LA v The Director of the Garda Youth Diversion Programme & Anor (Approved)

Although distinguishing it from the case before him, Simons J. made clear that “ An example of the type of reasons which would pass muster is provided by the facts of Kelly v. Director of Public Prosecutions ” and he went on to list, with reference to the facts in that case, several reasons which informed the decision not to admit, to the Programme, the two Applicants in the Kelly case.

The court did not suggest that this was an exhaustive list. Nor was it suggested that, in order to be adequate, there must be a multiplicity of reasons. One reason cited, with reference to the facts in Kelly , was “the fact that the second applicant had benefited from the Programme on several previous occasions ”. That is precisely the reason detailed in the first paragraph of the Director’s 21 October 2021 letter to the Applicant’s solicitor. As Simon’s J went on to state with regard to the examples of reasons given: “ A short statement along these lines would fully discharge the duty to give reasons ”. The foregoing occurred in the present case. Furthermore, the reasons were understood by the Applicant’s solicitor.

One could feel nothing but sympathy for someone who faces the Applicant’s challenges but for the purpose of the present proceedings, it seems appropriate to point out that there is no averment made to the effect that, in view of her challenges, the Applicant could not understand the reasons given by the Director; or did not recall her 5 prior assaults on care workers; or did not recall her prior admissions to the Programme; or did not recall the 5 cautions previously issued to her. The evidence before the court is that the Applicant has supportive parents and the benefit of very experienced solicitors and counsel. That being so, the court cannot hold that the Director’s reasons could not be comprehended by the Applicant, nor is this suggested.

Among the authorities to which the Applicant directed this Court’s particular attention is the Supreme Court’s decision in Mallak v. The Minister for Justice [2012] 3 IR 297 , in particular, the following statement by Fennelly J, at para 68:

As regards the Applicant’s reliance, in the present proceedings, on Mallak it is clear that Simons J. relied on the same authority as a basis for distinguishing his decision in S (Identity Protected) from that in Kelly v DPP . Simons J held, at para. 73:

Thus, reliance on Mallak , takes the Applicant as far, but no further, than the principles set out with clarity by Simon’s J in S (Identity Protected) , as regards the Director’s duty to give reasons, and the extent of that duty. It should also be noted that, at issue in Mallak , was a 2008 decision by the Respondent Minister to refuse a 2005 application for a certificate of naturalisation, in circumstances where no reasons were provided for the decision, and the Minister insisted that he was not obliged to explain his decision. The legislative context and specific facts in the present case are very different to those in Mallak . Far from insisting that he is not obliged to explain his decision, the Director has provided reasons for it, which, in my view, are sufficient in light of his obligations in this regard.

At the risk of stating the obvious, it is the principles outlined in S (Identity protected) which are of direct relevance to the facts in the present case and which are, therefore, of far more assistance insofar as determining the Applicant’s claim, than more general statements of principle which can be found in a wide-range of authorities, including in cases where the factual background and context in which those principles were outlined, is markedly different to that which pertains in the present case.

Another authority relied on by the Applicant is the Supreme Court decision of YY v Minister for Justice [2017] IESC 61 . The facts in YY and the context in which the impugned decision in that case arose, are in stark contrast to those in the present case and entirely distinguishable. In YY the relevant decision concerned the Minister’s reasons to refuse an application pursuant to s.3(11) of the Immigration Act 1991 to revoke a deportation order to Algeria. As O’Donnell J. (as he then was) stated in the very first paragraph of the Supreme Court’s judgement:

The Applicant places reliance on para. 80 of the Supreme Court’s decision, but to see it in context it is appropriate to also quote para. 79:

Having considered the matter, I have come to the conclusion that the reasons provided by the Minister were inadequate to support the decision here. In requiring more by way of reasons, I consider that a court should be astute to avoid the type of over-refined scrutiny which seeks to hold civil servants preparing decisions to the more exacting standards sometimes, although not always, achieved by judgments of the Superior Courts. All that is necessary is that a party, and in due course a reviewing court, can genuinely understand the reasoning process. But even taking that broad and common sense approach, I have come to the conclusion that it is not sufficiently clear why the Minister came to the conclusion that the applicant could be deported to Algeria without a real risk of torture, or inhuman or degrading treatment, and why the Minister considered that such a decision ought not to be revoked. I have come to the conclusion that I cannot have the level of assurance that is necessary that the decision sets out a clear reasoned path, and moreover one that was not flawed or incorrectly constrained by unjustifiable limitations or irrelevant legal considerations.”

