SUPREME COURT
37/16
Clarke C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
Dunne J.
CRAYDEN FISHING COMPANY LIMITED
Respondent
AND
SEA FISHERIES PROTECTION AUTHORITY,
THE MINISTER FOR THE MARINE, IRELAND AND THE ATTORNEY GENERAL
Appellants
Judgment of O’Donnell J. delivered the 12th December 2017.
1 These proceedings concern the European (Common Fisheries Policy) (Point System) Regulations 2014 (SI 3 of 2014), which I will refer to as “the 2014 Regulations”, and which were the subject matter of proceedings in the companion case of O’Sullivan v Sea Fisheries Protection Authority & ors (O’Sullivan) which was heard at the same time as this case, and in which judgment is also delivered today. This judgment should accordingly be read together with that in O’Sullivan for a full account of the operation of the 2014 Regulations and the legal issues that arose for determination in relation to them in this Court.
2 In the immediate aftermath of the decisions of the High Court in O’Sullivan and in this case, the Minister for Agriculture, Food and the Marine, introduced the European Union (Common Fisheries Policy) (Point System) Regulations 2016 (SI 125 of 2016) (“the 2016 Regulations”), which among other things revoked the 2014 Regulations in their entirety. In the light of that fact, the outcome of the O’Sullivan case which, with significant qualifications, upheld the conclusion of the High Court in that case that the 2014 Regulations were invalid, and the detailed account of the Regulations and their background in European law set out in the O’Sullivan judgment, I propose to set out in a relatively compressed form the distinct issues that arise for resolution in this case, and the conclusions I have reached.
3 The respondent to this appeal (“Crayden”) is the owner of the vessel “Anders Neel” and is the holder of a sea fishing licence. On the 2nd of December 2014, sea fishery protection officers (“SFPOs”) who are officers of the first named appellant the Sea Fisheries Protection Authority (“SFPA”) boarded the Anders Neel at Ros a Mhil, County Galway, and carried out an inspection. In summary the SFPOs reported that:
“(i) The Master of the vessel had under-recorded whiting by 126.8% in that there was a more than 18,000 kg discrepancy between the operational estimate and the electronic log book and the landing declaration;
(ii) A large quantity of unboxed fish was found concealed in a compartment behind shuttering in the fish hold. When the SFPOs asked the Master if this fish was additional to the quantities he had recorded in his electronic log book, he replied that it was. The unboxed fish when off loaded was boxed by the Master and his crew and was found to equate to approximately 152 boxes of whiting. Using an average box weight, this was equivalent to 6,829.36 kg of whiting;
(iii) The Master had exceeded the whiting quota for 2014 by 12,336.12 kg between the 1st and 2nd of December 2014.”
These matters if established would constitute a breach of the regime established under the Common Fisheries Policy particularly in relation to illegal unreported and unregulated fishing (“IUU fishing”) and could be the subject of criminal prosecution of the Master of the vessel. Significantly for present purposes, they could also give rise to a procedure for the allocation of points to the licence held in respect of the vessel, under domestic provisions implementing in Irish law, provisions of Council Regulation (EC) 1224/2009, establishing a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, (“The Control Regulation”).
4 Subsequently on the 15th of December 2014, Crayden was furnished with a copy of the inspection report. By a further letter of the 19th of January 2015, it was informed by the SFPA that a determination panel for the assignment of points had met on the 16th of January 2015, examined the evidence provided by the SFPOs to assess the gravity of the infringements detected against criteria such as the nature of the damage, its value, the extent of the infringement, and its repetition. It was noted that the panel determined that the infringement was serious in nature. The respondent was accordingly notified that it was proposed to assign 12 points to the licence holder of the sea fishing boats in respect of the infringement. Crayden was also advised that pursuant to the provisions of the 2014 Regulations, it could register an appeal against the assignment of those points to its licence by writing to an appeals officer within 21 days of the receipt of the notice. If no such appeal was brought within that period or any such appeal was brought and subsequently withdrawn the points applicable would be notified to and applied to the licence by the licensing authority.
5 Crayden duly lodged an appeal but before the hearing of that appeal it commenced these proceedings and sought and obtained the stay of the appeal hearing. The essential contention made by Crayden was that a claim had crystallised at that point, and would not be altered by awaiting the outcome of the appeal process. It was argued that the process before the determination panel of the SFPA was required to be carried out in accordance with fair procedures, and that in particular, Crayden had been given no opportunity to make representations on its own behalf or test or challenge the evidence produced by the SFPOs and furthermore reasons had not been given for the decision.
