THE SUPREME COURT
			No.  293/98
Keane, C.J.
Denham, J.
Barron, J.

BETWEEN

ANTHONY SHERIFF

		                                                                APPLICANT/APPELLANT
AND

MARTIN CORRIGAN, THE GOVERNOR OF SHELTON ABBEY,
THE MINISTER FOR JUSTICE AND THE ATTORNEY GENERAL

		                                                             		RESPONDENTS

Judgment of The Hon. Mrs. Justice Denham delivered the 15th day of February, 2000.

	This is an appeal by the applicant/appellant (hereinafter referred to as the applicant) from a decision of the High Court (Carney J.) dated 31st July, 1998.  The facts were found by the learned High Court judge as follows:

		“The catalyst to this particular justiciable controversy is a claim for expenses by someone other than the Applicant in the sum of £5.96.

		The Applicant has been a prison officer for twenty-three and a half years since the 7th July, 1973 employed variously at Mountjoy Prison, Cork Prison, Portlaoise Prison and Shelton Abbey.  In May 1985 he was promoted from the rank of prison officer to that of Assistant Chief Officer and was stationed at Shelton Abbey Prison as Assistant Chief Officer since December 1990.

		On or about the 9th day of June, 1994 prison officer Seamus Roche, submitted to the Applicant a subsistence form for payment of duty expenses in the sum of £5.94 and the Applicant certified the dates and times thereon as being correct.  Later that evening Assistant Governor Whelan came to the Applicant with the said form and said that Clerk 1 Breen (hereinafter referred to as C1 Breen) was querying the details set out therein.  Assistant Governor Whelan was given a comprehensive explanation of the contents of the form by the Applicant and he concurred in the same and on June 10th, 1994 C1 Breen paid the subsistence amount due to Officer Roche.

		On the 4th day of July, 1991, C1 Breen wrote to Assistant Governor Whelan and queried the subsistence which was paid to Officer Seamus Roche, the payment of which had already been approved by Assistant Governor Whelan and in fact paid out by C1 Breen.  On the 27th day of July, 1994 the  Applicant replied to Assistant Governor Whelan’s communication in the following terms:

			‘			Shelton Abbey
					Arklow
					27th July ’94

			The Governor,

			In answer to Scab Breen’s report, I am at a loss to understand a number of very important points.
	
			1.	Is the Scab Breen implying that Officer S. Roche or myself were attempting to defraud the Minister for Justice or the State by deception.

			2.	Why did the Scab Breen pay the money to Officer S. Roche on the 10/6/94 if the subsistence form was not correct.

			3.	Why did it take the Scab Breen from the 10/6/94 until the 4/7/94 to question same.

			My action on the date in question will stand up to any independent investigation.  The Fraud Squad will not be necessary on this occasion.

			Finally, I must point out for the benefit of the Scab Breen the proper spelling of my name is as follows:  SHERIFF.

			Anthony Sheriff
			10676
			Assistant Chief Governor
			27th July ’94

		In response the Applicant received an undated letter from Assistant Governor 			Whelan in the following terms:

			‘A.C.O. Sheriff

			Please explain why on the 27th July, 1994 when you replied to an official 	query from C1 Breen you referred to him as the Scab Breen.

			Your reply should be returned within seven days of receipt of this 			document, if you are unable to reply within this time you may apply for 		an extension of time stating the reasons for your request.

			C. Whelan
			A/Gov.’

		The Applicant replied in the following terms:-

				‘			Shelton Abbey
							Arklow
							14th August ’94

			The Governor,

			In answer to your official query which I received from Chief Officer O’Reilly, the answer is simple.
		
			In April 1988 there was a dispute between the Department of Justice and the Prison Officers Association which I am proud to be a member.  An official strike followed and Breen passed an official picket, a fact that cannot be disguised for the remainder of his life and he now must live with the rough stigma that is attached to the word ‘scab’.

			As an English speaking nation the word ‘scab’ is part of our vocabulary and I as a member of this nation am entitled to use the word ‘scab’ where appropriate.

			Governor I must now refer you to the ‘Oxford Advanced Learners Dictionary of Current English’ where the meaning of the word ‘scab’ will more than satisfy your official query.

