regulation 39 of the Garda Síochána (Discipline) Regulations 2007 (here), the fact that Garda Sergeant McEnery had been convicted of assault under s 2(1) of the Non-Fatal Offences Against the Person Act 1997 (here) was not a self-evident reason for the Commissioner to summarily dismiss her from the force. Natural and constitutional justice requires that the Commissioner give adequate reasons for decisions of that nature, which would enable the High Court to review the legality of such decisions.

Background

In 2011, Waterford Circuit Court convicted McEnery of assault contrary to s 2 of the 1997 Act. The trial judge sentenced her to four months imprisonment, suspended for six months. The Court of Criminal Appeal upheld that conviction.

Although McEnery had a clear disciplinary record otherwise and had received commendations on a number of occasions, the Garda Commissioner served her with notice of his intention to summarily dismiss her pursuant to Regulation 39 of the 2007 Regulations, on grounds that she was unfit for retention in the force. In accordance with Regulation 39, the Commissioner allowed McEnery the opportunity to submit reasons why she should not be dismissed.

McEnery submitted that other gardai had been convicted of assault but were allowed to remain in the force; that the Commissioner had not considered the full facts but had relied on the fact of conviction; and that if the Commissioner held an inquiry into her case, she could provide evidence that would affect the decision relating to her dismissal.

Subsequent to McEnery’s submission, the Commissioner informed her that he was not prepared to alter his decision and was proceeding to seek the Minister for Justice’s permission to dismiss her from the force.

McEnery issued judicial review proceedings seeking an order of certiorari quashing the Commissioner’s decision. She argued that the Circuit Court conviction did not absolve the Commissioner from conducting his own inquiry.

 

High Court

Kearns P (here) dismissed McEnery’s application. He held that, although summary dismissal power was unusual and exceptional, it is not for the courts to decide what behaviour warrants dismissal of a garda: that is a matter for the Commissioner and the Minister. McEnery appealed that decision to the Court of Appeal.

 

Court of Appeal

Overturning the High Court decision, the Court of Appeal (here) held that the plain wording of Regulation 39 require that the material facts and the breach of discipline both merit dismissal. The Supreme Court granted the Commissioner permission to appeal that decision (here).

 

Supreme Court

Laffoy J summarised the issues as:

(a) Whether the decision of the Commissioner as proposed in the Regulation 39 Notice of 24th December, 2012 and confirmed in the letter of 25th March, 2013 is ultra vires Regulation 39 by being in breach of the requirements of Regulation 39(2)(a) by reason of the reliance by the Commissioner solely on the conviction of Sgt. McEnery in the Circuit Court and the sentence imposed on her as material to the breach of discipline and of the failure of the Commissioner to consider any other facts which it is contended on behalf of Sgt. McEnery are material facts for the purpose of the proper application of Regulation 39(2)(a).

(b) Whether the decision of the Commissioner should be quashed on the ground that the Commissioner failed to give adequate reasons for his decision in accordance with either –

(i) the requirements of Regulation 39, or

(ii) the principles of natural and constitutional justice.

(c) Whether Sgt. McEnery has established that the decision of the Commissioner contravened natural and constitutional justice in treating Sgt. McEnery in a manner which is discriminatory and disproportionate in comparison to the treatment of other members of An Garda Síochána who have been convicted of assault.

On issue (a), Laffoy J rejected the Court of Appeal finding that the Commissioner must consider the material facts relating to the conviction and could not rely solely on the fact that McEnery was convicted of the offence. But she qualified that by stating:

it must not be overlooked that on an objective analysis of the gravity of the breach of discipline based on the nature of the offence which was the subject of the conviction, a relevant factor may be a comparison with the nature of a more or less serious offence of which the member might be charged and convicted or acquitted [44].

On issue (b), Laffoy J held that it would be utterly meaningless to provide a mechanism for an affected garda to make a submission if the Commissioner was not required to give consideration to any submission made and to give reasons for rejecting such submissions [62].

Allowing McEnery’s appeal, Laffoy J stated:

it cannot be said that the issue involved in this case is so self-evident and narrow that the mere fact of the decision discloses the reason. Accordingly, I consider that the decision of the Commissioner to dismiss Sgt. McEnery should be quashed on the ground of failure to give adequate reasons for the decision [65].

On issue (c), Laffoy J held that, on the facts presented, McEnery had not established that the Commissioner had treated her in a manner which was discriminatory in comparison to other cases.

 

Four judgments so far this week

 

lady-justice

Kilty v Judge Dunne

Here, the Court overturned the High Court’s decision in a judicial review case to make an award of costs against the District Court judge. Kilty was claiming that the judge was biased. Without commenting on whether such an order could be made against a judge, the Court held it would be a breach of fair procedure to allow the order to stand where the judge was not represented and was not informed that the issue of costs would arise.

