Flood v Garda Síochána Complaints Board

• Jurisdiction: Ireland
• Judge: BARRON J.
• Judgment Date: 19 July 1999
• Neutral Citation: [1999] IESC 56
• Date: 19 July 1999
• Court: Supreme Court
• Docket Number: [S.C. No. 401 of 1997]

[1999] IESC 56

THE SUPREME COURT

Hamilton C.J.

Barrington J.

Keane J.

Murphy J.

Barron J.

401/97

FLOOD v. GARDA SIOCHANA COMPLAINTS BOARD & WALSH

BETWEEN/

PHILIP FLOOD

Appellant/Applicant

and

THE GARDA SÍOCHáNA COMPLAINTS BOARD

Respondent/Respondent

and

PATRICK WALSH

Notice Party

Citations:

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(3)

DUBLIN POLICE ACT 1842 S14(13)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(1)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S8

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6(1)(b)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(6)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(2)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(3)

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

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(5)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(7)(a)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(7)(b)(i)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(8)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6(6)(a)

LYNCH, STATE V COONEY 1982 IR 337

Synopsis

Garda Siochana

Garda Síochána; complaints procedure; fair procedures; natural justice; duty to give reasons; appellant had alleged assault by member of Garda Síochána; appellant arrested; appellant released without charge; summons had issued charging appellant with use of threatening or abusing or insulting words or behaviour with intent to provoke breach of the peace; summons had been struck out; appellant made complaint to respondent pursuant to Garda Síochána (Complaints) Act, 1986; Chief Executive of respondent found complainant to be admissible and investigating officer appointed; respondent referred the matter to the Director of Public Prosecutions; Director decided not to prosecute; respondent decided not to take further action; judicial review of decision not to take further action refused; appeal; whether appellant should have been afforded opportunity to make representations before respondent formed its opinion; whether appellant should have received from respondent materials upon which it based its opinion; whether respondent should have given appellant reasons for its decision; whether respondent failed to consider matter afresh after Director made decision not to prosecute; whether respondent was merely forming opinion as to whether investigation should proceed to a further stage.

Held: Appeal dismissed; function of respondent is to ensure that there is a case to be met, not to make a decision; if there is a case to be met respondent must refer matter to the Director; respondent having decided that there was no case to meet in relation to breach of discipline was entitled to take no further action; reason given by respondent to appellant is sufficient; decision of respondent was bona fide, sustainable and not unreasonable.

Flood v. Garda Síochána Complaints Board - Supreme Court: Hamilton C.J., Barrington J., Keane J., Murphy J., Barron J. - 19/07/1999 - [1999] 4 IR 560

The Garda Siochana Complaints Board's function was to decide whether a complaint might disclose a breach of discipline or an offence: if it disclosed a breach of discipline it could refer it to an internal tribunal; if it disclosed an offence it was obliged to refer the matter to the D.P.P. The principles of fair procedures required that the Board form its opinion bona fide and reasonably. Failure to allow the complainant a right of audience was not a breach of fair procedures since the complainant was not an accused or subject to a judicial process. The Supreme Court so held in dismissing the appeal.

1 19th day of July 1999 byBARRON J.

BARRON J.

2 The facts giving rise to these proceedings are set out in the judgment of the learned trial judge under the heading "The Applicant's Allegations". In essence the applicant alleged that he had been assaulted by the notice party for no reason whatsoever; had been handcuffed and brought to Kevin Street Garda Station. There he had been examined by a doctor to whom he showed injuries involving some cuts and bruises. He was later released without charge. On his release, he attended the casualty department of the Meath Hospital.

3 On the following day the 11th December 1992 the applicant made a complaint to the respondent ("the Board") pursuant to the provisions of the Garda Síochána (Complaints) Act, 1986 ("the Act"). For a complaint to be admissible, it must comply with the conditions set out in s. 4(3) which are as follows:

4 i "(i) the complainant was a member of the public,

5 (ii) the complainant was directly affected by or witnessed the conduct alleged in the complaint,

6 (iii) the said conduct would constitute an offence or be conduct specified in the Fourth Schedule to this Act,

7 (iv) the date on which the said conduct was alleged to have occurred was on or after the establishment day and within six months before the date on which the complaint was made,

8 (v) the application of this Act to the said conduct did not, by virtue of section 15 of this Act, stand excluded on the date on which the complaint was made, and

9 (vi) the complaint is not frivolous or vexatious."

