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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Donoghue v. The Veterinary Council [1974] IEHC 1; [1977] IR 255 (27 June 1974) URL: http://www.bailii.org/ie/cases/IEHC/1974/1.html Cite as: [1977] IR 255, [1974] IEHC 1

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O'Donoghue v. The Veterinary Council [1974] IEHC 1; [1977] IR 255 (27 June 1974)

The High Court

 

Between

Sean O'Donoghue

Petitioner

And

 

The Veterinary Council

Respondent

 

No. 21p of 1974

[27^th June, 1974]

 

Status: Reported at [1977] IR 255

Kenny J.

1. Before the year 1931 the Royal College of Veterinary Surgeons (which I shall call "the College") was the authority which exercised jurisdiction over the education and registration of veterinary surgeons and the investigation of complaints against them for professional misconduct. The Governments of Britain and Northern Ireland and of the Irish Free State made an agreement under which there were to be two registers-the General Veterinary Register which was that maintained by the College, and the Register of Veterinary Surgeons for Ireland (which I shall call "the Register"). A person registered on the General Veterinary Register or on the Register could, subject to certain conditions, be registered on the other. It also made provision for the investigation of complaints of disgraceful conduct against a veterinary surgeon. This agreement was confirmed by the Veterinary Surgeons Act, 1931. This established a Veterinary Council (which I shall call "the Council") and made provision for the appointment of its members and for the establishment of the Register.
2. Section 35 of the Act of 1931, so far as relevant to this action, reads:-

 

"(1) Whenever a person who is registered in the register and is not registered in the general veterinary register is alleged to have been guilty of conduct disgraceful to him in a professional respect, the Council may itself hold or may appoint a committee of not less than three of its members to hold an inquiry into the conduct of such person…

 

(3) Whenever the Council appoints under either of the foregoing sub-sections of this section a committee to hold an inquiry into the conduct of any person, such committee shall hold such inquiry accordingly and shall report thereon to the Council."

 

3. Section 36 of the Act of 1931 (as a result of s. 2 of the Veterinary Surgeons Act. 1960) now reads:-

 

"(1) Where the Council as the result of an inquiry held by it under this Act into the conduct of a person alleged to have been guilty of conduct disgraceful to him in a professional respect or, as the result of the report of a committee ... appointed by the Council under this Act to hold an inquiry into the conduct of any such person, finds that such person was guilty of conduct disgraceful to him in a professional respect, the Council may, by a resolution in favour of which not less than six members of the Council vote, decide either that the name of such person should be erased from the register or that during a period of specified duration registration of his name in the register should not have effect…

 

(5) A person to whom a decision under this section of the Council relates may, within the period of fourteen days beginning on the date of the decision, apply to the High Court for cancellation of the decision, and it he so applies-

 

(a) the High Court, on the hearing of the application, may either-

(i) cancel the decision, or

(ii) declare that it was proper for the Council to make a decision under this section in relation to such person and either (as the Court may consider proper) direct the Council to erase his name from the register or direct that during a specified period (beginning not earlier than seven days after the decision of the Court) registration of his name in the register shall not have effect…"

 

