O'Dowd v Commissioner of an Gard Síochána

JurisdictionIreland
JudgeMR. JUSTICE T.C SMYTH
Judgment Date19 May 2004
Neutral Citation[2004] IEHC 200
CourtHigh Court
Docket Number[2002 Nos. 187 and 188 JR]
Date19 May 2004

[2004] IEHC 200

THE HIGH COURT

Record No. 2002/187JR
Record No. 2002/188JR
HC 200/04
JOHN O'DOWD v. THE COMMISSIONER OF AN GARDA SIOCHANA & ORS
DUBLIN
JOHN O'DOWD
Applicant
-V-
THE COMMISSIONER OF AN GARDA SÍOCHÁNA, M. FACHTNA MURPHY, PATRICK M. McHUGH, PHILIP MOYNAHAN AND MICHAEL MEAGHER
Respondents

AND

PATRICK MULLIGAN
Applicant
-V-
COMMISSIONER OF AN GARDA SÍOCHÁNA, M. FACHTNA MURPHY, PATRICK M. McHUGH, PHILIP MOYNAHAN AND MICHAEL MEAGHER
Respondents

Synopsis:

- [2004] 2 IR 516

The applicants were members of An Garda Siochana. A Board of Inquiry was set up to investigate breaches of discipline alleged against the applicants. The applicants sought an order of prohibition by way of an application for judicial review prohibiting the third, fourth and fifth named defendants from proceeding with the Disciplinary Inquiry pending the outcome of a Tribunal of Inquiry into Garda activities in Donegal (The Morris Tribunal). The applicants alleged that both Tribunals involved the same/similar subject matter and that if the Disciplinary Inquiry preceded the Statutory Tribunal issues forming part of the terms of reference of the Statutory Tribunal would be prejudged. The applicants also contended that the composition of the Board of Inquiry in the absence of a lay person created objective bias.

Held by Smyth J. in refusing the application:

1. That prohibition restrains a Tribunal from proceeding in excess of jurisdiction. However, the applicants' grounds for relief made no allegation regarding jurisdiction and accordingly the applicants' claim was wholly misconceived. In any event, there was no question of the decisions of the Disciplinary Inquiry prejudging matters within the remit of the Statutory Tribunal.

Goodman International v Mr Justice Hamilton [1992] 2 IR 542 followed.

2. That the Disciplinary Inquiry was concerned with three specific charges. Accordingly, the applicants' presumption of innocence and right to due process before the Statutory Tribunal would not have been breached/forfeited.

3. That there was no evidence as to any element of prejudgment by any member of the Board of Inquiry and there was no objective bias on the part of the Board.

Reporter: L.O'S.

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MR. JUSTICE T.C SMYTH ON WEDNESDAY, 19TH MAY 2004

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I hereby certify the following to be a true and accurate transcript of my shorthand notes of the evidence in the above-named action.

APPEARANCES

For THE APPLICANT

MR. C. DEVALLY SC

MS. S. FRAYNE BL

Instructed by:

HUGHES MURPHY & CO.

13 WELLINGTON QUAY DUBLIN 2

For THE RESPONDENT

MR. F. McDONAGH SC

MR. P. O'NEILL BL

Instructed by:

DAVID O'HAGAN

CHIEF STATE SOLICITORS

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COPYRIGHT: Transcripts are the work of Gwen Malone Stenography Services and they must not be photocopied or reproduced in any manner or supplied or loaned by an appellant to a respondent or to any other party without written permission of Gwen Malone Stenography Services

MR. JUSTICE SMYTH:

The Applicant seeks an order of prohibition by way

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of application for judicial review prohibiting the third, fourth and fifth-named Respondents from proceeding with a Sworn Inquiry fixed as of 1st May 2002, prior to and pending the outcome of a Tribunal of Inquiry established pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 - 2002 on foot of a resolution passed by Dáil Eireann on Thursday, 28th March 2002. McKechnie J, on 22nd April 2002 granted leave to apply on the following grounds:

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1. The terms of reference of the said Tribunal of Inquiry involve the same or similar subject matter as that which is the subject of disciplinary proceedings against the Applicant. Therefore, if the said Sworn Inquiry were allowed to go ahead as scheduled on 1st May 2002, this would derogate from the said Tribunal of Inquiry, as it would necessarily entail the prejudging of issues which form part of the terms of reference of the Tribunal.

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2. A determination of the disciplinary proceedings prior to the Tribunal of Inquiry would constitute a breach of fair procedures and due process and would be a denial of the principles of natural and constitutional justice.