			Anthony Sheriff
			10676
			Assistant Chief Officer
			14/8/94.’

		I divert here for a moment to say that use of the word “scab” has once been considered in Irish case law.  In E.I. Co. Limited v. Kennedy & Ors., (1968) Irish Reports page 69, Walsh J. said at page 91:-

			‘The use of words such as ‘scab’ or ‘blacklag’ are historically so associated with social ostracism and physical violence as to be far beyond anything which might be described as mere rudeness or impoliteness and go beyond what is permitted by law.’

		The word was also considered in cases arising from the coal miners strike in the United Kingdom but I do not think those cases should be taken account of in relation to this litigation.

		On the 1st September, 1994 Assistant Governor Whelan wrote to the Applicant as follows:

			‘				Shelton Abbey
							Arklow
							1/9/94

			ACO Sheriff,

			You are charged that on the 27th day of July, 1994 when replying to an official query from C1 Breen you showed total disrespect for him and the rank of Clerk 1 by referring to him as the Scab Breen.	You are requested to reply to the charge.

			...’                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       ”

	The applicant was told to reply within seven days of receipt of the document but that if he was unable to reply he could apply for an extension.  The applicant inquired as to the rule of the Statutory Rules and Orders No. 320 Rules for the Government of Prisons, 1947 (hereinafter referred to as S.R. and O.1947 No. 320) under which it was intended to charge him.  On 9th November, 1994 Assistant Governor Whelan informed him that he was charged under Rule 99 S. R. and O.1947 No. 320.  In a strident reply the applicant queried the impartiality of the hearing and requested all original documents.  By letter dated 20th February, 1995, which he received on 15th March, 1995, the applicant was informed by the Prisons Personnel Section of the Department of Justice:

		“I am to refer to the queries put to you by Assistant Governor Whelan and your responses to them.  

		In your responses to the queries from the Assistant Governor you have shown gross insubordination and insolence.  This kind of behaviour is intolerable in an officer of rank and it is proposed to recommend to the Minister that you be downgraded.  In this context, I am hereby affording you a period of 14 days in which you may put forward anything you may wish to say on your own behalf that could be taken into account by the Minister in arriving at a final decision.”

	The applicant applied for an extension of time of 14 days to reply, which was granted.  There was a further exchange of correspondence.  On 27th June, 1996, he was given a final opportunity to state what could be taken into account by the Minister on his behalf in  arriving at a decision on the charge.  Further clarifications were sought and extensions given.  By letter dated 29th August, 1996, the applicant’s solicitors wrote a letter of apology.  The learned trial judge expressed the view that if this action had been taken two years earlier this long saga would have been avoided.  
	By letter dated 15th October, 1996, the applicant was told that the Minister had decided to transfer him from Shelton Abbey to Wheatfield Place of Detention.  The Minister resiled from this decision because of representations from the applicant with regard to the effect it would have on his family.  The High Court determined that the Minister made a preliminary determination which was later confirmed in part and resiled from in part for compassionate reasons.
	By letter dated 15th October, 1996 the applicant was informed that the Minister had decided to downgrade him to the rank of prison officer as a disciplinary penalty.  He was 
given time to make representations.  Thereafter, by a letter from Prisons Personnel dated 18th December, 1996, the applicant was informed:

		“I refer to your letter of 31 October 1996 appealing the decision of the Minister for Justice in the case of Mr Anthony Sheriff, Assistant Chief Officer, Shelton Abbey.

		The Minister has now considered the appeal.  She has decided, in view of the seriousness of the matter, that she cannot agree to reverse her decision to down-grade Mr Sheriff to the rank of Prison Officer.  His down-grading must, therefore, take effect from 17 December, 1996.

		...”

