High Court allows appeal against Garda transfer, ruling refusal of appeal due to timing was unfair and unreasonable.

Neutral Citation Number [2012] IEHC 531

THE HIGH COURT

[2009 No. 1304 J.R.]

BETWEEN

JAMES HERLIHY

APPLICANT

AND

SUPERINTENDENT OF GURRANABRAHER GARDA STATION AND THE COMMISSIONER OF AN GARDA SIOCHANA

RESPONDENTS

Judgment of Ms. Justice Iseult O'Malley delivered the 12th day of November, 2012

INTRODUCTION

1. The applicant is a serving member of An Garda Siochana and has been such for about 33 years. He lives in Ballincollig in County

Cork and for almost 30 years was based at Blarney Garda Station. These proceedings concern the circumstances in which he came to

be transferred, in September 2009, to Gurranabraher Garda Station in Cork City. Both stations are within the Garda District of

Gurranabraher, which is in the Division of Cork City.

2. The first named respondent is Superintendent Con Cadogan, who is and was at all material times the District Officer of An Garda

Siochana in the Gurranabraher District. He is named by the applicant as a respondent due to a misapprehension on the part of the

applicant as to his role in the transfer. The applicant believed, mistakenly, that Superintendent Cadogan had purported to direct the

transfer on his own authority. As will become apparent, this is a power that a District Officer does not have.

3. Some time between 9.15 and 9.30 a.m. on the 7th September, 2009 there was an altercation between the applicant and his wife in

the family home at Ballincollig. Members of An Garda Siochana arrived at the scene as the result of a 999 call at 9.20 from a member

of the public. They found the applicant's wife in a state of distress. She was bleeding from a cut on her hand and had an injury to her

back. The applicant had already called an ambulance and his wife was taken to hospital where she received stitches to her finger.

She did not require further treatment.

4. The Gardai who had arrived at the house naturally contacted their senior officers.

5. During the course of the morning Inspector Gary McPolin took formal statements, firstly from the applicant and then, at the

hospital, from his wife. It is clear that there had been a row between the two and that Mrs. Herlihy fell against a glass door in the

family home but there was a conflict between the two accounts as to how that happened. The statements are exhibited by the first

respondent in his affidavit.

The Court is not concerned in these proceedings to establish the truth of either statement but it is necessary to quote from them

because of steps taken as a result of what was said in them.

6. The applicant stated that he was sorting out some photographs in the computer room when his wife came in. According to him

there had been no words between them earlier that morning. He went on to say:

"She grabbed one of the photos and tore it up. She grabbed the bunch of photos and went to tear them up. I tried to

pull them out of her hand. She fell back against the single glazed door; the glass broke and came down in sheaths (sic).

She said that she had hurt her back and fell down on the ground. I dialled 999 immediately. She had a cut on her finger I

wrapped tissue paper around her finger it just happened split second We had a row before and the guards were called

This was about 4 years ago, Iris Brosnan was the guard We are not getting on; there is tension all the time. She is doing

everything to vex me so I would hit her. Neither of us is on medication. There is a Solicitor involved I did nothing wrong,

I didn't assault her; I never had or have the intention of assaulting my Wife. "

7. In her statement, Mrs. Herlihy said that they had been arguing about something else when her husband told her he had burned all

photographs with her in them. She said that there was one with her and that she would take it. The statement goes on:

"I said 'There everybody's photographs as the kids are in them ' meaning the children. He grabbed me and pushed me

against the door. The door would be hard glass and p.v. c. The glass shattered as my back hit it. I felt something had

happened to my back and I fell to the floor. My husband was cross and crying. I was afraid I know my husband can get

angry but never physically angry like this....

My husband and I have not been getting on for the last 3 years. I made a complaint against him before and I have been

living a life of mental torture since then. I have been to solicitor Patrick Mullan over this. He seems to blame me for

everything going wrong in his life. The mental torture entails calling me names, taunting me about being adopted,

accusing me of affairs and all sorts. I have had enough. "

8. After taking the statements, Inspector McPolin and the Sergeant who had accompanied him met with Superintendent Con Cadogan,

the first named respondent. The Superintendent avers that it was specifically outlined to him that Mrs. O'Herlihy was in fear of her

husband and that she had informed them that she had made complaint in the past and the Gardai had done nothing about it. This

latter point was of particular concern to him. He subsequently notified the Garda Siochana Ombudsman Commission ("GSOC"), who

appointed an investigator that afternoon, and contacted his Chief Superintendent, Liam Hayes. He says that he also checked the

Garda PULSE system and found that there had been two earlier incidents in relation to the applicant and his wife. (In this regard the

applicant says that there had only been one, that no complaint had been made by his wife and that he is seeking to have the PULSE

record corrected.)

