Dooner v Garda Síochána

• Jurisdiction: Ireland
• Judge: Justice Finnegan
• Judgment Date: 02 June 2000
• Neutral Citation: [2000] IEHC 122
• Court: High Court
• Docket Number: 223 JR/1999
• Date: 02 June 2000

[2000] IEHC 122

THE HIGH COURT

223 JR/1999

DOONER v. GARDA SIOCHANA(COMPLAINTS)BOARD & ANOR

JUDICIAL REVIEW

BETWEEN

PATRICK DOONER

APPLICANT

AND

THE GARDA SIOCHANA (COMPLAINTS) BOARD AND THE COMMISSIONER OF AN GARDA SIOCHANA

RESPONDENTS

Citations:

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(2)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(3)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(4)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S5

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S5(3)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(4)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(4)(a)

GUNN V BORD AN CHOLAISTE NAISIUNTA EALAINE IS DEARTHA 1990 2 IR 168

HAUGHEY, IN RE 1971 IR 217

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(4)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(4)(b)

CASSIDY V SHANNON CASTLE BANQUETS & HERITAGE LTD UNREP BUDD 30.7.1999 1999/4/802

GEORGOPOULUS V BEAUMONT HOSPITAL BOARD 1998 3 IR 142

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(2)(b)(ii)

RSC O.84 r23

MOLLOY V GOV OF LIMERICK PRISON UNREP SUPREME 12.7.1991 1991/13/3186

RSC O.84 r23(3)

RSC O.124

MCCORMACK V GARDA SIOCHANA COMPLAINTS BOARD 1997 2 IR 489

RSC O.124 r1

Synopsis

Garda Siochana

Complaints procedure; judicial review; natural and constitutional justice; audi alterem partem; complaint made against the applicant Garda; applicant had been notified of complaint but material portions of the complaint had not been included in notification; applicant seeks orders quashing decision of first named respondent (Garda Síochána Complaints Board) concluding that a breach of discipline on his part may have been disclosed, and seond named respondent (Garda Commisioner) indicating his intention to deal with complaint made against applicant by way of "advice"; whether in the absence of certain relevant details on the notification of complaint issued to him the applicant was at a serious disadvantage in responding to the complaint; whether applicant should have been afforded an opportunity to make submissions as to the proposed penalty; whether applicant ought to be granted leave to amend his statement grounding the application for judicial review; whether decisions of first named respondent were unreasonable or irrational; s. 7 (4)(a), Garda Síochána (Complaints) Board Act, 1986; O. 124, r. 1, Rules of the Superior Courts.

Held: Orders of certiorari granted. Amendment to statement allowed.

Dooner v. Garda Síochana (Complaints) Board - High Court: Finnegan J. - 02/06/2000

A garda (“the applicant”) had stopped a motorist and asked him if his tax and insurance details in respect of the vehicle were in order. The motorist had been attending a funeral and subsequently complained about the applicant’s behaviour to the Garda Síochána Complaints Board (“the board”). Pursuant to section 7 of the Garda Síochána (Complaints) Act, 1986 the board made certain determinations. The applicant claimed that he had not been fully informed of the details of the complaint being made against him and thus had been denied an opportunity to make adequate representations regarding same. The applicant also sought leave to amend his statement of grounds. Finnegan J held that no injustice would be caused to the respondent by allowing the amendments sought. In addition Finnegan J was satisfied that the requirements of natural justice had not been fully complied with. If a full text of the complaint had been furnished to the applicant the representations of the applicant may well have been different. Accordingly orders of certiorari would be granted in respect of the decisions of the respondents.

Justice Finnegan

1 delivered the 2nd day of June, 2000.

2 On the 30th January, 1998 the Applicant was driving the Kildare district patrol car at the main Rathangan/Kildare Road. He observed a car being driven by James Muldoon who was known to him and as he had not seen Mr. Muldoon drive before he decided to stop him to ensure that he was properly insured. He flashed his lights to stop Mr. Muldoon who duly stopped and a conversation took place. On the Applicant's account he was aware that a funeral had taken place as he had noticed a number of people walking from the direction of the graveyard. He noticed as Mr. Muldoon approached the patrol car that he was wearing a black tie. The Applicant deposes that he apologised to Mr. Muldoon for stopping him as he was not aware that he was part of the funeral party. He asked him if his documents were in order and Mr. Muldoon replied that they were and that they had been produced a week earlier at the garda station.

