The Supreme Court

1989 No. 2

Between
John Keady
Plaintiff
And
Commissioner of An Garda Síochána, 
Superintendent Enright, Superintendent Smith and 
Superintendent Furlong, Ireland and the Attorney General
Defendant

[26th November, 1991]

McCARTHY J (Finlay CJ, Hederman and Egan JJ concurring): 

In my view, the significant questions raised are those identified in the notice of appeal as:

3. That the learned trial judge misdirected himself in law in holding that the exercise of the powers and functions by the Tribunal of Inquiry and that of the Commissioner of An Garda Síochána were administrative as opposed to judicial acts.

4. That the learned trial judge misdirected himself in law and in fact in not holding that the provisions of the Garda Síochána (Discipline) Regulations 1971 were invalid having regard to the provisions of the Constitution of Ireland 1937 in that, having regard to the nature of the case, including the decision of the Commissioner of An Garda Síochána to dismiss the plaintiff/appellant, the failure of the said regulations to make provision for access to the judicial organ of government, had the effect of taking the exercise of the said functions and powers outside the scope of limited functions and powers of a judicial nature authorised by Article 37 of the Constitution of Ireland 1937.

The issue, therefore, is whether or not the procedure under the 1971 Regulations, made pursuant to the Police Forces Amalgamation Act 1925, is the administration of justice or, à propos Article 37 of the Constitution, is the exercise of functions and powers of a judicial nature, and, if so, whether such functions and powers are limited within the meaning of Article 37.

Administration of Justice

The constitutional prescript is that justice shall be administered by judges appointed in the manner provided by the Constitution.

The meaning of these terms or the breadth of their application have been examined in a series of decisions of our courts: see Lynham v Butler (No.2) [1933] IR 74; Halpin v Attorney General [1936] IR 226; State (McKay) v Cork Circuit Judge [1937] IR 650; Fisher v Irish Land Commission [1948] IR 3; Crowley v Irish Land Commission [1951] IR 250; Foley v Irish Land Commission [1952] IR 118; Cowan v Attorney General [1961] IR 411; Deaton v Attorney General [1963] IR 170; State (Shanahan) v Attorney General [1964] IR 239; In re Solicitors' Act 1954 [1960] IR 239 and McDonald v Bord na gCon (No.2) [1965] IR 217.

Some of these cases were cited in the course of argument.

In Lynham v Butler (No. 2) [1933] IR 74, Kennedy CJ said at 99-100:

The controversies which fall to it for determination may be divided into two classes, criminal and civil. In relation to the former class of controversy, the judicial power is exercised in determining the guilt or innocence of persons charged with offences against the State itself and in determining the punishments to be inflicted upon persons found guilty of offences charged against them, which punishments it then becomes the obligation of the executive department of government to carry into effect. In relation to justiciable controversies of the civil class, the judicial power is exercised in determining in a final manner, by definitive adjudication according to law, rights or obligations in dispute between citizen and citizen, or between citizens and the State, or between any parties whoever they may be and in binding the parties by such determination which will be enforced if necessary with the authority of the State. Its characteristic public good in its civil aspect is finality and authority, the decisive ending of disputes and quarrels, and the avoidance of private methods of violence in asserting or resisting claims alleged or denied. It follows from its nature as I have described it that the exercise of the judicial power, which is coercive and must frequently act against the will of one of the parties to enforce its decision adverse to that party, requires of necessity that the judicial department of government have compulsive authority over persons as, for instance, it must have authority to compel appearance of the party before it, to compel the attendance of witnesses, to order the execution of its judgments against persons and property.

In State (Shanahan) v Attorney General [1964] IR 239, Davitt P said at 247-248:

I have certainly no intention of rushing in where so many eminent jurists have feared to tread, and attempting a definition of judicial power; but it does seem to me that there can be gleaned from the authorities certain essential elements of that power. It would appear that they include (1) the right to decide as between parties disputed issues of law or fact, either of a civil or criminal nature or both; (2) the right by such decision to determine what are the legal rights of the parties as to the matters in dispute; (3) the right, by calling in aid the executive power of the State, to compel the attendance of the necessary parties and witnesses; (4) the right to give effect to and enforce such decision, again by calling in aid the executive power of the State. Any tribunal which has and exercises such rights and powers seems to me to be exercising the judicial power of the State.

In McDonald v Bord na gCon [1965] IR 217, Kenny J said at 230-231:

It seems to me that the administration of justice has these characteristic features: 
1. A dispute or controversy as to the existence of legal rights or a violation of the law;
2. The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
3. The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
4. The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgment.
5. The making of an order by the courts which as a matter of history is an order characteristic of courts in this country.

