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Sheriff v. Corrigan [1998] IEHC 135 (31st July, 1998)

THE HIGH COURT

JUDICIAL REVIEW

1997 No. 42 J.R.

BETWEEN

ANTHONY SHERIFF

APPLICANT

AND

MARTIN CORRIGAN, THE GOVERNOR OF SHELTON ABBEY,

THE MINISTER FOR JUSTICE, IRELAND AND

THE ATTORNEY GENERAL

RESPONDENTS

Judgment delivered the 31st day of July, 1998 by Carney J.

1. The catalyst to this particular justiciable controversy is a claim for expenses by someone other than the Applicant in the sum of £5.96.

2. The Applicant has been a prison officer for twenty-three and a half years since the 7th July, 1973 employed variously at Mountjoy Prison, Cork Prison, Portlaoise Prison and Shelton Abbey. In May 1985 he was promoted from the rank of prison officer to that of Assistant Chief Officer and was stationed at Shelton Abbey Prison as Assistant Chief Officer since December 1990.

3. On or about the 9th day of June, 1994 prison officer Seamus Roche, submitted to the Applicant a subsistence form for payment of duty expenses in the sum of £5.94 and the Applicant certified the dates and times thereon as being correct. Later that evening Assistant Governor Whelan came to the Applicant with the said form and said that Clerk 1 Breen (hereinafter referred to as C1 Breen) was querying the details set out therein. Assistant Governor Whelan was given a comprehensive explanation of the contents of the form by the Applicant and he concurred in the same and on June 10th, 1994 C1 Breen paid the subsistence amount due to Officer Roche.

4. On the 4th day of July, 1991, C1 Breen wrote to Assistant Governor Whelan and queried the subsistence which was paid to Officer Seamus Roche, the payment of which had already been approved by Assistant Governor Whelan and in fact paid out by C1 Breen. On the 27th day of July, 1994 the Applicant replied to Assistant Governor Whelan's communication in the following terms:-

" Shelton Abbey

Arklow

27th July '94

The Governor,

In answer to Scab Breen's report, I am at a loss to understand a number of very important points.

1. Is the Scab Breen implying that Officer S. Roche or myself were attempting to defraud the Minister for Justice or the State by deception.

2. Why did the Scab Breen pay the money to Officer S. Roche on the 10/6/94 if the subsistence form was not correct.

3. Why did it take the Scab Breen from the 10/6/94 until the 4/7/94 to question same.

My action on the date in question will stand up to any independent investigation. The Fraud Squad will not be necessary on this occasion.

Finally, I must point out for the benefit of the Scab Breen the proper spelling of my name is as follows: SHERIFF.

Anthony Sheriff

10676

Assistant Chief Governor

27th July '94."

5. In response the Applicant received an undated letter from Assistant Governor Whelan in the following terms:-

"A.C.O. Sheriff

Please explain why on the 27th July, 1994 when you replied to an official query from C1 Breen you referred to him as the Scab Breen.

Your reply should be returned within seven days of receipt of this document, if you are unable to reply within this time you may apply for an extension of time stating the reasons for your request.

C. Whelan

A/Gov."

6. The Applicant replied in the following terms:-

" Shelton Abbey

Arklow

14th August ' 94

The Governor,

In answer to your official query which I received from Chief Officer O'Reilly, the answer is simple.

In April 1988 there was a dispute between the Department of Justice and the Prison Officers Association which I am proud to be a member. An official strike followed and Breen passed an official picket, a fact that cannot be disguised for the remainder of his life and he now must live with the rough stigma that is attached to the word 'scab'.

7. As an English speaking nation the word 'scab' is part of our vocabulary and I as a member of this nation am entitled to use the word 'scab' where appropriate.

8. Governor I must now refer you to the 'Oxford Advanced Learners Dictionary of Current English' where the meaning of the word 'scab' will more than satisfy your official query.

9. Anthony Sheriff

10676

10. Assistant Chief Officer

14/8/94."

11. I divert here for a moment to say that use of the word "scab" has once been considered in Irish case law. In E.I. Co. Limited -v- Kennedy & Ors. , (1968) Irish Reports page 69, Walsh J. said at page 91:-

"The use of words such as 'scab' or 'blacklag' are historically so associated with social ostracism and physical violence as to be far beyond anything which might be described as mere rudeness or impoliteness and go beyond what is permitted by law."