4. Another agreement between the government of the United Kingdom of Britain and Northern Ireland and the Republic of Ireland was made in 1949 and this was confirmed by the Veterinary Surgeons Act, 1952. It provided that the Government might by order reconstitute the Council.
5. The petitioner was registered on the Register in 1968. On the 28th February, 1973, the secretary of the Council wrote to him stating that she had been directed by the Council to place before him certain information furnished to the Council by the Department of Agriculture and Fisheries. The information was that on the 28th June, 1972, 449 blood samples from a herd of Murphy Brothers, Misbells, County Cork, were submitted under his signature to Thorndale brucellosis laboratory, and that tests showed that 246 of these were taken from one animal and a further 18 were taken from another animal. The letter continued:- "It is therefore alleged that you have committed irregularities in these tests in duplicating samples, attempting to delude the Department of Agriculture and Fisheries and issuing false certificates and that this constitutes conduct disgraceful to you in a professional respect." At this time a beast could be exported only if there was an official certificate in respect of it stating that it was not infected with brucellosis. This certificate was given after an examination of a blood sample from the animal had been made at the laboratory at Thorndale which is under the control of the Department of Agriculture and Fisheries. With the samples sent to Thorndale by the herd owner, there had to be a certificate from a veterinary surgeon that he had taken the samples from different animals, and the sample from each animal was identified by reference to the number on the ear tag.
6. The petitioner's solicitors asked her for information as to the person who made the allegation that their client had committed irregularities constituting disgraceful conduct; they were informed that the information as to these had been sent to the Council by the Minister for Agriculture and Fisheries and that the information was assessed by the Standing and Penal Cases committee of the Council. The petitioner's solicitors subsequently wrote asking whether the Minister had made charges (a) that the petitioner was guilty of having himself duplicated blood tests with the intention of deluding the Department and (b) that the petitioner knowingly issued false certificates well knowing them to have been false and, with the intention of deluding the Department. To this the reply was that the standing committee of the Council had found that the information furnished by the Minister constituted a prima facie case of professional misconduct and that they had recommended, and the Council had accepted the recommendation, that a special committee of inquiry be convened to investigate these allegations. The letter went on to state that the Minister would be asked whether he wished to undertake the prosecution of the inquiry.
7. The Minister was subsequently advised by the Attorney General that he should not act as complainant before the special committee of inquiry of before the Council. This presented the Council with a very difficult problem. Ultimately, Mr. Traolach O'Nualláin (a member of the Council) agreed to allow his name to be used as complainant; he has given evidence and I accept all of it unhesitatingly. Mr. O'Nualláin did not take any part in getting the evidence against the petitioner and he did not instruct the solicitors who acted for him: they were instructed by the registrar of the Council. Mr. O'Nualláin subsequently acted on the Council when it confirmed the decision of the special committee and decided to impose a punishment on the petitioner. Mr. O'Nualláin acted only on what he learned when he was sitting on the Council.
8. The special committee of inquiry met on the 14th November, 1973, when Mr. O'Nualláin and the petitioner were represented by counsel. The chairman opened the proceedings by stating:-"This is an inquiry instituted by the Veterinary Council to hear the case, the complaint of Mr. O'Nualláin against Mr. O'Donoghue" and counsel stated that he was appearing for Mr. O'Nualláin as complainant. Mr. O'Nualláin was not a member of the special committee of inquiry which consisted of five members. The evidence established beyond all doubt that out of a consignment of 449 samples submitted to Thorndale 51 of them came from one animal and 10 from another; that each of the 61 samples was accompanied by a certificate purporting to have been signed by the petitioner showing that each of the 61 samples came from different animals: and that the samples had been delivered to Thorndale by a representative of Murphy Brothers. There was no evidence as to the custody of the samples between the time that they were taken and the date when they were delivered to Thorndale. The petitioner gave evidence that the certificates had not been signed by him but that they had been signed by his partner with his authority.
9. The special committee found that 51 of the samples submitted had been taken from one animal and that 10 of them had been taken from another; that the certificates accompanying the samples were to the effect that each of the 61 samples came from different animal; that the certificates were signed by the petitioner's partner with his authority and were intended to be taken as certificates for which the petitioner was responsible. Another finding was that "although there was an absence of direct evidence as to the custody of the samples during transmission from Bandon to Thorndale, the committee formed the opinion that the benefit of any doubt arising from this fact ought not to be accorded to the petitioner, in view of the absence of any corroboration of his evidence from any of the persons who witnessed the taking of the samples or from any representative of the herd owner." The committee were unanimously of the opinion that the groups of 51 and 10 samples were not taken by the petitioner from different animals as he had certified they were; that the certificates issued by him in respect of the 51 and 10 samples were false and misleading; and that in so issuing false and misleading certificates the petitioner was guilty of conduct disgraceful to him in a professional respect.
10. The Council met on the 18th December, 1973. There were 13 members present, of whom Mr. O'Nualláin was one. The Council considered the transcript of the evidence before the special committee and decided that the facts found by the special committee had been proved to their satisfaction. The Council then met in public session in the presence of the solicitor for the complainant Mr. O'Nualláin and counsel for the petitioner. They invited submissions from counsel in respect of the penalty to be imposed and went into private session. They decided that they (the Council) found that the petitioner had been guilty of conduct disgraceful to him in a professional respect and that during a period of six months his registration on the Register should not have effect. All 13 members present voted in favour of this resolution. The Council then went into public session and announced the results of the hearing and that the petitioner's registration on the Register was not to have effect for six months.
