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Cite as: [2012] IESC 26
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Judgment Title: Rawson v Minister for Defence Neutral Citation: [2012] IESC 26 Supreme Court Record Number: 403/08 High Court Record Number: 2007 88 JR Date of Delivery: 01/05/2012 Court: Supreme Court Composition of Court: Fennelly J., Clarke J. MacMenamin J. Judgment by: Clarke J. Status of Judgment: Approved
Outcome: Allow And Set Aside | ||||||||||||||||
THE SUPREME COURT [Appeal No: SC 403/2008] Fennelly J. Clarke J. MacMenamin J. Between/ David Rawson Applicant/Appellant and
The Minister for Defence Respondent Judgment of Mr. Justice Clarke delivered the 1st May, 2012 1. Introduction 1.1 For understandable reasons the Defence Forces take a very serious view of drug abuse. As part of the measures introduced to combat this problem, a scheme of random drug testing was introduced in January 2002. It will be necessary to refer to the precise scheme under which random testing is conducted in due course. 1.2 The applicant/appellant (“Airman Rawson”) joined the Defence Forces, as a recruit, on the 4th of September 2006. On the 27th of November 2006 he was subjected to a random drug test carried out under the relevant regulations. He tested positive. 1.3 In circumstances which it will be necessary to consider in more detail, Airman Rawson was ultimately informed that he was to be discharged from the Defence Forces. Airman Rawson brings this appeal from a judgment of the High Court (Hedigan J.) refusing an order quashing the decision to discharge. 1.4 The relevant regulations provide for two samples to be taken. Airman Rawson was advised that he had tested positive for cannabis on the first sample and was given the option of having the so called B sample also tested. That sample also proved positive. 1.5 On the 10th January 2007, Airman Rawson was paraded before Commandant Jim Gavin, who was standing in for his commanding officer (“C.O.”) Lieutenant Colonel McIntyre, and was told that the C.O. was recommending discharge. Airman Rawson was advised that he could make representations within seven days. On the 16th January 2007 Airman Rawson put forward to his C.O. his case which was to the effect that he and two friends were in a car when they (but not he) smoked cannabis. Airman Rawson consistently denied that he himself had smoked cannabis. He suggested that he had been informed by more senior members of the Defence Forces on a number of occasions that it was not possible to test positive for cannabis in circumstances of passive smoking. However in his submission he suggested that that was not so and that it was, as a matter of scientific fact, possible to produce what might be termed a false positive result deriving from passive smoking. 1.6 It would appear that those submissions were rejected in that on the 17th January 2007 Airman Rawson was informed that his C.O. had decided to recommend that he be discharged. He was informed that the matter was then to go before the General Officer Commanding (“G.O.C.”) and that he had the right to make further submissions. A written submission dated the 17th January 2007 was made to the G.O.C. On the 29th of January 2007 Airman Rawson was informed that the G.O.C. had decided that he should be discharged with immediate effect. Airman Rawson immediately applied to this court and obtained an interim injunction restraining his discharge pending the determination of these proceedings. That injunction has remained in place to date with Airman Rawson being, I understand, assigned to administrative duties. 1.7 The case ultimately came on for hearing and judgment was delivered on the 2nd December 2008. For the reasons set out in that judgment Hedigan J. refused the reliefs sought which were primarily directed towards quashing the decision to discharge Airman Rawson from the Defence Forces. Against that decision Airman Rawson now appeals to this court. In order to more fully understand the issues raised both before the High Court and on this appeal it is necessary to say a little more about first, the regulations under which Airman Rawson’s case was considered and second, the facts including the evidence as to the decisions taken by the superior officers involved. I turn first, therefore, to the relevant regulations. 2. The Regulations 2.1 To give them their full title the regulations concerned are described as the “Compulsory Random Drug Testing Administrative Instruction A7 Chapter 3” (“the Regulations”). Paragraph 304(a) requires the provision of a urine sample by a member of the Defence Forces in the context of a compulsory random testing programme. When a random urine sample is taken para. 308 provides for the method of testing. In the case of cannabis para. 308 also states that, should the test in question return a reading of greater than or equal to 15ng/ml, the result is to be regarded as a “test positive” for the use of cannabis. Paragraph 309(c) provides for the A and B samples. 2.2 Paragraph 313(b) provides that an individual’s C.O. inform the member concerned both orally and in writing of the result of any positive test and also inform the individual that administrative action is being taken which may result in discharge together with the fact that a seven day period is provided to make representations. Thereafter, under para. 315, the C.O. forwards his recommendation regarding discharge or otherwise to the G.O.C. for consideration. A copy of that recommendation should also be given to the individual who must be informed that he has the right to appeal to the G.O.C. within seven days. The final decision is made by the G.O.C., under para. 317, on receipt of the recommendation of the C.O. and on considering any further submissions made by the individual. 2.3 However, of particular relevance to the issues which arise in this case is para. 318 which provides that where it appears to a C.O. "on foot of any representation made, that a reasonable doubt exists, that the individual … may have innocently or inadvertently ingested, inhaled or otherwise introduced the substance, he should recommend that the individual be retained in the service". 