Rawson v Minister for Defence

• Jurisdiction: Ireland
• Judge: Mr. Justice Clarke
• Judgment Date: 01 May 2012
• Neutral Citation: [2012] IESC 26
• Court: Supreme Court
• Date: 01 May 2012

Rawson v Min for Defence

Between/

David Rawson

Applicant/Appellant

and

The Minister for Defence

Respondent

[2012] IESC 26

Fennelly J.

Clarke J.

MacMenamin J.

[Appeal No: SC 403/2008]

THE SUPREME COURT

Abstract:

Administrative law - Judicial review - Defence Forces - Practice and procedure - Drug testing - Discharge - Correct test - Reasonable and rational view - Correct question - Amenability to consideration- Whether decision to discharge would be quashed

Facts: The applicant/ appellant joined the defence forces in September 2006 and was subjected to a random drug test, which he had tested positive for. He sought to restrain his discharge by way of injunctive proceedings and the High Court refused the reliefs sought to quash the decision to discharge him from the Defence Forces. It had been contended by the applicant/ appellant in the High Court that there was no evidence that any consideration had been given to his passive inhalation as the cause of any positive test. The High Court had found that it was reasonable and rational for the respondent to decide that his account did not amount to innocent or inadvertent ingestion or inhalation. The question arose as to whether the correct question had been asked in the High Court as to why the applicant/appellant's case had been lost.

Held by Clarke J. (Fennelly, MacMenamin J. concurring) that the appeal would be allowed and the decision to discharge would be quashed. It was not the sort of case where the Court could safely infer that the correct question was asked as to the process developed or the materials which were before the decision maker. It was a matter for the authorities in the Defence Forces to decide whether the issues raised should be considered again.

Reporter: E.F.

O'DONOGHUE v BORD PLEANALA & TALLON PROPERTIES LTD 1991 ILRM 750 1991/5/1081

SWEENEY, STATE v MIN FOR ENVIRONMENT & LIMERICK CO COUNCIL 1979 ILRM 35 1979/2A/498

MULHOLLAND & KINSELLA v BORD PLEANALA (NO 2) 2006 1 IR 453 2006 1 ILRM 287 2005/40/8371 2005 IEHC 306

MEADOWS v MIN FOR JUSTICE & ORS 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

WHITE v DUBLIN CITY COUNCIL & ORS 2004 1 IR 545 2004 2 ILRM 509 2004/50/11423 2004 IESC 35

CLARE CO COUNCIL v JUDGE KENNY 2009 1 IR 22 2008/7/1316 2008 IEHC 177

1. Introduction

2 1.1 For understandable reasons the Defence Forces take a very serious view of drug abuse. As part of the measures introduced to combat this problem, a scheme of random drug testing was introduced in January 2002. It will be necessary to refer to the precise scheme under which random testing is conducted in due course.

3 1.2 The applicant/appellant ("Airman Rawson") joined the Defence Forces, as a recruit, on the 4 ^th of September 2006. On the 27 ^th of November 2006 he was subjected to a random drug test carried out under the relevant regulations. He tested positive.

4 1.3 In circumstances which it will be necessary to consider in more detail, Airman Rawson was ultimately informed that he was to be discharged from the Defence Forces. Airman Rawson brings this appeal from a judgment of the High Court (Hedigan J.) refusing an order quashing the decision to discharge.

5 1.4 The relevant regulations provide for two samples to be taken. Airman Rawson was advised that he had tested positive for cannabis on the first sample and was given the option of having the so called B sample also tested. That sample also proved positive.

6 1.5 On the 10 ^th January 2007, Airman Rawson was paraded before Commandant Jim Gavin, who was standing in for his commanding officer ("C.O.") Lieutenant Colonel McIntyre, and was told that the C.O. was recommending discharge. Airman Rawson was advised that he could make representations within seven days. On the 16 ^th January 2007 Airman Rawson put forward to his C.O. his case which was to the effect that he and two friends were in a car when they (but not he) smoked cannabis. Airman Rawson consistently denied that he himself had smoked cannabis. He suggested that he had been informed by more senior members of the Defence Forces on a number of occasions that it was not possible to test positive for cannabis in circumstances of passive smoking. However in his submission he suggested that that was not so and that it was, as a matter of scientific fact, possible to produce what might be termed a false positive result deriving from passive smoking.

