Duffy v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mrs. Justice McGuinness
• Judgment Date: 01 January 1999
• Neutral Citation: [1998] IEHC 114
• Court: High Court
• Docket Number: [1997 No. 235 J.R.],No. 235 J.R./1997
• Date: 01 January 1999

DUFFY v. COMMISSIONER OF AN GARDA SIOCHANA

JUDICIAL REVIEW

BETWEEN

ROBERT CHARLES DUFFY

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA

RESPONDENT

[1998] IEHC 114

No. 235 J.R./1997

THE HIGH COURT

Synopsis

- [1999] 2 IR 81

It is open to the Garda Commissioner to abandon disciplinary proceedings which have commenced under the 1989 Regulations in favour of dealing with a probationer Garda under 16 of the 1988 Regulations which entitles the Commissioner to dispense with the services of a probationer on the grounds inter alia that he is not likely to become an efficient and well conducted member of the Gardai. However, the requirements of constitutional justice apply in making a decision to dispense with the applicant's services under article 16. The High Court so held in granting an order of certiorari quashing the decision of the Commissioner dispensing with the services of the applicant.

Citations:

GARDA SIOCHANA (ADMISSIONS & APPOINTMENTS) REGS 1988 SI 164/1988 ART 15

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S5

MCAULEY V COMMISSIONER OF AN GARDA SIOCHANA 1996 3 IR 208

O'ROURKE V MILLER 1984–1985 156 CLR 342

GARDA SIOCHANA (APPOINTMENTS) REGS 1945 SR & O 173/1945 REG 9

DALY, STATE V MIN FOR AGRICULTURE 1987 IR 165

CIVIL SERVICE REGULATION ACT 1956 S7

HYNES V GARVEY 1978 IR 174

MCGARRITY, STATE V DEPUTY COMMISSIONER OF AN GARDA SIOCHANA 1977 112 ILTR 25

BURKE, STATE V GARVEY 1979 ILRM 232

BEIRNE V COMMISSIONER OF AN GARDA SIOCHANA 1993 ILRM 1

1 JUDGMENT of Mrs. Justice McGuinness delivered on the 10th day of July 1998.

2 In these Judicial Review proceedings the Applicant seeks an Order of Certiorari quashing the decision of the Commissioner of An Garda Siochana dated the 27th June, 1997 wherein he dispensed with the Applicant's services with effect from the 3rd July, 1997. He also seeks damages for breach of contract and breach of constitutional rights. The grounds on which these reliefs are sought are set out in detail in the Applicant's originating Statement dated the 2nd July, 1997. The grounds were helpfully summarised under two main headings by Senior Counsel for the Applicant, Miss Finlay, in her submissions to this Court to which I will refer below.

3 Leave to issue Judicial Review proceedings was granted on the 2nd July, 1997 by Order of this Court (O'Sullivan J.). A Statement of Opposition was filed by the Respondent on the 21st July, 1997 and Affidavits of Discovery were sworn by Superintendent Aidan Killoran on behalf of the Respondent in March 1998. By agreement of the parties the entire of the documents as discovered were handed in by way of evidence to this Court. The application was heard before me on the 3rd day of July and the 7th day of July, 1998

THE FACTS

4 The facts underlying the application are set out in the Affidavit of the Applicant sworn on the 2nd July, 1997 and in the replying Affidavit of Inspector Finbarr O'Brien sworn the 24th day of July, 1997. The Applicant entered the Garda Training College at Templemore as a student Garda on the 3rd May, 1994. Garda training consists of a number of phases, some of which are spent in the Training College at Templemore and others in acquiring practical experience at Garda Stations. There are also a number of written examinations.

5 During the first three phases of training the student Garda is classed as a Trainee, and his conditions of service are set out in a contract under the Garda Siochana (Admissions and Appointments) Regulations, 1988, a copy of which was handed into Court. At the end of Phase III successful students are attested to the Force and thereafter for a period of two years are known as Probationers. Once the student Garda is "attested to the Force" he is an actual member of the Garda Siochana and is subject to the Garda Siochana Code and the Garda Siochana (Discipline) Regulations, 1989.

6 Under the Garda Siochana (Admissions and Appointments) Regulations. 1988 (S.I No. 164 of 1988) it is provided (at Article15) that "on first appointment by the Commissioner as a member, such member shall be appointed to the rank of Garda and shall be on probation for a period of two years"

7 Article 16 provides that:-

"The Commissioner may at any time dispense with the services of any member who is on probation if he considers that the member is not fitted, physically or mentally, to perform his duties as a member or is not likely to become an efficient and well conducted member"

8 The Applicant successfully completed the first three phases of his training and was attested to the Garda Siochana on the 6th July, 1995. He then completed Phases IV and V of his training and graduated from the Garda Training College on 26th April, 1996.

