Barrington J.
Keane J.
Murphy J.
Barron J.
401/97
THE SUPREME COURT
BETWEEN!
PHILIP FLOOD
Appellant/Applicant
and

THE GARDA SÍOCHÁNA COMPLAINTS BOARD
Respondent/Respondent
and

PATRICK WALSH
Notice Party
JUDGMENT delivered on the 19th day of July 1999 by BARRON J. [Nem. Diss.]

(2)

The facts giving rise to these proceedings are set out in the judgment of the learned trial judge under the heading “The Applicant’s Allegations”. In essence the applicant alleged that he had been assaulted by the notice party for no reason whatsoever; had been handcuffed and brought to Kevin Street Garda Station. There he had been examined by a doctor to whom he showed injuries involving some cuts and bruises. He was later released without charge. On his release, he attended the casualty department of the Meath Hospital.

On the following day the 11th December 1992 the applicant made a complaint to the respondent (“the Board”) pursuant to the provisions of the Garda Síochána (Complaints) Act, 1986 (“the Act”). For a complaint to be admissible, it must comply with the conditions set out in s. 4(3) which are as follows:

“(i) 	the complainant was a member of the public,

(3)

(ii)	the complainant was directly affected by or witnessed the conduct alleged in the complaint,

(iii)	the said conduct would constitute an offence or be conduct specified in the Fourth Schedule to this Act,

(iv)	the date on which the said conduct was alleged to have occurred was on or after the establishment day and within six months before the date on which the complaint was made,

(v)	the application of this Act to the said conduct did not, by virtue of section 15 of this Act, stand excluded on the date on which the complaint was made, and

(vi)	 the complaint is not frivolous or vexatious.”

In the first instance the Chief Executive of the Board (“the Chief Executive”) determines whether a complaint is admissible. If he does, or exceptionally where he does not and the Board does, the matter is referred to the Commissioner of An Garda Síochána (“the Commissioner”). Unless the Commissioner is of the opinion that the matter can be resolved informally, he appoints an investigating officer to investigate. In the

(4)

instant case, the Chief Executive found the complaint to be admissible and an investigating officer was appointed by the Commissioner. By a letter dated the 26th April 1993 the solicitor for the applicant was informed that this stage had been reached.

Meanwhile on the 9th February, 1993, a summons had been sought by the notice party against the applicant to answer a charge that he did on the 10th day of December 1992 at Portobello Bridge, a public place in the Dublin Metropolitan District, use threatening or abusing or insulting words or behaviour with intent to provoke a breach of the peace whereby a breach of the peace might be occasioned contrary to s. 14(13) of the Dublin Police Act, 1842. The summons was returnable for the 9th June, 1993, and on that date was adjourned to the 2nd December 1993. On the latter date the notice party was refused an adjournment and the summons was struck out. Such proceedings were not subsequently reinstituted.

(5)

While the proceedings were in being the applicant, on the advice of his solicitor, refused to make any statement to the investigating officer. Once the proceedings had been struck out the applicant agreed to make such a statement and did so setting out the facts of his complaint to the investigating officer on the 18th January, 1994.

The applicant heard no more until his solicitor received a letter dated the 1st June, 1994, from the Chief Executive which was as follows:

“Dear Sir

I refer to previous correspondence concerning the complaint which you made under the Garda Síochána (Complaints) Act, 1986.

The report of the investigating officer appointed to investigate the complaint and the relevant comments and recommendations of the Chief Executive have been considered carefully by the Board. Being satisfied that the complaint was admissible, and that the conduct complained of might constitute a criminal offence on the part of any member, the Board referred the matter

(6)

to the Director of Public Prosecutions. The Director has now informed us that there will be no prosecution.

The Board is satisfied that the matter has been thoroughly investigated and is of opinion that neither an offence nor a breach of discipline on the part of any member has been disclosed. Accordingly, the Board will take no further action in the matter.

Yours sincerely”

The solicitor for the applicant replied by letter dated the 4th July, 1994, as follows:

“Dear Sir

I refer to your letter of the 1st of June 1994.

