Bracken v The Commissioner of an Garda Siochana

• Jurisdiction: Ireland
• Judge: Mr. Justice Meenan
• Judgment Date: 13 November 2020
• Neutral Citation: [2020] IEHC 710
• Court: High Court
• Docket Number: [2020 No. 187 JR]

BETWEEN

AIDAN BRACKEN

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT

[2020] IEHC 710

Meenan

[2020 No. 187 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Dismissal – Regulation 39 of the Garda Síochána (Discipline) Regulations 2007 – Applicant seeking an order of certiorari quashing the decision of the respondent – Whether the facts were entirely clear

Facts: The applicant, Mr Bracken, in March, 2020, was granted leave to seek by way of judicial review a number of reliefs, which included: (i) an order of mandamus requiring the respondent, the Commissioner of An Garda Síochána, to furnish replies to the applicant regarding his correspondence of 6 February 2020, 18 February 2020 and 26 February 2020; (ii) an order of mandamus requiring the respondent to provide adequate reasons for his decision to dismiss the applicant, communicated by letter dated 15 January 2020; and (iii) an order of certiorari quashing the decision of the respondent, taken in or around 15 January 2020 and notified to the applicant on 24 January 2020, to dismiss, subject to consent of the Policing Authority, the applicant from An Garda Síochána. In his statement of opposition, the respondent maintained by way of preliminary objection that the only step which the respondent had taken to date was a proposal to dismiss the applicant, which proposal was no more than a first step in an ongoing process in which the applicant had been invited to make submissions. The applicant relied on the provisions of Regulation 39 of the Garda Síochána (Discipline) Regulations 2007. The respondent considered that the admitted act and criminal conduct of the applicant constituted one of the breaches of discipline, within the meaning of Regulation 5, upon which the respondent was entitled to, and did properly, make his proposed decision to dismiss the applicant. The respondent also referred to the applicant’s failure to appear before Bray District Court, on 6 March 2017 and 13 March 2017, “without good and sufficient cause” when he was obliged to do so in the following terms: “On the two said occasions, the applicant was obliged to attend the said court for the purposes of receiving the book of evidence in respect of the above charge against him and on the occasion of his second nonattendance a bench warrant was issued by the District Judge for the applicant’s arrest.”

Held by the High Court (Meenan J) that Regulation 39 ought to be used sparingly and only in circumstances where the facts are entirely clear to the point that the holding of an inquiry would be pointless. Meenan J held that the terms of the order of the Circuit Court were ambiguous and, for the purposes of Regulation 39, raised a serious question as to whether there was in fact a conviction. It seemed to Meenan J that if the respondent was going to rely on the order of the Circuit Court of 14 January 2019, an application ought to have been made to the Court to clarify the terms of the order and this was not done. Meenan J noted that the respondent’s decision of 15 January 2020 referred to “discreditable conduct” on the part of the applicant in that on two occasions, “without good and sufficient cause”, he failed to appear before the District Court, as required, to receive a book of evidence. Meenan J found that the use of the term “without good and sufficient cause” implied that there may be good reasons why the applicant did not appear before the District Court on the two occasions, suggesting at the very least that the respondent ought to have made some inquiries and, without having done so, could not reasonably be of the view that holding an inquiry “could not affect his or her decision in the matter”. Meenan J did not accept that the applicant’s application for judicial review was premature in that there was an ongoing process which had not concluded; the fact that the respondent repeatedly ignored correspondence both from the applicant and his solicitor could only lead to the reasonable conclusion by the applicant that the process had been completed with the only step remaining being the consent of the Policing Authority.

Meenan J held that the applicant was entitled to an order of certiorari quashing the decision of the respondent, taken in or around 15 January 2020 and notified to the applicant not before 24 January 2020, to dismiss, subject to the consent of the Policy Authority, the applicant from An Garda Síochána.

Relief granted.

JUDGMENT of Mr. Justice Meenan delivered on the 13th day of November, 2020

Background

1 The applicant joined An Garda Síochána in 1994. Originally, he was stationed in Dublin but was then transferred to the Kildare Division in 2004 being stationed in Carbury, a small rural substation. However, not long after being stationed in Carbury, the applicant became aware of the activities of organised criminal gangs operating in the area. The applicant became involved in the investigation of a particular gang who were running an extortion racket. Following investigation and prosecution, five members of this gang were convicted and received lengthy prison sentences. Subsequently, the applicant stated that this gang targeted himself and other colleagues also stationed in Carbury and that they were warned of a serious threat to their safety.

2 Following the conclusion of the investigation, and the subsequent convictions of members of the gang referred to, the applicant became involved in the investigation of local criminals who had been involved in crime in the area for a number of years. This particular gang also had a violent reputation in the area and a history of intimidating witnesses. The applicant maintained that this criminal group made threats towards himself and other Gardaí stationed in the area. These threats were both personal threats and also threats directed against his wife and family. In the few years before 2015, these threats escalated and the applicant received a number of formal notices from his superiors in An Garda Síochána to the effect that his life was in danger. The result of these ongoing serious threats was that the applicant suffered psychiatric injuries.

3 Following consultation with his GP, on 2 September 2015, the applicant was admitted to St. Edmundsbury Hospital due to a risk of suicide. A detailed and comprehensive report was prepared by Dr. Noel Kennedy, Consultant Psychiatrist, dated 17 July 2018, and forwarded to the respondent. From as early as August, 2015, there was correspondence between the various medical professionals who were treating the applicant and the Garda Chief Medical Officer. However, despite this, the respondent never prepared a report on the applicant's injuries.

4 The applicant successfully took judicial review proceedings against the respondent concerning the failure on the part of the respondent to respond to his application to be considered “ injured on duty”. Leave in respect of these proceedings was granted on 21 October 2019 and, thereafter, a motion seeking an injunction to prevent the respondent from ceasing TRR payments was issued. The respondent consented to the injunction and re-instated the said payments. These proceedings came on for hearing on 14 February 2020. Following discussions between the parties, the respondent conceded and it was agreed that a decision would be provided to the applicant before the end of June, 2020 together with payment of his costs.

5 Arising out of the said threats and intimidation, the applicant made a number of reports to the Gardaí, but also made a false report of threats. Arising out of this false report, the applicant was charged in the Circuit Court with an offence contrary to s. 12 of the Criminal Law Act 1976 (making false reports regarding threats to a person's safety) in respect of an alleged threat of 20 July 2015.

6 Directions were received on 21 September 2016 from the DPP to prosecute the applicant with one count of making a false report, the prosecution to proceed on indictment. The applicant was arrested by appointment on 2 February 2017. On 6 March 2017, the applicant failed to appear before Bray District Court, as required, to receive a...