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THE SUPREME COURT Hardiman J. 256/04
McCracken J.
Laffoy J.
MICHAEL CURLEY
Appellant
and
THE GOVERNOR OF ARBOUR HILL PRISON
Respondent
JUDGMENT of Mr. Justice Hardiman delivered the 18th day of July, 2005.
The appellant in these proceedings is a prison officer at Arbour Hill prison. The Governor proposes to embark on hearings of certain allegations against the appellant under the Prison (Disciplinary Rules for Officers) Rules, 1996 (S.I. 289 of 1996). It was first indicated to the appellant that certain complaints had been made on the 9th September, 2002. On the 7th October, 2002, he was served with three Complaint Forms alleging activities in the nature of sexual harassment. It appears that the complaints were made to the Governor on the 27th and 28th August, 2002. Two of the complaints referred to incidents said to have occurred in the spring of 2002 while the third related to two specific alleged incidents which occurred years earlier (between 1994 and 1998) as well as other alleged incidents at unspecified but quite remote dates. A response from the appellant was sought and a number of extensions of time granted to him in order to respond. By letter dated the 15th November, 2002, the appellant’s solicitor denied the Governor’s jurisdiction to embark on disciplinary proceedings as, he said, certain time limits for the initiation of such proceedings had not been complied with. The appellant claims that these time limits are mandatory and their breach means that the disciplinary proceedings are “invalid”.
On the 2nd December, 2002, the Governor served notification of oral hearings into the said complaints which were scheduled for Monday the 16th December, 2002. The appellant then applied for leave to seek judicial review. He was granted such leave by order of Mr. Justice O’Neill on the 9th December, 2002. The reliefs he was granted leave to seek would restrain the continuation of the hearings into the various complaints. The substantive ground is that no complaint was made against the appellant within what he claims to be the applicable time limit. Therefore, he says, the respondent has no power under the Rules to enter into, consider or determine the allegations made against him, and has no power to conduct the hearings, so that any determination made by him would be ultra vires and void.
The appellant’s application for judicial review was refused in the High Court (Smyth J.) by order perfected the 4th day of May, 2004. The appellant appealed against this refusal.
Time limits.
It appears that both the Statutory Instrument called the Prison (Disciplinary Rules for Officers) Rules, 1996, and a linked “Memorandum of Understanding” have their origins in discussions which went on over a protracted period within the framework of the Conciliation and Arbitration Scheme for the Civil Service. This Scheme states that its purpose is to provide a means acceptable both to the State and to its employees for dealing with claims and proposals regarding the conditions of service of Civil Servants and to ensure the fullest co-operation for the better discharge of public business.
The scheme envisages the establishment of Department Councils. In May of 1996 the Department Council for the Department of Justice, consisting of an Assistant Secretary and various officials on the one hand and various staff representatives on the other, issued an “agreed report” within the meaning of the Scheme. By paragraph 5 of this report “it was agreed to recommend that a Code of Discipline including a Memorandum of Understanding be incorporated in an agreed report of the Departmental Council”.
It is these documents that contain the time limits upon which the appellant relies.
Rule 7 of the Rules provides as follows:“Preliminary Procedure.
(1) Where it appears that an officer may have committed a breach of discipline and the Governor, having considered any statement and any other relevant information, decides that there is a case to be answered, particulars of the breach shall be entered in a Complaint Form. A Complaint Form shall be in the form set out in the second schedule.
(2) An allegation against an officer of a breach of discipline shall be made to the Governor as soon as practicable, but not later than seven working days, after the coming to the notice of a relevant superior officer of the information which gave rise to the allegation.
(5) Each Complaint Form on which an alleged breach of discipline has been entered shall be given to the accused officer as soon as practicable.
The term “officer” means a Prison Officer up to the rank of Deputy Governor.
The Memorandum of Understanding, insofar as relevant, provides as follows:
“(4) Rule 7(2):
(a) Provides that an allegation shall be made to the Governor as soon as practicable but not later than seven working days after the coming to notice of a relevant superior officer of the information which gave rise to the allegation.
(b) It is agreed that an officer of whatever rank who has a complaint against another officer shall make that complaint as soon as practicable but not later than seven working days after the incident which has given rise to the complaint.
