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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Purdy -v- Commissioner of an Garda Siochána [2013] IEHC 141 (11 April 2013) URL: http://www.bailii.org/ie/cases/IEHC/2013/H141.html Cite as: [2013] IEHC 141 |
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Judgment Title: Purdy -v- Commissioner of an Garda Siochána Neutral Citation: [2013] IEHC 141 High Court Record Number: 2012 935 JR Date of Delivery: 11/04/2013 Court: High Court Composition of Court: Judgment by: Kearns P. Status of Judgment: Approved |
Neutral Citation [2013] IEHC 141 THE HIGH COURT JUDICIAL REVIEW [2012 No. 935 JR] BETWEEN ANTHONY PURDY APPLICANT AND
COMMISSIONER OF AN GARDA SÍOCHÁNA RESPONDENT JUDGMENT of Kearns P. delivered on 11th April, 2013 These proceedings arise from a decision of the respondent made on the 15th October, 2012 to dismiss the applicant from his position as clerical officer in An Garda Síochána. They were commenced by leave of the High Court (Peart J.) granted on the 12th November, 2012. A stay on the order to dismiss the applicant was granted on the 14th December, 2012. The applicant herein is seeking an order of certiorari quashing the aforementioned decision purporting to dismiss him from his employment with effect from the 12th November, 2012. The reason given by the respondent for such dismissal was that the applicant’s position as clerical officer was now untenable following his plea of guilty on the 7th October, 2010, to an offence contrary to s.6 of the Child Pornography and Trafficking Act 1998, namely, possession of child pornography, before Judge O’Donnell in the Dublin Metropolitan District Court. On the 19th April, 2011, the said charge was struck out following payment by the applicant of a contribution to the Rape Crisis Centre. The grounds upon which the applicant is seeking relief are set out at paragraph (e) of the Statement of Grounds, the more pertinent grounds being the following:-
(b) The decision of the respondent to dismiss the applicant was ultra vires his powers, in particular in relation to Paragraph 65 of the Civil Service Disciplinary Code; (c) The Respondent has failed to provide the reasons for his decision to dismiss the applicant, in particular the exceptional circumstances warranting a departure from the Civil Service Disciplinary Code Appeal Board’s ruling on sanction and thereby failing to comply with the Civil Service Disciplinary Code, in particular Paragraph 65. The applicant is employed as a clerical officer attached to the Finger Print Section, Garda Headquarters, Phoenix Park, Dublin 8. On the 21st June, 2010, the applicant was charged on foot of Charge Sheet No. 10428712 with possession of child pornography, an offence contrary to s.6 of the Child Pornography and Trafficking Act 1998. Following the laying of this charge against the applicant, a charge which constitutes an allegation of serious misconduct within the meaning of Circular 14/2006 Civil Service Disciplinary Code, revised in accordance with the Civil Service Regulation (Amendment) Act 2005, disciplinary proceedings were instigated against him. These disciplinary proceedings were conducted by the Civilian Human Resources Directorate of An Garda Síochána pursuant to the Code. By letter dated the 12th July, 2010, the applicant was notified by Fachtna Murphy, the then Commissioner of An Garda Síochána that, in light of the above, he was being suspended immediately on ordinary remuneration. By letter dated the 15th July, 2010, the applicant was informed by the Civilian Human Resources Directorate that its Director, Mr. Alan Mulligan, had been appointed to investigate the allegations upon which the offence alleged in Charge Sheet No. 10428712 were founded and that a disciplinary investigation would remain in abeyance pending the outcome of the criminal investigation. On the 7th October, 2010, the applicant entered a plea of guilty to the above charge. On the 19th April, 2011, the said charge, as laid out on Charge Sheet No. 10428712, was struck out following payment by the applicant of a contribution (€2,500) to the Rape Crisis Centre. The applicant was notified by Mr. Mulligan, by letter dated the 19th August, 2011, of a recommendation made by him to Commissioner Martin Callinan, with which the Commissioner agreed, that the applicant be dismissed from his position as clerical officer. Prior to formal dismissal, submissions were invited and were made by letter, dated the 21st October, 2011. By letter dated the 10th January, 2012, the applicant was informed by Mr. Mulligan that his employment as clerical officer was to be terminated, the Commissioner having considered his case, together with reports and submissions made, and reached such a decision. However, the applicant was advised of his right of appeal to the Civil Service Disciplinary Code Appeal Board (hereinafter referred to as “the Board”) in accordance with the Civil Service Regulations. Written submissions were made on behalf of the applicant to the Board by the applicant’s solicitors on the 23rd January, 2012. In response, Mr. Mulligan made written counter-submissions on the 14th February, 2012. On the 19th April, 2012, a hearing of the above Board took place at which the applicant and Mr. Mulligan were both present and made detailed oral submissions. On the 20th June, 2012 the Board determined that the sanction of dismissal was disproportionate to the misconduct alleged. Consequently, the Board recommended that the following sanctions be imposed on the applicant instead of a dismissal:-