9 It is clear from the extensive documentation provided to the Court that the Garda Siochana authorities, in addition to providing training courses and examinations, maintain a careful and thorough system of continuing assessment of trainee and probationer Gardai so as to ensure that they are fitted to become suitable, efficient and reliable members of the Force. Comprehensive assessment criteria are provided; there are assessments by tutors, by Training Sergeants, by District Officers and by Divisional Officers, and the student Gardai are required to carry out detailed self-assessments.

10 The Applicant's assessments during his period as a Trainee and as a Probationer show that he had some problems. He was of a somewhat nervous disposition and at one stage suffered from stress and received counselling. It is notable, however, that at no stage was it suggested that he was ill-disciplined or given to misconduct. He made considerable efforts and his performance improved. By 30th May, 1997 his assessments were completed and his superior officers recommended his confirmation as a permanent member of the Force. His period of Probation was due to end on 6th July, 1997. It is clear from the documentation that the Applicant's various assessments were carried out carefully and fairly, with an eye both to his own welfare and to the welfare of the Force, and no criticism is made of them.

11 On the night of 6/7 April, 1997 an incident occurred at a nightclub known as Tamango's which is attached to the Sands Hotel, Portmarnock. The Applicant sets out details in regard to the incident in his grounding Affidavit and statements of other persons involved in the incident are included in the Book of Discovery. The incident concluded with the Applicant and his friends being asked to leave the nightclub by bouncers, and members of An Garda Siochana being called to the scene. It is clear that there are a number of matters in issue between the Applicant and other participants in this incident but it is no part of this Court's task to adjudicate on the allegations made by any of the protagonists. As a result of the incident a complaint was made by a Miss Lisa Smyth to Malahide Garda Station in relation to the conduct of the Applicant. Initially this complaint was dealt with under the Garda Siochana (Discipline) Regulations, 1989 (the 1989 Regulations) to which, as I have already said. Probationers like all other Gardai are subject. The 1989 Regulations set out in detail the method of inquiry into all breaches of discipline occurring in the Garda Siochana, the rights of members of the Force who are being investigated in regard to disciplinary matters, the penalties which may be imposed, and the system of appeals to an Appeal Board. The Regulations are drawn so as to provide both for discipline in the Force and for the protection of individual members by procedures which are in accordance with natural and constitutional justice.

12 As is set out in his Affidavit, Inspector Finbarr O'Brien was appointed under the 1989 Regulations to investigate the incident at Tamango's nightclub and the Applicant's involvement in it. On 7th May, 1997 Inspector O'Brien telephoned the Applicant and informed him that he had been appointed to investigate the alleged breach of discipline and he arranged to serve a Disciplinary Notice on him under Regulation 9 of the 1989 Regulations. This Notice was served on the Applicant on 9th May, 1997. The Notice gave what was described as "a brief outline of the Acts of Commission or Omission alleged" in the following terms:-

"It is alleged that on the 7th April, 1997 at the Sands Hotel, Portmarnock you were in the disco where you were drunk and abusive in your manner towards Pamela Smyth and Lisa Smyth.

It was alleged that you identified yourself as a Garda.

It is further alleged that you tried to kiss Lisa Smyth and put your arms around her and that you continuously attempted to pull up her top from the back, exposing her underclothes. This annoyance continued until you were put out of the disco by the bouncers."

13 The Notice also contained the following statement:-

"Your attention is directed to the following matters:-"

(1) You have the right to consult a Solicitor or another member before responding in relation to the investigation.

(2) Any statement you make may be used in any inquiry under the Garda Siochana (Discipline) Regulations, 1989 relating to the matter.

(3) In the event of you refusing to answer a question, furnish information or produce a document or thing relevant to the investigation of the alleged breach of discipline you may be required by the investigating officer to answer a question, furnish information or produce a document or thing under the provisions of Regulation 39 of the Regulations"

14 It appears from the Affidavit of Inspector O'Brien that when he served the Applicant with the Disciplinary Notice he asked the Applicant whether he wished any witnesses to the incident to be interviewed. The Applicant gave him the names of two witnesses, Trevor McDonagh and Anthony Lynch, both of whom were subsequently interviewed. Some few days later the...