(c) Further, it is agreed that where an officer is the subject of a complaint the Governor should notify the officer of the complaint within 72 hours on receipt of that complaint.”
Contentions of the parties.
Rule 7(2) of the Disciplinary Rules introduced, apparently for the first time, a time limit for making allegations which might lead to disciplinary proceedings. The appellant submits that paragraph (4) of the Memorandum of Understanding binds the respondent and that the relevant time limits prescribed in the Disciplinary Rules, “as interpreted by the Memorandum of Understanding” are mandatory. On this basis he claims that the intended disciplinary proceedings against him are ultra vires.
The respondent says that the time limit contained in Rule 7(2) is of no relevance in the instant case because the complaints were not made through “a superior officer” but were made directly to the respondent as Governor of the prison. He says that the time limit in the Rules simply does not capture that situation: the time limited provided extends only to the situation in which the complaint is made by or through a superior officer, and is triggered by the subject matter of the complaint coming to the attention of that person. He strongly contends that the Rules are a Statutory Instrument made by the Minister for Justice pursuant to statutory powers and with the approval of the government. “Consequently, the terms of the Code cannot be treated as modified or amended” by the Memorandum of Understanding: that would require a statute or an amended Statutory Instrument. He concedes that “issues may arise in individual cases as to whether unwarranted and excessive delay in making [a complaint] should preclude its investigation” but says that there is no fixed time limit. He emphasises that neither the Memorandum of Understanding nor the agreed report of the Departmental Council characterised the Memorandum as an “interpretation” of the Statutory Instrument, which is how the appellant describes it.
The respondent contends that the Rules simply “makes no provision at all either for the making a complaint by a fellow officer or the notification to the accused officer of that allegation”.
Cases in point. Each side relies on a decision of the High Court as being directly in point. The appellant relies on the case of McLeod v. The Minister for Justice (High Court, unreported, Murphy J. 21st December, 2001), while the respondent relies on Tuohy v. Commissioner of An Garda Síochána (High Court, unreported, Carroll J. 13th December, 2002).
In McLeod, which was an extempore decision, Murphy J. held that:“The disciplinary code makes specific provision at Rule 7(2) for time limits, which provision is subject to a Memorandum of Understanding”.
He went on:“It is clear from Rule 7(2) that there is a requirement that an allegation must be made within seven days after notice has been given to the relevant superior officer. Thus, first there is the information, followed by the allegation. This may prove to be a difficult provision to construe as to when the information must be given to the superior officer. Fortunately we have the benefit of the Memorandum of Understanding agreed under the aegis of the Conciliation and Arbitration scheme. It is unnecessary for me to comment on the binding nature of that Memorandum save to observe that it contains at least a contractual element and probably goes further than that. Paragraph 4(b) of the Memorandum of Understanding extends Rule 7(2) of the Disciplinary Rules as follows:
‘It is agreed that an officer of whatever rank who has a complaint against another officer shall make that complaint as soon as practicable but not later than seven working days [after the incident which has given rise to the complaint]’.”
(Emphasis added)
In McLeod, the appellant succeeded on this point, even though the complaint seems to have been only a few days out of time. The appellant relies strongly on this case, pointing out that it related to the same Rules and the same Memorandum of Understanding as are in issue here, and indeed to allegations of the same type as well. The respondent contends that the decision in McLeod is simply mistaken.
In Tuohy, a guard who held a representative office in the Garda Representative Association claimed that disciplinary proceedings had been wrongly instituted against him, relying on a Memorandum of Understanding which provided that such proceedings should not be instituted against a person holding such office without the consent of the Minister. This agreement was not reflected in the subsequently adopted Garda Síochána (Discipline) Regulations, 1989 (S.I. 94 of 1989). Carroll J. held:“In my view the provisions of the statutory instrument cannot be affected by any prior memo of agreement. The Regulations are complete in themselves and cannot be amended except in accordance with statutory provisions. Therefore in my opinion the Memorandum of Understanding has no legal standing vis-à-vis the Regulations. The discretion given to the appointing officer and to the Commissioner to continue disciplinary proceedings and hold an inquiry are unfettered discretions.”