	The learned High Court judge held:

		“My own view is that the Minister could not possibly maintain in a position of rank a person who had a propensity in official correspondence to describe a colleague member of rank as a scab.  As an apology took two years to generate itself, the incident could not be described as a temporary loss of control due to an off-day or some such other reason.  It is however well-settled law that my opinion is irrelevant.  I am not concerned with the decision but the decision-making process.  What is required in relation to the decision making process was set out by Henchy J. in The State (Gleeson) -v- Minister for Defence, 1976 I.R. page 280 which concerned the dismissal of a soldier.  In that particular case on its facts it was held that the discharge of the soldier was invalid because it had been made in breach of the principles of natural justice.  At page 296 Henchy J. said:

			‘In my opinion the law applicable to a case such as this is clear and well-established.  The requirements of natural justice imposed an inescapable duty on the army authorities, before discharging the prosecutor from the army for the misconduct relied on, to give him due notice of the intention to discharge him for the statutory reason for the proposed discharge, and of the essential facts and findings alleged to constitute the reason; and to give him a reasonable opportunity of presenting his response to that notice.’

		In my opinion the extensive recital of the correspondence in this case indicates that those requirements have all been complied with.	
		Insofar as the claim for an oral hearing is concerned, it is clear from Galvin -v- The Chief Appeals Officer, unreported decision of 27th June, 1997 by Costello P. that there are no hard and fast rules as to when dictates of fairness require the holding of an oral hearing.  In the present case the essential facts were clear from the beginning and were not in dispute.  There was no matter of contested fact between the parties which required the holding of an oral hearing and the Applicant did not request the same.  Neither did the Applicant seek to involve his trade union in the matter and accordingly there was no [sic] any refusal to treat with the Applicant’s trade union.  Nor was he denied access to legal advice or representation.”

Notice of Appeal

	Against this decision the applicant has appealed, the notice of appeal setting out the following grounds:-

		“The Learned Judge of the High Court erred in law in failing to hold that there was a breach of natural justice:

		(1)	insofar as the Minister in making the impugned decision relied on matters which were not the subject of the charge against him and did so without any notice to the Applicant/Appellant at the same time that the same constituted part of the material upon which the said decision was grounded;

		(2)	insofar as the Applicant was not acquainted with the terms of all the documentation, interview notes and material used in arriving at the said decision and recommendation which documentation was requested by the Applicant’s solicitor;

		(3)	insofar as the Applicant was informed that he was not being charged with insubordination or insolence in circumstances where it was represented to the Minister without any prior notice to the Applicant that the Applicant was guilty of insubordination and insolence;

		(4)	in the circumstances where the Governor made a recommendation for disciplinary action prior to any response being obtained from the Applicant in reply to the charge and in this regard prejudged the matter.  The Notice of Opposition filed on behalf of the Respondents denied that this was a recommendation notwithstanding its clear terms and in the absence of any affidavit from the author of the letter dealing with this matter.

	and further that the Learned High Court judge erred in law in failing to hold:

		(5)	that as the charge preferred against the Appellant did not specify that the same was “to the prejudice of good order and discipline” the same is a necessary ingredient of any charge of misconduct under rule 99 of the Prison Rules;

		(6)	that in the absence of any such ingredient that the misconduct alleged against the Applicant fell to be determined under Rule 100 and he was accordingly only liable to a fine;

		(7)	the severe penalty imposed in the instant case was disproportionate to the breach of discipline alleged;”

	Since the commencement of these proceedings the applicant has retired from the Prison Service on health grounds.  However, these proceedings are not moot as the reduction in grade has affected the applicant in that the pension now being paid to him is at a lesser level than it would otherwise have been had he not been downgraded.
	
Law

		The Rules for the Government of Prisons, 1947 (S.R. and O. 1947 No. 320) state:
		“82. (1)	Every officer of a prison shall hold his office during the pleasure of the Government.
				...

		  99.	  	If an officer or servant employed in the prison service is guilty of any act, conduct, disorder, or neglect to the prejudice of good order or discipline he shall be liable to dismissal or such disciplinary action as the Minister may direct.

		  100. 	An officer who is guilty of misconduct or neglect or violation of duty may be fined in such sum as may be approved by the Minister, and the fines shall be applied as may be directed by him.
				...

		  102.		An officer desiring to appeal against any decision which affects him, or wishing to bring any matter before superior authority, shall without unnecessary delay state his complaint in writing to the Governor, for the consideration of the Minister.
				...

