High Court of Ireland Decisions

1. In these Judicial Review proceedings the Applicant seeks an Order of Certiorari quashing the decision of the Commissioner of An Garda Siochana dated the 27th June, 1997 wherein he dispensed with the Applicant’s services with effect from the 3rd July, 1997. He also seeks damages for breach of contract and breach of constitutional rights. The grounds on which these reliefs are sought are set out in detail in the Applicant’s originating Statement dated the 2nd July, 1997. The grounds were helpfully summarised under two main headings by Senior Counsel for the Applicant, Miss Finlay, in her submissions to this Court to which I will refer below.

2. Leave to issue Judicial Review proceedings was granted on the 2nd July, 1997 by Order of this Court (O’Sullivan J.). A Statement of Opposition was filed by the Respondent on the 21st July, 1997 and Affidavits of Discovery were sworn by Superintendent Aidan Killoran on behalf of the Respondent in March 1998. By agreement of the parties the entire of the documents as discovered were handed in by way of evidence to this Court. The application was heard before me on the 3rd day of July and the 7th day of July, 1998

3. The facts underlying the application are set out in the Affidavit of the Applicant sworn on the 2nd July, 1997 and in the replying Affidavit of Inspector Finbarr O’Brien sworn the 24th day of July, 1997. The Applicant entered the Garda Training College at Templemore as a student Garda on the 3rd May, 1994. Garda training consists of a number of phases, some of which are spent in the Training College at Templemore and others in acquiring practical experience at Garda Stations. There are also a number of written examinations.

4. During the first three phases of training the student Garda is classed as a Trainee, and his conditions of service are set out in a contract under the Garda Siochana (Admissions and Appointments) Regulations, 1988, a copy of which was handed into Court. At the end of Phase III successful students are attested to the Force and thereafter for a period of two years are known as Probationers. Once the student Garda is " attested to the Force " he is an actual member of the Garda Siochana and is subject to the Garda Siochana Code and the Garda Siochana (Discipline) Regulations, 1989.

5. Under the Garda Siochana (Admissions and Appointments) Regulations, 1988 (S.I No. 164 of 1988) it is provided (at Article 15) that " on first appointment by the Commissioner as a member, such member shall be appointed to the rank of Garda and shall be on probation for a period of two years"

6. Article 16 provides that:-

7. The Applicant successfully completed the first three phases of his training and was attested to the Garda Siochana on the 6th July, 1995. He then completed Phases IV and V of his training and graduated from the Garda Training College on 26th April, 1996.

8. It is clear from the extensive documentation provided to the Court that the Garda Siochana authorities, in addition to providing training courses and examinations, maintain a careful and thorough system of continuing assessment of trainee and probationer Gardai so as to ensure that they are fitted to become suitable, efficient and reliable members of the Force. Comprehensive assessment criteria are provided; there are assessments by tutors, by Training Sergeants, by District Officers and by Divisional Officers, and the student Gardai are required to carry out detailed self-assessments.

9. The Applicant’s assessments during his period as a Trainee and as a Probationer show that he had some problems. He was of a somewhat nervous disposition and at one stage suffered from stress and received counselling. It is notable, however, that at no stage was it suggested that he was ill-disciplined or given to misconduct. He made considerable efforts and his performance improved. By 30th May, 1997 his assessments were completed and his superior officers recommended his confirmation as a permanent member of the Force. His period of Probation was due to end on 6th July, 1997. It is clear from the documentation that the Applicant's various assessments were carried out carefully and fairly, with an eye both to his own welfare and to the welfare of the Force, and no criticism is made of them.

10. On the night of 6/7 April, 1997 an incident occurred at a nightclub known as Tamango’s which is attached to the Sands Hotel, Portmarnock. The Applicant sets out details in regard to the incident in his grounding Affidavit and statements of other persons involved in the incident are included in the Book of Discovery. The incident concluded with the Applicant and his friends being asked to leave the nightclub by bouncers, and members of An Garda Siochana being called to the scene. It is clear that there are a number of matters in issue between the Applicant and other participants in this incident but it is no part of this Court's task to adjudicate on the allegations made by any of the protagonists. As a result of the incident a complaint was made by a Miss Lisa Smyth to Malahide Garda Station in relation to the conduct of the Applicant. Initially this complaint was dealt with under the Garda Siochana (Discipline) Regulations, 1989 (the 1989 Regulations) to which, as I have already said, Probationers like all other Gardai are subject. The 1989 Regulations set out in detail the method of inquiry into all breaches of discipline occurring in the Garda Siochana, the rights of members of the Force who are being investigated in regard to disciplinary matters, the penalties which may be imposed, and the system of appeals to an Appeal Board. The Regulations are drawn so as to provide both for discipline in the Force and for the protection of individual members by procedures which are in accordance with natural and constitutional justice.