2) debar from competition for a period of 5 years from the date of suspension on the 12th July, 2010; 3) transfer out of An Garda Síochána to an alternative position within the Civil Service. Despite the determination of the Board, the respondent herein, Commissioner Martin Callinan, notified the applicant, by letter dated the 15th October, 2012, of his dismissal from his position as clerical officer in An Garda Síochána with effect from the 12th November, 2012. The reason given by the respondent for such dismissal was the same as that given by the Commissioner earlier, that is to say that he could not allow this type of conduct within An Garda Síochána and as such the applicant’s position as clerical officer therein was now untenable. THE LEGISLATIVE FRAMEWORK Section 7 of the Act of 2005 provides that, where the Government so authorises, the powers and functions of the Government in respect of a civil servant may be exercised by an “appropriate authority”. Section 4(1) of the Public Service Management Act 1997, provides that the Head of a Scheduled Office, in the applicant’s case the Commissioner, shall have the authority, responsibility and accountability for carrying out a number of duties in respect of that Scheduled Office including:
Allegations of misconduct against a civil servant must be dealt with under Circular 14/2006: Civil Service Disciplinary Code revised in accordance with the Civil Service Regulation (Amendment) Act 2005 (hereinafter referred to as “the Code”). If serious misconduct is alleged, paragraph 33 of the Code provides that disciplinary action including dismissal in accordance with the procedures set out in paragraphs 34-41 of the Code may arise, as serious misconduct is viewed as a
ii. deferral of an increment iii. debarment from competitions or from specified competitions or from promotion for a specified period of time iv. transfer to another office or division or geographical location v. withdrawal of concessions or allowances vi. placing the civil servant on a lower rate of remuneration (including the withholding of an increment) vii. reducing the civil servant to a specified lower grade or rank viii. suspending the civil servant without pay, or ix. dismissal.
ii A statement of the penalty which, having regard to the breach or breaches of the code alleged, he or she considers appropriate and iii A copy of the code. Paragraph 40 of the Code provides that having considered any response by the officer concerned and any written or oral representations made by or on behalf of the officer concerned, the Personnel Officer shall decide whether the allegations have been substantiated and, where he or she is satisfied that conduct warranting disciplinary action has been established, shall inform the officer concerned in writing as soon as possible of the decision reached and of the action that “it is proposed to recommend to the appropriate authority”. At the same time, the officer should be informed that he may make written representations to the appropriate authority or seek a review of the procedures by the Board. Paragraph 41 of the Code states:
Paragraph 43 of the Code thereafter sets out the constitution of the Board and the process to be adopted by the Board. Paragraph 49 provides that a review of disciplinary proceedings by the Board may be sought by the officer concerned on one or more of the following grounds:
ii. All the relevant facts were not ascertained iii. All the relevant facts were not considered, or not considered in a reasonable manner iv. The officer concerned was not afforded a reasonable opportunity to answer the allegation v. The officer concerned could not reasonably be expected to have understood that the behaviour alleged would attract disciplinary action vi. The sanction recommended is disproportionate to the underperformance or misconduct alleged.” Paragraph 52 of the Code sets out the procedure to be followed in the event that the officer concerned has requested that the disciplinary proceedings be reviewed by the Board. In this context, the officer concerned is obliged to provide a written statement to the Board of the grounds in paragraph 49 on which the review is being sought. The Personnel Officer must then submit a written statement in response. The Board may also request further written submissions from the officer concerned or the appropriate authority, to be furnished within a specified time and format. In circumstances where the Board has decided to review the disciplinary procedures having considered the submissions made under paragraph 52 of the Code, paragraph 55 of the Code provides that a hearing shall take place. Persons may be invited by the Board to give evidence at the hearing, either orally or in writing. The officer concerned may choose to make oral submissions to the Board if he so wishes, in accordance with paragraph 57 of the Code. Proceedings before the Board shall be informal and the officer concerned and Personnel Officer are entitled to be present where the Board meets for the purpose of hearing oral submissions or taking oral evidence. Paragraph 60 of the Code states that:-
ii. the disciplinary action decided by the Personnel Officer or appropriate authority should be amended in a specified manner, or iii. the case should be reconsidered by the Personnel Officer to remedy a specified deficiency in the disciplinary proceedings (in which event the provisions of the code continue to apply).”