In this connection there is a passage (at p. 263) in In re Solicitors' Act 1954 [ 1960] IR 239 which is of particular significance:

That the trial of criminal matters and ‘offences’ is an administration of justice is clear from Article 38 which, by way of exception, authorises, in particular cases, the trial of offences by special courts and military tribunals. A characteristic feature of criminal matters is the infliction of penalties, a consideration which gives weight to the submission that a tribunal which is authorised to inflict a penalty, especially a severe penalty, even in cases where the offence is not strictly criminal, should be regarded as administering justice.

In the judgment of this Court in McDonald, without citing any prior authority, Walsh J stated at 244:

Accepting the characteristic features of a judicial body set out by Kenny J these investigating authorities do not satisfy any of those requirements. In particular it is to be noted that the investigating authorities do not themselves by virtue of anything in ss. 43 or 44 affect any right or impose any penalty or liability on anybody. So far as the board is concerned in the exercise of its powers under s. 47 or the club in the exercise of its powers under the section, they are not constituted judicial bodies or do not exercise powers of a judicial nature as they would only satisfy one of the tests referred to.

The latter observation would appear to require that to qualify as being the administration of justice, each of the five McDonald tests must be satisfied. The procedure under review fails the first test: there is no dispute or controversy as to the existence of legal rights or violation of the law, if violation of the law means criminal offence; tests numbers 2, 3 and 4 appear to identify it as such.
It was scarcely intended by Kenny J or by this Court to exclude from the qualifying criteria such matters as were identified by Kennedy CJ in Lynham- authority to compel appearance of a party before it, to compel the attendance of witnesses, to order the execution of its judgments against persons and property.

I share the reluctance of Davitt P in Shanahan to attempt a definition of judicial power; it is easier, if intellectually less satisfying, to say in a given instance whether or not the procedure is an exercise of such power, rather than to identify a comprehensive check-list for that purpose. The requirement to act judicially is not a badge of such power.

Mr Hogan has referred to a decision of this Court (Finlay CJ, Griffin and McCarthy JJ) in K. v An Bord Altranais [1990] 2 IR 396, a case arising under s. 38 of the Nurses Act 1985, where, at 403, the Chief Justice said:

I have, accordingly, carefully considered as to whether the view reached by me at that time [the decisions in Re M., a doctor [1984] IR 479 and M. v Medical Council [1984] IR 485], was correct, and having done so, I am satisfied that it was. The essence of the procedure contained in this Act for the regulation of the registration and disciplining of members of the nursing profession is that it is in the court, namely, the High Court, that the decision effective to lead to an erasure or suspension of the operation of registration must be made. The necessity for that procedure to vest that power unequivocally in the court, in my view, arises from the constitutional frailty that would attach to the delegation of any such power to a body which was not a court established under the Constitution, having regard to the decision of the former Supreme Court in In re Solicitors' Act 1954 [1960] IR 239.

In order for the court to be the effective decision-making tribunal leading to a conclusion that the name of a person should be erased from the register or the operation of registration should be suspended, it is, in my view, essential that having regard to the particular facts and issues arising in any case it is the court who should make the vital decisions.

It is sought to apply the inferential reasoning from the cases under the Nurses Act and the Medical Practitioners Act to the instant case. It follows, it is said, from the extension of In re Solicitors Act 1954.

A feature of the Solicitors Act case, not to be found here or in cases under the Medical Practitioners Act or the Nurses' Act, or if there were such, under the Dentists Act 1985, and identified by Kenny J in McDonald's case is test number 5- the role of the courts as a matter of history in the supervision and disciplining of solicitors. There is no such history in the other cases although that circumstance does not appear to have been addressed in those to which I have referred. All of them are, however, cases in which the right of the individual to work in an occupation for which he has been trained over a period of years and achieved an expertise and certified qualification. If he loses that certificate and holds himself out as being so qualified, he commits a criminal offence. The position concerning the holder of a statutory office in the Garda Síochána, from garda to commissioner, is different. Each is appointed to the statutory position, the commissioner, deputy commissioner, assistant commissioners and surgeon being appointed by the government, and all other officers and men (including women pursuant to s. 1 of the Garda Síochána Act 1958) appointed by the commissioner. Each is required to take the oath or make the declaration required by law. The first category named may at any time be removed from office by the government; the second category may be dismissed by the commissioner in accordance with regulations such as have been enforced in this case. In Garvey v Ireland [1981] IR 75, this Court, affirming McWilliam J, held that the commissioner could not be lawfully dismissed without being given the opportunity of answering the reasons alleged to justify his removal from office. McWilliam J had held that the relationship of master and servant existed between the government and the commissioner. This view was not upheld. O'Higgins CJ, at p. 95, expressed the view that the subsection created a statutory office and that, on appointment, the commissioner became the holder of that office. The then Chief Justice examined the nature of the office of commissioner and, in doing so, cited a number of statutes of the Oireachtas of Saorstát Éireann where offices to be held merely at pleasure were created, so as to distinguish them from the office of commissioner, although, in the result it would appear that the rights of the holder of the office in the event of the government proposing to remove him would be the same. O'Higgins CJ added, at p. 97:

