Farrelly v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards,Justice Brian,Mr. Justice O'Neill
• Judgment Date: 17 June 2009
• Neutral Citation: [2009] IEHC 274
• Court: High Court
• Docket Number: [No. 233 JR/2005]
• Date: 17 June 2009

Farrelly v Commissioner of An Garda Síochána

JUDICIAL REVIEW

BETWEEN

PATRICK FARRELLY

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA IRELAND AND THE ATTORNEY GENERAL

[2007] IEHC 84

[No. 233 JR/2005]

THE HIGH COURT

Disciplinary proceedings

Judicial review - Prohibition - Restriction - Sworn inquiry - Delay - Fair procedures Whether applicant failed to seek leave promptly - Whether applicant entitled to documentation in advance of sworn inquiry - Whether applicant entitled to information in relation to other gardaí convicted under statute - Whether applicant entitled to particulars of allegation - Whether allegation of wholly different character to criminal charge on which applicant acquitted - Whether disciplinary proceedings in relation to allegation which had been subject of proceedings in which nolle prosequi entered constituted abuse of process - Whether leave granted on ground of delay in advancing disciplinary proceedings - McGrath v Commissioner of An Garda Síochána [1990] ILRM 817 considered; Atanasov v RAT [2006] IESC 53 (Unrep, SC, 26/7/2006) distinguished - Garda Síochána (Discipline) Regulations 1989 (SI 94/1989) - Constitution of Ireland 1937, Article 38 - Prohibition granted in relation to allegation on which applicant had been acquitted (2005/233/JR - Ó Néill J - 13/3/2007) [2007] IEHC 84Farrelly v Commissioner of An Garda Síochána

The applicant sought by way of an application for judicial review an order of prohibition restraining the holding of a sworn inquiry into allegations of a breach of discipline against the applicant pursuant to the 1989 Regulations. The applicant also sought an injunction restraining the first named respondents from proceeding to conduct any further inquiry into the charges of alleged breach of discipline against him and a declaration that he was entitled to disclosure of specific documentation. The applicant submitted that the disciplinary charges in respect of the possession of a stolen Honda Civic motor car and the possession of a Saab motor vehicle was an abuse of process as the applicant had previously been acquitted of the charge relating to the Honda car by direction of the trial judge in the course of a criminal trial and a nolle prosequi was entered by the prosecution in respect of the charge relating to the Saab car prior to the commencement of the disciplinary proceedings against him. The applicant also alleged that the respondent was guilty of delay in investigating the alleged breaches of discipline and that the failure of the respondent to furnish certain documentation prejudiced him in the preparation and presentation of his defence.

Held by O’Neill J. in granting an order of prohibition in relation to one of the offences: That the applicant failed to establish that he was entitled to receive the documentation sought or that it was necessary to his defence and therefore that ground of judicial review failed. The substance of the allegation of the breach of discipline was the same as the substance of the criminal charges. Consequently, Article 38(1) of the Regulations prohibited the further prosecution of the disciplinary charge in respect of the applicant’s possession of the Honda motor vehicle. However, the provisions of that Article did not prohibit disciplinary proceedings in relation to the possession of the Saab vehicle and those proceedings would not amount to an abuse of process. The applicant failed to obtain leave in relation to the delay ground and consequently this court did not have jurisdiction to entertain that aspect of the applicant’s case.

Reporter: L.O’S.

ROAD TRAFFIC ACT 1961 S56

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 14

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 15

RSC O.84 r 21

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 20(1)(a)

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 20(1)(c)(i)(I)

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 20(1)(c)(i)(II)

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 20(1)(c)(i)(III)

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 20(1)(c)(i)(IV)

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 20(1)(c)(i)(V)

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 20(1)(c )(ii)(I)

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 20(1)(c)(ii)(II)

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 20(1)(c)(ii)(III)

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 21(1)

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 21(3)

ATANASOV & ORS v REFUGEE APPEALS TRIBUNAL & ORS 2007 1 ILRM 288 2006 IESC 53

GARDA DISCIPLINE REGS 1989 SI 94/1989 REG 38(1)