The Applicant lays particular emphasis on the Supreme Court’s statements that it is necessary that “ a party, and in due course a reviewing court can genuinely understand the reasoning process ” and “ that the decision sets out a clear reasoned path, and moreover one that was not flawed or incorrectly constrained by unjustifiable limitations or irrelevant legal considerations ”. It was on the specific facts in YY that the Supreme Court held that it was “ not sufficiently clear why the Minister came to the conclusion ” and the Supreme Court’s observations were plainly related to the particular facts in YY , which involved complex issues including constitutional rights, statutory rights and Convention rights as well as individual liberty and State security. By contrast, what is at issue in the present case, concerns a decision by the Director who, exercising their statutory discretion, took the view that it was not appropriate to admit the Applicant, for a sixth time, to the Juvenile Diversion Programme to which she had previously been admitted on multiple occasions, (giving rise to multiple previous cautions), which decision is neither said to be unreasonable nor irrational. Admission to the programme is neither mandatory nor as of right. The Director did in fact give reasons for his decision and those reasons, in my view, were adequate.

Similar comments apply in relation to the range of authorities cited by the Applicant, including the Supreme Court’s decision in NECI v The Labour Court [2021] IESC 36 and the earlier High Court decision in Balz v An Bord Pleanala [2018] IEHC 535 , which case was discussed in NECI .

In the Applicant’s submissions, particular emphasis is laid on the observations of Mr. Justice MacMenamin, at paragraph 157 of his judgement in NECI . To understand the context in which the learned judge provided that guidance, it is appropriate to note that NECI involved a challenge to a Sectoral Employment Order (“SEO”) with far-reaching effect in the setting of terms and conditions in respect of the rights of numerous employees across the entire electrical contracting area in the State. The SEO was the subject of a recommendation by the Labour Court under procedures laid down in Chapter 3 of the Industrial Relations Amendment Act, 2015 (“the 2015 Act”) and subsequently embodied in SI 251/2019. The Respondent, NECI , represented small and medium-sized electrical contractors and successfully applied for judicial review in respect of the SEO. The case was, on any analysis, a very complex one. In addition to a challenge to the constitutionality of Chapter 3 of the 2015 Act on foot of which the relevant statutory instrument had been promulgated, NECI contended that, in making the recommendation on foot of which the relevant statutory instrument was promulgated, the Labour Court acted ultra vires the 2015 Act, by failing to give reasons for its recommendation. The NECI was successful on both issues at first instance. A sense of what was at issue is clear from para. 34 of the judgment of Mr. Justice Charleton in NECI :

Before proceeding further, it is appropriate to state that, in the present case, there is no ‘puzzlement’. There is no doubt about why the decision was made, when one looks at the reasons given, in the context in which they were provided. Even if the principles derived from S (identity protected) were not directly applicable (and I am satisfied that they are) I take the view, for the reasons set out in this judgment, that what Charleton J. referred to as the “ normal rule ” (as regards the giving of reasons and their extent) is a rule the Director has complied with in the present case.

From para 147 onwards of his judgement in NECI , Mr. Justice MacMenamin set out certain principles in respect of the duty to give reasons and, to understand the context in which the learned judge’s statements at para. 157 arise, I now set out the relevant section from his judgement, as follows:

In Connelly v. An Bord Pleanála [2018] ILRM 453, this Court held that it was possible to identify two separate, but closely related, requirements regarding the adequacy of any reasons given by a decision-maker. First, any person affected by a decision should at least be entitled to know, in general terms, why the decision was made. Second, a person was entitled to have enough information to consider whether they can or should seek to avail of any appeal, or to bring a judicial review of a decision. The court held that the reasons provided must be such as to allow a court hearing an appeal, or reviewing a decision, to actually engage properly in such an appeal or review. The court went on to explain that it may be possible that the reasons for a decision might be derived in a variety of ways, either from a range of documents, or from the context of the decision, or some other fashion. But this was subject to the overall concern that the reasons must actually be ascertainable and capable of being determined (see Connelly , para. 7.1 to 7.6).

In Meadows v. Minister for Justice [2010] 2 IR 701 , Murray C.J. stated: -

In Rawson v. Minister for Defence [2012] IESC 26 Clarke J. (as he then was) stated, on behalf of this Court, that: -

In EMI Records (Ireland) v. Data Protection Commissioner [2013] IESC 34 , Clarke J. (as he then was) concluded that a party was entitled to sufficient information to enable it to assess whether the decision was lawful and, if there be a right of appeal, to enable it to assess the chances of success, and to adequately present its case on the appeal. The reasons given must be sufficient to meet those ends.

In Oates v. Browne [2016] 1 I.R. 481, Hardiman J., in this Court, stated that it was a practical necessity that reasons be stated with sufficient clarity so that, if the losing party exercises his or her right to have the decision reviewed by the Superior Courts, those Courts have the material before them on which to conduct such a review. But to this he added: -

Finally, the judgment of this Court in Balz & Anor. v. An Bord Pleanála [2019] IESC 90 contains a number of observations which strike home in this case. Balz concerned a decision on a planning application. The judgment makes the point that the imbalance of resources and potential outcomes between developers, on the one hand, and objectors, on the other, means that an independent expert body, carrying out a detailed scrutiny of an application in the public interest, and at no significant cost to the individual, is an important public function.

