Carroll v. Law Society of Ireland [1999] IEHC 85; [2000] 1 ILRM 161 (19th January, 1999)

JUDGMENT by Mrs. Justice McGuinness delivered the 19th day of January, 1999 THE PROCEEDINGS 1. In these Judicial Review proceedings the Applicant, who is a person seeking to be admitted to the Roll of Solicitors, seeks a number of declaratory and other reliefs against the Respondent, The Law Society of Ireland. By Order of Kelly J. made on the 22nd July, 1996 the Applicant was permitted to issue Judicial Review proceedings seeking the following reliefs: 1. A Declaration that the Applicant has fulfilled all the requirements of Part IV of the Solicitors Act 1954 , as amended, to be admitted as a solicitor; 2. A Declaration that the Apprenticeship and education Regulations of 1991 (S. I. No. 9 of 1991) are ultra vires the Law Society and that the Respondent's Education Committee has no jurisdiction to hear and determine all or any of the complaints made against the Applicant as set out in paragraph 43 of an affidavit of Richard Woulfe of the 15th December, 1993; 3. A Declaration that, if the said Committee has such jurisdiction, (a) it cannot rely on hearsay evidence: (b) it must permit cross-examination of all witnesses; (c) it cannot rely on the findings of fact concerning the Applicant made by Mr. Justice Murphy in High Court Record No. 1993/8169P Between The Incorporated Law Society of Ireland and Godfrey Carroll, Eamonn Carroll, John Carroll, Anne Marie Govern and Christopher Ryan; (d) it should require the Respondent to pay the Applicant's reasonable legal costs and expenses; 4. An Order directing the Respondent to forward the Applicant's name to the President of the High Court with a view to his admission as a solicitor. 2. The Originating Notice of Motion issued by the Applicant pursuant to the Order of Kelly J. included at paragraph 4 a relief which, as I understand his Order, was specifically excluded by the learned Kelly J. and which clearly should not properly have come before this Court at the hearing of the matter. I will refer to this later. 3. The grounds upon which the Applicant was permitted by the Court to seek these reliefs were those set out under Declaration No. 2 and Declaration No. 3 in the Applicant's Originating Statement as follows: 4. Declaration No. 2. The said Committee has no jurisdiction to so hear and determine on the ground that (i) to do so is ultra vires the provisions of the 1954 Act, as amended; (ii) the Regulations which purport to grant such jurisdiction are unconstitutional, as inter alia contrary to the "democratic nature" of the State; (iii) in the circumstances, there is an overwhelming likelihood of the said committee being biased against the Applicant; (iv) no satisfactory arrangements exist to safeguard the Applicant's privilege against self-incrimination. 5. Declaration No. 3. The said procedural safeguards are based on:- (a) the practice in e.g. the Beef Tribunal, together with what is at stake for the Applicant - his entire good name and career; (b) similarly and Article 6(1) of the European Convention on Human Rights and Fundamental Freedoms (c) on Counsel's advice the Applicant did not join issue in the said proceedings in relation to the facts (d)- equality of arms and estoppel created by the demand of Joan O'Neill in relation to the Society's own costs. 6. No doubt arising out of Ground No. 2(ii), which challenges the constitutionality of the 1991 Regulations, Kelly J. in his Order of the 22nd July, 1996 directed that the Attorney General be joined as a Notice Party in the action. In October 1996 the Attorney General brought a Motion seeking to vacate that part of the Order of Kelly J. on the grounds that no specific relief by way of declaration that any Act of the Oireachtas was unconstitutional was sought in the proceedings. This Motion came on before Geoghegan J. on 14th October, 1996. Apparently there was no opposition to the application and it was granted. Subsequently on the 3rd March, 1997 the solicitors for the Applicant wrote to the Chief State Solicitor reiterating and elaborating the nature of the Applicant's constitutional challenge. Basically as a result of this correspondence and apparently following on an application before Carroll J. the Attorney General was rejoined as a notice party and filed a Statement of Opposition on the 20th June, 1997. Neither the Order of Geoghegan J. nor any Order of Carroll J. is included in the book of Pleadings provided to this Court at the hearing of the action. 7. In the event, however, Senior Counsel for the Applicant informed me when opening the case that, as is the normal procedure, any consideration of the challenge to the constitutionality of either the 1991 Regulations or the Solicitors Act, would not be dealt with until after the Court had reached the decision on all other grounds. The constitutional issue, therefore, was not argued before me. 8. The Respondent had filed its Statement of Opposition on the 16th September, 1996. 9. On the 3rd November, 1997 an application was made to me by way of Notice of Motion to add a further declaratory relief to the original application for judicial review. Following the hearing of that application I permitted the addition of the following relief: "A Declaration that the Committee of three practising solicitors designated to hold the inquiry which is the subject matter of these proceedings is invalidly constituted and has no lawful authority to conduct that inquiry." 10. The permitted ground for this relief was set out in an amended Statement as follows: "Under Section 6 (5) of the Solicitors (Amendment) Act, 1960 , as amended in 1995 when a division of the Solicitors Disciplinary Tribunal sits, one of its three members must be a 'lay member' , i.e. a person who is neither a solicitor nor barrister. (see Section 6 (1)(b)). Under Regulation 26(b)(iv) of the Regulations under which the Society purports to hold the said inquiry (S. I. No. 9 of 1991), the Committee must 'so far as is practicable and reasonable, proceed in the same manner as the disciplinary committee would proceed when sitting to hear an allegation of misconduct against a solicitor'. Because all three members of the Committee in the present instance are practising solicitors, the said Regulation 26(b)(iv) has been contravened, unless the Society has a very convincing explanation for not including a lay member". 11. When the Judicial Review proceedings came on for hearing before this Court Senior Counsel for the Applicant, Dr. Forde, summarised the issues before the Court as follows: 1. Has the Education Committee of the Law Society jurisdiction to set up an inquiry of the kind which it now purports to set up concerning the Applicant? 2. Is it essential for the Committee of Inquiry to abide by the various procedural safeguards set out in No. 3 of the reliefs sought by the Applicant? 3. Should the Law Society be restrained from entering into the Inquiry unless it safeguards the Applicant's privilege against self-incrimination? 4. Is the proposed Committee of Inquiry comprising three practising solicitors validly constituted? 