Court allows security clearance removal despite procedural breach, prioritizing state security over immediate reason disclosure.

[2026] IEHC 25

RECORD NUMBER: HJR 2025/728

THE HIGH COURT

BETWEEN

CHRISTOPHER DOYLE

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND THE MINISTER FOR

JUSTICE

RESPONDENTS

AND

DAA PLC

NOTICE PARTY

JUDGMENT of Mr. Justice Michael Twomey delivered on the 27th day of January 2026

INTRODUCTION

1. This case concerns the removal (the “Decision”) of the security clearance of the applicant (“Mr. Doyle”) at Dublin airport. The Decision was made by a Detective Chief Superintendent of An Garda Síochána. This Decision was upheld on appeal (“Appeal”) by the respondent (“Commissioner”).

2. The security clearance was required by Mr. Doyle for him to be employed as an aircraft mechanic at Dublin airport. The Decision to remove the security clearance was made the day after Mr. Doyle was involved in the creation of a video supporting the general election campaign of Mr. Gerard Hutch. Mr. Doyle suspects that his security clearance was removed because of this incident. However, when he was notified of the Decision, he was not provided with the reason for the Decision to remove his security clearance.

3. Mr. Doyle appealed the Decision. As part of his notification to appeal the Decision, Mr. Doyle sought the basis for the removal of his security clearance. However, this was only provided to him after the Appeal decision was made by the Commissioner. In that Appeal

decision, the reason for the removal of his security clearance was stated by the Commissioner in the following terms: ‘[G]iven what is known in relation to a number of your associates, a risk potentially arises around your ability to facilitate nefarious activity within restricted areas of the airport thus creating what I consider to be an unacceptable security threat to Dublin Airport and by extension to the State.’ (emphasis added)

4. Mr. Doyle claims that he was denied fair procedures in the prosecution of the Appeal, since he did not know the basis for the Decision at that stage. As a result, he claims that he was not in a position to make any meaningful submissions to the Commissioner, who was deciding the Appeal.

5. The Commissioner claims that the failure to provide this information to Mr. Doyle was justified on the grounds that there is a public interest in not divulging secret and sensitive intelligence.

6. For the reasons set out in this judgment, this Court concludes that the Appeal decision amounted to an appeal in name only. This is because the appellant, Mr. Doyle, was deprived of fair procedures, as he did not know the reason for the Decision under appeal (which as noted below, was not secret and sensitive intelligence). Accordingly, he could not meaningfully participate in the Appeal and so this Court is setting aside the Appeal

decision.

7. However, the Commissioner’s Appeal decision makes clear that granting Mr. Doyle a security clearance would involve ‘an unacceptable security threat to Dublin airport and by extension to the State’. For this reason, and the reasons set out below, this Court is not invalidating the first-instance Decision withdrawing Mr. Doyle’s security clearance.

8. This means that Mr. Doyle is now entitled to appeal that Decision with the benefit of the reason for the Decision (and any other relevant information which is not secret and sensitive intelligence). Mr. Doyle can make such submissions as he wishes to the Commissioner on that information (e.g. that Mr. Doyle believes that there has been some misunderstanding on the part of An Garda Síochána regarding Mr. Doyle and his associates). It will then be for the Commissioner to decide, after considering those submissions, whether to affirm or reverse the Decision in accordance with fair procedures.

BACKGROUND

9. This judicial review was heard over the course of day on 13 January 2026. It concerns Mr. Doyle who was an aircraft mechanic employed by Dublin Aerospace Limited (“Dublin Aerospace”) at Dublin airport. In order to work in this role, he required access to secure areas of Dublin airport, which access was provided using an airport identification card (“AIC”). In order to obtain same, Mr. Doyle passed, in July of 2022, what is known as a Standard Background Check (“SBC”), which was conducted by An Garda Síochána. To do his work, he also required an Enhanced Background Check (“EBC”) and this had been requested by the notice party (“DAA”) on or about 8 June 2022. (It is to be noted that pending the receipt of the EBC, there appears to have been no issue with Mr. Doyle working in Dublin airport on the basis of the SBC, which he did from 29 June 2022 until 2 December 2024, when he was notified of the Decision.)

10. Mr. Doyle believes that a key issue in this case is the fact that on 25 November 2024, Mr. Doyle participated in the recording of another employee of Dublin Aerospace making a statement in support of a candidate who was standing in the general election, a Mr. Gerard Hutch. The recording was made in an aircraft on Dublin Aerospace’s premises. Mr. Doyle shared the video with a number of friends through a WhatsApp chat but he did not post the video to social media. The video did however appear on the social media platforms of Instagram, X and TikTok to the @officialgerardhutch pages.

