High Court: Monaghan councillor loses challenge to ethics investigation

About this case:

• Citation:
  [2019] IEHC 633
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Garrett Simons

Dismissing the application for judicial review in its entirety, Mr Justice Garrett Simons found, inter alia, that the Councillor’s entrapment complaint was premature given that the Commission was yet to address this issue on the evidence.

RTÉ Investigates

In December 2015, RTÉ broadcasted a programme entitled RTÉ Investigates Standards in Public Office. During the programme, an undercover journalist posed as somebody from an investment company interested in developing a wind farm. The undercover journalist approached a number of councillors for assistance in obtaining planning permission, one of whom was Councillor Hugh McElvaney of Monaghan County Council.

Councillor McElvaney “stated that he would be the conduit between the investment company and the County Council; that he would assist in identifying suitable sites for the proposed wind farm; and that when the investment company applied to the County Council for planning permission, he would ‘operate there for’ the investment company as well”. Councillor McElvaney had suggested a fee of £10,000 (sterling) in an initial telephone conversation, but then said he would not seek to agree a figure in advance, and that he would only seek payment if the investment company was successful in obtaining planning permission. Councillor McElvaney added that the meeting was “utterly confidential”, and that if the investment company let him down “there’ll be war”.

Complaint under the Local Government Act 2001

After the programme was aired, the Ethics Registrar of Monaghan County Council wrote to the Cathaoirleach and Chief Executive of the Local Authority suggesting a possible contravention by Councillor McElvaney of Part 15 of the Local Government Act 2001 and the Code of Conduct for Councillors.

After considering legal advice, in March 2016, the Cathaoirleach and the Chief Executive then wrote to the Standards in Public Office Commission, requesting for the matter be considered in accordance with section 174(8)(a)(iii) of the Local Government Act 2001. An inquiry officer was appointed to conduct a preliminary inquiry into the complaint and to furnish a report on whether there was prima facie evidence to sustain the complaint.

The inquiry officer found that there was prima facie evidence to sustain the complaint that Councillor McElvaney contravened Part 15 of the Local Government Act 2001 and was in breach of the Code of Conduct for Councillors.

Thereafter, the Standards in Public Office Commission decided to pursue a statutory investigation.

At the hearing before the Commission in September 2018, Councillor McElvaney raised a number of preliminary objections, that:

1. The undercover journalist would not be available for cross-examination
2. That RTÉ had engaged in entrapment
3. That an employee of the Commission had participated in the programme

None of Councillor McElvaney’s objections were upheld by the Commission, however the Commission did say that it would allow the parties to make legal submissions on the issue of entrapment. The proceedings were adjourned to allow Councillor McElvaney to make an application for judicial review.

The High Court

Mr Justice Simons said that the fact that the undercover journalist would be unavailable for cross-examination would not render the procedure before the Commission unfair. He said that since truthfulness is the objective of cross-examination, and anything of substance said by the journalist was untrue – cross-examination was unnecessary. Furthermore, the entitlement to cross-examination “arises where essential facts are in controversy”, and in this case, the essential facts are agreed and the exchanges were recorded.

On the allegation of entrapment, Mr Justice Simons noted that “even in the context of criminal proceedings and the conduct of police officers, the case law indicates that entrapment will be acceptable in certain circumstances. The litmus test appears to be whether the actions of the police officers did no more than present an ‘unexceptional opportunity’ to commit a crime”. Emphasising that his judgment was confined to the facts of the present case, Mr Justice Simons said that the application for judicial review was premature in this regard given that the Commission has not had the opportunity to address the entrapment objection.

Councillor McElvaney submitted that the preliminary inquiry conducted by the inquiry officer was inadequate, complaining that the officer had failed to direct RTÉ to produce certain documents. Mr Justice Simons said this complaint appeared to be based on a misunderstanding of the inquiry’s purpose – which was “to allow the Commission itself to form an ‘opinion’ on whether a prima facie case has been made out”. Furthermore, the inquiry officer has limited statutory powers, which do not include the power to compel the disclosure of documentation.

Considering the complaint about an employee participating in the programme, Mr Justice Simons said this went beyond the scope of the grounds pleaded in the Statement of Grounds. Notwithstanding this finding, Mr Justice Simons stated that there was no reasonable basis under this heading to suggest that the independence of the Commission had been undermined.

Finding that the application for judicial review should be dismissed in its entirety, Mr Justice Simons said relief would have been refused as a matter of discretion in any event.

• by Róise Connolly for Irish Legal News