 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
High Court of Ireland Decisions |
||
|
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Curley v. Governor of Arbour Hill Prison [2004] IEHC 189 (5 May 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/189.html Cite as: [2004] IEHC 189 |
||
[New search] [Printable RTF version] [Help]
[2004] IEHC 189
Case No. 2002/799JR
APPLICANT
RESPONDENT
I hereby certify the
following to be a true and
accurate transcript of my
shorthand notes in the
above-named judgment.
JUDGMENT OF MR. JUSTICE T.C. SMYTH DELIVERED ON
TUESDAY, 4TH DAY OF MAY 2004
The Applicant in these proceedings is a Prison Officer in Arbour Hill Prison and the Respondent is the Governor thereof. The Applicant seeks orders of prohibition to restrain the Respondent from embarking upon a hearing, under the Prison Disciplinary Code for Officers) Rules 1996 (SI No. 289 of 1996), hereafter referred to as the "Disciplinary Code", into certain allegations made against the Applicant by fellow Prison Officers. All of the latter are female, and all allege that the Applicant engaged in certain conduct, which conduct is stated to constitute sexual harassment. The Respondent is charged with certain duties by statute and/or statutory instrument (particularly the Disciplinary Code) including the investigation and disposal of allegations of breach of discipline against Prison Officers serving in the Prison of which he is Governor.
The truth or otherwise of these allegations is not an issue in these proceedings, suffice it to say that Item 22 of the First Schedule to the Disciplinary Code provides that the breach of discipline includes:
"...engaging in behaviour of a sexual nature, while on duty, towards another person to which that person objects or could not reasonably be expected to
consent."
The factual background to the proceedings is as follows. Formal written complaints were made to the Respondent by three female Prison officers on 27th and 28th August 2002. Two of these complaints refer to incidents which occurred in or around spring 2002, the third referred to two specific incidents which occurred years earlier (i.e. 1994 and 1998) as well as incidents on other unspecified dates. The Applicant was informed of the allegations and suspended from duty by the Respondent on 2nd September 2002. Further, the Applicant was served with Complaint Forms relating to each of the complaints alleged against him on 7th October 2002. In the interim between 27th August 2002 and 7th October 2002 the Respondent considered that further investigation was required and this is so averred to in affidavit. An invitation to respond to the allegations in the Complaint Forms was extended to the Applicant, who sought and obtained a number of extensions of time within which to reply. The Applicant did not and has not responded to the allegations. A solicitor's letter dated 15th November 2002 was written on behalf of the Applicant within the time of the final extension of time granted to the Applicant. The letter called upon the
Respondent to accept that the disciplinary proceedings were invalid by reason of a stated failure to comply with the time limites provided for in the Code (otherwise the Disciplinary Code) and "the relevant Memorandum of Understanding" (hereafter referred to as the Memorandum of Understanding). The Respondent did not accept the position as stated for the Applicant, and notified him on 2nd December, 2002 of an intended Oral Hearing of the complaints to be heard on 16th December 2002 and directed his attendance at the hearing under Section 14(2) of the Disciplinary Code.
Leave to apply for judicial review was given by order of O'Neill J. on 9th December 2002, which stayed the disciplinary proceedings pending determination of these proceedings on grounds (e) (1) to (10). The principal submissions of the Applicant are that the disciplinary proceedings are ultra vires the Respondent because:
(a) the complaints grounding same were made outside the limits provided for in the Disciplinary Code, and
(b) the Applicant was informed of the complaints outside the time limits laid down in the Disciplinary Code.
The Disciplinary Code (inter alia) provides in
Regulation 7(2) as follows:
"The allegation against an officer of a breach of discipline shall be made to the Governor as soon as practicable, but not later than 7 working days,
after the coming to the notice of a relevant superior officer of the allegation which gave rise to the allegation."
The Memorandum of Understanding provides at paragraph 4:
"Rule 7(2)
(a) Provides that an allegation shall be made to the Governor as soon as practicable, but not later than 7 working days, after the coming to the
notice of a relevant superior officer of the information which gave rise to the allegation.
(b) It is agreed that an Officer of whatever rank who has a complaint against other officer shall make that complaint as soon as practicable, but
not later than 7 working days after the incident which has given rise to complaint.
(c) Further, it is agreed that where an officer is the subject of a complaint the Governor should notify the officer of the complaint within
72 hours on receipt of that complaint."
The position taken by the Applicant is that the Respondent is bound by the terms of the Memorandum of Understanding and that the time limits referred to in
it are mandatory and such that the Respondent cannot institute disciplinary proceedings under the Disciplinary Code in respect of complaints made or communicated to the accused Officer, outside the time limits laid down by the Memorandum of Understanding.