9. In the afternoon of the same day Superintendent Cadogan and Inspector McPolin met with the applicant at his home. He was

informed that GSOC were to be involved. Beyond this point there is disagreement.

THE INVESTIGATION AND ITS AFTERMATH

10. Having received the referral from Superintendent Cadogan on the 7th September, GSOC commenced an investigation on the same

day. By letter dated the 5th December, 2009 Senior Investigating Officer Nicholas Harden reported his findings to Assistant

Commissioner Louis Harkin, Strategy, Training and Professional Standards. The report sets out, inter alia, the accounts of the original

incident given to GSOC by the applicant and his wife. Each differs somewhat from the statements given to Inspector McPolin.

11. The applicant said that he was seated at his computer when his wife came into the room following an argument. She grabbed a

pile of photos that he was scanning, stated that half of each photo belonged to her and started to tear them in half. He attempted to

stop her by grabbing the photographs. While they were pulling against each other Mrs. Herlihy had her back to the door with the glass

panel. During the struggle her elbow came in contact with the glass and broke it. She fell to the floor. He saw that she was bleeding

from the finger and also had a scrape on her back sustained from the metal door handle when she fell. He denied assaulting his wife.

12. Mrs. Herlihy said that there had been a row over domestic issues. She followed her husband into the computer room where she

was told by him that he was scanning the family photos and deleting her image from them. She saw a pile of photographs, grabbed

them and started to tear them up. He told her to stop, she refused and he attempted to grab them from her. She said that she was

"forced backwards" by this but "was not being pushed by Jim". She said that the upper part of her body hit the pane of glass and

caused it to break.

13. According to Mr. Harden a number of other statements were obtained but no further evidence was identified in relation to the

alleged assault.

14. GSOC reported that it was of the opinion that no misbehaviour or misconduct on the part of the applicant had been disclosed. A

file had been prepared and sent to the DPP, who stated that the matter had been thoroughly investigated but that there was

insufficient evidence to warrant a prosecution.

15. The GSOC report also refers to the actions taken on the day of the incident and describes the transfer as "entirely appropriate

and proportionate considering the nature of the investigation and the proximity of the family home to Garda Herlihy's original posting".

This comment is made in the context of describing the need to take immediate steps to ensure the safety of Mrs. Herlihy.

16. Although the report is dated the 5th December, 2009 it is said by Superintendent not to have been received in Garda

Headquarters until the 11th January, 2010. In the meantime the Applicant had sought and been granted leave to bring these

proceedings on the 21st December, 2009. The applicant's grounding affidavit, sworn on the 18th December, was obviously drafted in

ignorance of the report and makes no reference to it.

17. According to Superintendent Cadogan, Chief Superintendent Finn then directed, in the light of the report, that the applicant

should be restored to full operational duties but should remain at Gurranabraher Station. The Superintendent says that this happened

on the 25th January (not the 23rd March, as averred to by the Chief Superintendent). Again this decision does not seem to have

been put in writing to the applicant or to his legal advisors. The applicant says that he received a telephone call from his Sergeant in

Gurranabraher on the 5th February telling him that he would be permitted to resume outdoor duties from the 7th of that month. He

says that he met Superintendent Cadogan in the station on the 8th and was told that he had been exonerated by GSOC. The

Superintendent agrees that they met but says that the applicant told him that he had "been aware" of the GSOC report for some

time.

18. It will be seen from the GSOC investigator's report that there was clearly a significant alteration in the account of the incident

given by Mrs. Herlihy and there could not have been any realistic prospect of a conviction in the event of a prosecution.

EVIDENCE IN RELATION TO THE TRANSFER

THE APPLICANT

19. The applicant says that he was told by Superintendent Cadogan to report to Gurranabraher Station on the 9th September. He

says that he "understood" that he was being transferred temporarily and that he would be assigned to the radio room in that station.