BOI v O’Donnell [2015] IESC 89

Here, the Court dismissed O’Donnell’s application for leave to extend time to appeal Kelly J’s 2011 grant of summary judgment against him (and his wife) in favour of BOI. O’Donnell was applying on grounds of objective bias based on a submission that Kelly J had an ownership interest in and a business relationship with BOI. BOI objected on three grounds: O’Donnell had consented to the judgment; he does not have standing, as he has since been adjudicated bankrupt and any right to litigate on the matter now vests in the Official Assignee in Bankruptcy; and it would be inequitable to allow an appeal given the circumstances of the case.

The Court refused the application for lack of standing.

BOI v O’Donnell & Others [2015] IESC 90

Here, the Court refused O’Donnell’s appeal of McGovern J’s High Court decision not to recuse himself from their case. O’Donnell (his wife and his two children) claimed that McGovern J had a conflict of interest, being a BOI client.

The Court dismissed O’Donnell’s motion for lack of standing (as above) and dismissed his childrens’ motion because the case they presented did not show objective bias as per the test in the case law.

Adigun -v- The Equality Tribunal

Here, the Court upheld the High Court’s judicial review decision that the Equality Tribunal could not make a determination on a complaint where there was no contract of employment; and it held that there was no unfairness in the Tribunal dismissing the complaint on a preliminary hearing of that issue.

Court to hear argument in a case alleging bias in Revenue’s investigation of tax avoidance

revenue-auditOn Thursday, 3rd of December, a five judge panel will hear argument in four related cases involving the Revenue Commissioners as defendants/respondents and four appellants from a group of 26 who were involved in a structured tax avoidance scheme referred to as the Schroders Ready-Made 26. There seems to be only one High Court judgment, though: McNamee v The Revenue Commissioners (here).

Background

In 2007, McNamee (and his wife) disposed of assets, accruing a profit of €58 million. Separately, a London merchant bank, Schroders, organised and implemented a number of transactions including the purchase of Irish Government gilts and their sale to Schroders for a profit of €25 million and a currency purchase from Schroders at a loss of €25 million. All the transactions occurred over two days.  As Capital Gains Tax does not apply to Government gilts, the net result for McNamee was an actual loss of €250,000 but an allowable loss of €25 million, and a reduction in his tax liability of €5 million. In all, Revenue claims that the Schroders Ready-Made 26 channeled €550 million through the scheme resulting in €110 million in lost tax revenue.

Section 811 of the Tax Consolidations Act 1997

Where Revenue concludes that transactions were entered into solely for the purpose of tax avoidance but cannot be challenged as a breach of statute, it will produce a full report of all the circumstances of the transactions for presentation to a Nominated Officer under s 811 of the Tax Consolidations Act 1997. Before s 811 can be utilised Revenue must establish:

(1) that the transaction produces a tax advantage;

(2) that the primary purpose of the transaction is a tax advantage; and,

(3) that the transaction is a misuse of the Taxes Acts (Revenue v O’Flynn [2011] IESC 47).

Where that is the case, Revenue will inform the taxpayer of the investigation and invite them to make a submission. The Nominated Officer cannot be involved in the investigation. But on review of the report into all the circumstances of the transactions under investigation, if they form the opinion that the sole purpose is tax avoidance, the tax advantage will be withdrawn. Under s 811 the Nominated Officer must immediately notify Revenue and the taxpayer of that decision. If the taxpayer is dissatisfied with the decision they can make an appeal to an Appeals Commissioner and further to the Circuit Court. And the taxpayer has the right to appeal the decision of the Appeals Commissioner or the Circuit Court to the High Court on a point of law. Furthermore, the notification of the withdrawal of the tax advantage does not become effective until the appeal period has elapsed or the appeal process is exhausted.

Separately from s 811, Revenue will constantly monitor the use of statutory provisions and tax avoidance schemes which taxpayers avail of for no business advantage at all, but for the sole purpose of tax avoidance. And Revenue will propose legislative amendments to avoid such abuses.

Investigation

In 2009, the High Net Worth Individual Unit within Revenue investigated the Schroders Ready-Made 26 transactions and discussed statutory amendments to deal with such schemes. It decided that an individual report on each of the 26 would be prepared for presentation to a Nominated Officer with a recommendation that an s 811 notification be issued to each. In addition, between 2009 and 2011 a number of Revenue officials (including Mullen, the Nominated Officer) made public comments about the unacceptable use of tax avoidance schemes involving Capital Gains Tax losses [24].