2.4 There was no significant difference between counsel as to the overall approach required under the Regulations. Where a test is deemed to be positive then the relevant procedures which potentially lead to a discharge are commenced. The individual concerned is entitled to make representations which may include a representation, under para. 318, that there is a reasonable doubt to the effect that the individual concerned may have innocently or inadvertently ingested, inhaled or otherwise introduced the substance. It seems clear that para. 318 requires the individual who has tested positive to raise that question if he wishes it to be considered, for the paragraph speaks of the C.O. considering the matter “on foot of any representations made”. However it seems equally clear that, once a representation to that effect is made by an individual whose conduct is under consideration, there is an obligation on the C.O. and, it follows, on the G.O.C. on appeal, to consider it. Against the background of the Regulations it is next necessary to deal in a little more detail with the facts. 3. The Facts 3.1 I have already briefly outlined the sequence of events. Insofar as material to the issues which now arise it is necessary to trace the case made by Airman Rawson on the question of passive inhalation. While the representations made by Airman Rawson to his C.O. were not exhibited in the evidence it was accepted by both sides that those representations were broadly in the same form as those which were made in writing to the G.O.C. by memorandum of the 17th January, 2007. In those written representations Airman Rawson admitted that he was in the company of friends who smoked cannabis resin but "categorically" denied that he himself had smoked any form of cannabis. Airman Rawson went on to make a number of other points which are not relevant to the issues which now arise. However, towards the end of his submission he complained of what was said to be a failure of the authorities to provide a mechanism and/or suitably qualified persons or forum to consider and determine the matter of innocent or inadvertent consumption. He also went on to say that he was "in a position to produce evidence of third parties in relation to my innocently/inadvertently ingesting a substance" and asked "for an opportunity now so to do as this matter is relevant for the purposes of consideration of the matter and decision herein". 3.2 It is clear, therefore, that the question of whether Airman Rawson ought to be considered as having innocently or inadvertently ingested cannabis was squarely put forward by him during the disciplinary process. That question having been raised, it follows that there was an obligation on his C.O. and G.O.C. to consider that representation in accordance with para. 318. It further follows that, in order to deal with the matter in accordance with the Regulations, it was necessary for those superior officers to consider whether a reasonable doubt existed as to whether the cannabis concerned had been innocently or inadvertently introduced. On the facts that was the only issue which those superior officers had to deal with. 3.3 Against that background it is next necessary to turn to the actual decisions of the superior officers concerned. As pointed out earlier, the C.O. was Lieutenant Colonel McIntyre whose recommendation for discharge of the 17th January, 2007 is in brief terms and can be set out in full. It reads as follows:-
3.5 It follows that all that is known as to the considerations given by both the C.O. and the G.O.C. to the case, including the representations made by Airman Rawson, is that discharge was being recommended and that the appeal against that finding was dismissed. It is against that background that Airman Rawson complains that the decision cannot be sustained. 3.6 One further aspect of the process does need to be noted. As indicated earlier Airman Rawson arranged to have the B sample tested. While there was a slight difference between the result of that test and the earlier result of the testing of the A sample, in both cases the level of cannabis disclosed was more than twice the threshold of 15 ng/ml. In addition, the report which accompanied the results of the testing of the B sample (which came from an English firm called Scientifics Ltd.) states the following:-
3.8 On that basis it is necessary to turn to the decision of the trial judge insofar as it relevant to the issues which arise on this appeal. 4 The High Court Decision 4.1 Having set out the order sought, an analysis of the Regulation together with some background facts and addressed the sequence of events which have already been outlined in this judgment, the trial judge went on, at para. 18 of his judgment, to set out the case made to him on behalf of Airman Rawson. 4.2 As there recorded Airman Rawson's case was as follows:-
(b) Lieutenant Colonel Jim Lynnott is not in a position to swear that the C.O. did give the proper consideration. (c) The level of certainty required, on the part of the C.O. by para. 318, in order to decline to recommend that an individual be retained in service is extremely high. (d) The C.O.’s recommendation was not forwarded to the applicant prior to its transmission to the G.O.C. as required by the Regulations and that, as a result, the applicant was prejudiced. 