Patrick Bane and others (applicants) v The Garda Representative Association and Others (respondents).

Natural Justice - Fair procedures - Allegation of bias - Committee hearing charges which it had made - Prejudgment of issues by committee members - Certiorari a discretionary remedy - Delay - Existence of alternative remedy not a bar to relief - Failure to attend at hearing not a bar to relief - Availability of judicial review.

The High Court (Mr Justice Kelly); judgment delivered 27 June 1997.

An allegation of perceived bias was satisfied where charges of giving false or misleading evidence in High Court proceedings were adjudicated on by persons who had given contrary evidence in those same proceedings and where the charges being heard were ones instigated by the committee adjudicating on those charges. Mr Justice Kelly so held in determining that the Garda Representative Association was a body which was capable of being judicially reviewed and in granting orders of certiorari in respect of decisions of the rule 3(d) standing committee of the first respondent.

Adrian Haridman SC and Feichin McDonagh BL for the applicants; Peter Charleton SC and Bruce Antoniotti BL for the respondents.

Mr Justice Kelly said that this case had its origins in earlier litigation which was heard before the High Court (Mr Justice Morris) in March 1994. Those proceedings were judicial review proceedings brought against the GRA and a major issue of fact fell to be determined. The High Court had had to make findings as to what transpired at a meeting of the central executive committee of the GRA. Each of the applicants in this case had given evidence for the applicants in the earlier case. Some of the respondents in this case had given evidence for the GRA in the previous case. Mr Justice Morris had resolved the conflict of evidence in favour of the GRA and the applicants' case had been dismissed.

Mr Justice Kelly said that the GRA was established pursuant to section 13 of the Garda Siochana Act 1924 as inserted by section 1 of the Garda Siochana Act 1977 which provides that the Minister for Justice may establish by regulation an association to represent members of the Garda Siochana in all matters affecting their welfare and efficiency. The Garda Siochana (Associations) Regulations 1978 established the GRA. The GRA is governed by the central executive committee and divisional committees. Under section 13(3) of the 1924 Act, as inserted by section 1 of the 1977 Act, it is not lawful for a member of the Gardai to be or become a member of any trade union or of any association other than an association established under the section of which the objects or one of the objects are or is to control or influence the pay, pensions or conditions of service of any police force.

In September 1990, the GRA amended its rules and inserted a new rule 3(d). This provided for the establishment of a standing committee to deal with internal disciplinary matters in relation to the membership of the association. The rule provides for a notification to any member of the intention to have him dealt with under this rule and gives him the right to appear before the standing committee and give a statement on his own behalf or call other members to give evidence for him. There is also a right of appeal to the central executive committee.

A complaint by way of letter dated 20 April 1994 was made to the 3(d) standing committee against five members of the central executive committee, three of whom were the applicants in this case. The applicants alleged that the letter of complaint was posted on notice boards in Garda Stations in Dublin and defamation proceedings were threatened, but this threat was never carried into effect. During the spring and summer of 1994 the state of dissent between members of the GRA continued and subsequent to the annual conference of the GRA the applicants became involved in a rival association known as the Garda Federation. Following on letters of complaint by the secretary of the rule 3(d) standing committee, the GRA embarked upon disciplinary proceedings in respect of each applicant.

In relation to the second applicant, the 3(d) standing committee wrote to him setting out the charges against him. Most of these charges had been instigated by the committee of its own volition. The charges alleged that the applicant had given false and/or misleading evidence in the previous High Court proceedings, that he had made unauthorised statements to the media which were unfairly critical of the minister and the CEC, that he was involved in circulating documents to all GRA members which were unfairly critical of members of the GRA and the central executive committee, that he had disrupted the annual conference of the GRA in 1994 and that he supported and canvassed support for a rival association. The applicant was notified of the time and venue of an oral hearing.

As a result of receiving this letter, the applicant resigned from the GRA. On the date of the hearing the applicant attended with his solicitor and informed the committee that as he was no longer a member of the GRA he would not attend the meeting. He also stated that the charges in relation to his evidence in the High Court amounted to charges of perjury and that the committee had no jurisdiction to examine those charges. He then withdrew. In his absence, the committee proceeded to a hearing and informed him by letter of the result. The committee informed him that all of the charges were found to have been proved and that, by way of penalty, he was to be debarred from holding office in the GRA for five years and expelled from holding membership of the GRA for five years, the debarment to run consecutive to the penalty of expulsion. When the committee made these adjudications the second, third and fourth respondents were members of the committee. Each of them had given evidence for the GRA in the previous High Court hearing. The applicant subsequently applied to the High Court for an order of certiorari of this decision on the grounds that it was ultra vires and reached without regard to the principles of natural and constitutional justice.

