Appeal dismissed; no objective bias found against Dr Kenny despite allegations of pre-judgment on radio licence award.

THE SUPREME COURT

NO. 194/00

Denham J.,

Murray J.,

Geoghegan J.,

BETWEEN

SPIN COMMUNICATIONS LIMITED TRADING AS STORM FM

Appellant

-and-

THE INDEPENDENT RADIO & TELEVISION COMMISSION

Respondent

-and-

MAYPRIL LIMITED TRADING AS SPIN FM

Notice Party

Judgement of Murray J. delivered on the 2nd day of February, 2001

In these proceedings the Applicants, and Appellants before this court, Spin Communications Limited trading as Storm FM (hereinafter

referred to as the Appellants) have sought, inter alia, an Order of certiorari by way of Judicial Review quashing the decision of the

Independent Radio and Television Commission (hereinafter referred to as the Respondent or the Commission) announced on the 11th

of October 1999 whereby it awarded a sound broadcasting contract, commonly referred to as a radio licence, to Maypril Limited

trading as Spin FM (hereinafter referred to as the Notice Party). The contract awarded was for a radio service for Dublin designed to

serve the 15 - 34 age group. The proceedings were heard by Mr Justice O’Caoimh in the High Court who by judgement delivered on

the 8th day of June 2000 dismissed the Appellants application.

It is from the judgement and Order of the learned High Court Judge that the Appellant appeals. There is just one ground relied upon

by the Appellants in their appeal that is, that there was objective bias on the part of Dr Colum Kenny who was a member of the

Commission and participated in the decision to award the radio licence to the Notice Party. In the appeal the Appellants contend that

the facts of the case are such as would lead a reasonable person to apprehend that there was a real danger that his chance of a fair

and independent evaluation of the application for the licence did not exist by reason of a pre- judgement made by Dr Kenny.

The formal process leading to the award of a sound broadcasting contract or radio licence, may be briefly described as follows. In

April 1999 pursuant to Section 5 of the Radio and Television Act 1988, the Commission, by way of public advertisement, invited

applications for a radio licence for Dublin orientated to the 15 - 34 year old age group.

The formal document inviting applications also comprised a guide setting out, inter alia, the format in which applications should be

made and the various matters which the commission would take into account in examining applications in the exercise of their

statutory functions pursuant to Radio and Television Communications Act 1988.

Of the applications received a short list was drawn up which included the Appellants, the Notice Party and two other consortia. Each

of these was invited to make an oral presentation which took place on the 27th and 28th September 1999. Each applicant made a

formal presentation followed by questioning from the commission.

Subsequently the commission decided that the sound broadcasting contract should be awarded to the Notice Party and so announced

on the 11th of October 1999.

Background Facts to the Matter in Issue Between the Parties:-

Following the announcement by the commission of its award of the radio licence to the Notice Party, the Appellants were clearly

dissatisfied with the decision of the Commission. They sought, with other unsuccessful applicants, information from the Commission as

to the reasons for the decision and the basis on which it was made. Not being satisfied with the kind of response they received the

Appellants sought and obtained, by Order of the High Court dated the 20th December, 1999, leave to bring judicial review proceedings

in respect of the said decision on a range of grounds. Most of these grounds were not relied upon in the High Court. The only ground

relied upon by the Appellant’s in this appeal is, as indicated above, that there was objective or apparent bias on the part of one

member of the Commission, namely Dr Colum Kenny, which vitiated the decision.

The occurrence which first gave rise to concern on the part of the Appellant’s of at least a possible bias on the part of Dr Kenny was

a front page article published in a Sunday newspaper on the 28th November, 1999 to the effect that Dr Kenny had “secretly”

attended with the National Drugs Unit of the Gardai at Dublin Castle with a view to checking up on Mr John Reynolds. As previously

noted Mr Reynolds is a director of the Appellant’s company and he is also it’s chairman and a shareholder. Mr Reynolds was fearful

that the newspaper story, if accurate, may have meant that, unbeknownst to him, some adverse view concerning him and the use of

drugs in a nightclub owned by him had adversely affected the Appellant's application. Accordingly, through his solicitors, he wrote to

Dr Kenny seeking to ascertain whether such a meeting had taken place and the import of same. All this is outlined in the Affidavit

sworn by Mr Reynolds in these proceedings on the 20th December, 1999. This was responded to by an Affidavit of Mr Michael O’Keefe,

Chief Executive of the Commission, dated 17th January, 2000 and subsequently by an affidavit of Dr Colum Kenny himself dated 13th

March, 2000. In addition to confirming that Dr Kenny had indeed visited the garda drugs unit, during which Mr Reynolds and his

nightclub POD had been mentioned, the two replying affidavit’s disclosed other facts and actions of Dr Kenny concerning what has

been referred to as the “drugs issue” relating to his consideration or pre-occupations in relation to the award of the radio licence in

question.

The facts and circumstances relating to the issue upon which the Appellant’s rely for the relief sought in the appeal have been set-

out in detail by the learned High Court judge in his judgment. Essentially these facts and circumstances are not in issue between the

parties. What is an issue is the interpretation or inferences drawn by the learned High Court judge from those facts and

circumstances.

Accordingly, I think it is appropriate at this stage to set out the relevant facts and circumstances and position adopted by the parties

as recited by the learned High Court Judge: -

“On the 28th November, 1999 the Sunday Tribune Newspaper published a front page article recording that Dr. Colum Kenny, a

member of the Respondent who voted in respect of the award of the licence in question to Spin Fm, had secretly attended with the

National Drugs Unit of the Gardaí at Dublin Castle to check up on John Reynolds, a member of the Storm FM consortium. Thereafter

by letter dated the 29th November, 1999, Solicitors for John Reynolds wrote to Dr. Colum Kenny raising various questions in respect

of which they sought answers from Dr. Kenny arising from the publication in the Sunday Tribune. This letter was replied to on the

3rd December, 1999 by Messrs. Matheson Ormsby Prentice Solicitors acting on behalf of Dr. Kenny. In this letter it was asserted

that Dr. Kenny had instructed his Solicitors to institute defamation proceedings against the Sunday Tribune Newspaper arising out of

the article published on the 28th November, 1999. In the letter of the 29th November, 1999 to Dr. Kenny, Mr Reynold’s Solicitors

raised the following queries:-

1. Whether Dr. Kenny had visited the Garda National Drugs Unit at Dublin Castle and there met two senior officers to

discuss Mr. Reynolds.

2. If the answer to 1 was in the affirmative, in what capacity did he makes the visit?

3. Was the visit in the pursuit by him of his queries made at the behest of the chairman and members of the

Respondent?

4. Did he communicate with the chairman and with other colleagues concerning the visit to the National Drugs Unit?

5 What was the purpose of his visit?

6. What if anything did he say to senior garda officers involved about Mr. Reynolds?

7. Did he hold himself out as representing the Respondent?

8. Why was Mr. Reynolds not informed by him of his action in going to the officers in the Drugs Squad?

9. If he had bona fide concerns about Mr. Reynolds and his colleagues why were these concerns not addressed with Mr.

Reynolds so as to enable him to vindicate his position?

10. Did he have any documentation in his possession, power on procurement generated either before or after his visit to

the Drugs Squad?

Mr Reynolds in his affidavit states that these queries remained unanswered and that he was gravely concerned that pre-judgment at

least in Dr. Kenny’s mind arose in relation to the issue of drugs. He states that his concern that the entire licensing process may

have been affected by this bias comes from his understanding that there was a discussion of the bids presumably in an attempt to

influence the voting of other members of the Commission and that he does not know what was said about the Storm consortium

and him in relation to their attitude to what may be called “the drugs issue”.

Mr. Reynolds states that he is disturbed that the issues identified in the newspaper article were not raised with him at the oral

presentation. He states that if his attitude to drugs was a matter of concern, these should have been raised with him and the

reason he is most concerned about this issue is that Dr. Kenny identifies an anti-drugs message from the Ministry of Sound, one of

the members of the Spin consortium, as a matter which plainly was taken into account by the Commission. Mr Reynolds says that it

appears that the supposed attitude of members of the consortia to “the drugs issue” was a consideration of the Commission. He

states that he does not know, in the absence of reason being given for this action of Spin, what weight was attributed to the issue.