11. The petitioner has appealed to this Court to cancel the decision of the Council on the grounds that Mr. O'Nualláin, an officer of the Council, was the complainant and was also a member of the Council who took part in the hearing and the determination by the Council on the issues of whether the report of the special committee should be adopted and of whether the facts constituted conduct disgraceful in a professional respect. The petitioner contended that this constituted a breach of constitutional justice; he also relied on the finding which did not give him the benefit of the doubt and said that this showed that the case against him had not been proved.
12. It is a fundamental principle of our law that no one should act as a judge in his own cause. Although Mr. O'Nualláin took no part in the preparation of the case for hearing and although he was a nominal complainant (the real complainant being the Minister), he must be regarded as being the complainant and, as he took part in the determination and as he voted on the resolution that the petitioner committed the acts charged and was guilty of conduct disgraceful in a professional respect, the decision of the Council must be cancelled.
13. I propose to quote two authorities only for (be proposition that no person can act as judge in his own cause. In Dimes v. Grand Junction Canal (1852) 3 H L Cas 759., a decision of the House of Lords, a public company filed a bill in Chancery against a landowner in a matter involving the interests of the company. The then Lord Chancellor (Lord Cottenham) was a shareholder in the company and held shares worth several thousand pounds. This was not known to the defendant Dimes. The cause came before the Vice-Chancellor who granted the relief sought by the company and an appeal was taken and heard by the Lord Chancellor who affirmed the decision. A further appeal was brought to the House of Lords where it was held that the Lord Chancellor (who in the meantime had ceased to hold that office) was disqualified from sitting as a judge in the cause and that his decision must be reversed. In the course of his speech to the House of Lords, Lord Campbell said at p. 793 of the report:-"No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest that he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest."
14. In Leeson v. General Council of Medical Education and Registration (1889) 43 Ch D 366 the plaintiff was summoned before the General Medical Council to answer a complaint that he had been guilty of infamous conduct in a professional respect. The inquiry had been ordered as a result of a complaint made by the Medical Defence Union, an association having for its object the protection of members, the prevention of unprofessional conduct and the punishment of offenders against medical law. The General Medical Council conducted an inquiry when two members of it were members of the Medical Defence Union and the plaintiff sought to restrain the publication of their findings. In the course of his judgment at p. 379 of the report Cotton L.J. said:-"Of course, the rule is very plain that no man can be plaintiff, or prosecutor, in any action, and at the same time sit in judgment to decide in that particular case-either in his own case, or in any case, where he brings forward the accusation or complaint on which the order is made." I accept this as being an accurate statement of the law, though in a later part of this judgment I shall indicate that, in my opinion, the decision of the majority of the judges in that case cannot now be regarded as correct. I think that the judgment of Fry L.J. in that case should now be regarded as being the law.
15. There was no discussion about the second ground of appeal and I reserve the question whether in an inquiry such as this, the result of which may be that a professional man is removed from the Register and so prevented from practising, the facts relied on must be proved beyond reasonable doubt or whether it is sufficient t prove them as a matter of probability.
16. The Council have said that they find great difficulty in constituting what will be regarded as an impartial tribunal because most of the complaints against veterinary surgeons come from the Minister, and the Council usually have a number of members who are veterinary surgeons who are attached to the Department of Agriculture and Fisheries and who are in the full-time service of the State. They have said that they would welcome guidance from the Court as to how they are to ensure hat an impartial tribunal will hear complaints made to them.
17. It is not usual for Courts to give advisory opinions-particularly when there has not been any debate on the issues. However, it is highly undesirable that all decisions of the Council should be liable to be cancelled by this Court because the complaint was not heard by an impartial tribunal. In these circumstances I propose to make some remarks which may be of assistance to the Council and the Minister; but I emphasise that these are obiter.
18. The introduction of many new schemes for the eradication of disease in cattle (such as the tuberculosis and brucellosis schemes) which are under the control of the Minister has had the result that the number of veterinary surgeons in the full-time service of the State has greatly increased. The mode of election to the Council is regulated by the Veterinary Surgeons Order, 1954 (S.I. No.68 of 1954). Its composition is now determined by the Veterinary Surgeons Order, 1972 (S.I. No. 15 of 1972) which provides that the Council is to consist of twelve elected members, one member appointed by the Minister and one member appointed by each University in the State which has power to grant a degree in veterinary medicine. Two or three veterinary surgeons who are attached to the Department of Agriculture and Fisheries and who are in the full-time service of the State are (as I have already said) usually elected to the Council.