Paragraph 65 of the Code states that:
APPLICANT’S SUBMISSONS It was further submitted that the Commissioner had failed to state reasons for the applicant’s dismissal or, if he had stated reasons, those reasons were not directed, as they should have been, to exceptional considerations warranting a departure from the opinion of the Board. In judicial review terms, he had addressed his mind to the wrong question. He had not identified an “exceptional event” to justify a decision contrary to the view of the Board but had merely re-stated his original decision. RESPONDENT’S SUBMISSIONS It was also submitted by the respondent that the issue of unfairness on the merits of the decision by the Commissioner to dismiss the applicant herein is not an appropriate matter for judicial review. It was further submitted that there was an alternative remedy open to the applicant in the present case, one that was infinitely more suitable in the circumstances, namely an appeal to the Employment Appeals Tribunal, as provided for in Appendix 2 of the Code. DECISION
6.2 While the circumstances in which a decision made by a public person or body may be found to be unlawful are varied, it is possible to give a non-exhaustive account of the principal bases by reference to which such a finding might be made. First, the decision must be within the power of the person or body concerned. Second, the process leading to the decision must comply both with fair procedures and with whatever procedural rules may be laid down by law for the making of the decision concerned. Third, the decision maker must address the correct question or questions which need to be answered in order to exercise the relevant power and in so doing must have regard to any necessary factors properly taken into account and must also exclude any considerations not permitted. Fourth, in answering the proper questions raised and in assessing all matters properly taken into account the decision maker must come to a rational decision in the sense in which that term is used in the jurisprudence. 6.3 There may, of course, be many variations or additions to that very broad description of the matters that need to be assessed in order to decide whether a decision affecting rights and obligations has been lawfully made. However, it seems to me that a party faced with a decision which affects their rights and obligations must be entitled to assess whether they have a basis for challenging the lawfulness of the decision in question. The courts have consistently held that it is an inherent part of the judicial review role of the courts that parties need to know enough about the process and the decision which affects them to be able to mount a challenge to that decision on the grounds of unlawfulness in an appropriate case. 6.4. In O’Donoghue v. An Bord Pleanála [1991] I.L.R.M 750, Murphy J. said, at p. 757:- ‘It is clear that the reason furnished by the Board (or any other tribunal) must be sufficient first to enable the courts to review and secondly to satisfy the persons having recourse to the tribunal that it has directed its mind adequately to the issue before it. It has never been suggested that an administrative body is bound to provide a discursive judgment as a result of its deliberations ...’ 6. 5 Sometimes, of course, the process itself will provide for an appeal. It has consistently been held that parties who have a right of appeal within a process are entitled to sufficient information to enable them to consider, and if appropriate to mount, such an appeal. For example, Finlay P. in State (Sweeney) v. Minister for the Environment [1979] I.L.R.M 35, stated that it was necessary ‘... to give ... (to an) applicant such information as may be necessary and appropriate for him, firstly, to consider whether he has got a reasonable chance of succeeding in appealing against the decision of the planning authority and secondly, to enable him to arm himself for the hearing of such an appeal.’ 6.6 Kelly J. came to a similar view in Mulholland v. An Bord Pleanála (No.2) [2006] 1 I.R. 433 at 460. 6. 7 More recently in Meadows v. Minister for Justice, Equality and Law Reform [2010] 2 IR 701 Murray C.J. said that a failure to supply sufficient reasons would affect the applicant’s ‘constitutional right of access to the Courts to have the legality of an administrative decision judicially reviewed could be rendered either pointless or so circumscribed as to be unacceptably ineffective’. 6. 8 While the primary focus of a number of the judgments cited, and indeed aspects of the decision in Meadows itself, were on the need to give reasons as such, there is, perhaps, an even more general principle involved. As pointed out by Murray C.J. in Meadows a right of judicial review is pointless unless the party has access to sufficient information to enable that party to assess whether the decision sought to be questioned is lawful and unless the courts, in the event of a challenge, have sufficient information to determine that lawfulness. How that general principle may impact on the facts of an individual case can be dependant on a whole range of factors, not least the type of decision under question, but also, in the context of the issues with which this Court is concerned on this appeal, the particular basis of challenge. In some cases the material on which a challenge might be considered may be obvious. Where, for example, the challenge is based on a suggestion that the relevant decision maker did not have jurisdiction at all, it will, at least in the majority of cases, be possible to assess that question by reference to a comparison between the decision made and its scope on the one hand and the law (whether statute or otherwise) conferring the decision making power on the other. Where the challenge is based on the process or procedures followed then, again in the majority of cases, any party having standing to challenge the decision will have participated in the process (or will be able to point to an arguably unlawful exclusion) and will be likely to be well familiar with what happened and thus able to assess whether there is any legitimate basis for challenge. 