6 In essence the issue between the parties is very clear. The respondents could not, and did not, argue that if fair procedures were required in respect of the proceedings of the determination panel, then that what transpired was in sufficient compliance with that principle. Instead they sought to take their stand at an earlier point, and challenged the assumption that fair procedures were required in respect of the proceedings of the determination panel, taken in isolation. It was argued that the question of fair procedures depended upon all the facts and circumstances of the case. It was a matter of substance rather than form, and the nomenclature used was irrelevant, or at least secondary. Accordingly, it was argued that since the 2014 Regulations provided that nothing could happen to Crayden (or any other licensee) and in particular that no points could be allocated as a result of the determination panel proceedings unless the licensee choose not to appeal, or if the appeal was withdrawn or dismissed, then the proceedings should properly be viewed as part of a single unitary process. If so, fair procedures were provided in relation to the decision of the appeals officer. Analysed in this way, fair procedures were provided before any points were attached to the licence in fact, and before any adverse consequence was suffered by the licence holder. This was all that natural justice required. The State authorities argued therefore that this case should be approached in the same way as the decision of the High Court in Gammell v Dublin County Council [1983] ILRM 413, and McNamee v Revenue Commissioners [2012] IEHC 500 (subsequently affirmed in this Court [2016] IESC 33). Crayden for its part countered by contending that the case should be viewed as two distinct processes of a first instance determination and appeal each of which was required to be conducted in accordance with fair procedures which in this case meant that the licensee should have been given the opportunity of making submissions to the determination panel of the SFPA. The case was therefore, if anything, comparable to O’Ceallaigh v An Bord Altranais [2000] 4 IR 54, and Dellway Investments Limited & ors v National Asset Management Agency & ors [2011] 4 IR 1.
7 The judgment of the High Court (O’Malley J) concluded that the proceedings before the determination panel did require fair procedures and at a minimum the right to make representations and to have reasons for the decision. The High Court also observed in passing that it appeared that the decision of the determination panel was also flawed because it had not considered the economic circumstances of the operator as provided for by Article 90 of the Control Regulations: Council Regulation (EC No. 1224 of 2009) of the 20th of November 2009.
8 In this appeal it is necessary to consider the following issues:
(i) Crayden’s contention that the appeal is moot and should not be heard;
(ii) Crayden’s argument which succeeded in the High Court that fair procedures were required in the proceedings of the determination panel;
(iii) The State authorities’ contention that proceedings are premature or that relief should be refused on the grounds that there is an adequate alternative remedy;
(iv) The State authorities’ contention that there is a separate and distinct error in the High Court judgment where it was determined that the economic circumstances of the operator must be taken into account.
9 Mootness
This issue also arose in the O’Sullivan case, and is discussed more fully in the judgment in that case. It arises in both proceedings as a consequence of the revocation of the 2014 Regulations by the 2016 Regulations, and because of the absence of any saver for proceedings in being but not determined at the time of that revocation, or indeed for proceedings not yet commenced in respect of infractions alleged to have occurred while the 2014 Regulations were in force. It is said therefore, that irrespective of the outcome of these proceedings Crayden cannot be the subject of any proceedings that could result in points being applied to its licence in respect of the inspection carried out at Ros a Mhil on the 3rd of December 2014. Thus, it is said the proceedings are moot.
10 The State authorities do not deny that the inspection of the 3rd of December 2014 cannot now result in points being applied to Crayden’s licence even if the appeals in this case and the O’Sullivan case were entirely successful. However they point to a number of other features of this case which they say should lead the Court to hear and determine the appeal. In brief, these are, that the decision of the High Court has effect and implications beyond the particular case. First, there are some licences to which it is said points had been applied under the 2014 Regulations. Second, the 2014 Regulations were introduced pursuant to an obligation under European law and the State has an important interest in showing, if it can, that valid regulations were in place and which controlled fishing in the period between 2014 and 2016 in accordance with those obligations. Third, the interpretation of the Control Regulations as requiring consideration of the economic circumstances of the operator in the determination of a serious infringement prior to the application of points, and which the appellants contend is erroneous, is of continuing effect, and not in any way removed or qualified by the revocation of the domestic 2014 Regulations. Fourth, the interpretation of the 2014 Regulations in the High Court may have a wider impact on other regulatory regimes which have a similar structure.
11 It is not in dispute that the case is moot at least as far as Crayden is concerned. I do not think it is necessary to consider or to determine finally whether the case is not truly moot because of its systemic significance for the State authorities, or rather whether it is the case that it is moot, but one where the systemic issues identified nevertheless justify the hearing and determination of the appeal. I incline tentatively to the view that the case is technically moot in the sense that the legal relationship between the parties to the proceedings cannot be altered by any decision which could be made on the appeal. However, this is a case which is by definition one of general public importance. I am satisfied that however analysed it should be heard and determined. The fact that Crayden has no direct interest in the appeal other than in respect of costs but nevertheless is in effect required to contest it, is something which might be taken into account in respect of costs, if the appeal was successful in whole or in part.
12 The State authorities argue, correctly in my view so far as it goes, that the question of fair procedures is heavily dependent on the issue to be decided in the surrounding circumstances of the case. It is indeed important that there is no one size fits all requirement that elaborate procedures akin to a criminal trial are necessary before any administrative decision whatsoever can be taken. It is also correct I think, that the question involves a functional analysis rather than one determined, at least exclusively, by the description of the process, or the specific language used. The essence of the question is whether, if an individual or business had its rights or interests affected that consequence has occurred only after a procedure which is seen to be fair. Here, although superficially the Regulations seem to contemplate some form of “decision” at the stage of the determination panel, and “an appeal” to an independent appeals officer, it is argued that the Court should see instead a single unified process in which the opinion of the Sea Fisheries Protection Officer and the determination of the determination panel of serious infringement and proposed allocation of points, are all preliminary steps leading to a hearing before an appeals officer, which itself is conducted fairly with the possibility of submissions on the part of the licensee and, indeed, with the possibility of an oral hearing if considered necessary. The fact that in such an appeal the onus is on the appellant to identify grounds of appeal, and that there is no further appeal from the decision of the appeals officer is, it is said, irrelevant in this case at least. Indeed, it is pointed out with some merit, that given the heavily regulated nature of the fishing industry, and the contents of the report made by the SFPO in any case, that it is difficult indeed to consider that there is the possibility of real grounds of factual contention in any case which falls under the Regulations. It is argued accordingly that it is perfectly permissible to have a streamlined and efficient process so long as before points are actually applied to the licence, the licence holder has an entitlement to a fair hearing before an independent person. While in reliance on the language used in some of the case law and commentary, the appellants have characterised this argument as a contention that there exists a single unitary procedure it is perhaps just as accurate to say that the analysis involves treating the process before the appeals officer (if it occurs) as the (only) hearing and the determination panel process as merely a preliminary procedural step.