He expresses his concern that he was prejudged on the issue and that this resulted in the applicant not being ranked first.

On behalf of the Respondent an affidavit has been sworn by its chief executive, Mr. Michael O’Keefe. At paragraph 34 of his affidavit

Mr. O’Keeffe indicated that in view of the pending/contemplated defamation proceedings to be brought by Dr. Kenny against the

Sunday Tribune Newspaper, the information sought in the letter of the 29th November, 1999 is privileged. Mr. O’Keeffe proceeds to

indicate that Dr. Kenny has informed him that he, like other members of the Commission, did not decide upon the determination of

his personal vote on the radio applications until the final meeting of the Commission on the 11th October, 1999. It is stated that Dr.

Kenny did so solely on the bases of the written applications, the oral presentations and/or oral or written questions and answers of

all the applications. Based upon this Mr. O’Keeffe asserts that no question of bias or pre-judgment arises.

Mr. O’Keeffe rejects the contention that the entire licensing process could have been infected by any alleged bias whether on the

part of Dr. Kenny or on the part of any other member of the Commission. Mr. O’Keeffe at paragraph 36 of his affidavit indicates that

Dr. Kenny informed him that as a parent, a university lecturer and a member of the Commission, he was and remains very

concerned about the question of drugs in Dublin, further that he was aware that all four short listed applications for the youth

licence had referred to drugs, drugs services or narcotics in their original application and in any case he was concerned about the

association between certain dance music and the drugs culture and about the association between certain dance music and the

drugs culture and about the association between drugs and the Dublin club scene. Mr. O’Keeffe was informed by

Dr. Kenny that in order to get a feel for the reality of the drugs culture before making his decision on the present application

process, he visited members of An Garda Síochána for a general discussion about drugs and about drugs in night-clubs. Dr. Kenny

made a single reference to John Reynolds in the context of the POD nightclub in circumstances where the Harcourt Street premises

which housed the POD had been identified by Storm FM as the consortium’s address and its principal place of business. This premises

had been referred to in a Court report in the Irish Times related to the prosecution of person for drug offences. Mr. O’Keeffe

continues by stating that the members of An Garda Síochána with whom

Dr. Kenny was in discussion fully endorsed the manner in which Mr. Reynolds carried on his business at the POD. He says that none

of the members of the Commission or the executive of the Commission was aware of Dr. Kenny’s intended visit to the Garda

Síochána. He says that after Dr. Kenny’s visit to the Garda Síochána he did not raise the matter at any meeting of the Commission

or with the executive of the Commission.

Mr. O’Keeffe says that the drugs issue was in fact raised with the applicant on the day of the public hearings. Mr O’Keeffe says that

one of the questions adopted by the board of the Commission to be put to applicants at the public hearings was one relating to the

drugs or substance abuse. Mr. O’Keeffe says that the applicant raised no objection to the question on substance abuse and

responded by making a number of statements relating to both the programming and character of Storm FM in the context of drugs.

Mr. O’Keeffe indicates that save in this respect the issue of drugs did not form part of any deliberation of the Commission.

Colum Kenny has sworn an affidavit in these proceedings in which he indicated that an article written by him on the 17th October,

1999 specifically states that it reflects the personal ways of Dr. Kenny on matters in the public domain and that the views expressed

therein are in no way necessarily representative of the Commission’s view. Dr. Kenny states that at a meeting of the Commission on

the 6th September, 1999 the seven applicants for the Dublin youth orientated radio licence were short listed to four. He says that

on the 7th September, 1999 Mr. Michael O’Keeffe, chief executive of the Commission, wrote to the individual members of the

Commission to confirm that a meeting would be held on Wednesday, the 22nd September, 1999 in order to agree questions to be

put to applicants at the then forthcoming public hearings which were scheduled to take place on the 27th September, 1999. He says

that Mr. O’Keeffe invited each member of the Commission individually to forward within one week any particular questions which he

or she wished to include in respect of any or all of the applicants. Dr. Kenny indicates that in deciding what questions to propose in

response to the chief executive’s invitation he further read and considered the applications of the four short listed applications

referred to a greater or lesser extent to the issue of drugs or drugs services in the context of the Dublin youth service. He says

that as a parent, university lecturer, journalist and member of the Commission he was and remains very concerned about the issue

of drugs in Dublin.

Dr. Kenny states that he wished to discuss the issue of drugs and the drugs scene in Dublin with the Garda Síochána before

proposing any specific questions about drugs to put to applicants at the then forthcoming public hearings. He believed that an

appropriate source of reliable and impartial information about the drugs scene in Dublin and in general was the Garda Síochána

National Drugs Unit which has a public information role as well as an enforcement function. Accordingly, he arranged a private

meeting with members of the National Drugs Unit and the meeting in question took place on the morning of the 13th September,

1999. Dr. Kenny indicates that he did not discuss his intended visit to An Garda Síochána with any member of the Commission or the

executive of the Commission and accordingly such persons were not aware of his intended visit to An Garda Síochána. Dr. Kenny

says that the purpose of the meeting was to discuss generally the drugs scene in Dublin. He says that the greater part of his

discussion with the National Drugs Unit was intended to relate and did relate to matters of a general nature concerning the drugs

scene in Dublin. In the course of his meeting with the Gardaí he mentioned a recently published Court case about the POD during

which the District Judge had reportedly described it as “a den or place of drugs rather than a place of dance”. He refers to the

newspaper report and to the fact that it indicates that the District Judge in question urged the Superintendent for the Dublin

Metropolitan Area to take into account the evidence of drug dealing when the club’s annual licence came up for renewal. Dr. Kenny

says that in his context he adverted to the connections between Storm FM and the POD which include the fact that Storm FM’s

principal place of business is the Harcourt Street premises which houses the POD and that the chairman of Storm FM owns the POD.

Dr. Kenny indicates that at the meeting he was informed by members of the Garda Síochána National Drugs Unit that a number of

clubs including the POD had put in place systems of control in relation to drugs which the Gardaí fully endorsed but which they would

continue to monitor. He says that he was informed by Detective Chief Superintendent Ted Murphy, the heard of the National Drugs

Unit, that he believed it was not the intention of the Gardaí to oppose the renewal of the POD’s licence. The detective chief

superintendent Ted Murphy, the head of the National Drugs Unit, that he believed it was not the intention of the Gardaí to oppose

the renewal of the POD’s licence. The detective chief superintendent told him that he wised to double-check with other officers that

this information was up to date and suggested that he telephone Superintendent

Barry O’Brien on or about the 17th September and was informed that the position remained as indicated to him at the meeting.

Dr. Kenny states that he did not raise the matter of his visit to An Garda Síochána at any meeting of the Commission or with the

executive of the Commission. He says that he formulated and sent to the chief executive twelve proposed questions on a variety of

topics for the applicants including one only on the issue of substance abuse which was of a general nature. He says that the purpose

of his question was to elicit responses which would allow the Commission at some future date to monitor the specific commitment

over programming content in relation to drugs, regardless of whom eventually was to be awarded the contract.

Dr. Kenny states that as the oral hearings approached he had a twofold concern as to how the issue of drugs was to be approached

in the context of the application of Storm FM. On the one hand the Commission was obliged by Section 6(2)(a) of the Radio and

Television Act, 1998 to have regard to the character, inter alia, of its directors. He points out that John Reynolds was a director of

the applicant. He was the owner of the POD nightclub which had been the subject of the comments of the District Judge previously

referred to. On the other hand, there was no evidence of which he was aware that Mr. Reynolds or any other director of that

company was personally implicated in any way in anything untoward relating to drugs. He states that he was concerned to clarify

the true relevance of these matters in the context of the application for a licence from Storm FM. With that in mind he arranged to

speak informally to Conor Maguire, S.C., the chairman of the Commission. He arranged to meet the chairman immediately prior to

the meeting of the 22nd September, 1999. Prior to the meeting he prepared a draft letter to the chairman setting out his concerns

as described, which he believed the chairman saw for the first time immediately prior to the meeting."

The terms of this letter are as follows:

Mr Conor Maguire S.C.,

Chairman, IRTC.

