Fair Procedures

Re Haughey

Haughey was investigated by the Public Accounts Committee after refusing to answer questions. The Supreme Court held that the procedure adopted was unconstitutional. Haughey had been denied the opportunity to cross-examine witnesses whose evidence was used against him. Ó’Dálaigh CJ stated that Article 40.3 guarantees basic fairness of procedures, making fair procedures a constitutional right rather than merely a rule of good administration.

Gunn v Bord an Choláiste Naisiúnta Ealaíne is Deartha

Walsh J rejected the idea that fair procedures apply only to public office holders. Employees can also invoke constitutional justice where serious consequences such as dismissal arise.

Mooney v An Post

Barrington J emphasised that dismissal, loss of pension rights and damage to reputation may require constitutional protections.

The plaintiff, a postman, was dismissed for misconduct after being acquitted in criminal proceedings. He refused to engage with An Post’s internal process and insisted upon an oral hearing and independent decision maker. The Supreme Court rejected his claim. The court held:

o   The requirements of fair procedures depend on the employment relationship

o   Compliance with contractual disciplinary procedures will usually suffice

o   The minimum entitlement was notice of the allegations, an opportunity to answer them and an opportunity to make submissions.

There was no constitutional entitlement simply to refuse participation and demand that the employer prove its case first.

Gallagher v Revenue Commissioners

The plaintiff faced disciplinary proceedings which could lead to dismissal. Revenue sought to rely on expert opinions without calling the experts to testify. The Supreme Court held that because those opinions were central to the allegations, Gallagher had a right to cross-examine the individuals concerned. Reliance on hearsay in the circumstances breached fair procedures.

Cassidy v Shannon Castle & Banquets Ltd

An archaeologist was dismissed after allegations of sexual harassment. The High Court found multiple breaches of fair procedures:

o   Complaint reports were withheld

o   Medical reports were withheld

o   His representative was prevented from making submission

o   The decision-maker lacked impartiality due to personal animosity.

The fact that the employer was an entirely private company did not prevent constitutional fair procedure requirements from applying.

Flanagan v UCD

A student accused of plagiarism appeared before a university disciplinary committee. The registrar acted effectively as a prosecutor, remained with the committee during deliberations and selected an independent expert. The High Court held that these procedures were unfair. Barron J stressed that the seriousness of the allegation determines the level of procedural protection required.

Shatter v Guerin

The defendant was appointed to conduct a preliminary review of allegations concerning Garda malpractice. His role was intended to be a scoping exercise to determine whether a full inquiry was required. However, his report contained criticisms of then Minister for Justice, Alan Shatter. Shatter argued that because his good name was affected, fair procedures required that he be given an opportunity to respond before adverse findings were made. The COA agreed and held that if a report goes beyond merely recording facts and begins making evaluative or adverse findings, fair procedures must be engaged.

Garvey v Ireland

O’Higgins CJ reaffirmed that all State bodies exercising powers affecting rights must act fairly and justly.

The Garda Commissioner was informed that he was being removed from office and given two hours to resign. The Supreme Court held that the removal was invalid because:

o   No prior notice was given

o   No reasons were supplied

o   No opportunity was provided to make a representation

DK v Crowley

The Supreme Court stuck down provisions of the Domestic Violence Act 1996 because they permitted barring orders to be made ex parte and continue without a hearing. The court held that long-term interference with rights without an opportunity to be heard was unconstitutional.

Dellway Investments v NAMA

Mr McKillen’s loan portfolio was transferred to NAMA without consultation or prior notice. The Supreme Court held that where a person’s interests are materially affected, fair procedures generally require:

o   Prior notice

o   An opportunity to make submissions

o   A chance to influence the decision-making process

Although the NAMA legislation did not expressly provide for these rights, the court interpreted it consistently with constitutional fair procedures.