Having pointed out that the Board and its inspector had carried out their functions with a high degree of technical expertise, the judgment went on to describe that, on the facts of that case, it was nonetheless unsettling that there should be an absence of direct information on one of the central planning issues which arose. O’Donnell J. stated that this might have occurred as a result of an unfortunate misunderstanding at the time of the appeal, and the Board’s decision might have become entrenched in the defence of these proceedings. He allowed that there might be valid reasons why a board, or other decision-making body, might draft its decisions in a particularly formal way, and that, in most cases, interested parties would be able to consult an inspector’s report to deduce the reasons behind the Board’s decision. But, on the facts before the court, he observed: -

But the judgment in Balz made clear that when an issue had arisen where it was suggested that the Inspector, and the Board , had not given consideration to a particular matter, it was also unsettling that the issue raised should be met by the bare response that such consideration was given (for a limited purpose) and nothing had been proven to the contrary. Similarly, while an introductory statement in a decision that the Board had considered everything it was obliged to consider, and nothing it was not permitted to consider, might: -

This last passage has a particular resonance in this case. Balz makes clear that a decision-maker must engage with significant submissions. The judgment emphasises that it is a basic element of any decision-making affecting the public that relevant submissions should be addressed, and an explanation given why they are not accepted, if indeed that was the case. This is fundamental not just to the law, but also to the trust which members of the public are required to have in decision-making institutions, if the individuals concerned, and the public more generally, are to be expected to accept decisions with which, in some cases, they may profoundly disagree, and with whose consequences they may have to live. (Para. 57 et seq of the judgment.)

The questions applicable in this case are, therefore: -

Obviously, the test must be an objective one. The views of an aggrieved party having recourse to a tribunal may be a consideration. But, when determining whether the reasons given were sufficient, the test must be more dispassionate and detached. In this case, the potential audience is relevant. The Labour Court was engaged in a statutory role, involving compliance with statutory duties to protect rights, where public interest required transparency. The reasons had to be sufficient, therefore, not just to satisfy the participants in the process, but also the Minister, the Oireachtas, other affected persons or bodies, and the public at large, that the Labour Court had truly engaged with the issues which were raised, so as to accord with its duties under the statute.”

The dicta in NECI needs to be understood in the context of the facts of that case. It seems to me that the questions posed by the Supreme Court at para. 156 were those applicable in light of the particular facts in the case before it. The factual and legislative situation and the context in which the Director made his decision in the present case is entirely different to the Labour Court’s decision in NECI . It also seems to me that the questions posed by the Supreme Court in NECI were a concrete illustration of (a) the reality that there is no ‘one size fits all’ approach to the question of reasons and their extent; and (b) that justice, including constitutional and natural justice, must react to facts and circumstances.

In short, what was required of the Director in the present case differs from what was required of the Labour Court in NECI , because of the starkly different facts, circumstances and context. As Mr Justice Hedigan made clear in Kelly v DPP [2009] IEHC 200 : -

At paragraph 147 of his Judgment in NECI , MacMenamin J. summarised certain principles which had been articulated by the Supreme Court in Connelly v. An Bord Pleanála [2018] ILRM 453. It is appropriate to note that, whereas Clarke CJ made clear at para. 6.15 in Connelly , that a person affected by a decision is (i) at least entitled to know in general terms was made and that (ii) the reasons provided must be such as to allow a court hearing on appeal or reviewing a decision to actually engage properly in such an appeal or review, the learned judge went on to state the following, at para 6.16:

The foregoing statement of principle seems to me to be highly relevant in the present case, fortifying me in the view that (i) a ‘one size fits all’ approach cannot be taken with regard to the adequacy of reasons, and that, (ii) notwithstanding statements of principle in cases where the facts, circumstances, and context in which the decision and reasons given (or not given) are markedly different to the situation in the present case, the Applicant’s claim falls to be determined in accordance with the principles set out in S (identity protected) .

I say the foregoing, conscious of the observations made by the former Chief Justice, from para 5.1 onwards in Connelly , with regard to the wide range of different decisions and decision-making processes: -

The former Chief Justice’s point that “ the type of reasons which may be necessary will depend, amongst other things, on the type of decision which is being made and the legal requirements which must be met in order for a sustainable decision of that type to be reached ” is highly relevant and does not seem to me to be at all at variance with the approach taken in S (identity protected) .