22 September, 1999

Strictly confidential

Dear Conor,

As you are aware, the IRTC is obliged by statute to have regard to the character of persons who are involved as shareholders in

applications for a broadcasting contract. I have a concern, explained below, which I ask you to address in some way as chairman.

Mr John Reynolds is a shareholder in, and chairman of, on of the groups (STORM) now applying for a youth franchise in Dublin. He is

owner of the POD night-club, a fact which has been repeatedly highlighted in recent publicity generated by his group’s application.

Within the past year, I was advised by a Senior Counsel who has worked in drug-related cases not to let my children frequent the

POD because, he believes, it is notorious as a place of drug dealing. I had myself earlier heard rumours to that effect.

Subsequently, in June of this year, in the course of a case connected with

Veronica Guerin, the POD was mentioned as a meeting-place for some of the underworld and reference was made to drugs in that

context (see attached Irish Times report, 17/6/99).

Subsequently, Judge Desmond Windle, stated in a case that the POD should be known as “Place of Drugs” and, according to a report,

“urged the superintendent for the area to take into account the evidence of drug dealing when the club’s annual licence renewal

came up later this year” (see attached Irish Times report, 25/6/99).

I am not personally aware of any attempts by Mr Reynolds to distance himself from such statements and impressions or to identify

himself publicly as being strongly anti-drugs.

I am concerned about the impression which will be conveyed to young Dublin should a group so identified with the owner of the POD

be granted the youth franchise. What if the IRTC were to grant this group a contract and then renewal of the POD’s club licence

were to be opposed by the local superintendent?

I note that what is described in the application as STORM’s proposed “political forum” programme (p.63) has been given the title “DID

YOU INHALE?” which is quite inappropriate in the circumstances.

As you know, I did not shortlist the STORM application, on other grounds. However, I think that this matter of character is distinct

from other considerations.

I personally have no evidence which in any way connects Mr Reynolds personally with drug-dealing or with knowingly permitting it to

take place. The main question which arises in the light of what I have outlined above is whether the reputation of his night-club or his

failure to take a stronger public stance on drugs is relevant to any judgment of his character by the IRTC.

I am available to discuss further with you this concern in absolute privacy.

Sincerely

Colum Kenny

The learned High Court Judge continued “Dr. Kenny states that he did not refer to his visit to the Gardaí at his meeting with the

chairman but that he outlined his concerns as described in the letter and as described in his affidavit. The chairman advised him

that in the absence of any evidence implicating Mr. Reynolds or any other director of the applicant company, it would be unfair and

inappropriate to raise or challenge the character of the applicant company or to draw any adverse inference relating to the

character of the applicant or its directors on the basis of “the drugs issue”. He states that having discussed the matter with the

chairman he agreed with his assessment.

Dr. Kenny states that at the oral hearing held in the Killiney Castle Hotel on the 27th September, 1999, the applicant company, in its

presentation, made no reference to the drugs issue. He says no member of the Commission either raised or challenged the applicant

on the drugs issue. He says that the only question which might be said to relate to the drugs issue was a question asked by the

chairman as to the reason for the choice of the title “Did you inhale?” For a political programme proposed by the applicant

company. Mr. Reynolds answered by indicating that the proposed title was referable to a remark once mad by President Clinton. Dr.

Kenny furthermore indicates that on the day of this oral hearing the applicant was also handed the Commission’s written questions

including a question on substance abuse which he had prepared. He states that a written response from the applicant was received

on or about the 4th October, 1999 and this is also annexed to this judgment.

Dr. Kenny states that there were certain aspects of the written response from the applicant which appeared to him not to tally

exactly with the information he had received from the Gardaí. The first was a reference to Directive Inspector Brian Sutton being

the head of the National Drugs Unit and the second was a reference to the POD having received a clean bill of health. Dr. Kenny

states that his information was to the effect that Detective Chief Superintendent Ted Murphy was the head of the National Drugs

Unit and that the Gardaí continued to monitor the POD in the same way that the Gardaí monitor all other night-clubs. Accordingly, he

telephoned Detective Chief Superintendent Ted Murphy on the 6th October, 1999. It was confirmed to Dr. Kenny that Chief

Superintendent Ted Murphy was the head of the National Drugs Unit and not Detective Inspector Brian Sutton. It was also confirmed

to him that no nightclub received a clean bill of health as such from the National Drugs Unit. It was further indicated that the

system of control in relation to drugs which were in place in the POD and which were endorsed by the Gardaí were the result of

ongoing communication between Mr. Reynolds and the Gardaí which had been initiated by the Gardaí. On receipt of this information

and in advance of the final meeting of the Commission to be held on the 11th October, 1999, Dr. Kenny prepared a document with a

view to clarifying in his own mind whether the information altered in any way the view which he had reached on the 22nd

September, 1999."

The terms of the 'clarification document' are as follows:

'DUBLIN YOUTH ORIENTED SERVICE AIMED AT 15-34 AGE GROUP

Under s. 6 of no. 20 of 1988, the Commission “shall have regard to”-

a) Character of the applicant and its directors

In response to written questions from the IRTC concerning these applications, STORM FM has chosen to introduce to the proceeding

an assertion that Mr John Reynolds has “been to the forefront in strenuous efforts to clean up the image of dance and new

music which, for too long, has been unfairly associated in the popular mind with drug-abuse”. In this context it may be noted that

during a recent court case the presiding judge,

Desmond Windle stated that Mr Reynold’s POD nightclub should be known as “Place of Drugs” (rather than Place of Dance) and,

according to a report, “urged the superintendent for the area to take into account the evidence of drug dealing when the club’s

annual licence renewal came up later this year” (see Irish Times report, 25/6/99).

The statement that Mr Reynolds now makes about drugs is unsatisfactory. Detective Inspector Brian Sutton is not in fact “head” of

the National Drugs Unit. The National Drugs Unit does not give any nightclub “a clean bill of health”. If Mr Reynolds is committed to

implementing all necessary anti-drugs measures at the POD, his resolve has been stiffened by a judge putting him on notice that the

Gardaí may oppose the renewal of his licence.

In my opinion the requirement in S.6 of the Act that members of the IRTC have regard to the character of applications is especially

relevant where we are awarding a licence for a radio service which will - to use the marketing language so common in these

applications - “target” young people, young people who can be impressionable.

While the IRTC has before it no evidence that Mr Reynolds’ nightclubs have been in fact “place of drugs”, there is no compelling

reason for us to be swayed by his own assertions in this context and we ought not to consider them as evidence of the character of

the applicant.'

The learned High Court Judge continued - “Having considered the matter and the document which he had prepared, Dr. Kenny

concluded that the position had not changed and that, particularly having regard to the fact that there was no evidence linking Mr.

Reynolds or any other director of the applicant company with anything untoward in relation to drugs, it remained the case that it

would be unfair and inappropriate to arise or challenge the character of the applicant in any way or to draw any adverse inference

in relation to the character of the applicant company or its directors based upon what was described as “the drugs issue” - Dr.

Kenny points out that at the meeting of the 11th October, 1999 he did not raise and no other member of the Commission raised any

comment in relation to the written response from the applicant company on the question at all in relation to the approach of the

applicant company or Mr. Reynolds to what may be described as “the drugs issue”. Dr. Kenny indicates that following his meeting

with the chairman on the 22nd September, 1999 the only communication that he had with other members of the Commission which

might be said in any way to be referable to the drugs issue related to a programming proposal. It appears that on the 27th

September, 1999 he expressed some reservation to the members of the Commission to whom he was then talking concerning the

choice of the title “Did you inhale?” for the political programme proposed by the applicant company. Dr. Kenny points out that the

question of drugs took up a relatively small proportion of the total consideration devoted to the Applicant’s bid. He states, with

regard to the discharge of his obligation to consider the character of the directors of the applicant company, having considered the

matter he was satisfied without feeling a necessity to raise the issue with the applicant, that there should be no challenge to the

character of the applicant company or its directors and that there should be no adverse inference drawn in relation to the

character of one applicant company or its directors based upon what is described as “the drugs issue”. Dr. Kenny says that he did

not decide upon the determination of his personal vote on the radio applications until the final meeting of the Commission on the

11th October, 1999 and that he did so solely on the basis of the original written applications, the oral presentation, the oral/written

questions and answers of the applicants and the consideration of same conducted by the Commission as a whole. He says that the

“drugs issue” so far as it relates to the applicant formed no part of the basis on which he cast his vote.