On reporting to Gurranabraher he was told that he was confined to indoor duties and was assigned the role of permanent public

officer and member in charge with responsibility for prisoners. No D20 or "history form" was ever forwarded.

SUPERINTENDENT CADOGAN

20. Superintendent Cadogan avers that on the direction of Chief Superintendent Hayes he met with the applicant and informed him

that he was being transferred to Gurranabraher and that he would be confined to indoor duties until the investigation was completed.

He says that the view of the Chief Superintendent (as confirmed on affidavit by the latter) was that this was necessary because of

the nature of the incident and of the investigation, the fact that the incident was known in the locality, the concerns of Mrs. Herlihy

in relation to her previous complaint and the proximity of the family home to Blarney Garda Station. The Chief Superintendent believed

the transfer to be necessary for the purposes of the investigation and good management of Garda personnel and further that it was

necessary to effect it immediately. He says that the applicant agreed to this and did not question it. There was no basis on which the

applicant could have believed that the transfer was temporary.

21. The superintendent's contemporaneous note records telling the applicant "I was transferring him to Gurranabraher in light of

incident".

22. In his written report to Chief Superintendent of the same date, Superintendent Cadogan says "I informed him that I was

transferring him from Blarney Garda Station to Gurranabraher Station pending the outcome of this investigation...He said he clearly

understood the position he was in".

INSPECTOR MCPOLIN

23. There are two undated witness statements by Inspector McPolin dealing with the events of the 71h September. In one he says

that Superintendent Cadogan informed the applicant that "he would be transferred to Gurranabraher Garda Station from Blarney

pending this investigation". In the other he says that "Superintendent Cadogan informed Garda Herlihy that on the direction of the

Divisional Officer that he was been transferred to Gurranabraher Garda Station and confined to indoor duties until the matter was fully

investigated." In an affidavit sworn shortly before the hearing of these proceedings he denies that there was any mention of the radio

room.

ASSISTANT COMMISSIONER K.G. LUDLOW

24. On the 8th September Assistant Commissioner Ludlow wrote to the Deputy Commissioner, Operations and the Assistant

Commissioner for Strategy, Training and Professional Standards in the following terms:

I refer to the attached correspondence in this matter from the Divisional Officer, Cork City which is forwarded for your

information. The Garda Ombudsman Commissioner has been notified and Mr. Nick Harden, S.I.O. has been appointed to

investigate this incident pursuant to Section 98 of the Garda Siochana Act. Garda Herlihy has been transferred to

Gurranabraher Garda Station pending the outcome of the investigation and he has accepted this. I will keep you advised

of developments.

25. It should be noted that the attached correspondence included the report of Superintendent Cadogan.

CHIEF SUPERINTENDENT WILIAM HAYES

26. On the 9th September Chief Superintendent Hayes wrote to the Assistant Commissioner, Human Resource Management as follows:

Re: Inter-District Transfer- Gurranabraher District- Cork City Division. With reference to the above, I recommend the

following transfer within Gurranabraher District, Cork City Division with effect from today 9th September, 2009:-'

Garda J Herlihy 20677F Blarney to Gurranabraher

Transfer is in the interest of efficiency and the member has been spoken to by his District Officer and agreement

reached. Garda Herlihy will transfer at his own expense.

Forwarded for inclusion in the next Personnel Bulletin, please.

27. In his affidavit, Mr. Hayes (now retired) confirms that that the decision to transfer the applicant was his, that it was to be

permanent and that the applicant was to be restricted to indoor duties pending the outcome of the investigation. He goes on to say

that:

"I also confirm that Garda Herlihy's situation would be reviewed on receipt of the final report of the investigation. "

CHIEF SUPERINTENDENT MICHAEL FINN

28. Chief Superintendent Finn replaced Chief Superintendent Hayes at some point in November, 2009 while the investigation into the

incident was still ongoing. In an affidavit sworn on the 8th February, 2012 he avers that on the 23rd March, 2010 he made a decision

that the applicant should remain at Gurranabraher. He says that he made this decision because he held (and continues to hold) the

view that the applicant's credibility as a member of An Garda Siochana was damaged within the community in Blarney. He bases this

view on the high profile of the applicant within the local community as the author of a number of books and commentator on policing

affairs, the proximity of Blarney and Ballincollig and what he believes to be the knowledge of the community of the facts relating to

the incident including the facts that GSOC were investigating it and that the applicant's wife had applied for a Safety Order in

November, 2009. In the circumstances it was in the best interest of the good and proper management of An Garda Siochana that

Garda Herlihy remains attached to Gurranbraher rather than Blarney.

