David Naughton v Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice White |
| Judgment Date | 03 March 2017 |
| Neutral Citation | [2017] IEHC 141 |
| Court | High Court |
| Docket Number | [2015 No. 593 J.R.] |
| Date | 03 March 2017 |
[2017] IEHC 141
THE HIGH COURT
JUDICIAL REVIEW
White Michael J.
[2015 No. 593 J.R.]
AND
Employment – S. 123 of the Garda Siochana Act 2005 – Institution of disciplinary proceedings – Reg. 8 of An Garda Siochana (Discipline) Regulations 2007 – Acquittal from charges under s. 2 of the Non Fatal Offences Against the Person Act 1997 – Discreditable conduct
Facts: The applicants sought an order of prohibition for restraining the respondent from taking any further action in disciplinary proceedings regarding the applicants. The applicants alleged that since they were acquitted of the relevant charges in a criminal case, it would be breach of fair procedures to hold a disciplinary inquiry arising out of the same set of facts.
Mr. Justice White refused to grant the desired relief to the applicants. The Court held that An Garda Siochana (Discipline) Regulations 2007 did not prevent an investigating officer appointed by the Commissioner of An Garda Siochana from making a recommendation pursuant to reg.8 of the 2007 Regulations. The Court observed that the Commissioner had the discretion to not to initiate disciplinary proceedings if reg. 8(2) (a) and (b) applied. The Court held that the issues under criminal proceedings and disciplinary proceedings were different; the former was concerned with the imputation of guilt while the later was related to the conduct of the individual and thus, there was no breach of fair procedures.
This is an application to prohibit disciplinary proceedings initiated against the applicants who are serving members of An Garda Síochána. The Applicants in the alternative are seeking declarations that the relevant regulations are not being implemented in the appropriate manner. The application was heard on the 7th of December 2016 and judgment was reserved.
By order of the 28th of October 2015 the applicants were granted leave to bring judicial review proceedings for the following reliefs:-
(i) An order of prohibition by way of application for judicial review restraining the respondent from the taking of any further steps and from taking any further action in discipline proceedings regarding the applicants which are presently pending under and by virtue of the provisions of An Garda Síochána (Discipline) Regulations 2007.
(ii) An order of prohibition by way of application for judicial review restraining the respondent, her servants or agents from the taking of any further steps in and about disciplinary enquiry which is presently being carried out on and conducted under and by virtue of the provisions of An Garda Síochána Discipline Regulations 2007.
(iii) A declaration by way of application for judicial review that the respondent has acted in excess of authority conferred and/or that the respondent's actions are ultra vires in and about the conduct of an investigation and the conduct of disciplinary proceedings which said disciplinary proceedings have been commenced pursuant to the provisions of Regulation 24 of the Garda Síochána (Discipline) Regulations 2007. The said proceedings now fall outside the scope of the Regulations by virtue of the provisions of Regulations 8(2)(a) and (b) thereof.
(iv) A declaration by way of application for judicial review that the disciplinary proceedings insofar as they have been commenced and carried on and concern the applicant are unfair and oppressive.
The application is grounded on a statement to ground application for judicial review of 27th October 2015 and the affidavits of verification of David Naughton and Wesley Kenny sworn on the 27th of October 2015 together with the exhibits. A notice of motion issued on the 27th of October 2015 returnable originally for the 15th of December 2015. A statement of opposition was filed and served on the 19th of February 2016 together with an affidavit of Garda Superintendant Matt Nylon sworn on the 17th of February 2016. The applicant's solicitor Martin Moran deposed an affidavit on the 27th of April 2016.
The applicants are both members of An Garda Síochána and are stationed at Kilmainham Garda Station. Together with other friends they visited Limerick for a social weekend on 5th December 2013.. They became involved in an incident which led to their criminal prosecution for assault contrary to s. 2 of the Non Fatal Offences Against the Person Act 1997. The applicants were acquitted of this charge at Limerick District Court on the 13th of November 2014 after a contested trial.