In July and August 2011, the Nominated Officer issued s 811 notifications to three of the 26 taxpayers involved (Punch, Punch and Whelan, the other three appellants). Later in August he sent an s 811 notification to McNamee.

High Court

McNamee lodged an appeal of that decision to the Appeals Commissioner, but he did not proceed with it. Instead he issued judicial review proceedings in the High Court seeking an order of certiorari of the Revenue’s decision on grounds of bias (real or objective), breach of fair procedure and delay in notification. He argued that Revenue had formed the opinion that his transactions were for tax avoidance purposes before the Nominated Officer reviewed the report. Therefore there was bias by the Nominated Officer, or failing that there was objective bias, and a lack of fair procedure in the decision making process.  He further argued that as the cases of Punch, Punch and Whelan were identical to his he should have been notified at the same time as them, as the decision had been made that the scheme was solely for tax avoidance purposes.

McGovern J refused the reliefs sought as McNamee presented no evidence that the Nominated Officer had formed the opinion that the transactions were for tax avoidance purposes before he reviewed the report [36] (which isn’t the test for objective bias, see here), and because there is adequate appeal procedures to guarantee fair procedure. He also held that the Nominated Officer was statutorily bound by s 811 to review each case in light of all the circumstances. Therefore he could not notify McNamee until he had fully reviewed the report on his case. The Nominated Officer could not make a decision on all the cases based on the circumstances of one–there may have been legitimate business reasons for the transactions in individual cases.

Clarke J, MacMenamin J, Dunne J, Laffoy J and Charleton J will hear the appeal.

DF v Commissioner of An Garda Siochána: autistic man has a right to anonymity and trial by jury for constitutional tort

imagesAlthough there is no right to trial by jury for constitutional torts, such a right can arise where a claim is in addition to or as an alternative to an action which falls under the exemption in s 1(3) of the Courts Act 1988, which preserves the right to civil jury trial for claims of false imprisonment or intentional trespass to the person.

Although Article 34.1 of the Constitution requires that justice be administered in open court and that the media be allowed to circulate accurate reports of litigation, s 27 of the Civil Law (Miscellaneous Proceedings) Act 2008 provides a limited statutory exception, which is less than in camera, which restricts reporting of details likely to identify any party to proceedings who has a medical condition, where reporting would likely cause undue stress. And that statutory right is not subject to the discretion provided for by the Rules of the Superior Courts.

Background

DF suffers from a severe form of autism. He “needs routine, loves watching horses, guards a particular patch of ground as a task appointed by his mind and does not need people of malice being attracted to him or intruding on that space” [27].  Gardai received a complaint that two young women were chased by someone with a stick. When they arrived on the scene, they found DF there waving a stick. The State claims that the gardai realised that DF suffered from a disability, but they decided that s 12 0f the Mental Health Act 2001 applied and took him into custody in the opinion that he was a person suffering from a mental disorder such that there was a serious likelihood of the plaintiff causing immediate and serious harm to himself or to other persons. Through his next friend, DF claims that his arrest was unlawful and issued proceedings claiming aggravated, punitive and/or exemplary damages. Particulars of the claim include that gardai breached his constitutional right to liberty, bodily integrity and privacy and breached his rights under the ECHR. DF is also seeking anonymity in reporting of the trial.

High Court

In the High Court (here), Hogan J held that the legal issues should be decided by the trial judge and should it arise, the jury should assess damages. In a separate judgment (here), rejecting DF’s application for anonymity, Hogan J stated “I cannot lightly ignore the Constitution’s commitments to open justice in Article 34.1, equality of treatment in Article 40.1 and the effective protection of good name in Article 40.3.2” [38]. DF appealed both decisions to the Supreme Court.

Law

Trial by jury: s 1(3) of the Courts Act 1988 provides that the removal of the entitlement to civil jury trial does not apply to:

(a) an action where the damages claimed consist only of damages for false imprisonment or intentional trespass to the person or both,

(b) an action where the damages claimed consist of damages for false imprisonment or intentional trespass to the person or both and damages (whether claimed in addition, or as an alternative, to the other damages claimed) …

(c) a question of fact or an issue arising in the action referred to in paragraph (a) or (b) …

Anonymity: s 27 of the Civil Law (Miscellaneous Proceedings) Act 2008 provides:

(1) Where in any civil proceedings (including such proceedings on appeal) a relevant person has a medical condition, an application may be made to the court in which the proceedings have been brought by any party to the proceedings for an order under this section prohibiting the publication or broadcast of any matter relating to the proceedings which would, or would be likely to, identify the relevant person as a person having that condition.

(2) An application for an order under this section may be made at any stage of the proceedings.

