Fowley v Conroy

• Jurisdiction: Ireland
• Judge: Clarke J.
• Judgment Date: 27 July 2005
• Neutral Citation: [2005] IEHC 269
• Docket Number: [2005 No.
• Court: High Court
• Date: 27 July 2005

[2005] IEHC 269

THE HIGH COURT

[No. 230 JR/2005]

FOWLEY v CONROY

JUDICIAL REVIEW

IN THE MATTER OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

SECTION 3

BETWEEN

TINA FOWLEY

APPLICANT

AND

NOEL CONROY

RESPONDENT

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003

R v COMMISSIONER OF POLICE OF THE METROPOLIS EX-PARTE BLACKBURN 1968 2 QB 118

FISHER v OLDHAM CORPPRATION 1930 2 KB 364

AG FOR NSW v PERPETUAL TRUSTEE CO LTD 1955 AC 457

R v CHIEF CONSTABLE OF SUSSEX (EX PARTE INTERNATIONAL TRADERS FERRY LTD) 1991 1 AER 129

CHIEF CONSTABLE OF NORTH WALES POLICE v EVANS 1982 3 AER 141

R v CAMBRIDGE HEALTH AUTHORITY EX PARTE B 1995 2 AER 129

HARRIS v SHEFFIELD UNITED FOOTBALL CLUB LTD 1987 2 AER 838

O'NEILL v BEAUMONT HOSPITAL 1990 ILRM 419

Abstract:

Judicial review - Bias - Whether the respondent acted in a capricious manner in declining to direct that the investigation of an offence of which the applicant was the victim be conducted by Gardai other than those from the Donegal Division.

Facts: The applicant who was a member of An Garda Siochana sought by way of judicial review orders requiring the investigation of a burglary at her home address to be conducted by members of An Garda Siochana outside the Donegal Division. The applicant alleged that a clear conflict of interests existed between the applicant and senior Gardai of the Donegal Division having regard to the fact that she had given evidence before the Morris Tribunal of Inquiry regarding acts including misconduct on the part of certain senior members of the Donegal Division.

Held by Clarke J. in dismissing the applicant's case: That the applicant failed to establish that there was anything in the manner in which the investigation was conducted that would have led the Commissioner to conclude that the investigation had not been properly conducted.

Reporter: L.O'S.

1 JUDGMENT of Clarke J. delivered on the 27th day of July, 2005.

1. Introduction

2 1.1 The applicant is a member of An Garda Síochána. She brings these proceedings for the purposes of seeking orders which would require that an investigation of an offence, of which she was the victim, should be conducted otherwise than by Gardaí of or connected with Donegal Division of An Garda Síochána. The respondent is the Commissioner of An Garda Síochána ("The Commissioner").

3 The applicant was given leave to seek judicial review by order of the court (Hanna J.) on 7th March, 2005. At that time she was suspended from duty. However during the course of these proceedings it would appear that that suspension has been lifted.

4 1.2 The issues which arise in this case are connected with the unfortunate events concerning the Gardaí in Donegal which have been the subject of significant publicity and are the focus of the Tribunal established with the former President of this Court (Morris P.) as its sole member ("The Morris Tribunal"). For reasons which it will be necessary to go into in somewhat more detail the applicant has had an involvement with the events being enquired into by the Morris Tribunal and has had dealings with that Tribunal. As is a matter of wide public knowledge certain senior members of An Garda Síochána who were assigned to the Donegal Division at the time when the events to which the enquiries of the Morris Tribunal relate occurred were the subject of significant criticism by the Tribunal.

5 1.3 It would appear that on 10th January of this year the applicant's home at Letterkenny was the subject of a burglary where two clocks, a DVD player, two discs, a torch, a play station 2 game and a small amount of cash were stolen from the property together with tapes which the applicant describes as being "of relevance" to the Morris Tribunal.

6 It would also appear that at 9.10 pm on that evening the applicant reported, by phone to Garda Naomi Sloyan, (who was the Station Orderly on duty at Letterkenny General Station), that her house had been burgled. While it would appear that Garda Sloyan wrongly recorded that report as relating to damage to a car it is accepted that the report received did relate to a complaint about a burglary at the applicant's home. Furthermore it would appear that two Garda officers were directed to the applicant's residence and carried out enquiries and investigations. On the basis that the mis-recording of the applicant's complaint does not appear to have prevented an early enquiry into the burglary at her home I do not believe that anything now turns upon that mis-recording.

