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Allman v. Minister for Justice Equality and Law Reform [2002] IEHC 45 (19 April 2002)
    2000 315 JR
    2000 316 JR
    JUDGMENT of Mr. Justice Kearns delivered the 19th day of April, 2002.
    1.      In these proceedings the applicants, who are both prison officers in Mountjoy Prison, seek an Order of Prohibition by way of an application for Judicial Review to prevent the holding of a second disciplinary hearing into the applicants conduct whilst escorting a prisoner, Stephen Rock, on temporary day release in Dublin on the 13th July 1996.
    2.      In the course of that day certain incidents occurred both inside and outside a licensed premises where the applicants intended to pick up Mr. Rock who had some hours previously been left by them at his parents home. A melee occurred in which the applicants were beaten up and which ultimately led to the prisoner returning to the prison unaccompanied by either applicant, following which allegations were made that the applicants had permitted the prisoner to move freely without their constant supervision.
    3.      Arising out of the incident, the applicants were suspended from duty on the 25th July 1996 pending further investigation by an Garda Siochana into the events of that day. The investigation concluded that no criminal charges would be brought arising out of the incident. However, an internal prison investigation was undertaken, but this did not commence until the Garda investigation concluded in December 1996. The internal prison investigation was conducted at the request of the Governor of Mountjoy Prison, Mr. John Lonergan, and was carried out by Chief Officer Mr. James Petherbridge. As a result of this investigation, the applicants were, on the 6th February 1997, charged with disciplinary offences under the 1947 Statutory Rules for the Government of Prisons.
    4.      An oral hearing took place at the request of the applicants on the 18th of March 1997 at which both applicants were represented by a Solicitor and Counsel. Following that hearing, a report was compiled by the Governor of Mountjoy Prison for the attention of the Minister for Justice. The Minister by decision dated 17th June 1997 recommended to the Government that the applicants be dismissed. This procedure was appropriate to the applicants status as holders of permanent and pensionable posts as civil servants within the meaning of the Civil Service Regulation Act, 1956.
    5.      The applicants were initially suspended without pay but were at an early stage restored to 75% of basic pay, which excluded overtime and other benefits.
    6.      The applicants appealed the decision of the Minister for Justice of the 17th June 1997, which said appeal was disallowed on the 12th August 1997, such refusal being communicated to the applicants on the 5th September 1997. At that time, the applicants were informed that the Minister would bring a proposal to Government to confirm their dismissal. On the 16th of October 1997, a draft memorandum for Government was approved by the Minister for Justice, the same being submitted to the Minister for Finance for his approval.
    7.      On the 9th March 1998 and the 25th March 1998, the applicants made further representations with regard to their suspension from duty, and on the 23rd April 1998, the Minister for Finance queried certain aspects of the decision to dismiss the applicants. A process of consultation then followed culminating in advices from the Attorney General on the 22nd December 1999, that a complete rehearing of the case should be heard. The decision to do so was initially communicated to the applicants on the 16th February 2000, but the detailed reasons for the decision to conduct a complete rehearing were not made available to the applicants until March, 2001.
    8.      The information contained in the letter delivered in March 2001 admitted there had been a flaw in the dismissal procedure in that the Minister’s recommendation to dismiss took into accounts matters with which the applicants had not been charged, or in respect of which they had no advance warning, nor at any stage in the process had there been a finding that they were or were not in breach of specific duties as charged, i.e. breaches of Rule 86(3), Rule 88 and Rule 89 of the 1947 Prison Rules. The applicants were informed that it was intended to hold a complete rehearing of the case, a rehearing which might include additional charges to the original disciplinary charges.
    9.      By Order dated 3rd July 2000, Mr. Justice Smith gave leave to the applicants to apply by way of an application for Judicial Review for the following reliefs:
    (i) An Order of Prohibition by way of an application for Judicial Review to prevent the holding of a fresh disciplinary hearing into the applicants conduct on the 13th July 1996 by the first named respondent.
    (ii) An Order of Certiorari by way of an application for Judicial Review quashing the decision of the first named respondent (communicated to the applicant on the 11th of February 2000) to hold a fresh disciplinary hearing.
