High Court of Ireland Decisions

1. On 21st November, 1998, Ms. Justice Laffoy granted the Applicant leave to apply by way of application for judicial review for the relief set out in the Statement of Grounds, and that the Respondents be restrained (pending the determination of the application for judicial review) from discharging the Applicant from the Permanent Defence Forces until further order. The Applicant served originating Notice of Motion with copies of the statements and verifying affidavit and of this Order on the Respondents. The costs were reserved. The reliefs sought are as follows:-

2. The case has been very fully argued by Counsel on both sides and both made written submissions in addition to all oral contributions. The evidence is primarily contained in four affidavits and the exhibits therein adduced and referred to. Firstly, there was the affidavit of the solicitor, Michael Baines, then of the Applicant, Hugo Toner, then of Commandant Eamon Caulfield (who at the relevant time was the officer in command of A Company 28 Infantry Battalion stationed at Lifford in the County of Donegal) and Lieutenant Colonel Declan O'Carroll (also of the 28th Infantry Battalion based at Finner Camp, Ballyshannon). The Applicant's submissions may be summarised as follows:-

3. Continuance in service of a man of the Permanent Defence Forces shall not be authorised unless:-

4. By Regulation 11(d), it is provided:-

5. Assessment of military conduct and ability takes place in accordance with the Regulations found in the Defence Force Regulations A8, Regulation 38. Regulation 37 provides that the military conduct of a Non Commissioned Officer or Private shall be assessed by his Commanding Officer in connection with:-

6. Regulation 38 provides for a series of categories as follows:-

7. A much discussed Regulation is A8 under the heading "Temporary Assessment of Military Conduct Regulations 40 and 40A". Since these regulations are crucial it is appropriate to quote them in full:-

8. Assessment on the authorisation of the Adjutant-General:-

9. To complete the picture in this part of the judgment I will refer to Paragraph 11 of the Defence Force Regulations A10 mentioned above in Regulation 40(2):-

10. It is argued that the words of the letter are to the effect that the conduct rating is now unsatisfactory and it is clear from Regulation 40(1) that the person who has failed to maintain the standard of military conduct for various purposes shall be "advised accordingly by his Commanding Officer".

11. It is argued that while the Regulations do not make provision specifically for the Applicant to make representation in circumstances where his standard has dropped, it is clear from Regulation 40(2) and 40(a) that circumstances may arise where he might apply for a temporary assessment as good or to have his assessment upped a grade for his military conduct subsequent to the date of the current assessment, as merited reconsideration. Since the assessment is critical to an application for continuance in service, it was submitted that the Regulations do not permit of a unilateral reassessment but on the contrary provides for circumstances where the Applicant should have been entitled to apply for relief particularly under Regulation 40(2). It is argued that it is critically important because on one interpretation of the Regulation the Applicant had not incurred an entry in his conduct sheet for the six months prior to the assessment which took place or should have taken place subsequent to his conviction on 17th July, 1998. By the Commanding Officer's letter of 20th October, 1998, the Applicant was faced with a "fait accompli" that in the opinion of his Commanding Officer his rating was now "unsatisfactory" and that the Officer in Command of the 28th Infantry Battalion had applied to the Records Officer to have his continuance in the service revoked.

12. It was also submitted that by virtue of Article 11(d) of the Defence Force Regulations A10, the continuance in service is affected by the completion of AF642 and under the Act and under the Regulations, there is no power to revoke a continuance in service once properly granted. It was submitted that the only option open to the Defence Force is a discharge from the Permanent Defence Force. If one looks at Regulation 58 of the Defence Force Regulations A10, it provides for discharge from the Permanent Defence Force and there is a table in Regulation 58 setting out in Column 1:-

13. It is argued that the only person who can authorise the continuance in service in the case of the Applicant is the General Officer commanding the command (the GOC Western Command Brigadier, General Martin). The only person who potentially might revoke the authorisation is Brigadier General Martin. Again, by reference to the letter of 20th October, 1998, it appears that Lieutenant Colonel O'Carroll had applied to the Records Officer to have the continuance in service revoked but it is argued that there was not such a provision or procedure under the Regulations. However, the Court did not allow this point to be pursued as it was not raised in the proceedings. It is argued that in so far as "continuance in service" aspect of this application is concerned that the Respondents have misconstrued the Regulations and have:-

