High Court of Ireland Decisions

1. This is an application for Judicial Review. The Applicant was granted leave to apply for review as to the legality of the procedures adopted by the second named Respondent in the course of an investigation by it and for ancillary orders relating to that investigation. The order was made by Mr Justice Barr on the 23rd February, 1998.

2. The facts of this matter can be fairly simply recited. The Plaintiff was in a certain public house premises as a customer on the night of the 27th June, 1997. During the course of the evening there was a raid on the public house premises by plain clothes officers searching for drugs. The Applicant was not among those searched. In the course of that raid the Applicant got into an argument with one of the Gardai and alleges that he was bundled down the stairs of the public house and thrown out of it. In the course of these last events the Applicant claims that he was beaten severely, both on the way down the stairs and outside the public house premises itself. He was put into a Garda van, taken to the Garda station but subsequently released without charge.

3. I make no findings of fact in relation to these events, particularly as to the truth or otherwise of the claims made, because they are not before me and moreover there are now outstanding charges against Mr Carlton in the District Court in respect of some or other of these, which are the subject of summonses dated 22nd December, 1997.

4. As a result of the above events, the Applicant made a formal complaint pursuant to the Garda Siochana (Complaints) Act, 1986 against certain gardai (at the time of the complaint they were not all known or identified). The complaint was lodged as having been made on the 7th July, 1997. The complaint is made on a pro forma application form with blanks provided to be filled in and in the relevant parts it states as follows:-

5. Date of incident: 27th June 1997

6. Location: Downeys Bar, Main Street, Dungarvan

7. Members complained of: first incident:

8. Man with beard from Drug Squad Waterford

9. Second Incident:

10. Gda Fitzpatrick, Gda Hunt

11. The reference to the first incident and the second incident are references to the alleged beating on the stairs and the beating outside the public house.

12. Details of complaint: Incident 1: "Severely beaten on the stairs in pub by six members . Held down for a number of minutes.

13. Incident 2: On the pavement outside the pub. Thrown to ground - face hit the kerb. Gda Fitzpatrick stood on my back - his full weight. Gda Hunt beat me on the back - my legs and ankles with a truncheon".

14. Upon receipt of the complaint the second Respondent appointed an inspector to investigate the matter. This inspector was from the same Division (Waterford/Kilkenny) as the gardai under investigation.

15. The Applicant was informed by letter dated 23rd December, 1997 from the Chief Executive of the second named Respondent that the second named Respondent had come to the view that neither an offence nor a breach of discipline on the part of any member complained of had been disclosed and that the second Respondent intended to take no further action in the matter.

16. In passing I now introduce one other matter which arises from the complaint made by the Applicant namely, that the Applicant says that the statutory requirement as to confidentiality imposed on the second named Respondent was breached in that information relating to the investigation was disclosed to third parties, inter alia, to some of the Gardaí the subject matter of the complaint, in circumstances where those Gardaí, prior to the notification of the decision to the Applicant were in a position to have summonses issued against the Applicant on the 22nd December, 1997 (one day prior to the notification date). These summonses in effect charge the Applicant with unlawfully obstructing members of An Garda Siochana.

17. It is submitted on behalf of the Applicant that the investigation was unsatisfactory and improper because:

18. These allegations are all denied by the Respondents and I will deal with their submissions in due course.

19. It is submitted on the part of the Applicant that the Applicant is entitled, pursuant to natural and constitutional justice to:

20. The importance of independence is borne out by the internal memoranda of the second Respondent, and in particular the memorandum dated 1st July, 1991. This is a memorandum exhibited to the Affidavit of Mr Sean Hurley who swore Affidavits in support of the Notice of Opposition filed on behalf of the second Respondent. It is Circular No. 24(L) 91 dated the 1st July 1991 and is addressed to each Chief Superintendent. It is entitled re: Garda Siochana (Complaints) Act, 1986 - Investigation of Complaints under Section 6(1)(a) and reads as follows:-

21. This is signed by an Assistant Commissioner, and it seems to me a reasonable conclusion to be drawn from the existence of this internal documents is that the internal rules of the Garda Siochana provide that in the ordinary course of events the provisions of Section 6 of the Act should be complied with strictly. The implication to be drawn from the circular is that it is only in exceptional cases that an Inspector rather than a Superintendent will be appointed. It is submitted on the part of the Applicant that this was not an investigation which warranted the appointment of a mere Inspector as opposed to the normal appointment of a Superintendent. It was also submitted on the part of the Applicant that the appointment actually made was also against Clause (ii) of the Circular. The Respondents contended that initially (so far as the Applicant was concerned) the Gardai were Dungarvan based, and so named and therefore not appointed contrary to (ii) of the Circular. The Applicant says the Respondent knew from the outset that the majority of Gardai were from Waterford, or should have known. It is submitted in the circumstances that the Respondents' argument has no merit because even if it was originally thought by the Respondent that the Gardai of whom complaint was made were from Dungarvan, as soon as it became clear that they were in fact from both Waterford and Dungarvan, the investigation should have continued with the appointment of a different investigating officer.

22. In connection with this submission I revert to the complaint itself. The complaint, being in a pro forma blank form format (and it seems to me a pro forma format is perfectly acceptable) does have the disadvantage that in relation to the identity of the persons complained of and in relation to the details of the complaint, the format does not lend itself to great detail. For example, in relation to the members complained of, two of the Gardai involved in the second incident were identified but only one Garda in the first incident, and then not by name but rather by description. But insofar as the first incident is complained of (in respect of which a person is identified by description) when one looks at details of the complaint it is that the Applicant was severely beaten by "six members". So it is perfectly plain from the content of the pro forma complaint itself that not all of the persons of whom complaint is made were identified on the complaint form. This may be for the very good reason that the public will not be aware of or able to identify with particularity all members of the Garda Siochana, particularly in circumstances where there is a public house raid and where the Gardai are in plain clothes.

23. It seems to me in those circumstances that before an appointment is made it is incumbent on the second Respondent so as to comply with its own internal Rules to identify the members of the Garda Siochana who were in fact in attendance at the premises where the incident is alleged to have taken place. If a separate number of Gardai representing the local stations were in attendance outside the premises (as is the case of the second incident) they should be identified. Had such an enquiry or identification been made at the outset, it seems to me probable that the person who was appointed to investigate the incident would not have been appointed from the Division (Kilkenny/Waterford), as to do so would be outside the rules adopted by the second Respondent itself.

24. The Applicant also says that the Act of 1986 requires not only that the appropriate person be appointed, but that the Board itself should supervise the investigation under the provisions of Section 6(3)(a). And further it is said that under the provisions of Section 6(5)(a) the Board may request the Chief Executive to carry out certain continuing powers.

25. It is submitted that the investigation fell short not only for the grounds set out above, but also as to the manner in which it was carried out. It is alleged that no appropriate distance was maintained between the investigating officer and the officers under investigation because the investigating officer either gave the officers information or gave it to one of the officers who subsequently used the information or (if the Affidavit sworn by Mr Hanley is correct) who thereafter came together to construct statements to ground a subsequent prosecution. It is submitted that in either event this is in breach of Section 12 of the Act. It is also submitted that it is contrary to the principles enunciated in Skeffington -v- Rooney (1997) 2 ILRM.

26. An example of this is given in Sergeant Butler's Affidavit where he stated that there was no difference between the hand-written statements and the version appearing on the Inspector's file. The question arises as to how Sergeant Butler knew this unless he had access to the file or the statements were prepared together and submitted to the Inspector in question. In either event, it is said, this example casts doubts on the independence of the investigation.

27. It is also said that insofar as the investigation itself is concerned, the Inspector did not investigate fully, did not interview Garda witnesses (who merely prepared statements) did not ask them any "hard questions" and carried out an extremely limited investigation rather than a full investigation. It was submitted that all three statements in Garda Butler's Affidavit were prepared in Waterford Garda Station where the investigation itself was being carried out.

28. Finally, it was said that the investigation was one-sided, and that the Inspector did not pay any attention to the Applicant's right to a full investigation, did not appreciate his duties under the Act and in particular denied to the Applicant his right under natural and constitutional justice to have a full and proper investigation carried out, but confined those rights to the Gardai under investigation. No reports were obtained or secured from other Gardai in attendance and the statements which were received by the Inspector from the members of the plain clothes undercover team, were not initially disclosed.

29. In legislation of this type it was submitted on behalf of the Applicant that justice must not simply be done but must also be seen to be done. The Applicant relies on The State (Hegarty) -v- Winters (1956) IR 320, in which Maguire, C J stated:-

30. The Applicant further relies on the decision of Barron J. in The State (Winnie Cole) -v- The Labour Court , unreported, 29th July, 1983 in which it was also stated that in the event that if justice is not seen to be done the Court will quash a decision of a Tribunal.

31. On behalf of the Respondents it was argued that the incident had occurred on the 27th June, 1997 when the Applicant was taken into custody (as the Garda was entitled to do). He was detained and released (as the Garda was entitled to detain and release him). It was further argued on behalf of the Respondent that the Applicant had been informed by letter of 25th July, 1997 that an investigation would be carried out, that it would be by Inspector Delaney of Waterford Garda Station and, it was argued, that the Applicant had co-operated with this investigation of which he now makes complaint.

32. In relation to the internal memorandum of the 1st July, 1991 it was submitted on behalf of the Respondents that (i) the criteria does not apply in that the Inspector appointed to carry out the investigation was not directly involved in the incident or involved in any related prosecution. On (ii) of the Memorandum, it was submitted on behalf of the Respondents that two of the members were in Dungarvan, and therefore removed from Waterford. It was argued that the underlying principle attaching to the internal memorandum is that the investigating officer should not know the Gardai, and a simple rule of thumb is adopted on the appointment of an investigating officer.

33. Finally, in relation to this internal memorandum it was submitted that the Applicant would have to show some prejudice by the appointment of the particular investigating officer, and the Applicant had not shown and was not in a position to show any such prejudice.

34. As to the appointment of an Inspector as opposed to a Superintendent, it was submitted that while the Act itself gives pre-eminence to a Superintendent, the Commissioner has a statutory entitlement to appoint an Inspector, and that the internal memorandum does no more than remind parties appointing an investigator to keep in mind the provisions of the Act. It was submitted that this is resource driven, and that the Garda Commissioner under Section 6(1)(a) of this Act was fully entitled to appoint an Inspector, and that the Respondent therefore has no ground to answer.

35. As to the manner in which the Inspector actually carried out his duties, the Respondents submitted that it was clear from Mr Hurley's Affidavit that the Inspector had made no recommendation to the Board, and further submitted that the function of the Inspector was merely to collect evidence and place this before the Board for the purposes of facilitating the Board in coming to its decision. The Respondents submitted that, contrary to what was contended for on behalf of the Applicant, the Inspector was at large as to how to investigate the matter, that the Inspector had endeavoured to track down civilian witnesses, but that Mr Carlton was not in a position to or did not volunteer to furnish names of witnesses.

36. It was further submitted that the Inspector was carrying out a purely administrative function, that his report was submitted to the Board, that in view of the fact that the Inspector carries out purely administrative function, the rules of natural and constitutional justice do not apply. The Respondents relied on the decision in O'Brien -v- Bord na Mona (1988) IR 255 and said that the Court should only interfere if the Inspector acted in a capricious or manifestly unfair manner. (See Corrigan -v- The Irish Land Commission ( 1977) IR 317 at 322 and 327). On the question whether the first named Respondent could be subject to judicial review on the basis that it reached a decision which was unacceptable, the Respondents relied on the State (Keegan) -v- Stardust Tribunal and The State (Creedon) -v- The Criminal Injuries Compensation Tribunal (1988).

37. It was also said on behalf of the Respondents that the Garda Complaints Board had before it all of the Statements in question including all of the statements of the Gardai as well as the statement of the Applicant.

38. It was further said that the tenor of the Applicant's Affidavit, in particular the statement that he was an innocent by-stander, was not sustainable, that he was not an innocent by-stander as was clear from the statements of the two Garda students whose statements had been furnished to the investigator. It was submitted that the decision of the Garda Complaints Board was not irrational and therefore there were no grounds on which a finding against it could be sustained.

39. As to the question of bias, and in particular the allegation that other parties knew of the outcome of the application prior to its notification to the Applicant, it was submitted on behalf of the Respondents that Garda Hunt in his Affidavit said he did not know the outcome, and insofar as Mr Hanley was concerned, he too indicated that there had not been a disclosure of information. It was further submitted however that Inspector Delaney had received the statements, which were capable of being used both as part of his investigation or in the context of any intended prosecutions. It was argued that Section 12 did not apply to the investigating officer at all, but only to members of the Board or staff. It was submitted that it would be pointless to prohibit disclosure of the documents contained in the Inspector's file if the same statements could be made independently to support a Summons, and therefore no bias could be claimed on the part of the Applicant.

40. It seems clear to me that the provisions of the Act of 1986 were drafted in such a manner as to ensure that an independent investigation would be carried out under the Act, and the policy behind the Act was such as to ensure that, in appointing a person to investigate a complaint, it was considered of sufficient importance to appoint a person of high standing. For that reason the provisions of Section 6 of the Act dictate that, in the normal course of events, such investigations are to be carried out by a person having a rank no less than that of Superintendent. However, there may be circumstances in which it may be appropriate for a person at a lower rank (but designated as being no lower than Inspector) to be authorised to carry out an investigation. The circumstances in which an Inspector may be appointed are readily gleaned from the provisions of Section 6 of the Act. Because of the wording of the Act and the emphasis placed on the requirement to appoint a Superintendent in all cases save where it is considered appropriate that it should be carried out by a person at a lesser rank, the Act imposes on the Commissioner an obligation, if challenged, to, in effect, justify the appointment of an officer below the rank of Superintendent.

41. The first notification to the Applicant after his complaint was lodged was by letter dated the 11th July (this is unclear it may have been the 15th July, 1997) in which it was stated as follows:-

42. This is signed by the Chief Executive of the Garda Siochana Complaints Board. On the 31st July a further letter was written under the signature of Carmel Ryan in the following terms (insofar as the relevant portions are concerned):

43. Mr Hurley, the Chief Executive of the Garda Siochana Complaints Board subsequently swore Affidavits in relation to this matter, but insofar as the appointment of an Inspector as opposed to a Superintendent is concerned, the matter is taken no further than in the original letter of 11th July. The letter of 31st July (called the 1st August in Mr Hurley's Affidavit) does not give any indication that any consideration was given to the appointment of an investigating officer below the rank of Superintendent, and no clarification of the basis for the decision of the Commissioner to appoint an Inspector (as opposed to a Superintendent) is furnished in any of the Affidavits filed. Nor is there any Affidavit from the Commissioner. It could be surmised, in the absence of any indication other than what is contained in the letter of the 31st July/1st August, 1997 that the Commissioner considered the appointment of an Inspector to be warranted in the present case. But where that very appointment is challenged, and no explanation is given, I am entitled to find that no consideration was given to the status of the appointee, either under Section 6 or under the Memorandum of the 1st July, 1991.

44. As to the position arising under the internal memorandum, it is quite correctly pointed out on behalf of the Respondents that there is a discretion in the Act which vests in the Commissioner to appoint either a Superintendent or an Inspector. However, it is equally clear that although that discretion ought not to be fettered in any way, the Garda Siochana themselves have drawn specific attention to the undesirability of appointing an Inspector as opposed to a Superintendent, and insofar as the memorandum of the 1st July, 1991 puts an interpretation on Section 6 of the Act, I am of the view that it is a correct interpretation, namely, that the relevant provision in the Act clearly weighs in favour of Superintendents carrying out the investigation. But I think perhaps the more correct interpretation of the section is rather stronger, in that not only does it weigh in favour of Superintendents, it allows for the appointment of an Inspector only where the Commissioner considers it proper and appropriate (having given consideration to the matter) to appoint such an Inspector.

45. Quite apart from Section 6 a serious issue arises in relation to the independence of the Inspector actually appointed to carry out the investigation. This of course is not a personal criticism of the Inspector, and the Applicant does not seek to criticise the Inspector personally. What the Applicant alleges is that it is not appropriate or proper nor does it allow justice to be done nor be seen to be done, in circumstances where an Inspector is appointed who is from the same District or Division as the member or majority of members complained of. Some distinction has been drawn by the Respondents between a District and a Division, but what is abundantly clear from the facts of this case is that the Inspector who was appointed was an Inspector from Waterford Station. Given that there were six people involved in one of the incidents, and two people involved in the second incident, some of them from Waterford and some from Dungarvan (in County Waterford), it seems reasonable to infer that they were all from the District or Division, whether or not there is a distinction between a District on the one hand and a Division on the other hand.

46. The internal Rules of the Garda Siochana provide that the independence of the person appointed should be clearly seen. Such a person should not be appointed if he himself has been involved in the incident complained of or involved in a related prosecution. The second circumstances in which such a person should not be appointed is if the person appointed is in the same District as the member or the majority of members under investigation. The clear principle behind this is self-evident. It is not proper for a person to be appointed to investigate where it is likely that there is either a close working relationship with the persons under investigation or an involvement in the incidents themselves. These are the internal rules of the Garda Siochana established for the protection not only of the complainant but also of the persons against whom the complaint is made. I reject the submission made on the part of the Respondent that the two circumstances are to be read together, and that it is only where a person is in the same District and has been directly involved that he or she is precluded from acting as investigators. In fairness to Counsel acting on behalf of the Respondent the difficulty involved in contending for this interpretation is acknowledged. The interpretation strains the ordinary words of the circular.

47. As applied to the present facts it seems to me that the person appointed to investigate the complaint should not have been a person attached to the Garda Station in Waterford or indeed to the Garda Station in Dungarvan. While it was contended for initially that the Respondents only knew that the Gardai against whom complaint was made were from Dungarvan, and therefore the appointment of an Inspector in Waterford was acceptable, I do not think this answers the objection. I have previously indicated the difficulties which arise in relation to the pro forma complaint form which is utilised under the provisions of the Act, and which is a useful shorthand mechanism for recording a complaint. But since in this case the very pro forma sheet in which the complaint was lodged made reference to at least six members of the Garda Siochana as well as two identified and named persons, in two separate incidents, the Respondents were under a duty, before a person was appointed, to ensure that the provisions of the memorandum of the 1st July, 1991 could be complied with properly and that the appointment would not lead to the very Rules adopted by the Gardaí being breached. I am of the view that the appointment of Inspector Delaney did not comply with the provisions of the internal memorandum of 1st July, 1991.

48. Having regard to the provisions of Section 6, I am also of the view that the appointment of Inspector Delaney, being a person at Inspector level only, was not in accordance with the provisions of the Act.

49. It was suggested in the course of the submissions on behalf of the Respondents that as of the 31st July, 1997 the Applicant had been notified that Inspector Delaney of Waterford Garda Station had been appointed and that he took part in the investigation. This appeared to raise a form of estoppel on the part of the Respondents against the Applicant, but the Statement of Opposition filed on behalf of the first named Respondent does not raise any defence of estoppel, and in the circumstances I do not have to consider whether the Applicant in fact waived his rights by taking part to the extent that he did in the investigation itself.

50. It is unclear what type of investigation might have been carried out by a Superintendent had a Superintendent been appointed pursuant to the provisions of Section 6, and it is equally unclear what the results of an investigation might have been had the investigation been carried out in accordance with the internal memorandum of the 1st July, 1991. Having regard to the findings which I have made, I do not have to come to a view as to whether the first named Respondent was correct in the finding which it reached. Having regard to the fact that any report which was furnished to the Board was furnished in circumstances which were flawed, the decision of the Board cannot stand. I leave open entirely the entitlement of the Board to consider the report of any other investigating officer who may be appointed if a further investigation is carried on. And on the question of the format of the investigation, it seems to me that this was carried out intra vires as to manner and scope and is not subject to challenge in the manner suggested.

51. I do, however, believe that the Court should express a view in relation to the question of confidentiality of the files or statements made or submitted to the investigator as part of the investigation under the Act. Section 12 of the Act provides that a person shall not disclose information obtained by him while performing functions as a member of the Board or as a member of its staff. If those statements are confidential when in the hands of members of the Board carrying out the functions under the Act, I am of the view that they are also confidential when in the hands of the investigating officer appointed by the Board to assist it in carrying out its functions. I am not satisfied that the prohibition contained in the Act can be readily avoided by the second Respondent's submission that a statement made for the purposes of the investigation is not protected because it could also have been made to support a prosecution. If the provisions of the Act are to have a meaning, it must be that the statements remain confidential, even if the makers of them could also create an identical or almost identical statement for other purposes.

52. Having found that the appointment was not in accordance with the provisions of Section 6 or in accordance with the internal rules adopted by the Garda Siochana in respect of investigations of this nature, I now turn to the reliefs sought. The Applicant was granted leave to review the legality of the procedures adopted by the first named Respondent in relation to the matter of the investigation and also was granted leave to apply in the review for all "ancillary orders relating to the investigation as shall seem meet or proper". The order does not recite the grounds on which this was granted but the following relief was sought in the original ex parte application:-

53. Having regard to the foregoing, I am prepared to make an order of prohibition prohibiting the judge of the District Court at Dungarvan or a District Court at any other District Court having seisin of the summonses entitled DPP -v- Derek Carlton and bearing the date 22nd December, 1997 or from in any way dealing with the said four summonses, other than by strike out, insofar as those summonses are based on statements made in breach of my findings on confidential information.

54. I will also make an Order quashing the appointment of Inspector Delaney by the first named Respondent and made in or around the month of July, 1997 to investigate the complaints made by the Applicant and recorded on the 7th July, 1997 at Dungarvan Garda Station.

55. I will make no Order compelling the first named Respondent to appoint a member of the Garda Siochana not below the rank of Superintendent who is not attached to the Waterford/Kilkenny District Area to carry out a fresh investigation of the allegations of the Applicant recorded at the aforesaid on the 7th July, 1997. I do not consider that the Court should usurp the role of the Board in its determinations as to whether another investigation should or ought to be undertaken.

56. I do not think I should make any Order in relation to the question of the delivery up or disclosure of documents at this time. No submissions have been made in respect of that aspect of the matter and it seems to me it can be dealt with in another forum.