12. I am somewhat concerned at the inclusion of the third of these issues. It was, as I have previously pointed out, included as a relief sought in the Originating Notice of Motion issued by the Applicant on the 24th July, 1996, but on my reading of the Order of Kelly J. of the 22nd July, 1996 he specifically excluded this issue from the reliefs which he permitted to be sought. This was also, it seems, the understanding of the Respondent, since in its Statement of the Opposition in regard to this relief it states:- "The application for an Order restraining the Respondent's Education Committee from entering into an Inquiry, without safeguarding the Applicant's privilege against self-incrimination, is not properly the subject of an application for Judicial Review." 13. However it goes on to say:- "Without prejudice to the foregoing the Applicant's privilege against self-incrimination will not be infringed by the carrying on of the Inquiry." 14. It also must be said that the claim that no satisfactory arrangements exist to safeguard the Applicant's privilege against self-incrimination was included in the grounds on which the Applicant could rely as permitted by Kelly J. in his Order. 15. In any event the self-incrimination point was fully argued before me both by Senior Counsel for the Applicant, Dr. Forde, and by Senior Counsel for the Respondent, 16. Mr. Hedigan (as he then was) and I shall deal with it on that basis. THE FACTS 17. The facts underlying this application appear from the several affidavits sworn on both sides together with the exhibits attached thereto. The history of the relationship between the Applicant and the Law Society has been complex and difficult. 18. The Applicant, Eamonn Carroll, was apprenticed in January 1991 to Christopher Ryan, Solicitor, of 18 North King Street, Dublin. The Applicant some years earlier had been for a time apprenticed to his brother, Donal Carroll, who was struck off the Roll of Solicitors by the High Court in 1983. This apprenticeship was not completed. During the intervening years the Applicant worked with his brothers in a business entitled Accident Claims Service which operated at Dorset Street in the City of Dublin. Where the services of a Solicitor were required accident claims service instructed Christopher Ryan to issue proceedings. The Applicant also avers to being qualified as, and working as, an auctioneer. The Applicant avers that he had ceased all connections with Accident Claims Service before embarking, through examinations and apprenticeship, on the completion of his qualification as a Solicitor. The Law Society contends that he at all times maintained a close connection with his brothers and the Accident Claims Service business. 19. Christopher Ryan signed the Applicant's Indenture of Apprenticeship in January 1991. The Law Society then, after correspondence and consideration of the matter, refused to issue their written consent to his apprenticeship (pursuant to the then Section 27 of the Solicitors Act, 1954 ) on the ground that they had insufficient prescribed evidence as to his character. In April 1991 there was a hearing before the Society's Education Committee. Before a decision was made by the Education Committee the Applicant brought High Court proceedings seeking to compel the Society to admit him as an apprentice. These proceedings were settled without admission of liability, a sum of £500 being paid to the Applicant by way of contribution to his costs. 20. The Applicant proceeded to serve his apprenticeship. Somewhat unusually he was allowed considerable freedom by his master and virtually independently operated a branch office of the firm in the Rialto area in a premises which had originally operated as a branch of the Carroll brothers' Accident Claims Service. The Law Society claim that he acted in close co-operation with and as a conduit for Accident Claims Service. 21. On 4th October, 1993 immediately before the applicant was due to commence the Society's "Advanced Course" the Society's Director of Education, Mr. richard Woulfe, notified him of a complaint of misconduct setting out allegations made against him which were based on information supplied to the Law Society by Christopher Ryan. Both the Applicant and Christopher ryan attended a meeting of the Education Committee on 15th October, 1993. This meeting was adjourned. On 22nd October, 1993 the Society wrote to the Applicant stating that "the adjourned proceedings ....are being withdrawn without prejudice to the rights of the Society to move against him again under the Solicitors Acts and Regulations." The Applicant then attended the advanced course and passed the remaining prescribed examinations for admission as a solicitor. 22. On 3rd December, 1993 the Law Society issued a Plenary Summons in this Court claiming, inter alia, that the Applicant, his brothers Godfrey and John, a Miss Govern and Christopher Ryan were in breach of various provisions of the Solicitors Act, 1954 , and in particular that the Applicant was in breach of Sections 55 and of that Act by wrongfully holding himself out to be a Solicitor. On 24th January, 1995 this Court (Murphy J.), while finding on the balance of probabilities that the matters alleged in the Plenary Summons were true, dismissed the Law Society's action on the ground that the relief sought related to alleged breaches of the Criminal Law and that in the circumstances of the particular case there were no exceptional circumstances which could justify the Law Society maintaining civil rather than criminal proceedings. The decision of Murphy J. was upheld by the Supreme Court on the 20th December, 1995. 23. Meanwhile on the 13th December, 1993 the Society's then Director of Education, Richard Woulfe, signed a Notice of Complaint alleging misconduct by the Applicant. this was grounded on an Affidavit sworn by Mr. Woulfe setting out details of the alleged misconduct. It is clear from the Affidavit of Mr. Woulfe that these allegations arose out of the original complaints against the Applicant made by his master, Christopher Ryan, to the Law Society in June 1993 and confirmed in a letter from the Society to him on the 29th July, 1993, which he acknowledged. There is no need to detail these allegations here; it is sufficient to note that they are serious and include matters which could give rise to criminal charges. It appears that having considered the matter further the Education Committee decided not to proceed further in regard to the allegations until after the disposal of their High Court action. 24. Despite all the serious complaints which Christopher ryan had so recently made to the Law Society against the Applicant, on the 2nd September, 1993 he made a statutory declaration deposing to the good character of the Applicant and indicating that he knew of no information which would render him unfit to become a member of the solicitors' profession. The Society, according to Mr. Woulfe, regards this declaration as simply untrue. The Law Society continued to investigate the accounts of Mr. Ryan's Rialto office about which it had very considerable concerns. Despite this Mr. Ryan wrote to the Society on the 8th October, 1993 indicating that both he, Christopher Ryan, and his practice accountant, 25. Mr. J. P. O'Donoghue were entirely satisfied with the regularity of the accounts of their Rialto office. Again Mr. Woulfe expresses the view of the Society that the contents of Mr. Ryan's letter of the 8th October, 1993 are untrue. 