Phelan v Minister for Justice, Equality and Law Reform

• Jurisdiction: Ireland
• Court: High Court
• Judge: Mr. Justice Herbert
• Judgment Date: 07 October 2003
• Neutral Citation: 2003 WJSC-HC 10734
• Date: 07 October 2003

2003 WJSC-HC 10734

THE HIGH COURT

RECORD NO. 2001/154 J.R.

PHELAN & ORS v. MIN FOR JUSTICE & ORS

JUDICIAL REVIEW

BETWEEN:

BERNARD PHELAN, NEIL CONNAUGHTON, PAUL MURPHY, BRENDAN McEVOY AND SEAN CULLEN

APPLICANTS

AND

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

PUBLIC SERVICE MANAGEMENT ACT 1997 S4(1)

RSC O.84 r21(1)

HOGAN V COUNTY MANAGER OF WATERFORD UNREP HERBERT 30.4.2003

O'FLYNN V MID WESTERN HEALTH BOARD 1991 2 IR 233

DE ROISTE V MIN DEFENCE 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33

DPP V KELLY 1997 1 IR 405

FINNERTY V WESTERN HEALTH UNREP CARROLL 5.10.1998 1998/19/7047

K (G) V MIN JUSTICE 2002 1 ILRM 401

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 ILRM 301

EASTERN HEALTH BOARD V FARRELL 2000 1 ILRM 446

Synopsis:

JUDICIAL REVIEW

Procedure

Time limits - Whether application for leave made within time limits - Whether court should extend the time - Rules of the Superior Courts 1986 SI 15/1986 Order 84 rule 21(1) (2001/154JR - Herbert J - 7/10/2003) FL 8147

Phelan v Minister for Justice, Equality and Law Reform

The applicants applied for promotion. It was represented that the selection process would take the form of an examination consisting of two stages. As a result of complaints, the respondents set aside the stage 1 assessment and decided to permit all candidates to proceed to stage 2 and to rank candidates solely by reference to stage 2 assessment results. The applicants were given leave to apply by way of judicial review for declarations (with associated other reliefs including certiorari) that the respondents’ decision to set aside the stage 1 assessment was contrary to natural and constitutional justice, was ultra vires the powers of the respondents and was in breach of the legitimate expectation of the applicants.

Held by Herbert J. in refusing the application that the application for leave to apply for judicial review was not made within the time stipulated by order 84, rule 21(1) of the Rules of the Superior Courts. No good reason had been shown by the applicants as to why the time should be extended.

1 JUDGMENT of Mr. Justice Herbert delivered the 7th day of October, 2003.

The Facts

2 In February, 1999, after very extensive research and consideration, Pearn Kandola, a Firm of Occupational Psychologists furnished a Report entitled, "Assistant Chief Officer, Job Analysis Report", to the Department of Justice, Equality and Law Reform, regarding the selection process by which Prison Officers were promoted to the supervisory grade of Assistant Chief Officer. This Report was accepted by the Department of Justice, Equality and Law Reform. It recommended that the existing selection methods be replaced by a process using a competency framework as the basis for assessment. The existing pre-assessment Stage, comprising an Application Form from the candidate and an Assessment From from the relevant Prison Governor should be replaced by a competency based Self Assessment Questionnaire to be completed by the candidate directed to five specific areas of competence, in addition to providing background details of education, training and work experience. The existing assessment Stage consisting of an Interview should be replaced by a two stage process.

3 Stage 1 would consist of two parts; a Job Scenario (sic)Questionnaire and a Work Sample Test. Part one of Stage 1 would consist of a carefully designed multiple choice questionnaire. This would present the candidates with the task of evaluating various carefully structured events linked around a common theme typical of the sort of problems which an Assistant Chief Officer would expect to encounter in the course of her or his duty. Part two of Stage 1 would be a test of vigilance, conscientiousness and information handling. This test, as regards vigilance, would be based on the identification of changes in photographs and as regards competence and information handling, would be based upon the application of indicated rules and procedures in relation to documentary information.

4 The Report provided that, "candidates who meet the required standards at Stage 1 would be invited for a further assessment at Stage 2". It further stated that, "the new short-listing strategy ensures that only the best candidates are recommended for Stage 2 and makes the interview process more manageable". At Section Five of the Report under the title, "Practical Considerations - Timing", the Report states as follows:

"The new process is designed to maximise the coverage of competencies. The Job Scenario Questionnaire and Work Sample Test provide for detailed coverage up-front of the competencies required for effective performance of the Assistant Chief Officer role in a highly relevant and cost effective manner.