The Memorandum of Understanding agreed between the Prison Officers Association and the Department of Justice in relation to the introduction of the Disciplinary Code was referred to by Ms. Butler for the Respondent as in the nature of an industrial relations agreement, if it was such (and I have some considerable doubts about that) it was nonetheless unregistered. In the exhibits to the affidavits before the Court this document has different forms. In exhibit "MC1" to the Applicants affidavit sworn on 3rd December 2002: the document is undated and expressly in its introductory paragraph states:
"This memorandum sets out matters that have been the subject of discussion between the Department of Justice (the Official Side) and the Prison Officers
Association (the Staff Side) under the Conciliation and Arbitration Scheme."
This document contains that passage earlier referred to in this judgment as Rule 7(2)(a), (b) and (c).
This document noted that the intended Code was to be brought into operation on 1st May 1996, yet "the actual application of the Code will commence on 1st
October 1996". There is a document (Exhibit MC9 to the Applicant's affidavit sworn on 6th May 2003) entitled "Agreed Report 01/1996" which is signed on behalf of "the Staff Side" and signed on behalf of "the Official Side" and dated as signed on 30th May 1996 in which the following references are made to a/the Memorandum of Understanding:-
"The Official Side said that the bilateral discussions on the claim had been concluded and that a Code of Discipline, together with a Memorandum of Understanding had been agreed in principle." (1)
"The Official Side explained that before the Minister for Justice signed the Ministerial Order, which would give Statutory effect to the Code of Discipline and the Memorandum of Understanding, it was first necessary to get the approval of the Government.
It was agreed by both sides that the issue of calling prisoners as witnesses would be dealt with outside the Code by way of Circular to be issued to all
staff in the Prison Service. This approach was agreed in response to the Staff Side's reservations concerning this aspect. The Official Side
proposed that the parties formally record "Agreement in Principle" on
(i) The Code
(ii) The Memorandum of Understanding...." (2).
"Both sides agreed that final approval of the Code was a matter for the Government and the Minister For Justice. Notwithstanding such approval, however, the Staff Side requested that an Agreed Report of Council be drafted for signature." (3).
The Minister for Justice in exercise of the powers conferred on her by Section 12 of the General Prisons (Ireland) Act, 1877 as adapted by the General Prisons Board (Transfer of Functions) Order, 1928 is (S.R. & O. No. 79 of 1928), and with the approval of the Government sealed SI No. 289 of 1996 on 25th September 1996 which became effective on 1st October 1996. Rule 7(2) (a), (b) and (c) as cited and discussed at some time in the Memorandum of Understanding did not find its way into the Disciplinary Code, it does not form part of the Code nor can it surplant, delimit or extend Rule 7 as expressed in the Code. In my judgment the formalised way in which informations, complaints and allegations are to be dealt with are as set out in the Disciplinary Code not in any Memorandum of Understanding, for to do so would be to elevate such a Memorandum to the status of law which, in my opinion it has not.
Mr. Anthony Collins, S.C., for the Applicant submitted that the ex tempore judgment in McLeod -v Minister for Justice, Equality and Law Reform (unreported, Murphy J. 21st December, 2001) which considered both the Disciplinary Code and the Memorandum of Understanding should be followed. Altogether from is distinguishable facts I am unable to do so for in my judgment the ponit of legal principle is correctly enunciated in the judgment of Carroll J. in Twohy -v- Commissioner of An Garda Siochana & Others (unreported, the High Court 13th December 2002). In that case the Applicant relied on a Memorandum of Agreement drawn up some two years before the Garda Siochana (Discipline) Regulations 1989 (SI No. 94 of 1989). The Memorandum in that case expressly stated that it "is and is intended to be informal rather than legalistic in tone, both sides agreed that it may be legitimately referred to if necessary in any relevant discussions or negotiations that may take place in future in the sense that, if any action is taken or attitude adopted that reasonably appears to be in conflict with the Memorandum, the person who takes that action or attitude will prima facie be at fault." While acknowledging the difference in wording between that Memorandum and the Memorandum of Understanding in the incident case I take the same view in the present case as was taken in Twohy viz "The Memorandum of Agreement has no legal status and cannot be interpreted as having any impact on the statutory instrument. The statutory instrument sets out a procedure for investigating breaches of discipline." I adopt as in point the following passage from the judgment of Carroll J.:
"In my view the provisions of statutory instrument (SI No. 94 of 1987) [in the instant case SI No. 289 of 1996] cannot be affected by any prior Memo of
Agreement. The Regulations are complete in themselves and cannot be amended except in accordance with statutory provisions. Therefore in my
opinion the Memorandum of Understanding has no legal standing vis-á-vis the Regulations."
The case of Carolan -v- the Director of Public Prosecutions [1999] 2 I.R. 515 was cited as authority for reliance on internal memoranda. The underlying principle that was at stake in that case was identified by Macken J. as - that justice must not simply be done but seen to be done and that the purpose of the Garda Síochána (Complaints) Act, 1986 was to ensure an independent investigation would be carried out and that a person of high standing would be appointed to investigate complaints. The judge held that the appointment of the inspector was not in accordance with the Act and coincidentally with an internal memorandum. There is nothing in the decision to suggest in any way a supremacy for the internal memorandum or of its amending legislation. The case of Dascalu -v- Minister for Justice, Equality and Law Reform (unreported, the High Court O'Sullivan J., 4th November 1999] is an asylum case that predated the Immigration Acts and in the absence of a statutory scheme was concerned with the Von Arnim and Hope Hanlon letters and is not in point where in the instant case there are clear provisions in the Statutory Instrument.
