Curley v Governor of Arbour Hill Prison

• Jurisdiction: Ireland
• Judge: Mr. Justice Hardiman
• Judgment Date: 18 July 2005
• Neutral Citation: [2005] IESC 49
• Court: Supreme Court
• Docket Number: [S.C. No. 256 of 2004]
• Date: 18 July 2005

[2005] IESC 49

THE SUPREME COURT

Hardiman J.

McCracken J.

Laffoy J.

256/04

CURLEY v GOVERNOR OF ARBOUR HILL PRISON

MICHAEL CURLEY

Appellant

and

THE GOVERNOR OF ARBOUR HILL PRISON

Respondent

PRISON (DISCIPLINARY RULES FOR OOFICERS) RULES 1996 Si 289/1996 RULE 7(2)

TUOHY v COMMISSIONER OF AN GARDA SIOCHANA & ORS UNREP HIGH COURT CARROLL 13.12.2002 2002/27/7069

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989

GENERAL PRISON IRELAND ACT 1877 S12

GENERAL PRISONS BOARD (TRANSFER OF FUNCTIONS) ORDER 1928

CIVIL SERVICE REGULATION ACT 1956 S17(2)

CIVIL SERVICE REGULATION ACT 1956 S17(1)

COURTS ACT 1986

PETTY SESSIONS (IRELAND) ACT 1851 S10(4)

MIN FOR AGRICULTURE v NORGRO LTD 1980 IR 155

HEMPENSTALL, STATE v SHANNON 1936 IR 326

AG v CONLON 1937 IR 762

MCLEOD v MIN FOR JUSTICE UNREP MURPHY J 21.12.2001

PRISONS

Prison officer

Disciplinary proceedings - Sexual harassment complaint - Time limits - Delegated legislation - Whether time limit matter of defence or jurisdiction - McLeod v Minister for Justice (Unrep, Murphy J, 21/12/2001) not followed. Tuohy v Commissioner of An Garda Síochána (Unrep, Carroll J, 13/12/2002) and Minister for Agriculture v Norgro [1980] IR 155 followed - Prison (Disciplinary Rules for Officers) Rules 1996 (SI 289/86), Civil Service Regulation Act 1956 (No. 46), s 17 - Appeal dismissed -

Facts: The Governor of Clover Hill Prison acting on receipt of complaints alleging sexual harassment sought to invoke disciplinary procedures against the appellant, a prison officer. The appellant's solicitor wrote to the respondent governor denying the governor's jurisdiction to convene disciplinary procedures and claimed that certain time limits had not been complied with. Following the notification of disciplinary procedures been served on the appellant, the appellant sought leave to apply to the High Court for judicial review, which was granted. His application sought to restrain the continuance of the disciplinary hearing. He claimed that no complaint had been made against him within the applicable time limit; the respondent had no power under the rules and that any determination made would be ultra vires and void. The High Court refused the application.

Held by the Supreme Court (Hardiman J; McCracken and Laffoy JJ concurring) in dismissing the appeal and affirming the High Court order.

1. The procedure under which the respondent convened the disciplinary procedure had its origin within the framework of the Conciliation and Arbitration Scheme of the Civil Service and was agreed between the staff unions and Department of Justice officials. Tuohy v Commissioner of An Garda Siochana (High Court (Carroll J) 13 December 2002, unreported) (See FL 6731); McLeod v The Minister for Justice (High Court (Murphy J) 21 December 2001, unreported) considered.

2. Time limits are laid down by Rule 7 (2) of SI 289/1996 of Prison (Disciplinary Rules for Officers) Rules. The rule applies to where the complaint is made by a "relevant superior officer". In the instant case the complaint was made directly to the governor.

3. Rule 7 (2) states " An allegation against an officer of a breach of discipline shall be made to the Governor as soon as practicable, but not later than seven working days, after coming to the notice of a relevant superior officer of the information which gave rise to the allegation". The effect of the two commas is the same as that of parenthesis so that the principle thrust of the section is that a complaint is to be made to the governor as soon as practicable after the coming to the notice of the relevant superior officer of the information which gives rise to the complaint. The effect of the parenthesis is to limit the period within which the making of the complaint might be regarded as having taken place "as soon as practicable" to a period not to exceed seven working days after the same event.

Reporter: BDD.