11. As is set out in his Affidavit, Inspector Finbarr O’Brien was appointed under the 1989 Regulations to investigate the incident at Tamango’s nightclub and the Applicant's involvement in it. On 7th May, 1997 Inspector O’Brien telephoned the Applicant and informed him that he had been appointed to investigate the alleged breach of discipline and he arranged to serve a Disciplinary Notice on him under Regulation 9 of the 1989 Regulations. This Notice was served on the Applicant on 9th May, 1997. The Notice gave what was described as " a brief outline of the Acts of Commission or Omission alleged " in the following terms:-

12. The Notice also contained the following statement:-

13. It appears from the Affidavit of Inspector O’Brien that when he served the Applicant with the Disciplinary Notice he asked the Applicant whether he wished any witnesses to the incident to be interviewed. The Applicant gave him the names of two witnesses, Trevor McDonagh and Anthony Lynch, both of whom were subsequently interviewed. Some few days later the Applicant informed Inspector O’Brien that he would be responding in writing to the Disciplinary Notice and on 20th May, 1997 the Applicant gave a brief " report" to Inspector O’Brien in which he stated as follows:-

14. It was clear from this document that the Applicant was contesting the entire substance of the allegations made against him.

15. In his Affidavit Inspector O’Brien avers that on the 20th May, 1997 when he had read the Applicant’s report he informed the Applicant that he would be forwarding a file in regard to the incident to the Director of Public Prosecutions. Inspector O’Brien also states that " if during the course of disciplinary procedures a file is sent to the Director of Public Prosecutions it is the practice to await for any directions from the Director and any Court proceedings before taking any further steps under the Disciplinary Regulations ." He goes on to state that directions from the Director of Public Prosecutions were received by him in the matter on the 23rd July, 1997. He does not refer to the content of these directions but no charge was brought against the Applicant and this Court must assume that the D.P.P. directed that no charge should be brought. While Inspector O’Brien states in his Affidavit that the Applicant ought to have been aware of this procedure in regard to the awaiting of directions from the Director of Public Prosecutions, it does not appear that he was in fact so aware since in his own Affidavit the Applicant states that when he heard nothing further from Inspector O’Brien he assumed that his report was the end of the matter and that the matter was not being taken any further.

16. Inspector O’Brien states in his Affidavit that he carried out a very full investigation of the incident at the nightclub. He states that he interviewed or caused to be interviewed all witnesses including the individual who had originally made the complaint against the Applicant, Ms. Lisa Smyth, and her sister, together with the witnesses who were referred to him by the Applicant and a number of other witnesses who were in the employment of the nightclub and the members of An Garda Siochana who attended at the nightclub on the night in question. It is clear from the Book of Discovery that these interviews were carried out and that statements were taken from the various witnesses. However, it is also abundantly clear that at no stage was the Applicant himself interviewed or questioned in regard to the incident and no detailed statement was taken from him. In addition he was not informed as to what statements had been taken from other witnesses or as to the detailed contents of any of these statements. Inspector O’Brien states that the Applicant did not ask for copies of the statements but, leaving aside any legal question as to whether there was any obligation on the Applicant to request copies of statements, it is unlikely that such a request could arise when the Applicant was unaware of the existence of the statements. The only knowledge which the Applicant had of the allegations being made against him was the brief outline set out on the Disciplinary Notice which has already been quoted above.

17. In the meantime the Garda authorities, who were of course aware that the Applicant's period of probation was due to end on 6th July, 1997, apparently decided to leave aside the investigation under the 1989 Regulations and to take action under the Garda Siochana (Admissions and Appointments) Regulations, 1988 (the 1988 Regulations) and to dispense with the services of the Applicant under Article 16 of those Regulations which I have already quoted above.

