CORCORAN v HOLMES & an GARDA Síochána COMPLAINTS BOARD
| Jurisdiction | Ireland |
| Judge | McCracken J. |
| Judgment Date | 08 May 2006 |
| Neutral Citation | [2006] IESC 28 |
| Court | Supreme Court |
| Docket Number | Record No. 2004/098 |
| Date | 08 May 2006 |
[2006] IESC 28
THE SUPREME COURT
McCracken J.
Macken J.
O'Donovan J.
BETWEEN
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S3
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6(5)
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(1)
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(5)
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S8
GARDA SIOCHANA (COMPLAINTS) ACT 1986 SCHED 2
ORANGE COMMUNICATIONS LTD v DIRECTOR OF TELECOMMUNICATIONS REGULATION AND METEOR MOBILE COMMUNICATIONS LTD 2000 4 IR 159
O'NEILL v BEAUMONT HOSPITAL BOARD 1990 ILRM 419
O'NEILL & BOVA GENETICS LTD v IRISH HEREFORD BREED SOCIETY LTD 1992 1 IR 431 1991 ILRM 612
These are Judicial Review proceedings in which the appellant is seekinginter alia the following reliefs:-
2 "(1) An Order of Prohibition by way of application for judicial review prohibiting the first and second named respondents and each and either of them from taking any further steps in the statutory proceedings the subject matter of this application.
(2) An injunction by way of application for judicial review restraining the second named respondents and each and either of them from taking any further steps in the statutory proceedings the subject matter of this application.
(3) An order prohibiting the second named respondent from the exercise of any of its powers conferred by virtue of the provisions of section 7 of An Garda Siochana (Complaints) Act 1986".
The appellant is also claiming certain consequent declaratory reliefs.
The matter was heard before the High Court (Murphy J.) and by a judgment of 5th February 2004 the application was refused.
On 5th May 2002 a demonstration took place in the centre of Dublin known as "Reclaim the Streets March". In the course of the demonstration there were clashes between members of the public and members of An Garda Siochana and subsequently there was a great deal of media coverage which was very critical of the actions of certain Gardai. The appellant is a member of the Gardai and was on duty at the time of this demonstration.
The second named respondent (herein called "the Board") is a statutory body set up under the provisions of the Garda Siochana (Complaints) Act1986 and the first named respondent (herein called "the Chairman") was at all relevant times chairman of the Board. Subsequent to the demonstration, the Board received some forty one complaints against members of the Gardai and five of these complaints were subsequently identified as being complaints against the appellant. Four such complaints alleged assault on his part and the fifth complaint alleged that he had failed to wear any identification on his uniform. For reasons which will appear later, these proceedings only concern the latter complaint.
Following a meeting of the Board on 18th November 2002 the Board issued a press release relating to the demonstration and the complaints against the Gardai which stated,inter alia, as follows:-
"A further aspect of the investigation the Board examined was that, save with limited exceptions, Garda members who were on duty at the march failed to make statements to the investigation team despite having been invited to do so. In particular, the Board noted that no Garda member had supplied any evidence or material to the effect that another member might have been involved in conduct which would constitute a breach of discipline. The Board is concerned with the general lack of co-operation involved and it is considering the steps it might take, within the scope of the 1986 Act, to obtain statements from specific members."
While the Board is very disappointed with the response of most of the individual members who are contacted it also wishes to acknowledge the very full and extensive co-operation which was received from the Garda authorities. Without that support and assistance the investigation would undoubtedly have been much more difficult and would not have proved to be so successful."
On the same day the chairman was interviewed on the radio programme "Five Seven Live" and in the course of the interview said:-
"Unfortunately the situation was that we had film available, which identified clearly Gardai who were not involved. Equally those films showed very often the backs of Gardai who were wielding a baton with perhaps you might say excessive enthusiasm. And we could not identify those members of the Gardai. But when we asked their colleagues who were not being charged with anything, we found that each and every one of them seemed to forget who they were and we could not get any identification. We did not get identification in any one case from a colleague. I suppose that speaks well of their loyalty to their colleagues. But unfortunately it does not speak that well of their loyalty to the Garda Siochana generally, because it is something we did not like."
When asked how many Gardai would he estimate had failed to co-operate, he replied:-
"Difficult to say that because we…some of the Gardai…there is a great deal of duplication involved. But certainly there are probably eight or nine other members of the Gardai…who probably might well have been charged with some breach of discipline or something of nature had we had full co-operation."
In addition, the Board held a Press Conference on the same day, of which a transcript is not available but it is alleged that similar sentiments were expressed by the chairman.
The appellant seeks to prohibit any further investigation of the complaints against him on the basis that these statements were made on behalf of the Board and show objective bias in that a reasonable person would apprehend that a fair trial of the charges against the appellant would not take place by reason of these statements. It should be said that there is no allegation against the chairman, or indeed any other individual members of the Board, of actual bias.
In support of his argument, the appellant also points to the fact that, in the immediate aftermath of the demonstration, a photograph appeared in a daily newspaper showing the applicant taking part in the Garda reaction to the demonstration. In my view this is totally irrelevant and could have nothing to do with any perceived bias against either of the respondents.
The Board was set up under section 3 of the Garda Siochana (Complaints) Act1986 and its powers in relation to complaints are very wide-ranging. It is empowered to deal with complaints made either orally or in writing, and made either directly to the Board or to a member of the Garda Siochana at a Garda Station or to a member above the rank of Chief Superintendent at a place other than a Garda Station. Such complaints must be made within six months of the date of the conduct complained of.
The following are the provisions of the Act relevant to the present dispute:-
"(a) Notwithstanding anything in this Act, the Board may, at any time, request the chief executive to investigate, or cause to be investigated, a complaint if the Board considers that the public interest requires that the complaint should be so investigated or that the investigation of the complaint under this Act has not been or is not being properly carried out and, where such a request is made, any investigation under any other provision of this Act of the complaint concerned shall thereupon cease."
"If, after consideration of:-"
(a) a report or reports of an investigating officer submitted to the Board under section 6 of this Act and the relevant comments and recommendation of the chief executive so submitted to the Board, or
(b) the report of the chief executive and the result of an investigation under subsection (5) of that section,
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