29. It must be noted here that this is the only reference in the papers before the Court to a decision being made in March, 2010.

Chief Superintendent Finndoes not suggest that it was reduced to writing and does not say that the applicant was informed of it. He

goes on to remark that he has not received any request from the applicant to be reassigned to Blarney since that date.

30. In summary, the state of the evidence is as follows:

(a) the applicant believed that he was being transferred pending the outcome of the investigation;

(b) Inspector McPolin believed that the applicant was being transferred pending the investigation;

(c) Superintendent Cadogan believed that he had made it clear to the applicant that he was being transferred

permanently but reported to Chief Superintendent Hayes that he had told the applicant that it was pending the outcome

of the investigation;

(d) Chief Superintendent Hayes, whose decision it was in the first instance, says that he intended it to be permanent but

with a review of the situation after the investigation;

(e) Assistant Commissioner Ludlow believed it was pending the outcome of the investigation;

(f) Superintendent Finn made a separate decision in March 2010, not notified to anyone, that the transfer should be

permanent.

31. In the circumstances the situation can most charitably be described as confused.

TRANSFERS AND THE GARDA SIOCHANA CODE

32. Pursuant to the provisions of Chapter 8 (1) (a) of the Garda Code, a Divisional Officer (in this case Chief Superintendent Hayes)

has authority to transfer Gardai within the Division. District Officers - Superintendents - do not have transfer authority. Chapter 8 (1)

(b) provides that:

"The transfer of members within the various Regions/Divisions must, before implementation, be forwarded to Assistant

Commissioner, Human Resource Management for inclusion in a subsequent Personnel Bulletin. Transfers will not be

effected unless and until directed in the Personnel Bulletin. "

33. The Personnel Bulletin is published on the 1st and 3rd Wednesday of each month.

34. Chapter 8 (3) provides that:

Members of An Garda Siochana directed on unrequested transfer (other than those on promotion or appointment) should

be notified in advance of the transfer and the reason for such transfer.

35. Chapter 8 (10)(1) is similar to 8(1)(a):

Transfer orders will not take effect until such time as the matter is confirmed in the Personnel Bulletin issued by

Assistant Commissioner, Human Resource Management.

36. Chapter 8. 13 deals with the appeals procedure. The relevant parts are set out below.

(1) Members directed on unrequested transfers, other than those allocated on promotion or appointment, shall have the

right to appeal in writing if they feel that the transfer is harsh or unjust.

(2) A member affected by a transfer order issued by the Divisional Officer or Regional Commissioner may appeal to

Assistant Commissioner, Human Resource Management ...

(3) Such appeals shall be submitted in writing and forwarded to Assistant Commissioner, Human Resource Management

at least three days prior to the transfer date. Only in exceptional cases will appeals received after this date be

entertained.

(4) …

(5) A member will not be at liberty to ask for an appeal to be placed before the Commissioner until the appeal has been

formally rejected by Assistant Commissioner, Human Resource Management.

(6) …

(7) …

(8) If the Commissioner decides to reject the appeal a member is then at liberty to ask to have the appeal heard before

the Review Body. "

37. The procedure for hearings before the Review Body is set out in 8.14 and is not relevant here.

38. The status of the Code, which is an internal document akin to a staff handbook or manual, was considered by McKechnie J. in

Noonan v. Commissioner of An Garda Síochána (Unreported, 17th July, 2007). Having considered the doctrine of legitimate

expectation as discussed in Glencar Exploration Plc v. Mayo County Council [2002] 1 I.R. 84 McKechnie J held that a legitimate

expectation on the part of a member stems from the existence and publication of the Code. Standing to rely on it arises from

membership of An Garda Síochána to whom the Code is addressed. It is accepted by the respondent in these proceedings that this

principle applies to the applicant.

THE APPLICANT'S APPEAL

39. The applicant says that on the 20th September, 2009 he was contacted by his brother, who is also a serving member, who told

him that he had seen the transfer listed as permanent in the Personnel Bulletin. The applicant thereupon sent an appeal in writing,

dated 20th September, to the Assistant Commissioner, Human Resource Management. In it he refers to the transfer directed on the

7th September and says that he feels it is both harsh and unjust and claims that the consequences thereof are injurious to his health.

