Locations
Kelly v Commissioner of An Garda Siochana[1]
Decisions without reasons are certainly not justice: indeed they are scarcely decisions at all”[2]
Before considering the implication of the recent Supreme Court decision of Kelly v Commissioner of An Garda Siochana[3] it is relevant to briefly consider the case in the context of the jurisprudence that has developed on this issue in recent years.
Historically there was no duty on administrative bodies, unless specifically provided for by statute, to give reasons for their decisions. The position has evolved over the past number of decades to the point where there is now a general obligation on administrative bodies and tribunals to provide reasons for their decisions, even where the statutory framework in which they operate does not explicitly require them to do so.
This evolution in the law is explained by Fennelly J in the case of Mallak v Minister for Justice, Equality and Law Reform[4] where he summarised the position as follows:
“In the present state of evolution of our law, it is not easy to conceive of a decision-maker being dispensed from giving an explanation either of the decision or of the decision-making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.”[5]
The Mallak decision makes it clear therefore that the duty to give reasons does not exist in isolation, but must be considered in conjunction with an understanding of the overall objective of attaining fairness in the procedure as whole.
In Kelly v Commissioner of An Garda Siochana Garda Kelly had been dismissed from An Garda Siochana on foot of 6 allegations of misconduct, in particular that he had included falsehoods in written statements concerning an after-hours inspection of a licensed premises in county Leitrim. Following a 5 day hearing before a board of inquiry it was recommended in summary terms to the Garda Commissioner that Garda Kelly be dismissed. That decision was appealed to an appeals board, which appeal was dismissed without a hearing on the basis that the grounds of appeal advanced were without substance or foundation.
Both decisions were then the subject of judicial review proceedings in which Garda Kelly claimed inter alia that there had been a failure on the part of both bodies to give reasons for their decision. In the High Court Hedigan J held that neither the board of inquiry, nor the appeal board were required to give discursive reasons for their decisions, as the grounds of appeal were patently insubstantial and unfounded. Hedigan J stressed that a case of this nature differed from a case involving citizenship or planning where a party needs to know the precise reasons for refusal of an application. The Court further held that the case involved a straightforward dispute which was capable of resolution by the board. Hedigan J concluded as follows:
“It is a straight factual dispute and it was resolved by the assessment of evidence by the Board. It is not possible to accept that he was not fully aware of the reasons why the Board came to the conclusions that it did. No discursive reasoning was required.”[6]
Garda Kelly appealed the refusal of his application to the Supreme Court. In the Supreme Court O’Donnell J endorsed Mallak, but noted that unlike Mallak the decision at issue was not concerned with the conferral of a privilege and was subject to a formal appeal. Therefore the conclusions reached in Mallak were deemed to apply with even greater force to the Garda disciplinary regulations.
At page 22 of his judgment O’ Donnell J held that:
“It is difficult to see how a mere record of the fact of breach of discipline itself demonstrates that all relevant facts have been ascertained and considered in a reasonable manner. If it is proper to consider the manner in which facts were ascertained and considered and in particular the reasonableness of the consideration, it follows that the Appeal Board must have some method, most obviously in a narrative and reasoned decision, to determine what facts have been ascertained, how they have been considered, and whether indeed such consideration is reasonable. Again, in my view it is at least arguable that a consideration of whether a disciplinary action is disproportionate to the breach of discipline concerned suggests an analysis of something more than the factual conclusion of breach, and implies an assessment of the precise nature and character of the breach found, something that cannot be carried out from a statement of the fact of contravention alone”.[7]
The Court therefore concluded that:
“In my view, therefore, a proper interpretation of the Regulations requires that reasons be given for any determination made by the Board of Inquiry unless it can be said that the issue is so self-evident and narrow that the mere fact of the decision discloses the reason. That cannot be said to be the case here.” [8]
The philosophy underpinning this decision is that any person wishing to appeal or seek judicial review of an administrative decision must be entitled to know the reasons for the decision, otherwise the appeal body or Court which is called upon to scrutinise the earlier decision will be unable to discharge its function properly. In judicial review proceedings that function is to review the means by which the decision was reached rather than substitute or affirm the original decision on the merits. In this regard it is notable that at page 23 of his judgment O’Donnell J held that he was not prepared to assume - as the High Court would appear to have done - that if the reasons for decision were known that Garda Kelly’s appeal was necessarily doomed to fail in any event. In other words it is not possible to say what the outcome of the appeal would have been if the reasons for the original decision were not known.
The Supreme Court judgment in Kelly v Commissioner of An Garda Siochána confirms that it will generally be remiss of any decision making body to fail to provide appropriately detailed reasons for its decisions. In addition it is not sufficient for a body to simply provide a generic reasoning, set out in a form or otherwise. The reasons provided must assist the individual or body who is the subject of the decision in understanding the basis for the decision. It is clear from the decision that failure to adhere to the obligation to give reasons will expose the decision maker to judicial review proceedings.
The Kelly decision seems to echo the earlier High Court decision of Hogan J in Flynn v Medical Council[9]. In that case Hogan J. considered a decision made by the Preliminary Proceedings Committee of the Medical Council. The Court held that there was no obligation on the Committee to provide a discursive judgment and indicated, citing Murray CJ in Meadows v The Minister for Justice[10] with approval, “….that the essential rationale of the decision should be evident-or, at least capable of “being inferred from its terms and its context”. Hogan J. also referred to reasons of a “laconic” or “generic” nature as not being sufficient to satisfy the requirements in Meadows[11].
As far as regulators are concerned the judgment in Kelly v Commissioner of An Garda Siochána makes it clear that the Courts expect decision makers to provide reasons for all determinations unless the decision is so narrow that the reason is self-evident. Crucially the Kelly decision reiterates that the Courts expect decision makers to go beyond providing standard reasons for their decisions. Regulators may take some comfort, however, in the fact that in the Kelly decision O’Donnell J chose not to quash the decision to dismiss Garda Kelly as the Court felt that it would be wasteful and unhelpful to order that a new hearing take place. Instead O’Donnell J ordered that the board of inquiry provide its reasons and that the process be permitted to resume from that point onward. This decision may mark a new judicial attitude to the question of what relief is appropriate where certiorari is granted and represents a welcome recognition of the need to avoid unnecessary waste of resources.