The only time limit contained in the Disciplinary Code is that an allegation of breach of discipline should be made to the Governor within 7 working days after the information on which it is based comes to the notice of a relevant superior officer. It is noteworthy that the time limit contained in Article 7(2) of the Disciplinary Code relates solely to the making of an allegation of breach of discipline to the Governor by an accused officer's superior officer and makes no provision either for the making of a complaint by a fellow officer or the notification of the accused officer of that allegation. However, "the proper operation of the statutory scheme" (Henchy J. in The State (Elm Developments Ltd.) -v- An Bord Pleanala [1981] ILRM 118 at 110) is clearly dependent on complaints being made and dealt with timeously. The Rules of the Disciplinary Code are silent as to the time frame within which the Governor must act, save that the Complaint Form should be given to the accused officer "as soon as practicable" (i.e. feasible or as soon as may be). This regime may appear rather lax when first viewed - however regard must be had to shift work, illness, holidays, the possibility that an accused officer may seek to evade service or receipt of a complaint form or that additional investigations may require to be made in prudence and fairness. However, an appreciable lapse of time (to be determined by the facts and circumstances of a given case) may require an explanation to satisfy a court that the accused officer has been given the complaint form as soon as practicable: such circumstances do not arise in the instant case.
In the instant case the then Governor of Arbour Hill Prison has sworn an affidavit on loth March 2003 upon which he was not cross-examined, nor was any application in that regard made wherein he avers at paragraph (8) that:
"In this instance the complainant officers made their complaints directly to me and consequently the seven day rule was not relevant".
In my judgment this is a record of what appears to have happened (although Ms. O'Donnell's letter of 27th August 2007 does not on its face address itself to the Governor): it is in accord with the law as I find it to be and contended in paragraph (5) of the Grounds of Opposition.
The Applicant contended that if the Memorandum of Understand were applicable then its provisions as to time were and are mandatory rather than directory. While the applicability of the Memorandum was in dispute (and I have found it inapplicable) both parties relied on The State (Elm Developments) -v- An Bord Pleanala [1981] ILRM 108 at page 110 per Henchy J.:
"Where a provision in a statute or a statutory instrument, which on the face of it is obligatory (for example, by the use of the word 'shall'), should be
read by the courts as truly mandatory or merely directory depends on the statutory scheme as a whole and the part played in that scheme by the
provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory
instrument, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a
requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non compliance may be excused."
While the passage is clearly referable only to a statute or a statutory instrument, the Applicant urged the adoption as in some way comparable to the decision in McNeill -v- Commissioner of An Garda Siochana [1997] I IR 469 per Hamilton C.J. at p. 484. However, as is clear from that judgment the Chief Justice was satisfied that the Respondents were in breach of the obligation imposed on them by Regulation 8(1) of the Garda Siochana (Discipline) Regulations 1998 (SI No. 94 of 1998) to investigate the alleged breaches of discipline as soon as practicable after they had become aware of them. In that case a period of almost 3 years, was not surprisingly, held to be not as soon as practicable.
The Respondent, without prejudice to the argument that the Memorandum was inapplicable, submitted in circumstances where no provision is made as to the effect of a failure to comply with a time limit, it should not be treated as mandatory particularly where (on the Applicant's case) the effect of treating the time limit as mandatory would be to deprive the Respondent of all power to deal with the breaches of discipline alleged; altogether from any other statute or statutory obligations he may have had. Given the nature of the complaints (e.g. allegations of sexual harassment), the construction of the word 'shall' as mandatory rather than directory where a limit of seven days might well have the effect of preventing any complaint of that nature from being investigated would, in my view, not be a correct approach to the law. Very often such incidents are accompanied by shame, trauma, confusion and denials of reality. Stale claims or undue delay should not be permitted but compliance with the spirit of the law is paramount. In my opinion the Respondents's submission is to be preferred as being in harmony with the intendment of the scheme as set out in the Statutory Instrument notwithstanding the able arguments advanced based on Dolan -v- O'Hara [1975] N.I. 125 per Lowry, L.C.J. at p. 130 et seq.
The recent case of R (Confederation of Passenger Transport UK) -v- Humber Bridge Board & Anor. [2004] QB 310 at 319-326 is illustrative of a long line of cases where the Courts are invited to import material extraneous to the statutory instrument as an aid to its construction. In the instant case the statutory instrument is clear and requires no such supplement as the Memorandum of Understanding. Accordingly I discharge the order first given by O'Neill J. and refuse the application.
END OF JUDGMENT
Approved: Judge T.C. Smyth (7/5/04)