The High Court has dismissed Monaghan County Councillor Hugh McElvaney’s application for judicial review of an ethics investigation by the Standards in Public Office Commission (SIPO). The investigation concerns a complaint that his recorded exchanges with an undercover RTÉ journalist breached local government ethics rules. The High Court did not decide whether he breached those rules.
Mr Justice Garrett Simons delivered judgment on 4 September 2019 after a rolled-up hearing that considered both the application for leave and the substantive judicial review. He dismissed the application in its entirety.
The complaint followed an RTÉ programme broadcast in December 2015. It included recordings of meetings and calls in which a journalist, using the name “Nina Carlson” and posing as an investor, discussed a fictitious wind farm project with the councillor. SIPO’s investigation is to consider whether his responses indicated he sought payment for services, including assistance with planning permission. The court described the recordings as evidence of what the councillor said in response, not proof that the journalist’s claims about the investor or project were true.
The councillor argued that the investigation would be unfair because the journalist would not be available for cross-examination, that RTÉ had entrapped him, and that SIPO’s preliminary inquiry was inadequate. He also pursued an argument that an SIPO employee’s participation in the programme gave rise to apparent bias.
The judge held that the journalist’s absence did not make the procedure unfair. The councillor accepted the accuracy of the recordings, and the court said the dispute was about what inferences should be drawn from his responses. It also noted that the Commission had said he could give evidence, call witnesses and make submissions.
The entrapment challenge was premature. SIPO had not reached a decision on that objection and needed to review the recordings before it could assess it. The judgment expressly left open whether entrapment as an abuse of process applies to non-criminal proceedings.
The judge rejected the challenge to the preliminary inquiry, finding that it was a limited, preliminary process and that the inquiry officer had no power to compel RTÉ to produce documents. He also held that an apparent-bias case had not been properly pleaded. In any event, he found no reasonable basis for apprehending bias from the employee’s limited involvement.
The ruling leaves SIPO’s statutory investigation to proceed; it makes no finding on the underlying complaint. The court also said judicial review would have been refused as a matter of discretion, citing the councillor’s failure to raise preliminary objections earlier and the delay caused while the investigation was on hold.