MCGRATH v COMMISSIONERS OF AN GARDA SIOCHANA 1991 1 IR 69 1990 ILRM 817

1 Mr. Justice O'Neill delivered on the 13th day of March, 2007

2 By order of this court (Hanna J.) made on the 7 ^th March, 2005, the applicant was given leave to apply by way of judicial review for an order of prohibition in respect of the holding of a sworn inquiry which was to take place on the 8 ^th March, 2005, to hear and determine allegations against the applicant pursuant to the Garda Síochána (Discipline) Regulations 1989, as set out in Discipline Forms dated the 12 ^th October, 2004. In addition the applicant was given leave to seek an injunction restraining the first named respondents from proceeding to conduct any further inquiry into the charges of alleged breach of discipline made against the applicant and also a declaration that the applicant was entitled in advance of the disciplinary inquiry to have all documentation and material which was sought in correspondence in respect of the alleged breaches of discipline as set out and referred to at paragraph 3 of the applicant's affidavit and exhibited at PF 1.

3 The background to this matter is as follows.

4 The applicant is a member of An Garda Síochána since 1982. On the 14 ^th March, 1998 the applicant was suspended from duty, and has remained suspended since that date, in receipt of a reduced 75% salary. On the same date i.e. 14 ^th March, 1998 the applicant was arrested and interviewed in relation to a suspicion of having been involved in criminal conduct related to the possession of stolen motor vehicles. He was released without charge but was again arrested on the 4 ^th June, 1998 and again questioned. A file was submitted to the Director of Public Prosecutions and in October, 2000 he was charged with several offences alleging handling of stolen motor vehicles. A book of evidence was served in December 2000 and he was returned for trial to the Circuit Criminal Court. Eventually his trial was fixed for the 23 ^rd October, 2001 and in due course adjourned to the 1 ^st July, 2002 on which date the applicant was arraigned on four counts to which he pleaded not guilty. The trial proceeded on the basis of evidence being presented in relation to two counts and in respect of one of these counts the trial judge directed the jury to acquit. The jury was discharged in respect of the other count. This other outstanding charge was listed for trial on the 30 ^th November, 2002. On the 11 ^th November, 2002 a nolle prosequi was entered by the DPP.

5 By letter of the 18 ^th February, 2003, solicitors for the applicant wrote to an Assistant Commissioner at Garda Headquarters requesting details as to why the applicant was further suspended with effect from the 1 ^st February, 2003 in circumstances where none of the above mentioned charges had resulted in a conviction against him. This letter was responded to by letter of the 25 ^th February, 2003 wherein it was stated as follows:

6 "The suspension of your client is considered desirable and is being continued due to the ongoing allegations of serious misconduct made against him concerning:-

7 · A court conviction at Drogheda District Court on 17 ^th January, 2003 for an offence under s. 56 of the Road Traffic Act, 1961/2001,

8 · Alleged discreditable conduct in the buying and selling of stolen motor vehicles between 1995 and 1998 and

9 · His suspected association and involvement with known criminals on divers dates between 1 ^st May, 2002 and 1 ^st October, 2002."

10 In the meantime on the 14 ^th February, 2003, disciplinary proceedings pursuant to the Garda Síochána (Discipline) Regulations 1989 were commenced against the applicant when Chief Superintendent Michael Finnegan as "Appointing Officer" pursuant to the regulations, appointed Superintendent Ward as "Investigating Officer" to investigate a number of breaches of discipline alleged against the applicant. These investigations were commenced in the prescribed form, namely by means of what are known as forms B33 and the B33 forms executed by Chief Superintendent Finnegan on the 14th February, 2003 directed Superintendent Ward to investigate and report on alleged breaches of discipline by the applicant as follows:

11 (a) That the applicant having being stopped driving motor vehicle numbered AJZ 3135 at Dublin Road, Drogheda on the 14 ^th February, 2002 and having been required to produce a certificate of insurance or a certificate of exemption from insurance within 10 days, opted to produce the said document at Forkhill, Co. Armagh, knowing that the said location was outside the jurisdiction.

12 (b) That the applicant was observed associating with known criminals on divers dates between the 1 ^st May, 2002 and the 1 ^st October, 2002.

13 (c) That the applicant, having previously reported his official identification card stolen/lost, was found to be in possession of the said Garda identification card on the 14 ^th February, 2002.

14 (d) That official correspondence addressed to the applicant was found at the home of one Nigel Skelly at Kellystown, Grangebellew, Co. Louth, on the 20 ^th January, 1998.

15 (e) That the applicant during 1996 sold a Honda Civic motor vehicle bearing registration number L967 SPC to Garda Michael Fagan, this motor car having been stolen in Belfast on the 3 ^rd January, 1996, bearing its proper registration...