HIGH COURT 

JUDICIAL REVIEW

2002 No. 796 JR

BETWEEN/

DONAL CORCORAN

APPLICANT

AND

GORDON HOLMES AND
AN GARDA SÍOCHÁNA COMPLAINTS BOARD

RESPONDENTS

Judgment of Mr. Justice Murphy dated the 5th day of February, 2004.

1.	Background
	Garda Donal Corcoran, the applicant herein, was on duty on the 6th May, 2002 at a protest march in the centre of Dublin which had become known as the “Reclaim the Streets” march.
	Complaints were made against the applicant arising out of that march.  Three of the four complaints were referred to the Director of Public Prosecutions and a part of a fourth was referred to the Garda Síochána Complaints Board, the second named respondent, of which Mr. Gordon Holmes, the first named respondent, was at all material times the chairman.
	The applicant obtained leave to bring these proceedings by order of O’Neill J. on the 2nd December, 2002.  The applicant seeks various reliefs including an order of prohibition and injunctive relief restraining the Board from taking any further steps on foot of the complaints made against him.
	The complaints were made under the provisions of the Garda Síochána (Complaints) Board Act, 1986 (the 1986 Act).  The Board is a statutory body established to deal with complaints made against members of An Garda Síochána.
	It was common case that subsequent to the said protest, there was extensive media debate.  In respect of 41 complaints made by the public, 37 were proceeded with, including the 4 above referred to against the applicant.  The complaints were made on the 6th, 9th, 14th of May and the 4th July.  
	On the 29th July, 2002 the applicant was given notice of the investigation pursuant to s. 6(5) of the 1986 Act.

2.	The Scheme of the Act
	Section 3 of the Act established the Garda Síochána Complaints Board and referred to schedule 1 which provided for nine members including a chairman.  Three of the eight ordinary members were required to be solicitors or barristers.  
	Sections 4 and 5 dealt with the receipt and processing of complaints including the informal resolution of complaints.
	The following sections deal with the investigation of complaints.  If, in the opinion of the Board, there has been a breach of discipline, then the matter is referred to a tribunal under s. 7.  Such tribunal is appointed by the Board (s. 8) and the provisions of the second schedule apply.  The tribunal consists of three persons, two of whom have not been concerned with the matter referred to the tribunal.  At least one must be a practising barrister or solicitor of not less than ten years’ standing.  It is the practice of the Board to divide its members in two panels of three members.
	Section 9 provides that the tribunal adjudicates on the substance of a complaint and may impose a penalty or may dismiss the member in respect of which a complaint has been made.

3.	Press Conference
3.1	On the 18th November, 2002, six months after the march, the first named respondent gave an interview to the RTE Radio programme 5 -7 Live on behalf of the Board as a whole.  The applicant submits that this constituted bias and prejudgment.
	The first name respondent, said:
“Unfortunately the situation was that we have film available which can identify clearly those who were not involved.  Equally, those films showed very often the backs of Gardaí who were yielding a baton with perhaps, you might say, excessive enthusiasm.  We couldn’t identify those members of the Gardaí.  But when we asked their colleagues, who are not being charged with anything, we found that each and every one of them seemed to forget who they were and we couldn’t get any identification.  We didn’t get identification in any one case from a colleague.  I suppose that speaks well of their loyalty to their colleagues.  But, unfortunately, it doesn’t speak well of their loyalty to An Garda Síochána generally because it’s something we didn’t like.”

3.2	Applicant’s reaction
	The applicant said it is clear that the first named respondent disclosed the nature of certain evidence that is video tape evidence, which came to light in the course of the investigation.  Having referred to the nature of the evidence, it was submitted that it was then interpreted by the first named respondent who judged it by publicly disclosing his view that the Gardaí utilised their batons with “excessive enthusiasm”, and “it’s something we didn’t like”.  The applicant submitted that adding all of this was highly inappropriate, it was a prejudgment.
	The applicant was entitled to a genuine apprehension in that the only person who can sit in judgment of him is the first named applicant or the board associated with the comments made by the first named applicant.
	While it was stated in reply that the first named respondent or the Chief Executive of the second named respondent, would not be sitting in judgment and would not be part of any tribunal established under s. 8, nonetheless, the applicant submitted the Board in its entirety had made the statement.  The first named respondent merely communicated the statement which was attributed to all the members of the Board.

4.	Applicant’s Legal Submissions
	Mr. Cush, on behalf of the applicant, referred to Orange Communications v. Director of Telecom (No. 2) [2000] 4 I.R. 159 at 186 as to the applicable test propounded by Keane C.J., who stated that there was:

“no room for doubt as to the applicable test in this country.  It is that the decision will be set aside on grounds of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased, i.e. where it is found that, although there is no actual bias, there is an appearance of bias.”

