Galvin v Commissioner of an Garda Síochána and Others

JurisdictionIreland
JudgeMr. Justice Hedigan
Judgment Date20 December 2011
Neutral Citation[2011] IEHC 486
CourtHigh Court
Date20 December 2011

[2011] IEHC 486

THE HIGH COURT

[No. 1234 JR/2010]
Galvin v Commissioner of An Garda Siochana & Ors
[2011] IEHC 486
JUDICIAL REVIEW

Between:

KEVIN GALVIN
APPLICANT
-and-
THE COMMISSIONER OF AN GARDA SIOCHANA THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE GOVERNMENT OF IRELAND IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

GARDA SIOCHANA ACT 2005 S14

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 40(1)

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 40

MCGRATH v CMSR OF AN GARDA SIOCHANA 1991 1 IR 69 1990 ILRM 817 1990/7/2031

KIELY v MIN FOR SOCIAL WELFARE 1971 IR 21

O'SHEA v CMSR OF AN GARDA SIOCHANA & ORS 1994 2 IR 408 1993/14/4278

HOGAN & ORS ADMINISTRATIVE LAW IN IRELAND 4ED 2010 658

GARDA SIOCHANA ACT 2005 S14(2)

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 40(3)(C)

REGISTRAR OF COMPANIES v JUDGE ANDERSON & SYSTEM PARTNERS LTD 2005 1 IR 21 2004/44/10033 2004 IESC 103

DE BLACAM JUDICIAL REVIEW 2ED 2009 421

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

DEKRA EIREANN TEORANTA v MIN FOR ENVIRONMENT 2003 2 IR 270 2003 2 ILRM 210 2003/12/2484

HAYES v FINANCIAL SERVICES OMBUDSMAN UNREP MACMENAMIN 3.11.2008 (EX TEMPORE)

JUDICIAL REVIEW

Practice and procedure

Certiorari - Mandamus - Time limit - Requirement for promptness - Garda Síochána - Dismissal - Whether applicant seeking reinstatement bore heavy onus to move promptly - Grant of leave - Non disclosure - Whether court which granted leave misled - Whether non disclosure explained - Whether breach of duty to act uberimma fides - Acqueiscence - Whether active participation in disciplinary process deprived applicant of right to raise issues subsequently - Whether applicant sought to make further submissions - Whether applicant sought oral hearing - Whether applicant accepted and engaged in disciplinary process - Natural and constitutional justice - Ultra vires - Fair procedures - Whether respondent's furnishing of additional documents to final decision maker breached fair procedures - Whether additional information de minimus - Whether decision to dismiss included hearsay evidence - Whether respondent applied statute with penal effect retrospectively - Whether prior disciplinary measures gave rise to legitimate expectation of no further sanction - Whether employer free to have regard to cumulative pattern of misconduct - Whether reasonable to conclude that person who had several disciplinary offences and District Court convictions inappropriate person to serve in An Garda Síochána - Contempt of court - Whether applicant credible where previously found in serious contempt of court - Whether previous contempt of court relevant to exercise of discretion - De Roiste v Minister for Defence [2001] 1 IR 190 and Dekra Éireann Teo v Minister for the Environment [2003] IESC 25, [2003] 2 IR 270 applied - Garda Síochána Act 2005 (No 20), s 14 - Garda Síochána (Discipline) Regulations 1989 (SI 94/1989), art 40 - Relief refused (2010/1234JR - Hedigan J - 20/12/2011) [2011] IEHC 486

Galvin v Commissioner of An Garda Síochána

Facts: The applicant sought to quash by way of judicial review the dismissal of the applicant from An Garda Siochana. The Garda Commissioner had set out nineteen grounds which had resulted in the Commissioner forming the view that his continued membership of the force would undermine public confidence. The grounds related to findings of neglect of duty pursuant to the Garda Siochana (Discipline) Regulations and finding of engaging in corrupt practices as well as discreditable conduct. The applicant submitted that his dismissal was ultra vires as it penalised him by employing legislation which was not enacted at the time a number of the breaches occurred, thus pre-dating the coming into force of the Garda Siochana Act 2005 in 2006. He alleged further that he had already been disciplined for breaches of good conduct which formed the basis for the dismissal. He alleged that he had not been given the opportunity to counter the evidence. The question arose as to whether the applicant had acted promptly in seeking relief and whether he had disclosed all relevant evidence together with his conduct in the proceedings.

Held by Hedigan J. that any failure on the part of the Commissioner was de minimus. The applicant had not acted with promptitude. He had failed to exhibit materials leading to his dismissal. The applicant never asked for an oral hearing. The applicant had not pointed out anything that he was precluded from saying at the hearing. He had failed to engage with the issue. It was not for the Court to say what conduct was sufficient to warrant dismissal on the basis that retention would undermine public confidence in the force. The applicant had been jailed for a most serious contempt arising out of the District Court proceedings related to the reasons for the Commissioners actions, which would warrant the Court to exercise its discretion against granting reliefs. The reliefs sought in the application would be effused.

Reporter: E.F.

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Judgment of Mr. Justice Hedigan delivered the 20th day of December 2011.