26. The Supreme Court having dismissed the Law Society's appeal on the 20th December, 1995, the Applicant on the 21st December, 1995 applied to the Society to forward his name to the President of the High Court with a view to him being admitted as a solicitor. The Law Society has not acceded to that application. In his Affidavit Mr. Patrick O'Connor, solicitor, then chairman of the Education Committee of the Society, states that the reason for this is that the Applicant has not satisfied the Education Committee that he is a fit and proper person to be admitted as a solicitor. (See Solicitors (Amendment) Act 1994 S.40 ) 27. On the 14th May, 1996 the Applicant with his solicitor and Counsel attended a hearing by the Education Committee. His Counsel raised a number of matters with the Committee, most of which are reflected in the present judicial review proceedings. The Committee apparently directed a preliminary hearing on the question of jurisdiction prior to the Inquiry into the substance of the complaints against the Applicant. The Applicant then issued his judicial review proceedings on the 22nd July, 1996. 28. It is no part of this Court's function in the Judicial Review proceedings to make any findings with regard to the factual matters at issue between the Applicant and the Law Society. However, because certain documents were exhibited as part of the pleadings, or by consent of the parties were handed into Court, I have carefully read the transcript of evidence of the proceedings in this Court before Murphy J., the Judgment of Murphy J. and of the Supreme Court (Reported at [1995] 3 I. R. 145 and 165), together with various pieces of correspondence and minutes of meetings. Virtually all matters are strenuously contested between the parties but it clearly emerges from this material that very serious matters are at issue not alone in regard to the conduct of the Applicant but also to the conduct of his master Christopher Ryan. It appears that a separate set of judicial review proceedings are in being in regard to the Law Society's response to the Applicant's complaints concerning Mr. Ryan. ISSUES AND CONCLUSIONS 29. The first question raised before the Court by Senior Counsel for the Applicant is as to the jurisdiction of the Education Committee of the Law Society to set up its proposed Inquiry. 30. The procedure whereby a person can qualify for admission as a solicitor is set out in Part IV of the Solicitors Act, 1954 as amended by the Solicitors (Amendment) Act, 1994 . Section 40 of the Act of 1994 replaces Section 24 of the original 1954 Act with a new Section 24 which provides as follows: "24(1) Subject to this Part of this Act , a person shall not be admitted as a solicitor unless - (a) he has attained the age of twenty-one years (b) he has been bound by indentures of apprenticeship for the appropriate term and has satisfied the Society that he has duly served under such indentures of apprenticeship, or has been exempted, as may be prescribed, from being bound by or from service under such indentures of apprenticeship, (c) he has duly attended such course or courses of education or training (or both) and passed such examination or examinations as may be prescribed, or has been exempted as may be prescribed from attending such course or courses or passing such examinations, or any of them, except those examinations that are obligatory for him, (d) he has complied with the prescribed requirements (if any) as to service under indentures of apprenticeship and admission of persons to be solicitors or compliance therewith has been waived in the prescribed manner by the Society, and (e) he has satisfied the Society that he is a fit and proper person to be admitted as a solicitor". 31. It is agreed between the parties that the present applicant, Eamonn Carroll, has fulfilled conditions (a) and (c). The Law Society does not appear to have raised any issue as to whether he has properly fulfilled (b) and (d). The Society claims that he has not fulfilled condition (e), and the proposed Inquiry by the Education Committee or its sub-committee into the various complaints against the Applicant is obviously directed towards ascertaining whether or not the Applicant can satisfy the Society that he is "a fit and proper person to be admitted as a solicitor" . 32. Counsel for the Applicant submits, in summary, that the Education Committee of the Law Society does not have jurisdiction to enquire into or deal with disciplinary matters regarding apprentices where such matters have no direct bearing on educational matters such as attendance at courses, examinations and so on. The complaints against the Applicant contained in the affidavit of Richard Woulfe include allegations of conduct equivalent to criminal offences such as passing himself off as a solicitor and theft, allegations of misleading the Society and its compensation fund, and exposing his master to a VAT liability. These, it was submitted, are allegations of criminal conduct and fraud and have no direct bearing on strictly educational matters. 33. Dr. Forde pointed out that the 1991 apprenticeship and education regulations (S. I. No. 9 of 1991) were introduced by a paragraph stating that the Law Society "In exercise of the powers conferred on it by Sections 4 , , and 40 of the Solicitors Act, 1954 " made the Regulations. Section 4 of the Solicitors Act, 1954 provides that the functions vested in the Society by or under the Act shall be performed by the Council. Under Section 73 of the Act the Council may delegate the exercise of any of its functions to a Committee which it appoints. Section 40 of the 1954 Act as amended by Section 49 of the Solicitors (Amendment) Act, 1994 gives power to the Society to make a large variety of Regulations in connection with education and apprenticeship. In particular Section 40 (5)(i) provides for the making of Regulations "for the control and discipline of apprentices, intending apprentices or other persons seeking to be admitted as solicitors" . It is this sub-section which the Applicant submits can only refer to such matters as courses and examinations which form the subject matter of the bulk of Section 40 . 34. Senior Counsel for the Applicant also argued that jurisdiction for the proposed Inquiry by the Education Committee could not arise under Section 5 of the 1954 Act. Section provides:- "5(1) The Society may make Regulations in relation to any matter or thing referred to in this Act as prescribed or to be prescribed or as being the subject of regulations. (2) The Society may make Regulations for the purpose of the execution of the provisions of this Act . (3) ..........." 35. Dr. Forde submits that Section 5 sub-section (1) addresses the situation where an express provision of the Act envisages some matter to be dealt with by way of regulations, e.g. Section 40 in regard to education and Section 71 which provides for regulations to be made in respect of the professional practice, conduct and discipline of solicitors. He states that it is significant that there is no provision for disciplining apprentices generally equivalent to Section 71 . He also argues that Section 5 (2) authorises regulations only "for the purpose of the execution of the provisions of this Act " . and not for the purpose of obtaining the overall objectives that the Society has laid down in its Charter. 