Summary strike-off under s.84(5) Veterinary Practice Act 2005 invalid for pre-registration convictions.

THE HIGH COURT

[2025] IEHC 350

[HMCA 2024/340]

IN THE MATTER OF SECTION 84(5) OF THE VETERINARY PRACTICE ACT

2005 (AS AMENDED)

AND

IN THE MATTER OF A REGISTERED VETERINARY PRACTITIONER

AND

ON THE APPLICATION OF THE VETERINARY COUNCIL OF IRELAND

BETWEEN

VETERINARY COUNCIL OF IRELAND

APPLICANT

AND

VALENTIN CIOBANU

RESPONDENT

Judgment delivered by Mr. Justice Micheál O’Higgins this 7th day of May 2025

Introduction

1. This case raises a net but quite challenging issue of statutory interpretation. In May 2024, the Veterinary Council of Ireland (VCI) decided that the respondent’s name should be removed from the Register of Veterinary Practitioners (the “Register”) on account of the respondent having been convicted of drugs trafficking in his native Romania in April 2013. The respondent was first registered in Ireland in 2018.

2. In deciding on a strike-off order, the applicant did not follow the usual channel of convening a fitness to practise inquiry pursuant to s. 76 of the Veterinary Practice Act 2005 (“the 2005 Act”). Instead, the applicant availed of a summary procedure under s. 84 of the 2005 Act whereby the name of a registered veterinary practitioner can be removed from the Register, based not upon the grounds of complaint referred to in s. 76(1) of the Act, but instead on the fact of a sufficiently serous criminal conviction. From the VCI’s point of view, the summary procedure under s. 84 carries certain practical advantages in that it does not require the facts underlying the conviction to be proved beyond a reasonable doubt; the process will be less prone to delays associated with the tiered committee structure of the Preliminary Investigation Committee (PIC), the Fitness to Practice Committee (FTPC) and the VCI itself; and in fact there may be no need to call witnesses at all.

3. Section 84 of the 2005 Act provides as follows: “(1) Where a person whose name is registered on a part of the Register, or on the Register of Veterinary Nurses is convicted in the State of an offence triable on indictment, or is convicted outside the State of an offence consisting of acts or omissions which would constitute an offence triable on indictment if done or made in the State, the Council may decide that the name of such person shall be removed from the part of the Register concerned or the Register of Veterinary Nurses as appropriate.” (emphasis added)

4. The legal issue in the present case is whether the summary procedure under s. 84 can apply in the case of a criminal conviction entered before the respondent was registered on the Irish Register. The respondent argues that, correctly construed, the underlined words mean that the section can only be invoked where the person is convicted of a sufficiently serious offence while registered. The applicant argues otherwise and says that the section can be used regardless of when the conviction occurs.

5. In contending for a broad interpretation of the section, the applicant emphasises that the section permits the VCI to act or react in a speedy fashion in order to protect members of the public and to protect the reputation of the profession. The registrant has already had the benefit of the inquiry process that resulted in the criminal conviction.

6. As well as the interpretation issue, the respondent also raises a second point and contends that, in the circumstances of the case, the VCI erred on the merits in granting the strike-off order pursuant to s. 84(1). The respondent says the strike-off order fails to have regard to the severe effects of the order on the respondent and his family; the fact that he admitted the conviction as soon as he was questioned about it; the fact that the conviction dates from 12 years ago and both the criminal process and regulatory process in Romania have long since been finalised; the contention that he paid his debt to society for the crime and was now back on the veterinary register in Romania, having served the 12 months suspension order imposed by the Romanian authorities; and the contention that the applicant failed to have sufficient regard to various matters put forward by way of mitigation. It seems to me this second (merits) question will only fall to be determined if the respondent is unsuccessful on the first point, the issue of interpretation or jurisdiction.

Background facts

7. Before considering the legal issues further, I will say something more about the facts of the case. These are helpfully summarised in the grounding affidavit of Rachel Brown, President of the VCI sworn on 8 July 2024. The complaint which prompted the applicant to take action was a letter received by the VCI from the owner of Mulroy Vets and Letterkenny Small Animals Veterinary Hospital, County Donegal on the 25th April 2022. The letter expressed concerns, inter alia, that the respondent was involved in drug trafficking offences in Romania. The applicant directed Authorised Officers to carry out an investigation into the concerns raised in the complaint. The respondent was interviewed on the 2nd December 2022 and admitted that during 2012 or 2013 he had been investigated in Romania for supplying ketamine to another person. He was held in detention for three months before being convicted and sentenced to three years imprisonment which was fully suspended.

8. The College of Romanian Veterinarians confirmed the criminal sentence imposed on the respondent and that he had been suspended in Romania from practising veterinary medicine for a period of one year from July 2017. The certificate of conviction was obtained confirming that the respondent was convicted in or around 16th April 2013 at the Court of Bucharest Criminal Section II for drug trafficking offences.

9. The respondent was invited to attend a meeting of the Council to consider a report prepared by the Authorised Officers. The respondent attended the meeting of the 25th April 2024 and was legally represented. Counsel on behalf of the respondent made oral submissions that the applicant did not have the power under s. 84 of the Act to remove the respondent’s name from the register on the basis that the conviction in Romania pre-dated his registration in Ireland. No authority or legal reasons were advanced at that stage and the point had not been raised previously.

10. The Veterinary Council decided to adjourn the meeting to enable the legal issue to be fully considered. The VCI convened again on the 23rd May 2024 wherein it drew a number of conclusions. Firstly, the VCI determined that it had the power to remove a person from the Register under s. 84(1) irrespective of when the conviction took place. Secondly, it determined that the respondent’s name be removed from the Register as a necessary and appropriate response to the conviction and the conduct leading to it. In particular, the applicant noted that the dealing, trafficking or supplying of ketamine by a veterinary practitioner was at the very highest level on the spectrum of wrongdoing by a member of the profession.

11. The matter now comes before the court in the following circumstances: Section 84(5) of the 2005 Act requires that a decision made by the VCI under s. 84(1) be confirmed by the High Court where no appeal has been lodged under s. 84(3) within the relevant 21 day period. In circumstances where the respondent has not appealed and the relevant period has elapsed, the applicant now brings the matter before the High Court seeking to have the strike-off

decision confirmed.

Relevant provisions of the Veterinary Practice Act 2005 as amended

12. The Act provides for the registration of veterinary practitioners in Part 4 of the Act which commences at section 34. Section 42 in material part provides as follows: “(1) The Council, on application to it in that behalf in writing by a person to whom subsection (2) applies, in accordance with regulations under section 52 (1), and, on payment to it of the fee prescribed under section 33, shall register the person as a veterinary practitioner.

(2) This subsection applies to a person who –

(a) has undergone programmes of training and education, and acquired educational qualifications prescribed under section 65,

(b) is of good character and repute and is not an undischarged bankrupt,

(c) has not been convicted by a court in the State or elsewhere, of an offence that, in the opinion of the Council, is such as to render the person unfit to practise veterinary medicine, and

(d) is not prohibited from practising or suspended from the practice of, veterinary medicine either under Part 7 or provisions corresponding to those contained in that Part in force in another state, by reason of a conviction for an offence, or serious misconduct in connection with the carrying out of professional duties as a veterinary practitioner.”

13. Section 49 deals with the removal of a name from the Register. It provides in material part as follows: “(1) A registered person, may apply to the Council to have his or her name removed from the part of the Register or the Register of Veterinary Nurses, as the case may be, in which his or her name is registered and, on receipt of such application and on payment of the appropriate fee prescribed under section 33, the Council may remove the name from the part of the Register or the Register of Veterinary Nurses.

(2) …

(3) Nothing in this section shall operate to prevent the Council from refusing to restore to a part of the Register or the Register of Veterinary Nurses the name of any person, who is otherwise entitled to be registered, on the grounds of the unfitness of that person to engage in the practice of veterinary medicine or veterinary nursing, as the case may be.