19. The test to be applied in determining whether a tribunal (be it judge or jury or disciplinary committee) is impartial is that a member is not impartial if his own interest might be affected by the verdict, or he is so connected with the complainant that a reasonable man would think that he would come to the case with prior knowledge of the facts or that he might not be impartial. This formulation is illustrated by some of the leading cases on the matter. In Bailey v. Macauley (1849) 13 Q B 815. a firm of advertising agents brought an action against a member of a provisional and managing committee of a railway company. The action was tried with a jury and, after it had been dismissed, the plaintiff discovered that one of the jury was a member of the provisional and managing committee of the railway company who were liable for the debts of the railway company which would have to indemnify them. The Lord Chief Justice Denman having referred to the fact that the juror who served as foreman was a brother committee man of the defendant went on to say at p. 828 of the report:-"This appears to us to be wrong: though he was left on the special jury, he ought to have informed the Judge of his peculiar position. He does not make any affidavit that he did not know that he was about to dispose of interests essentially the same as his own; and a juryman's affidavit may explain the circumstances under which he came into the jury box, though a juryman's affidavit of what occurred in the box during a trial cannot be received. We, therefore, cannot help inferring that he thought that his own interest might be affected by the verdict, and are of opinion that for this defect there ought to be a new trial…"
20. I have already outlined the facts in Dimes v. Grand Junction Canal (1852) 3 H L Cas 759. but Lord Campbell's statement of the general principle is not confined to a prohibition on a man being a judge in his own cause; it extends to a cause in which he has an interest. At p. 793 of the report he went on to develop this principle in these words:-"Since I have had the honour to be Chief Justice of the Court of Queen's Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they re not influenced by their personal interest, but to avoid the appearance of labouring under such an influence."
21. 1 have already referred to the facts in Leeson v. General Council of Medical Education and Registration (1889) 43 Ch D 366. The majority of the court decided that the fact that two of those who sat on the tribunal were members of the Medical Defence Union did not invalidate he decision of the General Medical Council. Lord Justice Bowen, who was one of those constituting the majority, said at pp. 384-5 of the report:- "The question which has to be answered by the tribunal which has to decide-the legal tribunal before which the controversy is waged-must be: Has the judge whose impartiality is impugned taken any part whatever in the prosecution, either by himself or by his agents ? I think it is to be regretted that these two gentlemen, as soon as they found that the person who was accused was a person against whom a complaint was being alleged by the Council of a society to which they subscribed, and to which they in law belonged as members, did not at once retire from the Council. I think it is to be regretted, because judges, like Caesar's wife, should be above suspicion, and in the minds of strangers the position which they occupied upon the Council was one which required explanation. Whatever may be the result of this litigation, I trust that in future the General Medical Council will think it reasonable advice that those who sit on these inquiries should cease to occupy a position of subscribers to a society which brings them before the Council." If Bowen L.J. thought it regrettable that the two members of the Medical
22. Defence Union sat as members of the tribunal of the General Medical Council and if he thought it reasonable advice that the members of the Council should cease to be subscribers, it seems to me that he should have held that the decision of the General Medical Council be reversed. Lord Justice Fry, who dissented, said that he thought the case was governed by R. v. Allan (1864) 4 B & S 915; he went on to add at p. 390:-"I think that it is a matter of public policy that, so far as is possible, judicial proceedings shall not only be free from actual bias or prejudice of the judges, but that they shall be free from the suspicion of bias or prejudice: and I do not think that subscribers to associations for the purpose of carrying on prosecutions can be said to be free from suspicion of bias or prejudice in the case of prosecutions instituted by the associations to which they subscribe." I prefer the judgment of Fry L.J. to that of the majority particularly as since 1889 the Courts have shown that they require a higher standard of impartiality and absence of the appearance of bias.
23. The last case to which I wish to refer is The People (Attorney General) v. Singer [See [1975] IR 408] which was a decision of the Court of Criminal Appeal given on the 23rd June, 1961; unfortunately, it has not been reported anywhere. Paul Singer and his wife were directors of Shanahan's Stamp Auctions Ltd. which went into liquidation on the 23rd May, 1959. Shanahans conducted the business of buying stamps and selling them by auction. The funds for the purchase of stamps were obtained by invitation from members of the public: under the scheme operated by Shanahans, members of the public who furnished money were entitled to the return of their money and, under certain conditions, to "profits." The moneys subscribed by members of the public were alleged to have been misappropriated by Singer. The liquidator of Shanahans was Mr. Gerald O'Brien, one of the senior partners in the firm of Craig Gardner and Co. The foreman of the jury which convicted Singer was a chartered accountant in the employment of Craig Gardner & Co., and he was an investor in Shanahans and a claimant against it in the liquidation in respect of his investment. Shanahans was completely insolvent. The Court of Criminal Appeal set aside the conviction because the presence on the jury of a person who was an investor and claimant against Shanahans offended against the idea that jury trial is "third-party judgment, judgment by indifferent persons."
24. It seems to me that when the original complaint to the Council is made by the Minister, a reasonable man would think that an official working in the Minister's department was not impartial for he is adjudicating on a complaint made by his Minister. An outsider might think that he came to the inquiry with a prior knowledge of the facts upon which the complaint was founded. As many of the complaints to the Council come from the Minister, it seems to me that the only way in which the suspicion of bias can be avoided is that those who are in the full-time employment of the State and are working in the Department of Agriculture and Fisheries should not go forward for election to the Council. Similarly, the person nominated by the Minister to the Council should not be an official of his but should be a veterinary surgeon in private practice.