Adrian Ivers v The Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 16 July 2021
• Neutral Citation: [2021] IEHC 574
• Docket Number: [Record No. 2020 363 JR]
• Year: 2021
• Court: High Court

Between

Adrian Ivers

Applicant

and

The Commissioner of an Garda Síochána

Respondent

[2021] IEHC 574

[Record No. 2020 363 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Fair procedures – Presumption of innocence – Applicant seeking judicial review of the determination of the respondent – Whether the determination of the respondent was made in breach of the applicant’s constitutional rights to fair procedures, natural justice and/or the presumption of innocence

Facts: The applicant, Mr Ivers, was a member of An Garda Síochána. On 21 January 2020, the applicant removed a “Bluetooth” speaker and charging cables from a seized vehicle. The applicant initially brought same into the garda station. A short time later, the applicant left the station and, having locked the garda station, drove away with the speaker. The applicant acknowledged that he connected same to his phone and played music, via the speaker, which the applicant stated was at the behest of his daughter who was with him on 21 January 2020. The seized car had been towed away by the time the applicant returned to the garda station. On 23 January 2020 the applicant was informed that he was under investigation for the theft of the speaker, something he denied. The applicant was suspended from duty on 6 February 2020 and remained suspended. A criminal investigation was commenced, as was an investigation by the Garda Síochána Ombudsman Commission. By letter dated 8 May 2020, the respondent, the Commissioner of An Garda Síochána, wrote to the applicant stating that the respondent was of the opinion that by reason of the applicant’s conduct on 21 January 2020 at the relevant garda station, the applicant’s continued membership of An Garda Síochána would undermine public confidence in An Garda Síochána and the applicant’s dismissal, pursuant to s. 14 of the Garda Síochána Act 2005, was necessary to maintain that confidence. On 8 June 2020, the applicant applied, ex parte, to the High Court and obtained leave to apply for the relief set out in para. (d) of the applicant’s statement of grounds, dated 5 June 2020 on the grounds set out at para. (e) of same. The relief sought at para. (d) comprised the following: “(i) An order of certiorari by way of application for judicial review of the determination of the Respondent, that the Applicant’s continued membership of An Garda Síochána would undermine public confidence in An Garda Síochána by reason of his conduct, and that it is necessary to dismiss the Applicant to maintain that confidence; (ii) A declaration by way of judicial review that the determination of the Respondent made on the 8 May 2020, was made in breach of the Applicant’s constitutional rights to fair procedures, natural justice and/or the presumption of innocence; (iii) An injunction by way of judicial review preventing or restraining the Respondent from dismissing the Applicant from An Garda Síochána; (iv) An order of prohibition by way of judicial review restraining the Respondent from dismissing the Applicant from An Garda Síochána; (v) A stay on the determination the subject of these proceedings, pending the outcome of the proceedings herein; (vi) Such further or other relief as this honourable court shall deem meet; (vii) Costs.”

Held by Heslin J that the case fell to be determined in light of the evidence before the court, having regard to a proper interpretation of the provisions of s. 14 of the Garda Síochána Act 2005 and the relevant legal authorities. In Heslin J’s view, the application was misconceived and premature. Heslin J held that the applicant had not established that there had been any breach of his constitutional rights to fair procedures natural justice or the presumption of innocence and the applicant was not entitled to an order of certiorari.

Heslin J held that the applicant’s claim would be dismissed in full.

Application dismissed.

JUDGMENT of Mr. Justice Heslin delivered on the 16th day of July, 2021.

Introduction

1 The applicant is a member of An Garda Síochána. On 21 January 2020, the applicant removed a “Bluetooth” speaker and charging cables from a seized vehicle. The applicant initially brought same into the garda station. A short time later, the applicant left the station and, having locked the garda station, drove away with the speaker. The applicant acknowledges that he connected same to his phone and played music, via the speaker, which the applicant states was at the behest of his daughter who was with him on 21 January 2020. The seized car had been towed away by the time the applicant returned to the garda station.