6.9 However, where the possible basis for challenge is concerned with the decision making itself then there is the potential for a greater deficit of ready information. Where the possible basis for challenge is founded on an absence of the correct question being addressed, incorrect considerations being applied or an irrational decision, any party wishing to assess the lawfulness of the decision will need to know something about the decision making process itself. While, as already pointed out, this is not a “reasons” case per se nonetheless the underlying rationale for the case law on the need to give a reasoned but not discursive ruling, while not strictly speaking applicable, seems to me to have a bearing on a case such as this where the issue is as to whether the decision maker addressed the correct question. White & Anor. v. Dublin City Council & Ors. [2004] 1 IR 545, is a good example of a case in which a decision was quashed because the decision maker asked himself the wrong question. The case concerned a question as to whether a revision to a planning application required to be re-advertised. Fennelly J. found that the decision maker had, in reality, asked himself whether planning permission should be granted rather than whether some members of the public might reasonably wish to object to the plans as modified. It is clear from the judgment that the court had available to it sufficient materials to enable an analysis to be conducted as to the question addressed by the decision maker. 6.10 However, if a person affected does not have any sufficient information as to the question which the decision maker actually addressed then it surely follows that that person's constitutional right of access to the courts to have the legality of the relevant administrative decision judicially reviewed is likely to be, in the words of Murray C.J. in Meadows, ‘rendered either pointless or so circumscribed as to be unacceptably ineffective’.” I am satisfied on the facts of the present case that the Commissioner’s decision to dismiss the applicant was due to the fact that the applicant had pleaded guilty to a criminal offence, its seriousness reflected in the penalty attached to it, namely a fine not exceeding €1,500 or imprisonment for a term not exceeding twelve months or both on summary conviction or a fine not exceeding €5,000 or imprisonment for a term not exceeding five years or both on indictment. The Commissioner made it perfectly clear in his letter of the 15th October, 2012, in dismissing the applicant, that the commission of the offence of possession of child pornography is one that An Garda Síochána simply cannot condone, stating that:
It is necessary to remember here, I think, that in accordance with the Code and the relevant Acts mentioned above, that the Board’s view was a mere recommendation. It was always open to the Commissioner to take a different view regarding the applicant than the opinion reached by the Board in the matter. To reiterate paragraph 65 of the Code in full again:
Furthermore, I am satisfied that, not only did the Commissioner address the correct question in reaching his decision to dismiss the applicant in the present case, but he also rationally answered that question having regard to all relevant factors and after having properly taken all relevant material before him into account. I am further satisfied that the Commissioner was entitled to take the view that the conduct admitted by the applicant was of a nature that warranted being classified as “serious misconduct” defined in Appendix 2 of the Code as including, inter alia, “disrespect for the law, e.g. knowingly acting in an illegal way that has implications for official employment/criminal conviction that has implications for official employment” and, therefore, such as to justify dismissal. The remedy sought by the applicant herein, namely certiorari, is a discretionary remedy. It is well settled law, not only in this jurisdiction, that in considering the exercise of its discretion, a court must consider whether there is an alternative remedy available to the applicant and the appropriateness and effectiveness of such a remedy to the matter in question. In O’Donnell v. Tipperary (South Riding) County Council [2005] IESC 18 [2005] 2 IR 483 Denham J. (as she then was) set out the applicable law at paragraph 6.1/p. 487 of her judgment as follows:-
‘The real question to be determined where an appeal lies is the relative merits of an appeal as against granting relief by way of judicial review. It is not just a question whether an alternative remedy exists or whether the applicant has taken steps to pursue such remedy. The true question is which is the more appropriate remedy considered in the context of common sense, the ability to deal with the questions raised and principles of fairness; provided, of course, that the applicant has not gone too far down one road to be estopped from changing his or her mind. Analysis of the authorities shows that this is in effect the real consideration.’
Furthermore, in accordance with Appendix 1 of the Code, the applicant, if he wishes to make such a claim must give formal notice in writing to the Rights Commissioner or the Employment Appeals Tribunal within 6 months of the alleged dismissal. Therefore, as the original date of the applicant’s dismissal is the 12th November, 2012, the applicant herein is still in time to follow this course of action. Taking all of the above matters into consideration, I am refusing to grant the relief sought.
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