4.4 At para. 23 of his judgment the trial judge noted that it must be assumed that the account given by Airman Rawson was accepted for, in the view of the trial judge, this followed from the fact that no further submissions were required nor explanation called for. The trial judge went on then to suggest that the decision actually made by the relevant superior officers was, first, to the effect that Airman Rawson had tested positive under regulations which set a cut-off point to exclude passive smoking. The latter aspect of that point was based on evidence which was placed before the court on behalf of the Minister which suggested that, on the basis of the scientific evidence available to the Minister, the level fixed in respect of cannabis was such as would exclude a person testing positive if engaged only in passive smoking. It should be said that contrary expert evidence was tendered on behalf of Airman Rawson. It must also, in that context, be recalled that the relevant superior officers had before them the report from Scientifics Ltd. which is to the same effect as the Minister's advice on this point. 4.5 The trial judge then went on to infer that the G.O.C. "decided that no reasonable doubt existed that the member may have innocently or inadvertently ingested, inhaled or otherwise introduced the substance". He then correctly went on to note that it was not for the High Court to second guess the view of the C.O. or the G.O.C. The trial judge concluded that it was reasonable and rational for the G.O.C. to decide that Airman Rawson's account "did not amount to innocent or inadvertent ingestion or inhalation". In that regard the trial judge noted evidence from the Officer in Charge of the Defence Drug Testing Team which was to the effect that an explanation of being in a car with people who were smoking cannabis was "unacceptable, as a soldier would be expected to remove himself from any such situation". The trial judge concluded that that view was reasonable. 4.6 Against the background of that decision it is next necessary to turn to the issues which arose on this appeal. 5. The Appeal 5.1 While a range of grounds were addressed both in the notice of appeal and in the written submissions filed on behalf of Airman Rawson, counsel, without abandoning any other grounds, made a focussed submission directed to the reasoning (or more accurately the absence of reasoning) set out in the determination of the respective superior officers. In that context it is important to note that counsel for the Minister, in reply, correctly drew attention to the fact that the grounds of challenge as permitted in the order granting leave in this case did not focus on an absence of reasons per se but rather on an alleged absence of any suggestion that the relevant superior officers had addressed the real question in issue. 5.2 It is clear, therefore, that this case is not a "reasons" case as such. Rather it is a case where it is said that the record does not suggest that those involved in the decision making process applied their mind to the right question at all rather than failed to give adequate reasons for their answer to that question. 5.3 That, in reality, is the real issue which arises on this appeal. In order to consider that ground of appeal it is necessary to discuss the relevant legal principles applicable. I, therefore, turn to the law. 6. The Law 6.1 It is trite law to say that judicial review is concerned with the lawfulness of decision making in the public field. Where a decision is made by a public person or body which has the force of law and which affects the rights and obligations of an individual then it hardly needs to be said that the courts have jurisdiction to consider whether the decision concerned is lawful. If it were not so then it is hard to see how such a situation would be consistent with the rule of law. For if decisions materially affecting the rights and obligations of individuals could be made in an unlawful fashion the rule of law would not be upheld. 6.2 While the circumstances in which a decision made by a public person or body may be found to be unlawful are varied, it is possible to give a non-exhaustive account of the principal bases by reference to which such a finding might be made. First, the decision must be within the power of the person or body concerned. Second, the process leading to the decision must comply both with fair procedures and with whatever procedural rules may be laid down by law for the making of the decision concerned. Third, the decision maker must address the correct question or questions which need to be answered in order to exercise the relevant power and in so doing must have regard to any necessary factors properly taken into account and must also exclude any considerations not permitted. Fourth, in answering the proper questions raised and in assessing all matters properly taken into account the decision maker must come to a rational decision in the sense in which that term is used in the jurisprudence. 6.3 There may, of course, be many variations or additions to that very broad description of the matters that need to be assessed in order to decide whether a decision affecting rights and obligations has been lawfully made. However, it seems to me that a party faced with a decision which affects their rights and obligations must be entitled to assess whether they have a basis for challenging the lawfulness of the decision in question. The courts have consistently held that it is an inherent part of the judicial review role of the courts that parties need to know enough about the process and the decision which affects them to be able to mount a challenge to that decision on the grounds of unlawfulness in an appropriate case. 6.4. In O'Donoghue v. An Bord Pleanála [1991] I.L.R.M. 750, Murphy J. said, at p.757:-