(3) The court shall grant an order under this section only if it is satisfied that-

(a) the relevant person concerned has a medical condition,

(b) his or her identification as a person with that condition would be likely to cause undue stress to him or her, and

(c) the order would not be prejudicial to the interests of justice.

Supreme Court

Charleton J (here), writing for a unanimous five judge panel, held that “the core issue was whether there was a lawful arrest and a lawful detention” [5]. And he determined that Hogan J was influenced by the discretion granted in the Rules of the Superior Courts [7]: Order 36 rule 7 allows a trial judge to order a trial by a judge alone notwithstanding a statutory right to trial by jury. However, the Committee is not a legislative body and the Rules of the Superior Courts cannot override the 1988 Act, which provides a right to trial by jury for false imprisonment and intentional trespass [21]. Without accepting that the wrongs DF claims exist in law (tort of breach of constitutional right to liberty, bodily integrity and privacy) [4], they stem from a claim of false imprisonment and intentional trespass and, therefore, are covered by s 1(3) of the 1988 Act and carry an entitlement to jury trial [21].

Charleton J also held that Hogan J incorrectly determined that Article 34.1 of the Constitution required a restrictive interpretation to s 27 0f the 2008 Act. Article 34.1 requires that justice be administered in public except “in such special and limited cases as may be prescribed by law”. And s 27 prescribes a limited exception as a “necessary concession” [28] in “a society where, globally, people can be harried and undermined by anonymous internet malice” [27].

In summary, Charleton J stated at [29]:

… On arriving at the scene where the stick waving and chasing had, as had been reported to them, apparently taken place, they apparently reached a conclusion that they should arrest Desmond because of his mental condition and it being a danger to himself and others. The application of that power of arrest is what this case is about. The validity of those actions is to be judged according to the reports to the gardaí and their own observations. There is no danger of prejudice to justice by Desmond being named in reports of proceedings in that way instead of under his own name and address.

Charleton J allowed both appeals. Denham CJ and Murray, Hardiman, and O’Donnell Donal JJ concurred.

 

 

DMPT v Taxing Master: Taxing Master must give reasons for their decisions

balance240Order 99, rule 38 of the Rules of the Superior Courts does not breach fair procedure by providing that the Taxing Master will make a determination on an objection to his own initial decision, as that is a second phase in the taxation process, not an appeal. That procedure has operated to the satisfaction of litigants for over a century and has not been considered to raise issues of objective bias. However, it was a breach of fair procedure that rule 38 did not require the Taxing Master to give reasons for his initial decision.

Background

In 2001 the High Court granted CT an order for costs against DMPT in matrimonial proceedings. CT’s costs accountant assessed her costs at €450,000. DMPT’s costs accountant assessed that those costs should be €150,000. The Taxing Master decided on an order for costs of €306,000. DMPT was dissatisfied with that decision, but he believed that the appeals process breached fair procedure. He issued judicial review proceedings in the High Court seeking, among other things, a declaration that Order 99, rules 38 (1), (2) and (3) were contrary to the rules of fair procedure. Those rules did not oblige the Taxing Master to give reasons for his initial decision. But they do allow a dissatisfied party to submit an objection to a decision, and the Taxing Master must give reasons for his decision after reassessment. However, DMPT estimated that it would cost him €42,000 in additional fees for a reassessment–even if the objection was upheld and even though he would have to object without having knowledge of the Taxing Master’s reasons for the initial decision. Furthermore, DMPT argued that the Taxing Master was, in effect, a judge in his own case in assessing an objection to his own decision, which DMPT argued was an additional breach of fair procedure. The High Court (McGovern J) refused the reliefs DMPT sought. He appealed to the Supreme Court.

Supreme Court

Laffoy J (here), following Gannon v Flynn [2001] 3 IR 531, held that the Taxing Master’s role in reviewing their decision after an objection is submitted is a second stage in the taxation process, not an appeal. Therefore the Taxing Master is not acting as a judge in his own dispute but was acting independently of both parties [43]. In addition, the current system of taxation, in almost identical form, dates back to the Supreme Court of Judicature Act (Ireland) 1877. In that time, it has operated to the satisfaction of litigants and has not been seen to give rise to objective bias. Therefore the review process does not breach natural or constitutional justice [45-46].

However, starting with The State (Lynch) v Cooney [1982] IR 337, and following the line of authority on the obligation on decision makers to give reasons for their decisions,  Laffoy J held that it was a breach of fair procedure and constitutional justice that the Taxing Master was not obliged to give reasons for his decision in the first instance [49-58]. It was difficult, she stated, to see how DMPT, even with specialist assistance, could have assessed whether a review of the decision would justify the expenditure of over €40,000 when he did not know the reasons for the decision–any submission he made would have been speculative [57].

The other four justices concurred.

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