High Court of Ireland Decisions

1. This matter comes before the Court pursuant to two orders of the Court made respectively on the 4th March, 1996 by McCracken J. and the 24th June, 1996 by Budd J. By the first of these orders the Applicant was given leave to judicially review a purported decision made by the Commissioner of An Garda Siochana to terminate the Applicant's assignment as a Garda trainee with effect from the 16th March, 1995 and she was given leave to seek a declaration that this purported decision to terminate her assignment failed to comply with the principles of natural justice and basic fairness of procedures. She was given leave to seek an order of mandamus directing that she be reinstated and a declaration that she is entitled to retake part of an examination which she had failed. She was also given leave to seek damages for breach of contract and for infringement and violation of her constitutional rights and natural justice.

2. The grounds upon which this order was made was that the Commissioner failed to comply with the principles of natural and constitutional justice and basic fair procedures and the manner in which it is alleged he did so are, in summary, that he allegedly failed to inform the Applicant of the case being made against her giving rise to the decision to terminate her assignment. It is alleged that he denied her a proper hearing of her case or the opportunity to call evidence in her defence and moreover it is alleged that he denied her the opportunity of being heard either on her own or by representatives and denied her the opportunity to make arguments or to make submissions in her defence. It is also alleged that he failed to comply with the procedures contained in the Garda Siochana code of conduct. It is alleged that he failed to have regard to the medical evidence and that he failed to make the Applicant aware of the grounds upon which he considered her to be unsuitable as a trainee guard and that his decision to terminate her assignment was excessive and inappropriate as it deprived her of her livelihood. By the second order of the 24th June, 1996, Budd J. gave the Applicant liberty to amend her statement of grounds by the addition thereto of an additional relief namely she was given leave to seek a declaration that the prohibition against her becoming a member of the Garda Representative Association ("the GRA") while she was still a trainee Garda was invalid and unconstitutional. She was given leave to seek an order of mandamus directing the Minister for Justice to amend the relevant regulations in order to permit trainee Gardai to join or otherwise be associated with the GRA.

3. The grounds upon which these reliefs were sought by the Applicant was based upon the constitutional guarantee of freedom of association either with the Trade Unions or comparable associations provided for by Article 40.6(1) of the Constitution. The Applicant contends that there is no compelling justification for excluding trainees from membership of the GRA and accordingly there has been an unlawful discrimination against her.

4. Counsel for the Applicant at the outset of the case informed the Court that of the reliefs referred to in paragraph 2 of the order of the 4th March, 1996 none except the claim for damages for breach of contract and infringement and violation of the Applicant's rights under the constitution and natural justice were being pursued. This, Counsel informed the Court, was because the Applicant did not see any realistic opportunity for her to make a success of a career in An Garda Siochana once she had found it necessary to establish her rights by way of litigation. Accordingly, Counsel informed the Court that the Applicant's core complaint was that throughout the time that consideration was being given to her continuing as a trainee Garda she was deprived of the opportunity of joining and being represented by the GRA and as a result her constitutional rights of association were violated and as a consequence she suffered loss and damage.

5. It is necessary to set out in some detail the facts of this case.

6. The Applicant is a young lady of 26 years. Having sat for the entrance examination for An Garda Siochana she was accepted as a trainee/student in 1994 and commenced her intern period in Templemore College on the 3rd May, 1994. Her training programme included physical training part of which was an exercise known as "circuits". The successful completion of this exercise involved running a given distance in less than a stated time. The Applicant's affidavit details the unfortunate circumstances which combined or contributed to her failing to successfully complete this exercise. She offers a number of possible explanations or suggestions as to the reasons why she failed this exercise. These would include that she was required to carry out the test when the ground was unsuitable or that she suffered from an injury while she was undergoing the test or that she performed the test before an audience of some 30 spectators which adversely affected her performance or that she suffered from panic/asthma attacks during the test. However, these suggestions do not now form any part of the Applicant's case. It is an accepted fact that she failed after a number of attempts to pass the examination.

7. Superintendent Kevin Ludlow was the officer assigned as Academic Co-ordinator at Garda College, Templemore and I accept his evidence contained in paragraph 29 of his affidavit, which is unchallenged by the Applicant, that the Applicant agreed with him that she had been given every opportunity to reach the required standard and pass the test. I further accept as a fact that a number of discussions took place between the Applicant and the Superintendent concerning the Applicant's future and these included discussions related to the fact that from the Applicant's point of view it was preferable that she tender her resignation rather than that her contract be terminated by the Commissioner of An Garda Siochana.

8. On the 15th March, 1995 the Applicant called on Superintendent Ludlow and she tendered and left with him a notice of intention to resign. She was informed by the Superintendent that it was unnecessary to give notice of intention to resign as she had done in this notice and on the 16th March, 1995 she called again on the Superintendent and withdrew the notice of the 15th March, 1995 and tendered a new notice resigning from An Garda Siochana with effect from 9 o'clock on that date (i.e. 16th March, 1995).

9. It is accordingly clear that the reliefs originally sought by the Applicant whereby she sought to condemn the decision of the Commissioner to terminate the Applicant's assignment as a Garda trainee are unrelated to the facts of this case since no such decision was ever made by the Commissioner.

10. The Applicant does not now seek any reliefs based upon such an alleged decision.

11. The Applicant's claim now arises from the suggestion that during the time that she was considering her position as a future member of An Garda Siochana she was improperly deprived of the support and advice of the GRA. In her affidavit she says:-

12. The case now being made by the Applicant is that her right of freedom of association granted by the Constitution embraced the right of a trainee Garda to associate with the GRA, however, she submits, that this right is denied her by the provisions of the Garda Siochana Act, 1977.

13. Counsel for the Applicant submits that there is an onus upon the Minister to justify the prohibition imposed on the Applicant as a trainee guard from associating with the GRA by demonstrating that this is necessary "for public order" or "in the regulation and control of the public interest" as provided for by the Constitution. He submits that such an onus could not be established given that trainee prison officers and trainee nurses among others are now accepted as associate members or full members of their professional associations which protect their rights. In support of his submission that the onus is upon the Minister to justify such restrictions Counsel has referred the Court to "Constitutional Law of Canada, 3rd edition by Peter W. Hogg, p. 857, chapter 354.

14. I do not accept the submission of Counsel for the Applicant. Section 13 of the Garda Siochana Act, 1977 provides at subsection (1) for the establishment of an association or associations for all or one or more of the ranks of An Garda Siochana. It is critical to recognise that the association is limited by the Act to the persons whom it may represent and it is also limited as to the purposes for which it may represent these people, that is to say, "in all matters affecting their welfare and efficiency". The Act does not authorise or empower the Minister, as has been alleged on behalf of the Applicant, to extend the category of persons who may be represented by the associations formed under the Section nor does it empower him to extend the purposes for which these persons may be represented. As the Applicant is not and never was a member of An Garda Siochana the Minister may not provide that she be represented by the GRA.

15. The only power given to the Minister under the Section is that provided by subsection (5). This power is limited to easing the prohibition imposed by subsection (2) of the Section, which is the prohibition against "associating with a person or body outside the Garda Siochana". Even if the Minister were to exercise this power so as to authorise a trainee Garda to associate with the GRA it would not entitle the GRA to represent that person in matters affecting his or her welfare or efficiency. The GRA may only perform that function for someone who is a member of An Garda Siochana.

16. To say that the Minister has the power to extend the category of persons whose welfare and efficiency may be represented by the GRA is incorrect and accordingly the claim based upon the Minister's failure to do so, fails.

17. Accordingly, I refuse the relief sought.