		  125. (1)   	The Governor shall forward to the Minister without delay any report or complaint which any officer of the prison desires to make to him, and shall on no account suppress it, and he shall forward with it any explanation which it may seem to require.

		          (2)	The Governor shall forward to the Minister any report or complaint against an officer, with which he is not competent or willing to deal; but, in every case, the officer shall be permitted to see the charge against him, and to reply to it, for the information of the Minister.”

	In State (Gallagher) v. Governor of Portlaoise Prison, (Unreported, High Court, Finlay P., 18th May, 1977) Finlay P. (as he then was) in a case concerning the Governor’s powers to discipline prisoners, stated:

		“It is probably necessary for me, however, since the point was apparently taken on each occasion by the Prosecutor, Mr. Gallagher, himself that he wanted an adjournment of the disciplinary hearing for the purpose of having his legal representative present to defend him at it, to express a view which I have expressed in a previous case with regard to the status and the exercise by Governors of prisons under the Act and Regulations of their disciplinary powers.  The function being performed by the Governor of a prison on an occasion such as arises in these two Motions, or by the Deputy Governor in his absence, is a function partly magisterial and partly of a judicial or decision making character.  As such I have no doubt that it must be carried out in accordance with the dictates and requirements of natural justice and that I am satisfied was done in this case.  That the person who is, in the words used in the prison service, being ‘charged with an offence’ should be informed of the nature of the offence and of the nature of the evidence, and should be given an opportunity to speak and to adduce evidence on his behalf.  But the procedure being adopted is, as indicated, partly magisterial, it is not a trial for an offence, it is not a court proceeding, and there is not, in my view, any right in a person on such an occasion to be legally represented.”

	In Gallagher v. Corrigan and Minister for Justice, (Unreported, High Court, Blayney J., 1st February, 1988), Blayney J. pointed to the difference between the Governor exercising discipline over prisoners and his exercising discipline over his officers:

		“In my opinion the Governor in exercising his powers of discipline over prison officers is also discharging a function which is partly magisterial and partly of a judicial or decision-making character, with the consequence that he must comply with the rules of natural and constitutional justice.”

Submissions

	Extensive written submissions were furnished to the court by the parties.  In oral submissions it was argued by counsel for the applicant that natural justice had not been complied with in several ways.  It was submitted that the correspondence was important and that while some had been cited by the learned High Court judge other letters were omitted.  It was submitted that the Minister never preferred a charge under Rule 99 against the applicant.  Counsel for the applicant submitted that the applicant was entitled to know whether Rule 99 or 100 was to be implemented because of the consequences; whereas under 99 the applicant would be liable to dismissal or such disciplinary action as the Minister may direct the maximum penalty under Rule 100 is a fine.  Further, that on the day of the High Court hearing the Department produced a slim file of documents which had been before the Minister, that there were relevant materials before the Minister which the applicant did not see and consequently the process was contrary to natural justice.  Counsel for the applicant also argued that the penalty was inappropriate because it was disproportionate.  Counsel also referred to an alleged impropriety of an appeal from the Minister to the Minister.  On this matter counsel for the respondents submitted that it was not in the grounds of appeal and that thus the matter was not before the Supreme Court.

Analysis

	The function of the Governor or Deputy Governor of a prison in making the type of decision in issue has been described as “partly magisterial and partly of a judicial or decision making character” by Finlay P. (as he then was) (see State (Gallagher) v. Governor of Portlaoise Prison quoted earlier in this judgment), which description was followed by Blayney J. in Gallagher v. Corrigan and Minister for Justice (Unreported, High Court, Blayney J., 1st February, 1988).  It has not been submitted that this nomenclature be followed.  I am inclined to describe the decision of the Minister as administrative.  Then I apply the test as to whether an interest of the applicant is directly affected by the decision.  The answer being in the affirmative the decision is required to be made in accordance with natural justice.  This means that there must be fair procedures.  The procedures do not have to be those of a court of law.  The requirement of fair procedures does not import the necessity for such precise procedures.
	The particular procedural requirements will depend in the circumstances of each matter.  In Gallagher v. Corrigan and The Minister for Justice,  Blayney J. stated at page 13: 

		“The obligation on the Deputy Governor was to inform each of the Applicants of the nature of the charge against him;  of the nature of the evidence;  and to give each of them an opportunity to speak and adduce evidence on his own behalf.  Was this obligation complied with?  In my opinion it was not.”

