Canavan v Commissioner of an Garda Síochána

JudgeMs. Justice Baker
Judgment Date03 May 2016
Neutral Citation[2016] IEHC 225
Docket Number[2015 No. 617 JR]
CourtHigh Court
Date03 May 2016

[2016] IEHC 225



Baker J.

[2015 No. 617 JR]


Employment – Reg. 7 of the Garda Siochana (Discipline) Regulations – Disciplinary action – Suspension – Failure to give reasons – Judicial review – Prohibition – Due process

Facts: The applicant sought an order of prohibition of his further suspension from his service on the basis of alleged breaches of discipline committed during the time he was on an extended period of sick leave. The applicant also sought an order prohibiting the respondent from continuing the internal disciplinary investigation against him. The applicant contended that the suspension imposed upon him was a penalty and violation of due process as he was not permitted to work elsewhere during ordinary working hours to earn a livelihood and given a reduced pay. The applicant contended that there had been delay in conclusion of the internal inquiry and thus, the said inquiry should not be continued further as it would affect him personally as wells as financially.

Ms. Justice Baker refused to grant the desired reliefs to the applicant. The Court held that in order to seek an order of prohibition of an internal inquiry on the basis of delay, the applicant had to prove an extreme form of delay. The Court observed that the disciplinary actions were often a matter of concern and anxiety to the applicant, which, in the absence of grave and compelling reasons, were insufficient to warrant an order of prohibition. The Court opined that the principles of natural justice and fairness were inapplicable in relation to the decision of an employer to impose a holding suspension. The Court found that though, there had been unnecessary delay in the present case and the applicant had not been given any explanation for his continued suspension, still the balance of justice did not favour the applicant as the Court could only interfere with the impugned decision only after the conclusion of the inquiry. The Court held that the respondent had no obligation to provide reasons for its decision for suspension as it was not a final adjudication concerning the conduct and guilt of the applicant.

JUDGMENT of Ms. Justice Baker delivered on the 3rd day of May, 2016.

The applicant is a member of An Garda Síochána currently attached to Pearse Street Garda Station, Dublin. He seeks by way of judicial review, an order of prohibition to prevent the respondent from continuing a process of internal disciplinary investigation against him arising out of the matters I deal with below. He also seeks an order prohibiting the respondent from further suspending him from duty on foot of alleged breaches of discipline. He also seeks various declaratory orders arising from what is said to be the inordinate and inexcusable delay in the investigation of these alleged breaches of discipline.


Humphreys J. on the 9th November, 2015 granted leave to seek judicial review for 18 reliefs in total, one less than the number of reliefs in respect of which the ex parte application was brought, on all of the grounds set forth. More complete particulars of the nature of the relief sought and the grounds will appear in the body of the judgment.


On 9th May, 2014, the applicant returned to work following an extended period of sick leave which had commenced in December, 2013. On the 21st May, 2014 the applicant informed Inspector Liam Geraghty of Pearse Street Garda Station that he wished to initiate a grievance procedure against two of his superior officers, and that his preference was to initiate the grievance verbally and fill out the specific reasons and causes for complaint on a day which suited Inspector Geraghty. However, on the 23rd May the applicant was contacted by an Inspector Mooney and informed that he had been suspended from duty. Later that day a formal notice of suspension pursuant to Regulation 7 of the Garda Síochána (Discipline) Regulations 2007, (‘the Regulations of 2007’) was served, and the reason given was that he had failed to prosecute certain cases in the years 2012 and 2013.


The initial period of suspension was from the 23rd May, 2014 to the 2nd June, 2014 and this was followed by a series of notices of suspension for successive periods of three months from the 1st June, 2014 to date.


On the 29th May, 2014 the applicant was served with a notice of investigation pursuant to Regulation 24 of the Regulations of 2007 with respect to this alleged breach of discipline, stated in general terms as a failure ‘to prosecute various cases before the Courts on various dates in 2012 and 2013’. On the 31st March, 2015 the applicant was served with a further notice of investigation in respect of three other alleged breaches of discipline. An intermediate notice of investigation was discontinued.


On the 25th August, 2014 the solicitors for the applicant wrote to the respondent complaining about the failure to give reasons for the suspension, and the delay in dealing with the disciplinary investigation. At that stage only one investigation was in train. That letter was not replied to until the 8th October, 2014 following a reminder from the solicitors for the applicant, albeit the respondent did send a holding letter on the 26th August, 2014. The letter of the 8th October, 2014 identified the alleged failure of duty but offered no reason as to why a suspension of the applicant was appropriate in the circumstances.