11. Dublin Aerospace held an Investigation Meeting on 2 December 2024 in relation to this incident, which was attended by Mr. Doyle. Mr. Doyle accepted responsibility for recording and sharing the video with friends and apologised. An Investigation Report was prepared, and a Disciplinary Meeting was held on 5 December 2024. As a result of this Disciplinary meeting, Mr. Doyle was issued with a verbal warning for misconduct, and no further sanction was imposed.

12. However, the day after the video was posted, on 26 November 2024, Dublin Aerospace received an email from the notice party (“DAA”) in the following terms: ‘I am writing to inform you that we have been returned a [Security Intelligence Check] fail for a Chris Doyle [….] as a result of this his AIC badge has been suspended.’

13. On 2 December 2024, Mr. Doyle was notified by Dublin Aerospace that he had failed this Security Intelligence Check (“SIC”). This SIC had been carried out by An Garda Síochána at the request of DAA and this led to the Decision (by a Detective Chief Superintendent), to which reference has already been made. This security check, known as an Enhanced Background Check, had been commenced on 8 June 2022 but was not completed until 26 November 2024.

14. In order to work for Dublin Aerospace, Mr. Doyle requires an AIC badge. As is clear from the above email of 26 November 2024, the loss of security clearance led to the suspension of Mr. Doyle’s AIC badge. As a result of the Decision therefore, Mr. Doyle was not able to continue working for Dublin Aerospace.

15. Mr. Doyle sought information from his employer, Dublin Aerospace, as to how he could find out the reason for the Decision. As a result, Dublin Aerospace contacted DAA and was provided, by DAA, with an email address (aviation.appeals@justice.ie) for this purpose. Accordingly, by email of 4 December 2024, Dublin Aerospace provided Mr. Doyle with this ‘email address where you can appeal the outcome of the Security Intelligence Check.’

16. On 5 December 2024, Mr. Doyle appealed the Decision, to what it transpires is a dedicated appeals office in the Department of Justice, by sending an email to this email address. He did so in the following terms:

‘Hi there,

I am contacting you to make an urgent enquiry regarding a recent Security Intelligence Check (SIC) concerning my badge. My employer has informed me that the check has failed. I haven’t been contacted directly on why the check has failed, furthermore I received no contact whatsoever regarding any aspect of the check. My employer, Dublin Aerospace, told me that on Monday 26th November, they were informed that my AIC badge was suspended due to an SIC fail. I have been a full-time employee of Dublin Aerospace since 2022. This matter is very urgent because my employer has informed me that without a functioning AIC badge I cannot return to work. Please explain to me what showed up to result in a failed SIC.

This is causing me a lot of stress I am keen to cooperate with you to resolve this issue as soon as possible.’ (emphasis added)

17. Since Mr. Doyle needed the AIC to work with Dublin Aerospace, it is relevant to note that, subject to his Appeal being successful, Dublin Aerospace indicated to Mr. Doyle that it was happy for him to return to his job. Events from the date the appeal was lodged until the Appeal decision

18. At this stage, after he had submitted this email, it is clear that Mr. Doyle was not aware that it was the An Garda Síochána which had issued the Decision and also which was conducting the Appeal, or that the Department of Justice was operating as the secretariat for An Garda Síochána in this regard.

19. On 18 December 2024, Mr. Doyle’s solicitor wrote to DAA seeking the basis upon which Mr. Doyle failed the SIC. His solicitor also wrote to the Department of Justice to the same effect, on 21 December 2024.

20. On 23 December 2024, Mr. Doyle received an email from Dublin Aerospace copying part of an email from the Department of Justice to Dublin Aerospace regarding the issue. This email stated: ‘Without commenting on any individual appeal, I can confirm appeals are […] generally determined within 30 working days of their receipt.’

21. On 19 January 2025, Mr. Doyle’s solicitor followed up by email to the Department of Justice threatening legal proceedings, in the absence of any reply to his letter of 21 December 2024 to the Department.

22. Then on 29 January 2025, Mr. Doyle’s solicitor wrote to the Department of Justice (with a similar letter to the DAA) in the following terms: ‘[T]he DAA and/or the Department must immediately take the following steps:

• Inform our client by close of business on Thursday, January 30th, 2025, of the reasons for the [Initial Decision] and of any concerns that they may have and may take account of during the Appeal relating to our client holding an AIC;

• Allow our client until the close of business on Tuesday February 4 th, 2025 to make submissions as to why this Appeal should be granted and why he should be permitted to continue to hold an AIC; and

• Determine our clients Appeal, and inform him of the outcome by close of business on Friday 7th, 2025.’ (emphasis added)

23. In reply, by letter dated 11 February 2025, the DAA for the first time brought to Mr. Doyle’s attention that it was An Garda Síochána, and not the DAA or the Department of Justice, which made the Decision and was holding the Appeal. It stated that: ‘We suggest that all correspondence re the security intelligence check (“SIC”) process be more properly directed to An Garda Síochána which entity conducted same and or to the Department of Justice which operates the appeals process using the email address as previously provided to the employer’s Security Manager.’