	The list of obligations in that case is not a precedent for all other cases.  In this case the issue arose because of a letter written by the applicant in official correspondence.  The applicant was informed that that was the case, and of course he knew of the content of his letter.  Further, he was given opportunities to make full representations in the matter.  The nature of the hearing in the circumstances was appropriate.  There was no necessity to have more formal documentation or to have an oral hearing.
	Counsel for the applicant submitted that the correspondence was important and that some letters were omitted from the judgment of the learned High Court judge.  However, the judgment contains the critical letters of the correspondence.  There was no necessity for the learned High Court judge to recite the correspondence in full.
	Further, there was no necessity for the Minister to prefer a formalised charge similar to a document such as an indictment.  The rules themselves do not require a Minister to make such a charge.  Nor do the principles of natural justice.  What is required is that the applicant be told of what is alleged against him.  This was done.  He knew that the allegations against him related to his responses to the queries from the Assistant Governor, including the references to “Scab”.  There was no necessity for the Minister to present a “charge”, as long as the facts against the applicant were set out clearly.  This was done.  The process was adequate.  In addition, the applicant was informed that he was charged under Rule 99.  This was specifically stated on the 9th day of November 1994.
	On 21st November, 1994, Assistant Governor Whelan compiled a file and sent it to the Minister with a recommendation that the applicant be demoted.  On 20th February, 1995 by letter from the Minister the applicant was informed of the Department’s view and he was asked for his representations as to the proposal of demotion.
	The recommendation by the Assistant Governor of the penalty is not a breach of fair procedures.  The Minister is the employer.  He is entitled to know what the local officer feels.
	The High Court held at page 10 of the unreported judgment that:

		“It is complained in these proceedings that the Applicant’s appeal was from the Minister to the Minister.  It is to be noted that in this regard the Applicant’s appeal was successful in part.  I would accept that the reality of the situation was that the Minister made a preliminary determination which was later confirmed in part and resiled from in part by reason of compassionate considerations.”

	I would agree with this analysis by the High Court.  While this matter was not in the grounds of appeal it was referred to by counsel for the applicant.  Counsel for the respondents argued that it was not before the court.  He said that what had happened in this case was that the Minister had reached a decision but it would not be put into effect until the applicant had made a submission.  Reference was made to Administrative Law in Ireland, Hogan & Morgan, 3rd ed., at pages 566 to 567 which states:

		“It is a significant principle that an absence of constitutional justice at the initial decision-making stage is not cured by the provision of an appellate stage at which the rules are observed.  The policy underlying the principle is discussed in Part 6 of this chapter.  Here it is proposed to discuss a significant restriction on this principle.  For it has recently come to be accepted, that where a ‘provisional’ decision is taken without observing the audi alteram rule, this defect can be remedied if the person affected has the chance to put his side of the case before the decision is made permanent.  In short, the process can sometimes be characterised as a single decision, (as opposed to a discrete decision, followed by an appeal) for the purposes of the constitutional justice principles.  The effect of this characterisation would be to avoid the principle explained at the start of the paragraph.”