(4) In a case where a registered person applies to the Council under subsection (1) to have his or her name removed from a part of the Register or the Register of Veterinary Nurses, the Council shall not consider the application until it has decided whether or not to so remove the name where –

(a) an application has been made under Part 7 for an inquiry into the conduct of the registered person,

(b) he or she has been convicted by a court in the State or elsewhere, of an offence that, in the opinion of the Council, is such as to render the person unfit to practice veterinary medicine, or

(c) he or she has been prohibited from practising or suspended from the practice of, veterinary medicine either under Part 7 or provisions corresponding to those contained in that Part in force in another state, by reason of a conviction for an offence or serious misconduct in connection with the carrying out of professional duties as a veterinary practitioner or a veterinary nurse, as appropriate.”

14. Fitness to Practice (FTP) inquiries and disciplinary charges are dealt with at s. 75 and onwards. In material part the relevant sections read as follows: “75. The Council may, where it is of opinion that it is reasonable to do so, of its own motion investigate the fitness to practise of a registered person. 76.(1) The Council, or any person, may apply to the Registrar for an inquiry into the fitness to practise veterinary medicine or veterinary nursing of a registered person on the grounds that –

(a) his or her behaviour constitutes professional misconduct,

(b) he or she is medically unfit to practise veterinary medicine by reason of physical or mental disability,

(c) his or her registration is erroneous due to a false or fraudulent declaration or misrepresentation, or

(d) he or she has failed to comply with any provision of this Act or any regulations made under it. (2)(a) Where a member of the Council or the Registrar receives a complaint in relation to a registered person in which it is alleged, as regards him or her, that any of the matters referred to in paragraph (a), (b), (c) or (d) of subsection (1) applies, then the member of the Council or the Registrar shall notify the person making the complaint that he or she may make an application under subsection (1).

(b) The Registrar shall maintain a record of complaints referred to in paragraph (a), and shall prepare and furnish a report in relation to them, to the Council as required by it and in any event, at least every 6 months.”

15. Section 76(10) provides some important definitions. It reads as follows:

“(10) In this section –

“professional misconduct” in relation to a registered person, means any act, omission or pattern of conduct that –

(a) is connected with the practise with the veterinary medicine or veterinary nursing and represents a serious falling short of the standard that could be reasonably be expected of a registered person,

(b) is infamous or disgraceful in a professional respect (notwithstanding that, if the same or like act, omission or pattern of conduct were committed by a member of another profession it would not be professional misconduct in respect of that profession) or,

(c) involves fraud or dishonesty of a nature or degree which bears on the carrying on of the profession of a registered person; “registered person” means a person registered under Part 4 or 8 and includes a person who is no longer registered at the time of an application for an inquiry under subsection (1) but was registered at the time that the conduct the subject matter of the application occurred.”

16. Sections 78 - 80 deal with an inquiry by the FTPC. In material part, the sections provide as follows: “78. — (1) If a decision to proceed to hold an inquiry is notified to the chairperson of the Fitness to Practise Committee under section 77 (5), that Committee shall hold the inquiry as soon as practicable.

(2)…

(3) The registered person to whom the inquiry relates shall be given notice, in writing, by the Fitness to Practise Committee, sent to the address of that person as stated in the Register or the Register of Veterinary Nurses, as appropriate, of the nature of the evidence proposed to be considered at the inquiry and that person, any person representing him or her, or any person whom they wish to call to give evidence in relation to the matter on his or her behalf shall be given the opportunity of being present at the inquiry.

(4) The Fitness to Practise Committee shall consider whether the registered person to whom the inquiry relates is fit to practise veterinary medicine on the basis of consideration by it of the following:

(a) evidence relating to the person to whom the inquiry relates, which shall be presented to it by or on behalf of the Registrar –

(i) of his or her professional misconduct,

(ii) that he or she is medically unfit to practise veterinary medicine by reason of physical or mental disability,

(iii) that his or her registration is erroneous due to a false or fraudulent declaration or misrepresentation, or

(iv) that he or she has failed to comply with any provision of this Act or any regulations made under it;

(b) evidence that the person to whom the inquiry relates, or his or her representative, may wish to present to the Fitness to Practise Committee, including oral evidence presented by any witness that they may wish to call;

(c) evidence that the Fitness to Practise Committee decides is appropriate to and will assist it with its inquiry, such as the testimony of a person who has expertise in an area of veterinary science, or any other area that is relevant to the inquiry, or the testimony of the applicant.

(5)…

(6) For the purposes of an inquiry under this section, the Fitness to Practise Committee may –

(a) examine on oath, either by word of mouth or on written interrogatories, any person whom it considers relevant to the inquiry,

(b) administer oaths for the purposes of the examination, and

(c) record, in writing, the answers of a person so examined.

(7) For the purpose of an inquiry held under this section, the Fitness to Practise Committee shall have the powers, rights and privileges vested in the High Court or a judge of it on the hearing of an action in respect of –

(a) the enforcement of attendance of witnesses and their examination on oath or otherwise, and

(b) the compelling of production of documents…

79. — (1) Following an inquiry under section 78, the Fitness to Practise Committee shall make a report of the inquiry and its findings to the Council and shall specify in the report – (a)the nature of the application, (b)the evidence laid before it,

(c) any other matter in relation to the registered person to whom the inquiry relates as it considers appropriate, and (d)its opinion as to whether one or more of the grounds specified in section 76(1)

were found to be proven…

80. — (1) Where the Council receives a report from the Fitness to Practise Committee under section 79(1), in which that Committee gives as its opinion that one or more of the grounds specified in section 76(1) were found to be proven, it may decide to do any of the following –

(a) remove the name of the registered person from all or some of the parts of the Register or the Register of Veterinary Nurses where he or she is registered, as the Council considers appropriate,

(b) direct that for a specified period the registration of the registered person in all or some of the parts of the Register or the Register of Veterinary Nurses where he or she is registered, as the Council considers appropriate, shall not have effect, or

(c) attach such of the following conditions as it thinks fit, to the retention of the name of the registered person in all or some of the parts of the Register or the Register of Veterinary Nurses where he or she is registered, as the Council considers appropriate:

(i) that he or she should obtain specified medical treatment;

(ii) that he or she should have limits placed on the type of veterinary medicine or veterinary nursing, as appropriate, practised by him or her;

(iii) that he or she should have geographical or temporal limits placed on the practice by him or her of veterinary medicine or veterinary nursing, as appropriate;

(iv) that he or she should attend specified programmes of education or further education;

(v) other specified conditions.

(2) …

(3) A person who receives a notification under subsection (2) may appeal to the High Court against the decision specified in the notification within a period of 21 days beginning on the date of such receipt.

(4) On the hearing of an appeal under subsection (3) by the registered person to whom the decision relates, the High Court may make –

(a) an order affirming or setting aside any decision of the Council in relation to matters referred to in subsection (1) concerned,

(b) an order remitting the decision of the Council in relation to matters referred to in subsection (1) with or without directions to the Council, for reconsideration by it and the making of a new decision in relation to it, or

(c) any other order that it considers appropriate.

(5) Where the registered person to whom the decision relates has made no application under subsection (3) within 21 days of the notification under subsection (2), the High Court may, on an application to it in a summary manner by the Council make –

(a) an order confirming or setting aside the making of the decision concerned,

(b) an order remitting the decision concerned with or without directions to the Council, for reconsideration by it and the making of a new decision in relation to it,

(c) any other order that it considers appropriate.

(6) The decision of the High Court on an application under this section shall be final, save that, by leave of that Court or the Supreme Court, an appeal by the Council or the registered person concerned, from the decision, shall lie to the Supreme Court on a question of law.”

Summary of submissions on behalf of the Veterinary Council of Ireland

17. The applicant submits that the respondent’s interpretation of s. 84(1) is unduly literal and fails to reflect the purpose and context of the section and of the Act as a whole. It is submitted that the respondent’s argument is predicated squarely on the use of the present tense singular “is” in s. 84(1). That argument attaches far too much significance to the use of that one word, without engaging with the text of the statute when read as a whole and the purpose of the legislation. Both parties rely on the decision of the Supreme Court (Murray J.) in Heather Hill Management Company CLG v. An Bord Pleanála [2022] IESC 43. The applicant submits that in light of Heather Hill, the court must deploy a much wider lens than that used by the respondent when seeking to discern what the legislature intended to cater for when enacting s. 84.