13 I do not think that the decision in Dellway is of particular assistance here. In that important case, the battleground between the parties was not as to what fair procedures were required and at what point, but rather whether the decision by a statutory authority to exercise powers to acquire loans from a lender was one which attracted fair procedures, and in particular an entitlement of the borrower to make representations before the decision was made at all. It was plain that the statute did not provide for such a possibility and indeed it was argued that this was both deliberate and necessary to give effect to the statutory scheme. It was argued that since bank loans normally permitted the assignment of the lender’s interest, it could not be said that the borrower was in any way affected by the exercise of the statutory powers which merely changed the identity of the lender without interfering in any way with the terms of the loan. The issue therefore was whether the decision in question was one attracting fair procedures, rather than what fair procedures were required in the process. However, the decisions in Gammell, O’Ceallaigh and McNamee are of more immediate relevance. They all involved statutory processes in which it was argued (successfully in Gammell and McNamee, and unsuccessfully in O’Ceallaigh) that a decision to initiate a procedure, having as its terminus a process carried out in accordance with fair procedures, did not itself require fair procedures, and more particularly did not require that the affected party be notified and have a right to make submissions before the decision to initiate the process was made. It is accordingly necessary to consider those cases in a little more detail.
14 Gammell v Dublin County Council concerned the licensing of a caravan site owned by the plaintiff, as required by s.34 of the Local Government (Sanitary Services) Act 1948. Dublin County Council, a sanitary authority acting under s.31(1) of the 1948 Act made an order prohibiting the erection or retention of any temporary dwelling on the caravan site, because the County Council wanted to ensure that no further families became resident on the site and required re-housing. Notice of the making of the order was published in a newspaper circulating in the sanitary district. That notice provided that any person aggrieved by the order might, within 14 days of the date of publication send to the Minister for the Environment an application in writing for the annulment of the order stating the reasons. No such application was made. Accordingly the council wrote to Mrs Gammell, informing her of the order, that is the order made on the 12th of September 1977. This was the first the plaintiff knew of the making of the order. Under s.31(8)(a) an order under the section comes into force if no application for its annulment is made within 30 days of a copy of the order being published. If an application is made for annulment and is rejected or withdrawn the order comes into force 14 days after the determination of the application. Importantly an application for annulment was to be made to a separate party, the Minister for the Environment. The plaintiff did not invoke that procedure but then brought proceedings seeking a declaration that the order was void because the requirements of natural justice were not observed before the order had been made.
15 Carroll J held that the audi alteram partem rule was complied with because representations could have been made under s.31 before the order came into effect. She distinguished between cases where an order became effective before the person had an opportunity to make representations and those cases coming under s.31, where machinery provided for an order to be made with delayed effect giving an opportunity to interested parties to make representations for annulment, which if successful would result in the order never becoming operative. In that regard Carroll J distinguished the case from Ingle v O’Brien (1975) 109 ILTR 7 and Moran v Attorney General [1976] IR 400, in which it had been found that a failure to allow a person who had been affected by a decision the right to make his case at the time of the initial decision would not be cured by the provision of an appellate stage in which this right was allowed. Carroll J stated:
“There is no “appeal” to the Minister from an operative order. There is a machinery set up under the section whereby an aggrieved party can make representations why the order should not come into operation”.
16 Gammell was relied on in turn in McNamee v Revenue Commissioners [2016] IESC 33. The High Court judgment in that case [2012] IEHC 500 was discussed in the decision of the High Court in this case, but in the intervening time the High Court decision in McNamee has been upheld by the Supreme Court. That case concerned the liability to Capital Gains Tax of the plaintiffs in respect of a transaction. A nominated officer had formed the opinion under s.811 of the Taxes Consolidation Act 1997, that the transaction was “a tax avoidance transaction” and determined the tax advantage payable, the imposition of a surcharge of 10%, and liability to interest in accordance with s.811 (4)(a). Section 811(5)(e) provided however that an opinion of the Revenue Commissioners that a transaction was a tax avoidance transaction would be final and conclusive, only if within the time limit no appeal was made under subsection 7 or when any appeal under subsection 7 had been determined against the tax payer. This of course is similar to the structure provided for under the 1948 Act the subject of Gamell, and indeed the provisions of the Regulations of 2014 involved in this case. Subsection 811(7) of the TCA provided for an appeal by a person aggrieved by an opinion formed under s.811. That appeal lay to the Appeal Commissioners. The grounds of appeal were limited: that the transaction specified was not a tax avoidance transaction; that the amount of tax advantage was not correct; that the tax consequences would not be just and reasonable, or that the amount of relief from double taxation proposed was insufficient or incorrect. The tax payer in the case then sought certiorari to quash the notice and opinion on the grounds that there was a breach of natural and constitutional justice. It was contended that the Revenue Commissioners had failed to afford the tax payer a meaningful opportunity to make representations prior to the decision (or opinion) that the transaction amounted to a tax avoidance measure.