14. Hugo Toner, the Applicant, was arrested and charged with importing cigarettes illegally when returning from INLS duties in the Lebanon. It is pointed out that on 19th November, 1998 Baines & Company, Solicitors for the Applicant, by fax and telephone informed Brigadier General John Martin that by order of Judge Murphy of the Dublin Metropolitan District Court the time in which to appeal had been extended and that the District Court order would be appealed. However, the Applicant had pleaded guilty and the only matter to be appealed was the penalty. At that time the Respondents were on notice that an appeal was pending. Even if a decision had been made on notice before the communication the Respondents should have awaited the outcome of the decision . It is pointed out that it is difficult to know whether the Applicant was discharged for 58M or not because the replying letter of 20th November says that he was discharged on 21st November and doesn't indicate under what heading he had been discharged although it appears from the replying affidavit of Lieutenant Colonel Declan O'Carroll that he had not on the day of his swearing that affidavit (18th June, 1999) been discharged under 58M.

15. At no time in the course of the run up to his purported discharge was there any question of any other convictions. However, as appears in the affidavits he also attempted to smuggle cigarettes through Northern Ireland and was convicted at the Antrim Magistrates Court on 4th July, 1997. This conviction is now relied on by the Respondents in their Affidavits. However, it is argued on behalf of the Applicant that under the Defence Act the expression 'civil offence' has the meaning assigned to it by Section 169 of the Defence Act. That Section does not make reference to a revenue offence in Northern Ireland and a conviction by a civil power there but at least it is arguable that the offence in Northern Ireland is not a civil offence within the meaning of this Section and it has no application to a discharge under Regulation 58 of the Defence Force Regulations A10(m).

16. This is a novel submission but it is not necessary for the Court to give a decision on it. Finally, it was submitted that on the completion of AF642 (the application to continue in service pursuant to Section 65 of the Defence Act, 1964) his continuance in service was "effective". The only option open to the Respondent was to seek a discharge under one of the headings of Sections 58 of Defence Force Regulations A8. This they may or may not pursue. The option to "revoke his continuance in service" was not open to the Respondent and neither was 58(T).

17. The main features of the Respondents are carefully set out in the letter of 5th November, 1998 to the Applicant's solicitor and emanating from the letter of Colonel J.A. Maloney. It reads:-

18. These arguments are expanded upon in the outlined submissions of the Respondents. The Applicant is requested to make his application for a continuance in service some considerable time before the date on which his engagement is due to terminate for administrative reasons. He was due to leave Ireland to serve a tour of duty in the Lebanon with UNIFIL and would not be available in this country to deal with any matters arising in relation to his application.

19. The Applicant went to the Lebanon as a member of the armed forces serving with UNIFIL in 1997. On two separate occasions during that tour of duty he returned home on leave and on both occasions was caught by customs authorities attempting to smuggle significant quantities of cigarettes without paying the appropriate Customs & Excise duties. On the first occasion the Applicant was caught with 29,800 cigarettes in Belfast International Airport on 28th June, 1997. The Applicant was convicted by Antrim magistrates on 20th July, 1997 and fined £800 sterling. The second offence was committed after the Applicant had been convicted in respect of the first offence. On the second occasion he was caught with 40,000 cigarettes in Dublin Airport on 27th September, 1997. On 27th September, 1997 he pleaded guilty in the Dublin District Court and was fined £400. On 27th July, 1999 this fine was reduced to £250 on appeal by the Dublin Circuit Court.

20. Leaving aside the implications of the Applicant's conviction in Belfast, it is the Respondents' case that a continuance in service can only take effect on the termination of the soldier's existing engagement. A continuance in service is dependant, inter alia, on the soldier meeting certain conditions set out in DFRA10.11, one of which is that he must have a conduct assessment of not less than good under DFRA8.38. Following his conviction in a Dublin District Court (and even allowing for the reduction of his fine on appeal), the Applicant does not merit a conduct assessment of "good" or higher. Therefore, at the time of the termination of his engagement he did not meet the mandatory preconditions for a continuance in service. The authorisation of the continuance in service (which continuance itself had not come into effect) was based on the Applicant satisfying these preconditions and such authorisation was revoked prior to a continuance becoming effective on the basis that the Applicant was no longer eligible. The Applicant does not deny this conviction and his case is based entirely on the premise that the Respondents should not be allowed to take account of the admitted conviction to revise his conduct assessment. Effectively, the Applicant contends that his conduct should be immutably assessed, to his advantage, at a date prior to the commission of the offence and his subsequent conviction.