It was not until a letter of the 29th October, 2015 that a degree of clarity is found in relation to the reason alleged to justify the suspension. That letter identifies the reason for suspension as that he ‘failed to prosecute various cases before the Courts on various dates in 2012 and 2013’ and also his failure ‘to progress a number of criminal investigations during 2012 and 2013, including that he failed to lodge with the courts charge sheets and bail bonds and also failed to transmit tracking forms and Court Schedules to the Court Presenters Office’. On the 31st March, 2015 he was informed of further reasons, that he failed to ‘properly record items of public property, in line with the requirements of the Garda Code, that he failed to record substances believed to be illegal drugs and failed to properly investigate an incident contrary to s.49 of the Road Traffic Acts 1961 – 2006’.


In the meantime certain alleged breaches of criminal law were being investigated and the applicant was called for a cautioned interview on the 29th May, 2015 at which he claims it became clear that the matters under investigation allegedly occurred when he was out on sick leave and when charge sheets were found outside his locker. A file was submitted to the DPP on the 21st October, 2015 who issued directions on the 7th January, 2016 that prosecution of the applicant was not warranted in respect of these allegations.


The respondent answers the argument of delay in part by stating that the disciplinary inquiry was stayed pending the conclusion of the criminal investigation. The applicant argues in response, that prior to the 29th May, 2015 he was not aware that any criminal investigation was under way, and that the period of 12 months between his initial suspension and the notification of such an investigation would suggest that it could not have been a justifying reason for the suspension.

A power to suspend

Regulation 7 of the Regulations of 2007 confers on the Commissioner the power to suspend a member from active duty. Such power arises in the context identified by the Regulations as follows:

‘7(1) Where, in the opinion of the Commissioner, the circumstances render such a course desirable in the interests of the Garda Síochána, he or she may suspend a member from duty.’


The Regulation provides expressly that a suspension must be reviewed by the Commissioner every three months, albeit non-compliance with that provision does not of itself invalidate a suspension. A member who is suspended from duty may suffer varying degrees of financial or other penalty.


The Commissioner has adopted a policy document in the form of guidelines on the use of Regulation 7 for the purposes of the suspension of members. The relevant document at the time the applicant was originally suspended on the 25th May, 2014, was HQ Directive 159/08, replaced on the 9th September, 2015, by HQ Directive 75/15. This deals with a number of matters such as the level of suspension allowance payable to a member, whether other allowances are to be paid to such member and the list of prohibited spare time activities and hours in respect of which these are prohibited.


In the present case the applicant has been paid what is termed a ‘suspension allowance’, lower that his ordinary remuneration. He is also, by virtue of his suspension, not permitted to engage in employment outside the Force between 9 am and 5 pm daily. The applicant asserts that suspension is to be characterised as a penalty in respect of which a particular degree of scrutiny must be exercised by the court, and which cannot be imposed arbitrarily.


In Flynn v. An Post [1987] I.R. 68 the Supreme Court held that a suspension of an employee for a three year period ceased to be valid after a point when the disciplinary investigation ought to have been ready to proceed, which in that case the court measured as four months after the date of suspension. At p.76 of the judgment, Henchy J. said as follows:

‘In a bilateral situation, such as existed here between an employer and employee in regard to the right to suspend and dismiss for disciplinary reasons, justice cannot be treated as a one-way street. The rights of both parties must be taken into account for the purpose of determining which of the claimed rights should...

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    ...Westmeath Education and Training Board 2017 IEHC 272,The Bank of Ireland -v- Reilly (2015) IEHC 241, Canavan -v- An Garda Síochana (2016) IEHC 225,Re Haughey (1971) IR 217, Flanagan -v- UCD (1988) 1 IR 724, Gallagher –v- The Revenue Commissioners (1995) 1 IR 55, Borges -v- The Fitness Pract......
  • Canavan v Commissioner of an Garda Síochána No.2
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    • 16 March 2018
    ...investigations then in being. Judgment was delivered by me on the 3rd May, 2016, Canavan v. Commissioner of An Garda Síochána [2016] IEHC 225, in which inter alia I refused to prohibit the continuation of the disciplinary investigations, although, having taken the view that the continued su......
  • Brannock v Commissioner of an Garda Siochana
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    ...suspend a member of An Garda Siochána attracts was expressly addressed by the High Court in Canavan v Commissioner of An Garda Siochána [2016] IEHC 225, in which the Court (Baker J.) emphasised the distinction between ‘holding suspensions’ on the one hand and ‘lengthy suspensions’ on the ot......
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    ...reference was made to a number of cases, notably, I think, the judgment of Baker J. in Canavan v. Commissioner of An Garda Síochána [2016] IEHC 225 – the case was fought on the basis that the plaintiff had not made out a case that the suspension was not necessary or that the investigation h......
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