State (Gleeson) v Minister for Defence

• Jurisdiction: Ireland
• Judge: HENCHY J.,GRIFFIN J.,KENNY J:
• Judgment Date: 01 July 1976
• Neutral Citation: 1975 WJSC-SC 962
• Court: Supreme Court
• Docket Number: [1975 No. 439 SS.],(6-1976)
• Date: 01 July 1976

1975 WJSC-SC 962

THE SUPREME COURT

HENCHY J.

GRIFFIN J.

KENNY J.

(6-1976)

State (GLEESON) v. MINISTER DEFENCE

AFFIRMING HIGH - 17.12.75

THE STATE (GLEESON)

v.

MINISTER FOR DEFENCE AND THE ATTORNEYGENERAL

1 JUDGMENT OF HENCHY J. DELIVERED THE 1st July 1976

2 The prosecutor in these certiorari proceedings was a private in the Irish army. He joined up in July 1974. His enlistment was for a period of three years. He served in the Second Field Artillery Regiment. In April 1975 he was promoted to the grade of Private Three Star.

3 In May 1975 he was involved in an incident while his platoon was engaged in a training exercise in Glen Imaal, Co. Wicklow. On that occasion a Sergeant Swan was in charge of a billet in which there were nineteen men, including the prosecutor. He gave an order to the men to draw weapons. The order was not obeyed. One of the group of men in the billet, a Gunner Brunt, advanced towards Sergeant Swan and brushed against him in circumstances which resulted in Gunner Brunt being charged later before the commanding officer of the regiment with behaving in an insubordinate manner towards a superior officer, in that when ordered by Sergeant Swan to clean his rifle he struck Sergeant Swan on the shoulder with his elbow. That charge was dismissed, theprosecutor in the present proceedings having given evidence for the defence to the effect that Gunner Brunt's brush against Sergeant Swan was accidental.

4 The fact that the prosecutor was one of those who disobeyed Sergeant Swan's order and that he was one of a group who exerted a subversive influence on the discipline of young recruits has been sworn to in the present proceedings and has not been denied by the prosecutor. It cannot have come as a surprise to him, therefore, when disciplinary action followed the incident in Glen Imaal.

5 On the 17th June 1975 he was told by a Sergeant Brazil to report for a pre-discharge medical examination. This intimated to him that when the necessary formalities had been completed he would be discharged from the army. To this intimation he replied that he would question the discharge; whereupon Sergeant Brazil told him that if he had any complaint to make about his discharge, he should put it through the normal channels.

6 He duly underwent his medical examination, and on the 19th June 1975 he was told to go on a three-week leave. During that leave he had to report to barracks every three days.

7 On the 18th June, the day before he went on leave, he tried to see one of his officers, a Commandant Ryan, about his impending discharge, but Commandant Ryan was called away that day to anotherbarracks before he could see him. He then made an appointment to see Commandant Ryan next day, but he never turned up for that interview. Nor did he try to arrange any other interview, although he had to return to barracks every these days during his period of leave.

8 When he went to the barracks on the 3rd July 1975 he was told that he was not to report further, that he was discharged, and that his discharge papers would be sent out to him.

9 About a week later he was sent his certificate of service. It states the date of his discharge to be the 4th July 1975. It gives "His services being no longer required" as the reason for his discharge; and it categorizes his military conduct as "Unstaisfactory". It is now conceded that the latter was a mistake and should have read "Fair".

10 Having been advised that his discharge was invalid, the prosecutor moved in the High Court to have it quashed on certiorari. The argument supporting that claim was successful and an absolute order of certiorari was made by Butler J. quashing the discharge. The Minister for Defence, as a respondent in those proceedings - the Attorney General, as is now agreed, was erroneously joined as a respondent - appeals to this Court against that order.

11 The discharge of a man from the permanent defence force is allowed "for prescribed reasons": s. 73 of the Defence Act, 1954. The prescribed reasons are set out in para. 58 of Defence ForcesRegulations A. 10. Of the twenty-four reasons there prescribed, the one that was used in this case is given at para. 58(r), where it is stated that in the circumstances of a case such as this, that reason is to apply to "a man whose discharge is clearly desirable in the interests of the service and in whose case no other reason for discharge is applicable". The sub-paragraph clearly provides that before the prosecutor's commanding officer could validly have directed his discharge for this reason, it was necessary that the prosecutor's discharge should be clearly desirable in the interests of the service, and that none of the other twenty three reasons could be said to beapplicable.

12 The other twenty three prescribed reasons for discharging a man from the army cover a wide variety. Some are discreditable (e.g. "For misconduct," "As a result of conviction by the Civil Power", "Having knowingly made a false answer on attestation"); some are technical or consensual, and in no way discreditable (e.g. "At his own request to take up civil employment," "On pension after twenty-one years service," "For the purpose of appointment to be an officer"); and one ("Determination of service by the Minister for Defence") seems to rest a wide discretionary power in the Minister to discharge a man without specifying any more particular reason. The reason relied on here ("His services being no longer required") falls into the categoryof discreditable or condemnatory, for it carries with it a military rating of only "Fair" (which, while not as low as "Unsatisfactory", is less than "Good":(see Defence Force Regulations A. 8, Amendment No. 22), and it renders the prosecutor ineligible for enlistment ever again (See Defence Force Regulations A. 10, para. 12(1)), just as if he had been discharged for misconduct, inefficiency or medical unfitness.

13 The scheme of the Defence Act, 1954, and of the Regulations made under it shows that a man such as the prosecutor could have enlisted for a maximum of twelve years and a minimum of three years (see s. 53(1) (a) of the Defence Act, 1954and Defence Force Regulations A.10, para. 8(1)(e)) and that, save in circumstances not applicable here, he could not be discharged except for one of the prescribed reasons (see ss. 73 and 80 of the Defence Act 1954, and Defence Force Regulations A. 10, para. 58). The prosecutor, in fact, enlisted for three years and had served almost two years of that period. He was therefore, in the eyes of the law, not a servant. Subject to the statutory provisions for discharge, he had a statutory contract for a period of three years which carried with it the statutory benefits and liabilities attaching to his rank in the army. Accordingly, he was the holder of an office — no less so than was the member of the police force in Ridge v. Baldwin 1964 A.C. 40. It is in the capacity of anoffice holder in the legal sense - although not an officer in terms of military rank - that he comes forward in the present proceedings and submits that he has not been lawfully discharged.

14 In the High Court the case for the invalidation of the prosecutor's discharge was based on the submission that it constituted "an infringement of his constitutional rights and a denial of constitutional justice". The expression "constitutional justice" seems to have originated in a passage in the judgment of this Court in McDonald v. Bord na gCon 1965 I.R. 217, 242 where it was said: "In the context of the Constitution natural justice might be more appropriately termed constitutional justice and must be considered to import more than the two well established principles that no man shall be judge in his own cause and audi alteram partem." What was being stressed there was that, while the common law concept of natural justice is usually taken to comprehend no more than what is encompassed by the maxims nemo judex in sua causa and audialteram partem, the requirements of what was there called "constitutional justice", and is sometimes called "constitutional due process", cover a wider field. That is unquestionably so. The necessary implementation of express or necessarily implied constitutional guarantees...