21. This Court is aware that separate to the revocation of authorisation of the Applicant's continuance in service, the Respondents have instituted a procedure under DFRA10.58(M) seeking the Applicant's discharge as a result of the conviction by the civil power. This procedure has been suspended as a result of the ex parte order made by this Court on 21st November, 1998. In the event that the Applicant is successful in these proceedings, his service is deemed to continue until 21st November, 2000. In the event that the Applicant is unsuccessful then as the Respondents contend, he would be deemed to have been discharged on 21st November, 1999 on the termination of his engagement pursuant to DFRA10.58(T). It should be noted that such a discharge may be more advantageous to the Applicant as it is effectively a "clean" discharge and all of the Applicant's entitlement would be intact. If the Applicant is ultimately discharged under DFRA10.58(M), the third Respondent has a discretion as to whether the Applicant's pension should be granted or cancelled. The submission then sets out the various dates.

22. The case was made that the District Judge was given misinformation by Pte. Toner's then solicitor as to the effect of a fine on his standing in the army. There is no suggestion that the same error was made with the Circuit Court Judge who reduced the fine but still imposed one which would leave the Applicant with the conduct assessment of "unsatisfactory" and which would not be sufficient to raise his assessment to "good". Laffoy J. on 21st November, 1998 gave leave to apply for Judicial Review on the seven sub-paragraphs set out in paragraph E of the Statement of Grounds. They were to the effect that the decision to permit the Applicant to continue in service could not be revoked or reversed and that the Respondents were estopped from a reconsideration of that decision (E.1, 2 and 3); a denial of fair procedures (E. 4 and 5) and the fact that at the time of the making of the application for leave, the sentence of the District Court was under appeal (E. 6 and 7). On 15th December, 1999 when this case ultimately came before this Court an additional ground was alleged, namely, that the decision to revoke the Applicant's continuance in service was authorised by the wrong officer and therefore is invalid. Effectively, the Applicant now asserts the technical flaw in the decision which it is contended invalidates the decision per se regardless of the merits of the decision and the manner in which it was reached. The Respondents submitted that this was a completely new ground and was not covered by the grounds upon which leave was granted by Laffoy J. The Respondents had not been put on notice of any application to amend or extend the grounds.

23. Order 84, Rule 20 of the Rules of the Superior Courts provides that no application for Judicial Review may be made without leave of the High Court and that the application for leave must be grounded upon a Statement of Grounds and Affidavit. O. 84, r.21(1) provides that where the relief sought is Certiorari an application for Judicial Review must be made promptly and in any event within six months from the date on which the matters giving rise to the application first arose. The ground now sought to be introduced by the Applicant was not grounded upon any statement of fact set out in the Statement of Grounds or Grounding Affidavits. A further application to introduce this ground was being made for the first time over a year after the original application for leave and after the events giving rise to this case and therefore the Applicant was well outside the six months period.

24. No reason has been advanced as to why this interesting point was not raised previously. To introduce it a year later and in the middle of the hearing without notice is certainly per se prejudicial.

25. Under O.84, r.23(2), the Court has power to allow an applicant to amend his Statement of Grounds but such amendment should not be allowed unless the applicant can justify the delay in seeking to introduce new material. Further, O.84, r.23(3) requires an applicant who seeks to amend his Statement of Grounds to serve notice of the proposed amendment on every other party. Clearly this was not done in this case.

26. To avoid an adjournment and to expedite the hearing of the case, the Court reluctantly allowed the point to be argued "de bene esse". However, this Court is satisfied that this issue is not properly before the Court and leaves it to be discussed and determined in appropriate proceedings. Much of the argument before this Court and in the submissions was in relation to the inappropriate officers doing the duties assigned to other officers. This Court is also satisfied that the continuance of service was processed for administrative reasons before it became effective. The Applicant remained under his original contract. The continuance did not come into effect on the date it was issued but came into effect on the completion of his contract. On the submission of the Respondents, he is now entitled to his full pension right on the expiration of his contract and the question of proceeding with his discharge after 21 years of exemplary rating does not arise. Accordingly, the Court refuses the various reliefs sought by the Applicant.