De Róiste v Judge-Advocate General

• Jurisdiction: Ireland
• Judge: Quirke J.
• Judgment Date: 27 July 2005
• Neutral Citation: [2005] IEHC 273
• Court: High Court
• Docket Number: [2002 No. 835 JR]
• Date: 27 July 2005

DeRoiste -v- Judge Advocate General & Ors

JUDICIAL REVIEW

BETWEEN

DONAL De ROISTE

APPLICANT

AND

THE JUDGE-ADVOCATE GENERAL, THE MINISTER FOR DEFENCE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

[2005] IEHC 273

[No. 835 J.R./2002]

THE HIGH COURT

Abstract:

Military law - Judicial review - Availability of relief - Inquiry by Judge Advocate General - Findings of fact - Right to good name - Whether justiciable issue - Fair procedures - Audi alteram partem - Terms of reference - Whether inquiry conducted in accordance with fair procedures - Defence Act 1954 (No.), section 15

Facts: the first respondent was appointed by the second respondent pursuant to section 15(3) of the Defence Act 1954 to conduct an enquiry into the circumstances which resulted in the dismissal of the applicant from the defence forces in 1969 and make a report and recommendations to the second respondent thereon. The applicant complained that the first respondent conducted the enquiry prematurely and without due observance of the principles of natural and constitutional justice and that the report was flawed and should be quashed therefore on the basis, inter alia, that the first respondent failed to hold an oral inquiry into the matter and failed to provide the applicant with full access to relevant documentation. The respondents argued, inter alia, that because the first respondent's findings and conclusions were legally sterile, they were not amenable to judicial review.

Held by Quirke J in quashing the report of the first respondent that the courts would only intervene by way of judicial review in matters where there was a public law dimension and in respect of decision, act or determination which would affect some legally enforceable right or a right so close to such a right that a probable next step would be that some legal right would be infringed. The process undertaken by the first respondent required her to reach conclusions and make findings of fact and recommendations to the second respondent as to what steps, if any, should be taken by him which affected the applicant's reputation. Accordingly, he had a legitimate interest in the process and was entitled to seek relief by way of judicial review.

That a person accused of a serious offence whose conduct had become the subject of a tribunal of inquiry was entitled, inter alia, to details of the allegations made against him and the evidence which would be relied upon in support of those allegations and the right to address the tribunal in defence. By failing to provide the applicant with access to the relevant documentation the respondents had deprived him of the opportunity to make meaningful and informed representations to the first respondent within the process directed towards the vindication of his right to his reputation.

Reporter: P.C.

1 Judgment of Quirke J. delivered the 27th day of July 2005.

2 By order of the High Court (O'Neill J.) dated 17th December, 2002, the applicant was given leave to seek various declaratory and other reliefs by way of judicial review, including an order of certiorari quashing a report entitled "The report of inquiry into the circumstances surrounding the retirement in the interests of the service of Lieutenant Donal Roche on 27th June, 1969". That report was completed by the first named respondent, ("the JAG."), in September, 2002. It was then adopted by the second named respondent, ("the Minister"), who published it on 2nd October, 2002.

3 The applicant claims, inter alia, that the Minister appointed the JAG to conduct an inquiry into certain circumstances which resulted in the involuntary retirement of the applicant from the Defence Forces in June, 1969.

4 The applicant claims that he was the subject of the inquiry and had a legitimate, fundamental and significant interest in its conduct because its conclusions and recommendations affected his reputation and good name.

5 He contends that the JAG conducted and completed the inquiry prematurely and without due observance of the principles of natural and constitutional justice. He says that he was not afforded fair procedures by the JAG, who failed to exercise the powers conferred upon her by the second respondent judicially.

6 He claims that, because the inquiry was conducted unlawfully, the resultant report was flawed and defective and it must be quashed on that ground.

FACTUAL BACKGROUND

7 1. The applicant was involuntarily retired from the Defence Forces in 1969 "in the interests of the service" on grounds that he was suspected of associating with persons engaged in subversive activities.