Submissions of the Appellants:

At the outset counsel for the Appellants stated that the only issue was objective bias on the part of Dr. Kenny as a member of the

Commission there being no issue on the material facts. It was the Appellant’s contention that the evidence before the High Court

demonstrated that Dr. Kenny had, prior to the receipt of any bid from any party, formed a fixed adverse opinion of Mr John Reynolds,

the Chairman of the Appellant consortia, to the effect that it would be wrong to aware the licence to a consortium associated with

him or his nightclub known as the POD. Accordingly the participation by Dr. Kenny in the vote on the final determination of the award

of the licence vitiates the decision of the Respondents.

On the Law:

As to the test to be applied regarding the existence of objective bias the Appellants relied first of all on what was stated by Murphy

J. in Dublin and County Broadcasting Ltd -v- IRTC (unreported 12th May, 1989) “I entirely accept that it would be irrelevant and

immaterial if, in a case such as the present, it was established as a matter of fact that bias was non-operative or that the

particular person accused of the bias was outvoted or whatever. If it is shown that there are on the facts circumstances which

would lead a right minded person to conclude that there was a real likelihood of bias, this would be sufficient to invalidate the

proceedings of the tribunal.”

In this regard the Appellants also relied upon the statement of the Chief Justice,

Keane C.J., in Orange Communications Ltd -v- Director of Telecommunications Regulation and Meteor Mobile Communications Ltd

(unreported 18th May, 2000 at pg 120) where he stated as regards the test for determining whether a decision must be set aside on

the ground of objective bias there is “no room for doubt as to the applicable test in this country; it is that the decision would be set

aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have

been biased, i.e. where it is found that, although there was no actual bias, there is an appearance of bias.” The Appellants also cited

the judgment of Murphy J. in the same case (at pg 2 of his judgment) where he stated “to condemn as biased the decision of a judge

or other decision maker involves two conclusions. First, that the adjudicator is affected by some factor external to the subject

matter of his decision and, secondly, that in relation to the particular decision the external factor operated so as to tilt the

judgment in favour of the successful party. The distinction is crucial. The existence of the extraneous factor must be proved as a

fact on the balance of probabilities; the operative effect of an impermissible factor (where it does exist), is presumed.”

The Appellants also relied on the judgement of Geoghegan J. in the same case in particular passages from pages 8 and 9 of his

judgment where he stated “It seems clear from the case law in Ireland and England that an allegation of bias must be made on foot

of circumstances outside the actual decisions made in the case itself” and at page 9 of the same judgment “Even in cases where

there is no evidence of actual bias and no evidence of the adjudicator having any proprietary or other interest in the outcome of the

matter, there will still be held to be apparent bias if a reasonable person might have apprehended that there might be bias because

of some particular proven circumstance external to the matters to be decided in the case such as for instance a family relationship

in circumstances where objection maybe taken (O’Reilly -v- Cassidy [1995] 1 ILRM 306) or the judge having been involved in a

different capacity in matters which were contentious in the case (Dublin Wellwoman Centre Ltd -v- Ireland [1995] 1 ILRM 408) or

where there was evidence of prejudgment by a person adjudicating (O’Neill -v- Beaumont Hospital Board [1990] ILRM 419).” The

Appellants in their submissions also relied on the latter two cases cited by Geoghegan J. in his judgment as well as the judgment of

Keane J. in Radio Limerick One Ltd -v- The Independent Radio and Television Commission [1997] 2 IR 291 and that of McGuinness J.

in Bula Ltd (in receivership) and Ors -v- Tara Mines and Ors (unreported, The Supreme Court, 3rd July, 2000). Apart from the

question as to the test to be applied in determining whether objective or apparent bias could be considered to exist, the Appellant

sought to compare the pre-judgment found to have existed in the O’Neill -v- Beaumont Hospital Board case and the withdrawal of a

member of the commission from its deliberations in the Radio Limerick One case with the facts of this case.

Submissions on the Facts:

The Appellants submitted that the letter of 22nd September, 1999 written by

Dr. Kenny to the Chairman of the Commission, Mr Conor Maguire S.C. constitutes evidence of the pre-judgment of Dr. Kenny. They

contend that the letter demonstrates that Dr. Kenny, prior to visiting the gardaí and indeed prior to the receipt of any bid from the

Appellants, had formed an adverse view of the POD nightclub and thus of Mr Reynolds and that it demonstrated that Dr. Kenny was of

the view that it would not be wise to give a licence to any Applicant associated with such a nightclub. Furthermore, it was submitted,

that the omission of Dr. Kenny to inform the Chairman in that letter of his contacts with the gardaí and of the fact that the gardaí

were not going to object the renewal of the licence for the nightclub in question supported their contention for the existence of

objective bias.

Secondly, what the Appellants call the 'secret' conduct of Dr. Kenny in going to the gardaí also constituted evidence of bias in

contrast to the conduct of the member of the commission whose behaviour was in question in the case of Dublin and County

Broadcasting -v- IRTC and Ors (unreported), High Court, Murphy J. (12th May, 1989). Thirdly, the Appellants rely on the document of

“self clarification” as demonstrating that the pre-judgment which they alleged against Dr. Kenny had not been discarded by him

following his meeting with the Chairman of the commission at which the letter of 22nd September, 1999 was discussed.

Next the Appellants relied on the extensive number of questions which were raised by solicitors acting on behalf of Mr. Reynolds

writing out of the publication in the Sunday Tribune and the fact that Mr Kenny, through his solicitors, declined to respond to those

questions on the grounds that they had been instructed by Dr. Kenny to issue defamation proceedings against that newspaper. The

Appellants contend that in the absence of the issuing of defamation proceedings to-date the Court should draw inferences in favour

of their contention as to the existence of objective bias.

Finally, the Appellants laid emphasis on inaccuracies and inconsistencies to be found on comparing that part of the affidavit of Mr

Michael O’Keeffe, (Chief Executive of the Respondents) where he gives an account of events based on what he was told by

Dr. Kenny and the affidavit of Dr. Kenny himself dealing with the same events. Both affidavits been filed in the course of these

proceedings.

On the basis of the foregoing matters which were in evidence before the High Court, the Appellants submitted that a reasonable

person would be compelled to an apprehension that there was a real danger that Dr. Kenny may have been biased and that the

decision of the Respondents should therefore be set aside.

Submissions of the Respondents:-

There was no substantive divergence between the submissions of the Respondents and those of the Appellants as to the appropriate

test to be applied in determining the existence of objective or apparent bias on the part of an adjudicator and the Respondents

referred to very much the same line of case law relied upon by the Appellants and in particular the judgment of Keane, C.J. in Orange

Communications -v- Director of Telecommunications Regulation and Meteor Mobile Communications Ltd on this point. The

Respondents further submitted that while the test for objective bias is the same for Courts and administrative tribunals the application

of that test for administrative tribunals is less stringent. The Respondents submitted that if the manner in which Dr. Kenny pursued his

enquiries could be considered as somewhat unconventional, however, a departure from the norm does not of itself give rise to a

reasonable apprehension that the decision-maker may have been biased.

As regards the facts the Respondents submitted that the Appellants, for the purpose of making their case, had selected and isolated

a number of facts from all other facts and circumstances relevant to the whole process of considering the various applications for the

licence and in particular all of Dr. Kenny’s attempt to address his legitimate concerns on the so-called drugs issue. Counsel for the

Respondent stated that he relied on 21 facts which he had catalogued in his submissions to the High Court and which were recited in

the judgment of Mr Justice O’Caoimh at pages 19-23 inclusive of his judgment in this case.

I don’t consider it necessary to recite once again in this judgment these 21 points but I will refer to some of the more salient facts or

circumstances relied on by Counsel for the Respondents namely:-

(a) The obligation on the part of the Respondents to have regard to the character of applicants, and where the Applicant

is a body corporate, its directors.

(b) Each of the four applicants made reference to the drugs issue to a greater or lesser extent in their submissions to the

commission.

