Catherine Mcgowan v Commissioner of an Garda Síochána

JurisdictionIreland
JudgeMs. Justice Baker
Judgment Date03 April 2014
Neutral Citation[2014] IEHC 173
CourtHigh Court
Date03 April 2014

[2014] IEHC 173

THE HIGH COURT

[No. 662 J.R./2013]
McGowan v Cmsr of An Garda Siochana
Approved Judgment
JUDICIAL REVIEW

BETWEEN

CATHERINE MCGOWAN
APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENT

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007

INTERPRETATION ACT 2005 S27(2)

MCGRATH v CMSR OF AN GARDA SIOCHANA UNREP SUPREME 26.1.93 1998/25/ 9906 (EX TEMPORE)

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

GIBBONS v CMSR OF AN GARDA SIOCHANA UNREP EDWARDS 30.7.2007 2007/26/5247 2007 IEHC 266

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 51

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 13

GARDA SIOCHANA (DISCIPLINE) (AMDT) REGS 2011 SI 620/2011 REG 13(2)

GARDA SIOCHANA (DISCIPLINE) (AMDT) REGS 2011 SI 620/2011 REG 13(3)

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 13(1)

INTERPRETATION ACT 2005 S27

INTERPRETATION ACT 1937 S22(2)

INTERPRETATION ACT 2005 S27(1)(C)

O'SULLIVAN v SUPERINTENDENT OF TOGHER GARDA STATION 2008 4 IR 212 2008/51/10849 2008 IEHC 78

LOCAL GOVT (PLANNING & DEVELOPMENT) ACT 1963 S55

J WOOD & CO LTD v WICKLOW CO COUNCIL 1995 1 ILRM 51 1994/11/3153

MCKONE ESTATES LTD v DUBLIN CO COUNCIL 1995 2 ILRM 283 1995/10/2858

FLYNN CONSTRUCTION CO LTD v BORD PLEANALA 2000 1 IR 497 1999/21/6511 1999] IEHC 259

LOCAL GOVT (PLANNING & DEVELOPMENT) GENERAL POLICY DIRECTIVE (SHOPPING) 1998 SI 193/1998

LOCAL GOVT (PLANNING & DEVELOPMENT) GENERAL POLICY DIRECTIVE 1982 SI 264/1982

START MORTGAGES LTD v GUNN UNREP DUNNE 25.7.2011 2011/46/13101 2011 IEHC 275

REGISTRATION OF TITLE ACT 1964 S67(2)

BENNION & GOODALL BENNION ON STATUTORY INTERPRETATION 5ED 2010 309

DIRECTOR OF PUBLIC WORKS & ANOR v HO PO SANG & ORS 1961 2 AER 721 1961 AC 901 1961 3 WLR 39

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 8(1)

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 10(1)

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 10(2)

INTERPRETATION ACT 2005 S4(1)

DODD STATUTORY INTERPRETATION 2008 PARA 4.47

Judicial Review - An Garda Síochána – Investigation – Breaches of Discipline – Inquiry – Witnesses – Regulations – Preliminary Objections – Time Limits – Delay – Disciplinary Regimes – Practice and Procedure

Facts: The applicant, a serving member of An Garda Síochána, had been investigated for various breaches of discipline in the course of a 2005 investigation. Having determined that the alleged breaches of discipline were of such a serious nature that they warranted the holding of a sworn inquiry, the applicant was notified on the 19th June 2013 and requested to attend on the 23 rd July 2013. The applicants solicitor, Sean Costello subsequently raised the preliminary point that the inquiry proposed to be held under the Regulations was invalid as it was proposed to hold it under the 1989 Regulations, which had by then been replaced by the Garda Síochána (Discipline) Regulations 2007 ("2007 Regulations"). The applicant argued that as these regulations had been repealed and as the repealing provisions had had the effect of requiring the new 2007 procedures be used in all investigations commenced after 2007 that, even in respect of matters which were alleged to have occurred before that date, the proposed inquiry was invalid. The respondent, however, argued that the investigation had begun in 2005, before the 2007 Regulations and that as the investigation was underway at the time of the repeal of the 1989 Regulations, it was saved, inter alia, by the provisions of s.27(2) of the Interpretation Act 2005. The respondents also argued that the applicant was time barred and barred by delay from seeking judicial review, as the present investigation had begun in 2011, and that it was apparent from documentation that the appointment of the investigating officer was being made under the 1989 Regulations, which the applicant acknowledged with her signature in receipt of the said notice. Depending upon precedent cases, the Board of Inquiry held against Mr. Costello”s objection and an application for judicial review was subsequently made on the 2 nd Sept 2013, and leave was granted by Justice White for the following reliefs: (a) an order of certiorari by way of application for judicial review quashing the respondent's decision to commence and continue the disciplinary proceedings; (b) a declaration by way of application for judicial review that there existed no jurisdiction or lawful authority for the disciplinary proceedings which had been commenced concerning the applicant; and (c) an order of prohibition by way of application for judicial review restraining the holding of a sworn inquiry proposed to be held on 24th September, 2013.