3 Arising out of this incident, Mr. Muldoon made a written complaint for the purposes of the Garda Siochana (Complaints) Act,1986at Naas Garda Station on the 4th February, 1998. The terms of the complaint were as follows -

"Garda Dooner stopped me while I was driving my car at Rathangan Road, Kildare near the graveyard. I was collecting my wife whose father had just been buried. He asked me had I tax and insurance. I told him I did and that I had been stopped twice previously by a sergeant. He did not get out of the patrol car and kept asking me questions about who was being buried etc. He let me go after approx. 10 minutes. Garda Dooner had previously seen me walking behind the hearse knowing whose funeral it was. I felt it was unnecessary that he stopped me during the funeral and in the manner in which he did. By this I mean he flashed his lights at me in front of the mourners leaving the graveyard. I feel this was insensitive of him. I personally have had no dealings with him previously but he has harassed members of my family."

4 The Garda Siochana (Complaints) Act,1986, Section 4, provides for complaints to be made to the Garda Siochana Complaints Board ("the Board"). Section 4(2) provides that on receipt of a complaint by a member at a garda station he shall inter alia send a copy of the complaint to the Commissioner and to the Board. Section 4(3) provides that on receipt of a complaint by the Board, the Chief Executive shall consider whether the complaint is admissible having regard to the terms of the Act and if he is of opinion that the complaint is admissible he shall send the Commissioner a copy of the same: alternatively, if the Chief Executive is of opinion that the complaint is not admissible the Board may decide that it is admissible in which case again a copy of the complaint is to be sent to the Commissioner. Section 4(4) provides that the Commissioner on being notified of a complaint pursuant to the provisions of subsection (3) shall notify the member concerned that a complaint has been made against him and that in the notification the nature of the complaint shall be specified.

5 The Act in Section 5 provides a procedure for the informal resolution of complaints: the Applicant, as he was entitled to pursuant to Section 5(3), did not consent to this complaint being dealt with by the informal procedure. In these circumstances the matter fell to be dealt with under Section 6 of the Act.

6 Pursuant to Section 6 the Commissioner appoints an investigating officer to investigate the complaint. On completion of the investigation the investigating officer is required to furnish a report in writing thereon to the Chief Executive of the Board and send a copy thereof to the Commissioner. Upon receipt of such report the Chief Executive must submit the same to the Board as soon as may be together with his comments in writing thereon and a recommendation in writing by him of the action (if any) that might appropriately be taken by the Board in relation to the complaint.

7 Section 7 of the Act provides that the Board shall consider the report of the investigating officer and the relevant comments and recommendations of the Chief Executive submitted to the Board and thereupon may pursue any one of a number of courses. Relevant for present purposes is the course provided for in subsection (4). This provides as follows:-

8 a "7(4)(a) Subject to subsection (7) of this section if the Board is of opinion that a breach of discipline on the part of the member concerned may be disclosed but that any such breach is of a minor nature appropriate to be dealt with informally by the Commissioner by way of advice, admonition or warning it shall refer the matter to the Commissioner.

9 (b) a reference under paragraph (a) of this subsection shall not be made unless the member concerned has been given an opportunity to make representations to the Board in relation to the proposed reference and any representations so made have been considered by the Board."

10 I am satisfied on a consideration of the statutory provisions mentioned above that the Act envisages two separate and distinct stages -

11 1. An investigative stage by and under the direction of the Board.

12 2. A determination by the Commissioner who would impose an appropriate penalty.

13 The Board's function and powers are circumscribed by the provisions of Section 7(4)(a) - it must form an opinion, having considered the report of the investigating officer, the relevant comments and recommendations of the Chief Executive submitted to the Board and any representations made by the member, whether a breach of discipline may be disclosed. Specifically the...