Author: Hannah Unger, Ciara Hanratty and Eimear Burke
January 24, 2019
The High Court has recently delivered a judgment, in the above matter which will be of interest to statutory bodies. The decision offers guidance, among other things, in relation to the following:
- The test to be applied when deciding whether a decision by a statutory body is judicially reviewable; and
- The point at which fair procedures become at risk of being breached; and
On 11 September 2017, Mr Graham Holland (the “Applicant”), a successful greyhound trainer, was notified by a member of the Regulatory Division of Bord na gCon (“the Board”), that certain urine samples taken from a particular greyhound trained by him, had tested positive for cocaine. The Control Committee of Board na gCon (the “Respondent”) was then requested to investigate the matter pursuant to s. 43 of the Greyhound Industry Act 1958.
The following is a brief summary of the exchanges between the Applicant and the Respondent which led to the judicial review proceedings:
- On 19 September 2017, the Applicant wrote to the Board requesting a detailed list of documents/information and access to the samples in question so that independent expert analysis could be carried out.
- On 7 November 2017, the Respondent notified the Applicant that it was going to meet on 01 December 2017, to carry out an investigation, in relation to the urine samples. This was despite the fact that the documents/ information previously sought had not yet been furnished to the Applicant.
- The Applicant wrote to the Respondent on four more occasions (between 09 – 21 November 2018) requesting the documentation/information previously sought and clarification in relation to the allegations. In the absence of knowing what the allegation against the Applicant was, and having regard to the fact that an independent analysis had not yet been carried out, the Applicant argued that he could not receive a fair hearing, should the matter proceed on 01 December 2017.
- The Respondent refuted these claims and decided to proceed with the disciplinary meeting, as planned, on 01 December 2017. The Applicant was informed that the hearing would deal with preliminary issues only and the attendance of witnesses would not be required.
Judicial Review Proceedings
On 27 November 2017, the Applicant sought leave to apply for judicial review seeking various reliefs. Those reliefs sought a range of declaratory orders in relation to alleged breaches of fair procedures and natural and constitutional justice, certiorari of the decision of the Respondent to proceed with its disciplinary hearing and an injunction prohibiting the meeting of 01 December, 2017, occurring.
The Respondent, in its defence, stated that these proceedings were premature, that the rights of the Applicant were not disregarded by the Respondent and that the decision which was sought to be reviewed, namely to proceed with the meeting on 01 December 2017, was not of its nature reviewable.
The High Court applied the following test in deciding whether the decision, by the Respondent, to hold the disciplinary hearing on 01 December 2017, was judicially reviewable.
“[the Court must]…determine what was at issue for the Applicant at the time the Judicial Review proceedings were initiated and whether this involved an imminent danger of him suffering a diminution of rights, or a detriment.”
In applying this test, the High Court found the following:
- In relation to the fair procedures point, the High Court held that the hearing was a preliminary meeting only and thus the opportunity to obtain an independent analysis would be dealt with by the Respondent at a later date. The High Court further held that ‘the matter must commence at some point and fair rulings then ensue’. The High Court went on to distinguish, had the meeting taken place and had the Respondent refused to adjourn the matter to permit the testing to take place, then issues would obviously have arisen regarding such a ruling. However, this position was never reached. Accordingly, the High Court found that the Applicant’s right to fair procedures was never put at risk.
- In relation to the notification of the allegations made against the Applicant, the High Court found that the details of what was to be investigated by the Respondent were sufficiently notified to the Applicant in correspondence. Indeed, as the investigation had not yet commenced, the High Court found that one would not anticipate that there was any further information regarding any allegations against the Applicant. Also, in the course of correspondence, the Respondent informed the Applicant that any issue in relation to this matter could be raised before it. Accordingly, the High Court found that the Applicant’s rights had not been put at risk.
- In relation to the types of decisions which are judicially reviewable, the High Court held that the judicial review proceedings were launched prematurely at a time when the Applicant’s rights to fair procedures and natural and constitutional justice had not been breached, nor were they in imminent danger of being breached. The decision to commence the disciplinary hearing on 01 December 2017 was thus not of its nature a judicially reviewable decision.
- In addition, the High Court found that the Respondent, having been notified of the three adverse analytical findings, was under a statutory duty to commence an independent investigation into these matters and determine any issues arising in relation to the investigation conducted. The High Court went on to determine that there was no breach of the statutory framework governing the consideration of these matters.
- Taking into account the above constitutional and statutory considerations, the High Court found against the Applicant and the application was refused.
Click here for the full judgement of the High Court