Mr Justice Kelly said that the first applicant was informed of a similar, though not identical, list of charges against him. Again some of the charges were instigated by the committee itself. Prior to the oral hearing the applicant informed the committee that he would not attend the hearing lest it confer an air of legitimacy to the forum. In his absence the committee proceeded to hearing and subsequently informed him that the charges made against him had been proved. The most serious penalty which was imposed was expulsion from holding membership for ten years. Other penalties imposed were expulsion from holding membership for five years and debarment from holding office in the GRA for five years. As in the case of the second applicant, the committee included the second, third and fourth respondents, all of whom had given evidence on behalf of the GRA in the previous proceedings.

Mr Justice Kelly said that the third applicant had similar charges made against him. He did not attend the oral hearing lest he lend an air of legitimacy to it. The committee sat with the second, third, fourth and fifth respondents, the first three of these having given evidence for the GRA in the previous case. Again, all charges were said to have been made out, and the most severe punishment was expulsion from membership of the GRA for eight years. Turning to the legal issues, Mr Justice Kelly considered the submission of the respondents that these matters did not relate to public law. The learned judge referred to Geoghegan v Institute of Chartered Accountants in Ire- land [1995] 3 IR 86 where Mrs Justice Denham had set out obiter the factors relevant to the question of the availability of judicial review in that case. A number of those factors were satisfied here in that the Gardai play an important role in the community, the GRA has it roots in statue, that the functions of the GRA and its members come within the public domain of the State and that the 3(d) committee would be obliged to act fairly and in accordance with the principles of natural justice as a finding of wrongdoing against a member might have serious consequences.

While the factors as enunciated by Mrs Justice Denham were obi- ter Mr Justice Kelly said that he had already applied them himself in Rafferty and Others v Bus Eireann (High Court, unreported, 21 November 1996). The Supreme Court had considered the issue in Walsh v Irish Red Cross Society in which judgment was delivered on 7 March 1997. Giving judgment for the court, Mr Justice Blayney said that the society was in the public domain. It had been established by statutory instrument and membership of the society was open to all Irish citizens who paid the appropriate fee.

In this case, membership of the GRA was open to all members of the Garda Siochana who hold the rank of garda. Once they hold the public service position of garda, they join an association which was created by statute. At the time it was set up, every garda in the force was deemed to be a member of the association and to be bound by the rules thereof. Mr Justice Kelly said that the GRA was no different in so far as its susceptibility to judicial review was concerned than was the Irish Red Cross Society. He said that he was fortified in his decision by the decision of the then Chief Justice, Mr Justice Finlay, in Beirne v Commissioner of An Garda Siochana [1993] ILRM 1 in that the decisions of the GRA are ones which are ordinarily seen as coming within the public domain and they could not be said to arise solely or exclusively from an individual contract made in private law. Mr Justice Kelly therefore dismissed the submission that the GRA was not susceptible to judicial review.

Mr Justice Kelly said that the applicants had been granted leave to apply for judicial review on a number of grounds, the first being an allegation of bias. He proposed to deal with this first because it they were successful under this heading, the applicants would have succeeded in establishing an infirmity in all of the decision which were sought to be impugned.

The allegation of bias consisted of two arguments: firstly, that it was highly inappropriate that the 3(d) standing committee would have among its members persons who gave evidence before the High Court, particularly where the evidence given by them was in conflict with that of the applicants, and secondly, many of the charges heard were ones instigated by the committee itself.

Mr Justice Kelly said that the allegation was not one of real bias, but rather that the facts gave rise to a real likelihood of bias being apprehended. In O'Neill v Beaumont Hospital Board [1990] ILRM 419, Mr Justice Finlay had said that the proper test was whether a reasonable man would apprehend that his chance of a fair and independent hearing of the question does not exist by reason of the pre-judgment of the issues which are involved by the members of the board. Mr Justice Kelly said that it was clear that the test which had to be applied was an objective one. In his view, in this case a reasonable man would have a reasonable fear that the applicants would not have a fair and independent hearing of the issues. The committee had on it a number of the respondents who had been called as witnesses for the GRA in earlier proceedings and had given evidence which clearly controverted that of the applicants. They were then called upon to adjudicate on the charge that the applicants had given false or misleading evidence to the High Court.

