Culbert v Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Ms. Justice Iseult O'Malley |
| Judgment Date | 10 July 2015 |
| Neutral Citation | [2015] IEHC 442 |
| Court | High Court |
| Docket Number | [Record No.2014/179 JR] |
| Date | 10 July 2015 |
[2015] IEHC 442
THE HIGH COURT
JUDICIAL REVIEW
O'Malley Iseult J.
[Record No.2014/179 JR]
Employment – Government – Garda Siochana (Discipline) Regulations, 2007 – Dismissal from services – Reasoned decisions
Facts: Following the decision of the respondent to dismiss the applicant, after receiving a report from a board of inquiry without specifying decisions and then asking the said board to reconvene to give reasons pending the appeal of the applicant with the Appeal Board in lieu of the decision of the Supreme Court in Kelly v Commissioner of An Garda Siochana [2013] IESC 47, the applicant now sought an order of prohibition restraining the respondent from taking further action. The applicant also sought an order of certiorari in relation to the appointment of the board of inquiry and the Appeal Board.
Ms. Justice Iseult O'Malley granted an order of certiorari quashing the determination and recommendation of the board of inquiry and declared the decision of the Commissioner as void. The Court granted an order for remission of the case to be reheard by a board of inquiry. The Court in consonance with the principles laid down in Kelly v Commissioner of An Garda Siochana (supra) opined that any decision that had been arrived at without specifying the basis and reasons as to how it was arrived at would be void as it became impossible to know what view the respective decision-makers had taken at the relevant point of time. The Court found that the procedure adopted by the respondent requiring the Appeal Board to have the reasons while the Commissioner who had accepted the recommendation did not was unreasonable and unjust.
These proceedings concern certain procedures adopted by the respondent in the course of a disciplinary process against the applicant, as a result of the decision of the Supreme Court in Kelly v. Commissioner of An Garda Síochána [2013] IESC 47. The Supreme Court determined that, upon a true construction of the Garda Síochána (Discipline) Regulations, 2007, a board of inquiry convened under the regulations is obliged to give reasons for its findings and for the recommendation that it makes to the Commissioner.
In this case the respondent made a decision to dismiss the applicant, after receiving a report from a board of inquiry. The specific issues in the case arise from the fact that, while the applicant's appeal against the respondent's decision to dismiss him was pending, the board of inquiry that had considered his case was asked to reconvene in order to give reasons for its recommendation that he be dismissed.
In so far as it is relevant to these proceedings, a Garda disciplinary process commences with an internal investigation. Having considered the results of that investigation, the Commissioner may establish a board of inquiry. That body makes findings on the charges made against the member and recommendations as to what, if any, disciplinary action should be taken. The Commissioner then decides whether or not to accept that recommendation. There is a right of appeal to an Appeal Board from the decision of the Commissioner.
In December, 2011, the respondent appointed a senior officer to investigate alleged breaches of discipline concerning the applicant. As a result of that investigation a board of inquiry was established on 20th May, 2013, in accordance with the provisions of Regulation 25 of the regulations.
The breaches of discipline as alleged against the applicant were disobedience of orders, two counts of falsehood, improper practice and abuse of authority. It is not necessary, for the purposes of this judgment, to set out any of the detail of the matters giving rise to those allegations. There is no dispute about the fact that, if established, they came within the definition of ‘serious’ breaches of discipline as dealt with in Part 3 of the regulations. A ‘serious’ breach is one which, in the opinion of the Commissioner, may be subject to dismissal, requirement to retire or resign as an alternative to dismissal, reduction in rank, or reduction in pay.
The board of inquiry convened on the 4th September, 2013. Each alleged breach of discipline was formally put to and admitted by the applicant. Evidence in relation to the charges was adduced. Witnesses as to character were called on behalf of the applicant, and written and oral submissions were presented in mitigation of penalty.
At the conclusion of the hearing the board found the applicant in breach of discipline in respect of each of the five counts. In accordance with its statutory functions the board made a report, containing its recommendation to the respondent with regard to the taking of disciplinary action. The recommended action was dismissal. The report was in a standard form and the board did not give reasons for its recommendation.