24. In light of the contents of this letter, on 21 February 2025, Mr. Doyle’s solicitor wrote to the Commissioner of An Garda Síochána stating: ‘It is clearly unfair and unjust that Mr. Doyle has not even been made aware until now as to who made the [Decision], but based on the DAA’s letter [of 11 February 2024] we understand that An Garda Síochána may have conducted the SIC process and made the [Decision]. As will be apparent from the background that we outlined above, the ASIC process that was conducted and the [Decision] that was made were fundamentally flawed and in breach of our client’s constitutional rights, including his right to fair procedures, constitutional justice and/or natural justice. These failings have had a significant detrimental effect on our Client, as he has, in the absence of holding a valid ASIC, been suspended without pay pending the determination of the Appeal. Given the egregious nature of the failings that we have identified, we ask An Garda Síochána to provide the following information and documentation by close of business on Wednesday, February 26th, 2025:

• Confirm whether An Garda Síochána made the decision to fail Mr. Doyle’s SIC;

• Provide full and detailed reasons for the Decision to fail Mr. Doyle’s SIC;

• Provide any documentation and information that An Garda Síochána took into account in making the Decision: and

• Provide any documentation governing the SIC, SBC and EBC processes and how they are administer[sic], including appeals from decisions.’ (emphasis added)

25. By email dated 25 February 2025, the Office of Head of Civil Legal at An Garda Síochána replied to this letter by email to Mr. Doyle’s solicitors stating that: ‘Your correspondence will be forwarded to the relevant internal stakeholders for their views, observations and instructions. With a view to allowing a reasonable amount of time for the making of the necessary enquiries, I would ask that you consider refraining from instituting proceedings against An Garda Síochána and/or joining An Garda Síochána as a respondent to the ongoing litigation.’ (emphasis added)

26. In light of the express requests in Mr. Doyle’s solicitor’s letter of 21 February 2025, and this reply of 25 February 2025 from An Garda Síochána, specifically asking Mr. Doyle ‘to allow reasonable time’, it is surprising that just two days later, on 27 February 2025, the Commissioner conducted the Appeal (without Mr. Doyle being any the wiser regarding his requests for information).

27. In this regard, sometimes what is not said in litigation, can be as significant as what is said, in this instance regarding Mr. Doyle’s solicitor’s letter of 21 February 2025 in which he seeks reasons for the Decision. It is to be noted that this letter is addressed to the Commissioner, and the Office of Head of Civil Legal implies it will be forwarded to the Commissioner. However, there is no evidence (in the Statement of Opposition or in the Commissioner’s affidavit), that the Commissioner was, or indeed was not, aware of the contents of this letter.

28. A similar point arises regarding the letter of 29 January 2025 from Mr. Doyle’s solicitor to the Department of Justice seeking time to make submissions on the appeal. Thus, although the Commissioner provides sworn evidence that the Department of Justice operated as the secretariat for An Garda Síochána in relation to the Appeal, the Commissioner does not indicate whether he was, or indeed was not, aware of the contents of that letter. This is because, in his affidavit dated 20 November 2025, the Commissioner sets out in detail the materials which he considered for the purposes of the Appeal. However, he is silent regarding these two letters. He states: ‘I examined the file held by An Garda Síochána in respect of [Mr. Doyle] and the request for an enhanced background check. This included examination and independent evaluation of: -[Mr. Doyle’s] request for a review of the decision:

- That which was known by An Garda Síochána in respect of [Mr. Doyle];

- That which was known by An Garda Síochána in respect of a number of [Mr.

Doyle’s] known associates

- The materials considered by a Detective Chief Superintendent of the Security and Intelligence Division of An Garda Síochána as the first-instance decision maker.’ (emphasis added)

29. The reference to Mr. Doyle’s ‘request for a review of the decision’ must be a reference to Mr. Doyle’s email of 5 December 2024. It is clear from that email that Mr. Doyle wished to know the reason for the Decision (since he asked ‘what showed up to result in a failed SIC’). Accordingly, it seems clear that, when the Commissioner decided the Appeal, he was aware of Mr. Doyle’s request for the reason for the Decision.

