The Right to Be Heard: Audi Alteram Partum’s Place in Ireland’s Legal System

An image often associated with the law is that of Lady Justice. You will very likely have seen her, duly standing in courthouse foyers, wearing her blindfold, weighted with sword and balance. These attributes stand to represent the backbone of the concept of justice to put it plainly; that being the blindfold to evoke impartiality, the sword to symbolise the upholding of justice’s decision, and the balance to evoke the equal consideration of all parties and indeed the equal consideration of evidence furnished. It is this final element, the balance, that is particularly relevant in relation to the concept of audi alteram partem.

The principle of audi alteram partem is a fundamental element of the Irish legal system. Literally meaning ‘to hear both sides’, audi alteram partum ensures that a person is given the opportunity to reply to the case against them. At the lowest level, audi alterum partem ensures that a person be made aware of any situation wherein a decision which may be unfavourable to their interests is being adjudicated upon, and it ensures that in such an instance, an individual is furnished with all the necessary means to defend themselves. Of course, the principle requires a number of so called ‘facilities’ in order for it to be exercised – notably the Haughey Rights in the Irish administrative law context.

It must be established from the outset that a person must be provided with details of any allegations brought against them. This means, at a minimum, that an applicant should be provided with the names and details of complainants – as granted by the Irish High Court in the case of Ryan v The VIP Cooperative Society Ltd.[1] Acting as a corollary of the right to a fair trial, this right to notice must clearly outline whether a charge is being instigated or not.[2] The ‘facilities’ that will be required by an individual to adequately defend themselves from charges brought against them will differ depending on the context and nature of the charge. For instance, the nature of the charge will determine whether an oral hearing is necessary so that witnesses may be called – it must be recognised that the right to an oral hearing is not guaranteed.

It was opined by Mr. Justice Costello in the case of Doupe v Limerick County Council[3] that constitutional justice does not require that every administrative decision which may have a negative impact on the life of an individual be preceded by a judicial-like hearing wherein cross examination occurs.  Instead, fair procedures must be afforded to each individual.  What these fair procedures actually entail can be neatly summed up under the heading of the Haughey Rights.[4]

The case of Re Haughey[5] involved a Mr. Pádraic Haughey, who was subject to an investigation into the misuse of relief funds for Northern Ireland by the Dáil Public Accounts Committee.  During the investigation, it was alleged by way of hearsay evidence (through a written affidavit, instead of orally presented) that Mr. Haughey was involved in the diverting of public funds to the IRA. As the evidence was provided in writing, Mr. Haughey was afforded no opportunity to cross-examine the witness who had alleged his involvement, and thus it was held by the Supreme Court that his rights to fair procedures had been violated. The Supreme Court further specified four specific rights stemming from Article 40.3 of the Constitution in relation to fair procedures, now most frequently known as the Haughey Rights:[6]

(1) The accused should be provided with a copy of evidence which reflects on his/her good name.

(2) The accused should be allowed to cross-examine, by counsel, his/her accuser.

(3) The accused should be allowed to proffer rebutting evidence.

(4) The accused should be granted the opportunity to address, by counsel, the Committee in his own defence. 

Determining whether the full Haughey Rights apply in a case will depend upon the gravity of the case or in other words, the severity of the consequences for the affected individual. The Haughey Rights are a long-standing, well-respected set of principles within Irish law, pinning the right to cross-examination to a near-sacrosanct post within the justice system. The importance of this right to cross-examination has been further highlighted in the infamous Abbeylara Case,[7] wherein the Supreme Court characterised the right as inevitable and unfettered – a right that could not be infringed upon at the discretion of a tribunal.

There is, however, an additional right stemming from the Haughey Rights, although it is not expressly named. In order to effectively exercise the Haughey Rights, the accused requires a lawyer – thereby establishing the right to legal representation as a corollary of the Haughey Rights. Yet, there is no absolute right to legal representation and similarly no set of guiding principles which does complicate the process to a certain degree. The case of Mathews v Eldridge[8] offers three considerations[9] that should be made in respect of determining whether a person has been afforded fair procedures. Firstly, any private interests that would be affected by the decisions made; secondly, the risk of a mistaken deprivation of the interest through the processes used to adjudicate, and any safeguards in place to prevent such a deprivation; and thirdly, the administrative burden and cost upon the tribunal or judicial body in facilitating those safeguards. This is the single clearest framework, and yet it still leaves a substantial amount to the imagination.

Despite its overall ambiguity, the right to legal representation in recognised in Ireland in certain circumstances. For instance, in the case of O’Brien v PIAB,[10] it was held by Mrs. Justice Denham (as she then was) that within the common law system, the right to legal representation holds a special place.

However, much like Lady Justice carrying her balance to ensure the equal consideration of all sides, more often than not, the right to legal representation must be balanced against competing policy considerations or interests. In Re Commission to Inquire into Child Abuse,[11] the number of counsel that could be present during an inquiry where evidence was being given in relation to instances of child abuse was limited so as to protect the witnesses from suffering the experience of cross-examination. Similarly, in the cases of Burns v Governor of Castlerea Prison[12]and Corcoran v Minister for Social Welfare[13] both restricted the right to legal representation in relation to the nature of the administrative body performing the judicial function. Ultimately, the right to legal representation can be determined on a case-by-case basis, with the recent decision of Irish Rail v McKelvey[14] providing a starting point. In McKelvey, the Supreme Court determined that in considering whether an individual has been afforded fair procedures in relation to the right to legal representation, the most important thing to consider is whether the absence of legal representation would result in an unjust outcome for the individual.

Harkening back to the age-old notion that there are two sides to every story and seeking to ensure that each side has the adequate resources to tell their version of the tale, the importance of audi alteram partem cannot be adequately summarised in an article such as this. It encompasses a wide range of rights, many mentioned in previous paragraphs (the Haughey Rights, the right to legal representation), many defined through caselaw (the duty to give reasons), and many not even yet determined. However, one thing is certain – the constitutional principle of audi alteram partem is perhaps one of the most important elements of the legal system as we understand it. Our legal system is never at a standstill, it is constantly shifting, developing, modernising, but if one thing were to stay the same, it would be, one would hope, the notion of audi alteram partem.

[1] Ryan v The VIP Cooperative Society Ltd (Unreported, High Court, January 10th, 1989).

[2] As per Gallagher v Corrigan [1988] (Unreported, High Court, February 1st, 1988).

[3] Doupe v Limerick County Council [1981] IR 75 (HC); [1981] ILRM 456 at paragraph 28.

[4] The Haughey Rights established in the case of Re Haughey [1971] IR 217 (SC).

[5] [1971] IR 217 (SC), full judgment available at www.supremecourt.ie.

[6] ibid, per Chief Justice O’Dalaigh, at page 261 of the judgment.

[7] Maguire v Ardagh [2002] IESC 21; [2002] 1 IR 385 at paragraph 999 of the judgment.

[8] (1976) 424 US 319.

[9] ibid, per Justice Powell, at pp. 332-335.

[10] O’Brien v The Personal Injuries Assessment Board [2008] IESC 1; [2009] 3 IR 243.

[11] [2002] 3 IR 456 (HC).

[12] [2009] IESC 33; [2009] 3 IR 682.

[13] [1991] 2 IR 175 (HC).

[14] [2019] IESC 79.