(c) Dr. Kenny had been told by the gardaí that the system in place in the POD nightclub met with the approval of the

gardaí. It was indicated to Dr. Kenny that no objection to the licence renewal of the POD was contemplated but that it

might be best to double check the situation.

(d) As the oral hearing approached, Dr. Kenny sought to clarify his concerns and arranged to speak with the Chairman of

the commission and prepared his letter of 22nd September, with this in mind and the terms of the letter demonstrate that

he was seeking clarification as to the relevance of the drugs issue to the application.

(e) The Response of the Appellants to the questions raised by the Commission in turn raised queries in the mind of Dr.

Kenny as a result of which he sought clarification from the Garda Siochána.

(f) The “clarification document” had to be considered in its entirety.

(g) Dr. Kenny had sworn in his affidavit that he bore no animus to the Appellants and the drugs issue had ceased to be a

material consideration by the time he came to vote on the various applications and this was not challenged in cross-

examination.

With particular regard to the “clarification document” (prepared by Dr. Kenny some time between 6th and 11th October, 1999)

Counsel for the Respondents submitted that it must be considered in the context of the answer received from the Appellants to the

question posed to the Applicants concerning their policy or substance abuse by young people.

The answer received from Appellants to that question seemed to Dr. Kenny to contain inaccuracies and these inaccuracies were

confirmed on making inquiries to the gardaí. It was in the light of such confirmation that Dr. Kenny prepared the 'clarification

document'. His uncontradicted evidence was that he did so "with a view to clarifying in my mind whether the information altered in

any way the view which I had reached on 22 September, 1999".

Furthermore the uncontradicted evidence of Dr. Kenny was that having considered matters he concluded that the position had not

changed and the drugs question remained irrelevant to the decision process.

In broad terms the Respondents submitted that Dr. Kenny’s conduct taken as a whole showed no more than a concern that no

Applicant for a radio licence that is directed at the age group of 15-34 year olds should be associated with any laxity towards the use

of illicit drugs. He had resolved these concerns himself and his conduct could not give rise to an inference of objective bias on his

part.

As regards the submissions of the Appellants based on the absence of a response by Dr. Kenny to the detailed questions posed to him

following the story in the Sunday Tribune in the letter from Mr. Reynolds’s solicitors dated the 22nd day of November, 1999 and the

alleged inconsistencies between the affidavit sworn by Mr O’Keeffe and the affidavit of

Dr. Kenny, the Respondents first of all submit that the Appellants are not entitled to rely upon events which are subsequent to the

decision being challenged in support of a contention that decision is vitiated by objective bias. It was submitted that to succeed in a

claim of objective bias it is necessary that the bias or the appearance of bias be present at the time of the making of the decision. In

this respect the Respondents relied on the judgment of Barron, J. in the Orange case in which he stated that the factor from which

bias maybe concluded by a reasonable observer “must pre-date the decision complained of”. Accordingly these matters cannot be

considered relevant to the Appellants case. In any event, the Respondents disputed that there were any inconsistencies between the

Affidavits and that in the one area in which the Affidavit of Mr O’Keeffe was not complete that lack of completeness was cured by the

Affidavit of Dr. Kenny. As regards the absence of a response to the questions sent to

Dr. Kenny, the Respondents added that at all material times Dr. Kenny was in receipt of legal advise in this regard. In all the

circumstances it was inappropriate for the Appellants to rely upon these subsequent events in support of a contention that there was

an appearance of bias vitiating the decision made some months earlier.

Submissions of the Notice Party

Counsel for the Notice Party adopted the submissions made by Counsel on behalf of the Respondents and made submissions along

similar lines concerning the test to be adopted in determining whether the existence of objective bias is to be inferred.

Decision

The primary point of law on which the Court was addressed was the test which should be applied in determining whether the decision

taken by the Commission on the award of the licence was tainted by objective bias on the part of Dr. Kenny. Bias can be of two

types, conscious or actual bias or objective bias. The Appellants have expressly abandoned any allegation of actual or conscious bias

on the part of Dr. Kenny. In cases of alleged objective bias the Courts proceed as Keane, C.J. pointed out in the Orange case (cited

Supra) at page 119, “on the assumption that, where there is a reasonable apprehension of bias, the decision must be set aside,

although there is not the slightest indication that the decision maker was in fact actuated by any bias”. The test to be applied in

determining what may be regarded as constituting objective bias on the part of an Adjudicator (and I use this term in order to cover

judicial proceedings and administrative or quasi judicial proceedings before tribunals or other administrative bodies) has been

considered in a good number of cases in recent years before the High Court and in particular before this Court. I think the law on this

question is now clear and is that as expressed by Keane C.J. in his judgment in the Orange case at page 120. In his judgment, with

which a majority of the Court expressly agreed, the Chief Justice stated that there is “no room for doubt as to the applicable test in

this country; it is that the decision will be set aside on the ground of objective bias where there is a reasonable apprehension or

suspicion that the decision maker might have been biased, ie. where it is found that, although there is no actual bias, there is an

appearance of bias". For this reason, I don’t consider it necessary or useful to review, on this specific point, the other authorities

relied upon by the parties. In Bula Ltd (in receivership) -v- Tara Mines Ltd and Ors (unreported, Supreme Court 3rd July, 2000),

McGuinness, J. having reviewed a range of cases in this jurisdiction and other jurisdictions noted that “the various decisions and dicta

which I have set out above, taken together with the recent authoritative statement of the Chief Justice in the Orange case, seems

to me to establish without doubt that the test to be applied in the present case is that of the reasonable persons, reasonable

apprehension of bias.”

Moreover, for objective bias to be established it must be shown that there existed some external factor extraneous to the decision

making process which could give rise to a reasonable apprehension that the decision maker might have been biased. Furthermore, this

external factor must exist prior to the decision made. As Murphy, J. stated in his judgment in the Orange case “to condemn as biased

the decision of a judge or other decision maker involves two conclusions. First, that the adjudicator is affected by some factor

external to the subject matter of his decision and, secondly, that in relation to the particular decision the external factor operated

so as to tilt the judgment in favour of the successful party. The distinction is crucial. The existence of the extraneous factor must

be proved as a fact on the balance of probabilities: The operative effect of an impermissible factor (where it does exist) is

presumed.

In most of the reported cases involving an allegation of bias against a judge (and under that heading I would include all decision

making bodies) the existence of some extraneous factor relating to the circumstances of the judge is admitted or acknowledged.

For example, in the leading case in this jurisdiction, Dublin Well-Woman Centre Ltd -v- Ireland [1995] ILRM 408 it was immediately

recognised that Ms Justice Carroll had acted as chairperson of the commission on the status of woman so that the argument in the

case, and the decision on it, turned on whether that fact might effect the impartiality of the judge or, more correctly give rise to a

perception of bias”

Geoghegan, J. in his judgment in the same case, stated “even in cases where there is no evidence of actual bias and no evidence of

the adjudicator having any proprietary or other interest in the outcome of the matter, there will still be held to be apparent bias if a

reasonable person might have apprehended that there might be bias because of some particular proven circumstance external to

the matters to be decided in the case such as for instance a family relationship in circumstances where objection maybe taken

(O’Reilly -v- Cassidy [1995] 1 ILRM 306) or the judge having been involved in a difference capacity which were contentious in the

case (Dublin Well-Woman Centre Ltd -v- Ireland as cited above) or where there was evidence of pre-judgment by a person

adjudicating (O’Neill -v- Beaumont Hospital Board [1990] ILRM 419).”

Again in the Orange case Barron J. stated “However, it seems to me that the essence of bias is the existence of some factor as

already explained that constitutes a set of circumstances from which a reasonable observer might conclude that there was a real

possibility that such a factor would cause the decision maker to seek a particular decision or which might inhibit him or her from

making his or her decision impartially and independently without regard to such factor.” (Emphasis added).

In the course of the same judgment Barron, J. Said “insofar as bias maybe found to exist or to have existed, it will always predate

the actual decision or contemplated decision. Bias does not come into existence in the course of a hearing. It may become apparent

in the course of a hearing and in that way alert a party to the possibility of bias and so enable such a party to establish facts which

show that the attitude adopted by the decision maker in the course of the hearing was one which might have been expected having

regard to those facts. The essence of bias then is the perception ... once all the facts are known that the particular decision maker

could never give or have given a decision in relation to the particular issue uninfluenced by the particular relationship, interest or

attitude. Obviously, if it is perceived that it may influence a decision yet to be given, it must exist at that stage”.