30. It is clear that the Commissioner decided the Appeal on 27 February 2025, based on the foregoing material, albeit that that it was not issued until 14 April 2025. This Appeal

decision reads as follows: ‘I was advised by Detective Chief Superintendent, Security and Intelligence, that you sought to appeal a decision that a “Green Security Indicator” could not be issued in Accordance with Article 11.1.3 (d) of EU regulation 2019/103. Having reviewed that which is known by An Garda Síochána in relation to you, together with that which is known in relation to a number of your known associates, Detective Chief Superintendent, Security and Intelligence formed a firm opinion that a Green Security Indicator could not be issued. This decision and recommendation was shared on the 26th November 2024 with the head of Group and Airport Security at the Dublin Airport Authority. I have, during the course of this appeal, independently evaluated the materials considered by Chief Superintendent Security and Intelligence and find myself in agreement with his determination. In my view, given what is known in relation to a number of your associates, a risk potentially arises around your ability to facilitate nefarious activity within restricted areas of the airport thus creating what I consider to be an unacceptable security threat to Dublin Airport and by extension to the State. On the 27th February 2025 having reviewed the foregoing, it was, and remains, my view that it was both necessary and proportionate to not recommend your application for a “Green Security Indicator”. The Department of Justice has subsequently been notified.’ (emphasis added)

31. It is clear therefore that when the Commissioner decided the Appeal, the person the subject of the Appeal, Mr. Doyle, did not know what the reasons for the Decision were. However, if a person does not know why a decision was made against him, how can he meaningfully appeal that decision? For example, if a factual mistake was made about an appellant by the initial decision-maker (e.g. that he had been convicted of a crime), how can the appellant meaningfully appeal that decision (by correcting the decision-maker’s understanding), if he does not even know of the (mistaken) basis for the initial decision. For this reason, it seems to this Court that the Commissioner conducted the Appeal without the appellant being in a position to make any meaningful submissions on the Appeal.

32. In addition, it is to be noted from the foregoing documentary evidence that Mr. Doyle did not know who was deciding the Appeal or when it would be decided, in order to enable him to make any submissions in the Appeal. In this regard, the sworn evidence of Mr. Doyle on 11 December 2025, which is consistent with the correspondence to and from his solicitor, prior to the Appeal, is that: ‘[C]ontrary to what the Statement of Opposition appears to imply, I was not aware, in advance of receiving the Appeal Decision, how my appeal would be dealt with and by whom it would be determined.’

33. Mr. Doyle also avers in this affidavit that he suspected that the Decision regarding the enhanced background check, removing his security clearance, which was completed on 26 November 2024, was related to the social media posting which was made just the previous day (on 25 November 2024). In this regard, he points to the fact that the original application for the enhanced background check was made as far back as 8 June 2022 but was only completed the day after the social media posting, which he suspects is not a coincidence.

34. For this reason, it seems, in this affidavit, Mr. Doyle asks the Commissioner to confirm that this social media incident was not the reason for his losing the Appeal (and presumably for the Decision, the day after the social media incident). Since the Commissioner has not provided any such confirmation, Mr. Doyle avers that he still does not know whether this incident was the reason for the loss of his security clearance and in particular to whom the Commissioner refers, when he uses the term ‘a number of your associates’ in the wording of the Appeal. Appeal was conducted without appellant knowing reason for decision under appeal

35. In summary, all of this means that the person who was appealing a decision did not know when the Appeal would take place, who was deciding the Appeal, the procedures for the Appeal and most importantly of all, the reason for the decision that he was appealing.

36. The fact that the appellant did not know the procedures for the Appeal is perhaps starkly illustrated by the fact that on 26th June 2025, four months after the Appeal was taken, Mr. Doyle obtained, for the first time, details of how the Appeal was to be conducted. This is because the Chief State Solicitor’s Office outlined for Mr. Doyle’s solicitor the following details in a letter of that date: ‘If a person wishes to appeal the decision of An Garda Siochana in respect of the security check, they can do so by writing to the Department of Justice which acts exclusively as the secretariat for appeals against the results of a security check. All such appeals are then considered afresh by the Commissioner of An Garda Síochána, having regard to all relevant information and intelligence. The Commissioner’s

decision is then issued to the appellant and to the DAA as the competent authority.’ (emphasis added)