12. The word was also considered in cases arising from the coal miners strike in the United Kingdom but I do not think those cases should be taken account of in relation to this litigation.

13. On the 1st September, 1994 Assistant Governor Whelan wrote to the Applicant as follows:-

" Shelton Abbey

Arklow

1/9/94

ACO Sheriff,

You are charged that on the 27th day of July, 1994 when replying to an official query from C1 Breen you showed total disrespect for him and the rank of Clerk 1 by referring to him as the Scab Breen.

You are requested to reply to the charge. Your reply should be returned within seven days of receipt of this document, if you are unable to reply within this time you may apply for an extension of time stating the reasons for your request.

Attached please find all documents relating to the charge.

C. Whelan

A/Gov.

1/9/94."

14. The Applicant endorsed on the said letter the following request:-

"Please state under what rule of the Statutory Rules and Orders 1947 No. 320 Government of Prisons, do you intend charging me with.

Anthony Sheriff

10676

Assistant Chief Officer."

15. On the 9th November, 1994 Assistant Governor Whelan wrote to the Applicant in the following terms:-

"ACO Sheriff,

You are charged under Rule 99 Statutory Rules and Orders 1947 No. 320.

C. Whelan

A/Gov.

9/11/94"

16. The Applicant replied:-

"Assistant Governor Whelan,

In answer to the above I must state without reservation that your ability to deal with this case in an impartial manner has been less than pathetic. I must now request all original documents relevant to this case for my legal adviser.

Anthony Sheriff

10676

Assistant Chief Officer

19/11/94."

17. The Applicant was then written to by letter dated the 20th February, 1995 which he received on the 15th March, 1995 in the following terms:-

" Department Justice

72-76 St. Stephen's Green,

Dublin 2.

1. Governor, to see please.

2. ACO A. Sheriff, Shelton Abbey.

I am to refer to the queries put to you by Assistant Governor Whelan and your responses to them.

In your responses to the queries from the Assistant Governor you have shown gross insubordination and insolence. This kind of behaviour is intolerable in an officer of rank and it is proposed to recommend to the Minister that you be down-graded. In this context, I am hereby affording you a period of fourteen days in which you may put forward anything you may wish to say on your own behalf that could be taken into account by the Minister in arriving at a final decision.

P. Memery

Prisons Personnel Section

20th February 1995."

18. The Applicant responded:-

" Shelton Abbey

Arklow

Co. Wicklow.

23/3/95

The Governor,

For the attention of Mr. Paul Memery, Department of Justice.

Sir,

I acknowledge your letter dated 20th February, 1995 which I received from Assistant Governor Houlihan on the 15th March '95. I wish to apply for an extension of fourteen days.

For granting the above request I shall be most grateful.

Anthony Sheriff

10676

Assistant Chief Officer."

19. Assistant Governor Houlihan replied as follows:-

" Shelton Abbey

Arklow

29th March '95

ACO Sheriff,

Re: Request for Extension of Time

Your request for fourteen days extension of time to appeal Re. letter issued to you on 15th March '95 has been granted from today, 29th March '95.

M. Houlihan

A/G."

20. By letter dated the 7th April, 1995 the Applicant wrote to the Governor of Shelton Abbey requesting clarification of various matters. In reply he was told by Assistant Governor Houlihan:-

"Should you have any queries such as the one dated 7th April, 1995 and received by me on the 17th April, 1995, I suggest you attach them to your reply to the document issued to you on 15th March, 1995 and I will transmit them to the Department of Justice for their observations. Your reply to the original document should be returned within seven days of receipt of this document, if you are unable to apply within this time you may apply for an extension of time stating your reasons for your request."

21. The Applicant by letter dated the 20th April, 1995 to the Governor indicated that he was unable to reply to the original minute issued to him pending the clarifications of matters which he had previously requested on the 7th April, 1995. He then received the clarifications sought on the 27th June, 1996 from A. Gardner of the Prisons Section and he was told he was being given a final opportunity to say on his behalf what could be taken account of by the Minister in arriving at a decision on the charge. He was given fourteen days within which to reply.