I have considered the contents carefully and there is one aspect of the letter that puzzles me. In paragraph 2 of your letter, it is stated that the Board’s opinion is that a crime may have been committed by a garda and yet, paragraph 3, the opinion of the Board is stated to be that no crime or disciplinary breach has occurred. I find it difficult to envisage the process which might lead to both opinions being held by the Board.

(7)

Furthermore, my client was not informed that the Board was to meet to consider his complaint and consequently has had no opportunity to address the issues before the Board or to consider the material laid before the Board. Neither has he had an opportunity to see and consider the report of Inspector McLaughlin or the comments and recommendations of yourself to the Board, nor is he aware of, and therefore unable to comment upon the totality of the evidence proffered to the Board in their consideration of the matter.

I will therefore be obliged if you would forward copies of all the material upon which the Board deliberated, (including the medical reports made available by the hospital and by the garda doctor who attended my client in the Garda Station). Finally, please furnish details of the material forwarded to the D.P.P. and a copy of his decision.

I look forward to hearing from you.

Yours faithfully”

As can be seen from the contents of this letter, the applicant was claiming a right to know what was contained in the investigating officer’s

(8)

report, and to make representations to the Board before it acted upon that report. His solicitor received a reply from the Board dated the 21st August, 1994, which was as follows:

“Dear Sir

I refer to your letter of 4th July 1994 in connection with the complaint of the above under the Garda Síochána (Complaints) Act, 1986.

The decision of the Board in relation to your client’s complaint was arrived at pursuant to section 7 of the Act. Subsection (1) of the section requires that where an admissible complaint alleged conduct which in the opinion of the Board may constitute an offence, the matter should be referred to the Director of Public Prosecutions. This requirement relates to the nature of the conduct alleged, and obliges the Board to make the referral in all cases, even though the Board may in some such cases be of opinion that the investigating officer’s report does not bear out the allegation. Your letter paraphrases incorrectly the terms of the Board’s letter of 1st June.

(9)

The Board treats as confidential the reports of investigations conducted under the Act and any statements or other reports or correspondence gathered in connection with such reports.

Accordingly, I am unable to provide you with the material sought in your letter.

Yours sincerely”

On the 6th February, 1995, the applicant was given leave to seek judicial review for the purpose of quashing the Board’s decision to take no further action as communicated to his solicitor by letter dated the 1st June, 1994, upon the following grounds:

“(i)	Failure by the respondent to provide the applicant with an opportunity to consider the evidence or material to be laid before the respondent prior to the respondent considering the complaint.

(ii)	Failure by the respondent to notify the applicant that the respondent was about to enter upon a determination of his complaint and to afford

(10)

the applicant an opportunity to be heard in relation to the evidence or material before the respondent.

(iii)	That the respondent acted ultra vires in wrongfully allowing the said decision of the Director of Public Prosecutions to influence it in deciding to take no further action in the matter of the applicant’s complaint.

(iv)	That the respondent acted ultra vires in changing its original opinion that the conduct complained of might constitute a criminal offence on the part of any member of An Garda Síochána to an opinion that neither an offence nor a breach of discipline on the part of any member of An Garda Síochána had been disclosed.

(v)	Failure by the respondent to refer the matter of the applicant’s complaint to a tribunal established under section 8 of the Garda Síochána (Complaints) Act, 1986.

(11)

(vi) Failure by the respondent to give reasons for its decisions.

(vii)	Failure by the respondent to ensure that the applicant’s complaint was dealt with in accordance with natural and constitutional justice and fair procedures.”

When the matter came on for hearing the relief sought was refused. The matter now comes before this Court by way of appeal from such refusal.

The grounds upon which relief was sought and which was submitted on behalf of the applicant on his appeal to this Court were:

(1)	That the Applicant should have been allowed to make representations before the Board before it formed its opinion;

(2)	that the applicant should have received from the Board the materials upon which it based such opinion;

(12)

(3)	that the Board ought to have furnished the applicant with its reasons for forming such opinion; and

(4)	the Board had failed to consider the matter afresh after the decision of the Director of Public Prosecution not to prosecute.