2 On 23 January 2020 the applicant was informed that he was under investigation for the theft of the speaker, something he denied. The applicant was suspended from duty on 06 February 2020 and remains suspended. A criminal investigation was commenced, as was an investigation by the Garda Síochána Ombudsman Commission (“GSOC”). By letter dated 08 May 2020 the respondent wrote to the applicant stating that the respondent was of the opinion that by reason of the applicant's conduct on 21 January 2020 at the relevant garda station, the applicant's continued membership of An Garda Síochána would undermine public confidence in An Garda Síochána and the applicant's dismissal, pursuant to s.14 of the Garda Síochána Act of 2005, is necessary to maintain that confidence. The said letter set out specific facts including that CCTV footage from 21 January 2020 which shows the applicant getting into the seized vehicle and removing a blue object with wires attached and that CCTV footage shows the applicant leaving the station later with the item in question, following which he got into his own vehicle with the object. The letter stated inter alia the respondent's opinion that the applicant's continued membership is untenable given the requirement for the maintenance of public confidence and trust in An Garda Síochána.

3 The letter gave the applicant the opportunity, pursuant to s. 14 (2) (b) of the 2005 Act, to put forward any representations or responses the applicant wished to make, including any reason why the respondent should not dismiss the applicant upon the basis stated in the 08 May 2020 letter. Submissions were delivered on behalf of the applicant, dated 22 May 2020 which, inter alia, demanded that the respondent immediately withdraw the notification of 08 May 2020. It was submitted, inter alia, that the respondent had pre-determined matters, without having sought any statement or explanation from the applicant and that, by so doing, the respondent had unlawfully prejudiced the matter and had demonstrated a complete lack of impartiality and fairness. Appended to the applicant's 22 May 2020 submissions was a statement made by the applicant on 12 May 2020. In that statement, the applicant admits that he took the speaker from the seized vehicle but the applicant states that he always intended to return same and, for the purposes of the application before this court, the applicant has averred that the contents of his 12 May 2020 statement are correct. The 22 May 2020 submissions concluded by stating that the applicant's legal representatives required confirmation, on or before close of business on 28 May, 2020 that the respondent would not take any further steps in relation to the applicant's position as a member of An Garda Síochána, failing which the protection of the High Court would be sought.

4 On 8 June 2020 the applicant applied, ex parte, to this court and obtained leave to apply for judicial review as well as “ a stay on the determination of the subject of these proceedings” pending the outcome of the proceedings before this court. On behalf of the respondent it is averred that the applicant's 22 May 2020 submissions had not been considered, nor was the matter the subject of any determination by the respondent, when An Garda Síochána received notification of the making of the 8 June 2020 order granting the applicant leave to apply for judicial review and ordering a stay.

The relief sought by the applicant

5 As is clear from the terms of the 08 June 2020 order (Meenan J.) the applicant was given leave to apply for the relief set out in para. (d) of the applicant's statement of grounds, dated 05 June 2020 on the grounds set out at para. (e) of same. The relief sought at para. (d) comprises the following:

• “(i) An order of certiorari by way of application for judicial review of the determination of the Respondent, that the Applicant's continued membership of An Garda Síochána would undermine public confidence in An Garda Síochána by reason of his conduct, and that it is necessary to dismiss the Applicant to maintain that confidence;

• (ii) A declaration by way of judicial review that the determination of the Respondent made on the 8 May 2020, was made in breach of the Applicant's constitutional rights to fair procedures, natural justice and/or the presumption of innocence;

• (iii) An injunction by way of judicial review preventing or restraining the Respondent from dismissing the Applicant from An Garda Síochána;

• (iv) An order of prohibition by way of judicial review restraining the Respondent from dismissing the Applicant from An Garda Síochána;

• (v) A stay on the determination the subject of these proceedings, pending the outcome of the proceedings herein;

• (vi) Such further or other relief as this honourable court shall deem meet;

• (vii) Costs.”

6 The grounds upon which the foregoing relief is sought are set out at para. (e) of the Statement of Grounds. Paragraph 1 of same, under the heading “Facts” states that the applicant has nineteen years' service and an unblemished disciplinary record. It is also stated that the garda with whom the applicant worked was assaulted in August 2018 and was on sick leave since, resulting in the applicant working alone at the relevant garda station during his duty shifts....