Diarmiud Keane v The Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Heslin
• Judgment Date: 30 July 2021
• Neutral Citation: [2021] IEHC 577
• Court: High Court
• Docket Number: [Record No. 2020 232 JR]

Between

Diarmiud Keane

Applicant

and

The Commissioner of an Garda Síochána

Respondent

[2021] IEHC 577

[Record No. 2020 232 JR]

THE HIGH COURT

JUDICIAL REVIEW

Breach of discipline – Sanction – Judicial review – Applicant seeking judicial review – Whether it was inconsistent with fair procedures and constitutional justice for the respondent to invoke s. 14 of the Garda Síochána Act 2005

Facts: The applicant, Mr Keane, was involved in an incident on 15 April 2017 which gave rise to an investigation and a disciplinary process pursuant to the Garda Síochána (Discipline) Regulations 2007 (S.I. no. 2014 of 2007). The respondent, the Commissioner of An Garda Síochána, established a two-person Board of Inquiry in June 2018. The Board made findings in respect of breach of discipline. The specific penalty recommended by the Board was the deduction of a week’s pay. The respondent, in March 2019, gave notice of his proposal to impose a more severe sanction, namely to require the applicant to resign from An Garda Síochána as an alternative to his dismissal. The applicant appealed against the foregoing decision and a three-person Appeal Board was established by the respondent to hear that appeal. The unanimous determination of the Appeal Board was to substitute, in lieu of the requirement to resign as an alternative to dismissal, a total of nine weeks reduction in pay and a reprimand. The respondent invoked, on the seventh day following the Appeal Board’s decision, the provisions of s. 14 of the Garda Síochána Act 2005. The applicant argued that, in all the circumstances of this case, it was inconsistent with fair procedures and constitutional justice for the respondent to invoke s. 14 of the 2005 Act. The applicant also asserted that there was no rational basis for the respondent determining that the applicant should be dismissed. The applicant argued that the decision made by the Appeal Board to impose a significant financial sanction and a reprimand, instead of the requirement that the applicant resign or be dismissed, represented the decision which was legally binding on all parties. The relief sought by the applicant was as follows: an order of certiorari quashing the proposal of the Garda Commissioner dated 12 March 2020 to dismiss the applicant from An Garda Síochána; and an order of mandamus requiring the respondent to restore the applicant to duty.

Held by the High Court (Heslin J) that the Appeal Board came to a decision, binding on the respondent, that the applicant should be the subject of a significant financial sanction and a reprimand instead of being required to resign as an alternative to a dismissal, and that decision should be implemented. In light of the particular facts and circumstances in this case, Heslin J held that the invocation by the respondent of s. 14 of the 2005 Act was inconsistent with fair procedures and constitutional justice.

Heslin J held that the applicant was entitled to the relief at para. 1 and 2 of the notice of motion dated 19 March 2020.

Application granted.

JUDGMENT of Mr. Justice Heslin delivered on the 30th day of July, 2021.

Introduction

1 The applicant was involved in an incident on 15 April 2017 which gave rise to an investigation and a disciplinary process pursuant to the Garda Síochána (Discipline) Regulations 2007 (S.I. no. 2014 of 2007) (referred to in this judgment as “the 2007 Regulations” or “the Regulations”). The disciplinary process commenced in 2017 with the appointment of a garda superintendent to investigate potential breaches of Garda discipline on the part of the applicant. The process included, thereafter, the establishment, by the respondent, of a 2 — person Board of Inquiry in June 2018, which Board conducted an oral hearing in February 2019. At all material times the applicant admitted his guilt in respect of the charges proffered against him. The aforesaid Board made findings in respect of breach of discipline and, as per its function under the 2007 Regulations, the Board recommended a penalty. The specific penalty recommended by the Board was the deduction of a week's pay.

2 The respondent is not obliged, under the 2007 Regulations, to accept the penalty recommended by the Board and he did not do so. Instead, and in accordance with the 2007 Regulations, the respondent, in March 2019, gave notice of his proposal to impose a far more severe sanction, namely to require the applicant to resign from An Garda Síochána as an alternative to his dismissal. The applicant made submissions against the foregoing course of action and, in June 2019, the respondent gave notice that he had decided to impose the disciplinary sanction which he had previously proposed, namely, to require the applicant to resign as an alternative to being dismissed.