22. Solicitors then wrote to the Minister on his behalf and asked for an extension of time which they were given. They were given further clarifications and an extension of time by letter dated the 21st August, 1996 from John Lohan of Prisons Personnel. By letter dated 29th August, 1996, two years into the enquiry, the Applicant's Solicitors wrote a letter of apology. Had this action been taken two years earlier, I have no doubt this long saga would have been avoided.

23. By letter dated the 15th October, 1996 the Applicant was informed that the Minister had decided to transfer him from Shelton Abbey to Wheatfield Place of Detention with effect from Saturday, 25th October, 1996. This decision was very shortly resiled from on foot of representations by the Applicant with regard to the effect it would have on his family circumstances. It is complained in these proceedings that the Applicant's appeal was from the Minister to the Minister. It is to be noted that in this regard the Applicant's appeal was successful in part. I would accept that the reality of the situation was that the Minister made a preliminary determination which was later confirmed in part and resiled from in part by reason of compassionate considerations.

24. By letter of the same date, 15th October, 1996, the Applicant was notified that the Minister had decided to down-grade him to the rank of prison officer as a disciplinary penalty. He was given a period of fourteen days to make representations against that decision.

25. By letter dated the 18th December, 1996 the Applicant's Solicitors were written to by T. Maguire of Prisons Personnel in the following terms:-

"I refer to your letter of 31st October, 1996 appealing the decision of the Minister for Justice in the case of Mr. Anthony Sheriff, Assistant Chief Officer, Shelton Abbey.

The Minister has now considered the appeal. She has decided in view of the seriousness of the matter, that she cannot agree to reverse a decision to down-grade Mr. Sheriff to the rank of prison officer. His down-grading must, therefore take effect from the 17th December, 1996.

In regard to the decision to transfer Mr. Sheriff out of Shelton Abbey in the interests of the prison service the Minister has agreed to reverse her decision in the light of the humanitarian factors outlined."

26. The Applicant says that the procedures adopted in regard to the investigation of the allegations and the conduct and manner in which the recommendations and decisions were arrived at were inadequate and unfair in that:-

(a) He was never informed prior to the decision of the First named Respondent of a charge being made against him of insubordination and insolence.

(b) Prior to the correspondence referred to he was not informed of the evidence against him or given an opportunity to meet the said evidence.

(d) No suitable or proper hearing took place into the allegations and in particular no oral hearing took place to resolve the questions of fact pertinent to the issues.

(e) At no stage during the investigation of the allegations against him was he given an opportunity to be suitably and properly represented in meeting the allegations against him nor given an opportunity to obtain legal representations or representations by his trade union prior to the decisions and recommendations being made.

27. My own view is that the Minister could not possibly maintain in a position of rank a person who had a propensity in official correspondence to describe a colleague member of rank as a scab. As an apology took two years to generate itself, the incident could not be described as a temporary loss of control due to an off-day or some such other reason. It is however well-settled law that my opinion is irrelevant. I am not concerned with the decision but the decision-making process. What is required in relation to the decision making process was set out by Henchy J. in The State (Gleeson) -v- Minister for Defence, 1976 I.R. page 280 which concerned the dismissal of a soldier. In that particular case on its facts it was held that the discharge of the solider was invalid because it had been made in breach of the principles of natural justice. At page 296 Henchy J. said:-

"In my opinion the law applicable to a case such as this is clear and well-established. The requirements of natural justice imposed an inescapable duty on the army authorities, before discharging the prosecutor from the army for the misconduct relied on, to give him due notice of the intention to discharge him for the statutory reason for the proposed discharge, and of the essential facts and findings alleged to constitute the reason; and to give him a reasonable opportunity of presenting his response to that notice."

28. In my opinion the extensive recital of the correspondence in this case indicates that those requirements have all been complied with.

29. Insofar as the claim for an oral hearing is concerned, it is clear from Galvin -v- The Chief Appeals Officer , unreported decision of 27th June, 1997 by Costello P. that there are no hard and fast rules as to when dictates of fairness require the holding of an oral hearing. In the present case the essential facts were clear from the beginning and were not in dispute. There was no matter of contested fact between the parties which required the holding of an oral hearing and the Applicant did not request the same. Neither did the Applicant seek to involve his trade union in the matter and accordingly there was no any refusal to treat with the Applicant's trade union. Nor was he denied access to legal advice or representation.

30. The Application is dismissed.