Andrew Keegan v Garda Síochána Ombudsman Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Fennelly
• Judgment Date: 01 May 2012
• Neutral Citation: [2012] IESC 29
• Court: Supreme Court
• Docket Number: [S.C. No. 20 of 2012]
• Date: 01 May 2012

Keegan v Garda Siochana Ombudsman Cmsn

BETWEEN/

ANDREW KEEGAN

Appellant/Applicant

-AND-

GARDA SÍOCHÁNA OMBUDSMAN COMMISSION

Respondent/Respondent

[2012] IESC 29

Fennelly J.

O'Donnell J.

McKechnie J.

Record No. 20/2012

THE SUPREME COURT

JUDICIAL REVIEW

Statement of grounds

Amendment - Leave granted - Addition of new ground - Error by legal advisers - Relevant considerations in deciding whether to allow amendment of grounds for judicial review after leave granted - Whether test of "exceptional circumstances" existed - Whether discovery of new facts necessary - Whether requirements re explanation for delay more stringent for judicial review than for ordinary late application - Whether oversight or error by legal advisers sufficient explanation for initial failure to include proposed new ground - Ní Eilí v Environmental Protection Agency [1997] 2 ILRM 458, Muresan v Minister for Justice, Equality and Law Reform [2004] 2 ILM. 364, Shine v Fitness to Practise Committee [2008] IESC 41, [2009] 1 IR 283, O'Siodhacháin v Ireland (Unrep, SC, 12/2/2002), Dooner v Garda Síochána Complaints Board (Unrep, Finnegan J, 2/6/ 2000), Hynes v Wicklow County Council [2003] 3 IR 66 and In re Illegal Immigrants (Trafficking) Bill 1999 [2000] 2 IR 360 considered; McCormack v Garda Síochána Complaints Board [1997] 2 IR 489 explained - Garda Síochána Act 2005 (No 20), ss 84, 87, 88, and 102(4) - Amendment allowed (20/2012 - SC - 1/5/2012) [2012] IESC 29

Keegan v Garda Siochana Ombudsman Commission

Facts Section 88 of the Act provides that: "(1) On determining under section 87 that a complaint is inadmissible, the Ombudsman Commission shall-

(a) notify, in writing, the complainant, the member of the Garda Síochána whose conduct is the subject of the complaint and the Garda Commissioner of its determination,

(b) include in the notification the reason for the determination, and

(c) take no further action in relation to the complaint." The applicant faced a disciplinary investigation into his handling of an investigation into a road traffic incident in which a Mrs. Seaver's was killed. Mr. Seaver made a written complaint to the respondent into the garda investigation into the incident following a decision by the public prosecutor not to initiate a prosecution in relation to the incident. The respondent did not communicate its decision to determine Mr. Seavers complaint inadmissible to the appellant at the time it was made but more than three years later. The appellant had been granted leave to seek judicial review by way of prohibition of or injunction against the making of a decision by the respondent to conduct an investigation under the Garda Síochána Act, 2005. He then applied for leave to amend the grounds on which he sought judicial review by adding the following single ground: "The respondent having determined pursuant to s. 87 of the Act of 2005 that the complaint of David Seavers was inadmissible, has no jurisdiction by virtue of s. 88 of the Act to take any further action against the appellant." The failure to include the additional proposed ground in the original statement of grounds was explained in the grounding affidavit as being due to "an oversight on the part of the applicant's legal advisors." The appellant wished to be allowed to rely on s. 88(1)(c) and to argue that, because the respondent was precluded from taking any "further action in relation to the complaint," it did not have jurisdiction to hold an investigation pursuant to s. 102(4) based upon it. The High Court refused to permit the applicant to amend the Statement of Grounds. The applicant appealed to the Supreme Court.

Held by the Supreme Court (Mr. Justice Fennelly) in allowing the appeal and ruling that the amendment should be permitted that, once an applicant had obtained an order granting leave to apply for judicial review, he was confined to the grounds permitted and could not argue any additional grounds without leave of the court.

2. That if the Court were to grant leave to apply for judicial review on the additional ground which the applicant wished to advance, the point at issue had to be at least an arguable one.

2. That an application for an amendment of grounds for judicial review had to explain the failure to include the proposed new ground in the original application. McCormack v Garda Síochána Complaints Board [1997] 2 I.R. 489 considered.

3. That an oversight or error by an applicant's lawyers could, depending on the facts, provide a sufficient explanation. That would include a situation where the client could be significantly prejudiced if he could not explain delay or failure to include a ground by reference to such an error. Muresan v Minister for Justice (Unreported, High Court, Finlay Geoghegan J., October 2003) approved.

4. That the delay by the applicant and the oversight of his lawyers in raising the new point, was significantly counterbalanced by the failure of the respondent to keep the applicant informed of the complaint of Mr Seavers and of the ruling that it was inadmissible for several years.

