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Topic 14- Fair Procedures (Right that is case sensitive (Context-sensitive…
Topic 14- Fair Procedures
Article 40.3.2
The state shall, in particular, by its laes protect as best it may from unjust attack, and in the case of injustice done, vindicate the life, person, good name and property rights of every citizen
Can be called
Fair procedures
Natural justice
Constitutional Justice
An unenumerated right
Garvey v Ireland
: Right to fair procedures acknowledged as an unenumerated right
The Constitution incorporates into our laws and their administration the requirements of natural justice
By A40.3 there is guaranteed to every citizen whose rights may be affected by decisions taken by others the right to fair and just procedures
Constitution powers cannot be exercised unjustly or unfairly
Facts: Complaints made about Commissioner
Government wrote to Commissioner giving two hours to resign
Dismissed him when he refused
Held: Breach of fair procedures
No prior notice
No reasons given
No opportunity to make representations
Cornerstones
Audi Alterem Partem
Hear the other side= Right to be heard
Advance notice of charges against you
Right to make oral submissions
Right to face your accuser
Right to cross-examine
Nemo Iudex in Sua Causa
No man is a judge in their own cause
Right to have a judge who is actually biased
Or objectively biased
: It is not enough that justice is done, justice must be seen to be done'
Horizontal Application
An important aspect= applies to private, non-state entities as well as emanations of the state
Gallagher v Revenue Commissioners
Facts: Applicant, a revenue employee, subject to an internal disciplinary procedure which would result in his dismissal
Revenue believed he had deliberately undervalued cars as part of his job
People whose opinion Revenue relied on were not going to be giving evidence at the disciplinary hearing
Issue: Gallagher wanted to cross-examine them on the issue of valuation
Held: SC: due to seriousness of allegation and possible consequences (dismissal)= entitled to fair procedures
Proposed admissibility of hearsay evidence
Lack of cross-examination
: breach of fair procedures
Cassidy v Shannon Castle Banquets and Heritage Ltd
Facts: P was an archaeologist who worked for D on three heritage sites
Dismissed following complaint of sexual harrassment
Issue: claimed his right to constitutional and natural justice had been breached in following respects
Alleged victim made a complaint and attended a doctor, but despite requesting them the complaint and doctor's report not given to P
P's representative was not given opportunity to make submissions on his behalf
The general manager, who made the decision to dismiss, was not impartial as there was history of aminosity between him and P
Held: HC agreed re shortcomings and found breach of fair procedures
GOOD CASE D= FULLY PRIVATE COMPANY WITH NO LINKS TO STATE
Right that is case sensitive
Context-sensitive nature of this right
Because right to fair procedures applies in such a wide varety of public and private tribunals and investigations, same suite of rights cannot be offered consistently in every forum
- PQ: identify which of the 'fair procedures' rights might be altered because of the context of the investigation
Mooney v An Post
- if contract of employment provides for procedures then ordinarily compliance with these procedures will suffice
Right to an independent judge
While this is an obvious necessity in context of a formal civil or criminal trial- what would pertain in e..g the disciplinary procedure for an employee of grocery store?
Seems principle of necessity, and context-sensitive nature of the right to fair procedures would take away requirement in grocery store facts
Kiely v Minister for Social Welfare
Facts: Applicant's husband had died 2 years after a work related accident
she claimed 'death benefit' on basis of work-related death
Appeals officer refused payments
: two doctors gave evidence before Appeals officer on behalf of the applicant
: that evidence was contradicted by a letter from a doctor on behalf of the Department of Social Welfare
Held: Should have been an oral hearing on he disputed evidence
Natural justice is not observed if scales of justice are titled against one side all through the proceedings
= NOTE- looking at proceedings as a whole
where essential facts are in controversy, a hearing which is required to be oral and confrontational for one side but which is allowed to be based on written, and therefore effectively unquestionable evidence on the other side has neither the semblance nor the substance of a fair hearing
It is contrary to natural justice
In general- tribunals exercising quasi-judicial functions are frequently allowed to act informally
to receive unsworn evidence
to act on hearsay
to depart from rules of evidence
to ignore courtroom procedures
BUT THEY MAY NOT ACT IN SUCH A WAY AS OT IMPERIL A FAIR HEARING OR A FAIR RESULT
requirement of natural justice must depend on the circumstances of the case, nature of the inquiry, the rules under which tribunal is acting
Mooney v An Post
Facts: Repeated concept that the requirements of fair procedures may vary from case to case
P worked as post man for 15 yyears
Dimissed for misconduct
: was acquitted at a criminal trial
: He didnt provide any explanation but wanted an independent tribunal
Held: SC- noted the precise requirements of fair procedures would depend on the circumstances of the case and a person's contract of employment
- At a minimum standard: was a right to be informed of the charge and to be given an opportunity to answer it and to make submissions
On facts- he had been afforded fair procedures- no entitlement not to engage and simply require respondent to prove its case
Flanagan v UCD
:
Facts: Flanagan submitted an essay which her lectures thought was plagiarized from a tape recording played in class
Summoned to appear before a committee of discipline and was allowed to be accompanied by her 'dean of residence' or an SU official
Registrar acted as prosecutor
Played the tape and expressed view it was plagiarized
Applicant made her case, bu when the committee retired, Registrar remained with them
-Committee decided to seek an independent and allowed Registrar to choose expert
Committed found against applicant
She then JR this decision
Held:Breach of fair procedures
Registrar should not have remained with committee
Registrar should have been involved in selecting expert
Seriousness of what was at steak required high level of fair procedures
Barrington J- Procedures which might afford a sufficient protection to he person concerned in one case, and so be acceptable, might not be acceptable in more serious case.
Shatter v Guerin
;
Facts: Facts: Sean Guerin SC appointed by Taoiseach to investigate allegations made by Garda Whistleblower Maurice McCabe
He was to undertake a scoping exercise to assess whether the matter required further investigation
He undertook a what C of A described as a 'Hurculean' task of documentary review
recommended that a full inquiry be established
Report made observations which were critical of Minister for Justice, Alan Shatter's handling of the complaints
Issue: Shatter argued that his right to a good name wasengaged and therefore fair procedures required he should have been interviewed prior to any adverse findings made against him
Defence: Nature of inquiry (as a preliminary scoping exercise) made it impossible to interview all people
Held: Agreed with that submission
BUT- If preliminary reprot when further and expressed opinions on a person's conduct then fair procedures required person to be heard
Noted: In preliminary inquiry great care needed in terms of expressing any opinion
Case heard in SC- Decision awaited