17 In her judgment for the Court Laffoy J quoted the analysis of the decision in Gammell set out in Gwynn Morgan and Hogan, Administrative Law in Ireland (4th edition, Dublin 2010) at paragraph 14-275, where the authors observed that the fact that in Gammell the confirmation was to be given by a body other than the body which had made the initial decision made the confirmation look more like an appeal. Laffoy J also noted the observations of the authors that the same analysis could arguably be applied to the planning system in that a local authority decision granting permission did not come into effect until the time for appealing to An Bord Pleanála had elapsed, or if an appeal was lodged, when the appeal was determined.
18 The plaintiff in McNamee sought to distinguish Gammell by arguing that under the provisions of the TCA there was only a limited ground of appeal to the Appeal Commissioners and that for example the contention of the tax payer that the provision was unconstitutional was not something that could be determined. Laffoy J analysed the appeal and considered it was an effective remedy because it gave the tax payer the right to challenge the formation of the opinion on the basis that it was wrong and the consequential determinations and calculations which the officer was entitled to make. Any challenge to the constitutionality of the section could have been pursued in plenary proceedings in the High Court, and any legitimate challenge of the validity of the actions of the Revenue Commissioners could have been pursued by way of judicial review. Accordingly, and by implication adopting and applying Gammell, Laffoy J upheld the decision of the High Court and held that the proper analysis of the structure of s.811 and in particular the nature and effect of the tax payer’s right to appeal, meant that “the proper conclusion is that the implementation of the process involved in that structure does not constitute a breach of natural or constitutional justice”.
19 O’Ceallaigh v An Bord Altranais was a complex case arising out of controversial and emotive issues which generated considerable, indeed excessive, litigation. In essence four complaints were received by An Bord Altranais in relation to the home midwifery practice carried out by the plaintiff. Nurse O’Ceallaigh had been informed of the first complaint and had been asked for information in relation to it. The Fitness to Practise Committee of the Board decided that there was a prima facie case of misconduct warranting an inquiry under s.38 of the Nurses Act 1985. In relation to the three other complaints, which had been submitted by senior practitioners in the maternity hospitals, there was a flurry of activity in late July as the term of office of one board expired and was due to be replaced by another. The Fitness to Practise Committee decided to commence an inquiry in relation to those three complaints as well, on this occasion however without notifying Nurse O’Ceallaigh. The nurse commenced judicial review proceedings challenging the decision to commence the inquiries on the ground that she ought to have been given notice of the proposal to commence an inquiry and given the opportunity of making submissions.
20 At the same time as the s.38 inquiries were commenced, proceedings were initiated by the Board in the High Court under s.44 of the Nurses Act. That section permitted the High Court to grant an injunction restraining a registered nurse from practising. In this case, the injunction was sought pending the determination of the inquiry under s.38, but it appears that it was accepted by both parties that the statutory provision was not limited to the grant of injunctions parallel to and in aid of s.38 Fitness to Practise inquiries. In this case, the interim order was made ex parte and continued, on more limited terms, involving repeated applications to the Court until eventually, more than two years later, the President of the High Court discharged the injunction on grounds, as it happens, which a majority of the Supreme Court later concluded were erroneous. Separately the nurse had also commenced judicial review proceedings challenging the decision to initiate the s.44 proceedings. Once again the argument was that the nurse was entitled to be informed and make submissions before such a decision was made.
21 The protracted running battle over the s.44 proceedings, and separate judicial review proceedings initiated on behalf of the nurse, created a form of stalemate by litigious overload, and as already observed, a form of injunction remained in place generally restricting the nurse from practising as a midwife other than in certain nominated cases, for a period of more than two years. The High Court discharged that injunction, but in separate proceedings, the High Court dismissed the nurse’s judicial review proceedings. Both matters were appealed to the Supreme Court which heard them together. It held, that the High Court was wrong to approach the injunction under s.44 on the basis that it was necessary for the Board to show at the time of the full hearing that it had determined that it was in the public interest to bring or maintain the proceedings, but having regard to the amount of time that had elapsed, the Supreme Court, by a majority, did not remit the matter to the High Court. In relation to the judicial review proceedings, the Court by a majority (Murphy J dissenting) allowed the appeal from the High Court, and held that the decision of the Nursing Board and Fitness to Practise Committee to initiate the inquiry should be quashed in relation to the three cases in which there had been no opportunity for the nurse to be heard or to make submissions before the commencement of the process. On the other hand, the Supreme Court dismissed the parallel claim, challenging on the same grounds, the Board’s decision to bring the s.44 injunction proceedings.
22 The judgment of the majority on the fair procedures issue was delivered by Hardiman J. While acknowledging a general rule that decisions to initiate proceedings by way of inquiry, which would provide a fair hearing and respect the rules of audi alteram partem, did not generally require fair procedures, or at least the inviting of submissions from the potential subject of the inquiry, nevertheless he considered that this was a case where given the significance of the decision for the capacity of the interested party to pursue her livelihood, such a procedure was required. Hardiman J relied in particular on the decision of the Privy Council in Rees v Crane [1994] 2 AC 173. In that case, the Privy Council had held that where a judge in Trinidad and Tobago had been suspended by the President from his position pending a full inquiry into his conduct, he was entitled to have been informed of the proposed suspension and invited to make submissions on it.
