Garda John Kelly v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: O'Donnell J
• Judgment Date: 05 November 2013
• Neutral Citation: [2013] IESC 47
• Court: Supreme Court
• Date: 05 November 2013

Kelly v Cmsr of An Garda Siochana

BETWEEN:

GARDA JOHN KELLY

Appellant

-and-

COMMISSIONER OF AN GARDA SIOCHANA

Respondent

[2013] IESC 47

Denham C.J.

O'Donnell J.

Clarke J.

RECORD NO. 205/2013

THE SUPREME COURT

Administrative law- Judicial review- Reasonableness- Reasons- Board of Inquiry- Frivolous, vexatious and without substance - Dismissal- Garda Siochana (Discipline) Regulations 2007

Facts: A Tribunal had found six counts founded warranting the dismissal from service of the appellant Garda. The appellant challenged the reasonableness of the Board of Inquiry”s decision and procedures and contended that it was obliged to give reasons for its decision. He contended that it was decision was frivolous, vexatious and without substance. The Court considered the application of the Garda Siochana (Discipline) Regulations 2007.

Held by O”Donnell J. (Denham CJ, Clarke J.) in quashing the decision of the Appeal Board and upholding the Commissioner”s decision dismissing the applicant. The Regulations suggested that reasons be given for any determination made by the Board. The Court would direct that the Board of inquiry furnish reasons for its decision.

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 23

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 30

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 35(2)(B)

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 35

GARDA KELLY v COMMISSIONER OF AN GARDA SIOCHANA UNREP HEDIGAN 12.4.2013 2013 IEHC 158

MALLAK v MIN FOR JUSTICE 2013 1 ILRM 73 2012/24/6926 2012 IESC 59

IRISH NATIONALITY & CITIZENSHIP ACT 1956

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 14

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 22

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 24(5)

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 30(2)

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 30 S2

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 32

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 33

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 33(3)

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 34(5)

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 36

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 37(3)

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 24

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 25

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 24(5)

RSC O.19 r28

BARRY v BUCKLEY 1981 IR 306

JOHN v REES 1970 CH 345

1 Judgment of O'Donnell J delivered on the 5th day of November, 2013.

2 Judgment delivered by O'Donnell J

3 1 To the casual observer Drumshanbo County Leitrim (population: 857) might appear a tidy, quiet and even sleepy place. It certainly was not such in the early hours of Sunday the 20 ^th of September 2009. At 3.30am that morning a taxi, driven by Anthony McNulty, was waiting for customers outside Monica's public house at High Street, Drumshanbo. A local garda, Garda John Kelly, the appellant, approached. It should be said that this incident occurred only two weeks after the conviction in the District Court of the licensee for having persons on licensed premises after the licensing hours. That offence had occurred in January 2009 and had itself been prosecuted by Garda Kelly. It is common case that Garda Kelly spoke to both the licensee, Mr Paddy McGourty, and his wife, Monica McGourty, for whom it seems likely the premises was named. Mrs McGourty, it appears, became so incensed that she left the licensed premises and walked around the town either following Garda Kelly or in front of him and at one stage sat on a window outside another licensed premises looking at Garda Kelly apparently with a view to making the point that a number of other licensed premises were still operating at that time of the morning without attracting Garda Kelly's attention. This much is not in dispute. However, what happened (or did not happen) between these two incidents is a matter of bitter controversy in this case, and led to the dismissal of the Applicant/Appellant from the Garda Síochána on order of the respondent Commissioner, and thus to these proceedings.

Facts

4 2 The appellant, Garda John Kelly, was a member of An Garda Síochána and at the time of his dismissal in August 2011 had served 27 years in the force. In 2009, when the events the subject matter of the appeal took place, the appellant was stationed at Drumshanbo Garda Station in County Leitrim. On the 20 ^th September 2009 he entered details on the Garda PULSE system indicating that he had conducted an after hours inspection of Monica's licensed premises in Drumshanbo on that night, where he had discovered the licensee and his wife to be present along with several customers. The information entered into the PULSE system named the licensee and his wife along with two other individuals, a Mr and Mrs Lynch. The remaining customers were not named. One week later, on the 27 ^th September, the Appellant made a formal statement outlining these events, wherein he stated that he inspected the premises and found seven customers there present and that two other individuals had walked past him as he entered the premises. On the 18 ^th November 2009 this statement was submitted to the local sergeant, a Sergeant Fahy, with a view to a further prosecution of the licensee.