37. Similarly, at para. 14 of the Commissioner’s Statement of Opposition, which was issued over a year after the Appeal, some further information is provided to Mr. Doyle regarding the conduct of the Appeal: ‘If a person wishes to appeal the decision of An Garda Síochána in respect of the background check, they can do so by submitting an appeal via the Department of Justice which acts exclusively as a secretariat for such appeals but has no other role in the process. The decision on whether to issue a “green” or “red” indicator is then reviewed in its entirety by the [Commissioner], including consideration of the request for an appeal submitted by the appellant and any documentation accompanying same, consideration of any sensitive and/or confidential intelligence held by an Garda Síochána in respect of that individual, and consideration of the “green/red” indicator first-instance decision by An Garda Siochana. The issuance of “green” or "red” indicator is then determined by the [Commissioner] and communicated to the appellant and to the DAA as the competent authority for issuing AICs and CICs.’ (emphasis added)

ANALYSIS

38. The forgoing background leads to one net issue between the parties, which Mr. Doyle has expressed in the following terms: was the Commissioner entitled to decide the Appeal without first informing Mr. Doyle what concerns he had about him having a security clearance, in order to allow Mr. Doyle the opportunity to make submissions on same? Law on not disclosing information to a person who is subject to a public law decision

39. It does not appear to be in dispute that the decision in this case (by a person making a public law decision regarding the grant to an individual of the privilege of having access to a sensitive and secure area in Dublin airport) is subject to the principles of fairness and natural justice.

40. In this regard, the Commissioner’s position is not that the rules of fair procedure do not apply to the Appeal, but rather that the system of background checks and review in aviation security ‘can, by necessity, only entertain limited rights of fair procedure’ (at pg. 6 of his written submissions). The issue therefore is the extent to which an appellant, like Mr. Doyle, can be deprived of information, which is alleged to be secret and sensitive intelligence, in relation to the conduct of his Appeal.

41. The law in this area was outlined by the Supreme Court in AP v Minister for Justice [2019]

3 IR 317 at pg. 328 et seq. That is a case which, like this one, was concerned with the nondisclosure of information which might be privileged on public interest grounds, as being necessary to protect legitimate State interests. In that case, the information was being sought by a person who had their application for citizenship refused.

42. It is clear from that case that, while in some cases, one could end up disclosing little or no information, in order to protect legitimate State interests, the starting point is nonetheless that a person who is subject to a public law decision is ‘ordinarily’ entitled to participate in the process. As noted by Clarke C.J.,: ‘[..] a person who may potentially be directly and adversely affected by a public law

decision is entitled to be heard in the decision-making process and, in that context, will ordinarily be entitled to be informed of any material, evidence or issues which it might be said could adversely impact on their interests in the decision-making process […] the entitlement of the party to know of the materials, evidence and issues which might adversely affect their interests in the decision-making process is itself a function of the right to be heard and the entitlement to involve themselves in the process in a way which affords the interested party an appropriate opportunity to engage with the issues which might adversely affect their interests.’ (emphasis added)

43. Thus, the starting point is that a person, whose rights might be adversely affected by a public law decision, is entitled to be informed of the evidence which might adversely affect her interests and given an opportunity to engage with that evidence. While this is ‘ordinarily’ the position, or the starting point, in cases such as this, it is clear from the AP

decision that there may be competing interests in relation to the disclosure of information, and in particular the protection of legitimate State interests. It is this exception that the Commissioner relies upon in disputing Mr. Doyle’s claim that he was denied fair procedures, when he was not provided with information regarding the reasons for the

Decision to enable Mr. Doyle to make meaningful submissions in the Appeal.

44. The Commissioner’s approach is best summed up in the section of his written submissions headed ‘Disclosure of Information’: ‘[T]he Commissioner is not asserting a “bare claim” of privilege. Rather, on the basis of public interest privilege, the Commissioner submits that [Mr. Doyle’s] interests in seeking the benefit of an AIC do not outweigh the need to protect sensitive intelligence which, if revealed may put at risk State security.’ (emphasis added)

45. In this regard, the Commissioner relies on the case of Smyth v. Governor of Midlands Prison [2020] IEHC 302 and his written submissions quote from para. 6.10 of this judgment in which Gearty J. states: ‘One of the grounds argued (in Doody v Governor of Wheatfield Prison [2015] IEHC 137) was that the decision not to grant one third remission to the applicant was because of the view formed by the Respondents which was based on confidential information which was not revealed to the prisoner applicant.’ (emphasis added)

46. The Commissioner, in the written submissions, then states: ‘Having endorsed the decision in Doody, [Gearty J.] then went on to hold “Clearly, it could be dangerous to reveal the source, or even the contents, of information such as that in the present case.”’ The Commissioner then concludes: ‘It is submitted that precisely the same situation arises in this instance where [Mr. Doyle] was afforded and granted a right of review of the decision, without access to the confidential or sensitive intelligence underpinning same.’ At para. 24 of his Statement of Opposition, a similar point is made that the information upon which the Decision was based contained ‘secret and sensitive intelligence’ and so the Commissioner was justified in not disclosing same to Mr. Doyle.