He specifically makes the point that:

"Due to the short notice afforded me of my transfer I was unable to give three days notice in advance of lodging my

appeal in accordance with Code 8.13(3)."

40. On the 30th September Assistant Commissioner Fanning wrote as follows:

"I note the member transferred from Blarney Garda Station on the 9th September 2009. He then retrospectively

appealed the transfer to this branch. There is no provision for retrospective appeals of transfers.

Please inform the member accordingly."

41. It is not clear when the applicant received notification of this communication.

42. In accordance with the provisions of the code the applicant then appealed to the Commissioner, by letter dated the 5th

November. In this, more detailed letter, he sets out his initial belief that the transfer had been temporary, the fact that he had

received no notification other than the oral direction of Superintendent Cadogan, his discovery as to the publication in the Personnel

Bulletin and the rejection of his appeal by Assistant Commissioner Fanning. Inter alia, he specifically claims that the transfer was not

in accordance with the provisions of the Code and that the method of transfer did not afford him the facility to appeal in accordance

with the Code. Receipt of the appeal was acknowledged on the 10th of November. The substantive response came by way of another

letter to the Chief Superintendent from Assistant Commissioner Fanning dated the 24th November reading as follows:

"I am directed by the Commissioner to advise Garda Herlihy of the terms of An Garda Siochana Code section 8.13

Transfer Appeals Procedure, which deals with this matter.

Please inform the member accordingly. "

43. The applicant argues that this is, in effect, a decision by Assistant Commissioner Fanning to uphold his own earlier decision but I

see no reason to go behind the statement that the letter is written at the direction of the Commissioner. It is somewhat cryptic in its

terms and does not, as such, set out a decision. However I am of the view that, in the context of the Assistant Commissioner's

previous letter, it is undoubtedly a refusal to engage with the merits of the applicant's appeal based on the time limits in the appeals

procedure.

44. In the meantime the applicant had engaged a solicitor, who, also on the 24th, wrote to the Commissioner seeking the response to

the applicant's appeal. The two letters obviously crossed in the post. A letter of acknowledgement was sent to the solicitor on the

26th November and on the 16th December, 2009 Assistant Commissioner wrote a substantive reply as follows:

"Dear Sirs,

I refer to your letter of the 24.11.09 in the above subject. Before this transfer was activated local management spoke

to Garda Herlihy and advised him of his transfer. Garda Herlihy accepted this transfer and transferred at his own

expense on the 9th September 2009 from Blarney Garda Station to Gurranabraher Garda Station.

A subsequent letter was received at this office from Garda Herlihy stating that at this point he wished to appeal the

transfer. Garda Herlihy was advised that there was no provision for a retrospective appeal of transfer.

The criteria in relation to transfers and appeals of transfers is outlined in An Garda Siochana Code, Volume 1, a copy of

which was issued to Garda Herlihy.

I trust this clarifies the matter for you."

45. The application for leave to bring these proceedings was moved on the 21st December, 2009.

SUBMISSIONS

46. As mentioned above, the applicant conceded at the hearing that he had been incorrect in his contention that the decision to

transfer him was made, wrongfully, by Superintendent Cadogan. This assertion, sustained through several affidavits and involving

various allegations against his senior officers, should really not have survived a reading of the discovery documentation which included

the letter directing the transfer from Chief Superintendent Hayes.

47. At the hearing, Senior Counsel for the applicant concentrated on the applicant's right to have the appeals procedure fairly

implemented. He argued that the procedure envisages a member getting his or her appeal in before the transfer is effected but that

there is provision for exceptional circumstances (in 8.(13)(3) of the Code). The applicant was shut out from the appeal process. In

the circumstances there were was no point applying to the Review Body, since the applicant had not actually had an appeal.

48. Much of the content of the respondent's affidavits is concerned with justifying the transfer itself. Emphasis is placed on the need

to ensure the well-being of the applicant's wife and the need to assure her that action was being taken. There is also reference to

the perceived danger that the applicant's behaviour might be "deteriorating" and that he needed supervision to ensure the safety of

the public. Again, it might be thought that the report of the GSOC investigator, with the more considered statement from Mrs. Herlihy,

should have dispelled that concern. Further, one might think that a member who was thought to pose any level of threat to members

of the public should not really be given the position of member in charge of the station, a post carrying key responsibility for the

welfare of prisoners.