    (iii) An Order of Certiorari by way of an application for Judicial Review quashing the recommendation of the former Minister for Justice that the applicants be dismissed from the prison service.
    (iv) An Order of Mandamus by way of an application for Judicial Review directing the first named Respondent to reinstate the applicant to his position as a prison officer with full pay and full allowances with no loss of pension or other rights effective from the 25th of July 1996 or a declaration to the same effect.
    (v) A declaration that the continued suspension of the applicant is ultra vires.
    10.      The grounds on which the High Court granted leave to the applicant to seek relief against the respondents may be summarised as follows:-
    (a) The respondents failed to comply with the principles of natural and constitutional justice and fairness of procedure in suspending the applicants on foot of a process which the respondents now accept was flawed. The suspension was initially done without any hearing whatsoever. Such suspension because of the reasons aforesaid is ultra vires the powers of the respondent.
    (b) The respondents are in breach of the applicants’ constitutional rights by intending to hold a fresh rehearing despite the effluxion of three and a half years from the date of the incident and three years since the oral hearing of the 18th March 1997.
    (c) The respondents are in breach of the applicants’ constitutional rights to a fair hearing by intending to hold a fresh hearing chaired by a member of the prison service as opposed to an external independent body, which is in breach of the principle nemo iudex in sua causa.
    (d) The continued suspension of the applicants is an infringement or alternatively an interference with the applicants right to earn a livelihood as warranted by Article 40.3.2 of the Constitution.
    11.      The respondents oppose the application on various grounds set out in the Statement of Opposition which, in addition to denying the validity of the grounds advanced, contend as follows:-
    “16. The charges laid against the applicants are of a serious nature and warrant in the interests of the proper management of the prison service a full investigation and a determination whether or not the applicants were guilty of misconduct such as would warrant their dismissal from the prison service. If (which is denied) there has been any or any unreasonable delay in dealing with these matters, the applicants have contributed to the said delay and have acquiesced in the delay by taking no steps to seek full reinstatement as prison officers until such time as they were advised that a new rehearing was to commence.”
    12.      In an Affidavit sworn in these proceedings in November 2000, the first named applicant states that the inordinate delay in processing this entire matter has caused both he and his family extreme stress and financial loss. At paragraph six he states:-
    “Any rehearing would seem to be a pointless task to undertake since, in addition to the reasons set out in my Grounding Affidavit in this present case, I firmly believe that the respondent would, in effect simply repeat the former hearing process, again delay matters and in effect go through the motions to achieve the same result and attempt to correct the admitted grievous flaws in the whole procedure which have in effect left me a person without employment for four and a half years. I would further say that prior to the first oral hearing taking place I was requested by Officer George Petherbridge and Officer Killian Flynn to submit to the respondent a list of witnesses that I would require to be present at the said oral hearing. It was clearly explained to me that the respondent first had to approve the list and secondly would ensure that each of the appropriate witnesses would be called by them in my defence. Several witnesses who saw the incident with prisoner Rock were not questioned or required by the respondent to be present at the oral hearing and I say that the witnesses who were called were chosen on an a la carte basis by the respondent at the time the oral hearing took place. For example, the two ambulance men who arrived at the scene were not called nor were the sister and mother of Michael Hickey who had both seen the whole incident. I repeat also that the recollection of witnesses four and a half years after the event must now be seriously effected by the passage of time and my defence of the charges are also seriously prejudiced by the delay. The identities of some independent witnesses have still not been ascertained.”
    13.      On behalf of the applicants, Mr. Gordon in his submissions accepted that he could not challenge the propriety of the initial suspensions. There was now, however, a five year delay from the time of the original flawed oral hearing held on the 18th of March 1997.