Even if the principles derived from S (identity protected) were not directly applicable and even if this court did not have the benefit of that decision and embarked on a fresh consideration of the adequacy of reasons, I am entirely satisfied that, by virtue of the reasons given in the present case, and the context in which they were given, the Applicant and her legal advisers knew, at least in general terms, why the decision was made; and were given enough information to consider whether to bring a challenge in respect of the Director’s decision. Moreover, the reasons provided by the Director were such as to allow this court to engage properly with the decision made. In short, reasons were given which were clear, comprehensible and, in my view, adequate, having regard to not only the principles derived from S (Identity Protected) but the principles which emerge from the wider jurisprudence, including the authorities on which the Applicant placed reliance.

If the fundamental principle is that “ understanding and comprehension ” should be “ the object of any decision ”, I am satisfied that, in the present case, this object was attained by virtue of the reasons given in the 21 October letter. It will also be recalled that the Applicant’s solicitor ( per para. 26 of her 28 October 2021 affidavit) engaged with same, plainly understanding the reasons given, but contending for a different decision than the Director in fact made.

For the reasons set out in this judgement, the Applicant’s purported reliance on various statements of principle from a range of authorities concerning very different decisions and contexts to the present position, such as the recent judgement in Ballyboden Tidy Towns Group v. An Board Pleanála [2022] IEHC 7 , does not entitle the Applicant to relief. The Applicant places particular reliance on para. 262 of the judgment in Ballyboden . To understand the context in which para. 262 arises and, indeed, to get a sense of the starkly different decision-making which was at play in Ballyboden , it is useful to quote verbatim, paras. 262 - 264, inclusive:

Also informing my view of the intended generality of the views of O’Donnell J in Balz , I note its distinct echoes of the views of McKechnie J. in Byrne v Fingal County Council 214 as to development plans: notably the idea that the plan is “answerable to public confidence”, and “those affected, many aversely, must abide the result. They must suffer the pain, undergo the loss and concede to the public good.” 215 O’Donnell J, entirely predictably in my view, using slightly different wording, tells us that the Board and its decision-making are “answerable to public confidence”. To be answerable to public confidence requires that reasons be given - and that they be given in form and content sufficient to the aim of maintaining public confidence - and in particular the confidence of those who must abide the result, suffer the pain, undergo the loss and concede to the public good.

Though the analogy between a decision in a planning application and a judgment by a court is far from complete, it is nonetheless notable that in Defender v HSBC France [2020] IESC 37 O’Donnell J observed that an important part of the administration of justice is that “a party, in particular the losing party, should believe that his or her case was fairly ventilated and considered.” Of course, the Board is not engaged in the administration of justice and the principle stated by O’Donnell J imposes different degrees of reason-giving obligations in different contexts. But in general terms the principle applies to both forms of decision-making via the public interest in public faith in decision-making by public institutions. And it seems to me that the remarks of O’Donnell J in this regard in Defender and in Balz are of a piece. As I have said above less elegantly and less completely, reasons are for losers.”

The foregoing extract clearly illustrates the very different factual including statutory context with which the court in Ballyboden was concerned. What also emerges very clearly is the court’s emphasis on the principle highlighted by the current Chief Justice in Defender as regards “ different degrees of reason-giving obligations ” arising in different contexts. In the present context, the reasons given by the Director were clear and sufficient. I simply cannot agree with the submission that the those reasons were “ delphic ”. The reasons given, in the context in which they were proffered, were neither abstruse nor ambiguous. In my view the reasons accord with the principles set out by this court in S (Identity Protected) and were sufficient.

Although not determinative of the issue in the present case, it also seem to me that if the Applicant was correct, and I am satisfied that they are not (i.e. if the Director was under a duty, when proffering reasons, to set out all information and documentation he had engaged with and the manner he had engaged with it, and to include in this discursive explanation of his reasons, his engagement with any and all submissions made by on behalf of a would-be entrant into the Programme) a potential consequence is the creation of an enormous administrative burden and the introduction of very significant delay with regard to the operation of the Juvenile Diversion Programme. It does not seem unduly alarmist to suggest that if the Applicant was correct as to the obligations on the Director, it would have the potential to prejudice, in a material way, the very operation of the statutory Programme.

For the reasons set out in this judgment, I am satisfied that the Applicant’s rights to fair procedures have not been breached. At para. 54 of the Applicant’s written submissions it is contended that “ the refusal to admit the Applicant to the programme ought to be quashed as the decision-making process was procedurally unfair, lacked transparency, and was not reasonably or soundly based .” Even if the entire of the foregoing submission speaks to the case, as pleaded, the Applicant has not established the foregoing. Reasons have, in fact, been given and the Director’s reasons are, in my view, adequate insofar as his obligations. A discursive explanation is not required by constitutional or natural justice, or pursuant to the European Convention on Human Rights. The Applicant’s case falls to be dismissed.

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