The appellant seeks to distinguish Tuohy on a number of grounds. Firstly, an interval of two years had elapsed between the Memorandum and the Regulations. Secondly, the Memorandum in Tuohy contained a recital to the effect that “… the Memorandum is intended to be informal rather than legalistic in tone…”. Thirdly, the Memorandum here was adopted “…in the context of and simultaneously with the other provisions of the Disciplinary Rules ultimately promulgated in the Disciplinary Rules. It does not purport to amend the Statutory Instrument, but to operate as an agreed guide to its interpretation…”.
Rule 7(2) of S.I. 289 of 1996.
S.I. 289 of 1996 is a Statutory Instrument made in the exercise of powers conferred by s.12 of the General Prison Ireland Act, 1877, as adapted by the General Prisons Board (Transfer of Functions) Order 1928, and with the approval of the government. That is its legal status. The affidavits sworn in this case and the documents exhibited provide further historical detail as to its origins. Notably, it transpires that the terms of the Regulations themselves were agreed between representatives of the Department of Justice and of the prison staff, and that agreement was expressed in an agreed report issued under the aegis of the Conciliation and Arbitration Scheme for the Civil Service. This additional information does not appear to me to change the legal nature of the Statutory Instrument or to alter the established legal mode of construing it. As a matter of law, the Minister for Justice could have made the Regulations without consulting any person other than the government.
Turning to Rule 7(2), it is clear that this rule lays down a time limit within which certain complaints must be made. But the rule assumes that a complaint about a prison officer will be made by a “relevant superior officer”. Having regard to the definition in the Instrument, this can only mean an officer who is superior in rank to the officer in respect of whom the complaint is made but is himself or herself of a grade not higher than Deputy Governor. In other words, the rule simply does not envisage the situation in which a prison officer makes a complaint about another officer of equal rank direct to the Governor. Having regard to what one knows about the history of the Instrument it would appear that neither the department side nor the staff side desired that the Rules should expressly envisage this possibility.
It also appears clear that the time limit in the rule is triggered only when the relevant information comes to the attention of a superior officer. Specifically, it is not triggered by the mere occurrence of the event which forms the basis of the complaint alone. This, indeed, is the point of contrast between it and the provision of the Memorandum of Understanding which will be considered below.
I have carefully considered whether Rule 7(2) might be read in a disjunctive manner. Thus read, it would contain a general provision that any complaint against an officer must be made to the Governor as soon as practicable. The balance of the sub-rule might then be read as limiting a period of seven working days for the communication to the Governor of a complaint which was made through a superior officer. I have come to the conclusion that this is not an admissible way to construe the sub-rule. The disjunctive construction would be more tenable if the second comma in the sub-rule were omitted. As it is, however, I believe the effect of the two commas is the same as that of a parenthesis so that the principle thrust of the section is that a complaint is to be made to the Governor as soon as practicable after the coming to the notice of a relevant superior officer of the information which gives rise to the allegation. The effect of the parenthesis is to limit the period within which the making of the complaint might be regarded as having taken place “as soon as practicable” to a period not to exceed seven working days after the same event.
The Memorandum of Understanding.
The rival contentions of the parties as to the status of this document and its effect if any on the meaning or construction of Rule 7(2) have been summarised above. Some additional considerations appear to me to be relevant.
By s.17 of the Civil Service Regulation Act, 1956, the Executive, in the person of the Minister for Finance, are declared to be responsible for the regulation and control of the Civil Service and the fixing of terms and conditions for the Civil Service, of which of course the Prison Service forms part. Subsection (2) of the same section allows the Minister, for the purposes of subsection (1), to “make such arrangements as he thinks fit” and to cancel or vary such arrangements. Whatever may be the scope of the power thus conferred, there has been no evidence in the present case that the agreed report or the Memorandum has been transmuted into such an “arrangement” by the Minister for Finance.
Paragraph 46 of the Conciliation and Arbitration Scheme specifically provides that:“It will not be within the competence of the Council to make binding agreements but the Council may make agreed recommendations or may, at the request of either side, record disagreement. Paragraph 2 of the amended Conciliation and Arbitration Scheme specifically provides that its existence does not imply that the Government has surrendered or can surrender its liberty of action in the exercise of its constitutional authority and the discharge of responsibilities in the public interest”.