    14.      This delay was bound to be prejudicial to the interests of the applicants, particularly if an expanded hearing was likely to take place. Mr. Gordon pointed to the evidence that Mr. Stephen Rock and Mr. Bernard Callaghan, who was also involved in the melee, were no longer within the jurisdiction. It would be unsatisfactory now to proceed on aged written statements. Some witnesses to the events in the licensed premises had not been interviewed by the prison authorities and other potential witnesses had not been identified or located. No explanation for the delay which had taken place was given to the applicants. The evidence was that as far back as the 23rd of April 1998, the Minister for Finance had queried some details of the intended dismissal, but advices were only obtained 20 months later from the Office of the Attorney General, and there was a further delay until February 2000 until the applicants were notified of the decision to hold a new hearing. The detailed reasons for this decision were only made available to the applicants in March 2001. During all of this period, the applicants had remained suspended, albeit on 75% pay.
    15.      Mr. Gordon referred to Flynn -v- An Post (1987) IR p. 68, in which the Supreme Court in respect of a Civil Servant suspended from his duties under Section 13 of the Civil Service Regulation Act, 1956 (the same section under which the applicants were suspended) held and found that the power of suspension must be construed as permitting the suspension to have continued only for the period of time in which it would not have been reasonably practicable to have held the full hearing into the suspension. In that case a postal worker had been suspended without pay on suspicion of having stolen letters or packages in the course of post. Mr. Gordon cited the following passage from the judgment of Henchy J. at p :-
    “In a bilateral situation, such as existed here between an employer and employee in regard to the right to suspend and dismiss for disciplinary reasons, justice cannot be treated as a one way street. The rights of both parties must be taken into account for the purposes of determining which of the claimed rights should prevail so as to achieve a compliance with the fundamental requirements of justice. Where (as happened here) the employee has been suspended without pay, that suspension should in all fairness be disposed of, either by raising the suspension or by dismissing the employee, as soon as is reasonably practicable. But when it is reasonably practicable to do so is something that a Court cannot decide without also taking into account the considerations put forward by the employer as being basic to his needs. It is only when the claims of both parties have been satisfied against one another and duly balanced that a Court can decide what is needed to satisfy the fundamental requirements of justice.”
    16.      Mr. Gordon argued that even though the instant case was not one of suspension without pay, Flynn -v- An Post must be seen as coercive authority for the proposition that there is no power under Section 13 of the 1956 Act to suspend indefinitely an employee, even if the employee is paid or part paid.
    17.      Mr. Gordon’s second ground of attack was based on the apprehension of objective bias on the part of Governor Lonergan in the context of any rehearing. He submitted that the Governor has a vested interest in the outcome of any such rehearing, as indeed has the Minister for Justice, due to the expense which would accrue to the Exchequer should a different set of findings or conclusions emerge at the end of the process. In the absence of an external independent adjudicator, any reasonable person would in the circumstances of the instant case have a reasonable fear that the applicants would not obtain a fair and independent hearing. Nor would it be possible for the Governor to put out of his mind the matters previously considered in March 1997.
    18.      In support, Mr. Gordon cited the observations of Kelly J. in Bane -v- Garda Representative Association (1997) 2 IR 449 at p. 472:-
    “It is clear that the test which has to be applied is an objective one. I must therefore ask myself whether a reasonable man would, in the circumstances outlined here, have a reasonable fear that the applicants would not have a fair and independent hearing of the issues which arose.”
    19.      Mr. Gordon finally submitted that in all the circumstances the Court should prohibit for these various reasons the holding of a further hearing and should further hold that the length of suspensions of these applicants which continued right up to the present day was excessive and unreasonable. He invited the Court to find on the agreed facts what the duration of the applicants suspension ought to have been and declare accordingly. Even if the Court was not minded to prohibit a further hearing, he invited the Court to lift the suspensions, either retrospectively or from the date of its order.
    20.      In reply, Mr. Keane argued that any delay from July 2000 was entirely due to the fact that Judicial Review proceedings had been commenced, and any delays arising thereafter could not be laid at the door of the respondents.