18. On 17th June 1997, the Applicant received a Notice dated 12th June, 1997 from the Commissioner of An Garda Siochana. This Notice was headed Garda Siochana (Admissions and Appointments) Regulations, 1988 and stated as follows:-

19. At his own request the Applicant was granted until 26th June, 1997 to respond to this Notice. The Applicant forwarded a submission to the Commissioner in response to this Notice in which he again denied, in somewhat more detail, the allegations which were made against him but he could not, of course, deal with the evidence against him contained in the statements taken during the disciplinary investigation since he was aware neither of the statements themselves nor of their content. It should also be noted that the Commissioner's Notice dated 12th June purports to set out findings against the Applicant rather than allegations against him. Despite the fact that in the discovery documents Inspector O’Brien's actual report on the incident states that " a charge of common or sexual assault would not be sustainable in my view" and suggests a much lesser charge under Section 5 of the Criminal Justice Public Order Act, 1994, the Commissioner's Notice of 12th June appears to make an actual finding of sexual harassment and assault.

20. It appears from the discovery that the Applicant’s submissions of 26th June, 1997 were considered on that day by the Garda authorities and were rejected on the grounds that he failed to establish any new evidence or to indicate mitigating factors concerning the allegations and subsequent investigation. On the following day, 27th June, 1997, the Garda Commissioner issued a Notice to the Applicant as follows:-

21. As already stated, the Applicant issued his Judicial Review proceedings on 2nd July, 1997.

22. Senior Counsel for the Applicant, Miss Finlay, in her submissions to the Court relied on two main grounds.

23. She firstly submitted that where the Applicant had been charged under the 1989 Disciplinary Regulations with actual misconduct, where those disciplinary procedures had been put in train and where a purported preliminary investigation had been carried out by Inspector O’Brien, the Commissioner could not then abandon the proceedings under the 1989 Regulations and dispense with the Applicant’s services under the Garda Siochana (Admissions and Appointments) Regulations, 1988 on the general and discretionary ground that he was " not likely to become an efficient and well conducted member of the Garda Siochana". This was particularly so when, as in this case, it was clear from the Applicant’s record of assessments and from the Commissioner's Notice of the 12 June, 1997 that the sole ground for holding that the Applicant was not likely to become an efficient and well conducted member of An Garda Siochana was his alleged misconduct at Tamango’s nightclub on the night of 6/7 April, 1997.

24. In making this submission Miss Finlay relied in the main on the judgment of the Supreme Court in McAuley -v- Commissioner of the Garda Siochana [1996] 3 I.R.208. In that case the Applicant was a Trainee Garda in the first phase of his training and his position was governed by the Garda Trainees Conditions of Service and Acceptance of Appointment. He was subject to the disciplinary procedures set out in Regulation 33 of the Code of Conduct for Student/Probationers. (This was in contrast to the Applicant in the instant case who, under Regulation 34 of the same Code, was as a Probationer subject to the Garda Siochana (Disciplinary Regulations) 1989). The applicant in the McAuley case was alleged to have behaved indecently in a Public House. An investigation was carried out under Regulation 33. The Commissioner then terminated the applicant’s training on the grounds that he was unsuitable for continued employment as a trainee by reason of misconduct. In the High Court, Barr J. held that the procedures adopted during the course of the investigation into the applicant's alleged misconduct did not accord with the principles of constitutional justice and fair procedures. He set out the facts relevant to the investigation and stated:-

25. The Respondent appealed to the Supreme Court. The Supreme Court upheld this aspect of the decision of the High Court. The Chief Justice in his judgment on behalf of the Court carefully surveyed the provisions of Regulation 33 of the Code of Conduct and held that the Garda authorities had not properly carried out these provisions and were in breach of their own Code. As in the instant case an investigation had been carried out and statements taken. However, the applicant was not given copies of the statements nor afforded any opportunity to challenge the evidence contained in them. He was also not informed of the seriousness of the charge against him and of the fact that it could lead to his dismissal. At page of the Report the Chief Justice stated:-

26. Miss Finlay submitted that in the instant case the Applicant was equally entitled to have the full procedures of an inquiry under the 1989 Regulations completed, with all their safeguards as to fair procedures, before he could be discharged on what was in effect purely an allegation of misconduct. She accepted that in a number of earlier cases dealing with discharge under Article 16 of the 1988 Regulations or corresponding provisions of earlier Regulations, the Court had held that it was sufficient that the Commissioner had acted bona fide, had material before him on which he could make the decision, and had not acted unreasonably, but she submitted that these cases had been surpassed by the Supreme Court's decision in McAuley.