P v Minister for Justice

The applicant’s naturalisation application was refused for national security reasons. Most of the documentation relied upon by the Minister was withheld. The Supreme Court held that generally a person is entitled to see the documentation underlying a decision affecting them because otherwise they cannot engage meaningfully with the process or challenge the decision. However, disclosure can be restricted where legitimate public interests such as national security require it. Any restriction must be proportionate and limited to the minimum extent necessary. The court suggested that an independent reviewer could be used where sensitive information is involved.

A Worker v A Hospital

An employee accused of sexually abusing a patient wishes to cross-examine the complainant. The complainant was mentally vulnerable, and direct questioning posed a risk to her health. The High Court upheld the restrictions on cross examination because:

o   Important competing rights were involved

o   The complainant’s wellbeing required protection

o   Alternative safeguards existed, including examination by an expert nominated by the employee

O’Mahoney v Promontoria

The High Court awarded damages because a witness had found cross examinations stressful. The COA reversed that decision. Whelan J emphasised that robust and challenging cross examination could create a “chilling effect” and undermine the administration of justice.

O’Mahoney v Judge Ballagh

The Supreme Court held that judges must explain, at least briefly:

o   Which arguments they accept

o   Which arguments they reject

o   Why they reached their decision

Foley v Murphy

reasons were required for refusing an application for costs.

Smith v Judge Ní Chondúin

reasons were required for rejecting a no-case-to-answer submission.

Finnegan v District Judge Walsh

reasons were required for refusing disclosure.

Meadows v Minister for Justice

An asylum applicant claimed she faced FGM if she returned to Nigeria. The Minister rejected her application without explaining why. The Supreme Court held that fair procedures require disclosure of the essential rationale behind the administrative decision. Otherwise judicial review becomes ineffective.

Mallak v Minister for Justice

The Minister refused a citizenship application without giving reasons and argued that he possessed an “absolute discretion”. The Supreme Court rejected this argument and held that the rule of law requires decisions to be reasoned and that even broad discretionary powers must normally be exercised transparently.

Connelly v An Bord Pleanála

More detailed reasons are needed where the decision-maker departs from expert recommendations.

McKelvey v Iarnród Éireann

McKelvey faced disciplinary proceedings for alleged theft of fuel through misuse of a company credit card. He sought legal representation but the Supreme Court refused.

Adopting earlier principles from Burns v Governor of Castlerea Prison, the court identified relevant factors:

1.     Seriousness of the charge

2.     Seriousness of the potential penalty

3.     Whether legal issues arise

4.     Complexity of facts

5.     Ability of the person to present their own case

6.     Need for efficiency and speed

7.     Overall fairness

O’Donoghue v Veterinary Council

Kenny J stated that a decision-maker is not impartial where:

o   Their own interests are affected

o   They are closely connected to a party

o   They have prior knowledge of the issues or

o   Other circumstances suggest impartiality cannot be maintained

Orange Communications

the modern test is whether there is a “reasonable apprehension of bias”.

Bula Ltd v Tara Mines

Denham CJ clarified that the test is objective. The question is not whether a party suspects bias but whether a reasonable person would do so.

The SC held that a previous solicitor-client or barrister-client relationship does not automatically disqualify a judge. There must be a cogent and rational link between the prior relationship and the current proceedings.

Dublin Wellwoman Centre v Ireland

Even in the absence of actual bias, previous public involvement in the subject matter could create an appearance of bias.

O’Reilly v Cassidy

a person cannot wait to see how proceedings unfold before raising a bias objection.

Rowland v An Post

The plaintiff was a sub-postmaster. An Post became concerned about unusual transaction levels in his post office and began investigating. An Post:

o   Sent him a number of queries

o   Received unwritten responses

o   Arranged an oral hearing so he could respond further

Three days before the hearing, Rowland sought an injunction preventing it from taking place. He argued fair procedures had been breached because:

o   He had not been given data from other post offices.

o   He could not cross-examine the individuals responsible for the allegations

The Supreme Court refused the injunction. Clarke J held that courts should only stop an ongoing process where it has “gone irremediably wrong” and where it is virtually inevitable that any adverse outcome would be legally unsustainable.