23 In the High Court in this case, O’Malley J considered that O’Ceallaigh and Dellway represented the modern law on the subject and were more apposite than Gammell and the High Court decision in McNamee, observing that in Gammell the plaintiff had been advised she did not have a sanitary licence but did not apply for one and in McNamee the taxpayer had been in communication with the Revenue. She concluded therefore that the Committee in this case was required to permit submissions on the proposal to assign points and indeed to give reasons for its decision. As already mentioned she also observed in passing at paragraph 130 of the judgment, that the procedure followed had apparently failed to consider the economic situation of the offender which appeared to be required by Article 90 of the Control Regulations.
24 Discussion
There is no doubt that it is difficult to reconcile the decisions in O’Ceallaigh and Rees v Crane on the one hand, with Gammell and McNamee on the other. This difficulty is compounded if, as the authors Gwynn Morgan and Hogan suggest, Gammell is treated as authority justifying the practice in relation to the grant of planning permission. If so and the High Court judgment herein is correct to doubt the continued vitality of the Gammell approach that might raise doubts over the procedure adopted in planning applications, which would have wide ranging consequences. However I do not think it is now possible to uphold the High Court’s approach that O’Ceallaigh together with Dellway represents a more modern view, with the implicit suggestion that the authority of Gammell and McNamee is questionable. The recent decision of this Court in upholding the decision of the High Court in McNamee demonstrates that the principle in that case is still alive and in full force. It is true that all the authorities emphasise that fundamentally the question is one of fairness in the particular facts of the case, but that itself provides little guidance. It is necessary therefore to engage in some detail with the decisions and the principles that it is appropriate to deduce from them.
25 Stripped of their context, it might seem that it is difficult if not impossible to reconcile these lines of authority. Looked at in this way, in O’Ceallaigh a decision was made to hold an inquiry, without reference to the nurse concerned, but the only consequence of that decision itself, was the commencement of an inquiry process bound to comply with fair procedures in which a full right would be accorded to the nurse in question to know the allegations made against her, to challenge them and indeed to give evidence and make submissions on her own behalf. The decision in question therefore on this view did no more than initiate a process. Looked at narrowly, it had no other legal consequence: no findings were made in relation to the allegations and no presumptive penalties arose. In Gammell and McNamee on the other hand there is what appears to be a completed decision which will have a legal consequence which would be final and binding unless the individual concerned initiates an appeal. In both cases the appeal lay to another body. Accordingly, the decision by the sanitary authority under the statutory provision in Gammell might be the only decision made in fact, and therefore the operative decision which has the result of preventing the use of a premises as a caravan park. In McNamee, the decision of the nominated officer may be the decision which imposes a tax liability upon a tax payer. Even if there is an appeal, the decision of the nominated officer has a legal consequence - unless it is positively displaced, the tax consequences will follow. But in neither case is it required that the individual affected should be consulted before the decision is taken. On this approach, the decisions made are if anything, more significant than that of the Nursing Board to initiate proceedings, but in Gammell and McNamee they did not require any hearing or submissions whereas that of the Nursing Board in O’Ceallaigh did. A further twist is added by the fact that the Court concluded that the decision to initiate the application under s.44 (which resulted in the nurse being restrained from pursuing her livelihood) did not however require prior notice or the opportunity to make submissions.
26 However, in my view, the cases cannot be understood by isolating them from their factual context and seeking to deduce a single abstract principle from them such as from Gammell/McNamee that fair procedures merely require that before any decision becomes final, there is an opportunity to make submissions and have a hearing, or by contrast, from O’Ceallaigh that in any case when it is proposed to initiate a process which itself must be carried out in accordance with fair procedures, the decision to initiate must nevertheless be one which is carried out in full compliance with fair procedures involving a right of interested parties to make submissions and if necessary hear and test evidence. As Hardiman J pointed out in a different context in Maguire v Ardagh [2002] 1 IR 385, the legal analysis of a particular activity should not readily be detached from factual reality. In O’Ceallaigh the reality was that the decision to commence the inquiry without notification initiated a series of events that resulted in a midwife being required to notify her patients and to refrain from practising her profession for more than two years without any determination being made as to whether there was any substance in the complaints. Furthermore, it was apparent that there was no good reason for failing to notify her since she had been notified of the first complaint. The clear inference was that this course was taken because the Board was retiring, and that this essentially bureaucratic interest in dealing with all outstanding matters was allowed to outweigh the nurse’s interest in being heard.
27 It is apparent furthermore, that Hardiman J considered that the initial decision to commence an inquiry was connected to the suspension from practice, both as a matter of fact and law. Thus at page 126 of the report he addressed an argument that in Rees v Crane a statutory provision had permitted the judge to be suspended by the President of Trinidad and Tobago after the commission had made an unfavourable report and even though the individual concerned had no knowledge of the report or opportunity to make submissions in relation to it. It was argued that the position under the Nurses Act was distinguishable since the Board had no such power and while the nurse had in fact been prevented from practising midwifery, this was a result of the High Court orders made under a separate procedure (s.44). Hardiman J dealt with this argument as follows:
“I do not think that this is sufficient to distinguish the procedures. A decision to hold an inquiry into the alleged misconduct of a professional person and the decision of Ms O’Ceallaigh is itself a very grave matter. Some of its incidents have been mentioned earlier in this judgment. Apart from this, the decision to refer the matter for inquiry in itself exposed Ms O’Ceallaigh to the risk of s.44 orders, as the special endorsement of claim in those proceedings makes clear. Any restriction on her practice would also bear more heavily on a self-employed professional such as Ms O’Ceallaigh than on a public official who would presumably be paid while under suspension.