Held by Justice Baker, having examined the applicable laws and regulations, that the submission that the applicant is out of time was incorrect. He determined that, the applicant was entitled to challenge the decision made on the 19 th June 2013 as it was at this point that a real risk to her had materialised and at that time it was apparent that the respondent intended to hold a formal investigation and had established a sworn inquiry for that purpose. Secondly, in respects of the respondent”s submission that the applicant should be denied relief on the grounds that she had been guilty of delay, Justice Baker reasoned that the application had been brought within time, and that the court would not strike out the proceedings for delay. Justice Barker, argued that the respondent had not suffered any prejudice as the 1989 Regulations had been repealed some years before the procedure commenced and that this was not a case where the procedural rules had been newly changed. Finally, in deciding whether or not the inquiry had not been properly constituted as it was purported to be brought under regulations which had not been in force at the time of the alleged breaches, Justice Baker reasoned that the respondent did not have an acquired or vested right to commence the inquiry at the date of the repeal that was capable of being preserved by s. 27 of the Act of 2005. Thus, it was stated that the respondent did not at the date of repeal have a right to avail of the repealed enactment which could be saved by the Act of 2005. Consequently, Justice Baker was satisfied that the applicant had made a case for an order prohibiting the holding of the sworn inquiry.

1

1. The applicant is a serving member of An Garda Síochána who is alleged to have committed various breaches of discipline in the course of her investigation, commenced in the year 2005, into a complaint of sexual abuse made by an identified individual against a Catholic priest.

2

2. On 4 th August, 2011, Chief Superintendent Thomas Conway was appointed under the provisions of the Garda Síochána (Discipline) Regulations 1989 ("1989 Regulations") to investigate these alleged breaches of discipline on the part of the applicant. At the conclusion of his investigation, he formed an opinion that the alleged breaches of discipline were of such a serious nature that they warranted the holding of a sworn inquiry, and on or about 19 th June, 2013, the applicant was given notice of the respondent's intention to hold such a sworn inquiry and of the appointment of Chief Superintendent Catherine Kehoe, Superintendent Mary Delmar, and Superintendent Patrick Murray to preside over that inquiry which was scheduled to open on 23 rd July, 2013.

3

3. The applicant was notified of the intention to hold the sworn inquiry by a letter of 19 th June, 2013, which was accompanied by a so-called "witness notification" which set out the alleged breaches of discipline in respect of which the investigation was to happen. This document requested the attendance of the applicant at the inquiry and it is clear from the recitals in the documents that the purpose of the inquiry was to establish material facts in relation to the alleged breaches.

4

4. By letter dated 19 th July, 2013, Sean Costello & Company Solicitors who acted, and continue to act, for the applicant wrote to the Assistant Commissioner of An Garda Síochána raising a preliminary point that the inquiry proposed to be held under the Regulations was invalid as it was proposed to hold it under the 1989 Regulations, which had by then been replaced by the Garda Síochána (Discipline) Regulations 2007 ("2007 Regulations"). The reply from An Garda Síochána suggested that the matters should be raised by way of submission to the sworn inquiry and Mr. Costello appeared at the opening of the sworn inquiry on Tuesday, 23 rd July, 2013, and made this preliminary objection.

5

5. It is not in doubt that the sworn inquiry proposed to conduct its investigations under the procedures and rules set out in the 1989 Regulations. The applicant argues that as these Regulations had been repealed and as the repealing provisions had the effect of requiring the new 2007 procedures be used in all investigations commenced after 2007 that, even in respect of matters which were alleged to have occurred before that date, the proposed inquiry was invalid.

6

6. The respondent argues that the effect of the repeal is not as argued by the applicant and that in truth the investigation started in 2005, before the 2007 Regulations came into force and that as the investigation was underway at the time of the repeal of the 1989 Regulations, it was saved, inter alia, by the provisions of s. 27(2) of the Interpretation Act 2005 ("Act of 2005").

7

7. Counsel for the respondent also argues by way of preliminary objection that the applicant is out of time for bringing this judicial review and/or that the review is barred by delay, and points in particular to the fact that the investigation commenced on 4 th August, 2011, and that it was clear from the documentation...

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