10 In the first instance the Chief Executive of the Board ("the Chief Executive") determines whether a complaint is admissible. If he does, or exceptionally where he does not and the Board does, the matter is referred to the Commissioner of An Garda Síochána ("the Commissioner"). Unless the Commissioner is of the opinion that the matter can be resolved informally, he appoints an investigating officer to investigate. In the instant case, the Chief Executive found the complaint to be admissible and an investigating officer was appointed by the Commissioner. By a letter dated the 26th April 1993 the solicitor for the applicant was informed that this stage had been reached.

11 Meanwhile on the 9th February, 1993, a summons had been sought by the notice party against the applicant to answer a charge that he did on the 10th day of December 1992 at Portobello Bridge, a public place in the Dublin Metropolitan District, use threatening or abusing or insulting words or behaviour with intent to provoke a breach of the peace whereby a breach of the peace might be occasioned contrary to s. 14(13) of the Dublin Police Act, 1842. The summons was returnable for the 9th June, 1993, and on that date was adjourned to the 2nd December 1993. On the latter date the notice party was refused an adjournment and the summons was struck out. Such proceedings were not subsequently reinstituted.

12 While the proceedings were in being the applicant, on the advice of his solicitor, refused to make any statement to the investigating officer. Once the proceedings had been struck out the applicant agreed to make such a statement and did so setting out the facts of his complaint to the investigating officer on the 18th January, 1994.

13 The applicant heard no more until his solicitor received a letter dated the 1st June, 1994, from the Chief Executive which was as follows:

"Dear Sir

I refer to previous correspondence concerning the complaint which you made under the Garda Slochána (Complaints) Act, 1986.

The report of the investigating officer appointed to investigate the complaint and the relevant comments and recommendations of the Chief Executive have been considered carefully by the Board. Being satisfied that the complaint was admissible, and that the conduct complained of might constitute a criminal offence on the part of any member, the Board referred the matter to the Director of Public Prosecutions. The Director has now informed us that there will be no prosecution.

The Board is satisfied that the matter has been thoroughly investigated and is of opinion that neither an offence nor a breach of discipline on the part of any member has been disclosed. Accordingly, the Board will take no further action in the matter.

Yours sincerely"

14 The solicitor for the applicant replied by letter dated the 4th July, 1994, as follows:

"Dear Sir"

15 I refer to your letter of the 1st of June 1994.

16 I have considered the contents carefully and there is one aspect of the letter that puzzles me. In paragraph 2 of your letter, it is stated that the Board's opinion is that a crime may have been committed by a garda and yet, paragraph 3, the opinion of the Board is stated to be that no crime or disciplinary breach has occurred. I find it difficult to envisage the process which might lead to both opinions being held by the Board.

17 Furthermore, my client was not informed that the Board was to meet to consider his complaint and consequently has had no opportunity to address the issues before the Board or to consider the material laid before the Board. Neither has he had an opportunity to see and consider the report of Inspector McLaughlin or the comments and recommendations of yourself to the Board, nor is he aware of, and therefore unable to comment upon the totality of the evidence proffered to the Board in their consideration of the matter.

18 I will therefore be obliged if you would forward copies of all the material upon which the Board deliberated, (including the medical reports made available by the hospital and by the garda doctor who attended my client in the Garda Station). Finally, please furnish details of the material forwarded to the D.P.P. and a copy of his decision.

19 I look forward to hearing from you.

20 Yours faithfully"

21 As can be seen from the contents of this letter, the applicant was claiming a right to know what was contained in the investigating officer's report, and to make representations to the Board before it acted upon that report. His solicitor received a reply from the Board dated the 21st August, 1994, which was as follows:

"Dear Sir"

22 I refer to your letter of 4th July 1994 in connection with the complaint of the above under the ...