49. At the hearing, Senior Counsel for the respondents submitted that the letter of the Code cannot always be followed and that in

the circumstances three days notice of the transfer would not have been appropriate. She accepted that if a mistake had been

made, it was to apply the three-day time limit for appeals too strictly. However, she said, the second letter to the applicant referred

him to the Code. By implication, it is submitted, he was referred to the Review Body procedure. He failed to pursue that remedy and

should therefore not be entitled to judicial review. In that respect reliance is placed on the following passage from the judgment of

O'Higgins CJ in The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R 381:

"The question immediately arises as to the effect of the existence of a right of appeal or an alternative remedy on the

exercise of the court's discretion. It is well established that the existence of such right or remedy ought not to prevent

the court from acting. It seems to me to be a question of justice. The court ought to take into account all the

circumstances of the case, including the purpose for which certiorari has been sought, the adequacy of the alternative

remedy and, of course, the conduct of the applicant. If the decision impugned is made without jurisdiction or in breach

of natural justice then, normally, the existence of a right of appeal or of a failure to avail of such should be immaterial.

Again, if an appeal can only deal with the merits and not with the question of the jurisdiction involved, the existence of

such ought not to be a ground for refusing relief. Other than these, there may be cases where the decision exhibits an

error of law and a perfectly simple appeal can rectify the complaint, or where administrative legislation provides

adequate appeal machinery which is particularly suitable for dealing with errors in the application of the code in question.

In such cases, while retaining always the power to quash, a court should be slow to do so unless satisfied that, for some

particular reason, the appeal or alternative remedy is not adequate. "

50. It was submitted that what was in issue here was not a disciplinary sanction but, having regard to the facts, an administrative

decision made in the interests of the good and proper management of the Gardai.

CONCLUSIONS

51. Having regard to the evidence relating to the manner in which the transfer came about it is difficult to avoid feeling that in fact

what was intended was a temporary transfer which transmuted into a permanent one more or less by accident. There can be little

doubt but that Mr. Harden, the GSOC investigator, was correct in characterising a transfer of the applicant to a station further away

from his home as being appropriate and proportionate in the immediate circumstances that the applicant's superiors had to deal with

on the day of the incident. The applicant himself appeared to accept this on that day. The situation required some such action to be

taken and I do not believe that the right of a member to greater advance notification would necessarily apply. Nearly all the evidence

points to an intention to transfer temporarily pending the outcome of the GSOC investigation (and, one might add, the decision of the

Director of Public Prosecutions). Even the evidence of retired Chief Superintendent, to the effect that it was a permanent transfer to

be reviewed after the final report, can be seen to some extent as supporting this view.

52. I make these observations, not as evidential findings but to highlight the degree of confusion in the case. These impressions are,

of course, contradicted by the sworn evidence by those responsible for the decision and in any event could not apply to Chief

Superintendent Finn's decision of the 23rd March.

53. In any event, the central fact of the case is that the transfer was effected within two days, thereby making it impossible for the

applicant to give three days notice of an appeal as requires by the Code. I am satisfied, on the evidence, that it was not

unreasonable for the applicant to believe that he had been told that the transfer was temporary - that, after all, was the impression

of Inspector McPolin, the only other witness to the conversation. It was also what Superintendent Cadogan reported having told him.

In those circumstances the applicant acted as promptly as possible after the publication of the Personnel Bulletin. To refuse to

entertain his appeal, as the Assistant Commissioner and the Commissioner did, on the basis that it was "retrospective" was both unfair

and unreasonable.

54. In deciding on the 23rd March, 2010, to confirm the permanency of the transfer Chief Superintendent Finn gave no notification to

the applicant either before or indeed after the decision.

55. The applicant was at all stages deprived of an opportunity to make his case against a permanent transfer.

56. It follows that it is unnecessary for the Court to consider whether the arguments put forward as justifying the permanent transfer

are correct. These are, for the most part, matters which should have been considered in an appeal on the merits. The applicant has

not had such an appeal.

57. In these circumstances the Court is entitled, in accordance with the decision of the Supreme Court in Abenglen, to hold that the

existence of a right of final appeal to the Review Body is immaterial..

58. I will hear the parties on the appropriate order.