    21.      Mr. Keane accepted that the letter giving to the applicants the detailed reasons for the proposed rehearing were only furnished on the 31st of March 2001, notwithstanding receipt of advices to that effect from the Attorney General’s Office on the 22nd of December 1999. However, the applicants had been informed in February 2000 of the proposed rehearing, but had themselves taken no action until they brought Judicial Review proceedings in July 2000 to prevent such rehearing. This revealed all too clearly, Mr. Keane submitted, that the applicants real apprehension was more in respect of the consequences of the rehearing, rather than in respect of any question of the fairness of any hearing.
    22.      The instant case could be clearly distinguished from Flynn -v- An Post, because in that case the suspension had been without pay, so that quite clearly delay of itself was not a critical consideration. The facts of the instant case were essentially straightforward the allegation being that the two officers had failed to comply with an instruction to keep the prisoner under supervision at all times whilst on temporary release.
    23.      In relation to bias, Mr. Keane submitted that it was an altogether wild allegation to say that either the Governor of the prison or the Minister had an “interest” in the outcome of any disciplinary hearing. They had statutory obligations to perform in relation to matters of this nature. Furthermore, Mr. Keane submitted, no objection had been taken at the time of the original hearing to either the form of the hearing or to the admission of statements at that time. All points in relation to any suggestion of bias were available at the time of the hearing in March 1987 but were not made at that time.
    24.      He rejected the suggestion that some independent arbitrator or body should deal with disciplinary hearings of this nature. He cited the following passage from the judgment of Murphy J. in O’Neill -v- Beaumont Hospital (1990) ILRM p. 430:-
    “It must be recognised that any committee exercising its management functions, whether they be involved with commercial concerns, charitable institutions or trade unions, will properly and necessarily have some knowledge of and involvement with the staff of the enterprise with which they are concerned. It seems to be unthinkable that any such knowledge or involvement would disbar committee members from deciding issues which arise in relation to such persons. In many cases these committees will be required to exercise certain of their administrative functions fairly, in the sense of exercising them in accordance with the principles of natural or constitutional justice. But they are not required to emulate the conduct of a judge or, indeed, a juror who must distance himself from any prior knowledge of the matters in issue. It seems to me that committees of this nature are appointed to their tasks and are required to decide these matters in the full consciousness of their knowledge and because of their knowledge of the persons involved and the circumstances in which the issues arise. Indeed, their knowledge is part of their qualification for making their decision rather than a reason for disbarment.”
    25.      This, Mr. Keane submitted, was particularly true in the case of disciplinary procedures within prisons. The Prison Governor was not, in any event, the effective decision maker in the process, his function was merely to find facts and make a report to the Minster for Justice. There was no other official better placed and it was unthinkable that for the conduct of internal disciplinary matters of this nature, prison authorities would have to look for outside agencies or similar bodies outside the jurisdiction to perform such functions. In reality there was no other way of dealing with the matter. Mr. Keane submitted that the “doctrine of necessity” arose in the circumstances, a consideration referred to by Finlay CJ in O’Neill -v- Beaumont Hospital (1990) ILRM at p. 440:-
    “I think that in relation to this last point regard must be had to the doctrine of necessity. It is not a dominant doctrine, it could never defeat a real fear and a real reasonable fear of bias or injustice but it is a consideration in relation to the question of the entire board being prohibited, for if that were to be done there can be no other machinery by which something which is of great importance both to the board of the hospital and to the plaintiff and I might add to the public who will attend the hospital, namely the continuance or non-continuance of the plaintiff services in the hospital, can be determined in accordance with the terms of the probationary agreement.”