18. The VCI relies on several decisions from the United Kingdom and elsewhere which emphasise that, when construing legislation concerned with the regulation of professionals, the purpose of such legislation is the protection of the public. In that regard, the applicant relies upon Health Professions Council v. Chiropodists Board [2002] EWHC 2662 (Admin), Antonelli v. Secretary of State for Trade and Industry [1998] 1 All E.R. 997, the decision of the UK Court of Appeal in Lewis v. Prosthetists & Orthotists Board [2001] EWCA Civ 837 and a decision of Colton J. in Northern Ireland, In Re an Application by Gareth Watson for Judicial Review [2022] NIQB 59.

19. In Lewis, the registered person was viewed as having had an inappropriate relationship with a patient, and an allegation of rape was made. The alleged conduct predated his registration with the relevant Board. The Court of Appeal observed that it would be absurd if conduct committed the week before registration could not be considered, whereas conduct committed the week after registration would lead to striking off from the register. The applicant submits that the “self-same absurdity of interpretation” would arise in relation to s. 84(1) here, were the court persuaded to follow the narrow interpretation urged by the respondent.

20. It is submitted that several undesirable consequences would flow from a finding that the section does not cover pre-registration convictions. An example is given that a vet, who committed a crime that manifestly rendered him unfit to practise veterinary medicine (e.g. cruelty to animals), would arbitrarily be immune from any regulatory consideration purely by dint of the conviction being recorded at a time when he was not on the register. Such would allow the individual to ensure that he was not actually registered at the time of conviction for the purpose of avoiding the application of s. 84.

21. An examination of the purpose and scheme of the Act supports the contention that the Act’s primary objective is public protection; that is the very raison d’être of Part 7 of the Act which governs fitness to practice. Those seeking registration must satisfy the Council that they are of good character and that they have not been convicted (in the State or elsewhere) of an offence such as to render them unfit to practice veterinary medicine. This underlines the point that a narrow interpretation of s. 84, precluding consideration of pre-registration conduct, would be entirely at odds with the broader scheme and context of the Act.

22. Section 76(1) of the Act provides for the making of complaints against a registered person on four nominated grounds. Unlike many similar statutes, the Act does not contain a ground of complaint based upon the fact that a person may have been convicted of an indictable offence. It follows that the respondent cannot be the subject of a complaint under s. 76(1) based upon the fact of his having been convicted. Instead, if the complaint were to be made on the grounds of professional misconduct, the registrar would be required to prove the underlying conduct beyond a reasonable doubt. Witnesses would have to be called and if those witnesses were based overseas, they could not be compelled to attend any hearing.

23. The VCI relies upon the definition of a “registered person” under s. 76(10) of the Act, which has been set above at para. 15. The Oireachtas extended the ambit of the term “registered person” beyond a person who was registered at the time the complaint was made to persons who were registered at the time of the conduct in question, but who, at the time of the complaint, were no longer registered. This is consistent with the objective of protecting the public from harm - a person should not be permitted to avoid the consequences of their conduct by a quirk of timing. This represents a consistent theme throughout the 2005 Act and is one which is common to similar statutes.

24. It cannot be said that the legislative intent in enacting this section is clear, as an equally good argument may be made that the reference to the person being registered is simply a descriptor to identify to whom the section is directed, and that the use of “is” is intended to signify no more than that the person must have received a conviction rather than to stipulate that the conviction must coincide with the registration. This type of overly grammatical analysis, focussing on the tense used in relation to one verb and one sentence in a manner that is utterly divorced from context, is precisely what Heather Hill rails against.

25. The 2005 Act is an outlier amongst legislation governing the statutory professions in Ireland, as the High Court is not vested with the jurisdiction to suspend a person’s registration on an interim basis pending an inquiry into the person’s conduct. Were it not for s. 84, a person convicted of animal cruelty would be entitled to continue to practice veterinary medicine pending: a complaint being made in relation to the conduct; consideration of that complaint by the PIC; evidence being gathered, and an inquiry being conducted by the FTPC; and, assuming findings of professional misconduct are made, a sanction of cancellation being imposed. Such a laboured approach would undermine public confidence in the profession, and this could not have been the intention of the Oireachtas.

Section 49(4)(b) of the Veterinary Practice Act 2005 as amended

26. I heard this case initially on the 26th November 2024. The applicant applied to the court, on notice to the respondent, for a further opportunity to address the court on a specific issue. In circumstances where the respondent did not object, the matter was listed for further argument on 28th February 2025. In addition, I gave the parties an opportunity to file supplemental written submissions. In oral submissions during the second day of hearing, the VCI focussed less on the grammar and wording of the section, and more on the significance of s. 49(4)(b) of the 2005 Act in shedding light on the intention of the Oireachtas in enacting s. 84(1).

27. Section 49(4) provides as follows: “In a case where a registered person applies to the Council under subsection (1) to have his or her name removed from a part of the Register or the Register of Veterinary Nurses, the Council shall not consider the application until it has decided whether or not to so remove the name where— (a)…

(b) he or she has been convicted by a court in the State or elsewhere, of an offence that, in the opinion of the Council, is such as to render the person unfit to practice veterinary medicine.”

28. The applicant submits that both s. 49(1) and s. 84(1) of the 2005 Act are directed towards the same object - the de-registration of a registered person. The purpose of s. 49(4)(b) is clear: ensuring that a registered person who has received a sufficiently serious conviction cannot circumvent the provisions of s. 84(1) by submitting an application to be removed from the Register voluntarily prior to the Council’s consideration of the conviction. The two sections are therefore intrinsically intertwined and s. 49(4)(b) has no existence independent of s. 84(1).

29. The VCI submits that the fact that the Oireachtas saw fit, in enacting s. 49(4)(b), to prevent a registrant from removing themselves from the register on a voluntary basis in the context of a relevant pre-registration conviction, confirms that the power conferred by s. 84(1) was intended to be engaged, irrespective of whether the relevant conviction coincided with registration or pre-dated it.

30. If the respondent’s argument is accepted, s. 49(4)(b) would preclude the VCI from considering an application by the respondent to voluntarily remove his name from the register by reason of his conviction in Romania, while at the same time precluding the VCI from applying to the High Court to remove his name based upon the very same conviction. In simple terms, the respondent’s argument, if accepted, would lead to the absurd conclusion that s. 49(4)(b) covers pre-registration convictions whilst s. 84(1) does not.

31. This would give rise to a clear absurdity given that the sole purpose of s. 49(4)(b) is to operate ancillary to s. 84(1) to ensure that registrants who are proceeded against in s. 84(1) cannot avoid the operation of that provision by means of removing their name from the register. In the circumstances, therefore, says the Veterinary Council, s. 49(4)(b) can only be regarded as applying to the same cohort of convictions that are captured by s. 84(1).

32. Taking into account the negative consequences and “wider implications” of the respondent’s argument, the VCI submits that the purpose of s. 84(1), when construed in harmony with s. 49(4)(b) and the broader statutory object of protecting the public from harm, is clear: namely that the Oireachtas intended to create a summary process whereby the Council could apply to the High Court to remove a person’s name from the register, without having to go through a FTP inquiry, where that person has received a sufficiently serious criminal conviction such that, based upon that conviction, they are deemed not to be a fit person to be on the register, whether or not that conviction happens to have pre-dated or postdated their registration.

Summary of the respondent’s submissions

33. The respondent submits that in order for the powers conferred on the VCI by s. 84(1) of the Act to be properly engaged, two key questions must be answered in the affirmative:

(i) Is the person in question registered on a part of the Register? and

(ii) Was that person convicted of an offence of a sufficiently serious nature during the currency of their registration?

34. The respondent accepts that the clear and unambiguous purpose of the section is to confer on the applicant a reactionary power to remove a registered person from the Register in circumstances where they are convicted of a suitably serious criminal offence while registered. What is not contemplated by the section however is a power to remove a person from the Register where they have a conviction which pre-dates their registration. Accordingly, the applicant’s powers under s. 84(1) of the Act were not properly engaged in this instance and the applicant was not entitled to remove the respondent’s name from the Register using the mechanism provided for in that section.