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3. The decision of the second-named Respondent to schedule the disciplinary proceedings against the Applicants for hearing on 1st May 2002 prior to the said Tribunal violates the Applicants' constitutional rights to the protection of their good name and a fair hearing during the course of the Tribunal.

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4. There would be a grave risk that the Applicants or either of them and their right to the presumption of innocence and the right to due process would be breached by prejudging the issues before the Tribunal by the premature holding of such a sworn inquiry.

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4. To proceed with the said Sworn Inquiry, given that the Board of Inquiry as constituted by the said order of the second-named Respondent comprises the third, fourth and fifth-named Respondents, who are all superior Garda officers, without the participation of any lay member would be a breach of natural justice and fair procedures on the principle of Nemo Iudex in Causa Sua.

The Facts:
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The Applicants are members of An Garda Síochána and in October 1996 were stationed at Raphoe Garda Station in Co. Donegal. On the night of 13/14th October 1996, the Applicants investigated the scene of the fatality of one Richard Barron, who died on the night of 13/14th October 1996 and whose death was believed to have occurred as a result of a road traffic hit and run accident. Some days later, on or about 16/17th October 1996, enquiries turned into a murder investigation.

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The circumstances in relation to the death of Richard Barron, including the role played by the Applicants in the investigation into the incident, subsequently became the subject of several internal Garda investigations carried out under the supervision of various senior members of the Force. A letter dated 11th May 2000 from Detective Superintendent McGarty enclosed for the attention of the Applicants some 26 questions referable to duties performed by them on or about 13/14th October 1996. Initially, it appeared that a response would be forthcoming to these matters, but the Applicants, having consulted their solicitor, refused to reply. This was a singularly ill-advised course to adopt and it continued for over a period of almost two years. On 9th June 2000, a Superintendent Donal O'Cualain was appointed by Chief Superintendent D.N. Fitzpatrick under the provisions of Regulation 8 of the Garda Síochána (Discipline) Regulations 1989 (hereinafter referred to as the Regulations) appointing him (Mr. O'Cualain) to investigate and report to charges notified to the Applicants that: --

"That you did on various dates between 13th October 1996 and 9th June 2000 fail to carry out your duties in relation to the investigation into the death of Richard Barron at Townparks, Raphoe; you behaved in a manner likely to bring discredit on the Garda Síochána. You neglected your duty and you failed to promptly carry out lawful orders, and to do other things which was your duty to do; you disobeyed lawful orders without good and sufficient cause. In your capacity as a member of an Garda Síochána that you did make and were involved in the procuring of statements which you knew were false or misleading and with a view to deceiving, thereby creating a falsehood or a prevarication."

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On 11th July 2000, notice under Regulation 9 of the Regulations was directed to the Applicants informing them that it appeared to the Investigating Officer that they, the members concerned, may have been in breach of discipline. The brief outline of the acts of commission or omission alleged were as hereinbefore recited. The response to that notice from the Solicitor for the Applicants was that, in the case of Mr. Mulligan in particular, he was on sick leave and whilst on sick leave would take no hand, act or part in any investigations which it was proposed to carry out. Furthermore, there were threats of injunctive relief being sought in the event of a protest being made to Mr. Mulligan in relation to the matter.

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Some nine months later, Mr. O'Cualain wrote to the Applicants: reference was made to the notice served under Regulation 9 of 11th July 2000. Attached were a list of queries which Mr. O'Cualain considered to be relevant to his investigation and he requested a meeting to put the questions to the Applicants in person and, if they decided against that course, he requested them to make a statement covering all points raised and other points which they considered to be of relevance. A response was requested to be with the Inquirer by 27th April 2001. A response was not received by the indicated date and on 22nd June 2001 Mr. O'Cualain again wrote to the Applicants, again enclosed a copy of the questions in respect of which a response was required to allow him to properly investigate the alleged breaches of discipline against them. On this occasion, a deadline of 2nd July 2001 was set for a response to the questions. Again, no reply was received. The provisions of Regulation 39 had been brought to the attention of the Applicants in the letter of 22nd June 2001. On 12th September 2001, Mr. O'Cualain again wrote to the Applicants. He indicated that he had been directed by the Assistant Commissioner of the Gardaí at the time to investigate the alleged breaches of discipline against the Applicants in accordance with Regulation 39 of the Regulations. Once again, he called upon the Applicants to answer the questions on the list which was attached to the letter, which had been previously supplied to them. The letter drew to the Applicants' attention the following provisions of Regulation 39:--

"(3) Where a direction under this Regulation for an investigation is given, the investigating officer concerned may, for the purposes of the investigation, require a member (other than a member who is a spouse...

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