While the letter of the 1st June might suggest that the decision to take no further action was taken after the decision of the Director of Public Prosecutions not to prosecute, the affidavits filed on behalf of the Board show that this decision was made at the same time as the decision to refer the matter to the Director of Public Prosecutions.

The submissions on behalf of the applicant must be considered in the context of the relevant provisions of the Act.

S.6 deals with the investigation of complaints. Although it is to be carried out by an investigating officer appointed by the Commissioner, the Board may supervise and may also require the Chief Executive to

(13)

investigate. However, where an offence is alleged, the Board may not supervise without the consent of the Director of Public Prosecutions and when the Chief Executive is required to investigate he must consult with the Director of Public Prosecutions as to how to do so. In addition, it is provided by s. 6(1)(b) that “where it appears to an investigating officer that the conduct alleged in a complaint may constitute an offence, the law and practice applicable to the investigating of offences shall ... apply in relation to the investigation.” This latter provision is in turn subject to the provisions of s. 4(6) of the Act which provides that where a complaint has been made under the provisions of the Act the member concerned shall not be charged with an offence relating to the conduct alleged except with the consent of the Director of Public Prosecutions.

S.7 provides for the actions which may be taken by the Board. The relevant provisions of s. 7 are as follows:

(14)

“(1)	 If after consideration of-

(a)	a report or reports of an investigating officer submitted to the Board under section 6 of this Act and the relevant comments and recommendation of the chief executive so submitted to the Board, the Board is of opinion that the complaint concerned is admissible and that the conduct alleged in the complaint may constitute an offence committed by the member concerned, it shall refer the matter to the Director of Public Prosecutions.

(2)	If after consideration of such a report or reports of an investigation as aforesaid and (where appropriate) of such comments and recommendation as aforesaid, the Board is of opinion that the matter is not one to which subsection (1) of this section applies, the Board shall, subject to section 6(6) of this Act, deal with the matter in accordance with the subsequent provisions of this section.

(3)	If the Board is of opinion that neither an offence nor a breach of discipline on the part of the member concerned is disclosed or that the complaint is otherwise not admissible, it shall, as soon as may be, notify the Commissioner, the complainant and the

(15)

member concerned of its opinion and shall take no further action in the matter.

(4)(a)	Subject to subsection (7) of this section, if the Board is of opinion that a breach of discipline on the part of the member concerned may be disclosed but that any such breach is of a minor nature appropriate to be dealt with informally by the Commissioner by way of advice, admonition or warning, it shall refer the matter to the Commissioner.

(5)	Subject to subsection (7) of this section, if the Board is of opinion that a breach of discipline on the part of the member concerned (other than a breach referred to in subsection (4) of this section) may be disclosed, it shall refer the matter to a tribunal.

(7)(a)	Where a member has been convicted or acquitted of an offence, a breach of discipline shall not be referred to the Commissioner or a tribunal if the breach is in substance the same as the offence for which he has been convicted or acquitted.

(b) (i)	Paragraph (a) of this subsection shall not be construed as applying in relation to a breach of discipline which

(16)

consists of conduct constituting an offence in respect of which there has been a conviction by a court.

(8)	Subject to section 6(6) of this Act, whether the Director of Public Prosecutions has decided whether proceedings for an offence should or should not be instituted in respect of a complaint referred to him under subsection (1) of this section, the Board may either, if it thinks it proper to do so, deal with the matter under subsection (4) or (5) of this section or decide to take no further action in the matter.”

S. 6(6)(a) is as follows:

“Where civil proceedings or criminal proceedings are instituted and have not been finally determined and the Board considers that in those proceedings it is likely that the court will determine an issue relevant to or concerning the conduct alleged in a complaint, the Board may postpone the taking of any action or further action under this Act in relation to the complaint until the civil proceedings or criminal proceedings, as the case may be, have been finally determined.”