It seems clear to me that the government in this regard has the widest possible discretion as to the reasons or grounds upon which it may decide to act. The only qualification must be that the reason or ground cannot be one which would be prohibited by the Constitution. Subject to this, the government has the right and the responsibility to decide for what reasons the power to remove the Commissioner of the Garda Síochána should be exercised.

I have read the judgment about to be read by O'Flaherty J and I refer, in particular, to that part in which he comments upon the role of the commissioner in the maintenance of discipline. I agree with what he says.

In the case of an office or other position created by statute and held pursuant to statute, in my view the principles stated in In re Solicitors' Act 1954 are not to be extended, if they are to be extended at all, so as to embrace the statutory framework which deals with the creation of and appointment to a particular position or rank and not to the wider factor of being qualified to work for gain in a restricted occupation as well, in appropriate cases, as being qualified to hold a particular position or rank. No challenge was made on any ground of inconsistency with the Constitution. It is difficult to see how such could be made against the Act of 1925 since it created the position from which the plaintiff was dismissed.

It follows that I would dismiss this appeal.

O'FLAHERTY J (Finlay CJ, Hederman and Egan JJ concurring): 

This is an appeal brought by the plaintiff from the judgment and order of the High Court (Costello J) of 1 December 1988 dismissing the plaintiff's claim that the Garda Síochána (Discipline) Regulations 1971 (SI No.316 of 1971), are unconstitutional or that an inquiry instituted under them was invalid.

The facts

The plaintiff at all material times was a member of the Garda Síochána stationed at Tralee, County Kerry. On 16 March 1983 the plaintiff was served with a number of summonses alleging the obtaining of public funds by false pretences between March 1978 and May 1980. He was charged before the local district court and returned for trial but when the matter came on for hearing on 21 January 1986 the Director of Public Prosecutions entered a nolle prosequi on the indictment that had been filed.

On 27 February 1986 the plaintiff was told that a superintendent of the garda had been appointed as investigating officer pursuant to the provisions of regulation 8 of the Garda Síochána (Discipline) Regulations 1971 to inquire into alleged breaches of discipline by the plaintiff which were in relation to the same matters that had formed the basis for the allegations of criminal conduct but were now framed as breaches of discipline, viz, the making of false and misleading entries in a 'night duty book' and it was alleged that they amounted to falsehood or prevarication within the meaning of the breach of discipline described at reference no.5 in the schedule to the regulations.

Thereafter the commissioner caused an inquiry to be held and appointed three garda officers to conduct it. The inquiry duly took place on dates in the months of November and December 1986 and the plaintiff was found to be in breach of discipline in respect of fifteen incidents.

On 9 March 1987 Deputy Commissioner Doherty, acting for the commissioner, made a decision to dismiss the plaintiff from the force which decision was communicated to him on 16 March 1987.

Proceedings in the High Court

By order of the learned President made on 3 June 1987 the plaintiff was given leave to apply for an order of certiorari, an injunction and a declaration by way of application for judicial review in respect of the decision to dismiss him and the President directed that the application should be made by way of originating plenary summons.

The grounds on which the decision was challenged were:

(i) the subject matters of the alleged breaches of discipline constituted criminal matters and were accordingly ultra vires the powers and functions of the tribunal of inquiry.
(ii) the subject matters of the alleged breaches of discipline were ultra vires the powers and functions of the tribunal of inquiry in that the alleged breaches of discipline were not criminal conduct in respect of which there existed a conviction by a court as envisaged by paragraph 16 of the said regulations.
(iii) the hearing and determination and the imposition of the penalty of dismissal without any provision for access to the judicial power does not constitute the exercise of limited functions and powers of a judicial nature by a body of persons authorised by law to exercise such functions and powers envisaged by Article 37(1) of the Constitution and accordingly the provisions of the Garda Síochána (Discipline) Regulations 1971 are invalid having regard to the provisions of the Constitution.
(iv) the order of dismissal dated the 25 February 1987 and signed by [the] deputy commissioner is ultra vires the powers of a deputy commissioner and accordingly unlawful and invalid having regard to the provisions of paragraph 17 of the Garda Síochána (Discipline) Regulations, 1971.