Against that background, I can find nothing to support the proposition that the Statutory Instrument “is subject to” the Memorandum or that the latter “extends” Rule 7(2) of the Statutory Instrument. The phrases, it would be remembered, are those of Murphy J. in his extempore judgment in McLeod, cited above. It is fair to say that, between the two phrases quoted the learned judge observes that “It is unnecessary for me to comment on the binding nature of that Memorandum save to observe that it contains at least a contractual element and probably goes further than that”. It is not necessary, for the purpose of this judgment, to address the question of whether the Memorandum has a contractual effect either between the Minister and prison officers generally, or between one prison officer and another. It is sufficient to say that if it is thought to have such effect, that is a matter which might, if the appellant is so advised, be raised before the respondent at an oral hearing but cannot possibly be said to deprive the respondent of the jurisdiction clearly vested in him by the Statutory Instrument. It is a matter of defence; not one going to jurisdiction for the reasons discussed below.
I can well understand how infelicities and omissions in the Instrument led Murphy J. to observe of Rule 7(2) that “This may prove to be a difficult provision to construe as to when the information must be given to the superior officer”. Indeed, the Instrument is completely silent on that important topic. I believe, however, that the reason for this (as already suggested in this judgment) is that neither side wished to contemplate, by making express provision for, a complaint by one prison officer against another of equal rank. The Memorandum of Understanding, whatever its legal status may be, certainly demonstrates that the prospect of such a complaint was present to their minds: it is specifically addressed in paragraph 4(b) thereof. It is not relevant to the issue before the Court to speculate as to why this sort of complaint was not contemplated by the Statutory Instrument. We can merely observe that an officer of equal rank is clearly entitled to make a complaint. Once made, the Governor is, ceteris paribus, obliged to deal with it. There is no specific time limit for the making of such complaint in the Rules. It follows from the foregoing that I would respectfully follow the judgment of Carroll J. in Tuohy rather than that of Murphy J. in McLeod. It appears that the latter case assumes without demonstrating a legally cognisable relationship between the Instrument and the Memorandum of Understanding. There is, in my opinion, no warrant whatever for regarding the Instrument or any part thereof as being “subject to” the Memorandum of Understanding. This is not a question of construction but a matter of principle. The Instrument (whatever its antecedents in industrial relations negotiations may have been) is on the face of it a legitimate piece of delegated legislation, an exercise of the power first conferred on the General Prison Board by the Act of 1877 and devolved on to the Minister for Justice when that Board was abolished in 1928. In my view, no document which is not of a legislative nature can be regarded as in any way affecting the provisions of such an Instrument. It is of high importance that a lay person be able to distinguish readily between documents having the force of law and all others. The view advanced by the appellant would make it difficult to do this with certainty.
Other arguments.
The appellant has advanced certain other arguments, not raised in the High Court. The most striking of these is a submission that the Memorandum of Understanding should be regarded as a prison rule, on the basis that neither the Act of 1877 nor the transfer of Functions Order of 1928 require the Rules for the government of prisons to be made by Statutory Instrument.
The fact that a rule made under the power conferred by s.12 of the Act of 1877 does not have to be made by Statutory Instrument by no means carries the corollary that the Memorandum of Understanding is such a rule. On the contrary, in its own terms the Memorandum:“… sets out matters that have been the subject of discussion between the Department of Justice and the Prison Officers Association under the Conciliation and Arbitration Scheme”.
Moreover, the power to make rules is to be exercised with the approval of the government and there is no suggestion that the Memorandum has received such approval. Instead, the appellant contends that because the respondent has not asserted that the Memorandum was rejected by the Minister or that it was not ratified with the approval of the government “… that the onus shifts to the respondent to adduce evidence to demonstrate that the Memorandum of Understanding is not a rule for the regulation of prisons made by the Minister for Justice”.
This extraordinary submission seems to me to ignore the basic proposition that the appellant was the party who carried the onus of proof. Moreover, he did not make this submission in the High Court but it was suggested by the ingenuity of counsel thereafter. There is no foundation for it in the pleadings and it does not follow from any established fact by inference or presumption. There is no evidential basis on which the Court could conclude that the Memorandum of Understanding constitutes a rule made under the delegated power originally created by the Act of 1877.