    26.      Mr. Keane further submitted that the apprehension in the instant case was about a possibility of bias in the future, not past bias. No suggestion of bias or unfairness had ever been made against Governor Lonergan in the initial hearing which he had conducted. There was absolutely no reason to believe, nor could any reasonable person apprehend, that any unfairness would be at work in a rehearing process on that account. None of the respondents had any financial or proprietary interest in the outcome. Mr. Keane concluded his submission on this point by referring to the following circumstances in which the Courts will intervene in Ireland, as indicated by Keane CJ. in Orange Limited -v- Director of Telecomms (No 2) (2000) 159 at p. 186:-
    “...there is, in the light of the two authorities to which I have referred, no room for doubt as to the applicable test in this country: it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias. The English decisions have proceeded on the basis that cases in which the tribunal has a pecuniary or proprietary interest in the subject matter of the proceeding fall into a special and unique category, in that in such cases bias is presumed without the need for any further enquiry as to whether in such circumstances it would be reasonable to apprehend bias: it is immediately and automatically assumed that such an apprehension would be reasonable. (See Dimes -v- Grand Junction Canal Proprietors) (1852) 3 HLC as 759 and R -v- Gough (1993) AC 646). The House of Lords in
    R -v- Bowe Street Metropolitan Magistrate; ex p. Pinochet (No 2) (2000) 1 AC 119 said that, in some circumstances, at least, even a non-pecuniary interest in the outcome of the proceedings may be sufficient to warrant the assumption that the decision maker is automatically and immediately disqualified. In that limited category of cases, the law proceeds on the basis that, not merely must justice be always seen to be done, but that, in particular, no man or woman may be a judge in his or her cause.”
    27.      Mr. Keane submitted that there was no pecuniary or proprietary motive in anyway affecting the proposed rehearing which would compromise any of the respondents in discharging their respective functions.
    28.      Mr. Keane also suggested that some of the delay, at least, must be laid at the door of the applicants, although he accepted that that delay could only be in respect of the period from February 2000 (when they were notified of the proposed rehearing) and the commencement of Judicial Review proceedings in July 2000.
    29.      Mr. Keane also submitted that there was relevant authority to suggest that, where a person is charged not with an criminal offence but with grave misconduct the performance of his duty as a Civil Servant, the Court may not restrain the holding of an oral hearing on the grounds of inordinate delay in conducting the hearing, although the delay may be relevant in assessing the applicants defence and as to the imposition of any disciplinary measures should the charges be made out. In Gallagher -v- The Revenue Commissioners (1991) 2 IR p. 370, Blayney J. dealt with the suspension and investigation of an officer of Customs and Excise on the issue of delay in the following terms (at p. 376):-
    “While the investigation which led to the plaintiffs suspension was necessarily lengthy because of the number of transactions which had to be examined, it should nonetheless have been completed very much sooner. The charges relate to seizures of vehicles between May, 1984 and June, 1985. The plaintiff was first interviewed in July 1985. After that interview he was moved to different duties so clearly there was already a question mark over the way in which he was performing his duties and this is confirmed by the fact that Mr. Darcy was directed to carry out an investigation into the seizures for which the plaintiff was responsible which he did between July and December 1985. During that time he investigated 11 seizures made by the plaintiff and he prepared a written report dated 12th December 1985, setting out the results of his enquiries.
    Nothing was done then until Mr. Darcy and Mr. Cullen were asked in March or April, 1987, at least 16 months later to complete the investigation. They did this in the months following and submitted a report on the 2nd December, 1987, setting out their findings. But it was not until a year later, on the 23rd January, 1989 that the plaintiff was informed of the charges against him. And since the events out of which they arose took place between May, 1984 and June, 1985, this meant that some of the charges related to happenings which had occurred four and a half years earlier. Such a delay will undoubtedly make it more difficult for the plaintiff to deal with the charges, and it is a delay for which the entire responsibility rests with The Revenue Commissioners. And while it is not ground for the Court to restrain the holding of an oral hearing, it clearly will be a relevant consideration for Mr. O’Callaghan to take into account in assessing the plaintiff’s answer to the charges and also a relevant consideration for the plaintiff’s superiors if the charges, or any of them, are held to be established, in deciding what disciplinary measures should be imposed.”
    30.      Accordingly, Mr. Keane submitted, even if the Court felt the suspensions should be lifted in the instant case, the Court should not take the further step of prohibiting any rehearing.
    Conclusions and Decision
    31.      In attempting to resolve the issues before the Court, I am mindful of the passage of a considerable amount of time since the occurrence of the incident which gave rise to these proceedings. It is an event which occurred during escort duty of a prisoner nearly six years ago. While not suspended without pay, both applicants have lived in a limbo of uncertainty from that day onwards pending the final resolution of the disciplinary procedures.