Separately the applicants were served on the 6th of February 2014 with a notice dated the 29th of January 2014 informing them that an investigating officer had been appointed pursuant to Regulation 24 of the Garda Síochána (Discipline) Regulations 2007 to carry out a disciplinary investigation. On the 31st of August 2015 the chairperson of a Board of Inquiry set up to carry out the inquiry wrote to both applicants in accordance with Regulation 27 of the Garda Síochána (Discipline) Regulations 2007 and supplied them with particulars of the serious breach of discipline alleged and enclosed all relevant materials and informed them that the Board of Inquiry hearing would take place on the 28th of September 2015. The documentation furnished with the notification included particulars of the breach alleged, a statement of facts established by the investigation and a copy of all statements taken by the investigating officer and video stills but did not make any reference to the District Court criminal proceedings nor were statements taken in relation to the criminal investigation included.
The alleged breach of discipline before the board was:-
(1) Discreditable conduct that is to say that you Garda Wesley Kenny 34735C Kilmainham Garda Station on the 5th of December 2013 at Catherine Street, Limerick conducted yourself in a manner which you ought to have known would be reasonably likely to bring discredit on the Garda Síochána in that you did attempt to gain access to an apartment building at 15 Upper Cecil Street, Limerick seeking the services of a prostitute.
(2) A similar allegation has been made against David Naughton
The Board of Inquiry sat on the 28th September 2015 and proceeded to hear submissions. Mr Moran Solicitor for the Applicants made a number of submissions to the Board of Inquiry by way of preliminary application which are summarised as follows:-
• That all information regarding the criminal prosecution ought to be before the Board of Inquiry.
• That the particulars of breach were improperly formulated as the Respondent had formulated them and must as a matter of law be formulated by the Board.
• That the disciplinary proceedings ought to be discontinued by reason of the provisions of Regulation 8 of the Garda Síochána (Discipline) Regulations 2007.
The Board adjourned to consider the submissions and on 15th October 2015 in summary decided that:-
• The disciplinary matter was separate and distinct from the charges before the District Court
• It would not be unfair or oppressive to commence or to continue disciplinary proceedings
• That it was open to the Respondent to draft/formulate the breaches of discipline.
• It was acceptable that the Board of Inquiry was not furnished with information regarding the criminal prosecution.
By reason of the aforementioned the Applicants sought and obtained the leave order.
Section 123(1) of the Garda Síochána Act 2005 provides for the making of regulations concerning the maintenance of discipline in the Garda Síochána, including, but not limited to, regulations relating to the matters provided for in subsections (2) to (5) thereof.
Pursuant to this statutory power the Garda Síochána (Discipline) Regulations 2007 were brought into force.
Regulation 5 of the 2007 Regulations provides that:-
‘Any act or conduct by a member which is mentioned in the Schedule constitutes a breach of discipline’.
In the Schedule, 30 different acts or items of conduct are set out as constituting breaches of discipline. At paragraph 1, the following is defined as constituting a breach of discipline:-
‘Discreditable conduct, that is to say conducting himself or herself in a manner which the member knows or ought to know, would be prejudicial to discipline or reasonably likely to bring discredit on the Garda Síochána.
Regulation 8 provides:-
‘(1) Disciplinary proceedings may be taken against a member under these regulations notwithstanding that proceedings for an offence have been or may be instituted against the member arising out of the same circumstances.
(2) Where a member has been acquitted on the merits of an offence, proceedings under these regulations for an alleged breach of discipline shall not be commenced or, if already commenced, continued if –
(a) the proceedings would involve conducting an inquiry into the same issues in respect of which the member was so acquitted, and
(b) in all the circumstances of the particular case and their cumulative effect, it would be unfair and oppressive to commence or continue the proceedings.
(3) Where the District Court, without proceeding to a conviction, finds the facts alleged in a criminal charge to have been proved against a member, the Government, the Commissioner, a board of inquiry or an Appeal Board is entitled to rely on the finding as conclusive.
(4) Any information, document or thing which the member concerned is required to provide or produce in disciplinary proceedings and which is related to and used for the purposes of such proceedings is not admissible in criminal proceedings, unless provided or produced by the member in those proceedings.
(5) The content of...
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...Síochána.” White J. pointed out that a recent decision of the High Court, Naughton & Kenny v. The Commissioner of An Garda Síochána [2017] IEHC 141, had reviewed the authorities in the area and had referred to the possibility of unfairness where the subject matter of the previous criminal t......