7 1.4 It would appear that those submissions were rejected in that on the 17 ^th January 2007 Airman Rawson was informed that his C.O. had decided to recommend that he be discharged. He was informed that the matter was then to go before the General Officer Commanding ("G.O.C.") and that he had the right to make further submissions. A written submission dated the 17 ^th January 2007 was made to the G.O.C. On the 29 ^th of January 2007 Airman Rawson was informed that the G.O.C. had decided that he should be discharged with immediate effect. Airman Rawson immediately applied to this court and obtained an interim injunction restraining his discharge pending the determination of these proceedings. That injunction has remained in place to date with Airman Rawson being, I understand, assigned to administrative duties.

8 1.5 The case ultimately came on for hearing and judgment was delivered on the 2 ^nd December 2008. For the reasons set out in that judgment Hedigan J. refused the reliefs sought which were primarily directed towards quashing the decision to discharge Airman Rawson from the Defence Forces. Against that decision Airman Rawson now appeals to this court. In order to more fully understand the issues raised both before the High Court and on this appeal it is necessary to say a little more about first, the regulations under which Airman Rawson's case was considered and second, the facts including the evidence as to the decisions taken by the superior officers involved. I turn first, therefore, to the relevant regulations.

2. The Regulations

2 2.1 To give them their full title the regulations concerned are described as the "Compulsory Random Drug Testing Administrative Instruction A7 Chapter 3" ("the Regulations"). Paragraph 304(a) requires the provision of a urine sample by a member of the Defence Forces in the context of a compulsory random testing programme. When a random urine sample is taken para. 308 provides for the method of testing. In the case of cannabis para. 308 also states that, should the test in question return a reading of greater than or equal to 15ng/ml, the result is to be regarded as a "test positive" for the use of cannabis. Paragraph 309(c) provides for the A and B samples.

3 2.2 Paragraph 313(b) provides that an individual's C.O. inform the member concerned both orally and in writing of the result of any positive test and also inform the individual that administrative action is being taken which may result in discharge together with the fact that a seven day period is provided to make representations. Thereafter, under para. 315, the C.O. forwards his recommendation regarding discharge or otherwise to the G.O.C. for consideration. A copy of that recommendation should also be given to the individual who must be informed that he has the right to appeal to the G.O.C. within seven days. The final decision is made by the G.O.C., under para. 317, on receipt of the recommendation of the C.O. and on considering any further submissions made by the individual.

4 2.3 However, of particular relevance to the issues which arise in this case is para. 318 which provides that where it appears to a C.O. " on foot of any representation made, that a reasonable doubt exists, that the individual … may have innocently or inadvertently ingested, inhaled or otherwise introduced the substance, he should recommend that the individual be retained in the service".

5 2.4 There was no significant difference between counsel as to the overall approach required under the Regulations. Where a test is deemed to be positive then the relevant procedures which potentially lead to a discharge are commenced. The individual concerned is entitled to make representations which may include a representation, under para. 318, that there is a reasonable doubt to the effect that the individual concerned may have innocently or inadvertently ingested, inhaled or otherwise introduced the substance. It seems clear that para. 318 requires the individual who has tested positive to raise that question if he wishes it to be considered, for the paragraph speaks of the C.O. considering the matter "on foot of any representations made". However it seems equally clear that, once a representation to that effect is made by an individual whose conduct is under consideration, there is an obligation on the C.O. and, it follows, on the G.O.C. on appeal, to consider it. Against the background of the Regulations it is next necessary to deal in a little more detail with the facts.

3. The Facts

2 3.1 I have already briefly outlined the sequence of events. Insofar as material to the issues which now arise it is necessary to trace the case made by Airman Rawson on the question of passive inhalation. While the representations made by Airman Rawson to his C.O. were not exhibited in the evidence it was accepted by both sides that those representations were broadly in the same form as those which were made in writing to the G.O.C. by memorandum of the 17 ^th January, 2007. In those written representations Airman Rawson admitted that he was in the company of friends who smoked cannabis resin but "categorically" denied that he himself had smoked any form of cannabis. Airman Rawson went on to make a number of other points which are not relevant to the issues which now arise. However, towards the end of his submission he complained of what was said to be a failure of...