36. Senior Counsel for the Respondent submitted that the education Committee had ample jurisdiction to hold the proposed Inquiry. Section 5 of the 1954 Act permitted the Society to make regulations in relation to a matter referred to in the Act as being the subject of regulations. Section 40 provided that apprenticeship and educational matters were to be the subject of regulations. The society therefore clearly had the power to make the 1991 apprenticeship and education regulations. 37. Under Regulation 26(b)(i) the Committee was entitled to receive and consider any complaint of alleged misconduct made against an apprentice. The Regulations did not limit the Committee to complaints in relation to educational matters. Regulation 26(b)(iii) provides that the educational committee may conduct such hearing and hear such evidence as the Committee considers appropriate and reasonable, including evidence by and on behalf of an apprentice. Under Regulation 26(c) if the Committee finds a complaint of misconduct made against an apprentice well founded it may apply a number of purely educational sanctions such as refusing to permit an apprentice to complete a particular examination. It may, however, also under Regulation 26(c)(i) report in writing to the President of the High Court that such apprentice is not in its opinion for reasons specified in such report a person of good character and a fit and proper person to be admitted as a solicitor. Mr. Hedigan (as he then was) submitted that this gave clear jurisdiction to the Education Committee to hold an Inquiry into the Applicant's conduct. 38. I have no difficulty in accepting, as argued by Dr. Forde, that the Law Society's powers and jurisdiction are limited to the matters set out in its own charter and in the legislation enacted by the Oireachtas in reference to the solicitors' profession (see, for example, Keogh -v- The Commissioner of the Garda Siochana (unreported) High Court Morris P. 6th November, 1997). I would also accept his submission that, as stated by Denham J. in the Supreme Court in Howard -v- Commissioners of Public Works [1994] 1 I. R. 101 at 162:- "Statutes should be construed according to the intention expressed in the legislation. The words used in the statute best declare the intent of the Act . Where the language of the statute is clear we must give effect to it, applying the basic meaning of the words." 39. It seems to me that both the words and the intent of the Solicitors Act, 1954 as amended and of the 1991 Regulations made thereunder are clear and consistent. Part IV of the Act is headed "Qualifying for Admission as a Solicitor". Section 24 (1) as inserted by the Act of 1994 sets out as quoted above the necessary conditions under which a person may be admitted as a solicitor. A number of these deal with purely educational and apprenticeship matters but sub-paragraph (a) deals with an age qualification and sub-paragraph (e) provides that the person must have satisfied the Law Society that he is a fit and proper person to be admitted as a solicitor. On the wording of the Section I understand this to mean that the Oireachtas intended that in educating and training solicitors the Law Society must have regard not only to academic qualifications but also to such matters as maturity, character and general conduct. This is surely reflected in the power given in Section 40 (5) to make Regulations not only in regard to teaching, training and examinations but also in regard to the control and discipline of apprentices. This sub-section was affirmed and extended to cover intending apprentices or other persons seeking to be admitted as solicitors by Section 49 of the 1994 Act. 40. These provisions of the legislation are in turn reflected in the 1991 Regulations. In particular Regulation 26(b) enables the education committee to enquire into and deal with complaints as to alleged misconduct, while Regulation 26(c) empowers the Committee to find that an apprentice is not a person of good character and a fit and proper person to be admitted as a solicitor. This clearly corresponds to Section 24 (1)(e) of the Act . 41. I have no difficulty in believing that the Oireachtas, in enacting the Solicitors Acts, intended that persons qualifying to fulfil the crucial role of solicitors in our legal system should not only be academically qualified but should also be persons of integrity, probity and good conduct. Under the legislation it is part of the duty of the Law Society to ascertain and to certify to the President of the High Court that they are such persons. If the Law Society has this duty, it must also, it seems to me, have the jurisdiction through its Education Committee to enquire into allegations of misconduct and matters of discipline which fall outside the sphere of educational courses and examinations. 42. The Education Committee of the Law Society therefore has the jurisdiction to carry out its proposed Inquiry into the complaints against the Applicant and the Applicant's claim on this point, therefore, fails. 43. The second issue raised by the Applicant concerns the procedure which may be used by the Education Committee's Inquiry. He seeks a Declaration that the Committee cannot rely on hearsay evidence, must permit cross-examination of all witnesses, and cannot rely on the findings of fact made by Murphy J. in the civil case taken in this Court by the Law Society against him and other defendants. In the submissions on this point Dr Forde drew attention to regulation 26(b)(iv) of the 1991 regulations which states: "In conducting any such hearing, the committee shall, as far as is practicable and reasonable, proceed in the same manner as the Disciplinary Committee would proceed when sitting to hear an allegation of misconduct against a Solicitor." 44. He referred to several aspects of the procedure of the Disciplinary Committee which would, if followed by the Education Committee, go a considerable distance to safeguard the rights of the Applicant. He stressed the crucial importance of the inquiry as regards the Applicant's future career and the imperative need for constitutional justice and fairness in such a procedure. 45. The attitude of the Society to this aspect of the Applicant's claim is as follows: (1) The committee can rely on hearsay, there is a line of judicial authority establishing that tribunals of inquiry are entitled to rely on hearsay and to moderate the strict rules of evidence, provided that they act fairly and in accordance with the principles of constitutional justice. (2) The Society agrees that the committee must permit the cross-examination of any witnesses called to give evidence, but does not agree that it must call and present for cross-examination all persons referred to in the various affidavits. (3) The committee can take account of the findings of fact made by Murphy J. in the civil case in this Court. Those findings were made by the judge on the balance of probabilities and not beyond reasonable doubt. The Society takes the view that in dealing with a case such as the Applicant's, where a person who has passed all his examinations and completed his apprenticeship could be precluded from taking up his professional career, the Society should apply the criminal standard of proof of being satisfied beyond any reasonable doubt before coming to a conclusion that the Applicant had failed to satisfy the Society and its Education Committee that he was a fit person to be admitted as a Solicitor. 