35. In accordance with long-established case law, the strong default position is that the words of a statute should be given their ordinary and natural meaning unless there is good reason to do otherwise. Reliance is placed upon the dictum of O’Donnell C.J. in People (DPP) v. AC [2021] IESC 74. The respondent accepts that when giving effect to the plain meaning of the statute, it is important that this approach does not invite a court to isolate the critical words and consider if they have a plain or literal meaning in the abstract.

36. Section 5(1) of the Interpretation Act 2005 indicates that a more strict interpretation may be appropriate where a court is construing a provision that relates to the imposition of a penal or other sanction. Section 84(1) of the Veterinary Practice Act 2005 contemplates the imposition of a sanction and therefore falls outside the scope of s. 5 of the Interpretation Act.

In the alternative, if the court finds that the section falls within s. 5 of the Interpretation Act, it is submitted that the meaning of the section is neither obscure nor ambiguous. Drawing on the dictum of Woulfe J. in AC at para. 49, the respondent submits that no linguistic doubt arises in the context of the section. Further, there is no syntactic ambiguity or semantic ambiguity and nor is there doubt as to the scope of its intended application. The intention of the legislature is clear from a plain reading of s. 84 to the effect that the applicant is conferred with a reactionary power to deal with the occurrence of a registered person being convicted of a suitably serious criminal offence.

37. Had the Oireachtas intended to confer upon the applicant a power to remove a registered person from the Register by reason of their being convicted of an offence which did not occur during the currency of their registration, this could easily have been achieved by the Oireachtas by including the words “or has been” before the word “convicted” in the section. The absence of any such wording is telling, particularly in circumstances where elsewhere in the Act, such as in s. 49(4)(b), the past tense (“has been convicted”) is used. The usage of such language in s. 49 and its absence from s. 84 suggests strongly the wording and effect were intended.

38. Turning to the case law from the United Kingdom cited by the Veterinary Council, the respondent submits that none of the authorities cited contain language similar to the language chosen by the Oireachtas in s. 84(1). The respondent does not cavel with the principle that pre-registration professional conduct may be relevant to post-registration disciplinary proceedings. However, that is not the issue here. What is in dispute is whether s. 84(1) was the correct statutory vehicle by which the applicant could exercise its power to investigate and sanction the respondent or whether the utilisation of s. 76 of the Act would have been appropriate in the circumstances of this case.

39. The applicant has not explained why it did not pursue a complaint against the respondent pursuant to s. 76(1) of the Act by engaging either s. 76(1)(a) and/or (c) and/or (d). Insofar as the applicant makes reference to challenges that it may face in prosecuting a complaint as against the respondent under s. 76(1) in terms of the absence of extra-territorial powers, this is not a valid basis for expanding the powers conferred on it under s. 84(1) of the Act.

40. Similarly, insofar as the applicant identifies a possible deficiency in the Act concerning the absence of a power to suspend a practitioner’s registration on an interim basis pending the resolution of a complaint, this suggested deficiency does not justify the expansion of the applicant’s statutory powers under s. 84(1).

41. The applicant complains that it was denied an opportunity to conduct a character assessment of the respondent as part of his registration application on account of the criminal conviction not being disclosed. This ignores the fact that the Act provides a statutory mechanism under s. 76(1) to consider an erroneous or fraudulent application for registration. It has not been explained why this more appropriate procedure was not availed of.

42. The respondent also addressed the applicant’s submission on day two of the hearing concerning the suggested link between s. 49(4)(b) and s. 84(1) of the Act. The respondent reiterates that a pre-registration conviction could ground a complaint under s. 76 and be used to find that a registered person was and is guilty of professional misconduct. The production of a certificate of conviction could ground such a complaint. Should such pre-registration conviction be proven to constitute professional misconduct, a sanction could be imposed on the registered person up to and including the sanction of strike-off. The significance of the s.

76 procedure being adopted rather than the s. 84(1) procedure is that the applicant would be required to consider all available sanctions, unlike the s. 84(1) procedure which involves the binary option of a full strike-off order or nothing.

43. Section 49 of the Act provides, in general terms, for a general rule that permits a registrant to apply to have his or her name removed from the Register. This general rule is subject to exceptions which ensure that a registrant cannot avoid disciplinary action by means of having their name removed from the Register. The applicant now belatedly contends for an interpretation of the Act that creates a link between the powers conferred on it by s. 49(1) and s. 84(1). Such a link is artificial and contrived, not least because the two sections feature in entirely different parts of the Act.

44. Moreover, the context and purpose of each section is very different. In the context of s. 49(4), the applicant is tasked with considering whether or not to accede to a registrant’s application to have their name voluntarily removed from the Register. In stark contrast, under s. 84(1) of the Act, the applicant is tasked with deciding whether or not it should exercise its discretionary power to impose on a summary basis, the ultimate sanction of strike-off. Entirely understandably, the Oireachtas decided to limit the VCI in the wielding of what is a draconian power in the manner provided for by s. 84(1).

45. Tellingly, the use of the past tense in s. 49 of the Act renders its absence in s. 84(1) all the more conspicuous. In light of these important differences, the applicant’s contention that the sole purpose of s. 49(4)(b) of the Act is to operate ancillary to s. 84(1) is unsustainable. It is artificial to suggest that s. 49(4) has no existence independent of s. 84(1), particularly when read in light of the powers conferred on the applicant by s. 76 which identifies several grounds for pursuing misconduct complaints.

46. In conclusion, the respondent submits that the use by the Oireachtas of differing tenses in s. 49(4)(b) and s. 84(1) was intentional and deliberate. The decision by the Oireachtas to limit the applicant’s ability to wield the draconian power of imposing a strikeoff sanction on a registrant without regard to any other lesser sanction (as is contemplated by s. 84(1)) was confined by the Oireachtas to instances of a registered person being convicted of an indictable offence during the currency of their registration. Such a limitation does not give rise to an absurdity. Rather, it constitutes a reasonable and understandable safeguard built into the legislation to limit the exercise of what is, on any view, an exceptional and farreaching power.

Analysis of the “Plain Meaning” of Section 84(1) of the 2005 Act

47. Recent Supreme Court decisions on statutory interpretation, including Heather Hill, continue to emphasise that when interpreting the section of an Act, the words chosen by the Oireachtas are the first port of call in its interpretation. The court’s task is to construe the words of the section. The court does so by having regard to the purpose and context of the section, the Act in which the section appears, the pre-existing legal framework and the objectives of the legislation. According to the Supreme Court in AC, the party contending that a statutory provision does not have the effect suggested by the plain meaning of the words chosen by the Oireachtas bears the onus of establishing that that is so.

48. The correct approach is put succinctly by Murray J. in Heather Hill at para. 214 as follows: “The words of the section are the first port of call in its interpretation, and while the court must construe those words having regard to the context of the section, of the Act in which the section appears, the pre-existing relevant legal framework and the object of the legislation insofar as discernible, the onus is on those contending that a statutory provision does not have the effect suggested by the plain meaning of the words chosen by the legislature to establish this.”

49. This is consistent with the dicta of O’Donnell C.J. in AC, wherein the Chief Justice emphasises that the basic approach to interpretation is that which gives primacy to the words used. He refers to this as “the plain meaning approach” rather than a “literal approach” as the latter may have a connotation of artificiality. The Chief Justice states the following at para 7: “If, when viewed in context, having regard to the subject matter and the objective of the legislation, a single, plain meaning is apparent, then effect must be given to it unless it would be so plainly absurd that it could not have been intended.” (my emphasis)

50. This then is the approach I propose to take in interpreting s. 84(1) here: I will endeavour to identify the plain meaning of the words chosen by the Oireachtas and I will do so by viewing the wording of the section in context. In order to assist the interpretive exercise, I will for discussion purposes strip out the non-material words of the section as follows: “(1) Where a person whose name is registered on… the Register… is convicted in the State of an offence triable on indictment, or is convicted outside the State of an offence consisting of acts or omissions which would constitute an offence triable on indictment if done or made in the State, the Council may decide that the name of such person shall be removed from… the Register…”

51. The words of the section indicate to me that it was intended by the Oireachtas that the summary strike-off power would be available on the occurrence of a registered person being convicted of a sufficiently serious criminal offence. The combination of “whose name is registered” and “is convicted” – indicate to me that in order for the section to be engaged the conviction must occur when the person’s name is on the Register. I regard this as the plain meaning of the words of the section.

