Broughall v The Comissioner of an Garda Síochána; Doyle v The Comissioner of an Garda Síochána; Waldron v The Comissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Coffey |
| Judgment Date | 07 May 2018 |
| Neutral Citation | [2018] IEHC 243 |
| Date | 07 May 2018 |
| Court | High Court |
| Docket Number | [RECORD NO. 2017 171 JR] [RECORD NO. 2017 170 JR] [RECORD NO. 2017 166 JR] |
[2018] IEHC 243
[RECORD NO. 2017 171 JR]
[RECORD NO. 2017 170 JR]
[RECORD NO. 2017 166 JR]
THE HIGH COURT
JUDICIAL REVIEW
Professional Ethics & Regulations – Garda Síochána (Discipline) Regulations 2007 – Serious breaches of discipline – Power of the Commissioner of an Garda Siochana
Facts: The applicants in three sets of separate proceedings sought orders of certiorari for quashing the appointment of the named solicitor as the presiding officer of the board of inquiry. The board of inquiry was established by the respondent ('Commissioner') for conducting an inquiry into the allegations of serious breaches of discipline against the applicants. The applicants alleged that the Commissioner had failed to comply with the principles of natural and constitutional justice, basic fair procedures and art. 6 of the European Convention on Human Rights.
Mr. Justice Coffey granted an order of certiorari in each case for quashing the purported appointment made by the Commissioner. The Court held that if a board of inquiry could not, for good reason, complete its work, the Commissioner had a derived power under reg. 25(1) of the Garda Síochána (Discipline) Regulations 2007 to establish a new board of inquiry with different members to deal with the matter de novo. The Court noted that the Commissioner did not have the power to substitute a presiding officer to an already established board of inquiry.
The applicants in these three related cases are all serving members of An Garda Síochána against whom allegations of serious breaches of discipline are made. The allegations arise from their handling and control of exhibits in the course of a murder investigation in 2007. On 10th October, 2014 the respondent ('the Commissioner'), pursuant to Regulation 25(1) of the Garda Síochána (Discipline) Regulations 2007 ('the Regulations'), established a Board of Inquiry ('the Board') to determine whether the applicants had committed the alleged breaches of discipline. For that purpose, the Commissioner 'selected' Mr. Tony Williams, solicitor, to act as the Board's 'presiding officer'.
In the exercise of its power to regulate its own procedure under Regulation 29(5), the Board sat on the 11th December, 2014 and 23rd April, 2015 to hear and rule upon preliminary issues, including an unsuccessful objection to the inquiry itself which was based on an allegation of prejudicial delay and a further allegation that the Commissioner failed to comply with the requirements of Regulation 23. On the 23rd April, 2017 the Board further determined that one hearing would take place on an unspecified date at which time all of the allegations against each of the applicants would be heard.
By letter dated 7th December, 2016, the Commissioner informed the applicants that as he had ceased to be a practicing solicitor, Mr. Williams was no longer in a position to act as the presiding officer of the Board. The letter made it known to the applicants that it was proposed to replace Mr. Williams with Mr. Karl Carney, solicitor. On the 18th January, 2017 the Commissioner, pursuant to Regulation 25(4), purported to appoint Mr. Karl Carney to the Board as its presiding officer 'in substitution for' Mr. Williams. By letter dated the 13th February, 2017, Mr. Carney, purporting to act as the Board's 'presiding officer', wrote to the applicants to confirm his appointment and to further confirm that the Board would 'resume' its hearing on the 13th February, 2017.
It is common case that Regulation 25(4) does not expressly confer on the Commissioner a power to reselect or to substitute a presiding officer, either in the circumstances that arose in these cases or at all. The applicants contend that the purported appointment of Mr. Carney was ultra vires and they seek orders of certiorari and other related declaratory reliefs to quash the appointment of Mr. Carney on the 18th January, 2017. Mr. Broughall further contends that the Commissioner failed to comply with the principles of natural and constitutional justice, basic fair procedures and Article 6 of the European Convention on Human Rights. The Commissioner opposes each of the applications on the basis that there was a derived or, if not, an implied power to make the appointment. It is contended that the power was exercised at such a time, and in such circumstances, that it did not offend fair procedures by reason of the fact that the appointment was made prior to the Board commencing its hearing of the substantive allegations against the applicants. At issue, therefore, is whether Regulation 25(4) provides for a derived or implied power to reselect or substitute a presiding officer in the circumstances which arose in these cases or at all.