27. As an alternative ground, Counsel for the Applicant submitted that even if it was accepted that the Applicant could properly be discharged under Article 16 of the 1988 Regulations (without the completion of the procedures under the 1989 Regulations) that procedure also must be in accordance with the general rules of fair procedure and natural and constitutional justice. In fact during the course of the investigation by Inspector O’Brien of the nightclub incident, interviews were held and statements taken from various witnesses. Garda Duffy had not seen copies of these statement or been informed in any detail of their content. He was not given any opportunity to challenge the evidence of the witnesses by cross-examination. He was not himself interviewed and the detailed allegations against him were not put to him. No full statement was taken from him. His knowledge of the allegations was confined to the brief outline contained in the Disciplinary Notice originally served on him on the 9th May, 1997. He was not fully informed of the seriousness of the charges and that they could lead to his discharge from the Force. By the time the Commissioner issued his Notice of 12th June, 1997, where the sparse details of misconduct were put in the form of a finding rather than in the form of allegations, it was clear that the Garda authorities had already made up their minds that the offences had been committed. The opportunity then offered to Garda Duffy to make submissions was, in all probability, an unsuccessful effort to bring the procedure within the bounds of fair procedures and natural justice. In view of these defects in the 1988 Regulations procedure, Counsel submitted that the Order of the Commissioner discharging Garda Duffy should be quashed.

28. Counsel for the Respondent, Mr. O hOisín, as a central point in his submissions, made a distinction between the position of a Probationer and that of a permanent member of the Garda Siochana. He submitted that a different degree of application of fair procedures and natural justice applied in the Applicant’s case from that which would apply to a fully fledged Garda who had tenure in his post. He referred to the definition of a Probationer given in the Australian High Court case of O’Rourke -v- Miller [1984 -1985] 156 CLR 342 which also dealt with the dismissal of a Probationary Constable. At page 349 - 350 of the Report the Australian Chief Justice stated:-

29. Mr O hOisín also submitted that there was a clear distinction between disciplinary proceedings under the 1989 Regulations and a discretionary discharge of a probationer under Article 16 of the 1988 Regulations. The 1989 Regulations dealt with matters of discipline and alleged misconduct; they applied to probationers and to permanent members of the Force; they provided for a range of penalties of differing severity of which dismissal from the Force was the most severe. In this they were to a large extent parallel to the disciplinary procedures applying to trainees as set out in the Code of Conduct for Student Probationers. It was these disciplinary proceedings under the Code which were analysed and found wanting in the McAuley case.

30. The power to dispense with the services of a probationer under Article 16 of the 1998 Regulations was a discretionary power given to the Commissioner to enable him to protect the high quality of the membership of the Garda Siochana. This was a matter of great importance to the general public. In this context Mr. O hOisín again referred to O'Rourke -v- Miller , where at page 353-354 of the Report, the Australian Chief Justice stated:-

31. Mr. O hOisín also referred to some of the earlier cases in this jurisdiction which dealt with the question of probation. In Delaney -v- Garvey , an unreported judgment of McWilliam J. delivered the 14th March, 1978, the services of the prosecutor, a probationer, had been dispensed with under Regulation 9 of the Garda Siochana (Appointments) Regulations, 1945. This Regulation was a previous version of Article 16 of the 1988 Regulations. At page 2 of his judgment the learned Judge said:-

32. McWilliam J. concluded that he did not accept the proposition " that I should ignore the Appointments Regulations and apply to a probationer guard the principles which might or would be applied to the dismissal of a permanent member of the Force".

