Alan Garvey v The Minister for Justice, Equality and Law Reform and another

JurisdictionIreland
JudgeMr. Justice Geoghegan
Judgment Date26 January 2006
Neutral Citation[2006] IESC 3
CourtSupreme Court
Docket Number[S.C. No. 17 of 2004]
Date26 January 2006

[2006] IESC 3

THE SUPREME COURT

Murray C.J.

Denham J.

Geoghegan J.

Record No. 17/2004
GARVEY v MIN FOR JUSTICE & AG
BETWEEN/
ALAN GARVEY
Applicant/Appellant

and

THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE GOVERNOR OF MOUNTJOY PRISON
Respondents

and

THE ATTORNEY GENERAL
Notice Party

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 38

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S4

PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES 1996 SI 289/1996 SCH 1(f)

PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES 1996 SI 289/1996 SCH 11(a)

PRISON (DISCIPLINARY CODE FOR OFFICERS) RULES 1996 SI 289/1996 SCH 11(b)

MCGRATH v COMMISSIONER OF AN GARDA SIOCHANA 1991 1 IR 69 1990 ILRM 817

MOONEY v AN POST 1998 4 IR 288

ALLMAN & MCAULEY v MIN FOR JUSTICE & ORS 2002 3 IR 540 2003 ELR 7

EMPLOYMENT:

Disciplinary inquiry

Natural justice - Fair procedures - Prison service - Criminal proceedings against employee - Employee acquitted on merits - Prison Governor seeking to hold disciplinary inquiry into breaches of discipline arising from same events - Whether disciplinary inquiry entitled to re-open matters decided by criminal courts - McGrath v Commissioner of An Garda Síochána [1991] 1 IR 69 and Mooney v An Post [1998] 4 IR 288 followed -Garda Síochána (Discipline) Regulations1989 (SI 94/1989), reg 38 - Prison (Disciplinary Code for Officers) Rules 1996 (SI 289/1996) - Applicant's appeal allowed (17/2004 - SC - 26/1/2006) [2006] IESC 3, [2006] 1 IR 548; [2006] I ILRM 486[2006] IILRM Garvey v Minister for Justice, Equality and Law Reform

Facts: This appeal concerned the question whether a public employee working within a structure that includes disciplinary proceedings involving suspension and/ or permanent dismissal could be subjected to those proceedings if the misconduct alleged would constitute a criminal offence of which the employee had already been acquitted on the merits.

Held by the Supreme Court (Murray CJ, Denham and Geoghegan JJ) in allowing the appeal and setting aside the order of the High Court that on the particular facts and circumstances of the case, fair procedures required that the verdict of acquittal by the jury not be re-opened by way of disciplinary inquiry.

Reporter: R.W.

1

JUDGMENT of Mr. Justice Geoghegan delivered 26th day of January 2006

2

This appeal raises yet again an age old question on which there are decisions of this court not all that easy to reconcile. In my view, a reasonable explanation can be found for any apparent discrepancy as will emerge later on in this judgment. The point of difficulty is whether a public employee working within a structure that includes disciplinary proceedings involving suspension and/or permanent dismissal can be subjected to those proceedings if the misconduct alleged would constitute a criminal offence of which the employee has already been acquitted on the merits.

3

Interestingly, this problem does not arise in the Garda Síochána in that Regulation 38 of the Garda Síochána (Discipline) Regulations, 1989 (S.I. No. 94/1989) provides that where a member has been acquitted of an offence, proceedings of a disciplinary nature under those regulations may not be brought and must be discontinued if already brought, if the alleged breach of discipline "is in substance the same as the offence of which (the officer) has been ... acquitted."

4

It appears indeed that that regulation represents what had always been the practice within the Garda Síochána.

5

This case does not deal with members of the Garda Síochána but rather with a member of the prison service. Nevertheless the existence of the regulation and the pre-existing practice in the Garda Síochána is, I think, of some, at least, makeweight assistance in arriving at a determination of this appeal and I will return to it in due course.

6

There is no equivalent statutory or other regulation affecting the prison service and, therefore, this appeal has to be approached on general principles.