While the appeal was being argued it was put to counsel for the Board that the defendant judge in Rees v Crane had been de facto suspended prior to his statutory suspension by a separate administrative procedure. To this counsel for the Board replied, quite correctly, that both suspensions had been “inextricably linked up in some way” with the statutory procedure. Having regard to the fact that the suspension under s.44 was sought in this case only “pending the outcome of the inquiry or inquiries”, I am prepared to hold that the suspension and subsequent restriction suffered by Ms O’Ceallaigh, here was, in the same way, inextricably connected to the decision to hold inquiries under s.38”.
Thus the decision to initiate the s.38 inquiry was not to be characterised as merely a decision to initiate an inquiry: it was also a platform (factual and perhaps legal) for the s.44 proceedings which had prevented the nurse from pursuing her livelihood.
28 Moving beyond the facts of the particular case, and this important observation, it is also necessary to consider the subject matter of the process. There is to my mind a significant difference between dealing with the Revenue Commissioners in respect of tax affairs, and planning authorities in respect of planning permission, on the one hand, and fully fledged disciplinary proceedings against professional persons on the other. Nor should Rees v Crane or O’Ceallaigh v An Bord Altranais be understood as overly sensitive to the interests of professional persons. The same considerations could apply in any disciplinary process.
29 However, perhaps a distinguishing feature of both Rees v Crane and O’Ceallaigh v An Bord Altranais, is the nature of the profession involved, which for different reasons require a high degree of confidence among members of the public in dealing with them. Thus, the initial suspension of the judge in Rees v Crane, or the initiation of an inquiry in O’Ceallaigh, each had a real public and arguably irremediable consequence. No matter what the outcome of the ultimate hearing, a member of the public might legitimately hesitate to go to a midwife who had been the subject of a decision to commence a fitness to practise inquiry, just as members of the public might have reservations about having important or sensitive issues adjudicated on by a judge who had been publicly suspended, particularly because a judicial conduct body had formed an initial view of his or her conduct as meriting removal. In each case, a subsequent acquittal does not necessarily remedy any such damage, since the public may not know the grounds upon which that decision was made. It is also notable that in each case it would have been easy to have given the individuals concerned an opportunity to address the matter and to make representations.
30 It is interesting that at page 123 of the report in O’Ceallaigh, Hardiman J quoted from two leading common law textbooks on administrative law. It is noteworthy that in general those statements have not advanced much in the intervening years. In particular, in the 6th edition of De Smith’s Judicial Review the following statement appears which is essentially similar to that from the 4th edition quoted in O’Ceallaigh:
“The degree of proximity between the investigation in question and an act or decision directly adverse to the interest of the claimant may be important. Thus, a person conducting a preliminary investigation with a view to recommending or deciding whether a formal inquiry or hearing (which may lead to a binding and adverse decision) should take place is not normally under obligation to comply with the rules of fairness. But such a person may be placed under an obligation if the investigation is an integral and necessary part of a process which may terminate in an action adverse to the interests of the person claiming to be heard before him.”
At paragraph 8-032 of the same work, the authors observe that the question of what rules of procedural fairness must be observed by persons entrusted with the conduct of an investigation but having no power to give a binding decision is one of the most troublesome problems in relation to procedural fairness and that authorities often appear to be, and sometimes are, in conflict with one another. That observation is amply borne out by the degree of disagreement apparent in the cases relied on in the present case.
31 I do not consider it appropriate, necessary or indeed possible at this stage to offer a single bright line rule resolving all these issues. That may have to be addressed in circumstances where the issue arises and where it may be necessary to consider a wider range of authority than arose in this case. Even then there is no reason to be optimistic that a single rule may be discerned. I would however hesitate to accept, without careful and detailed analysis the contention that O’Ceallaigh represents a trend towards greater fair hearing rights at a preliminary stage, which should in turn be expanded upon. Rather I would approach the case on the basis that the default position is that a person conducting a preliminary investigation which itself does not lead directly in law to a binding and adverse decision, is not normally under an obligation to comply with a requirement of a fair hearing. On this view O’Ceallaigh is an example of the qualifying observation in the passage from De Smith that is, that it may have been seen as an integral and necessary part of a process which could terminate in an action adverse to the interests of the person claiming to be heard.
32 It is also worth considering why the courts have remained slow to require the full panoply of a fair hearing at a preliminary stage. First, it might be observed that even if this is so, any preliminary procedure is not without legal constraint. It must be conducted intra vires, and if for example conducted with actual bias or the appearance of bias, could be restrained and/or quashed. It may be that there are other examples of cases where the procedure will be subject to judicial review. Accordingly the question is really whether fair procedures require notification and an opportunity for submissions at a preliminary stage, initiating a procedure which itself is obliged to be conducted in accordance with fair procedures. If however fair procedures apply without qualification at the preliminary stage, then as the decision in Re Haughey [1971] IR 217, and its progeny show, it is a very short step to requiring that process to be conducted by analogy with the demands of fairness observed in a full criminal trial. If for example there is a right to be consulted, then it may be argued that there is a right to be provided with the evidence, a further entitlement to demand disclosure or discovery of additional documentation, and if a factual dispute is asserted, to confront and cross-examine the accuser. Not only does this create a risk of endlessly self-replicating procedure, but any uncertainty as to what is required may lead to elaborate, costly and time consuming procedures being conducted at an early stage in an inquiry. This may extract a very high price in terms of efficiency, effectiveness and most of all, justice to all the parties concerned and the public. For this reason and others, it is critical to consider if the procedure as a whole has been fair to the individual concerned.
