The Supreme Court has dismissed an appeal challenging the appointment of a former Defence Forces member as Ombudsman for the Defence Forces (DFO), holding that the statutory bar applies to serving members, not former members.
The appeal was brought by former corporal Patrick Gorman and the Permanent Defence Force Other Ranks Representative Association (PDFORRA) against the Government, the Attorney General, Ireland and the DFO. They argued that the Ombudsman (Defence Forces) Act 2004 disqualified former Defence Forces members from the office and that the DFO’s part-time appointment was unlawful.
Gorman had complained in February 2010 about the actions of his platoon commander while he was serving overseas with the 102nd Battalion in Chad. After an initial investigation, he asked that the complaint be forwarded to the DFO. At the time of the judgment, it was awaiting consideration.
The Supreme Court first considered whether the appeal had become moot because Gorman and the former DFO, Patrick Anthony McCourt, had retired, and the office was then held by a full-time appointee who was not a former Defence Forces member. The court decided to hear the appeal because the questions could affect Defence Forces members in future complaints and the respondents considered it appropriate for the court to rule.
On statutory interpretation, the court said the words barring a “member of the Defence Forces” from holding the office referred to a current member. It rejected the appellants’ arguments that other provisions of the Act created inconsistencies requiring “member” to include former members. The court said a former member was a distinct category and there was no basis to read extra words into the provision.
The court also rejected the claim that McCourt’s former service as an officer meant his appointment lacked independence. It noted the appellants had provided no supporting evidence, and that McCourt had held legal and judicial roles requiring impartiality during the years before his military retirement.
On the part-time appointment, the court found no evidence that working three days a week compromised McCourt’s independence or ability to perform the role. It said reduced hours could raise a question if clear evidence showed they impaired the office’s functions, but that issue was hypothetical on the evidence before it.
The court agreed with the High Court’s conclusion and dismissed the appeal. It did not determine whether a materially reduced workload or hours could compromise the office in a future case.