1 JUDGMENT of Mr. Justice Hardiman delivered the 18th day of July, 2005.

2 The appellant in these proceedings is a prison officer at Arbour Hill prison. The Governor proposes to embark on hearings of certain allegations against the appellant under the Prison (Disciplinary Rules for Officers) Rules, 1996 (S.I. 289 of 1996). It was first indicated to the appellant that certain complaints had been made on the 9th September, 2002. On the 7th October, 2002, he was served with three Complaint Forms alleging activities in the nature of sexual harassment. It appears that the complaints were made to the Governor on the 27th and 28th August, 2002. Two of the complaints referred to incidents said to have occurred in the spring of 2002 while the third related to two specific alleged incidents which occurred years earlier (between 1994 and 1998) as well as other alleged incidents at unspecified but quite remote dates. A response from the appellant was sought and a number of extensions of time granted to him in order to respond. By letter dated the 15th November, 2002, the appellant's solicitor denied the Governor's jurisdiction to embark on disciplinary proceedings as, he said, certain time limits for the initiation of such proceedings had not been complied with. The appellant claims that these time limits are mandatory and their breach means that the disciplinary proceedings are "invalid".

3 On the 2nd December, 2002, the Governor served notification of oral hearings into the said complaints which were scheduled for Monday the 16th December, 2002. The appellant then applied for leave to seek judicial review. He was granted such leave by order of Mr. Justice O'Neill on the 9th December, 2002. The reliefs he was granted leave to seek would restrain the continuation of the hearings into the various complaints. The substantive ground is that no complaint was made against the appellant within what he claims to be the applicable time limit. Therefore, he says, the respondent has no power under the Rules to enter into, consider or determine the allegations made against him, and has no power to conduct the hearings, so that any determination made by him would be ultra vires and void.

4 The appellant's application for judicial review was refused in the High Court (Smyth J.) by order perfected the 4th day of May, 2004. The appellant appealed against this refusal.

Time limits.

5 It appears that both the Statutory Instrument called the Prison (Disciplinary Rules for Officers) Rules, 1996, and a linked "Memorandum of Understanding" have their origins in discussions which went on over a protracted period within the framework of the Conciliation and Arbitration Scheme for the Civil Service. This Scheme states that its purpose is to provide a means acceptable both to the State and to its employees for dealing with claims and proposals regarding the conditions of service of Civil Servants and to ensure the fullest co-operation for the better discharge of public business.

6 The scheme envisages the establishment of Department Councils. In May of 1996 the Department Council for the Department of Justice, consisting of an Assistant Secretary and various officials on the one hand and various staff representatives on the other, issued an "agreed report" within the meaning of the Scheme. By paragraph 5 of this report "it was agreed to recommend that a Code of Discipline including a Memorandum of Understanding be incorporated in an agreed report of the Departmental Council".

7 It is these documents that contain the time limits upon which the appellant relies.

8 Rule 7 of the Rules provides as follows:

"Preliminary Procedure.

9 (1) Where it appears that an officer may have committed a breach of discipline and the Governor, having considered any statement and any other relevant information, decides that there is a case to be answered, particulars of the breach shall be entered in a Complaint Form. A Complaint Form shall be in the form set out in the second schedule.

10 (2) An allegation against an officer of a breach of discipline shall be made to the Governor as soon as practicable, but not later than seven working days, after the coming to the notice of a relevant superior officer of the information which gave rise to the allegation.

11 (5) Each Complaint Form on which an alleged breach of discipline has been entered shall be given to the accused officer as soon as practicable.

12 The term "officer" means a Prison Officer up to the rank of Deputy Governor.

13 The Memorandum of Understanding, insofar as relevant, provides as follows:

"(4) Rule 7(2):"

(a) Provides that an allegation shall be made to the Governor as soon as practicable but not later than seven working days after the coming to notice of a relevant superior officer of the information which gave rise to the allegation.

(b) It is agreed that an officer of whatever rank who has a complaint against another officer shall make that complaint as soon as practicable but not later than seven working days after the incident which has given rise to the complaint.

(c) Further, it is agreed that where an officer is the subject of a complaint the Governor should notify the officer of the complaint within 72 hours on receipt of that complaint."

Contentions of the parties.

14 Rule 7(2) of the Disciplinary Rules introduced, apparently for the first time, a time limit for making allegations which might lead to disciplinary proceedings. The appellant submits that paragraph (4) of the Memorandum of Understanding binds the respondent and that the relevant time limits prescribed in the Disciplinary Rules, "as interpreted by the Memorandum of Understanding" are mandatory. On this basis he claims that the intended disciplinary proceedings against him are ultra vires.

15 The respondent says that the time limit...