33 Returning then to the facts of this case, I consider it is necessary to analyse the entirety of the process here. While an appeal in any administrative procedure is not a requirement of natural justice, nevertheless the existence of a full appeal is always relevant in considering the overall fairness of a process. Again, if there is a full hearing at what might be termed first instance, then it may be unobjectionable if an appeal proceeds on a more limited basis. Indeed, in the case of an appeal from the High Court to the Court of Appeal or Supreme Court, this is precisely what occurs. The same may be said in reverse: a full fair hearing before an adverse decision may mean that the initial process may proceed on a more limited basis. However, it would be wrong to extrapolate from any decision endorsing a particular procedure some general principle that that procedure is always unobjectionable in a different legal and factual context. Something which takes place in a lengthy process involving review and appeal may be insufficient if it is part of a single hearing and process.
34 Here, it is noteworthy that the Regulations are structured as if there is an initial hearing by the SFPA determination panel and thereafter an “appeal” under Regulation 10 to an independent appeals officer. That is certainly the language used by Regulations 5(3), 5(4) and Regulation 9 and is, of course, the entire subject matter of Regulation 10. However, it is not so characterised by the State authorities in this case. This is perhaps understandable. If Regulation 10 is in truth an appeal that would normally imply that the SFPA’s decision was a first instance decision which might be considered to require fair procedures (in fairness the language of “appeal” used in the Regulations is potentially misleading, since the appeal officer has a wider remit than the determination panel which is limited to the question of serious infringement). By the same token, although Regulation 10(7) explicitly requires the appellant to discharge the burden of proof in any appeal, which necessarily may mean a burden of disproof, the State maintains however that in practice this procedure is not followed before the appeals officer (and now the Appeal Panel under the 2016 Regulations), and that rather a case is presented by the SFPA to the appellate body and seeks to persuade it of a breach.
35 It is indeed striking that in seeking to defend the procedure the State parties are obliged in effect to contend that the procedure in fact departs markedly from the language of the Regulations of 2014. If the Regulations were silent on these issues, it might be permissible to resist a challenge to the fairness of the procedure by maintaining that procedures such as those described in evidence here would be, and indeed would be required to be, provided in practice. However, in my view that argument reaches breaking point when it is sought to disapply the clear text of the Regulations. It is I think not unfair to observe that the Regulations are drafted to present the appearance of a familiar two stage process with a first instance decision and an independent appeal, while at the same time promoting a situation in practice where decisions are made with adverse effects on individuals without any requirement that they be notified of the proposed decision and be permitted to make representations or submissions about it and which decision takes effect unless it is appealed successfully.
36 Having regard to the general law on fair procedures, I consider it appropriate to consider the process as a whole, and whether it is fair to an applicant. Although the Regulations use the language of appeal it is apparent that there is in truth only one substantive decision making process at least before an independent body. Under the 2014 Regulations, the SFPA receives a report from a SFPO. The only thing which can be decided by the SFPA at this stage is whether the matter disclosed in the report constitutes a serious infringement. The matters which can be taken into account in that determination are also specified. It is noteworthy that the SFPA cannot even decide on those matters which may be the subject of an appeal before an appeals officer, and in particular the matters identified at Regulation 10(7)(a),(b) and (d). Those are such fundamental matters as whether the event occurred or not, or involved the fishing vessel concerned. Nevertheless, the determination stage has legal and practical significance since it results in a proposed allocation of points which will attach to the licence unless a step is taken by the licence holder to initiate an appeal. That appeal must be initiated within 21 days, and that period cannot be extended.
37 On the other hand, if the proceedings here are viewed as a single procedure before the appeals officer at which fair procedures are to be accorded and to which the determination panel process is merely preliminary, then it is apparent that the process is an unusual one. It must be initiated by the licence holder and must start from the presumptive application of points which will take effect unless the licence holder establishes the matters set out at Regulation 10(7). The fact that procedures are unusual is not in itself decisive. It is important not to make overly broad generalisations or confuse the familiar with the necessary. Depending on the subject matter of a decision, a procedure like this at an appellate stage may be entirely permissible and fair, following a full hearing at an earlier stage. Nor is it necessary to characterise the system of points as penal to observe that the decision being made is a serious one. It is after all designed to be dissuasive and achieves this by attaching significant consequences to past actions in order to deter future conduct. The system can indeed operate as part of, or ancillary to, the criminal process. There is therefore no doubting the significance of the decision. The same procedure will apply in circumstances where the particular incident gives rise to a proposal for the assignment of points which could result in the suspension, or even loss of a licence.