	This category of bias includes prejudgment of issues or involvement in more than one stage of the decision-making process.  It is illustrated in Dublin Well Woman Centre v. Ireland & Ors. [1995] 1 I.R. 408 at 420:

“In the High Court there was no suggestion of personal favour or personal interest, i.e. subjective bias of the learned High Court judge.  The actual state of the mind of the judge was and is not an issue.  What was and is an issue is the objective test: as to whether a person in the position of the appellant in this case, being a reasonable person, should apprehend that his chance of a fair and independent hearing of the question at issue does not exist by reason of the previous non-judicial position, statements and actions of the learned High ‘Court judge on issues which were the kernel of this case.”

	Reference was made to O’Neill v. Irish Hereford Breed Society Limited [1992] 1 I.R. 431 at 452:
		
“. . . It seems to me inescapable that those members of the editing committee who attended the meeting . . . had prejudged at least some of the crucial facts which fell to be decided by the Council . . . and had committed themselves to a view as to the consequences which should flow from their decision.  On the face of it, this constitutes bias consisting of prejudgment.  It is not argued that such bias would have to be tolerated on the basis of the doctrine of necessity.”

	In O’Neill v. Beaumont Hospital [1990] I.L.R.M. 419 at 432, attention had been drawn to the remarks that the case against Mr. O’Neill “was overwhelming” which, counsel say, was the final point that the entire committee had committed themselves to supporting their Chief Executive, which precluded any reasonable expectation of a fair hearing by the committee.  Notwithstanding, Murphy J. at 435 concluded as follows:
“It seems to me that the application has not made out a sufficient case to warrant this court exercising its judicial discretion in his favour so as to prevent the inquiry proceeding at all.  In my view, no such order should be made.  In refusing this application it must be made clear that I am not warranting the appropriateness of the manner in which the inquiry is conducted.  If the decision reached at the conclusion of the inquiry does happen to be adverse to the applicant, it would be open to him to seek a judicial review of the decision on any grounds which then arise.  
In these circumstances it seems to me that the application should be refused.”

	The Supreme Court (Finlay C.J. with Walsh and Griffin JJ. concurring) held at 439 in relation to the Chairman:

In those circumstances, I take the view that applying the test which I have outlined in short terms and which I believe to be the appropriate test in this case, that a person in the position of the plaintiff, who is a reasonable man and not either over-sensitive or careless of his own position, would have good grounds for a fear that he would not get, in respect of the issues involved, from a body which included the Chairman, an independent hearing.”

	In relation to the other members of the Board the court held as follows (p. 440):
“With regard to the broader contention made on behalf of the appellant that those statements at the meeting, coupled with the reference to the Chairman’s remarks at the meeting that he was glad of the unanimous ratification of the decision of the Chief Executive Officer, meant that the entire Board was tainted by the fault or prejudgment, I reject them.  I think they are not a reasonable inference to be taken from the minutes; I think they fail to distinguish between ratification of what incorrectly or mistakenly had been done and a judgment on the issues which had been heard.  I think that in relation to this last point regard must be had to the doctrine of necessity.  It is not a dominant doctrine, it could never defeat a real fear and a real reasonable fear of bias or injustice but it is a consideration in relation to the question of the entire Board being prohibited, for if that were to be done there can be no other machinery by which something which is of great importance both to the board of the hospital and the plaintiff and I might add, to the public who will attend the hospital, namely the continuance or non-continuance of the plaintiff’s services in the hospital, can be determined in accordance with the terms of the probationary agreement.  In those circumstances I would allow the appeal to the extent of substituting for the order of the High Court an order by way of injunction restraining the Chairman and the two named members of the Board of Management, if they still are members of the Board of Management, from taking part in any meeting of the Board of Management in which the question of the appropriate decision to be issued by the Board under clause 11 of the contract with the plaintiff is considered or decided.”

	Finally, reference was made in Re Medicaments and Related Classes of Good (No. 2) [2001] 1 W.L.R. 700 where all the members of a board were disqualified.  During the hearing by the Restrictive Practices Court of an application by the Director General of Fair Trading, a lay member of the court applied for a position with an economics consultancy firm.  On the advice of the presiding judge, the lay member sent a personal statement to the parties informing them of her position.  The Trade Association, in response to this communication, applied to the court for orders requiring the lay member to recuse herself on the grounds of her apparent bias and for the other members of the court to withdraw from the case on the grounds that they were infected thereby.  The House of Lords held that a fair minded observer would apprehend that there was a real danger that the lay member would be unable to make an objective or impartial appraisal of the expert evidence placed before the court.  Given the advanced stage of the hearing, the lay member must have discussed the economic issues with the other members of the court.  The House of Lords therefore concluded that it was inevitable that the decision to disqualify the lay member carried with it consequences whereby the other two members of the court should also stand down.