5 3 Sergeant Fahy returned the appellant's statement to him on the 20 ^th November seeking clarification on a number of issues contained therein, and, in particular, whether he knew the other individuals present in the public house, or had obtained their names, and seeking confirmation that Garcia Kelly had in fact entered the main bar of the premises. The appellant replied to Sergeant Fahy on the 11 ^th January 2010. That correspondence makes it clear that the relationship between Garda Kelly and Sergeant Fahy was not good. Garda Kelly stated the he did not understand the significance of the sergeant's queries but confirmed that he had entered the premises. He provided a second statement which was not in any way materially different to the first. He also made several accusations against Sergeant Fahy in this correspondence in which he questioned why the sergeant was seeking the clarifications sought, referred to the sergeant's close scrutiny of the previous prosecution of the licensee and suggested that Monica's was a favoured local for members of the Garda Síochána residing in the area. Sergeant Fahy then wrote to Inspector Sweeney, the Chief Superintendent at Manorhamilton Garda Station, on the 14 ^th January 2010 notifying him of the situation, complaining that Garda Kelly had not provided answers to his questions in this second statement and accordingly recommended no prosecution be brought. After submitting his response of the 11 ^th January, Garda Kelly had reported sick and unfit for duty and had subsequently spent some time on sick leave. The inspector, by way of response to Garda Kelly's second statement and Sergeant Fahy's letter to him, requested Garda Kelly to provide clarification on the matters highlighted by Sergeant Fahy in November.

6 4 In a letter dated the 2 ^nd February 2010, Garda Kelly provided his answer to this request and also provided a third statement dated the 1 ^st February. This statement differed quite markedly from the first two statements. First, it identified one of the individuals Garda Kelly had said walked past him when he was entering the pub as Robbie Cullen. Second, Garda Kelly now stated that Mr Brendan Lynch, who he had previously named as one of the customers present on the night, had been abusive to him on that occasion and the statement gave details of the language used. In response to this latest statement Sergeant Fahy wrote to Inspector Sweeney and stated that he knew as a fect that another person was on the premises on the night of the 20 ^th September who was known to Garda Kelly and also that at least one other person had already been prosecuted by him for being on a licensed premises after hours. On the 1 ^st March 2010 Robbie Cullen, who was the individual named by Garda Kelly as having passed him on his way into the pub on the night in question, made a formal statement (to Sergeant Fahy) in which he denied being present on the premises at all that night, and furthermore made allegations against Garda Kelly that he had been recently harassing him to provide the names of the customers present on the premises on the night of the 20 ^th September.

7 5 On the 27 ^th April 2010, Inspector Sweeney wrote to the Chief Superintendent in Sligo informing him of his decision to prosecute the licensee and recommending that the matter of the events of the night of the 20 ^th September be fully investigated. A prosecution of Mr McGourty was initiated but adjourned pending the outcome of the investigation into the events of the night in question. Inspector Sweeney stated in his letter to the Chief Superintendent that he had spoken with Monica McGourty on the 23 ^rd April and that she denied that Garda Kelly had entered the premises. On the 9 ^th April Brendan Lynch and his wife Mary Lynch, who had been named in the first statement of the appellant as customers present on the night in question, also made statements to Inspector Sweeney. They denied that the garda had entered the pub on the night in question. They admitted, however, that they had been present there after hours and named some of the other customers who were there also. Mrs Lynch stated at the hearing of the Board of Inquiry that when she and her husband became aware that Garda Kelly had made allegations against them she went to Sergeant Fahy who told her that she could make a complaint through her solicitor and get a copy of any statement. Mrs Lynch's solicitor informed her that she could request a copy of the statements of Garda Kelly. This request was made and the Lynchs received copies...