7

A summary of the material facts is as follows. On the 18th September, 1999 there was trouble and riotous misconduct among the prisoners in Mountjoy Prison. One of the offending prisoners sustained a substantial injury to his face and it was alleged by some of the other prison officers that these facial injuries were caused by the appellant who was one of their number kicking the prisoner in the face. The prisoner's mother complained to the Governor and an investigation within the prison was initiated. The appellant received notification on the 24th September, 1999 of suspension from his employment as a prison officer. The suspension was initially without pay but it was later indicated that he would be given 75 per cent of his pay during his suspension. The appellant challenged the lawfulness of his suspension and in that connection obtained leave from the High Court (McGuinness J.) on the 1st November, 1999 to bring judicial review proceedings. Before those proceedings ever came on for hearing the Director of Public Prosecutions brought criminal charges against the appellant for assault causing harm and assault causing serious harm under sections 3 and 4 of the Non-Fatal Offences against the Person Act, 1997. While a trial was awaited in the criminal proceedings the judicial review application came on for hearing on the 8th May, 2001. On that day a settlement was arrived at whereby the judicial review proceedings were struck out with no order on certain agreed terms signed on behalf of the parties. By way of explanation and before I set out the terms, I should mention that at the stage of granting leave, McGuinness J. directed that full salary was to be paid during the suspension and pending the hearing and not the earlier mentioned reduced salary. The settlement terms read as follows:

" Strike out proceedings with no order

Respondent undertakes to continue payment of applicant's salary as defined in the order of McGuinness J. of 15/11/99 pending determination of criminal proceedings and thereafter in the event of acquittal until the final determination of disciplinary proceedings, if any, it being expressly understood between the parties that in the event of acquittal in the criminal proceedings the applicant is entitled to contend that disciplinary proceedings are not maintainable.

Further, in the event of a favourable outcome overall, the applicant reserves the right to seek any damages or indemnity as he may be advised arising out of these matters, saving the costs of these proceedings."

8

The criminal trial did not come on for hearing until the 18th February, 2002. The trial lasted five weeks before His Honour Judge Lynch and a jury in the Dublin Circuit Court. The jury deliberated for sixteen hours and returned a verdict of not guilty on each count.

9

The information in the possession of this court as to what went on at the trial is limited but it seems clear that essentially the issues were of credibility, the appellant alleging that he was in some way framed and scapegoated by other prison staff.

10

Following on the criminal trial the appellant requested that his suspension be lifted. This was not done. On the contrary, on the 27th April, 2002 the appellant was handed an envelope containing a series of disciplinary charges under the Prison (Disciplinary Code for Officers) Rules, 1996. The initiating letter was from the Deputy Governor, Mr. Vincent Duffy and dated the 3rd April, 2002. It noted the acquittal which had taken place on the 24th March, 2002 but went on to allege that the appellant "may have committed a breach of prison discipline under the code" and that there was "a case to be answered" on his behalf. Complaint forms which required statements and relevant information from the appellant to be filled in were enclosed. The particular breaches of discipline alleged were drawn from a schedule attached to the 1996 Rules and were in point of form and by reference to the schedule as follows:

"1(f) Discreditable conduct, that is to say, while on duty assaulting any other member of the Prison Service or any other person."

"11(a) Unlawful or unnecessary exercise of authority, that is to say, deliberately and unnecessarily acting in a manner calculated or likely to provoke a prisoner."

"11(b) Unlawful or unnecessary exercise of authority, that is to say, using force unnecessarily in dealing with a prisoner or, where the application of force to a prisoner is necessary, using undue force."

11

As required by the prescribed form, particulars of each of these three allegations are set out but in each case the particulars are identical and comprise the set of alleged facts on foot of which the appellant was tried and acquitted. Those particulars read as follows:

"Particulars of allegation including place, time and date of breach of discipline alleged.

At approximately 5.00 p.m. on 18th September 1999 a C&R team were moving offender Colm Fogarty from Cell 24 on B2 landing to F3 padded cell in the medical unit. When the van carrying the offender arrived outside the medical unit and the C&R team were unloading the offender from the van you kicked Colm Fogarty in the face inflicting injury".

12

Enclosed with these complaint forms was a bundle of documents comprising for the most part statements by other members of the prison staff implicating in varying degrees the appellant with the alleged assault.

13

Apparently, in April 2002 also disciplinary proceedings under the 1996 Rules were instituted against other prison officers who had given evidence in the course of the appellant's criminal trial. Those officers brought judicial review proceedings as a consequence of which the disciplinary...

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