In my view there is clearly a distinction to be drawn between the existence of factors external or extraneous to the decision making

process in which an adjudicator is engaged and the manner in which that process is conducted on the basis of factors which are

relevant or material to the decision to be made. External factors should not affect the decision nor should they appear to affect the

decision so as to give rise to a reasonable apprehension of bias. Obviously factors relevant to the decision may affect it but the

decision must be arrived at fairly. As Barron, J. stated in the same judgment “There is a duty upon the decision makers to carry out

the process leading to the decision in a particular way. Not to do so may make the process unfair or otherwise invalidate it, but that

is not bias”. Keane, C.J. in agreeing in his judgment in the Orange case with Barron J’s approach said “that a Judge may conduct a

case in such a manner as to violate the requirements of natural justice or fair procedures: If he does so, his decision would be set

aside on that ground, whether the failure was due to fatigue in the hearing of a case at the end of a long and crowded list, an innate

and sometimes regrettable irreversible tendency to rudeness or bad manners, or hostility, overt or covert, to one of the parties

based on race, religion or gender or simply because the Judge did not like the appearance of the litigant in question. No doubt, the

last two examples will readily attract the description of “bias”. But in any such instance the decision is set aside, not on the ground

of objective or even actual bias but because, under our constitution and law, natural justice and fair procedures must at all times be

observed in the administration of justice and in proceedings before quasi -judicial tribunals and the Superior Courts will not tolerate

breaches of these canons, whatever the motive and whether indeed any particular motive on the part of the adjudicating tribunal

which has fallen into error has been established.”

My understanding of the judgments of Keane C.J. and Barron, J. is that should a decision-maker pursue a line of inquiry concerning a

matter relevant to the decision to be made in a tendentious or unfair manner this does not in itself permit, as a matter of law, the

decision to be impugned on the grounds of bias but rather it falls to be reviewed in accordance with the requirements of fair

procedures or natural justice. This is because the 'factor' involved is internal and not external or extraneous to the decision making

process.

In the present case the Appellants allege objective or apparent bias on the part of Dr. Kenny on the grounds of an alleged pre-

judgment by him as to the suitability of the Appellants, and in particular of its Managing Director, Mr Reynolds, for the award of the

Radio licence in question. This contention falls to be examined in the light of the foregoing principles.

The Present Case

I think it is appropriate to examine the decision making process in which the Respondents, and Dr. Kenny as a member of the

Commission, were engaged.

Firstly, I think it is relevant to recall that the Commission, as a Statutory Body, was required to consider every application for a Sound

Broadcasting Contract or Radio Licence in accordance with the provisions of the Radio and Television Act, 1988 and to do so “for the

purpose of determining the most suitable applicant, if any, ...” [Section 6 (1)]. Subsection (2) of Section 6 requires, inter alia, that

“In the consideration of applications received by it and in determining the most suitable applicant to be awarded a sound broadcasting

contract, the Commission shall have regard to -

(a) The character of the Applicant or, if the Applicant is a body corporate, the character of the body and its directors ... or

other similar officers and its members...

Secondly, it is not in contention that substance or drug abuse among young people is, at least sometimes, associated with the

entertainment industry and that being the case it is a topic properly considered relevant to the attitude and policy of an applicant for

a broadcasting licence orientated towards young people. This is reflected in the written question posed by the Commission (on the

proposal of Dr. Kenny) to three of the short listed Applicants (the fourth, the Notice Party, having already addressed the question of

drugs in their application) which was in the following terms “Given the entertainment industry’s influence on young people, what is

the attitude of your group towards substance abuse in general and how would that attitude be reflected in the programming of your

proposed station?” The Appellant’s response stated, inter alia, that they were “uniquely placed to educate young people about the

realities of drug taking” and “several members of the STORM FM consortium had been to the forefront in strenuous efforts to clean

up the image of dance and new music which, for too long, has been unfairly associated in the popular mind with drug abuse” (It also

went on to state how Mr Reynolds had liaised closely with the Garda Drugs Unit so as to fully implement its recommended anti-drug

dealing measures in his night clubs as a result of which they had been given a clean bill of health). Moreover, in the course of the

hearing Counsel for the Appellants acknowledged that in the circumstances of the case a concern as such by the Commission or by

Dr. Kenny with the “drugs issue” was not to be criticised.

I think it is clear from the evidence before the High Court that the so called “drugs issue” was a factor relevant to the decision which

the Commission and its members had to make and not something which they were bound to disregard. It was not a factor external or

extraneous to their decision. Similarly, I think it is self-evident, that should any question arise within that process as to a possible

laxity on the part of an applicant, or one of the persons involved with that applicant, in his or her attitude to the abuse of drugs, that

would be a relevant matter to be looked at. Of course if such a matter were to be considered as a factor influencing in any way the

decision it would have to be dealt with, as regards the party concerned, in a manner consistent with constitutional justice and fair

procedures. Accordingly, in any review of the conduct of Dr. Kenny in relation to the contested decision the relevance of the “drugs

issue” to the decision making process must be taken into account.

What also must be taken into account in cases of this kind, is the nature of the decision process in which the decision maker was

engaged and the steps or procedures followed leading to the final decision. Naturally the nature of the process will vary according to

the role and function of the body concerned and the nature of the task entrusted to it. While the principles of law applied will be the

same, they must be applied in the context of the actual process in which the body in question, or its members, have been engaged.

As Henchy J. said in Kiely -v- Minister for Social Welfare [1977] IR 267 at 281 “Tribunals exercising quasi-judicial functions are

frequently allowed to act informally - to receive unsworn evidence, to act on hearsay to depart from the rules of evidence to ignore

courtroom procedures, and the like - but they may not act in such a way as to imperil a fair hearing

or a fair result.”. He went on to cite with approval the dictum of Tucker L. J. in Russell -v- Duke of Norfolk 1AER 109, 118 “There are,

in my view, no words which are of universal application to every kind of enquiry and every kind of domestic tribunal. The

requirements of natural justice must depend on the circumstances of the case, the nature of the enquiry, the rules under which the

Tribunal is acting, the subject matter that is being dealt with, and so forth.” Although Henchy J. was there expressly addressing the

manner in which the conduct of a tribunal or other quasi-judicial proceedings should be approached for the purpose of considering

whether it had observed the constitutional guarantees of fair procedures or natural justice, it seems to me that those considerations

apply mutatis mutandis when examining the conduct of a quasi-judicial body or one of its members as to whether there is evidence of

pre-judgment or the presence of some external factor giving rise to a reasonable apprehension of bias. Regard must be had to which

factors properly fall with the ambit of the matters which the decision maker is entitled to take into account having regard in turn to

the nature and subject matter of the decision and the degree of informality permissible in the process leading to that decision.

I now turn to the procedures followed by the Commission in the carrying out of its statutory task of determining the most suitable

applicant to be awarded the radio licence in question. In March 1999 the Respondents published a notice inviting expressions of

interest in the securing of the radio licence. The Appellants were one of the parties which responded by stating their expression of

interest and in general terms the type of service that would be provided. That did not constitute an application for the radio licence.

In April, 1999 the Respondents formerly invited applications for the radio licence in question and the Appellants lodged their

application by mid-July 1999.

The actual decision process is summarised in a letter written by Messrs Ivor Fitzpatrick & Company, Solicitors acting for the

Commission, in response to a joint letter in October 1999 from the three unsuccessful short-listed applicants. A relevant extract from

the letter is cited at paragraph 13 of the Affidavit of John Reynolds, a Director of the Appellants sworn on the 20th December 1999. It

says as follows:-

“The decision making process involved each member of the commission receiving a copy of each application and conducting an

individual assessment of each application. Once the assessment was completed each member was requested to express preference

for a short list of applicants to be invited to participate in oral hearings. The final stage of assessment involved the members

considering both the oral and written submissions of the applicants. At a board meeting of the Commission, members discussed the

remaining applicants in a collegiate manner and voted for their choice from the short list of applicants. On this basis the Board of

the Commission decided to award the licence for the 15-34 youth orientated service to Spin FM. There was no role for a report of

the type suggested by you in your letter”. (The latter was a reference to a request in the joint letter for a copy of the commissions

“full evaluation report on which the decision was made.”)