The respondents submitted that the finding of the committee in relation to the charges of the giving of false evidence was nothing more than a reiteration of the findings of Mr Justice Morris. It was submitted that there was really no adjudication to perform. Mr Justice Kelly said that on a careful reading of the judgment of Mr Justice Morris, there was no finding that the applicants had given false testimony. On the balance of probabilities had made findings of fact in favour of the GRA but that was a far cry from holding that the applicants' testimony was false. There was no such finding for the committee to endorse. Mr Justice Kelly said that even if he was wrong in that view and the committee did not have to adjudicate on the question of guilt or innocence, they nonetheless had to deal with the penalty which was to be imposed. The same standard of fairness or independence applied to a tribunal imposing a penalty.

The respondents also submitted that in 1991 the procedures of the committee were amended to the effect that a failure on a member's part to appear in person at a hearing of the committee was to be interpreted as an acceptance on the part of such member not to contest the charges laid. Without making a finding as to whether those amendment were efficaciously brought about or made known to the applicants, there still remained the question of penalty, in respect of which there was a requirement of fairness or independence.

Mr Justice Kelly said that as the charges relating to the giving of false evidence were dealt with at the same hearing as all the other charges, the perceived bias which he had found to exist infected the whole of the hearing. In the circumstances the applicants had established that the hearings in each of their cases were infirm by reason of perceived bias. There was no reason why the committee could not have been constituted by persons other than those who had given evidence in the earlier proceedings. In addition, in the light of the history of bitterness and distrust between the parties the respondents should have been particularly concerned to ensure that the 3(d) committee constituted to adjudicate on the charges should have been independent and fair and be seen to be so.

Mr Justice Kelly also held that the applicants were correct in their second criticism. Citing O'Donoghue v Veterinary Council [1975] IR 398, Heneghan v Western Regional Fisheries Board [1986] ILRM 225 and Turner v Pilotage Committee of Dublin Pilotage Authority (High Court, unreported, 14 June 1988), he said that it was undesirable that the committee should have instigated charges to be adjudicated on by itself.

For these reasons the adjudications of the committee were vitiated and it was not necessary to deal with the other grounds put forward by the applicants.

However, public law remedies were discretionary. That the remedy of certiorari was discretionary was established in State (Abenglen) v Dublin Corporation [1982] ILRM 590. The respondents submitted that certiorari should be withheld on a number of grounds. Firstly, Order 84 rule 21 of the Rules of the Superior Courts provides: "An application for leave to apply for Judicial Review shall be made promptly and in any event within three months from the date when grounds for the application first arose, or six months where the relief sought is Certiorari ..." When leave was granted, Mr Justice Barr extended the time for the making of the application, but that issued had to be considered afresh by the trial judge. Mr Justice Kelly said that the applicants had established good reason for extending the period within which application could be made. In September 1994, the Minister for Justice had requested that all disputes between the GRA and the Garda Federation be suspended pending the outcome of attempted mediation and in deference to the ministerial request, the applicants held off the making of these applications. They could not be the subject of legitimate criticism for this and they were not precluded because of delay in the institution of the proceedings from obtaining the relief sought.

Secondly, the respondents submitted that the applicants had failed to assert their rights by not appearing at the hearing. Mr Justice Kelly said that the applicants had made their position plain to the committee and there was no obligation upon them to attend before it. They had not acted as did the applicants in Corrigan v The Irish Land Commission [1977] IR 317 where the applicants appeared before the relevant tribunal and, only after it had given a decision adverse to them, raised the complaint of disqualification. Nor were the applicants disentitled to relief on the grounds that they had failed to exercise their right of appeal. Mr Justice Kelly said that he was of the view that the relationship between the parties was so soured that the failure on the part of the applicants to exercise their right of internal appeal was not conduct such as would debar them from obtaining an order of certiorari.

Mr Justice Kelly said that even if the applicants had no intention of ever rejoining the GRA, the record of that association contains findings of guilt concerning serious misconduct on their part. Citing State (Furey) v Minister for Defence [1988] ILRM 89, Mr Justice Kelly said that that was sufficient to ground the application. Ruling on the submission that the applicants could have taken defamation proceedings, the learned judge said that the applicants were entitled to choose the remedy which best suited them.

Mr Justice Kelly made orders of certiorari quashing the determinations of the 3(d) committee which were impugned. He said that this was not an appropriate case in which to remit the charges to the 3(d) committee under Order 84 rule 26(4) for further consideration.

Solicitors: Partners at Law (Dublin) for the applicants; Hughes Murphy & Co. (Dublin) for the respondents.