Fair Procedures
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unenumerated right
aspect of 40.3 - personal rights
*Re Haughey* Oireachtas committee investigation, if chairman certified witness failed to answer than sentenced by HC for contempt of court - 6 months in jail - SC unconstitutional - for non-minor penalty required trial by jury
Garvey v Ireland complaints about commissioner, given 2 hours to resign, dismissed when refused - breach of fair procedures - no prior notice no notice given
case sensitive (context)
Kiely v Minister for Social Welfare husband died in work incident, widow tried to claim death benefit, one side gave oral evidence the other written - breached fair procedures unable to contest evidence
Mooney v An Post An Post worker dismissed for misconduct, he was informed of charge and given chance to respond - no right to oral hearing by independent decision maker
Flanagan v UCD allegation of plagiarising, committee hearing, the prosecutor was the Registrar who also went with committee when making decision - held breached fair procedures - seriousness of situation required high level of fair procedures
Shatter v Guerin investigation of Garda Whistleblowing,made an initial report, Shatter never interviewed but report made critcisims of him - held at preliminary stage don't have to interview everyone but can't express opinion on persons conduct without hearing from them
horizontal application
Gunn v Bord an Cholaiste right operates horiznotally against private, non-state entities
Gallagher v Revenue Commissioners fired for deliberately under valuing cars, never given chance to question accuser, - held entitled to fair procedures - given consequences and seriousness of issue - lack of cross-examination breached a right
Cassidy v Shannon Castle Banquets dismissed after complaint of sexual harassment, procedures flawed (not able to see doctors report, not given opportunity to make a submission, history of animosity between manager and plaintiff who was dismissed
important aspects
Audi Alterem Partem
hear the other side
given advance notice, opportunity to cross-examine
Nemo ludex in Sua Causa
no man judge in own cause
Rights - audi alterem partem
advance notice
Garvey v Ireland removal of Garda Commissioner, told to resign or be removed, refused to resigned so was removed - SC - no fair procedures followed - failed to give proper notice, no reasons, no opportunity to make representations
Delway Investments v NAMA read fair proceudres into act act (otherwise unconstitutional) - entitled to prior notice
right to be heard
Cassidy v Castle Shannon Banquet no opportunity to make submission
right to provide documentation
Cassidy v Shannon Banquet non disclosure of medical report breached fair procedures
Tierney v An Post failure to give evidence access to evidence breaches fair procedures
P v Minister for Justice naturalisation application refused due to national security considerations - court recognised can be restricted - should be done by minimum extent necessary
right to cross-examine
Gallagher v Revenue Commissioner clear conflict in vidence meant cross examination necessary
A Worker v A hospital restriction justified, sexual abuse of patient in fragile mental state, could only be doen by trained people
Borges v Fitness professional complaint about doctor, witnesses refused to come to Ireland, right to accused to cross-examine
duty to give reasons
Judge decision
administrative decision
O'Mahony v Judge Ballagh don't need to give extensive judgment, sufficient if provide some reasons
Kenny v Coughlan guidelines on when reasons necessary
make it clear what arguments you rejected or accepted
give reasons for rejecting or accepting arguments
take into account the context and remedies available
if case straighforward may just have to accept or reject evidence
S v Minister for Justice and Equality sufficient if address every point raised by appellant
Meadows v Minister for Justice applied for asylum due to risk of genital mutilation, minister refused to give reasons - held decision effecting rights and obligations should at least disclose essential rational
Mallak refused citizenship, held -n eed to know reason for rejection
McEnery garda dismissed for assaulting officer, commissioner required to consider submissions before making final decision
Connelly v An Bord Pleanala duty to give reasons depends on case such as subject of decision, stage and any statutory framework. purpose is to allow person to understand whether worth it to make an appeal - reasons don't all have to be in final document
right to representation
Flanagan v UCD should have been informed had a right to representation considering seriousness of allegations
McKelvey v Iarnrod Eireann allegation of company fraud and theft by using company credit card, rightfully refused legal representation only required in exceptional cases
stage of proceedings is relavent
Rowland v An Post sought to stop hearing as would breach fair procedures, court held - too early in process to know, presume fair procedures will be followed - don't intervene before gone irredemable wrong
want to avoid bias
actual bias
objective bias
court or tribunal favours one of the parties
no bias required but due to proximity a resonable man might perceive bias
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O'Donoghue v Vetinary Council test is - lack of impartiality and coming to to case with prior knowledge
Bula v Tara Mines prior to being a judge, acted for one of the parties in proceedings between two parties - held pre-existing legal relationship by itself not sufficient - need extra factors - consider how long relationship for, how recent and if issue still alive
Keegan v District Judge look at lenght of relationship, acted for them 7 times, was sufficient - objectively - prior knowledge of client
West Donegal Land League important to object at the time
Dublin Wellwoman Centre v Ireland would a reasonable person perceive bias
Kelly v Minister for Agriculture decision to dismiss harbour master after complaints, had to be done by executive, was done, one of the ministers who took part in decision making was a complainer - breached fair procedures
Shatter v Guerin right to be heard in preliminary inquiry if commenting on him
Haughey