The Commission met on the 6th September, 1999 when it decided on the short list of four applicants. Subsequently, it met on 22nd

September 1999 and agreed questions, including the written question concerning the “drugs issue” to be put to the short-listed

Applicants. Oral hearings of the Applicants were held on 27th September, 1999 at which the Applicants were also handed the

Commission’s written questions. A final meeting of the Commission was held on 11th October, 1999 at which they took a collegiate

decision to award the contract to the Notice Party.

The evidence discloses that prior to the receipt of the application, Dr. Kenny had been advised by a senior counsel (who was said to

have worked in drug-related cases) not to let his children frequent the night club known as POD because it was believed to be a

notorious place for drug dealing. In addition Dr. Kenny had earlier heard rumours to that effect. Also he had been aware that the POD

nightclub had been mentioned in an Irish Times report of June, 1999 as a meeting place for some underworld figures and references

made to drugs in that context. He had also read a report, again in the Irish Times and later in June 1999, that a District Judge had

made references to the POD nightclub as a place of drugs and, according to the report, urged a garda Superintendent to take

account of the evidence of drug dealing when the club’s annual licence renewal came before the Court later that year.

The fact that Mr Reynolds was the owner of the POD night club had been highlighted in publicity generated by his groups application

for the radio licence.

The Appellants have relied on Dr. Kenny’s awareness of these matters as evidence of pre-judgment of their application on his part and

that it was such as to give rise to a reasonable apprehension of bias or pre judgment on his part. Of course they do not rely on this

alone but do so also in conjunction with his subsequent conduct, in particular with his meetings or communications with the Garda

Drugs Unit, his letter to and meeting with the Chairman of the Respondents and his personal memorandum made shortly before the

final decision made at a meeting of the Commission on the 11th October, 1999. However, I want first of all to make some observations

about Dr. Kenny's awareness of these matters before dealing with the overall situation also relied on by the Appellants.

Persons appointed to Boards, Tribunals or other Administrative Bodies who exercise quasi judicial functions are appointed not only

because of some particular professional qualification or specialisation but also because they are expected to bring to bear in their

judgments their general experience and knowledge of contemporary society which is relevant to the issues which they may have to

consider. The uncontested evidence before the High Court was that Dr. Kenny, as a parent, a university lecturer and a member of the

Commission was at all times very concerned about the question of drugs generally in Dublin. Furthermore, as indicated above, it is

incontestable that the policy or attitude of a member of a body applying for a radio licence to issues of drug abuse may be a relevant

consideration for the Commission and its members both with regard to the question of the character of an applicant and generally.

Once a member of the Commission has become aware that the Chairman of one of the consortias who has made an application for this

radio licence is the owner of a night club about which there were adverse reports concerning abuse of drugs in that club, he is put on

legitimate enquiry as to the suitability of the Applicant in question. In my view, the evidence goes no further than to establish that on

identifying Mr. Reynolds as Chairman of one of the applicants and owner of the club in question Dr Kenny considered himself to be put

on such enquiry as regards their application. There is no evidence that he formed any pre-judgment of Mr Reynolds at that stage and

indeed the evidence goes the other way. As the learned High Court judge pointed out if Dr. Kenny had rested with and made a

decision upon that information (such as it was) and not pursued further enquiries there could well indeed be a basis for calling in

question the propriety of his conduct although in my view this would have been more likely to raise questions of fair procedures rather

than bias. As Mr Reynolds stated at paragraph 16 of his Affidavit sworn on the 20th December, 1999 “If my attitude to drugs was a

matter of concern, I think the same should have been raised with me.” A complaint which was echoed in the course of submissions

on his behalf before this Court, although there is no issue raised as to fair procedures. In any case a single aspect of the conduct of

Dr. Kenny in relation to the “drugs issue” cannot be considered in isolation from the context of his conduct as a whole.

Before moving onto another aspect of the conduct of Dr. Kenny relied on by the Appellants I should refer to the reliance placed by

their Counsel in his submissions on the judgment of this Court in O'Neill -v- Beaumont Hospital Board [1990] ILRM 419 to support his

contention that this is a case of pre-judgment on the part of Dr. Kenny. In that case the Plaintiff succeeded in obtaining an Order

preventing three members of the Board of Management of the hospital from taking part in any meeting of the Board which would

decide whether the Plaintiff's probationary period of service as a consultant at the hospital should be certified as satisfactory. The

Order of the Supreme Court was based on a finding of fact that the persons concerned had expressed in a very definite fashion the

exercise of a judgement on the merits of matters which would be in contention at that meeting or had committed themselves to a firm

judgment on those facts. Moreover, these judgements were found to have been made on an occasion which preceded the notification

sent to the Plaintiff of the Board's intention to hold such a meeting on a particular date. The facts in that case are far different from

those which arise here.

Another aspect of the conduct of Dr. Kenny relied upon by the Appellants as evidence of pre-judgment was his, as it was put, “secret

investigation” of the “drugs issue” in his meetings and communications with the Garda Sìochana National Drugs Unit. Dr. Kenny’s

contacts with the Garda Sìochana were perhaps more appropriately described as “private” rather than "secret" in the newspaper

report which alerted Mr. Reynolds to the fact that such contacts had taken place. However, on the evidence before the High Court it

is clear that the object of Dr. Kenny's visit to the Garda Drugs Unit on 13th September, 1999 was for the purposes of discussing

generally the drugs scene in Dublin. In the course of that meeting he referred to the publicity concerning the court case during which

the District Judge had made adverse observations concerning drugs and the POD nightclub. He learned from the gardai that a number

of night clubs, including the POD, had put in place systems of control concerning the use of drugs which the gardaì fully endorsed and

which they would continue to monitor. He was also informed that it was not the intention of the gardai to oppose the renewal of the

licence for the POD. This position was later confirmed in a telephone conversation with a member of the drugs unit. At a later date he

telephoned an officer in the Drugs Unit to check on the accuracy of certain details referred to in the response of the Appellants to

the written question posed by the Commission on substance abuse. In addition to his affidavit, Dr. Kenny gave oral evidence in the

High Court. His evidence on affidavit about the purpose of his contacts with the gardai was accepted by the learned High Court Judge

and had not been contested in cross examination by the Appellants.

While the manner in which Dr. Kenny communicated with the gardai for the purpose of being in a position to deal with the applications

generally and in particular to the Appellants might be regarded as idiosyncratic it does not in my view constitute evidence of the pre-

judgment complained of by the Appellants. Dr. Kenny gave special attention to that matter but his conduct discloses no more than

that he was pursuing a line of inquiry relevant to his role as a member of the Commission. While for these reasons I do not consider

that, in the circumstances of this case, these enquiries constitute grounds for the Appellants contention of objective bias, Dr Kenny

might be considered to have been imprudent in embarking on such enquiries without consulting the Commission itself, or at least its

Chairperson. If members of an administrative tribunal embark on enquiries of their own there is at least an increased risk that fair

procedures could be breached. However, since the so-called "drugs issue" was not a factor external or extraneous to the decision

making process but on the contrary material to it, his enquiries with the gardai cannot be considered as demonstrating objective bias

that is to say a ground giving rise to a reasonable apprehension of bias within the meaning of the authorities cited above. In this

context the Appellants also relied on a judgement of Murphy, J. in Dublin and County Broadcasting -v- IRTC and Ors (unreported, High

Court, 12th May, 1989, where, as a Judge of the High Court, Murphy J. held that the decision of the IRTC in that case was not

vitiated by bias largely, it was submitted, because of the forthright manner in which the individual whose conduct was in question in

that case had informed the Chairman of the Commission of his own concerns and his own position. This, it was submitted, is in stark

contrast to the manner in which Dr. Kenny approached his deliberations. That case was one which related to links between the

individual concerned and certain companies, certain individuals associated with the applications and certain shareholdings all of which

were external and extraneous to considerations properly arising in the course of the decision making process. It was a case in which

the individual concerned brought the attention of the Chairman of the Commission these extraneous factors in order to seek his

guidance as to whether he should disqualify himself from participating in the Commission's decisions. In the event, the Chairman took

the view that the situation was not such as to disqualify the individual concerned. In the circumstances, Murphy, J. rejected the

Plaintiff's claim. The issues in that case were wholly different from those arising here.