	Whilst this issue was not in the grounds of appeal and must wait another day for full consideration, on the facts of this case I am satisfied that the Minister had made a provisional or preliminary decision.  This was concluded after further submissions by the applicant.  The applicant was not shut out at any stage.  He was very specifically given the chance to put his side of the case before the decision was made final or permanent.  It would appear probable that the Minister made a single decision as opposed to a discrete decision followed by an appeal.
	In the notice of appeal the applicant included as a ground of appeal that the severe penalty imposed was disproportionate to the breach of discipline alleged.  Counsel for the applicant submitted that while there are limited circumstances when the court would find that a penalty was inappropriate the court has jurisdiction to quash a penalty that is disproportionate.  The applicant, it was submitted, was being demoted over a word used, subsequent to which there had been an apology, and that demotion was disproportionate.  Reference was made to R. v. Barnsley Metropolitan Borough Council, ex parte Hook [1976] 3 ALL E.R. 452. 
	Counsel for the respondents accepted the principle that the punishment must fit the offence.  However, he argued that what was done here was in effect an abuse by the applicant of his rank, to write disrespectfully of another in official correspondence.  It was disrespect for rank in the conduct of his office.  It was entirely different to the facts in R. v. Barnsley Metropolitan Borough Council, ex parte Hook [1976] 3 ALL E.R. 452.  Counsel submitted that the reduction in rank was a proportionate decision.
	In R. v. Barnsley Metropolitan Borough Council, ex parte Hook [1976] 3 ALL ER 452 the facts relate that a trader, who had traded from a stall in a market for six years, had an urgent call of nature one evening after the market had closed.  The public lavatories were closed.  The trader went into a side street and urinated  there.  No one was in the vicinity except two employees of the council.  A complaint was made about his behaviour.  The applicant was banned from trading in the market and his right to a stall was revoked.  Of this penalty the Court of Appeal held that the punishment was extreme and out of proportion to the occasion and the decision was quashed by way of certiorari.  Lord Denning, M.R., stating at pages 456 to 457:

		“Now, there are old cases which show that the court can interfere by certiorari if a punishment is altogether excessive and out of proportion to the occasion.  In one case the Commissioners of Severn imposed an excessive fine;  and it was quashed by the Court of King’s Bench on the ground that in law their fines ought to be reasonable:  see R. v. Northumberland Compensation Appeal Tribunal, ex parte Shaw [1952] 1 ALL ER 122.  So in this case if Mr. Hook did misbehave, I should have thought that the right thing would have been to take him before the justices under the byelaws, when some small fine might have been inflicted.  It is quite wrong that the corporation should inflict on him the grave penalty of depriving him of his livelihood.  That is a far more serious penalty than anything the justices could inflict.  He is a man of good character, and ought not to be penalised thus.”

	That case is neither helpful nor relevant.  The facts in the case before the court describe wholly different circumstances.  The applicant in official correspondence described an officer of rank as a “scab”.  It was not a ‘heat of the moment’ matter.  Two years passed before an apology appeared.  The correspondence from the applicant has been set out in the judgment.  It was a serious matter.  It was an abuse by the applicant of his rank.  Consequently, there is no basis for a successful appeal on the ground that the demotion was disproportionate.

Conclusion

	This is a simple case.  At issue was the letter written by the applicant as part of official correspondence referring to another person as a “scab” and his response to queries on the matter.  The applicant was charged, i.e. was informed of the facts at issue.  The applicant was told he was charged under Rule 99.  He was given an opportunity to put forward anything he wished.  Ultimately he gave an apology through his solicitor.  The Minister made a preliminary decision.  The applicant made representations.  The Minister decided for compassionate reasons not to proceed with that part of the decision transferring the applicant to another prison.  However, the Minister decided to proceed with that part of the decision to downgrade the applicant.
	There were some other papers before the Minister of which the applicant was unaware.  That is not best practice.  However, the court has a discretion in the remedy at issue.  This case concerns procedures.  The fundamental question is whether the applicant was afforded natural justice.  
	I am satisfied that the requirements of natural justice were met in that the applicant was given due notice, he was informed of the relevant charge, he was informed of the reasons, he was informed of the essential facts and he was given a reasonable opportunity of presenting his response.  The ultimate decision was reached on these matters.  
	Each case is different.  Circumstances may require certain processes in some cases to obtain a fair procedure.  Thus, in some cases an oral hearing would be essential if, for example, there were facts in dispute.  Here the letter of the applicant of 27th July, 1994 was the kernel of the case and it was not in dispute.  There was no need to have an oral hearing. 
	Further, the penalty imposed was not such that a court should intervene on the grounds that it was disproportionate.  In the circumstances of the case the penalty was not disproportionate so as to render it amenable to judicial review. 
	I would uphold the decision of the High Court.  Consequently, I would dismiss the appeal.