(17)

Save for the last one, the grounds upon which relief is sought deal with the issue of fair procedures. The last ground deals with the nature of the function of the Board following upon the investigation of a complaint pursuant to the provisions of s. 6 of the Act.

A consideration of s. 7 makes it clear that the function of the Board is to ensure that there is a case to be met. It decides nothing else. If there is no case to be met, the Board is not required to take any further action: s. 7(3). If the Board forms the view that there is a case to be met as regards a breach of discipline, it refers the matter for determination in accordance with the provisions of s. 7(4) or s. 7(5).

The Board has no power to refer a matter for determination in the case of an offence whatever its views. It must refer the matter to the Director of Public Prosecutions: s. 7(1). It may be that this provision applies equally only to offences in respect of which the Board considers

(18)

that there is a prima facie case to answer; a construction which may well be supported by the use of the words “may constitute an offence” used in the subsection.

There is, however, no need to decide such an issue. The matter was referred to the Director of Public Prosecutions. There is nothing in the section to suggest that the opinion of the Board can be in any way altered by the decision of the Director whether to prosecute or not. In this case, the Director decided not to prosecute. The Board, having already decided that there was no case to meet in relation to breach of discipline, was entitled to take no further action: s. 7(8).

Undoubtedly, s. 7 is difficult to construe. The Oireachtas might well consider whether it should be necessary for the Board, when the complaint alleges a criminal offence to refer it to the Director of Public Prosecutions not only when the Board, after investigation in accordance

(19)

with the law and practice applicable to the investigation of offences, considers there is a case to answer, but in all cases.

There remains for consideration the right of the applicant to fair procedures. In essence, he alleges a breach of natural justice and a breach of the principles of fair procedures in the failure by the Board to put him in the picture and allow him to make representations following the report of the investigating officer and the comments and recommendation of the Chief Executive.

The right to know the case you have to meet and the right to have time to prepare an answer and an opportunity to present that answer applies to a person who stands accused or to a person in respect of whom a tribunal has to act judicially or quasi judicially. That is not the case here. The Board is forming an opinion as to whether an investigation should proceed to a further stage.

(20)

The Board has the statutory power to form an opinion. As with all statutory powers, it cannot be unfettered, it must be exercised in accordance with fair procedures. This means that the opinion must be reached bona fide, be factually sustainable and not be unreasonable. See the judgment of O’Higgins C.J. in The State (Lynch) v. Cooney, [1982] IR 337 at p. 361. In the instant case, the affidavit sworn by the Chief Executive on behalf of the Board avers to the fact that “other accounts given to the investigating officer of the events described... differ markedly from the account given by the complainant.”

It is submitted on behalf of the Board that its opinion should not be open to review in the same way as a decision by the Director of Public Prosecutions not to prosecute is not open to review save in the case of mala fides or an inappropriate practice. The situation is not entirely identical nor is the public interest the same. There are sound public interest

(21)

reasons for the restricted basis of review of such decisions by the Director of Public Prosecutions. In the case of the Board, the public interest is to ensure that complaints against members of An Garda Síochána will be investigated and ruled upon fairly and impartially. To that end, the Act sets up appropriate procedures. There is nothing in the evidence to suggest that these procedures have not been followed. Judicial review is not a rehearing. Its function is to see that the procedures by which any opinion or decision was reached were fair and where prescribed that they were followed. Insofar as the principles in The State (Lynch) v. Cooney are applicable, there is no suggestion that the Board did not act bona fide. It has averred that there was a conflict of fact. A decision that no further action should be taken is sustainable in such circumstances and not unreasonable. It is submitted that the failure to charge the applicant on

(22)

the evening of his arrest nor to pursue the charge in Court showed that the decision to take no further action was unreasonable. I cannot agree.

There remains the issue as to whether or not the Board should have given any further reasons for its decision to the complainant. The reason which it gave is sufficient. It is not a case where the principles of natural justice apply. Equally, so far as the principles in The State (Lynch) v. Cooney apply, they have been fulfilled.

I would dismiss the appeal herein.