5.	Submissions on behalf of the respondents. 
Mr. Hurley, the Chief Executive of the Board, explained, in his affidavit, that the Board considered that the level of public interest in the complaints made it reasonable and appropriate for the Board, through its Chairman, to indicate in the press conference following the Board meeting of the 11th November 2002, the progress which had been made in dealing with the complaints.  It was perfectly entitled to issue the press release and to hold a press conference.  It had not acted unlawfully or in breach of any provision of the 1986 Act nor otherwise in breach of any right enjoyed by the applicant.  No member of the Gardaí was identified as being the subject of any complaint nor of any decision of the Board.  The comments addressed the general implications of the Board’s investigation.  Nothing said would prejudice the taking of any or any further action in relation to the complaints.  The Chairman acted in accordance with the wishes of the Board.  There were no improper motives.
The Board were not precluded from organising a press conference.  The decision of Geoghegan J. in Zoe Developments Limited v. D.P.P. and National Authority for Occupational Safety, unreported decision of the 3rd March, 1999, stated no exception could be taken to any other part of the press release of the National Authority for Occupational Safety, save two references to previous convictions of the applicant one month before a criminal prosecution was listed.
With regard to the issue of fair hearing, it was submitted that such right was protected by the provisions of the second schedule to the 1986 Act in relation to the three members of the tribunal, two of whom must be members of the Board who had not any prior involvement with the matter referred to the tribunal.  The Chairman does not sit on such a tribunal.
It was submitted that there could be no question of any bias, whether actual or perceived, on the part of the tribunal.  Reference was made to Denham J.’s decision in Bula Ltd. v. Tara Mines Ltd. (No. 6) [2000] 4 I.R. 412 at 439, regarding the objective test.  That was whether a reasonable person, in the circumstances, would have a reasonable apprehension that an applicant would not receive a fair trial of the issues.  In relation thereto, Finlay C.J. in Z v. D.P.P. [1994] 2 I.R. 476, stated:

“. . . that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge.  The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.” (at 507)

	Counsel for the respondent referred to Zoe Developments Ltd. v. D.P.P. and to Redmond v. D.P.P. [2002] 4 I.R. 133, where applications to restrain the trials on the grounds of significant pre-trial publicity failed.  In the case of a tribunal such argument would be more difficult to make particularly, as in this case, where the members of the tribunal would not have had a prior involvement in the procedure.

6.	Decision of the Court
The legal test of bias is succinctly set out in Orange Communications and in Bula.  The issue of prejudgment in respect of a single person in Wellwomen and in respect of a board in O’Neill v. Irish Hereford Breed Society.  In O’Neill v. Beaumont the Supreme Court distinguished between the prejudgment of various members of a board while in the circumstances of Medicaments given the advanced stage of the hearing the involvement of the disqualified lay member caused the other two members to be stood down.  In the present case no tribunal had been formed.  The first named respondents would not, in any event, be part of such tribunal.
	The second named respondent was within its powers to make a public statement to the same extent, and subject to the same limitations as the National Authority for Occupational Safety in the Zoe Developments case.  Indeed they may very well have had a duty to make comments in relation to matters of public concern within its remit.  
	It is for the applicant to establish that there is a real risk (see Z v. DPP).
	The net issue in this application is whether the general remarks made by the first named respondent, the Chairman of the second named respondent, constituted a prejudgment of issues which are to be determined by a tribunal, as yet undetermined, of the Board which would not include the first named respondent.
	While it is accepted that the Chairman made these remarks following a meeting of the Board and with its authority, the remarks related to general matters concerning to the investigation of complaints in relation to the “Reclaim the Streets” march.  That is to say it did not refer to nor could the applicant be identified in relation to the remarks made.  Moreover, it seems clear that the remarks related to the investigation stage and not the adjudication stage following upon the complaints.
	The provisions of the second schedule in relation to the panels of tribunals constituted from the Board provide a mechanism whereby the members of the tribunal selected would not have had any involvement in the investigation stage.
	Moreover, in the present case, the Board had determined that the Chief Executive, Mr. Hurley, was charged with the investigation.  He cannot be a member of a tribunal and, indeed, has so averred.  
	The remarks made, did not refer particularly to the applicant.  The Chairman himself does not, and has so averred, constitute part of any tribunal.
	The Chairman had spoken with the authority of the Board, reflecting the findings of the general matters referred to.  Such remarks, in the court’s judgment, do not relate to any adjudication process or to any complaint against a particular member.  Paragraph 1(b) of the second schedule to the 1986 Act requires two of the three members of a tribunal to be members “who have not been concerned with the matter referred to the tribunal”.  The matter being referred to the tribunal is part of the fourth complaint (the other part being subject to further enquiries).  It seems clear that the adjudication of this, or any particular complaint, against the applicant has not yet been either referred to any tribunal nor prejudged by the remarks made by the first named respondent nor the press release issued by the second named respondent.
	The applicant says that he is prejudiced with regard to potential witnesses who were referred to in the interview.  The references were: “We didn’t’ get identification in any one case from a colleague” who, he had previously said, were not charged with anything.  In the circumstances their testimony would be unlikely to be of use.
	It seems to me that, on the basis of the legal authorities referred to, that there is no evidence of bias nor of prejudgment in relation to the adjudication process which has not yet begun.
	In the circumstances the application is refused.