7 It is common case that a Detective Inspector Kane and a Detective Garda Lohan went to the applicant's house on 28th January, 2005. Inspector Kane has deposed to the fact that on the occasion in question he listed the various Gardaí who were involved in the investigation and asked the applicant if she was happy with same. He has further deposed to the fact that the applicant indicated, on that occasion, that she had no problem with the investigation. In her replying affidavit the applicant accepts that Inspector Kane named the Gardaí involved and indicates that they are persons "with whom I have no personal difficulty". She further indicates that she felt, on that occasion, unable to discuss the question of what she saw as a professional conflict with Detective Inspector Kane.

8 1.4 In any event some six days later on 3rd February, 2005 the applicant's solicitors wrote to the Commissioner. Having referred to the applicant and the fact that she had instituted proceedings in relation to her suspension which was currently before the courts, the letter went on to say the following:-

"Garda Fowley is a key witness before the Morris Tribunal of Inquiry into certain activities of certain Gardaí in the Donegal Division and has given evidence to the Tribunal regarding acts including misconduct on the part of certain senior members of the Donegal Division. In particular,"

9 (a) Garda Fowley has informed the Morris Tribunal that Superintendent John McGinley was involved in forging the signature of Frank McBrearty Jnr,

10 (b) Garda Fowley has pointed out discrepancies in the notes of the interview of Ms. Roisin McConnell that there were extra questions in the typed version as compared with the handwritten version thereof

11 On 10th day of January, 2005 Garda Fowley's house at the above address was the subject of a burglary and tapes of relevance to the Morris Tribunal were stolen. Nothing else apart from two clocks, a DVD player and some cash were stolen from the property and items such as a television, jewellery, a lap top computer and other property of significant value were left untouched.

12 Our client has made a complaint to An Garda Síochána in relation to this offence. In all the circumstances it is clearly totally inappropriate that this offence be investigated by the Donegal Division as a clear conflict of interests exists between our client and senior Gardaí of the Donegal Division, particularly having regard to the nature and circumstances of this particular offence.

13 We hereby respectfully call upon you to make immediate arrangements to have the investigation of this offence be carried out by Gardaí outside the Donegal Division, with no links to the Donegal Division, and to confirm that you will do so on or before the close of business on 10th February, 2005".

14 1.5 These proceedings were threatened in default. It would appear that by letter of 3rd March, 2005 sent by Assistant Commissioner Catherine Clancy on behalf of the Commissioner, the following was stated:-

"I wish to advise you that burglary (sic) at the home of Garda Tina Fowley on 10th January, 2005 is currently under investigation by Gardaí attached to Letterkenny Garda Station. I have full confidence in the ability of the investigating Gardaí to carry out a thorough investigation."

15 In addition, Garda Tina Fowley has expressed her full satisfaction with the Gardaí assigned to investigate this incident".

16 1.6 The application for leave was successfully moved before the court on 7th March, 2005. In those circumstances the applicant maintains that the continued assignment of Gardaí from the Donegal Division to conduct the enquiry into the burglary at her home amounts to a breach of what are, it is asserted, her entitlements to have an investigation carried out into that burglary by Gardaí in respect of whom there would not be what she describes as "a conflict of interest".

2. The Evidence

17 2.1 In her original grounding affidavit the specific matters raised by the applicant concerning conflict with the Donegal Division of An Garda Síochána were put on the basis that the applicant had given evidence to the Morris Tribunal in respect of matters including "serious misconducts on the part of certain senior members of the Donegal Division of An Garda Síochána". Specific reference is then made to the fact that, it is said, the applicant informed the Morris Tribunal that Superintendent John McGinley was involved in forging the signature of Frank McBrearty Jnr. There is further reference to the fact that the applicant would appear to have pointed out discrepancies in the notes of the interview of Roisin McConnell in that there were extra questions in the typed version as compared with the handwritten version of her interview. No other specific matters are raised in that affidavit. The affidavit therefore raises the same specific matters as were set out in the letter of the 3rd February. On the basis of those contentions the applicant concluded her affidavit by expressing extreme concern that it would be "impossible" to have confidence in such senior Gardaí to the extent that I apprehend that this offence will not be properly investigated".

18 2.2 The original replying affidavit on behalf of the respondent was sworn by Detective Inspector Keane. Having referred to...