Andrew Keegan v Garda Síochána Ombudsman Commission

 
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[2012] IESC 29

THE SUPREME COURT

Fennelly J.

O'Donnell J.

McKechnie J.

Record No. 20/2012
Keegan v Garda Siochana Ombudsman Cmsn
BETWEEN/
ANDREW KEEGAN
Appellant/Applicant
-AND-
GARDA SÍOCHÁNA OMBUDSMAN COMMISSION
Respondent/Respondent

20/2012 - Fennelly [nem diss] O'Donnell McKechnie - Supreme - 1/5/2012 - 2012 2 IR 570 2012 20 5800 2012 IESC 29

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)

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

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

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

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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.

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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.

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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.

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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.

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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.

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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 identity of the person who had made a complaint, but, having regard to the fact that the name of Mr Seavers had been referred to in the notice from Chief Superintendent Manley, the Commission stated that the "determination to initiate a section 102(4) investigation…[had been] made having regard to the matters raised in the inadmissible complaint of Mr Seavers."

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7. In the same letter as well as in a separate letter addressed personally to the appellant, the Commission stated that it had received one complaint from Mr Seavers on 19 th November 2007 and that this complaint had been found to be inadmissible as it was out of time.

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8. On 3 rd March 2011, the Senior Investigations Officer of the Respondent invited the appellant to attend for "interview" at the offices of the Commission 4 th April 2011 in order to progress the investigation pursuant to the provisions of s.95 of the Act of 2005. The appellant was also given formal written notice of the alleged breaches of discipline which were under investigation: eighteen allegations of "neglect of duty" and seven of "falsehood or prevarication." The material provided to the appellant included a statement of the sanctions that might apply in the event that, following the report of the investigators, the Garda Commissioner should find that a serious breach of discipline had been committed. The potential penalties ranged from reduction of pay not exceeding four weeks to dismissal.

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9. On 8 th June 2011, the High Court (Hedigan J) granted leave to the appellant to apply for judicial review by way of prohibition or injunction of the investigation on two principal grounds advanced in the appellant's statement of grounds, namely:

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· That Act of 2005 did not come into force until 9 th May 2007, i.e., after the occurrence of the matters complained of and that the Act made no provision that it was to have retrospective effect;

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· Bias by prejudgment on the part of the officer conducting the investigation, who, for reasons not relevant to the present appeal, had by that stage replaced Chief Superintendent Manley.

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10. By a notice of motion issued on 21 st December 2011, the appellant applied for leave to amend the grounds on which he sought judicial review by adding the following single ground:

"The respondent having determined pursuant...

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