52. The clear omission of any reference to the past tense “has been convicted” or similar wording is consistent with a legislative intention that, for a conviction to be reckonable for the purpose of the section, it must have been imposed during the currency of the registration.

53. I accept the point that the meaning could have been spelt out more clearly and that the section does not, for instance, use language such as “while” or “during the currency of” to describe any temporal limitation. However, I regard the meaning of the words chosen as being sufficiently clear to warrant giving effect to their plain meaning. The plain meaning of the words chosen by the Oireachtas indicate that the section applies where a conviction is entered against a person whose name is on the Register.

54. I come to that conclusion not by interpreting the words of the section in isolation, but rather by interpreting the words in light of the wording and purpose of the section itself, its relationship to the Act as a whole, and the scheme and purpose of the 2005 Act.

55. I find that, had it been the intention of the Oireachtas to allow the power to be used regardless of when the conviction was entered, this would and could have been spelt out in clear cut terms. This could easily have been achieved, for instance, by replacing “is convicted” with “is or has been convicted” in the second and third lines of the section. Alternatively, the words “is convicted” might simply have been replaced with “has been convicted”.

56. In my view, the somewhat unusual form of wording chosen by the Oireachtas in s. 84(1) – particularly the rather drawn-out “whose name is registered”, juxtaposed with the two references to “is registered” - is suggestive of a parliamentary intention that the registration and conviction of the person should be contemporaneous. The wording and the sequence chosen both indicate that the framers of the section intended that, in order for a conviction to trigger the section, it must occur when the person is registered.

57. I am fortified in this view by contrasting the wording of s. 84(1) with the wording of s. 49(4)(b) which I have set out at para. 28 of this judgment.

58. The decision by the legislature to include “has been convicted” in s. 49(4)(b), but to omit such wording from s. 84(1) appears not to have been accidental. The decision by the Oireachtas to include only the present tense in s. 84(1) (“is convicted”) and not to do so in s. 49(4)(b) (“has been convicted”) appears not to have been accidental either. In my view, it would be a mistake to ignore this careful and somewhat unusual wording chosen by the Oireachtas, particularly in circumstances where elsewhere in the Act a different wording is used that could easily have been used in the section under discussion.

Viewing the scheme and purpose of the 2005 Act in context

59. I must keep in mind that Heather Hill and other recent authorities emphasise the need for a court, when interpreting a section of an Act, to do so in context, having regard to the subject matter of the section, the Act as a whole and its objectives. Having done so, I am satisfied that an examination of the purpose and scheme of the Act as a whole supports the

conclusion that the legislature intended that pre-registration convictions would not be covered by s. 84. I reach this conclusion for a number of reasons.

60. First, applications for registration are dealt with in s. 42 which is part of Part 4 of the Act. Section 42(1) provides that the VCI, on application in writing by a person to whom subsection (2) applies, and on payment of the prescribed fee, shall register the person as a veterinary practitioner. When regard is had to the express terms of s. 42(2) it may be seen that the following is envisaged under the Act:

• Applications for registration would be in writing;

• Applications would be from persons who have undergone the required training;

• Who are of good character and repute;

• Who have not been convicted by a court in Ireland or elsewhere of an offence that, in the opinion of the Council, is such as to render the person unfit to practice veterinary medicine; and

• Who is not prohibited from practising either under Part 7 or under corresponding provisions in another State, by reason of a conviction for an offence, or serious misconduct in connection with the carrying out of professional duties as a veterinary practitioner.

61. Of relevance to the interpretation question I have to decide, the 2005 Act envisages that a person who has been convicted of a sufficiently serious offence will not be eligible to apply for registration in the first place. Such a person would not be a person to whom s. 42(2) applies and, therefore, may not apply for registration under s. 42(1).

62. In simple terms, convicted persons are not (ordinarily) eligible to apply for registration. That means that the scheme of the Act envisages that before a person gets through the initial registration gate, they must first demonstrate that they meet the eligibility criteria of subsection (2), including the requirement (in simple terms), of showing they have not been convicted of an offence.

63. In my view, this part of the Act supports the construction that s. 84(1) only refers to post-registration convictions because the Act envisages that pre-registration convictions will be caught at the gate by the eligibility criteria set out within s. 42(2).

64. That this was the likely intention of the Oireachtas is reinforced by the fact that s. 76(1) provides a mechanism for correcting an erroneous registration, where it can be shown that same was due to a false or fraudulent declaration or misrepresentation. I will come back to this section in a moment.

65. Second, consideration of the language and purpose of s. 76(1) of the Act also supports the respondent’s interpretation of s. 84(1). Section 76 deals with the holding of FTP hearings to deal with disciplinary complaints. The section identifies four separate grounds ((a) – (d)) for convening a fitness to practise inquiry. We have identified these grounds already in para.

14 of this judgment.

66. It is notable that the identified grounds are reasonably broad and are not limited in the same manner as the power created by s. 84(1).

67. Of particular relevance, on the facts of the present case, is s. 76(1)(c) which covers the very situation which the VCI alleges occurred here. The applicant contends both in written and oral submissions that the respondent failed to disclose his conviction when applying for registration. Accordingly, says the Council, it was deprived of the opportunity of considering whether his application ought to have been refused on character grounds. In my view, this does not assist the applicant’s argument on the interpretation question. This is because, as I have mentioned, the Act itself provides a mechanism for professional misconduct charges to be brought where a registrant’s registration is erroneous due to a false or fraudulent declaration or misrepresentation. The selection by the Oireachtas of the somewhat loaded term “fraudulent” alongside the more neutral term “false” is perhaps suggestive of an intention that the latter term would carry a lower threshold of intent. At all events, the section clearly gives the VCI a facility to deal with situations where an applicant makes a false or misleading declaration when applying for registration. In that regard, I think there is some force to the respondent’s argument that in the present case the applicant may have moved under the wrong section.

68. Thirdly, the power given to the Council in s. 84(1) should also be viewed in light of the purpose and wording of the section itself and its relationship with other powers given to the Council elsewhere within the Act. I take the point made by the applicant that s. 76(1) does not contain a separate ground covering the fact of a criminal conviction. The applicant contends that that supports its argument that s. 84(1) should be interpreted as including preregistration convictions. The applicant submits that, if the respondent’s argument is accepted, this would mean that Mr. Ciobanu cannot be the subject of a complaint under s. 76(1) based on the fact of him having been convicted. Instead, if a complaint were to be made on grounds of misconduct, the registrar would be required to prove the underlying conduct beyond a reasonable doubt. The applicant says this would be problematic and cumbersome because the FTPC does not enjoy extra-territorial powers and therefore witnesses based overseas could not be compelled to attend any hearing.

69. In a similar vein, the applicant submits that the absence of a power to impose an interim suspension order (such as that conferred on the Medical Council by s. 60 of the Medical Practitioners Act 2007, as amended) also supports the need for an expansive interpretation of s. 84(1).

Contrast between the inquiry process under s. 76 and the summary power under s. 84

70. Having carefully weighed up these submissions, I am not satisfied that they are sufficient to warrant disregarding the plain meaning of the words chosen by the Oireachtas in s. 84(1). In my view, the exceptional jurisdiction conferred by s. 84(1) should not be construed expansively and certainly not in a way that effectively ignores the language and tenses carefully chosen by the Oireachtas. Section 76(1) may be said to provide the standard way of prosecuting a complaint regarding a registrant’s fitness to practise. The FTP inquiry process has a range of safeguards built into the process to ensure fairness for the registrant, whilst at the same time ensuring the overarching objective of protecting members of the public. The Act requires that disciplinary complaints must first be considered by the PIC of the Council under s. 76(4). If a decision is made that an inquiry is warranted, the complaint will be referred to the FTPC under s. 76(6). Section 78(3) requires that the registrant shall be given notice in writing of the nature of the evidence proposed to be considered by the FTPC. The well-established practice is that disciplinary charges will be particularised in a Notice of Inquiry. A registrant will have a right to call his or her own witnesses and examine the registrar’s witnesses. Most importantly, in the hearing before the FTPC, the registrar will be required to prove his case to the criminal standard of proof beyond reasonable doubt. In the event disciplinary charge(s) are adjudged to meet that standard, there will be an opportunity for a registrant to make submissions on sanction, both before the FTPC on what sanction should be recommended and also before the VCI itself on what sanction to actually impose.

