A constitutional challenge was brought by Mr Zalewski which covered a number of grounds including the fact that Adjudication Officers were not legally qualified, the fact there was no inherent right to cross-examine a witness and the fact that hearings are not held in public.
Decision of Supreme Court
The Supreme Court held that aspects of the 2015 Act were unconstitutional. The Court held that;
- Public hearings were "of the essence of the administration of justice". The Court was therefore critical of the fact that there was a blanket ban on public hearings in the WRC.
- The practice in the WRC of witness evidence not being on oath must change and noted that "the absence of provision for the admonition of an oath, or any possibility of punishment for giving false evidence, is inconsistent with the Constitution". The power to prosecute for perjury will also be included in the legislation being considered.
- The Court was also critical of the fact that there was not express provision for cross examination in the Act, although it frequently occurred in practice. It was held that this was a fundamental aspect of constitutional fair procedures.
As a result of the case, legislative amendments are required in order to enable the WRC to continue its functions in a constitutional manner and address the above points. The procedural changes have already been published on the WRC website. In it noteworthy that as hearings will now be held in public, the decisions of the WRC will be published including the names of the parties involved in the cases.
The case highlights the importance of justice being administered in public. It also puts a spotlight on fair procedures in terms of evidence being given on oath, the power to prosecute for perjury and the right to cross examination. While this decision was made in the context of the WRC, there is no doubt that this is the prism through which the legislation of public bodies will be considered in the future.
Written by Eimear Burke, Ciara Hanratty and Ayesha Ryan.
 Tomasz Zalewski v Adjudication Officer, WRC & Ors, Supreme Court, April 2021
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