38 As is discussed in the decision in O’Sullivan delivered today, there may indeed be circumstances where the nature of the decision, its significance, the need for urgency or the risk to the public, or the particular nature of what is to be determined may require an expedited procedure, or indeed one where some or all of the burden of proof is placed upon a licence holder. However, no such case is made here other than given the highly regulated nature of the industry, there is little prospect of serious challenge to the assignment of points once the SFPO has inspected a vessel. That may indeed be so, but in that case there may be little difficulty in requiring the SFPA to establish the relevant breach, if necessary with the assistance of provisions facilitating proof. However, here it is accepted that fair procedures must be accorded and the 2014 Regulations in providing for a determination at first instance and “appeal” to a separate and independent body, appear on the surface to seek to provide such procedures. Indeed the appellant State bodies here contend that even more is provided in practice before points are allocated to a licence. I conclude however that the minimal procedures which the Regulations of 2014 provide, which sets up in effect a single decision making process with an onus of disproof on the licence holder, falls short of the requirement of fair procedures. Accordingly, I would uphold the conclusion of the trial judge, albeit on this narrower basis.
Article 90 of the Control Regulations
39 The appellants have also raised an issue in relation to separate observations made by the trial judge at paragraph 130 of the judgment, that it appeared that the procedure adopted had also failed to consider the economic circumstances of the operator as provided for by Article 90 of the Control Regulations. Counsel for the appellant has however conducted a careful analysis of the interaction of Article 90 of the Control Regulations with Articles 42 and 43 of Regulation 105/2008 (the IUU Regulations). Briefly, as I understand it, Article 42 of the IUU Regulations defines certain matters as constituting serious infringements. One of the matters provided for by Article 42(1) are those specific matters which constitute IUU fishing which are set out and defined in Article 3 of the same Regulations. Article 3 contains a list of 12 activities which, it should be said, corresponds precisely to the headings in respect of which the relevant points tariff is set out by Annex XXX of the Commission Implementing Regulations. By Article 3(2) of the IUU Regulation it is required that the competent authority, in determining whether any matter constituting IUU fishing is to be considered a serious infringement in accordance with Article 42, shall take into account criteria “such as the damage done, its value, the extent of the infringement or its repetition”. There is no reference to economic circumstances.
40 At this point it can be said therefore, that IUU fishing is one of the matters which is capable of constituting a serious infringement for the purposes of Article 42. Therefore it must be made the subject of sanctions, administrative or criminal or both. By virtue of the Control Regulations however it is also required to be the subject of a points allocations system. As such, it is the only serious infringement under Article 42, which can be the subject of such points system, moreover the specific points are provided for under Article XXX of the Commission Implementing Regulation. The determination of serious infringement in a particular case involves the criteria set out in Article 3(2).
41 However, Article 90 of the Control Regulations adds to the activities which may be considered as serious infringements for the purposes of the Control Regulations depending on the gravity of the infringement, and therefore matters which can be the subject of enforcement and sanction. The matters added by Article 90 are:
(a) The non-transmission of a landing declaration or a sales note when the landing of a catch has taken place in the port of a third country;
(b) The manipulation of an engine with the aim of increasing its power beyond the maximum continuous engine power according to the engine certificate;
(c) The failure to land any species subject to a quota caught during a fishing operation, unless such landing would be contrary to obligations provided for in the rules of the common fisheries policies and fisheries or fishing zones where such rules apply.”
42 These matters may therefore be the subject of sanction (administrative, criminal or both) and the question of whether the particular incident constitutes a “serious infringement” is to be determined by the competent authority, but now taking into account criteria such as the nature of the damage, its value, the economic situation of the offender and the extent of the infringement or its repetition”. It should be said that the matters set out in Article 90(1)(a) to (c) as constituting serious infringement in addition to those matters set out in Article 42 of the IUU Regulations are not however in addition to those matters constituting IUU fishing under Article 3 and are not specified in Annex XXX as matters in respect of which points are to be allocated. It is not necessary to consider here why this distinction is made, and why points are limited to the IUU fishing as defined under Article 3(1), subject to a determination of serious infringement, or why the determination of serious infringement in cases provided under Article 90 of the Control Regulations involve a consideration of the economic situation of the offender, whereas the consideration of serious infringement under Article 3(1) of the IUU Regulations does not. It is sufficient for present purposes that this appears to be the plain legislative scheme. It should be said that counsel for the respondent did not challenge this analysis but rather accepted that it was correct. This sensible and realistic concession was helpful in limiting the range of dispute on this matter before this Court. It follows therefore, that the observations made obiter by the trial judge at paragraph 130 of the judgment appear misplaced. As the appellants consider that these observations could give rise to misunderstanding on what is, on any view, a complex and technical field, it is important to make it clear therefore that the applicants economic circumstances are not criteria which are required by law to be considered in the determination of serious infringement on the points system established by the 2014 Regulations or indeed their successor.
Order
43 In the High Court the court made an order of certiorari quashing the determination of “the determination board” of the 16th of January 2015, whereby the SFPA proposed to assign 12 points to the applicant’s fishing licence pursuant to Article 5 of the 2014 Regulations. Since I consider that the frailty of the procedure adopted in this case lay in the overall procedure rather than in any proceedings by the SFPA, I would set aside the order of certiorari. Since the outcome of the O’Sullivan proceedings is that the Regulations of 2014 have been declared invalid it is not necessary to substitute any other order in this case. Save as so provided, I would dismiss the appeal. Given the general importance of the interpretation of the Regulations both European and domestic, and their complexity, I would propose giving the parties two weeks within which to make any submissions as to the order to be made in each case, and if necessary the correction of any matters of detail in this judgment and that in O’Sullivan .
