UCD’s proposed Dignity and Respect Policy is an initiative by the university to clamp down on issues of harassment and discrimination across campus, in line with Minister Simon Harris’ commitment to take further action on these issues across third-level institutions.
Paragraph 9 of this policy states that, ‘if a staff or student is acquitted of a criminal charge then an investigation can still be taken under this policy’. The issue with this paragraph concerns the importance of fair procedure in administrative proceedings and the difficulty this paragraph poses when the law in this area is applied.
The question here is; does the general prohibition to retrial apply to administrative proceedings? In the instance set out by the policy the individual has been acquitted of a criminal charge meaning that a jury has found them not guilty to the standard of beyond any reasonable doubt. If this case is then to be put in front of a tribunal, the disciplinary proceedings are then regarded as undermining the decision of the jury and the fundamental purpose of the judicial system.
This principle was established in the case of McGrath v Commissioner of An Garda Siochana , where a Garda was acquitted of charges of embezzlement but then subject to administrative proceedings on the issue. The Supreme Court held that these secondary proceedings served to set aside the findings of the jury and that this could not be justified. From this point the McGrath rule developed, prohibiting retrial in front of an administrative body after acquittal by a jury.
So if this McGrath rule is to be applied in the context of paragraph 9 set out above this is where problems begin to arise. Although stated that a secondary investigation will be carried out under the policy, this contradicts the rule in McGrath. The application of this rule means that a person whose guilt has not been proven beyond all reasonable doubt but may still be guilty on the balance of probabilities will escape disciplinary proceedings.
There are, however, some means of evading the McGrath rule, which seemingly UCD will seek to exploit based upon the definitive wording of paragraph 9. The rule may be avoided when some other transaction becomes part of the proceedings. This essentially means that if the subsequent administrative proceeding is called for a matter which was not considered before the court there is no contradiction of the court’s decision and so no infringement of the McGrath rule.
However, this evasion of the McGrath principle may call how satisfactory the proceedings under the policy can be in to question. If in order to evade the McGrath rule some other transaction must be part of the proceedings, the original issue may become diluted and applicants may become discouraged from seeking administrative action with this evasion requirement acting as a barrier. This raises the concern of the sincerity of the proposed policy, is it realistic in its effect or simply performative?
Louise Kennedy – Law Reporter