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1. The applicant resides at 81 A Furry Park Road, Clontarf, Dublin 3. The first named respondent is the person who enjoys general direction and control of An Garda Síochána, and has his principal offices at Garda Headquarters, Phoenix Park, Dublin 7. The second named respondent is a Minister of the Government and has his principal offices at the Department of Justice, Equality and Law Reform, 72-76 St. Stephen's Green, Dublin 2. The third named respondent is the Irish Government. The fourth named respondent is sued as legal representative of the first second and third named respondents.

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2. The applicant seeks the following reliefs:-

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(i) Judicial Review by way of certiorari quashing the first named respondent's decision that the applicant be dismissed from An Garda Síochána.

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(ii) In the alternative a declaration that the applicant's purported dismissal from An Garda Síochána is null, void and of no effect.

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(iii) An order of mandamus reinstating the applicant from the date of purported dismissal.

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(iv) Damages.

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(v) If necessary, an order granting an extension of time for the making of this application.

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(vi) Such further and other relief as seems fit.

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(vii) An order providing for the costs of the proceedings herein.

Background Facts
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2 3.1 In this case the applicant seeks to quash the decision of the Garda Commissioner, as consented to by the Government, to dismiss him from An Garda Síochána. In addition he seeks an order from this Court by way of mandamus reinstating him to An Garda Síochána. The applicant joined An Garda Síochána in July 1997 and commenced his training in Sligo Garda Station. He was then assigned to regular beat duties in Store Street. In October 2000, the applicant was transferred to the information technology section at Garda Headquarters.

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3 3.2 As a result of a number of matters relating to the conduct of the applicant, the Garda Commissioner formed the view that his continued membership in the force would undermine public confidence in An Garda Síochána and that dismissal was necessary in order to maintain that confidence. The Commissioner's opinion in this regard was conveyed to the applicant by way of a letter dated the 14 th January, 2010. The letter set out nineteen grounds upon which the Commissioner's opinion was based. The nineteen findings relied upon by the Commissioner can be categorised as follows:-

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(i) Six findings under the Garda Síochána (Discipline) Regulations that the applicant was in neglect of duty,

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(ii) One finding under the Garda Síochána (Discipline) Regulations that the applicant had engaged in corrupt practice,

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(iii) One finding under the Garda Síochána (Discipline) Regulations of discreditable conduct on the part of the applicant,

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(iv) Ten convictions in the District Courts relating to a number of properties owned by the applicant, and

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(v) One case in the District Courts regarding a similar matter which was taken into consideration.

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The letter stated that:-

"By reason of your conduct as evidenced by the criminal court convictions and orders and as evidenced by the findings of being in breach of discipline, your continued membership would undermine public confidence in An Garda Síochána. Your dismissal is necessary to maintain public confidence."

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4 3.3 The applicant was invited to respond to this letter or make any representations which he wished to make by the 9 th February, 2010. The applicant acknowledged receipt of this above letter on the 18 th January, 2010. By letter dated the 5 th February, 2010 the applicant's solicitors sought an extension of time to enable them to obtain Counsel's advices in respect of the matter. By letter dated the 8 th February, 2010 the Commissioner acceded to this request and extended the timeline to midnight on 23 rd February, 2010. Under cover of letter dated 23 rd February, 2010 the applicant made an extensive written submission, he stated that:-

"In relation to property issues I would submit that these have been sorted out and that work has been carried out to make all of these properties compliant with the relevant regulations."

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In the cover letter it was stated that:-

"Strictly without prejudice to the above and in an effort to resolve this matter, we would advise that Garda Galvin is prepared to commence a probationary period for six months on the understanding that should he not carry out his duties in a professional manner to the satisfaction of the Commissioner that he would be prepared not to object to the termination of his employment with An Garda Síochána at the end of the six month period provided that his pension...

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3 cases
  • Nurendale Ltd T/A Panda Waste v The Labour court
    • Ireland
    • High Court
    • 12 December 2017
    ...he cannot have it both ways.' (at p.326) 84 Counsel for the notice party also cites Galvin v. Commissioner of An Garda Siochána [2011] IEHC 486 in aid of his submission that acquiescence is a bar to relief. In Galvin, the applicant had been charged with a number of disciplinary offences pu......
  • Martha McEnery v Commissioner of an Garda Síochána
    • Ireland
    • Court of Appeal (Ireland)
    • 16 October 2015
    ...of a Garda. That is a matter solely for the Garda Commissioner and the Minister (See Galvin v. The Commissioner of An Garda Síochána [2011] IEHC 486 and Stroker v. Doherty [1991] 1 I.R. 23). The President then went on to consider Regulation 39 of the Regulations giving the Commissioner the ......
  • McEnery v Commissioner of an Garda Síochána
    • Ireland
    • High Court
    • 20 November 2014
    ...this is a matter solely for the Garda Commissioner and the Minister. Thus in Galvin v. The Commissioner of An Garda Síochána & Ors. [2011] IEHC 486, Hedigan J. sated:- "It is not for this court to say what amounts to conduct sufficient to warrant dismissal on the basis that retention would ......

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