46. However, the Society submitted that it was not the function of Judicial Review to direct proofs or procedure in advance; the purpose of Judicial Review was to review conduct that had occurred rather than to direct procedure in advance. In this context Counsel for the Society referred to the judgment of Carroll J. in Phillips -v- Medical Council [1992] ILRM 469 at 475 "Judicial Review does not exist to direct procedure in advance but to make sure bodies which have made decisions susceptible of review have carried out their duties in accordance and in conformity with natural and constitutional justice." 47. The Education Committee's inquiry in this case is not a Court of law, but, as the Society itself acknowledges, it is crucial to the Applicant's future professional career and it must act fairly and in accordance with the principles of constitutional justice. 48. I would however accept the submission of Mr Hedigan that it is not the function of Judicial Review to direct procedure in advance and I regard the dictum of Carroll J. in Phillips -v- Medical Council as persuasive authority. I am not therefore prepared to make the declaration sought by the Applicant. 49. Nevertheless, when fixing its procedure, the Society must always bear in mind the standards already mentioned of fairness and constitutional justice. It must carefully consider whether it can rely on hearsay and in some cases double hearsay in the evidence on which it proposes to rely, and whether, if it does so rely, it may be laying itself open to Judicial Review at a later stage. 50. The question of the rules of evidence to be followed by tribunals arose in Goodman International -v- Mr Justice Hamilton [1992] 2 IR 542. At page 564 of the judgment of Costello J. (as he then was), which was upheld by the Supreme Court, the learned judge quotes the statement of Mr Justice Hamilton at the Beef Tribunal: "It is extremely difficult at this stage to give any definitive rulings with regard to the admissibility of evidence. The rules of evidence which have been established over many years by the Courts are of extreme importance to ensure fair play. And having regard to the nature and importance of the allegations and the possible effect on the good name and reputation of any person appearing before it, it is my intention to apply, wherever possible, the rules of evidence which have been established over many years, reserve the right in exceptional circumstances, having heard objections to the admissibility of such evidence in the ordinary way and Counsel for any party affected in any way by any evidence sought to be adduced before the tribunal will have ample opportunity of objecting to its admissibility and securing a ruling thereon." 51. Costello J. goes on to comment: "There is no rule of law which requires a tribunal of inquiry to apply the rules of evidence applicable in a Court of law. The acceptance of evidence and the weight to be given to it is a matter for the tribunal. But it is subject to the requirements of fair procedures and should, for example, a question arise as to the receipt of hearsay evidence, the tribunal might be required to hear persons affected on the point. This is exactly what the tribunal said it will do." 52. It appears to me that both the statement of the now Chief Justice, Mr Justice Hamilton, and the comment of the former President of the High Court, Mr Justice Costello, provide an authoritative guideline for an inquiry such as that envisaged by the Law Society. 53. The third issue raised by the Applicant is the necessity to safeguard the Applicant's privilege against self-incrimination or, as it is frequently called, his "right to silence". 54. As regards this issue Dr Forde points out that a number of allegations which are made against the Applicant amount to criminal offences. In particular the affidavits both of Richard Woulfe and Albert Power allege that he passed himself off as a Solicitor. Not only is this a criminal offence but the Society itself is authorised by Section 77 of the Solicitors Acts, 1954 to prosecute such offences. Dr Forde argues that it is manifest that an inquiry into those very allegations by a committee of the Society on behalf of the Society will seriously threaten the Applicant's privilege against self-incrimination. This is a constitutional privilege (see Re Haughey [1971] IR 217 at page 265) and also a privilege protected by the European Convention on Human Rights (see, for example, Saunders -v- United Kingdom 23 EHRR 313 : 1996). He deduces from this that the Education Committee has no jurisdiction to entertain the allegations set out in Richard Woulfe's affidavit. 55. Mr Hedigan on behalf of the Society submits that there is no conflict between the role of the Society as prosecutor and its role in holding the inquiry through its committee. The Society would not ultimately be the judge as to whether the Applicant had committed a criminal offence or not. Were the Society to prosecute, it would do so in Court and would be required to satisfy the Court that the person complained of was guilty of the offence alleged. Counsel also submitted that the fundamental protection against self-incrimination was the right to silence. The Respondent did not challenge the Applicant's right to remain silent before the Committee and agreed that the Applicant was entitled to refuse any question that might be asked of him on the ground of self-incrimination or indeed on any other ground. 56. The privilege against self-incrimination, or the right to silence, is a constitutionally protected right but it is not an absolute one. The right was most recently fully considered by the Supreme Court in Rock -v- Ireland [1998] 2 ILRM 35. In that case, which was a challenge to the constitutionality of Sections 18 and of the Criminal Justice Act, 1984 , the Supreme Court held that the right to silence is implicit in the provisions of the Constitution . However, the State was entitled to encroach on the entitlement of the citizen to remain silent where reasonably necessary to maintain public peace and order, though the right must be affected as little as possible. (See head note) The privilege against self-incrimination is also fully dealt with in Heaney -v- Ireland [1996] 1 IR 580. 57. These dicta emphasise the importance of the privilege and this, indeed, is acknowledged by the Society in its submission that the Applicant has the right to remain silent. However, the difficulty that arises in such a situation is not so much the question of the Applicant's right to silence as the question of the practical results of his either remaining silent or answering the questions put to him. If he is to deal properly with the allegations made against him at the inquiry it is probably in his interest to answer as fully as possible any question put to him. Silence may damage his case at the inquiry. On the other hand he understandably is concerned that information or evidence given by him in the context of the inquiry might later be used by the Society in mounting a prosecution against him. 58. This is a difficulty which has arisen in other contexts, notably in the statutory procedures laid down by Section 9 of the Proceeds of Crime Act, 1996 , which requires a Respondent to file an affidavit in regard to his property and income which may in the event prove to be self-incriminatory. In M -v- D (unreported High Court Moriarty J. ) considered the practical difficulty which I have outlined above whereby a Respondent who gave affidavit evidence in proceedings under the Proceeds of Crime Act 1996 might later find that evidence used by the prosecuting authorities in a criminal prosecution. The learned Moriarty J. surveyed a number of English cases which dealt with similar difficulties. In Istel Limited -v- Tully [1993] AC 45 the Crown Prosecution Service had undertaken by letter not to profit from any disclosure in the current proceedings and would only rely on evidence obtained independently of the proceedings. It appeared that in the absence of such an undertaking the House of Lords would not have made the order which they made given the possible prejudice which could occur in future criminal proceedings. 