47. By relying on this passage of Smith, the Commissioner is, in effect, saying that Mr. Doyle was not entitled to the disclosure of any of the information relevant to the Decision (or relevant to the Commissioner’s Appeal decision), because this information was protected by public interest privilege and it would be dangerous to reveal that information to him, as it was secret and sensitive intelligence.

48. To summarise the two positions: Mr. Doyle claims that by not providing him with any information to allow him to make meaningful submissions in the Appeal, the Commissioner failed to provide Mr. Doyle with fair procedures. However, the Commissioner’s defence is that this information constituted ‘secret and sensitive intelligence’ and so he was justified in not disclosing it on the grounds of public interest privilege.

49. This raises the question, firstly, of the extent to which information, which would be otherwise disclosed, can be withheld from a person in Mr. Doyle’s position on the grounds of legitimate State interests, as a matter of principle, and, secondly, its application to the facts in this case.

Extent to which all information can be withheld on grounds of secret intelligence

50. For this purpose, it is relevant to consider the AP case further. It concerned the refusal, on grounds of good character, by the Minister for Justice and Equality, of a certificate of naturalisation to an individual who wished to become a citizen. The Minister gave no reasons for this refusal and so the applicant sought an order from the High Court requiring the Minister to disclose at least the ‘gist of the information’ that formed the basis for the refusal.

51. The High Court refused to grant such an order, and it held that the interests of national security was a sufficient justification for the Minister to refuse to give reasons for the

decision. The applicant appealed unsuccessfully to the Court of Appeal, but the Supreme Court allowed the appeal. The Supreme Court made clear that a failure to give reasons had to be justified and that the right of an applicant to reasons should only be impaired ‘to the minimum extent necessary to protect legitimate State interests’.

52. The facts in this case are somewhat different from AP, but in this Court’s view, the principle, that a person’s entitlement to reasons should only be impaired to the minimum extent necessary to protect legitimate State interests, is one which is plainly of general application. Applying this principle to this case means that Mr. Doyle’s entitlement to information regarding the conduct of the Appeal, and in particular his request in his email of 5 December 2024 for the reason for the Decision, should only be impaired to the minimum extent necessary to protect legitimate State interests.

53. It is important to point out, that in certain cases, it is possible that the ‘minimum extent necessary’ could be a refusal to provide any information. For example, there might well be circumstances where it would be impossible for the Commissioner to disclose any of the reasons for the withdrawal of a security clearance, without impairing legitimate State interests e.g. if a failed SIC was made because an applicant was part of an international terrorist organisation and disclosure of that reason might prejudice the work of the State investigation of illegal operations.

54. However, as noted by Clarke C.J. at pg. 338 of AP, proportionality, or an analogous principle, has a role to play, and it is important that the decision maker does not simply apply a blanket refusal to provide any information, but instead considers the extent to which legitimate considerations can justify declining to provide any information. Is the information which was not disclosed secret and sensitive intelligence?

55. This then leads to the application of this principle to the particular circumstances of this case, and in particular the question of whether the Commissioner was correct (in not disclosing any reason for the Decision), so as to enable Mr. Doyle to meaningfully participate in the Appeal.

56. In this regard, the real difficulty, in this Court’s view, with the Commissioner claiming that he was justified in not disclosing any information to Mr. Doyle because he would have been revealing ‘secret and sensitive intelligence’, if he did so, is that it is clear, that on the particular facts of this case, there was relevant information, which was not ‘secret and sensitive intelligence’, which could have been revealed to Mr. Doyle. For this reason, the Commissioner’s reliance on this principle, to justify the disclosure of that information, and his reliance on the Smith case in particular, is, in this Court’s view, misplaced.

57. Crucially, on the facts of this case, the reason we know that the Commissioner had relevant information which was not secret and sensitive intelligence (but which he failed to disclose to Mr. Doyle in advance of the Appeal), is because, in his letter of 14 April 2025 to Mr. Doyle, he had no issue sharing that very same information with him.

58. This information was the stated reason for the Decision by the Detective Chief Superintendent, and with which the Commissioner states that he was ‘in agreement’, i.e.

‘what is known in relation to a number of your associates, a risk potentially arises around your ability to facilitate nefarious activity within restricted areas of the airport.’