The fourth ground was not pursued either in the High Court or before this Court presumably having regard to s. 8(2) of the Police Forces Amalgamation Act 1925 and the Minister for Justice's powers under that provision. With regard to the other three grounds the learned High Court judge concluded that the plaintiff had not made out a case of invalidity under any of the headings.

Proceedings in this Court

The arguments addressed to us were substantially the same as those that had been advanced before the learned High Court judge. The submission made under the first heading was that the breaches of discipline alleged constituted 'criminal matters' and, therefore, that they were not matters that could properly be dealt with before a tribunal such as the inquiry in question.

This is a similar argument to that advanced before a divisional court in the case of State (Murray) v McRann [1979] IR 133. I respectfully follow the reasoning of the Chief Justice, then President of the High Court, giving the judgment with which the other members of the court concurred when he said at p. 135:

A crime or criminal charge must be defined, as it was in Deaton v Attorney General [1963] IR 170 as an offence against the State itself or as a public offence. A criminal matter within the meaning of Article 37 can be construed as a procedure associated with the prosecution of a person for a crime. It may be the preliminary investigation of such a charge, it may be the trial itself, it could be an appeal from the trial or, presumably, an application for bail pending trial or appeal. The essential ingredient of a criminal matter must be its association with the determination of the question as to whether a crime against the State or against the public has been committed.

The reference in Article 37 of the Constitution excepting 'criminal matters' must mean that there can be no trial of a person on a criminal charge save as provided for in Article 38. This cannot be held to exclude allegations of criminal conduct in other circumstances. Clearly many cases taken in the courts on the civil side may involve allegations of criminality: allegations of dangerous driving, fraud and perjury are random examples. There is no constitutional basis for saying that such allegations cannot be aired before administrative tribunals or before inquiries which have a statutory basis or at other domestic tribunals or inquiries.

With regard to the second ground, which was put forward as an alternative to the submissions made under the first heading, this involves the proper interpretation of the breach of discipline described at reference no.16 in the schedule to the regulations: 'Criminal conduct, that is to say, conduct constituting an offence in respect of which there is a conviction by a court.' It is submitted that the breaches of discipline alleged in this case constituted 'criminal conduct' and since there had been no conviction (indeed no trial) they could not come within reference no.16 and if they were not to be dealt with under reference no.16 they could not be dealt with under any other reference number in the schedule. I believe that the breach of discipline described at reference no.16 is separate and distinct from each of the other breaches of discipline described at the other reference numbers and, therefore, where there is conduct with a criminal connotation involved the inquiry is not precluded from dealing with it under any relevant reference number simply because the matter has not been dealt with in a court. It is right to say that the argument that because criminal proceedings were instituted originally against the plaintiff and afterwards were not proceeded with and that this operated as some form of estoppel was not explored at all before us.

With regard to the third ground advanced, this, in effect seeks to expand the scope of the judgment of this Court in In re Solicitors' Act 1954 [1960] IR 239 to members of the Garda Síochána. Central to the Solicitors' Act 1954 decision was the fact that historically the act of striking solicitors off the roll was always reserved to judges. As the court observed at p. 275:

It is necessary for the proper administration of justice that the courts should be served by legal practitioners of high integrity and...

It seems to the court that the power to strike a solicitor off the roll is, when exercised, an administration of justice, both because the infliction of such a severe penalty on a citizen is a matter which calls for the exercise of the judicial power of the State and because to entrust such a power to persons other than judges is to interfere with the necessities of the proper administration of justice.

Earlier in the court's judgment it made clear that it was not dealing with a domestic tribunal with a jurisdiction based solely on contract (at p. 264).

It seems clear, therefore, that the case of solicitors must be regarded as exceptional and, perhaps, anomalous and owes a great deal to the historic fact that judges always were responsible for the decision to strike solicitors off the roll.