The Regulations were made pursuant to s. 123 of the Garda Siochána Act 2005 and came into operation on 1st June, 2007. The Regulations provide for a self-contained regulatory scheme for dealing with allegations of breach of discipline by members of An Garda Síochána. The scheme makes a fundamental distinction between 'Less serious breaches of discipline', which are dealt with under Part 2 of the Regulations, and 'Serious breaches of discipline', to which Part 3 of the Regulations apply.
Part 3 at Regulation 23(1) provides that where it appears that a member may be in breach of discipline and subject to one of the disciplinary sanctions specified in Regulation 22, the Commissioner 'shall' appoint an investigating official to investigate the alleged breach.
Regulation 24(5) requires the investigating officer to submit to the Commissioner a written report of the investigation, within 7 days, containing his or her 'recommendation' as to whether the facts disclosed warrant the establishment of a board of inquiry, together with copies of any written statements made during the investigation and details of any information, document or thing which the investigating officer was made aware of during the investigation.
Regulation 25(1) provides that if it appears from the report of the investigation that the member concerned 'may' have committed a serious breach of discipline, the Commissioner 'shall' establish a board of inquiry in order to determine whether such a breach has been committed by the member concerned, and, if so, to recommend to the Commissioner the disciplinary action to be taken in relation to the member.
Regulation 25(2) et seq. provides for the composition of a board of inquiry as follows: -
'(2) The board shall consist of 3 persons appointed by the Commissioner.
(3) A person who has been involved in any capacity in relation to an earlier aspect of the case may not be so appointed.
(4) One member of the board (who shall preside and is referred to in this Part as the 'presiding officer') shall be a person selected by the Commissioner from a panel nominated by the Minister.
(5) Each person on the panel shall be a judge of the District Court or a practising barrister, or practising solicitor, of not less than 10 years' standing.
(6) One of the other members of the board shall be a member of a rank not below that of chief superintendent and the other a member of a rank not below that of superintendent.'
Regulation 26 gives to the member concerned a limited right of objection to the appointment of one of the Garda members of the board in the following terms: -
'(1) Not later than 7 days after being notified of the establishment of a board of inquiry, the member concerned may object in writing to one of the members of the board referred to in Regulation 25(6).
(2) Where such an objection is made, the Commissioner shall appoint another member to the board in place of the member to whom the objection relates.'
Under Regulation 27(1) a presiding officer acting on behalf of a board of inquiry is mandated to comply with the following pre-hearing procedure: -
'(1) The presiding officer shall notify the member concerned in writing, or cause the member to be so notified, at least 15 days beforehand of -
(a) the time, date and place of the hearing,
(b) the names of the members of the board of inquiry,
And
(c) the provisions of section 123(7),
and shall supply the member, or cause him or her to be supplied, with particulars of the serious breach of discipline alleged.'
The legal consequences of Regulation 27(1)(c) were described by O'Donnell J. in Garda John Kelly v. Commissioner of An Garda Siochána [2013] IESC 47 as follows: -
'32. ...There is an inquisitorial element to this procedure. It is for the Board of Inquiry to formulate the breaches of discipline alleged and provide particulars thereof, and to provide notice of such allegations to the member concerned. It follows therefore that the Board of Inquiry will have had some degree of prior engagement with the facts, and importantly in the present context, will have made some assessment of their significance...'
Under the heading ' Procedure at hearing', Regulation 29(5) provides that '[s]ubject to these regulations, a board may regulate its own procedure.' Regulation 29 otherwise provides for the following mandatory procedures 'at a hearing':-
'(1) At a hearing the board of inquiry -
(a) shall give the member concerned an opportunity to be heard and to respond to any matters raised,
(b) may -
(i) permit any person to give evidence orally or in writing, and
(ii) ask questions of any person who has given evidence,
and
(c) shall consider and decide on a request by any person to give evidence relevant to the proceedings orally or in writing.
(2) In its...
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