59. To put it another way, if the Commissioner was able to share this reason for the Decision with Mr. Doyle, after the Appeal was decided, this information was obviously not secret and sensitive intelligence, so as to be subject to public interest privilege. Thus, by withholding this information from Mr. Doyle, this meant that Mr. Doyle’s entitlement to know the reasons for the Decision was impaired more than was necessary to protect the legitimate State interests (contrary to the principle in AP).

60. This begs the question, why did the Commissioner not share this information with Mr. Doyle before the Appeal was decided? If he had, Mr. Doyle would have been in a position to make submissions and exercise his right, in the words of Clarke C.J. in AP, to, ‘engage with the issues which might adversely affect’ his interests.

61. To put it another way, the stated reason for the Decision (Mr. Doyle’s alleged ability to facilitate nefarious activity with a number of his associates, which clearly adversely impacted on the decision-making process) could have been provided to Mr. Doyle, but it was not so provided. Because the Commissioner failed to share that information with Mr. Doyle, this Court concludes that Mr. Doyle was deprived of fair procedures in relation to the conduct of his appeal and so the Appeal should be set aside. Is there other information, which isn’t intelligence, which should have been provided?

62. Applying the principle in AP to the facts of this case also means that if there is other information, which ‘could [have] adversely impact[ed]’ on the decision making by the Commissioner, and which is not secret and sensitive intelligence, this should also have been shared with Mr. Doyle. It is not clear whether or not this is the case. However, the wording of para. 24 of the Statement of Opposition means that there is a possibility that this is the case. This is because this paragraph states:

‘The Department of Justice notified An Garda Síochána of the request for an appeal and on or about 27 February 2025, [the Commissioner] reviewed the first-instance

decision and associated information held by An Garda Siochána relating to [Mr. Doyle] and including secret and sensitive intelligence. [The Commissioner] was satisfied based upon the said intelligence that it was correct to issue a “red” security indicator.’ Similarly, at para. 22 of the Statement of Opposition, the Commissioner states that the

Decision ‘was based upon inter alia secret and sensitive intelligence held by An Garda Siochána’ (emphasis added).

63. The use of the terms ‘including’ and ‘inter alia’ clearly implies that there was information, which was not secret and sensitive intelligence, which could have adversely impacted on the decision making, but which was not provided to Mr. Doyle. To take an example, if the information relied upon by the decision-maker was, say, a criminal conviction, this would not be secret and sensitive intelligence and so this should have been disclosed.

64. It is important to note that this Court is not suggesting that information that is secret and sensitive intelligence needs to be provided to Mr. Doyle, in order for him to obtain fair procedures in the conduct of the Appeal. However, an analysis should be done of whether a particular piece of information (which could have adversely impacted on the decision making) is genuinely secret and sensitive intelligence.

Conclusion: An appeal in name only

65. It seems to this Court that the failure to provide Mr. Doyle with the reason for the Decision, to which he was entitled, meant that Mr. Doyle had an appeal in name only, since he was not able to make whatever representations on this reason, as part of the Appeal process. As a result, it is hard to see how he could have made any meaningful contribution to the Appeal. All of this means that the administrative process set up by An Garda Síochána involving a first-instance decision, and an appeal, gives the impression of complying with fair procedures (by providing an appeal), but in reality, there was no appeal.

66. It is for this reason that it is surprising that, at para. 54 of his Statement of Opposition, the Commissioner states: ‘[Mr. Doyle] has failed to plead or otherwise particularise what he claims was not before the [Commissioner] when the [Commissioner’s] decision was made. [Mr. Doyle] has not pleaded or particularised any concerns or considerations which could have altered the decision of the [Commissioner] in a non-adversarial process. Accordingly, [Mr. Doyle’s] case in this respect is hypothetical and impermissible.’ (emphasis added)

67. This is a surprising because how could Mr. Doyle have made any ‘concerns or considerations’ known to the Commissioner, which could have ‘altered’ the outcome of the appeal of the Decision, when Mr. Doyle had no idea of the reasons for the Decision in the first place?

Setting aside the Appeal

68. In conclusion, the administrative process was established by An Garda Síochána was one where there was an appeal of a first-instance decision, but the person the subject of the appeal was deprived of information (which information was not privileged) regarding the reason for the first-instance decision. This meant that the appellant was not able to make any meaningful submissions in the Appeal. This renders the Appeal flawed and so this Court will strike-down (i.e. grant an order of certiorari) this decision. Effect of invalid Appeal on the validity of the first-instance Decision?

69. Does all of this therefore mean that the Decision is also flawed and must be set aside, such that Mr. Doyle is, with immediate effect, entitled to have access to secured areas of the airport? After all, the Appeal is being set aside because, during the Appeal process, Mr.