In contrast, the Garda Síochána is a force which consists of members each of whom on appointment undertakes the duty of preserving the peace and preventing crime. The members comprise a disciplined force who are subject to the authority of the commissioner in whom the general direction and control of the force is vested: s. 8 Police Forces Amalgamation Act 1925. Membership of that force carries rights and privileges not possessed by other citizens; it also involves onerous duties not shared by others. The force could not properly carry out its essential function of preserving law and order unless there was an entitlement in the commissioner to enforce discipline which necessarily involves the ultimate sanction of dismissal from the force for sufficiently grave breaches of discipline. As McCarthy J said, in the context of an application for judicial review in relation to the actual operation of the regulations, in his judgment in Stoker v Doherty [1991] 1 IR 23, 30:

The consideration of such matters as to whether or not a particular incident amounts to conduct prejudicial to discipline or likely to bring discredit on the force is peculiarly appropriate for determination by the gardaí themselves; so also is the assessment of the penalty appropriate to any such breach or breaches

I gratefully adopt this dictum to the circumstances of the present case.

This case must be contrasted not only with the decision in the Solicitors' Act case but also with the court's decision in K. v An Bord Altranais [1990] 2 IR 396 where, at 403, the Chief Justice in the course of his judgment (with which Griffin and McCarthy JJ concurred) said:

The essence of the procedure contained in [the Nurses Act 1985] for the regulation of the registration and disciplining of members of the nursing profession is that it is in the court, namely the High Court, that the decision effective to lead to an erasure or suspension of the operation of registration must be made. The necessity for that procedure to vest that power unequivocally in the courts, in my view arises from the constitutional frailty that would attach to the delegation of any such power to a body which was not a court established under the Constitution having regard to the decision of the former Supreme Court in In re Solicitors' Act [1960] IR 239.

The K. case was concerned with the taking away or the suspension of a professional qualification; it is to be distinguished from this case because while a garda who is dismissed loses his immediate employment he does not lose any qualification by virtue of his dismissal.

The arguments advanced on behalf of the plaintiff had two prongs. In the first place, it was submitted that the inquiry held constituted an administration of justice and this should be reserved solely for the courts; and secondly, it was said that the powers capable of being exercised by the inquiry could not be regarded as 'limited functions and powers of a judicial nature' as provided for in Article 37 of the Constitution.

The main question that must be confronted, therefore, is: did the operation of the inquiry constitute an administration of justice?

In McDonald v Bord na gCon [1965] IR 217 the learned High Court judge, Kenny J, in a passage which was accepted by this Court on appeal, identified the following as the characteristic features of the administration of justice, at p. 231 viz,

1. A dispute or controversy as to the existence of legal rights of parties or a violation of the law;
2. The determination or ascertainment of the rights of parties or the imposition of liabilities or the infliction of a penalty;
3. The final determination (subject to appeal) of legal rights or liabilities or the imposition of penalties;
4. The enforcement of those rights or liabilities or the imposition of a penalty by the court or by the executive power of the State which is called in by the court to enforce its judgment;
5. The making of an order by the court which as a matter of history is an order characteristic of courts in this country.

In turn it is possible to isolate two essential ingredients from these characteristics and they are that there has to be a contest between parties together with the infliction of some form of liability or penalty on one of the parties. Here, while undoubtedly there was the infliction of a penalty -and a severe one -the other essential ingredient is not present, This was not a contest between parties; it was, as its name says, an inquiry .

I conclude with the learned trial judge, therefore, that the inquiry under the 1971 Regulations [incidentally no longer extant: see, now: Garda Síochána (Discipline) Regulations (SI No.94 of 1989)] had to be conducted in a fair and just manner but that it did not involve either any trespass on the judicial domain or the exercise of judicial functions. It is right to emphasise, too, that the correct operation of domestic tribunals and inquiries such as the one here impugned has been delineated in many cases such as McDonald v Bord na gCon [1965] IR 217; East Donegal Co-operative Livestock Marts Ltd v Attorney General [1970] IR 317; In re Haughey [1971) IR 217; Kiely v Minister for Social Welfare [1977] IR 267 and O'Keeffe v An Bord Pleanála [1992] ILRM 237.

This line of authority establishes that there is now in place a well charted system of administrative law which requires decision-makers to render justice in the cases brought before them and sets out the procedures that should be followed, which procedures will vary from case to case and from one type of tribunal to another and which, of course, are subject to judicial review. Similarly, the rules of evidence may not necessarily be applied with the same strictness as in a court of law provided that the decision-making body keeps in the forefront of its deliberations the necessity to come to a correct and just verdict having regard to the complaints that have to be investigated; the determination to be made and the consequences such determination may have for the party or parties appearing before it.

Having regard to my conclusion that this inquiry did not constitute a judicial body such as is envisaged by Article 37 it would obviously be inappropriate to enter into a consideration of the concept of  'limited functions and powers' which was the other subhead of the plaintiff's argument on this aspect of the case.

I would dismiss the appeal and confirm the order of the High Court.