To ensure the effectiveness of these exercises in selecting individuals for the second stage of assessment, a number of key criteria, i.e. fairness, validity, reliability, acceptability, organisational fit need to be satisfied.

To meet with best practice guidelines the design of such exercises will require extensive trialing, piloting and validation…"

5 The Stage 2 assessment would consist of three parts. The first part would consist of a Management Assessment Form to be completed by a Senior Officer who had first hand knowledge of the Applicant and would be counter-signed by the relevant Prison Governor. The second part would consist of a Structured Competency-based Interview using a pre-designed bank of questions for each competency, enabling each candidate to be asked the same questions and her or his answers rated objectively against guidelines. The third part would be a Group Exercise which would consist of an observed group discussion in which each member of the group would be provided with a different piece of information relating to one item on the agenda of a committee meeting.

6 A Circular, No. 94/99, dated 20 ^th December, 1999, under the signature of Fergus Bailey, Prisons Personnel, Prison Officers with not less than four years” established service on the 21 ^stJanuary, 2000, were invited by the Department of Justice, Equality and Law Reform to participate in this new Form of Competition for promotion to the position of Assistant Chief Officer. Under the heading "Stage 1", this Circular provided as follows:-

"All skills essential for the role of the Assistant Chief Officer will be assessed through the tests at Stage 1 of the process. They will be required to reach a minimum standard on each test in order to be short listed for Stage 2 of the process. Feedback will be provided regardless of results, after Stage 1 (and subsequent stages) of the competition… Thus the Office of the Civil Service and Local Appointments Commission will be responsible for all aspects of the Stage 1 testing process, including the scoring of tests and the issue of test performance feedback… In accordance with usual practice in Civil Service Commission competitions and because all skills have been assessed at Stage 1, successful candidates will be called for Stage 2 assessment in order of merit."

7 Under the heading, "Stage Two — Interview and Group Exercise", details of the Stage 2 assessment process were set out in the Circular. It was stated that candidates would receive preparation guidelines in advance of the Stage 2 assessment. These Guidelines were prepared by Pearn Kandola and are dated May, 2000. Under the heading, "Panel", the Circular advises that "successful candidates will be placed in order of merit on a panel which will be published. Any vacancies arising in the eighteen month period following the publication of the panel will be offered in turn to the candidates on the panel…"

8 Parts one and two of the Stage 1 assessments were conducted on the 7 ^th and 8 ^th March, 2000 at Cork; on the 6 ^th, 7 ^th and 8 ^th March, 2000 at Athlone and on the 9 ^th, 10 ^th and 13 ^th March, 2000 at Dublin. 290 Prison Officers participated.

9 On the 14 ^th March, 2000 the President of the Prison Officers Association wrote to the Prisons Section of the Department of Justice, Equality and Law Reform seeking that the Stage 1 assessment results be set aside on the grounds that its credibility had been called into question by the following matters:-

10 Because this Stage 1 assessment was conducted on different days between the 6 ^th and the 13 ^th March, 2000, "concerns were raised that candidates who sat the exam later in the week had material which was taken from candidates who sat the exam in the first days of the process".

"The exam or part of it is the same exam sat by Assistant Chief Officers in the Pilot Exam Stage last year. It seems that material was available to some candidates from this Pilot Exam i.e., the picture in Part one and the relevant questions and answers for Part one."

11 On the 27 ^th March, 2000 Mr. T. Maguire, Personnel Officer, Prisons Section of the Department of Justice, Equality and Law Reform, wrote to the President of the Prison Officers Association stating inter alia, that:-

"In the absence of conclusive evidence that such misuse had occurred or that the pilot testing procedure had been improperly used the Department will not set aside the exam results and will proceed in the normal way…"

12 The Stage 1 results were published on the 28 ^th April, 2000. 127 candidates, including the Applicants in this Application, achieved the qualifying standard. In Order of Merit, Bernard Phelan was ranked No. 3, Neil Connaughton was ranked No. 4, Paul Murphy was ranked No. 47, Brendan McEvoy was ranked between No. 80 and 90 and Sean Cullen was ranked No. 106.

13 By Circular No. 44/00 dated the 14 ^th June, 2000, under the signature of Sean Aylward, Director General of the Irish Prisons Service, it was decided that all 290 candidates who had taken part in...