8 In 1997 he was granted leave by the High Court (Geoghegan J.) to challenge the decision to retire him. The grounds for leave included, inter alia, a claim that the decision resulting in his retirement was made in breach of the principles of natural and constitutional justice and ultra vires relevant statutory provisions.

9 The High Court (McCracken J.) by order dated 28th June, 1999, and, (on appeal), the Supreme Court, by order dated 19th January, 2001, refused the applicant the relief which he sought on grounds, primarily, of his inordinate and inexcusable delay in seeking relief.

10 2. On February 8th, 1999, during the hearing of a Motion for Discovery in those proceedings the High Court (Kinlen J.), suggested that the Minister should check the files within his possession and, if possible, supply the applicant with copies of any statements made by the applicant or letters written by the applicant or the applicant's solicitor during the investigation which resulted in the applicant's retirement in 1969.

11 3 On 15th May, 2001, a file was located in a safe in the Department of Defence. It contained documents including a letter from a (named) solicitor addressed to the Chief of Staff of the Defence Forces. It was dated 30th May, 1969, and it provided as follows:

"Dear Sir. We act for a First Lieutenant Donal Roche who has instructed us to act on his behalf with regard to various serious accusations and charges made against him by the Army. Our client states that he has been brought before various officials and officers of various ranks and accused of misconduct, indiscretion, being a security risk etc. On one occasion he was charged with the offence of being a security risk and on another occasion gross misconduct and so on, with the result that our client does not know where he stands.

He is being pressurised and badgered which is quite unfair, due to the fact that he has not yet been formally charged and notice given to him and an opportunity afforded him to make his own case for his own Defence. Every action that has been taken up to now against him has been completely to his prejudice. We must point out that in the Defence Act, 1954 there are various protections given to officers which have been ignored in our client's case.

Our client would therefore like to know what charge, if any, is being preferred against him."

12 The discovery of that letter was not made known to the applicant and no documents were made available to him at that time.

13 4. A decision was made on 1st July, 2002, by Major-General Sean.F.Brennan to afford the applicant access to the files and papers surrounding his retirement from the Defence Forces in 1969. Major-General Brennan made that decision in his capacity as an authorised officer within the Defence Forces for the purposes of the Freedom of Information Act. The decision was made in response to a request made on behalf of the applicant under the Freedom of Information Act for access to those files and papers.

14 5. On 2nd July, 2002 the Minister, in exercise of the power vested in the Government by s. 15(3) of the Defence Act, 1954 "charged.(the JAG). with the performance of a duty". The nature of the duty which the J.A.G was required to perform was identified in a document furnished by the Minister to the JAG. It was entitled Terms of Reference. It provided as follows:

"Case of ex-Lieutenant Donal Roche"

15 The Judge Advocate General, Ms. Onah McCrann, had been asked to review all Defence Forces and Department of Defence files relating to the decision to retire ex-Lieutenant Donal Roche from the Defence Forces in June, 1969 from the following perspectives in particular;

16 "To enquire into the circumstances surrounding the retirement of ex-Lieutenant Donal Roche by means of a complete review of all relevant documentation held by the Department of Defence and by the Defence Forces, and to have full access to any civil or military personnel for the purposes of their providing explanation in relation to any apparent gaps or ambiguities in the documentation and to report to the Minister with her conclusions and recommendations."

17 Notwithstanding the decision of the authorised officer under the Freedom of Information Act the Minister directed that the applicant should not be afforded access to the files and papers relevant to his dismissal from the Defence Forces until after the completion of the process and the publication of the Report of the JAG.

18 6. For reasons which have not been identified the JAG requested the Minister to amend the Terms of Reference. He did so on 15th July, 2002, adding the following paragraph:

"The Inquirer is to be entitled, within the Terms of Reference, and the manner of the Inquiry contemplated, to take such representations in writing for any party whom she considers to be appropriate."

19 7. On 16th July, 2002, the JAG advised the applicant's solicitor that:

"the Terms of Reference of the above Inquiry have been broadened to entitle me, within the Terms of Reference and the manner of the Inquiry contemplated, to take such representations in writing from any party whom I consider to be appropriate...I am of the view that it is appropriate that your client be invited to make such written...