    32.      Any flaws or inadequacies which attended the initial hearing in March 1997 can in no way be laid at their door. Nor do I feel that at any juncture the applicants have themselves caused or contributed in any culpable way to the delay which has taken place.
    33.      The danger of such delay creating prejudice has been repeatedly referred to in decisions of the Supreme Court in relation to delay in prosecuting sexual offences after many years. An accused person is entitled as a constitutional right to a speedy trial. The absence of demonstrable prejudice does not mean that prejudice does not or will not arise. True, this is not a criminal process, but a disciplinary process, but I accept Mr. Gordon’s submission that the underlying theme to be inferred from the decision in Flynn -v- An Post is that the process or power of suspension must be construed in employment circumstances as permitting a suspension to continue only for such a period of time as may be necessary or reasonably practicable to have a full hearing into the matter giving rise to the suspension, so as to determine whether the employee be dismissed, reinstated or dealt with in some other way.
    34.      Where a genuine risk of prejudice in any rehearing can be shown to exist, the case for prohibiting a rehearing after a lengthy delay becomes that much stronger. In the instant case such a risk clearly does exist, because the undated letter or memo of March 2001 makes it clear that the Governor may charge the applicants in respect of the same “or additional charges” as in the original disciplinary process. This distinguishes the instant case from Gallagher -v- The Revenue Commissioners, because specific prejudice has been identified by the applicants as those averments which I have quoted from Mr. Allman’s Affidavit make clear. If additional charges are brought, it seems to me the applicants will be severely hampered in efforts to meet those charges for reasons detailed in Mr. Allman’s Affidavit.
    35.      Furthermore, it seems to me that there was culpable delay on the part of the respondents in this case. The flaws in the original hearing apparently were only perceived to exist by the respondents in April 1998, following which a delay of nearly 20 months took place before advices were received from the office of the Attorney General on the 22nd December 1999 to the effect that a complete rehearing of the case should be held. Again, for some unexplained reason, the decision itself was not communicated to the applicants until the 16th of February 2000, and the detailed reasons for the proposed rehearing were not furnished until March, 2001, during the course of the present proceedings. On behalf of the applicants it is submitted that the period of delay should therefore be measured from the time of the original “flawed” hearing of March 1997 up to and including the present time.
    36.      However, I think a more practical and realistic assessment would mean that the identification of the flaws in the original hearing, and the completion of the disciplinary process, one way or the other, should have occurred by the end of 1999. For present purposes, it is not necessary to apportion blame between the different respondents other than to repeat that in my view there was a considerable measure of culpable delay which could and should have been avoided.
    37.      I do not accept any of the applicants contentions in relation to the allegation of objective bias. There has been no suggestion at any point of subjective bias, namely, that the Governor acted unfairly or exhibited ill will of any sort towards the applicants. I am satisfied that neither he nor any of the respondents have what might be described as a pecuniary or proprietary interest in the outcome of disciplinary procedures. Nor do I accept that it is desirable or appropriate in areas of prison discipline to seek to involve outside independent arbitrators or agencies, given the multiple protective statutory layers of protection available to prison officers before a dismissal can be effected.
    38.      I think that this an arena in which the doctrine of necessity does arise. I do not believe that anything that happened in the past, or in what is inherent in the proposed rehearing would strike any reasonable man as likely to result in any form of unfair hearing. I accordingly reject all the applicants submissions on this aspect of the case.
    39.      It follows, however, from the findings I have already made that I will prohibit the holding of a fresh disciplinary hearing into the applicants’ conduct on the 13th July 1996 by the first named respondents and make the requested Order of Certiorari quashing the decision of the first named respondent to hold a fresh disciplinary hearing. I would also make an Order quashing the recommendation of the former Minister for Justice that the applicants be dismissed from the prison service. I would further direct the reinstatement of the applicants to the position of prison officers with full pay and full allowances, with no loss of pension or other rights, effective from the 1st January 2000. In other words, I am declaring, as invited by Mr. Gordon, that the suspensions were valid up to and including the end of 1999, but not thereafter.

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