6.6 Kelly J. came to a similar view in Mulholland v. An Bord Pleanála (No.2) [2006] 1 I.R. 433 at 460. 6.7 More recently in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701 Murray C.J. said that a failure to supply sufficient reasons would affect the applicant’s “constitutional right of access to the Courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective”. 6.8 While the primary focus of a number of the judgments cited, and indeed aspects of the decision in Meadows itself, were on the need to give reasons as such, there is, perhaps, an even more general principle involved. As pointed out by Murray C.J. in Meadows a right of judicial review is pointless unless the party has access to sufficient information to enable that party to assess whether the decision sought to be questioned is lawful and unless the courts, in the event of a challenge, have sufficient information to determine that lawfulness. How that general principle may impact on the facts of an individual case can be dependant on a whole range of factors, not least the type of decision under question, but also, in the context of the issues with which this Court is concerned on this appeal, the particular basis of challenge. In some cases the material on which a challenge might be considered may be obvious. Where, for example, the challenge is based on a suggestion that the relevant decision maker did not have jurisdiction at all, it will, at least in the majority of cases, be possible to assess that question by reference to a comparison between the decision made and its scope on the one hand and the law (whether statute or otherwise) conferring the decision making power on the other. Where the challenge is based on the process or procedures followed then, again in the majority of cases, any party having standing to challenge the decision will have participated in the process (or will be able to point to an arguably unlawful exclusion) and will be likely to be well familiar with what happened and thus able to assess whether there is any legitimate basis for challenge. 6.9 However, where the possible basis for challenge is concerned with the decision making itself then there is the potential for a greater deficit of ready information. Where the possible basis for challenge is founded on an absence of the correct question being addressed, incorrect considerations being applied or an irrational decision, any party wishing to assess the lawfulness of the decision will need to know something about the decision making process itself. While, as already pointed out, this is not a "reasons" case per se nonetheless the underlying rationale for the case law on the need to give a reasoned but not discursive ruling, while not strictly speaking applicable, seems to me to have a bearing on a case such as this where the issue is as to whether the decision maker addressed the correct question. White & anor v. Dublin City Council & ors [2004] 1 IR 545, is a good example of a case in which a decision was quashed because the decision maker asked himself the wrong question. The case concerned a question as to whether a revision to a planning application required to be re-advertised. Fennelly J. found that the decision maker had, in reality, asked himself whether planning permission should be granted rather than whether some members of the public might reasonably wish to object to the plans as modified. It is clear from the judgment that the court had available to it sufficient materials to enable an analysis to be conducted as to the question addressed by the decision maker. 6.10 However, if a person affected does not have any sufficient information as to the question which the decision maker actually addressed then it surely follows that that person's constitutional right of access to the courts to have the legality of the relevant administrative decision judicially reviewed is likely to be, in the words of Murray C.J. in Meadows, "rendered either pointless or so circumscribed as to be unacceptably ineffective". 6.11 Against the backdrop of that analysis it is necessary to return to the application of that law to the facts of this case. 7. Application to this case 7.1 It seems to me that the issues which arise in this case potentially come within the third of the four categories of lawfulness challenge identified earlier. The issue is as to whether the ultimate decision maker asked himself the right question. What was that question? Airman Rawson raised, in his representations, the possibility of innocent or inadvertent inhalation, and thereby created a situation where the decision maker was required, because of para. 318 of the Regulations, to determine whether a reasonable doubt in that regard had arisen. The question, therefore, was as to whether there was a reasonable doubt to the effect that the positive sample in question arose out of circumstances which could be described as innocent or inadvertent. In the light of the case made by Airman Rawson that was really the only question. If the answer to that question was "yes" then para. 318 required that Airman Rawson remain a member of the Defence Forces. If the answer to that question was "no" then his discharge necessarily followed. The lawfulness of the decision to discharge, in the light of the challenge brought in this case, therefore depends on whether the decision maker asked and rationally answered that question. 7.2 While a judgment made in relation to a “reasons” case it seems to me that the logic of Clare v. Kenny [2009] 1 IR 22 is equally applicable to a challenge based on a contention that the correct question was not asked or inappropriate considerations were given. In that case MacMenamin J., at p.36, stated that:-
7.5 Do we really know why the C.O., or the G.O.C. on appeal, rejected Airman Rawson’s case? It is possible that he was not believed. If that be so then it follows that there is a potential difficulty, as identified by the trial judge, in that further consideration was not given to the facts, including the scientific facts suggested on Airman Rawson’s behalf. On the other hand it is possible, as was found by the trial judge, that the decision maker considered that Airman Rawson’s defence did not, in reality, bring him within the innocent or inadvertent category at all. It certainly does not follow that passive inhalation of cannabis will always afford a defence under the innocent or inadvertent provisions of para. 318. The problem is that nothing in the record, or the evidence placed before the court on behalf of the Minister, provides any indication as to whether the basis for the decision was one or other (or indeed both) of the above or indeed some other reason altogether. 