3 In accordance with the 2007 Regulations, the applicant appealed against the foregoing decision and an Appeal Board was established by the respondent, pursuant to the Regulations, to hear that appeal. This 3-person Appeal Board (comprising of a Senior Counsel selected by the respondent to act as “Chair”, a Garda Assistant Commissioner, also selected by the respondent, and a member of the Garda Representative Association), heard an appeal over two days, i.e. 25 November 2019 and 09 December 2019.

4 The Appeal Board did not uphold the respondent's decision that the applicant be required to resign as an alternative to dismissal. Instead, the unanimous determination of the Appeal Board was to substitute, in lieu of the requirement to resign as an alternative to dismissal, a total of 9–weeks reduction in pay and a reprimand. The Appeal Board's decision was communicated to the applicant and to the respondent and the latter was, pursuant to the Regulations, required to implement the appeal board's decision within seven days.

5 Rather than accepting the Appeal Board's decision which had been made pursuant to the 2007 Regulations, that the applicant's dismissal was not appropriate, the respondent invoked, on the seventh day following the Appeal Board's decision, the provisions of s. 14 of the Garda Síochána Act 2005 (“the 2005 Act”). That section confers, on the respondent, powers in respect of the summary dismissal of members of An Garda Síochána.

6 At the heart of this case is the applicant's assertion that the respondent is not entitled to invoke s. 14 of the 2005 Act in the relevant circumstances. In particular, the applicant argues that, in all the circumstances of the present case, it was inconsistent with fair procedures and constitutional justice for the respondent to invoke s. 14 of the 2005 Act. The applicant also asserts that there is no rational basis for the respondent now determining that the applicant should be dismissed.

7 The applicant argues that the decision made by the Appeal Board to impose a significant financial sanction and a reprimand, instead of the requirement that the applicant resign or be dismissed, represents the decision which is legally binding on all parties.

The proceedings

8 On 16 March 2020, this Court (Meenan J.) made an order granting leave to the applicant to seek judicial review in respect of the reliefs set out at para. “(d)” of the applicant's Statement of the same date, on the grounds set out at para. “(e)”. Furthermore, a stay was granted in relation to any further processes or procedures in respect of the applicant's proposed dismissal, pending the determination of the within proceedings. Other than the question of a stay etc., the relevant relief sought by the applicant at (d) is as follows:-

• “1. An order of certiorari quashing the proposal of the Garda Commissioner dated 12th day of March, 2020, to dismiss the applicant from An Garda Síochána;

• 2 An order of mandamus requiring the respondent to restore the applicant to duty …”.

9 With regard to para. (e) of the applicant's statement of grounds, it is fair to say that it comprises both a setting out, in chronological order, of facts relied on insofar as the sequence of events said by the applicant to be relevant is concerned, followed by pleas of a legal character. As a result of a careful consideration of the entirety of the pleadings comprising all affidavits and exhibits, it is possible to set out, in some detail, facts which are not in dispute, insofar as the chronology of relevant events is concerned and later in this judgment, I will do so. As to the pleas of a legal nature contained in the statement of grounds, the contents of paras. 4 – 14 of the statement of grounds include pleas to the following effect:-

• • Having initiated a disciplinary process provided for in the Regulations, the respondent is obliged to adhere to the requirements ordained by the Regulations;

• • Whilst s. 14 of the 2005 Act may be a “stand – alone” provision, it is of material significance that the respondent chose to invoke Part 3 of the Regulations in the applicant's case (reference being made to the Supreme Court's decision in McEnery v. Garda Commissioner [2016] IESC 66 which noted that Part 3 of the Regulations provides for a comprehensive process for dealing with an alleged serious breach of discipline);

• • Although the respondent invoked the Regulations, he did not deem it appropriate to invoke the power of summary dismissal available under Regulation 39. Instead, he decided to hold a Regulation 23 inquiry and, in the circumstances, the respondent is obliged to respect the outcome of that process;

• • The mere existence of an alternative power under s. 14 of the 2005 Act is not a sufficient lawful basis to erase the fact and result of an entire disciplinary process already deployed and concluded, just because the respondent is not happy with the result;

• • In the circumstances, the respondent was not within his rights to ignore the disciplinary process deployed and concluded under the Regulations, by invoking s. 14 of the 2005 Act;

• • Part 3 of the Regulations was...