Doyle was not given the reason for the first-instance Decision. Does this not mean that the same failure to give a reason for the first-instance Decision, during the Decision process, also invalidates the Decision?

70. This is a significant issue since if the Decision is set aside, it would mean that Mr. Doyle has not failed the SIC, despite the fact that the Commissioner has stated in the Appeal that this would constitute ‘an unacceptable security threat’ to the State.

71. In this Court’s view, the answer must be that the Decision is not set aside, even though it may initially seem incongruous that the Appeal is struck down because of the failure to provide the reason for the Decision, yet the Decision itself is not struck down, even though it also clearly failed to provide the reason for that decision.

72. Firstly, one is dealing with issues of national security, namely airport access, which are matters of huge national interest and hugely sensitive and are very far removed from a typical fair procedures case, such as say in the context of disciplinary procedures of an employee by a State body, where a failure to give reasons for a first-instance decision might invalidate that decision. The importance and sensitivity of the issues at stake are illustrated by the fact that Article 10 of the Regulation (EC) 300/2008 on Common rules in the Field of Civil Aviation Security, expressly provides that appropriate parts of a national civil aviation security program (which provides the legal backdrop for the security checks in this case) shall only be made available in writing on a ‘need to know basis’. This highlights a key attribute of the process of doing background checks, which is that it is grounded in the prevention of potential threats, rather than the adjudication of past wrongdoing (which is usually the focus of cases, in which principles of fairness/natural justice are applied to an administrative process, e.g. a disciplinary process of a State employee).

73. Secondly, it is relevant to note that an adverse outcome in the initial Decision on a background security check for the airport will result in the denial or withdrawal of an authorisation or other benefit (rather than the removal of a right).

74. Thirdly, the initial Decision withdrawing the security clearance does not involve a finding of fault or the imposition of a penalty by An Garda Síochána.

75. Fourthly, as was recognised by O’Donnell J. (as he then was) in AP at pg. 365, there may well be situations, where: ‘it may in the public interest be legitimate to withhold even the gist of the material relied on for a decision which a person affected wishes to challenge’ (quoting from R. (Haralambous) v. St Albans Crown Court [2018] AC 236 at pg. 272). Thus, there are situations where information can be withheld, and in this Court’s view, the first-instance decision in this case is one such situation.

76. Fifthly, it seems to this Court that the absence of reasons, at the Decision stage, can be justified because this absence is capable of being remedied as part of the appeal process if the affected person appeals. This is because, as has been noted, at the appeal stage, reasons must be provided for the Decision, to enable the appellant to engage meaningfully in the appeal (save in respect of any information, which would compromise secret and sensitive intelligence).

77. In summary, for all these reasons, it seems to this Court that when dealing with hugely important State infrastructure, such as an airport, which could be subject to international terrorism, this is a situation where primacy can be given first to the removal of a perceived risk (which risk could have massive negative consequences), and once this risk has been removed, consideration can then be given to the provision of reasons for that removal (as part of any appeal process, should the affected person appeal).

78. Accordingly, it is this Court’s view that, while the Appeal is being set aside, the failure to provide reasons for the Decision does not per se mean that the Decision is flawed on grounds of fair procedures, and so it is not being set aside.

CONCLUSION

79. For the foregoing reasons, the Appeal affirming the Decision is unlawful because of a breach of fair procedures (namely the failure to provide the reason for the Decision, so as to enable Mr. Doyle to participate meaningfully in the Appeal), as this reason was not secret and sensitive intelligence. However, for the reasons set out above, the Decision to deny Mr. Doyle security clearance because of an unacceptable security threat to the State, has not been set aside.

80. It follows that Mr. Doyle is not entitled to the immediate return of his AIC, albeit that he is entitled to appeal the withdrawal of his security clearance and to be granted fair procedures in relation to the conduct of that appeal. That appeal may or may not uphold the

Decision to remove Mr. Doyle’s security clearance.

81. This matter will be put in for mention a week from its delivery at 10.45 a.m. to deal with any final orders and costs. However, on the assumption that it should not be necessary to expend costs on a further court sitting, and in order to facilitate the parties agreeing all outstanding matters, the parties have liberty to notify the Registrar if such a listing proves to be unnecessary. This is particularly so in light of the clear implication from Word Perfect Translation Services Ltd v Minister for Public Expenditure and Reform [2023] IECA 189 at para. 94, that there is an onus on lawyers to take a broad-brush approach to costs and not to engage in the inefficient use of court resources and costly ‘nit-picking’.