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Topic 5- The Courts and the Judiciary- The Judicial Power (Continued)…
Topic 5- The Courts and the Judiciary- The Judicial Power (Continued)
Article 37 and the Exercise of 'Limited' Judicial Power
Article 37.1 - Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers, notwithstanding that such person or such body of persons is not a judge or a court appointed or established as such under this Constitution.
Other bodies than Courts may exercise 'limited powers of a judicial nature'
Other than criminal matters
But- they must act judiciously i.e. in accordance with fair procedures
McDonald v Bord na gCon
Established the accepted criteria for the identification of judicial power: Kenny listed them as
i. Dispute over legal rights or violation of law;
ii. Determination of rights or liabilities;
iii. Final determination (subject to appeal);
iv. Enforcement;
v. Making of an Order, historically a matter for the Courts.
FACTS: Case concerned an 'exclusion order' against the P from greyhound race tracks pursuant to s47 of Greyhound industry Act
Order followed allegation of having used a falsified grehound entrance documnet
ISSUE: P challenged constitutionality s47 as it permitted the exercise of a judicial function by the D
HELD: HC applied above test- found this did amount the administration of justice
was not a 'limited function'
Section found unconstitutional
SC: overturned: adoped test but found powers under teh Act were not powers of a judicial nature
No rights or liabilities were in issue
Keady v Commissioner of an Garda Siochanna
O'Flaherty J observed the two essential ingredients of the admin of justice
a contest between the parties
with the infliction of some penalty or liability
Tribunals
HELD TRIBUNALS DO NOT ADMINISTER JUSTICE
Goodman v Hamiton
SC applied test in McDonald
noted there were no criminal or civil sanctions flowing from a Tribunal's decision and
that any findings could not be subsequently used as evidence in court
NOTED: only the first limb was 'possibly' satisfied- that alone would be insufficient to make it a judicial function
Finlay CJ: never been a judicial function to make findings of fact in vacuo and report to Legislature
even in litigation, the only facts found are those relevant to the case
Murphy v Flood
Concerned finding by the Tribunal that the applicant had 'hindered and obstructed' the tribunal
Obstrunction of a Tribunal amounted to a criminal offence
HELD: Tribunal should not have made determination as it was effectively determining criminal liabillty
Would have been entitled to decide applicant 'not-cooperating' as that was no a crimianl offence
Prison Rules
State (Murray) v McRann:
Facts: Prisoner asaulted another prisoner
Disciplined under Prison RUles
Issue: Argued to amount to the exercise of a judicial function pursuant to A37
HELD: rejected- The governor of the prison was not considering guilt int he context of a crime having been committed against the community
exercising internal prison discipline
The matter was not a 'criminal' matter, but the court found that it was an e.g. of 'limited' and permissible exercise of judicial power by a body other than a court
Disciplinary Matters
Re the Solicitors Act 1954
ISSUE: SC considered whether the power given to Law Society to strike off a solicitor amounted to the exercise of 'judicial power'
No precise definition of 'judicial power'
Court must look at the nature of power being exercised
Held; did amount to administration of justice and should have been reserved for Courts
DISTINGUISHED FROM:
M v Medical Council:
Facts: Medical practitioners act gave power to medical council to
apply
to HC to strike off a doctor
K v An Bord Altranais: Stated obiter: it would have been unlawful to have a provision allowing for removal of nurses from register of nurses
BUT
Keady v Commissioner of the Garda Siochana
Different approach taken re power of the Garda Commissioner to dismiss a member of teh force
HELD: not a judicial function
Observed no contest between the parties: merely an inquiry
5th limb of McDonald: There was a requirement for discipline within the force and Garda discipline was not a matter historially subject to the jurisdiction of the Courts
Distinguished: Re Solicitors Act- hisotically the pwer to strike off a soicitor lay with the President of HC
approved obiter comments in K as the Court distinguished the position of Gardai from nurses and solicitrs as in those cases
a professional qualification
would be removed
Keady difficult to understand
Better analysis to accept obiter comments in K are incorrect, that ordinarily disciplinary matters do not amoint to admin of justice
consistent with application of 5 stage test
Decision re Solicitors- understood as an application of 5th limb of test- historically power with HC
O'Connell v The Turf Club: SC acknowledged that cases in this area are 'not easily reconciled'
Facts: Respondent investigating a bet which was placed re a particular hrse
Bet horse would lose the race and alleged jockey communicated info about condition of horse
ISSUE: Applicant objected jurisdiction of respondent to deal with matter
SC HELD: respondent was not administering justice and could deal with the matter
Decisions of he respondent were not enforceable as judgments
making decisions was not characteristic of the courts as matter of history
Purcell v Central Bank of Ireland: applicant= former executive director of Irish Nationwide Buiolding Scoeity
investigation by central bank into INBC
Applicant argued this was administration of justice
HELD: merely an inquiry (no settlement of any legal dispute)
Exclusion from financially regulated markets was different from removing a solicitor's qualification
Court had no historical role in financial market
Censorship
Melton Enterprises Ltd v Censorship of Publications Board
Facts: Respondent made an order prohibiting publication
Issue: Applicant argued it was 1. a criminal sanction or 2. was not 'limited' judicial power
HELD: Not criminal- Criminal Matters in A37.1 only refer to criminal proceedings by a court
Prohibition was no so 'profound' as to amount to a full judicial function