59. Moriarty J. concluded: "Applying this judgment to the present case, I am satisfied that, noting the degree of nexus between the Applicant and the office of the Director of Public Prosecutions, it will be necessary if discovery is ordered that an undertaking be given by the Director of Public Prosecutions similar to that given by the Crown Prosecution Service in Istel Limited -v- Tully in order to prevent possible prejudice in any future criminal proceedings." In Gilligan -v- The Criminal Assets Bureau and Ors (High Court unreported 26th June 1997) I also commented on the difficulties that arose under Section 9 of the Proceeds of Crime Act 1996 as follows "In order to minimise any encroachment on the citizen's rights and in order to operate the procedures under the Act in a way which is in accordance with constitutional justice, it seems to me that the Court would need to take particular care in deciding whether to make an order under Section 9 requiring disclosure. This is especially so when one bears in mind the wide scope of the discovery which may be ordered. I note that even in the M -v- D case, where the primary evidence presented by the Applicant was full and convincing, the learned judge required an undertaking to be given by the DPP not to profit from any disclosure which might take place in those proceedings in a future prosecution of the Respondent. Moriarty J. referred to "the degree of nexus between the Applicant and the Office of the DPP". The evidence given in the instant case shows an even clearer nexus than Moriarty J. might have envisaged between the personnel of the Criminal Assets Bureau and the Criminal Investigation Section of the Garda Siochana. It appears to me that the type of undertaking sought by Moriarty J. in the M -v- D case would be essential in virtually every case where an order under Section 9 is granted. Even then there may well be difficulty in operating such an undertaking in a secure and watertight manner." 60. Of course, the dilemma faced by the Applicant in this case is by no means so acute. Here the Education Committee is not empowered to direct the Applicant to give any or any particular evidence and the Society acknowledges his right to silence. Nevertheless the nexus between the Education Committee as the enquiring authority and the Society as a prosecuting authority is very close. 61. On consideration it seems to me that this aspect of the Applicant's claim is also subject to the caveat that it is not the purpose of Judicial Review to direct procedures in advance. While the difficulty I have discussed above is a real one, it does not seem to me to be sufficient reason to hold that the Education Committee cannot be permitted to proceed with its inquiry. I am not prepared to make the declaration sought by the Applicant but again I would direct the Respondent's attention to the need to maintain a clear line of division between this inquiry and any aspect of the Society's role as a prosecutor under Section 77 of the 1954 Act. 62. The final issue raised by the Applicant is that of the composition of the Committee of Inquiry that is to hear his case. This Committee is to consist of three practising Solicitors, with no lay participation. The Respondent through its Counsel informed the Court that the Committee is composed of members of the Society who have had no prior involvement with the Applicant. The Applicant, however, expresses a fear that any committee composed solely of practising Solicitors will be unable to deal independently and impartially with this particular inquiry. The submissions on behalf of the Applicant in regard to the composition of the Committee of Inquiry fall under two headings. Firstly he submits that such a committee is not in accordance with the 1991 apprenticeship and education regulations, and secondly he submits that it offends against the principle of "nemo iudex in causa sua" . 63. With regard to the 1991 regulations, Regulation 26(b)(iv) provides that "in conducting any such hearing, the committee shall, as far as is practicable and reasonable, proceed in the same manner as the disciplinary committee would proceed when sitting to hear an allegation of misconduct against a Solicitor." By virtue of Section 6 (5) of the Solicitors (Amendment) Act 1960 , as amended by Section 16 of the Solicitors (Amendment) Act 1994 , when a Disciplinary Tribunal of the Law Society sits to hear and determine a complaint about the conduct of a Solicitor, the Disciplinary Tribunal "shall sit in divisions, each of which shall comprise three members of whom one shall be a lay member and two shall be Solicitor members" . The Applicant submits that this is an integral part of the disciplinary procedure as regards Solicitors and, by virtue of Regulation 26(b)(iv), should also apply in cases involving apprentices. He also submits, correctly in my view, that there is no evidence before the Court to demonstrate that the inclusion of a lay member would not be "practicable and reasonable" . 64. The Society submits that the composition of the committee of inquiry is not part of the "procedure" of the Disciplinary Committee/Tribunal or of the Education Committee. I find this submission difficult to accept; it seems to me that the selection of the division of the Disciplinary Tribunal is a function of the Tribunal itself as part of its procedure for hearing complaints. Similarly in this case the Education Committee as part of its procedure for hearing the allegations against the Applicant has selected the sub-committee of three Solicitors to hear the inquiry. On balance I consider that Regulation 26(b)(iv) should apply. 65. As regards the "nemo iudex" principle Dr Forde submits that not only must the committee of inquiry act impartially and be seen so to act but it is precluded from acting at all if it lacks the requisite appearance of independence. He referred to a considerable body of case law and to the most useful discussion of the question of institutional bias contained in the second edition of Hogan and Morgan's Judicial Review of Administrative Action. The learned authors have in fact expanded this discussion and brought it up to date in the recently published third edition of their work, at pages 511 to 538. 