The letter to the Chairman

Counsel for the Appellants attached a great deal of weight to the letter written by

Dr. Kenny to the Chairman of the Commission on the 22nd September, 1999. The text of the letter is set out earlier in this judgment.

It was submitted that the letter disclosed evidence of pre-judgment on the part of Dr. Kenny having regard to the material adverse to

the POD nightclub, and accordingly Mr. Reynolds, contained in the letter. Counsel for the Appellants also relied on the omission of Dr.

Kenny to inform the Chairman of his contacts with the gardai or to inform him that the gardai were not going to object the renewal of

the licence for the POD. The letter must be read as a whole having regard to its contents and stated purpose. In the first place Dr.

Kenny expressed in the letter his substantive personal concerns concerning Mr John Reynolds as a shareholder and chairman of the

Appellant with which he was then preoccupied. He concludes by stating that he had no evidence which in any way connected Mr.

Reynolds personally with drug dealing or with knowingly permitting it to take place and explaining that the purpose of the letter was to

pose the question as to what extent the concerns which he had outlined in the letter could be considered relevant to any judgment

of his character by the Commission. He then had a meeting with the Chairman immediately after the latter's receipt of letter. The

evidence is that the Chairman expressed the view that these matters were not of sufficient weight to warrant further consideration

and Dr. Kenny accepted that.

Leaving aside for the moment any question as to the extent to which Dr. Kenny may have accepted the Chairman's view at that point

because this is contested by the Appellants I am of the view that the learned High Court Judge was entitled to conclude, and was

correct in doing so, that the letter disclosed Dr. Kenny approaching the issue with an enquiring mind and seeking guidance from the

Chairman whether the matters which were the subject of his concern should be taken further.

Having conveyed very clearly the substance of his concerns for the purpose referred to, I do not consider the omissions referred to

as being of any import. In fact short far from demonstrating a pre-judgment at this or any earlier stage, the conduct of Dr. Kenny

disclosed no more than an interest in enquiring into a subject matter of legitimate concern and its relevance to the evaluation of the

application.

Document of "Self-Clarification"

The Appellants further rely on the personal memorandum which Dr. Kenny prepared for himself immediately prior to the meeting of the

Commission of 11th October, 1999 at which the final decision to award the radio licence was taken. The text of this memorandum has

been set out earlier in this judgment. The Appellants submit that this demonstrates that

Dr. Kenny had not accepted that the issue of Mr. Reynold's character should form no part of his assessment of the Appellant's

application and is in evidence that his pre-judgment had not been discarded by him. This document was prepared by Dr. Kenny

subsequent to the written response provided by the Appellants to the written question posed to them on the "drugs issue" and after

he had telephoned an officer of the drugs unit to check out certain inaccuracies which seemed to be contained in the response. That

response included a statement that Mr Reynolds, in his capacity as a night club owner, had liaised closely and consistently with the

National Drugs Unit in Dublin Castle and especially with it's head, Detective Inspector Brian Sutton. It also stated that all of Mr

Reynolds clubs had been given a clean bill of health by Detective Inspector Sutton. As far as Dr. Kenny was aware, Detective Chief

Superintendent Ted Murphy was the head of the National Drugs Unit. If Mr Reynolds was claiming to have liaised closely and

consistently with the Drugs Unit one would have expected that he would have been aware who was the head of the unit. It was not

unnatural therefore that Dr. Kenny would check this out. He did so and it was confirmed that the head of the National Drugs Unit was

indeed Detective Chief Superintendent Ted Murphy who in turn informed him that no night club received a clear bill of health as such

(my emphasis) from the National Drugs Unit although the systems of control in place in the POD and initiated by the gardai were

endorsed by them. Accordingly, it was in this context that Dr. Kenny subsequently prepared the memorandum which, it is accepted,

was for his own benefit only. There is no doubt that it was certainly within the ambit of his responsibilities as a member of the

Commission for Dr. Kenny to draw up at this stage a final memorandum on the subject matter of his concerns for the purpose of his

personal deliberations. In his affidavit before the High Court he averred that he had done this in order to clarify in his own mind

whether the up-to-date information altered in any way the view which he had reached after speaking with the Chairman on 22nd

September, 1999. He concluded that the position had not changed and that, having regard to the fact that there was no evidence

linking Mr. Reynolds or any other Director with anything untoward in relation to drugs it remained the case that it would be unfair and

inappropriate to raise or challenge the character of the Applicants in any way or to draw any adverse inference in relation to the

character of the Applicant company based on the "drugs issue". Accordingly, at the meeting of the Commission on 11th October, 1999

he did not raise or take into consideration the "drugs issue". I think it is appropriate to recall again at this stage that actual bias or a

breach of fair procedures are not in issue. Dr. Kenny was in my view perfectly entitled, as any adjudicator coming to a final decision,

to draw up a memorandum of matters material to his decision before coming to a final decision. For the purpose of his reflection he

was entitled to express those concerns and frame them in whatever way he thought appropriate. As I have already pointed out these

were not matters external or extraneous to the decision which Dr. Kenny had to take, they were very much in point. In my view, the

memorandum in question does not support the contention of pre-judgment by Dr. Kenny as alleged by the Appellants but is merely

evidence of the manner in which he deliberated and considered and enquired into one of the issue which potentially could effect his

decision. It is not in my view evidence of objective bias or pre-judgment. If Dr. Kenny had taken into account these matters as

evidence of bad character on the part of the Appellants when making his decision on the award of the radio licence without giving the

Appellants an opportunity to meet the case made against them then the question of fair procedures would seriously arise on the basis

indicated by Keane C.J. in the extract from his judgment in the Orange case cited above. It would not be a case of bias but a case of

breach of fair procedures. Indeed at one point Counsel for the Appellants in his submissions to the Court stated that if Dr. Kenny had

openly canvassed his concerns with his clients he would arguably have no concern. In the event Dr. Kenny, as already stated, had

asserted in his affidavit that he did not take account of these concerns when making his decisions and the Appellants have not

pursued presumably for this reason, any question of a breach of fair procedures in this appeal. The submission that the document

shows that he had not abandoned his earlier pre-judgment is misconceived since, as I have found, there was no earlier pre-judgment

on his part.

Taking Dr. Kenny's conduct as a whole I am of the view that the evidence before the High Court disclosed no more than that he had

legitimate grounds for making enquiries concerning the so-called "drugs issue" with particular regard to the Appellants application. His

conduct was consistent with making enquiries on a matter which properly fell to be considered in the decision making process. To this

extent I think the Appellants have wrongly relied on the investigation of matters adverse to the Appellants but relevant to the

decision making process as a basis for alleging objective bias.

In any event, I am of the view that the conduct of Dr. Kenny taken as a whole would not give rise in the mind of a reasonable person

that Dr. Kenny had prejudged the issue nor are there grounds upon which there could be a reasonable apprehension of bias.

Finally, the Appellants have relied on two other matters in support of their submissions. These were, firstly, the failure of Dr. Kenny to

respond to the long list of questions put to him in the letter written by Mr Reynold's solicitors in the wake of the publication in the

Sunday Tribune. Counsel for the Appellants criticised the fact that

Dr. Kenny declined to respond to those questions on the grounds that they had been instructed to issue defamation proceedings

although no such proceedings had been issued to date. Secondly, there were inaccuracies and inconsistencies between the affidavit

of Mr O'Keeffe (where he gives an account of events based on what he was told by Dr. Kenny) and the affidavit of Dr. Kenny himself.

Both affidavits were filed in these proceedings. The Respondents dispute the existence of inaccuracies or inconsistencies. These

matters arose subsequent to the contested decision and obviously, the conduct of Dr. Kenny prior to that decision. They do not

throw any light on that conduct or on Dr. Kenny's state of mind at the time. Therefore, they are not relevant to the manner or

circumstances in which the decision was taken.

For all the foregoing reasons, I am of the view that the learned High Court Judge was correct in holding that there was no pre-

judgment or grounds for objective bias concerning

Dr. Kenny and would disallow the appeal.