On the 4th October, 2013, the respondent ordered that the applicant be dismissed from An Garda Síochána with effect from midnight on the 25th October, 2013. The decision was communicated by way of a standard form which simply recited that, ‘having regard to’ the recommendation of the board of inquiry, the respondent had decided to dismiss him.
Regulation 33 provides that not later than seven days after receiving notification of the Commissioner's decision, the member concerned may give notice of appeal against the determination of the Board of Inquiry, or the disciplinary action decided on, or both. The regulation further provides at paragraph (3) that the appeal may be based on one or more of the following grounds:
(a) specified provisions of the regulations were not complied with;
(b) the determination is not justified, having regard to the evidence heard by the board of inquiry;
(c) all of the relevant facts –
(i) were not ascertained,
(ii) were not considered, or
(iii) were not considered in a reasonable manner;
(d) the member was not given a reasonable opportunity to be heard and to respond to matters raised;
(e) the disciplinary action which the Commissioner has decided to take …is disproportionate in relation to the breach of discipline concerned.
By notice of appeal dated the 10th October, 2013, the applicant appealed in relation to the disciplinary action decided upon by the respondent. The notice listed as his grounds of appeal a claim that the relevant facts were not properly ascertained or considered, that the disciplinary action was disproportionate and that Regulation 4 had not been complied with. Regulation 4 requires that where disciplinary sanction is being considered, due regard shall be had to the record of service, previous conduct and circumstances of the member and to any other relevant matter.
On the 5th November, 2013, the Supreme Court delivered judgment in the case of Kelly v The Commissioner of An Garda Síochána, discussed further below.
On the 6th November, 2013, the respondent established a Board of Appeal in relation to the applicant's case.
The applicant's solicitor provided the Appeal Board with a written statement of grounds of appeal on the 10th December, 2013, having been requested to do so. The grounds were set out under the following headings:
i. Prematurely conducting a Board of Inquiry
ii. Failing to conduct a proper hearing
iii. Failing to deliberate properly or at all on submissions made on behalf of the appellant
iv. Failing to consider alternative sanctions
v. Failed to have regard to and consider relevant precedent
vi. Failing to consider carefully and fully the evidence of witnesses called on behalf of Garda Culbert
vii. Failure by the Board to consider in full and understand the charges brought against Garda Culbert and as such made and improper and unreasonable recommendation to the Commissioner
viii. Failing to comply with Regulation 4 of the Garda Síochána (Discipline) Regulations 2007.
ix. Failing to appreciate and understand the implementation of Garda policy at operational level
x. Submitting Garda Culbert to unfair and disproportionate sanction.
xi. Imposed punitive and excessive sanction
xii. Failing to consider all of the relevant facts in the case
xiii. Failure to notify Garda Culbert in writing of the reasons for his dismissal as required by law.
Each of these headings was briefly elaborated upon. Under the last heading it was complained that the applicant had not been given reasons in writing for either the recommendation for dismissal by the board of inquiry or the decision to dismiss by the respondent.
A hearing date of the 27th February, 2014, was set for the appeal. However, on the 28th January the applicant's solicitor wrote to the chairperson of the Appeal Board seeking a postponement. This was acknowledged on the 1st of February.
On the 29th January, Superintendent Synnott of Garda Internal Affairs wrote to the chairperson of the board of inquiry making a request in the following terms:
‘In light of the decision of the Supreme Court, on 5th November 2013, in the case of John Kelly v. Commissioner of An Garda Síochána [2013] IESC 47, it would be appreciated if you could reconvene the members of the Board of Inquiry, Chief Superintendent Coburn and Superintendent Sarah Meyler, in order to provide the Commissioner with a report outlining the reasons for the decision of the Board and the reasons for the penalty recommended by the Board in this matter.’
Superintendent Synnott wrote on the same date to the chairperson of the Appeal Board, to inform her of this request and to assure her that on receipt of the report the applicant and the Appeal Board would be notified. However, she did not at this stage inform the applicant or...
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