66. Dr Forde also referred me to an interesting article by Lord Justice Scott entitled "Procedure at Inquiries - the Duty to be Fair" (Law Quarterly Review October 1995). Lord Justice Scott who is, of course, writing from the personal experience of the Scott Inquiry in England, states as the first object to be served by procedures for inquiries "the need to be fair and to be seen to be fair to those whose interests, reputations or fortunes may be adversely affected by the proceedings" (page 597). Towards the end of the article, at pages 612 to 613, he stresses the need for a degree of flexibility in procedures, so that very different situations may be met without producing procedures unsuitable to the object in hand. In my view this is wise advice which might well with advantage be applied to the unusual situation which arises out of the history of the instant case. 67. As regards Irish case law Dr Forde refers me to O'Reilly -v- Cassidy [1995] ILRM 306 and 311. In this case, which dealt with objections to the renewal of the Applicant's liquor licence, objections were raised during the course of the case to the fact that Counsel for the objecting Garda Superintendent was the daughter of the Circuit Court Judge hearing the case. The Supreme Court granted the Applicant leave to seek Judicial Review. In regard to the matter of Counsel who appeared in the case, the Supreme Court held that if no objection is taken to the existence of a relationship between an advocate and a judge, there is no impropriety in the judge continuing to hear the case. In that case there was no allegation that bias had been displayed at any stage by the Circuit Court Judge. But given the Applicant's very considerable stake in the decision and the fact that she instructed her Counsel to object to the relationship, it was arguable that the Circuit Court Judge should have discontinued the case and either arranged for another judge to hear it or taken some other step. The subsequent Judicial Review proceedings were heard by Flood J. in this Court. In dealing with the question of bias the learned Judge stated (at page 319) "Counsel for the Applicant in this Court has anchored his case to the proposition that the mere fact of the proposition of the Judge's daughter being briefed before him is sufficient to give rise to the possibility of a reasonable man considering that bias could follow. Stated in that bold and rigid fashion, I would reject his submission. To accept it would, in my opinion, be to derogate the oath made and subscribed to by every judge on appointment pursuant to Article 34.5.1 of the Constitution to a totally empty formula. In my opinion, there must exist in addition to mere relationship, some element or factor which could (not would) give rise to a fear in the mind of a reasonable man that in the circumstances the relationship between Counsel and judge could affect the outcome of the case. Lord Denning M R in Metropolitan Properties Company (F. G. C.) Limited -v- Lannon [1968] 3 All ER 304 at page 310 says: 'In considering whether there was a real likelihood of bias, the Court does not look at the mind of the justice himself or the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as he could be, nevertheless, if right minded persons would think that in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand .... There must be circumstances from which a reasonable man would think it likely or probable that the justice or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence; and confidence is destroyed when right minded people go away thinking: 'the judge was biased'.' It follows from the foregoing that this Court must look at all the circumstances of the proceedings in question. In my opinion, in the circumstances prevailing in the Court on 21st March, the complaint by the Applicant's Counsel as to the relationship between Counsel and the judge got so inextricably entangled with other factors that there was a real possibility that the end product could give rise to a fear in a reasonable person that the outcome of the proceedings could be affected, in an indeterminate way, by (inter alia) the relationship between the judge and Counsel. In the last analysis the over-riding principle is that justice must be manifestly seen to be done." 68. This seems to me to be an admirable statement of the position. A similar attitude was taken by Denham J. in the Supreme Court in Dublin Well Woman Centre -v- Ireland [1995] 1 ILRM 408, where the Society for the Protection of the Unborn Child had raised an objection to the case being heard by Carroll J. The Supreme Court in that case held that it is essential to the administration of justice that there should be no actual or subjective bias, and furthermore, no objective bias in the sense of the circumstances giving rise to an apprehension on the part of a reasonable person that there might be bias. 69. A current example of the sensitivity of Courts to the perception of bias is, of course, the recent decision of the House of Lords to set aside its original decision in Pinochet's case because one of the judges had an indirect involvement with the Amnesty organisation. 70. In their discussion of the nemo iudex principle Hogan and Morgan also stress the importance of the reasonable person's perception that there may be bias. 71. The cases cited above, of course, refer to the Courts themselves and to the actual administration of justice. Counsel for the Law Society submits that these standards do not apply to a tribunal such as the Education Committee which is not administering justice. He relies on the well known passage from the judgment of Kingsmill-Moore J. in the Solicitors Act case [1960] IR 239 at 272 "adverse comment was made on these features at the hearing. It is true that in a hearing before the Committee a Solicitor will not have the protections he would receive in a Court of justice. Complainant, Tribunal and the person who conducts the complaint are inextricably interconnected. Moreover the circumstances are such as to make it difficult for the Tribunal to be impartial. In many cases the person against whom a complaint is made will be a Solicitor with whom members of the Tribunal have had professional dealings which may have predisposed them in his favour or against him. All of the members are liable to contribute yearly to a compensation fund established under the Act to relieve or mitigate losses sustained in consequence of dishonesty of Solicitors and the amount of such contribution may be increased if found necessary so that there might be a tendency to bear hardly on a Solicitor charged with dishonesty. Although the character and standing of the members is such that they can be expected to resist and rise superior to any influences which might affect their impartiality, and it is not suggested that they do not do so, the Tribunal is not constituted in a manner best calculated to provide the security against bias and partiality which a Court of justice affords. In the opinion of the Court these considerations, though advanced by the Appellants, are not in point. If the Committee are not administering justice the Constitution imposes no restrictions on the composition of the body." 72. It is of interest to note that, in commenting on this particular passage at page 517 of their work, Hogan and Morgan state: "As is attested by numerous cases, the final concluding sentence seems to be incorrect and also probably the result of a preoccupation with the main theme of this well known case (which was about Article 34.1 of the Constitution and the administration of justice being vested in the Courts)." 