71. In cases at the most serious end of the spectrum, the debate will often centre on whether an order striking a person’s name from the Register would be proportionate, or whether a lesser sanction would meet the justice of the case and the regulatory objectives of protecting the public and maintaining standards in the profession.

72. By contrast, the procedure provided for in s. 84 is altogether different. Section 84 provides a separate disciplinary/ regulatory track whereby a person’s name can be summarily removed from the Register, based not upon the grounds of complaint set out in s. 76(1), but instead on the basis of a sufficiently serious criminal conviction. Importantly, the summary procedure provided by s. 84 involves by-passing the procedures provided for in a fitness to practise inquiry under s. 76: There is no requirement to call witnesses to prove the underlying conduct; no requirement to call expert witnesses; no requirement to proceed through the tiered committee structure; no requirement of proof beyond reasonable doubt; and no hearing to make submissions on the appropriate sanction to impose having regard to the principles of proportionality and leniency.

73. In that regard, I note that in the Council’s own sanctions guidance document (April 2023 version) the following is stated under the heading “Proportionality and Leniency”: “The Council must have regard to the principle of proportionality in deciding which sanction to impose. In this regard, it must consider the interests of animals and the public, as well as those of the registrant. Therefore, the Council must choose a sanction that protects animals and the public interest and maintains public confidence in the veterinary profession but does not go further than is necessary to achieve this objective. This will also normally involve the Council considering and weighing up any aggravating and/or mitigating factors presented to it.” (emphasis added)

74. The sanctions hearing that takes place after a fitness to practise inquiry follows a graded step-wise approach whereby the VCI starts at the lower end of the sanctions range and moves upwards. The Guidance indicates that when selecting the appropriate sanction, the Council is required to apply a principle of leniency whereby it goes no further up the scale of sanctions than is necessary (see McCartney v. Veterinary Council of Ireland 2024 IEHC 411). In contrast, the options available in a s. 84 application are binary: impose a strike-off order or simply refuse the application. To my mind this reinforces the point that we are here dealing with an exceptional and quite far-reaching jurisdiction which stands separate from the normal fitness to practise structures.

75. It would be going too far to say that a registrant has no entitlement to raise issues regarding the proportionality of a strike-off sanction in a s. 84 application. However, I think it is fair to say that, unlike a regular sanctions hearing, submissions on sanction in a s. 84 context may have less practical appeal, where the options open to the Council are more limited – strike off or refuse altogether. There is no middle ground option of choosing a less severe sanction such as a lengthy suspension with conditions.

76. It seems to me that there are two main weaknesses within the VCI’s arguments on the interpretation question. First, its argument does not accommodate a meaning for the actual words of the section. The Veterinary Council’s suggested interpretation does not attribute a meaning to, or explain, the combined usage of the words “whose name is registered” and “is convicted”. Instead, the Council’s whole case focusses on the negative or undesirable consequences that flow from the respondent’s interpretation, including the point that if preregistration convictions are excluded from the reckoning, this would not sufficiently protect the public. However, in my view, the expectation that the Oireachtas would have had in mind the important objective of protecting the public cannot be a basis for ignoring, or failing to give effect to, the words of the section actually chosen by the Oireachtas. In other words, if the framers of the section have chosen to insert wording which places a limitation on the power created by the section, it cannot be an answer to the party seeking to give effect to that wording to say that the wording should be disregarded as it would render the power less protective of the public. In my view, a party seeking to invite a court to depart from the plain meaning rule needs to go further.

77. Caselaw supports the principle that the mere fact that the plain meaning of a section may give rise to practical difficulties or undesirable consequences is not a basis for failing to give effect to the wording chosen, unless it is demonstrated that the plain meaning is absurd or fails to reflect the clear legislative intent. Supreme Court decisions such as Mahon v. Butler [1997] 3 IR 369 and Kadri v. Governor of Wheatfield Prison [2012] IESC 27 (which we will look at presently) indicate that the precise type of measures which could and should be put in place to deal with undesirable consequences are not always a given. The solution to these undesirable consequences lies with the legislature, not with the courts, and in accordance with the separation of powers, the court’s role is to interpret legislation, not to rewrite it.

Argument that the respondent’s interpretation is absurd

78. The second main weakness in the applicant’s interpretation is that it is premised on the contention that the respondent’s interpretation would give rise to an absurdity. If this plank of the argument is taken out, then the applicant’s interpretation of the section begins to unravel. In fairness to the applicant’s position, my initial reaction when reading the section was that it was surprising that the Oireachtas would have intended to exclude from consideration pre-registration offences. On my initial reading of the section, I asked myself the question whether, if the purpose of the section is to give to the Council a summary strikeoff power where a person has been convicted of a criminal offence, why then would the Oireachtas have intended to limit that power by confining it to post-registration convictions only? This is why I referred at the beginning of this judgment to the interpretation question being quite challenging. I think the answer to this question is to view the purpose of the section in its proper context, including its character as a far-reaching power which avoids the normal channels and safeguards envisaged in the FTP process. Viewing the section and Act as a whole, and taking account of the far-reaching and exceptional nature of the procedure provided for in s. 84(1), in my view it cannot be said to be absurd that the Oireachtas may have wished to limit usage of the power to more recent convictions occurring postregistration. By definition, a pre-registration conviction will have been committed at an earlier point in a person’s life. The older the conviction, the less relevant it may be to the question of the person’s current fitness to practise veterinary medicine.

79. Both parties are agreed that a finding of unfitness, even though not expressly mentioned in s. 84, is a necessary pre-requisite to an order under s. 84.

80. Having had a further opportunity to consider the issues, I have come to the view that there are sound policy reasons why the legislature may have wished to impose a limitation on the circumstances in which the summary strike-off power under s. 84 would be available. Therefore, even though on first impressions, limiting the power solely to post-registration convictions might have seemed surprising in the context of a regulatory statute concerned with protecting the public, that does not mean that the limitation thereby created is so plainly absurd that it could not have been intended.

81. Nor is it absurd that the Oireachtas may have viewed a criminal offence as being more serious from a regulatory point of view where it is committed by a person while registered on the Register of Veterinary Practitioners.

82. Purely by way of an example, the framers of the section may have felt that a conviction committed while a person was a child or a much younger person should not be sufficient to trigger the summary power in question. This is particularly so where the statutory scheme envisages that this will be “picked up” or addressed either at the point of registration, or, in the case of a false or fraudulent application, later in the process by way of a complaint under s. 76(1)(c).

83. It is important to remember that the mere fact that a pre-registration conviction may fall outside the remit of s. 84(1), does not preclude the Council from bringing a disciplinary complaint under either s. 76(1)(a) or s. 76(1)(c).

84. In support of its interpretation, the VCI offers the example that a vet who commits a crime that manifestly renders him unfit to practice veterinary medicine, such as cruelty to animals, would be immune from any regulatory consideration by reason of the conviction being recorded when he was not on the Register. In point of fact, that example doesn’t bring the applicant very far, because an examination of the wording of s. 84 indicates that a summary conviction for cruelty to an animal contrary to ss. 13 and 55 of the Animal Health and Welfare Act 2013 would not, in fact, be covered by the section, irrespective of when the conviction occurred. That is because s. 84 is limited to convictions for offences triable on indictment. It cannot seriously be contended that the statutory objectives of protecting the welfare of animals and the safety of the public should operate to trump the actual words chosen by the Oireachtas for the purpose of placing a limitation on the operation of the section.

85. The applicant points to other difficulties that may arise, were the respondent’s construction of s. 84 to be accepted by the court. These include the undesirability that the summary strike-off procedure would be unavailable if the conviction narrowly pre-dates the date of registration, and that in the case of a foreign conviction, the underlying conduct may have to be proved, and witnesses called from abroad. In my view, these incidental aspects cannot be a basis for ignoring or disapplying a limitation which, according to the plain meaning of the section, the Oireachtas felt it appropriate to impose, namely a requirement that the conviction must have occurred whilst the person’s name was on the Register. In my view, it cannot be said to be absurd that the Oireachtas may have wished to limit usage of the exceptional power in this way.

