Rawson v Minister for Defence, [2012] IEHC 26 (2012)

Docket Number:403/08
Judge:Clarke J.
 
FREE EXCERPT

THE SUPREME COURT[Appeal No: SC 403/2008]

Fennelly J.

Clarke J.

MacMenamin J.

Between/

David RawsonApplicant/Appellant and

The Minister for DefenceRespondent

Judgment of Mr. Justice Clarke delivered the 1st May, 2012

  1. Introduction

    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.

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

    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.

    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.

    1.5 On the 10th 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 16th 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.

    1.4 It would appear that those submissions were rejected in that on the 17th 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 17th January 2007 was made to the G.O.C. On the 29th 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.

    1.5 The case ultimately came on for hearing and judgment was delivered on the 2nd 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

    2.1 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.

    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.

    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".

    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

    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 17th...

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