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Sheriff v. Corrigan [2000] IESC 4; [2001] 1 ILRM 67 (15th February, 2000)
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
.
1. 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.’
2. 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’.
3. 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.
4. 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.
10676
6. Assistant
Chief Officer
14/8/94.’
7. 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.’
8. 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.
9. 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.
...’
”
10. 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.”
11. 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.
12. 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.
13. 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.
...”
14. 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.’
15. In
my opinion the extensive recital of the correspondence in this case indicates
that those requirements have all been complied with.
16. 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
17. 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;”
18. 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
19. 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
20. 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
21. 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.
22. 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.”
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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.”
29. 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.”
30. 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.
31. 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.
32. 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.”
33. 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
34. 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.
35. 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.
36. 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.
37. 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.
38. 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.
39. I
would uphold the decision of the High Court. Consequently, I would dismiss the
appeal.
© 2000 Irish Supreme Court
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