73. In this context the authors refer particularly to O'Donoghue -v- Veterinary Council [1975] IR 398. 74. In his submissions Counsel for the Law Society also refers to the English case of The Visitors of the Inner Temple Re S (a Barrister) [1981] 2 All ER 952. In his judgment of that case Vinelott J. said "but Counsel for the Appellant founded his submission on another and wider ground. He submitted that a Tribunal, the majority of the members of which are practising Barristers, is incapable of considering fairly a charge of misconduct brought against a fellow Barrister .... In our opinion, the submission is wholly misconceived. There is nothing in the late Professor de Smith's work which has been cited or elsewhere in that work, nor is there anything in any decided case, which supports the proposition that professional men who are members of the governing body of their profession are incapable of hearing impartially a complaint of professional misconduct against a member of their own profession. Indeed, it has always been accepted that professional men are peculiarly well-fitted from their knowledge of the reasons which led to the acceptance by the profession of a code of conduct and from their experience of the difficulties which may confront both the practitioner in observing and the profession in enforcing proper standards of conduct to determine whether there has been a breach of the code of conduct governing the profession and to judge the gravity of it if it is proven." 75. Again I would have certain difficulties in relying on the dictum of the learned Vinelott J. Firstly, the learned judge in this extract is dealing with a situation where only the majority of the members of the tribunal are practising Barristers. Secondly, he is referring to the reality of bias rather than to the reasonable person's perception of bias. Thirdly, it would have to be said that his perception of what is "accepted" is manifestly at odds with public perceptions in 1998. In my view the public perception of professional persons is considerably less reverential and more cynical in 1998 than it was perhaps in England in 1981. 76. I accept, as do Hogan and Morgan, that the standards for domestic disciplinary tribunals are not the same and are arguably not so strict as those for the Courts themselves. Nevertheless it is essential that a situation should not arise where a reasonable person would have a reasonable fear that he would not have a fair and independent hearing of the issues which arose. This is the "objective" test as described by Denham J. in the Well Woman case and it was the test relied on by Kelly J. in Bane -v- the Garda Representative Association [1997] 2 IR 449 . In that case, which concerned a domestic disciplinary procedure, in earlier Judicial Review proceedings two of the Applicants in the case had been Applicants and had sought to no avail, an order restraining the Garda Representative Association from conducting a ballot of its members. The sequel to these earlier proceedings was the disciplining by the GRA of, inter alia, the Applicants in the Bane case. Accordingly, the Applicants claimed that the disciplinary proceedings were flawed by virtue of bias. Kelly J. accepted this contention and stated "It is clear that the test which has to be applied is an objective one. I must therefore ask myself whether a reasonable man would, in the circumstances outlined here, have a reasonable fear that the Applicants would not have a fair and independent hearing of the issues which arose. In my view a reasonable man would have such a fear." 77. In the instant case there are a number of special factors which distinguish it from other cases involving the discipline and conduct of apprentices. The Law Society was aware of the Applicant's background and his earlier apprenticeship with his brother, who had been struck off the Roll of Solicitors. The Society had raised difficulties over his becoming an apprentice with Christopher Ryan which culminated in legal proceedings by the Applicant. The Society had sued him among others for passing himself off as a Solicitor and had lost both in the High Court and the Supreme Court. Many of the allegations against the Applicant arise from his involvement with Accident Claims Service. The public perception would be that Solicitors in general are very hostile to this type of business which might be seen to encroach on Solicitors' handling of personal injury cases. In regard to many of the allegations it seems likely that there will be a direct clash of evidence between the Applicant and Christopher Ryan, who is himself a Solicitor. 78. I am not to be taken as suggesting that the proposed members of the Inquiry would in fact act in a biased fashion or would give anything other than a fair hearing to the Applicant. That is not, however, the question at issue. Bearing mind the dicta to which I have referred and also the wise advice of Lord Justice Scott that in such inquiries the approach should be flexible and the procedures suitable to the object in hand, I conclude in the instant case that of the three members of the Inquiry Committee at least one should be a lay participant. 79. To summarise, it is in my view a combination of the two grounds - the effect of the regulation and the principle of nemo iudex or institutional bias - that makes it imperative that the Committee of Inquiry in this case should have some degree of outside, or lay, participation. The principle of lay participation in professional disciplinary bodies is widely accepted today as a means of ensuring that justice is seen by the public to be done. The principle is generally accepted in the legal profession itself, in the disciplinary bodies both of the Law Society and of the Bar Council. It seems at the very least illogical to deny such participation where the control and discipline of an apprentice is concerned. The particular circumstances of this case make the inclusion of at least one person who is not a Solicitor all the more necessary. 80. I propose therefore to grant the Applicant the relief set out in my Order of the 3rd November 1997 - a Declaration that the Committee of three practising Solicitors designated to hold the Inquiry which is the subject matter of these proceedings is invalidly constituted and has no lawful authority to conduct that inquiry. 81. This does not, of course, mean that it will be impossible for the Law Society to carry out any inquiry into the allegations against the Applicant. The Applicant himself, through his Counsel, expresses himself as perfectly willing to co-operate with a properly constituted Inquiry. It seems to me that there is no obstacle to the Society's Education Committee setting up a Committee of Inquiry with the required lay participation and proceeding with all due expediency to carry out the long-delayed inquiry into the allegations against the Applicant. 82. The final matter raised by the Applicant was the issue of the costs of the Inquiry itself. While I appreciate the difficulties of the Applicant and support the principle of "equality of arms" as argued by his Counsel, I consider that it would be premature at this stage to deal in any way with the issue of the costs of the Inquiry. I will therefore make no Order in regard to this aspect of the matter. © 1999 Irish High Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII