High Court of Ireland Decisions

1. On the 10th July 1995, the Applicant, Declan Healy was admitted to the Garda Síochána Training College at Templemore Co. Tipperary as a Trainee Garda. Having completed his Phase 3 training he was, “attested” to Bridewell Garda Station in the Dublin Metropolitan District of An Garda Síochána. This means that he was given the right to wear Garda Uniform and permitted to carry a warrant card and was empowered to carry out such public duties as his superior officers might direct.

2. On the 5th October 1997, Probationer Garda Healy, as acknowledged by his signature on the document, received written notification under Section 4 (4) of the Garda Síochána (Complaints) Act 1988 of a complaint made against him on the 22nd July 1997 by Patrick Kelch of two assaults and a denial of access to a Doctor and to a Solicitor all incidents alleged to have occurred on the 20th July 1997. This notification was given by Chief Superintendent R.V. Kelly of the North Central Division of An Garda Síochána.

3. On the 28th August 1997, Inspector Frank Keavey of the Dublin Metropolitan Area Complaints Section had been appointed to carry out an investigation into the complaints of Patrick Kelch and he furnished a Report on the 20th October 1997. The matter was referred to the Garda Síochána Complaints Board. By a letter dated the 11th May 1998 Probationer Garda Healy was advised by the Deputy Chief Executive of the Board that the Complaint of Patrick Kelch had been referred by the Board to the Director of Public Prosecutions who had decided not to institute proceedings against Probationer Garda Healy. However, the letter continued that as the Board considered that a non-minor breach of discipline on the part of Probationer Garda Healy might be involved, the matter was being referred to a Tribunal for hearing and determination. In the events which occurred this hearing did not in fact take place.

4. On the 3rd June 1998 Probationer Garda Healy, as similarly acknowledged received a similar notification from Chief Superintendent W.I. Rice, of the same Division, of a complaint made by David Keogh of an alleged assault on him by Probationer Garda Healy on 17th February 1998 which he alleged occurred at Bridewell Garda Station in the presence of three Prison Officers to one of whom the complainant, himself handcuffed, was further handcuffed.

5. On the 11th March 1998 Inspector John Keenan of the Dublin Metropolitan Area Complaints Section had been appointed to carry out an investigation into the complaint of David Keogh and he furnished a Report on the 8th July 1998. In his Report Inspector Keenan sets out that he interviewed the Applicant whom he cautioned in the usual manner and invited to provide a cautioned statement. He reports that Probationer Garda Healy did not make a cautioned statement but later furnished a written report which is either paraphrased or summarised by Inspector Keenan in his Report. Inspector Keenan states in his Report that on the same day as he interview Probationer Garda Healy he served on him a copy of what is described as a, “Form G.S.C. 3”, and Probationer Garda Healy signed a copy of this form acknowledging this service on him. I believe that I am entitled to infer that this is the notice to which reference is made in the immediately preceding paragraph of this Judgment as the notice is designated, “G.S.C. 3”., and is signed and dated 3rd June 1998 under the recital, “I Declan Healy - Rank Garda Reg No., 26463f., hereby acknowledge receipt of this document”.

6. On the 13th July 1998 the matter was referred to the Garda Síochána Complaints Board. On the 9th August 1998 the Applicant was summoned to the office of Inspector Horan, and informed that he was to be charged with assaulting David Keogh contrary to the provisions of Section 3 of the Non Fatal Offences Against the Person Act 1997. A Summons was issued on the 11th August 1998 on the complaint of the Director of Public Prosecutions at the suit of Inspector Flor Horan returnable for the 29th October 1998.

7. By a letter dated the 19th of August 1998 to the Assistant Commissioner “B” Branch Dublin Metropolitan Area (North Central), Chief Superintendent W.I. Rice stated that having considered the investigation files in respect of the complaints of Patrick Kelch and David Keogh and based on the statements made by Prison Officers and medical reports:

8. In his original assessment of the Applicant dated the 7th July 1998 in his capacity as the Applicant’s Divisional Officer, Chief Superintendent W.I. Rice had reported that:-

9. By a letter dated the 19th August 1998 an Assistant Commissioner of An Garda Síochána wrote to the Deputy Commissioner in charge of Administration. In this letter he gave a brief résumé of the Applicant's history in An Garda Síochána and of the allegations now made against him and,

10. He stated that he believed that the Applicant had struck and injured David Keogh. He stated that in the case of Patrick Kelch as the only evidence of the alleged assault was that of the complainant himself it might be considered a, “weak enough” case, but nontheless he considered that the Applicant had a case to answer. The letter then continued:-

11. By a Notice dated the 24th August 1998 the Commissioner of An Garda Síochána advised the Applicant that the two allegations had been brought to his attention; that the matters were serious and that he had consider and decide pursuant to Regulation 16 of the Garda Síochána (Admissions and Appointments) Regulations, 1988, as amended, whether the Applicant was likely to become an efficient and well conducted member of An Garda Síochána. The Notice then continued as follows:-

12. The Applicant admits that he was handed this Notice by Superintendent Blake on behalf of the Commissioner of An Garda Síochána at 10.45 am on the 26th of August 1998.

13. The 26th August 1998 was Wednesday and the 30th August 1998 being Sunday the Applicant draws to the attention of the Court that he was therefore being afforded only five days, but not five clear days in total, and only two and a half working days within which to read and evaluate what was in those files and to consider, formulate, type and deliver his response, - a full response having being indicated by the Notice.

14. The Applicant decided to seek legal advice from Mr. Patrick Dorrian, Principal of the firm of P.A. Dorrian & Company Solicitors, at Main Street, Buncrana Co. Donegal. Mr. Dorrian is a Solicitor retained by the Garda Representative Association which also represents probationary members of An Garda Síochána. On telephoning Mr. Dorrian's Office the Applicant was advised that Mr. Dorrian was on vacation at the Imperial Hotel Ballyshannon Co. Donegal. The Applicant made contact with Mr. Dorrian at his hotel and Mr. Dorrian agreed to see the Applicant that same day, the 26th August 1998.

15. The Applicant drove to Ballyshannon and met Mr. Dorrian at his hotel at approximately 21.00 hours. His consultation with Mr. Dorrian lasted until approximately 23.00 hours during which he gave the files to Mr. Dorrian. Mr. Dorrian advised the Applicant to apply immediately for an extension of time. The Applicant returned to Dublin. The following morning he had a short letter typed in the Garda Station and he personally handed this letter addressed, “Sergeant I.-C., District Courts”, to the relevant Officer at Bridewell Garda Station on Thursday the 27th August 1998. On the following day, Friday 28th August 1998 Mr. Dorrian contacted his Secretary who was also on vacation. He asked her to return to the office of the firm in Buncrana and to send by fax and by post to the Commissioner of An Garda Síochána a letter which he then dictated to her by telephone. These details of the circumstances surrounding the preparation of the Applicant's response to the Notice dated 24th August 1998 are not set out in the Affidavit of the Applicant sworn in these proceedings on the 19th October 1999 or in the Affidavit of Mr. Dorrian, sworn in these proceedings on the 19th February 1999 but with the consent of Counsel for the Respondent were made known to the Court by Counsel for the Applicant during the course of his submissions to the Court. The pertinent section of the letter delivered by the Applicant on the 27th August 1998, - the photocopy furnished to the Court is undated and unsigned, - stated as follows:-

16. The fax and letter from P.A. Dorrian and Company dated 28th August 1998 raised a number of issues, namely:-

17. This letter went on to request that the Applicant’s solicitors be furnished with various indicated reports and statements. It is now acknowledged in a Supplemental Affidavit sworn by the Applicant on the 24th of May 2000 that these documents had in fact being furnished to the Applicant on Wednesday the 26th August 1998 with a copy of the Notice dated the 24th August 1998. The Applicant admits that an error on his part which continued up to and during the hearing of this Application and which caused me to adjourn the hearing, led him to give incorrect instructions in this regard to his legal advisors for which confusion he apologises to the Court.

18. A letter dated the 1st of September 1998 addressed to P.A. Dorrian & Company, Solicitors, 24-26 Upper Ormond Quay, Dublin 2, which is the address of that firm’s Town Agents, Messrs. Pearts, and signed by an Assistant Commissioner of An Garda Síochána reached Mr. Dorrion on 3rd September 1998. This letter enclosed a number of additional reports, minutes, a copy Summons and a photograph of David Keogh which Counsel for both parties to this application agree was a photograph of David Keogh taken at 3.15 on the 17th of February 1998 showing alleged injuries to his face. This letter then went on to state as follows:-

19. A letter dated the 4th September 1998 from P.A. Dorrian & Company, Solicitors, Main Street Buncrana Co. Donegal, addressed to the Commissioner of An Garda Síochána set out, “our client’s submissions in response to your letter of the 24th August 1998”. The Court was informed by Counsel for the Respondent that this letter was received by fax at approximately 13.00 hours on the 4th September 1998. The photocopy letter furnished to the Court bears an impressed stamp carrying the date, “07.Sep.1998” and I believe that the Court may reasonably infer that this was the date when the letter was received in the ordinary course of post.

20. As regards the allegations of Peter Kelch, it was submitted by the Applicant that Peter Kelch did not put his version of the events before the District Court and as he had been convicted by that Court and as the Director of Public Prosecutions had not initiated a prosecution against the Applicant, the matter had been adjudicated on by the Judiciary and by the Director of Public Prosecutions and was accordingly res judicata. As regards the allegation by David Keogh it was submitted that this matter was sub-judice, that the Applicant was entitled to the presumption of innocence and that for the Applicant to be expected to reveal his defence prior to the conclusion of the prosecution case in the District Court proceedings would be predjucial to his rights and to due process of law. This is I believe an accurate summary of the submission of the Applicant to the Commissioner of An Garda Síochána as set out in the above letter dated 4th September 1998.

21. On the 9th September 1998 Inspector Michael Burke telephoned the Applicant and as a result of this telephone conversation he met with the Applicant at approximately 18.50 hours at Bridewell Garda Station and served on him a Notice dated 9th September 1998 in the following terms:-

22. For the sake of completeness and as this Judgment is a public document I should record that the case against the Applicant was dismissed at the hearing before the District Court as already stated and the Garda Siochána Complaints Board, in the events which occurred, did not proceed with the Tribunal hearing.

23. Before dealing further with this case, I wish to set down a strong recommendation which I hope will in the future be observed by all applicants seeking Judicial Review where a failure to offer sufficient time is one of the principal or is the only basis upon which the exercise of its powers by the Court is sought. The applicant in every case should exhibit and formally verify in the grounding Affidavit a Schedule of times and events setting out briefly and in chronological order the sequence of the facts upon which the applicant relies to establish such an alleged failure. If the respondent does not agree with all or any part of what is contained in this Schedule, then the area or areas of disagreement may be identified in the replying Affidavit, otherwise the Court may proceed to apply the law to the facts as set out in the Applicant's Schedule. If the parties are unable to agree as to some material date or time the issue thus isolated may rapidly be determined by oral evidence heard pursuant to Notices to Cross Examine.

24. In the present case an unacceptably large amount of public time was taken up in identifying the steps taken by each of the parties and the dates and times upon which documents were sent and received. The major degree of blame for this unacceptable state of affairs lies with the Applicant. However, the Respondent is not altogether blameless. There appears to have developed, in this case at least, an extraordinary practice within An Garda Siochána when exchanging documents or correspondence for the writer not to date or cause to be dated the letter, form or memorandum. A date stamp is usually found imprinted on the letter, form or memorandum but as the purpose of the date stamp is not stated by the imprint one is left to speculate as to whether this date represents the date of writing or typing, the date of dictation, the date of posting, the date of delivery or the date of actual receipt by the addressee of the document. One also had to consider when the date stamp was itself imprinted on the relevant document.

25. On the 22nd February 1999 the Applicant was given liberty to seek Judicial Review in the form of an Order for Certiorari upon the following grounds:-

26. In my Judgment, the principles of Law which this Court should and in the context of decisions of the Supreme Court, must apply in arriving at its Judgment on this application are to be found in the following cases:-

27. In my Judgment, these cases establish that whenever circumstances arise in which it becomes necessary to investigate the conduct of a Probationer Garda and whenever that conduct raises issues which even if not amounting or likely to amount to misconduct as such are yet deemed to be sufficiently serious as possibly to warrant the termination of his or her services, the Probationer Garda is entitled as a legal right and not as a matter of grace and favour to the following procedures and protections.

28. The Probationer Garda must be given the reasons for any investigation being carried out so that he or she may have an opportunity of making a full response. The Probationer Garda must be alerted to the perceived gravity of the matter and if the possibility of dispensing with his or her services was being or was reasonably likely to be considered this should be indicated to him or her. The foregoing information must be furnished to the Probationer Garda at the time of his or her first being interviewed or invited to make a Statement or report whether cautioned or otherwise whichever should first occur. This information must be furnished, if not already given, to the Probationer Garda before any report, statement or recommendation is completed or made by the Officer conducting the investigation or by any other Superior Officer of the Probationer Garda in connection with the investigation. In all cases the information must be furnished before the matter is referred to the Commissioner of An Garda Siochána for the purpose of considering whether a Preliminary Notice should be given to the Probationer Garda advising him or her that the Commissioner of An Garda Siochána was considering exercising the power of terminating the services of the Probationer Garda vested in the Commissioner by Regulation 16 of the Garda Siochána (Admissions and Appointments) Regulation, 1988, (as amended).

29. The following information must be given to the Probationer Garda at the earliest practicable opportunity and in any event before the matter is referred to the Commissioner of An Garda Siochána for the purpose of considering whether or not a Preliminary Notice should issue, that is, all statements made in relation to the matter by complainants, witnesses and others; any reports or recommendations adverse to the Probationer Garda and any other documents and records necessary to a proper understanding of the factual situation.

30. Before any report following on an investigation is completed and before any report or recommendation is made to the Commissioner of An Garda Siochána in respect of the Probationer Garda by any Superior Officer of the Probationer Garda, that Probationer Garda must be given a reasonably adequate opportunity of making whatever response he or she considers appropriate, including offering an explanation or justification for his or her conduct and disputing or contradicting any specific allegations made against him or her. For the purpose of making such response the Probationer Garda must be give a reasonable time within which to consider the matter, to seek advice from members of the Legal Profession, to obtain statements, to elicit facts in mitigation from persons who have already made statements, reports or recommendations and to prepare submissions regarding the evidence and additionally or alternatively regarding the appropriateness of any intended or contemplated decision terminating his or her services with An Garda Siochána. The Probationer Garda is entitled to seek an opportunity of challenging any evidence against him or her by cross examination, but in my Judgment, in the majority of cases the Commissioner of An Garda Siochána would be justified in not acceding to such a request.

31. Should the Commissioner of An Garda Siochána decide that it is an appropriate case in which to issue a Preliminary Notice, this Notice should state the reasons why the Commissioner is considering exercising the powers vested in the Commissioner by Regulation 16 of the Garda Siochána (Admissions and Appointments) Regulations, 1988. The Probationer Garda must then be afforded a further reasonable period of time within which to make such further response as he or she is advised or considers appropriate. Any statements, reports, recommendations or other relevant documents or records which were not in being at the date of any previous submission or response made by the Probationer Garda or on the date when an opportunity of making such a submission or response was afforded to him or her must be furnished to the Probationer Garda.

32. What is or is not a reasonable period of time will vary with the facts of each individual case. An important consideration will be whether the Probationer Garda made or was afforded a reasonable opportunity of making a previous submission or other response. The matter cannot be considered solely from the point of view of the Probationer Garda but must also take into account the obligation of the Commissioner of An Garda Siochána in the public interest to maintain an efficient, responsible and disciplined police force and the time constraint imposed by the non extendable two year probationary period provided for by Regulation 15 of the Garda Siochána (Admissions and Appointments) Regulations, 1988.

33. If the Probationer Garda seeks a deferral of the decision of the Commissioner of An Garda Siochána, or if any submission or response made by the Probationary Garda ought reasonably to be construed as amounting to no more than an application for such a deferral, and such deferral is refused, then the Probationer Garda should be given a fresh period of time within which to furnish such submission or response as he or she may be advised or considers appropriate.

34. The object of the Court in enunciating these principals is to ensure the sort of openness and fairness in the decision making process without which any conclusion however it may otherwise seem correct, appropriate or even laudatory is nonetheless fatally tainted with injustice and essentially and irresistibly bad.

35. Before the 19th August 1998, when Chief Superintendent W. I. Rice furnished his Revised Report and the Assistant Commissioner of An Garda Síochána also furnished his Report to the Commissioner of An Garda Síochána, both recommending that the Commissioner dispense with the services of the Applicant, the Applicant had not been informed that such termination of his membership of An Garda Síochána was being actively considered and had not been given any opportunity of justifying or explaining his actions or omissions on the occasion of the alleged assault on Patrick Kelch on the 20th July, 1997, and on David Keogh on the 17th February, 1998, or of offering anything in mitigation.

36. During the course of the investigations carried out under the provisions of the Garda Síochána (Complaints) Act 1986, as a consequence of the complaints made by Patrick Kelch and David Keogh, the Applicant furnished a written report on 12th October 1997 to Inspector Francis Keavey, investigating the complaint of Patrick Kelch and a further written report in November 1997. He declined to furnish a cautioned statement to Inspector John Keenan investigating the complaint of David Keogh but did furnish a written report to Inspector Keenan. All thirteen members of An Garda Síochána involved in the incidents which led to these two complaints made written reports and the three Prison Officers involved in the incident relating to David Keogh made statements to the Inspectors carrying out the investigations.

37. In my Judgment it is reasonable to infer that at the time he made these reports, the Applicant must have been aware that the complaints could have potentially serious consequences for him. However, I accept his evidence that the first time he appreciated that his career in An Garda Síochána was seriously and immediately at risk was on the 26th August 1998 when he was handed a Preliminary Notice dated the 24th August 1998 invoking the provisions of Regulation 16 of the Garda Síochána (Admissions and Appointments) Regulations 1988.

38. I further accept his evidence that up to this date he considered that though serious allegations had been levelled against him no findings of fact had been, that he had an excellent record as a Trainee and then as a Probationer Garda and that at the very most a penalty under the Garda Síochána (Disciplinary) Regulations, 1989, would be imposed in his case. His actions immediately after he received the Preliminary Notice lend corroboration to these assertions.

39. In these circumstances, in my Judgment, the reports made by the Applicant to Inspectors Keavey and Keenan, though exculpatory could not reasonably be regarded as complete or fully informed justifications or explanations for his actions or omissions on the 20th July 1997 and 17th February 1998, much less as pleas in mitigation. These reports merely addressed the facts from the Applicant's perspective. He was not advised before he furnished these reports that in addition to the truth or falsity of the allegations the likelihood regardless of those findings of his becoming an efficient and well conducted member of An Garda Síochána was also seriously an issue. He never had the opportunity of being aware of the conclusions reached by Inspector Keavey or Inspector Keenan or of the Recommendations unfavourable to him which Chief Superintendent W. I. Rice and the Assistant Commissioner intended to furnish to the Commissioner of An Garda Síochána.

40. He was not afforded an opportunity of considering the various other reports statements and documents then available, of taking legal advice in respect of them and his position generally, or of endeavouring to make contact with any of the persons who had furnished reports or made statements in the hope of securing some concessions, admissions or evidence which he might wish or be advised to put before the Commissioner of An Garda Síochána. In my Judgment, the Commissioner of An Garda Síochána was invited in this case to make a determination whether or not to issue a Preliminary Notice for the purpose of Regulation 16 of the Garda Síochána (Admissions and Appointments) Regulation 1988, on recommendations of his Senior Officers in which allegations made against the Applicant had become accepted as facts and conclusions had been reached which the Applicant had no opportunity of addressing or challenging and in respect of which the Applicant had not been afforded any sufficient or proper opportunity of being heard in his own defence. In my Judgment the procedures adopted in this case were fatally flawed ever before the matter reached the desk of the Commissioner of An Garda Síochána for a decision as regards the issuing of a Preliminary Notice and whatever occurred thereafter could not remedy this deficiency.

41. In my Judgment the period allowed to the Applicant by the Preliminary Notice, as extended, within which to make a submission to the Commissioner of An Garda Síochána as to why an Order should not be made pursuant to Regulation 16 of the Garda Síochána (Admissions and Appointments) Regulations, 1988 dispensing with his services as a member of An Garda Síochána was altogether insufficient. The initial time allowed for this purpose was from Wednesday 26th August 1998 to Sunday 30th August 1998 inclusive. This was extended to 5 pm on Friday 4th September 1998 by a letter dated the 1st September 1998 which I accept was not received by Mr. Dorrian, Solicitor for the Applicant, until the 3rd of September 1998. The author of this letter was the same Assistant Commissioner who by letter dated the 19th of August 1998 recommended to the Commissioner of An Garda Síochána that the Applicant’s services with An Garda Síochána be terminated.

42. The Respondent had to make a decision and communicate that decision to the Applicant not later than the 12th of September 1998 after which the Respondent would be unable to exercise the powers vested in the Respondent by Regulation 16 of the Garda Síochána (Admissions and Appointments) Regulations 1988. However, I do not consider that this difficulty as regards time is a proper matter to be taken into account by the Court in the circumstances of this case because in my Judgment this shortage of time was a matter for which the Senior Officers of An Garda Síochána were entirely to blame.

43. Inspector Keavey's Report in respect of the complaint of Patrick Kelch was furnished on the 20th of October 1997 and Inspector Keenan's Report in respect of the complaint of David Keogh was furnished on the 8th of July 1998. Despite Inspector Keenan's conclusion that the claim of David Keogh that he was struck by the Applicant was true, a period of six weeks was permitted to elapse before Chief Superintendent W.I. Rice and the Assistant Commissioner furnished their recommendations to the Commissioner of An Garda Síochána on the 19th August 1998. In his recommendation the Assistant Commissioner expressly adverted to the importance of the 12th of September 1998 but yet a further week was allowed to pass before the Preliminary Notice was handed to the Applicant who was then expected to do everything possible to save his career in An Garda Síochána within a period of ten days, inclusive of the day of receipt of the Preliminary Notice and the day of delivery of the submission.

44. If the Applicant had been afforded a proper opportunity of dealing with the matter in the manner in which I have already indicated between the 8th of July 1998 and the 19th of August 1998, the time allowed for a further submission after the 26th of August 1998 might in view of the 12th of September 1998 deadline be just about acceptable. However, in the circumstances of what occurred in this case the time allowed to the Applicant to make such a vital submission with such tremendous consequences for his future was altogether insufficient. In my Judgment the Garda Siochána Authorities could not, by reason of their own failure to act with sufficient promptness, create a situation where by the reason of the danger of overreaching the probationary period and thereby voiding the rights of the Commissioner of An Garda Siochána under Regulation 16 of the Garda Siochána (Admissions and Appointments) Regulations, 1988, the Applicant should be denied a sufficient time within which to properly consider, prepare, and present a, "comprehensive response". It was utterly futile ensuring in compliance with the decision of McGuinness J. in Duffy -v- The Commissioner of An Garda Siochána (10th July 1998 unreported/Judgment available), that the Applicant was furnished with all relevant statements documents and records when he was not afforded a sufficient time within which to properly consider and respond to that information.

45. Contrary to what is expressly stated at paragraph 37 of the Affidavit of Patrick Dorrian sworn on behalf of the Applicant on the 19th February 1999, in my Judgment a submission was made by the Applicant through the firm of P.A. Dorrian and Company, Solicitors, on the 4th of September 1998. However, in my Judgment, this "submission" could not reasonably be construed as anything more than yet a further demand for a deferral of his decision by the Commissioner of An Garda Siochána pending the hearing and determination of the District Court proceedings against the Applicant on the 27th of October 1998. It is at once remarkable that this document so vital to the interests of the Applicant does not even attempt to deal with the facts or merits of the matters set out in the Preliminary Notice, or offer anything by way of justification explanation or mitigation. In my Judgment this so called, "submission" should have been regarded by the Respondent as a further demand for a deferral of his decision, and having decided, as he obviously did, not to accede to this demand the Respondent should have so advised the Applicant and afforded him a further opportunity of making a further submission or response.

46. I am satisfied that the Applicant was not afforded a proper hearing or fair procedures in this matter and that accordingly the decision of the Respondent served on the Applicant on the 9th of September 1998 must be set aside. I do not consider it necessary to address the seventh ground upon which the Applicant was permitted to seek Judicial Review and accordingly I express no opinion on this issue. As was pointed out by O'Flaherty J., in the course of his Judgment in the case of Daniel Cleary -v- The Commissioner of An Garda Siochána (13th of July 1998; Supreme Court; Hamilton C., J., and Barron, J., NEMO. DISS.,), this does not mean that the Applicant will necessarily be continued in An Garda Siochána and this Judgment does not provide any basis for a claim for damages arising out of the impugned decision of the Respondent. The Respondent must now establish a new inquiry and reconsider the matter anew in accordance with the principles of natural and constitutional justice.