The appellant has also sought to rely on the proposition that he is entitled, as a legitimate expectation, to assume that the complaints against him will be dealt with in a manner consistent with the Memorandum of Understanding. I forebear to make any substantive comment on the elaborate arguments newly addressed on this topic, because it does not seem to me that on any view of them they could operate to deprive the Governor of jurisdiction. The Governor has already conceded that “issues may arise in individual cases as to whether unwarranted and excessive delay in making [a complaint] should preclude its investigation”. It will be for the appellant, having taken such advice as he thinks proper, to decide whether to raise such an issue before the respondent, if the hearings are permitted to continue.
A matter of defence.
In other areas of the law a contention by a defendant or a respondent that the plaintiff or complainant’s case against him is out of time is a matter of defence, and not one going to jurisdiction. A defence under the Statute of Limitations must be pleaded by a defendant. In summary prosecutions it has long been held that a failure to demonstrate compliance with the general six month time limit for the institution of a prosecution is a matter for the defence to raise, but if successfully raised entitles the defendant to a dismiss. The reason for this is of some interest.
Before the Courts Act of 1986, the Petty Sessions (Ireland) Act, 1851, s.10(4), governed the summary jurisdiction. This provided that “In all cases of summary jurisdiction the complaint shall be made… within six months from the time when the cause of complaint shall have arisen, but not otherwise”.
In Minister for Agriculture v. Norgro Ltd. [1980] I.R. 155, the summons gave no indication of the date on which the complaint was made. This point having been taken at the start of proceedings, the learned District Justice was of the opinion that it deprived him of jurisdiction. He stated a case for the opinion of the High Court on the topic, having been asked to do so by the prosecution. Finlay P. (as he then was) held at page 157:“It is clear that this particular complaint was a complaint coming within the provisions of paragraph 4 of s.10 of the Act of 1851 and that, if the complaint was not made and the summons was not issued within six months of the date of the alleged complaint, that fact would afford a good defence to the defendants. However, the issue which arises on the case stated as a matter of law is whether that is a matter of defence to be raised by the defendants and determined by the District Justice upon evidence (as the complainant contends) or whether it goes to the route of the jurisdiction of the District Court to enter upon a hearing of the complaint. I am satisfied that the contention of the complainant is correct and that the time limit arising under the Act of 1851 is a matter of defence for the defendants and does not go to the jurisdiction of the District Court to entertain the summons”.
Finlay P. found guidance in two earlier Irish cases. The first, State (Hempenstall) v. Shannon [1936] I.R. 326) contains a statement in the judgment of Mr. Justice Hanna:-“The question whether an offence is committed within time is a portion of the evidence which must be given by the State following a plea of not guilty. It is a matter of defence, not going to jurisdiction, in the strict sense of that term”.
This was approved the following year in A.G. v. Conlon [1937] I.R. 762. There, a divisional court of the High Court (Maguire P., Hanna J. and O’Byrne J.,) approved the statement just quoted and held that the question of compliance with the time limit was, in the words of O’Byrne J. “… a mere matter of defence to be taken into account by the District Justice in determining the charge”.
A consequence of these findings, of course, was that if the complainant could not prove that he had complied with the time limit, the defendant would be entitled to a dismiss. But if the matter was simply the subject of a finding of no jurisdiction it would be open to the complainant to come again assuming that, having been alerted to the difficulty, he could prove on the second occasion that he had complied with the time limit.
In principle, an Act or Instrument might be so worded as to make jurisdiction dependent on a complaint being made within time. I do not think that the present regulation does this and I believe that the point is a matter of defence. Although I have held that there is no specified time limit for the making of such complaints to the Governor, it has not been denied that an accused officer is entitled to complain of inordinate delay in the making of the complaint: “Issues may arise in individual cases as to whether unwarranted and excessive delay in making [the complaint] should preclude its investigation”. Moreover, as also noted above, he may wish to claim that there is a contractual element to the Memorandum (as Murphy J. thought) as between him and his fellow prison officers. If that were so, it would clearly be a matter which would have to influence the Governor in dealing with the submission based on delay. This may or may not, depending on the factual and legal position ascertained before the Governor, be a powerful point of defence: but it cannot in my view affect the jurisdiction to conduct an oral hearing into the complaints which have been made.
Conclusion.
I would dismiss the appeal and affirm the order of the learned trial Judge.
Michael Curley & The Governor of Arbour Hill Prison
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