VCI’s argument based on s. 84 being intertwined with s. 49(4)(b)

86. Nor am I persuaded that the wording of s. 49(4)(b) and its suggested connection to s.

84 support the expansive wording being urged by the applicant. This was the main argument pressed by the VCI at the end of the case. I reject this argument for a number of reasons. First, contrary to the Council’s supplemental submission, the two sections are not identical in their wording, context or scope. Under s. 49(4)(b), the registrant may voluntarily remove himself from the Register. By contrast, s. 84 creates a compulsory power whereby the registrant, against his wishes, may be summarily removed from the Register.

87. Second, the two sections are located in completely different parts of the statute – s. 49(4)(b) is in Part 4 whereas s. 84 is in Part 7.

88. Third, the thresholds to be met in each section are different: s. 49(4)(b) refers to a conviction for an offence that, in the opinion of the Council, is such as to render the person unfit to practice veterinary medicine. By contrast, s. 84 is concerned with convictions for an offence triable on indictment.

89. Fourth, even if it may be thought to be incongruous that s. 49(4)(b) covers preregistration convictions while s. 84(1) does not, that is a result of the decision of the legislature to use different language and tenses in the two sections concerned: s. 49(4)(b) refers to where the registrant “has been convicted”, whereas s. 84 notably does not.

90. In the circumstances, I am inclined to accept the respondent’s argument that the applicant’s reliance on the linkage between the two sections is strained and artificial, and does not justify disregarding the wording chosen by the legislature.

91. Separately, the applicant calls in aid the point that the 2005 Act, unlike some other regulatory statutes, does not include a power for the Council to impose a suspension order on an interim basis, or to apply to the High Court for an interim suspension order. In my view, the limitations created by that lacuna – if a lacuna it be – cannot be determinative of the issue of interpretation the court has to decide. The absence of an interim suspension power would arise in any event, regardless of which interpretation the court adopts of s. 84. If it should be thought desirable that the VCI would have an interim power of suspension, then the solution to that problem lies with the legislature.

92. In AC, the Supreme Court observed that the “plain meaning” approach to statutory interpretation did not invite a court to isolate the critical words and consider their meaning in the abstract - the words still had to be approached in their context, having regard to the subject matter of the legislation and the objective to be discerned. I have endeavoured to take account of that principle in the above analysis. AC is also authority for the proposition that courts should be slow to find the product of the legislative process absurd and, moreover, to adopt a meaning contrary to what the court considers the plain meaning of the provision.

93. In Mahon v. Butler, the Supreme Court considered an issue of statutory interpretation concerning section 27(1) of the Local Government (Planning and Development) Act 1976 (as amended). Like the present case, this provision concerned a debate around a temporal clause inserted by the Oireachtas. The statutory provision provides as follows:

“Where -

(a) development of land, being development for which a permission is required under Part IV of the Principal Act, has been carried out, or is being carried out, without such permission, or

(b) an unauthorised use is being made of land,

the High Court . . . may, on the application of a planning authority or any other person, whether or not the person has an interest in the land, by order require any person to do or not to do, or to cease to do, as the case may be, anything that the Court considers necessary and specifies in the order to ensure, as appropriate -

(i) that the development or unauthorised use is not continued,

(ii) in so far as is practicable, that the land is restored to its condition prior to the commencement of the development or unauthorised use."

94. In the High Court, Costello P. held that if there is conferred by law on the court a special jurisdiction to make orders in respect of specified wrongful acts which are taken, or have taken place, the court shall also be impowered (unless expressly prohibited) to exercise its equitable jurisdiction to prohibit the anticipated commission of those wrongful acts. Costello P. held that if this was not so, an unacceptable situation would arise. In that case, it was surmised that, if the court holds that staging a pop concert amounts to a material change in the use of the land, permission would be required for each concert the landowner proposed to stage. The defendants contended that if this obligation was ignored, there would be no power under the section to apply to prohibit the anticipated wrongful act, and the applicant would have to wait until the concert had actually commenced before applying under the section. On that basis, Costello P. determined that that could not have been the intention of the Oireachtas.

95. This expansive interpretation of the section was over-ruled on appeal by the Supreme Court. Denham J. (as she then was) held that the wording of the section refers plainly to events occurring in the present or which have occurred in the past. The section made no reference to future events. This was unlike s. 26 of the same Act, which empowered the County Council to take action if a breach of planning control is “likely to take place or is continuing to take place.” Denham J. held that, as s. 27 gives powers to members of the public over land whether or not they have interest in the land, the clear omission of the reference to future events was consistent with the legislative intention to give powers to the planning authority in relation to future events in the planning area, but to limit to the public the right to intervene only in present or established events.

96. Referring to the necessity to construe the planning code strictly, Denham J. held that s. 27 was written in clear and plain language: “It is not for the courts to legislate. If there is a lacuna in legislation, then it is appropriate to indicate that gap – but not to fill it. If there is a policy decision in the legislation then that is a matter for the Oireachtas.”

97. Similar words of caution as to the limits of a court’s interpretative role are also evident in the judgment of the Supreme Court in Kadri. It should be noted that the context of Kadri was not remotely analogous to the present case as it concerned an Article 40 application where the right to liberty was engaged. Nonetheless, the approach of the Supreme Court in that case is instructive in certain respects. Section 5(1) of the Immigration Act 1999 (as amended) gave power to an immigration officer or a member of An Garda Síochána to arrest a person against whom a deportation order was in force. Such a person could be arrested without a warrant and detained in a prescribed place. Section 5(6)(a) of the 1999 Act provided that “a person shall not be detained under this section for a period or periods exceeding 8 weeks in aggregate”. The prisoner argued that the total period of his detention, if one includes an earlier period of detention, exceeded this aggregate maximum period.

98. The facts in Kadri were quite unappealing from the prisoner’s point of view. He physically resisted efforts of the Gardaí on the day in question to transport him through Dublin Airport as part of the first stage of his return to Algeria, asked the Gardaí to shoot him, forced himself to vomit on the Gardaí, and attempted to injure himself. For these reasons, Gardaí concluded it would be impossible to deport him and returned him to detention.

99. The High Court held that the appellant’s detention was lawful as he had committed new or ‘fresh’ breaches of the deportation order, showing that he intended to avoid removal from the State. Birmingham J. (as he then was) held that this gave rise to a power to make a new arrest and to issue a new detention notification. He accepted the State’s argument that the prisoner should not be permitted to benefit from his own egregious behaviour resisting deportation, and that the court should lean against a construction of the subsection which did not permit a new detention order and a consequential new eight-week period. In this way, the High Court gave the section an expansive interpretation and found the detention to be lawful.

100. The prisoner successfully appealed this finding to the Supreme Court. Written judgments were provided by Fennelly, Clarke and MacMenamin J.J. Clarke J. (as he then was) referenced s. 5(1) of the Interpretation Act 2005, noting that the first part of the section concerns ambiguity or obscurity. He held that the wording of s. 5(6) of the Immigration Act 1999 was clear and did not admit of any ambiguity or obscurity. Clarke J. noted there may well be a difficulty with the fact that the legislation does not address what is to happen in circumstances such as arose in the case where a detained person, in the latter part of an eightweek period, so strenuously resists deportation that it proves impossible to give effect to deportation within the eight-week period. That the legislature might have wished to make some provision for such a situation could well be considered likely. However, Clarke J. felt that the construction argued for on behalf of the Governor fell foul of s. 5(1) of the Interpretation Act in two separate respects. First, it did not seem to Clarke J. that the literal construction was absurd. There were sound policy reasons for imposing a time limit on a form of detention that might, if it could be open ended, be considered unjust and possibly unconstitutional. This was not therefore a case where a literal construction of the legislative measure was absurd or failed to reflect the clear legislative intent. Rather, this was a case where it may well be that, had the Oireachtas properly addressed its mind to the question, it might have considered including some initial provisions in the Act to allow the eight-week period to be extended in appropriate circumstances. However, it was by no means clear as to what precise provisions would have been included by the Oireachtas, had it so addressed that question.