GARDA SIOCHANA ACT 2005 S102(4)

GARDA SIOCHANA ACT 2005 S81(2)

GARDA SIOCHANA ACT 2005 S95

GARDA SIOCHANA ACT 2005 S87

GARDA SIOCHANA ACT 2005 S88

NI EILI v ENVIRONMENTAL PROTECTION AGENCY & ORS 1997 2 ILRM 458 1998/9/2656

MURESAN v MIN FOR JUSTICE & ORS 2004 2 ILRM 364 2003/38/9156

GARDA SIOCHANA ACT 2005 S83

GARDA SIOCHANA ACT 2005 S84(1)

GARDA SIOCHANA ACT 2005 S84(2)

GARDA SIOCHANA ACT 2005 S84

GARDA SIOCHANA ACT 2005 S88(1)(C)

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD & CMSR OF AN GARDA SIOCHANA 1997 2 IR 489 1997 2 ILRM 321 1997/4/1431

SHINE v FITNESS TO PRACTISE COMMITTEE OF THE MEDICAL COUNCIL & MEDICAL COUNCIL 2009 1 IR 283 2008/59/12200 2008 IESC 41

O SIODHACHAIN v IRELAND & ORS UNREP SUPREME 12.2.2002 2002/23/5819

DOONER v GARDA SIOCHANA (COMPLAINTS) BOARD & CMSR OF AN GARDA SIOCHANA UNREP FINNEGAN 2.6.2000 2000/6/2040

HYNES v WICKLOW CO COUNCIL & ARKLOW URBAN DISTRICT COUNCIL 2003 3 IR 66 2003/27/6345

ENVIRONMENTAL PROTECTION AGENCY ACT 1992 S88(5)

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5

IMMIGRATION ACT 1999 S3

CONSTITUTION ART 26

ART 26 OF THE CONSTITUTION & S5 & S10 OF ILLEGAL IMMIGRANTS (TRAFFICKING) BILL 1999, IN RE 2000 2 IR 360 2000/11/4122

ILLEGAL IMMIGRANTS (TRAFFICKING) ACT 2000 S5(2)

1 JUDGMENT of Mr. Justice Fennelly delivered the 1th day of May, 2012.

2 Judgment delivered by Fennelly [nem diss] O'Donnell McKechnie

3 1. This is an appeal from the refusal by the High Court (Hedigan J) on 16 ^th January 2012 to permit the appellant to amend the Statement of Grounds for his application for judicial review by way of prohibition of or injunction against the making of a decision by the respondent to conduct an investigation under the Garda Síochána Act, 2005. The appellant wishes to add one ground. The Court has already ruled that the amendment should be permitted. In this judgment, I give my reasons for that decision.

4 2. The appellant is a Sergeant in An Garda Síochána, stationed at Donnybrook Garda Station, Dublin. On 22 ^nd May 2005, a garda patrol car struck a pedestrian, Ms Mary Seavers, at Clonskeagh Road, Dublin, as a result of which she died. The appellant was responsible for the subsequent garda investigation of the accident. He submitted a file to his superiors. It was transmitted to the Director of Public Prosecutions ("The DPP"), who directed that there be no criminal prosecution. The DPP repeated this direction following review in September 2007.

5 3. The appellant on 20 ^th October 2008 receives written notice via the Superintendent at Donnybrook that the Garda Síochána Ombudsman considered it desirable in the public interest pursuant to s. 102(4) of Garda Síochána Act, 2005 that there be an investigation of the adequacy of the Garda investigation into the accident. Chief Superintendent John Manley had been appointed to investigate the matter. An accompanying notice from Assistant Commissioner Al McHugh stated that a complaint had been made by Mr David Seavers alleging that the Garda investigation was inadequate.

6 4. On 19 ^th February 2010 Chief Superintendent Manley, as Investigation Officer, gave the appellant formal notice of the investigation. He also referred to the complaint of Mr Seavers.

7 5. The appellant engaged the services of a solicitor to represent him in connection with the investigation. His solicitor conducted correspondence with Chief Superintendent Manley. In two letters of 5 ^th November 2010, one addressed to Chief Superintendent Manley and the other to the Garda Síochána Ombudsman Commission, the solicitor sought details of the complaint of Mr Seavers. He also objected to the jurisdiction of Chief Superintendent Manley. By letter of 17 ^th December 2010, the Garda Síochána Ombudsman Commission informed the appellant's solicitor that it held no admissible complaint from Mr Seavers. Although the letter did not say so, this statement meant essentially that Mr Seavers' complaint had been ruled by the Commission to be out of time. The letter went on to say that s. 102(4) of the Act of 2005 did "not require the admittance of a complaint but that it empower[ed] the Commission, if it appears desirable in the public interest to do so and without receiving a complaint to investigate any matter that appears to it to indicate that a member of the Garda Síochána may have committed an offence or behaved in a manner that would justify disciplinary proceedings." The Commission then asserted "public interest privilege over the papers sought," including Mr Seavers' complaint.

8 6. Following further correspondence, the Commission, by letter dated 15 ^th February 2011 claimed that it was precluded by s. 81(2) of the Act of 2005 from revealing the...