33. Mr. O hOisín referred in particular to a passage in the judgment of the learned Griffin J. in the Supreme Court in The State (Burke) -v- Garvey at page 234 -235 of the Report as follows:-

34. Mr. O hOisín submits that the circumstances in the instant case are a very close parallel to the circumstances referred to by the learned Griffin J. in Burke's case.

35. Mr. O hOisín accepted that the decisions in these earlier cases had been to some extent surpassed by the Supreme Courts decision in McAuley's case . He accepted that standards of fair procedures and natural justice applied to some degree to the Commissioner's decision under Article 16. However, he contended that these standards have in fact been applied in the instant case. The Applicant had been informed of the allegations made against him. He had twice been given the opportunity to respond and had done so by a bare denial, giving none of the details which he had set out in his Affidavit grounding the present Judicial Review proceedings. He had given the names of witnesses and these witnesses had been interviewed. In the circumstances, and with the information available to him, it was open to the Commissioner to discharge the Applicant.

36. Having carefully considered the submissions of Counsel and the authorities opened to me, I would accept the distinction which Counsel for the Respondent draws between disciplinary proceedings under the 1989 Regulations and the power of the Commissioner to dispense with the services of a probationer on general grounds of unsuitability under Article 16 of the 1988 Regulations. The ground as stated in Article 16 - not likely to become an efficient and well conducted member - may well include an instance or instances of misconduct, some of which may already have been dealt with under the 1989 Disciplinary Regulations, but it is clearly not essential that misconduct be established under the 1989 Regulations before a probationer can be discharged under Article 16. (See Delaney -v- Garvey and The State (Burke) -v- Garvey) The dictum of Griffin J. in The State (Burke) -v- Garvey also establishes that it was not necessary to complete the disciplinary proceedings that had been commenced. It was, I consider, open to the Respondent to abandon the disciplinary proceedings and to deal with the Applicant under Article 16.

37. However, I also accept Miss Finlay's contention on behalf of the Applicant that in making his decision to dispense with the services of the Applicant under Article 16, the Respondent was bound by established standards of fair procedures and natural and constitutional justice. This is particularly important in the instant case where on the evidence it is abundantly clear that the sole ground for discharge under Article 16 was in fact the alleged misconduct of the Applicant at Tamango's nightclub. I do not accept that sufficiently fair procedures were applied in the Applicant's case.

38. This is echoed and emphasised by the Chief Justice in McAuley's case (at page 222 of the Report) where he stated that in that case the academic co-ordinator "failed to act in accordance with the principles of natural justice and fair procedures, which, as a minimum, required that the applicant be informed of the seriousness of the charges and the nature of the evidence against him, and that he be afforded the opportunity to challenge such evidence by cross- examination or otherwise and make submissions in regard thereto and in regard to the penalty (if any) to be imposed."

39. The Chief Justice also pointed out that prior to the making of a recommendation to the Assistant Commissioner that the applicant's traineeship be terminated "no indication had been given to the applicant that the alleged breaches of discipline were being regarded as of such a serious nature as to warrant a recommendation or suggestion from the academic co-ordinator that his contract would be terminated" (page 223). In the High Court judgment in McAuley's case which was upheld by the Supreme Court in this aspect, the learned Barr J. stated:-

40. As I have noted earlier in this judgment when outlining the facts in the instant case, all of these strictures would equally apply in the case of the present Applicant, Garda Duffy. Without the application of any of the required fair procedures outlined as being a minimum by the Chief Justice, the allegations made against the Applicant imperceptibly became findings of fact set out in the Commissioner's Notice of 12th June, 1997. At that stage the authorities made some effort to mend their hand in regard to natural justice by offering to the Applicant an opportunity to make submissions. It seems to me, firstly, that this opportunity was offered too late, and, secondly, that it was still made in the absence of any of the fair procedures outlined by the Chief Justice.

41. I find therefore that the decision of the Respondent as set out in his letter of 26th June, 1997, dispensing with the services of the Applicant with effect from the 3rd day of July 1997, was made in the absence of fair procedures and contrary to the principles of natural and constitutional justice. I will therefore grant to the Applicant the relief sought at paragraph (a) of his originating Statement, an Order of Certiorari quashing the decision of the Commissioner dated the 27th day of June 1997, wherein he dispensed with the Applicant's services with effect from the 3rd day of July 1997.