101. All three written judgments emphasised the point that the solution to the problems to which the operation of the Act gave rise was a matter for the legislature, not for the courts. Clarke J. concluded at para 3.10 as follows: “I raise all of these questions not for the purposes of indicating that this Court has any necessary role in deciding the answers [to the problems raised by the application of the Act]. Rather I raise them to demonstrate that the precise type of measure which could or should have been put in place to deal with the sort of problems which arose in this case are not a given. The introduction of those measures requires, as Fennelly

J. has said, legislation, and cannot be introduced in the detailed manner required by a strained (beyond the point of breaking) interpretation. To use s.5 of the Interpretation Act, 2005 to justify the regime argued for on behalf of the governor would, in my view, be to use (or perhaps abuse) a section which mandates a sensible or purposive construction to, in effect, rewrite the legislation by inserting a series of detailed measures to which the Oireachtas did not address its mind. In my view such a course of action would not be warranted.”

102. In my view, many of the practical difficulties pointed to by the applicant in the present case, as being likely or incidental consequences of the court accepting the respondent’s interpretation, fall to be considered in the light of the guidance provided by Denham and Clarke JJ. respectively in the two Supreme Court cases just discussed. The mere fact that the plain meaning of a section may give rise to undesirable consequences is not, in and of itself, a basis for disregarding the wording chosen by the legislature.

103. It seems to me that temporal or jurisdictional boundaries in legislation may often involve cases falling just inside or outside the boundary line. The mere fact that a conviction may fall narrowly on the wrong side of the line such that the summary power created by s. 84 may not be available, is not a reason to disapply the limitation imposed by the legislature.

104. In AC, O’Donnell C.J. indicated that when viewing a section of legislation in context, if a plain meaning is apparent from the wording of the statute, unless plainly absurd, it must be given effect.

105. The Chief Justice went on to find, for the reasons that he sets out, that the meaning of the words under consideration in that case were not clear, precise or unambiguous and therefore the words required further interpretation.

Veterinary Council’s reliance on UK regulatory caselaw

106. As mentioned in para. 18 of this judgment, the applicant also relies upon authorities from the United Kingdom to support the proposition that a narrow interpretation of s. 84, precluding consideration of pre-registration conduct, would be at odds with the legislative objectives of monitoring the fitness to practise of those who are registered and with taking appropriate action to protect the public from harm. Hence, the applicant relies upon the UK caselaw.

107. In my view, beyond emphasising the importance of the legislative objective of protecting the public in the context of professional regulatory codes, these authorities are of limited assistance in interpreting the section under discussion. In the Chiropodists Board case, the section under discussion did not impose any jurisdictional limit. Unlike the present case, it was the registrant who was seeking to “read in” extra wording to the section. Moreover, the conduct complained of occurred at a time where the registered person was registered with the Chiropodists Board. The same cannot be said in the context of the present case.

108. The Antonelli decision is perhaps of more relevance, but in my view is still not in point. The section of the Estate Agents Act 1979 in question conferred powers on the Director General to prohibit an estate agent from working, as follows: “The power of the Director General of Fair Trading… to make an order under this section with respect to any person shall not be exercisable unless the Director is satisfied that that person –

(a) has been convicted of –

(i) an offence involving fraud or other dishonesty or violence…”

109. This section was drafted in a manner which expressly allowed convictions which predated the person’s registration to be considered when the Director General exercised his statutory powers and imposed sanctions. Moreover, before the Estate Agents Act 1979, there was no statute providing regulatory control over estate agents. Therefore, if the section was not inclusive of past convictions, the statutory body would effectively be unable at all to protect the public. This is very different from the present situation regarding s. 84(1) of the 2005 Act. Even if the court declines to expand the scope of the section to include preregistration convictions, the VCI can still have resort to s. 76 of the Act under which the potential to strike off a registrant remains available.

110. The point at issue in Lewis is very different to the issue of interpretation in the present case. The argument made by the registrant in Lewis was the rather ambitious and unappealing argument that, for the disciplinary committee to have regard to pre-registration conduct at all would be impermissible and unlawful and would involve giving the statute retrospective effect. No such extreme submission has been made in the present case.

111. The Watson case concerned a constable in the Police Service of Northern Ireland (PSNI) who failed to disclose in his application to join the force earlier periods of employment wherein he was the subject of disciplinary procedures for gross misconduct and making unauthorised payments to himself on ten occasions. After the PSNI became aware of this information, the applicant was made the subject of a misconduct charge under the relevant regulations. The applicant applied to stay the proceedings on the ground that the panel lacked jurisdiction to hear a charge based on allegations which pre-dated his attestation as a constable. Unsurprisingly, this argument did not find favour. Colton J. held that the regulations in question permitted prosecution of pre-attestation misconduct of a serving police officer. The court held that the registrant’s interpretation of the regulations was inimical to public confidence in policing and ran contrary to the objective of protecting the public. In my view, the case is distinguishable on two grounds. First, the language of the section in issue in Watson is quite different to the wording under discussion here. Indeed, Colton J. emphasised the need for a court to be careful in drawing conclusions from case law which deals with different regulatory regimes. Second, the registrant in the present case makes no argument that pre-registration convictions cannot be the subject of misconduct charges under the normal fitness to practise structures under s. 76 of the 2005 Act. Rather, his contention is that the separate and exceptional power of summary strike-off is not available to the VCI because the wording of the section indicates that the legislature wished to restrict its usage to post-registration convictions only. Therefore, the Watson case is of limited assistance as it involves a completely different proposition of law.

Conclusion

112. At the end of the day, I think it’s important to keep in mind that the interpretive question in the case is not whether pre-registration conduct may be the subject of disciplinary charges under the Act, but rather the much narrower question whether s. 84 of the Act conferring a summary power of strike-off covers pre-registration convictions.

113. For the reasons indicated, I think the solution to many of the points raised by the applicant in the present case lie with the legislature and not with the courts. The applicant also has the option in the present case of utilising the complaints procedures in s. 76 and proceeding with a disciplinary charge against the respondent, if that is considered warranted. Obviously, it is not for the court to comment on the likely prospects of success of any such complaint or on the nature of the proofs required. Such a disciplinary charge would fall to be considered on its merits.

114. Returning to the core issue in the case, applying Heather Hill and other recent Supreme Court dicta on statutory interpretation, there are two overarching principles which have a particular bearing on the interpretive task the court has to perform here. Firstly, the words of the section are the first port of call in its interpretation. Secondly, the onus is on the party contending that a statutory provision does not have the effect suggested by the plain meaning of the words chosen by the legislature to establish that this is the case. I am not satisfied that the applicant has discharged that onus. Applying the principles in the case law, and viewing s. 84(1) in its proper context, the section only applies where a person is convicted whilst their name is registered on the Register. The plain meaning of the section in my view is sufficiently clear and precise. Such a construction is in keeping with the nature and purpose of the section and not inconsistent with the Act as a whole or with the objectives of the legislation.

115. Nor is it absurd that the Oireachtas would have intended to limit this far-reaching summary power in that fashion, particularly where the registration scheme under the Act envisages that convictions will be picked up at the point of registration or, in the case of a false or fraudulent application, later in the process by way of a complaint under s. 76(1) (c). Since the summary power under discussion has none of the built-in safeguards of an inquiry process under s. 76 and may have less flexibility when it comes to sanction or leniency principles, it is not surprising that the legislature may have wished to limit its usage in certain respects.

116. Since the respondent’s criminal conviction did not occur at a time when his name was on the Register, but rather occurred prior to registration, the section was not correctly engaged. It follows, therefore, that s. 84 was not available to the applicant on the facts of the present case. In the circumstances, the applicant’s application to confirm the summary strikeoff order is refused.

Signed: Micheál O’Higgins

Appearances

For the applicant: Remy Farrell S.C. and Eoghan O’Sullivan B.L. instructed by Fieldfisher Ireland LLP For the respondent: Donall O’Riordan B.L. instructed by Tom Collins & Co. Solicitors LLP