7.6 While, as pointed out, this is not a "reasons" case, nonetheless the court is entitled to be able to be satisfied that the correct question was asked. There may be cases where an analysis of the situation with which the decision maker was presented bears only one reasonable interpretation. However this does not seem to me to be such a case. At a minimum, there is something of a tension between the position adopted by the Minister which was to the effect that the 15 milligram threshold was designed to exclude the risk of passive inhalation, on the one hand, and the finding of the trial judge that the relevant senior officers must have accepted Airman Rawson’s account on the facts, on the other hand. If it is true that the 15 milligram threshold does, as a matter of practicality, exclude (or almost always exclude) a positive test in circumstances of passive inhalation then such a finding would necessarily involve rejecting Airman Rawson’s account to the effect that the only explanation for the presence of cannabis in his test was passive inhalation. As pointed out by MacMenamin J. in Clare v. Kenny it is not for the court to engage in a hypothetical exercise in seeking to determine the possible rationale for a decision particularly where there may be many possible bases on which a decision might be reached. By a parity of reasoning it seems to me that it is not possible to infer that the decision maker asked the correct question when there are a number of different bases on which the question could be approached and where the record and the evidence is silent as to the basis on which the decision maker actually approached the issue in question. 7.7 But perhaps of even greater importance is the question of the standard of proof. As already noted when the question of innocent or inadvertent ingestion is put forward in representations on behalf of a member of the Defence Forces para. 318 of the Regulations requires that the relevant superior officer consider that matter on the basis of a standard of proof of a reasonable doubt. This is not one of those cases where the presence of an appropriate level of cannabis raises, under the Regulations, a presumption of use subject to the entitlement of the member of the Defence Forces to rebut that presumption by putting forward satisfactory evidence such as would persuade the superior officer concerned, (most likely on the balance of probabilities), of an innocent explanation. It might well, of course, have been possible for the Regulations to have been drafted in a different way such as would require a deciding superior officer to approach the issue in that way. However, the Regulations in their current form are clear. Once the issue is raised the matter must be determined on the basis of proof beyond reasonable doubt. 7.8 In that context it is important to note that there is nothing in the papers, including the documentation which was before either of the relevant superior officers, which suggests that those officers approached the question on the basis of an obligation to give Airman Rawson the benefit of any reasonable doubt. 7.9 It follows that there are no materials from which a court exercising a judicial review function could be satisfied that the decision-makers applied the appropriate test. 7.10 In his judgment the trial judge was constrained to engage in a hypothesis about the basis on which the relevant superior officers must, in his view, have approached the matter. In my view in so doing the learned trial judge fell into error for the reasons identified by MacMenamin J. in Clare v. Kenny. There may be cases where it is possible legitimately to infer what question was addressed by the decision-maker and what considerations were taken into account. However, to go beyond the scope of legitimate inference seems to me to be impermissible. It seems to me that the exercise engaged in by the trial judge, though entirely understandable, went beyond the boundary of legitimate inference and strayed into the hypothetical. 8. Conclusions 8.1 It follows that the appeal must be allowed and that the decision to discharge must be quashed. The decision does not, on its face, disclose that the decision maker (whether the C.O. or the G.O.C.) considered the question of whether a reasonable doubt had been raised on the innocent/inadvertent issue at all. It is not the sort of case where the court could safely infer that the correct question must necessarily have been asked having regard either to the way the process developed or the materials which were before the decision maker. It may well be that there were circumstances in which a decision maker in a case such as this could conclude that Airman Rawson’s account was not credible and thus not to be accepted. It may well be that there could be circumstances where a decision maker might conclude that, even accepting Airman Rawson’s account, it did not, in all the circumstances and having regard to all surrounding facts, bring him within the innocent/inadvertent reasonable doubt test. 8.2 There may, indeed, be other bases, including possibly a combination of those two matters, on which it would be possible for a decision maker lawfully to come to a decision that para. 318 did not provide a basis for not discharging Airman Rawson. However the problem in this case is that the court does not even know that the decision maker asked himself any of those questions for we know nothing about the basis of the decision to discharge Airman Rawson except that it was made and that the materials before the decision maker included Airman Rawson’s representations. 8.3 In my view that is insufficient to meet the requirement that the court be able to be satisfied, in the event of a challenge, that the decision maker asked the right question. As to what is to occur in the future it seems to me that, at least initially, it is a matter for the authorities in the Defence Forces to decide whether the issues raised by Airman Rawson’s positive test could or should be considered again. | ||||||||||||||||