Garda John Kelly v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 12 April 2013
• Neutral Citation: [2013] IEHC 158
• Court: High Court
• Date: 12 April 2013

[2013] IEHC 158

THE HIGH COURT

[No. 284 J.R./2012]

Kelly v Cmsr of an Garda Siochana

JUDICIAL REVIEW

BETWEEN

Garda John Kelly

APPLICANT

V.

Commissioner of an Garda Síochána

RESPONDENT

RSC O.84 r21

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

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

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 PART 3

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

INTOXICATING LIQUOR ACT 1962 S29

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

STATE (GLEESON) v MIN FOR DEFENCE 1976 IR 280

PRENDIVILLE v MEDICAL COUNCIL 2008 3 IR 122

SISTER MARY CHRISTIAN & ORS v DUBLIN CITY COUNCIL (NO.1) UNREP CLARKE 27.4.2012 2012/6/1547 2012 IEHC 163

P (F) v MIN FOR JUSTICE 2002 1 IR 164

MULHOLLAND v BORD PLEANALA (NO.2) 2006 1 IR 453

HOGAN & MORGAN ADMINISTRATIVE LAW IN IRELAND 3ED P642

STATE (KEEGAN) v STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 1 IR 642

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 33(1)

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

RSC O.19 r28

BARRY v BUCKLEY 1981 1 IR 306

MALLACK v MIN FOR JUSTICE 2013 1 ILRM 73

GARDA SIOCHANA (DISCIPLINE) REGS SI 214/2007 REG 9

FARRELLY v COMMISSIONER OF GARDA SIOCHANA UNREP O'NEILL 13.3.2007 2007/23/4686 2007 IEHC 84

MCCARRON v SUPERINTENDENT KEARNEY UNREP CHARLETON 4.7.2008 2008/36/7808 2008 IEHC 195

MEADOWS v MIN FOR JUSTICE 2010 2 IR 701 2011 2 ILRM 157 2010 IESC 3

GARDA SÍOCHÁNA

Discipline

Application for judicial review - Member of An Garda Síochána - Application for order prohibiting dismissal - Disciplinary charges - Charges of misconduct - Charges of falsehood - Alleged making of false statements regarding inspection of licensed premises - Recommendation of board of inquiry - Alleged breach of principles of natural justice - Admission of undisclosed evidence - Alleged failure to give reasons - Alleged failure to specify false parts of statements - Duty to give reasons - Proportionality - Alleged failure to consider relevant matters - Alleged failure to afford applicant right of appeal - Alleged unreasonableness - Role of court - Whether material conclusions reached tainted by irrationality or unreasonableness - Adequacy of reasons - State (Gleeson) v Minister for Defence [1976] IR 280; Prendiville v Medical Council [2007] IEHC 427, [2008] 3 IR 122; Christian v Dublin City Council [2012] IEHC 163, (Unrep, Clarke J, 27/4/2012); FP v Minister for Justice [2002] 1 IR 164; International Fishing Vessels Ltd v Minister for Marine [1989] IR 149; Dunnes Stores Ireland Company v Maloney [1999] 3 IR 542; Mulholland v An Bord Pleanála (No 2) [2005] IEHC 306, [2006] 1 IR 453; The State (Keegan) v The Stardust Victims Compensation Tribunal [1986] 1 IR 642; Barry v Buckley [1981] 1 IR 306; Mallak v Minister for Justice [2012] IESC 59, [2012] 3 IR 297; Farrelly v Garda Commissioner [2007] IEHC 84, (Unrep, O'Neill J, 13/3/2007); O'Keeffe v An Bord Pleanála [1993] 1 IR 39; McCarron v Kearney [2008] IEHC 195, (Unrep, Charleton J, 4/7/2008) and Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3, [2010] 2 IR 701 considered - Garda Síochána (Discipline) Regulations 2007 (SI 214/2007), regs 9, 22, 30, 33 and 35 - Relief refused (2012/284JR - Hedigan J - 12/4/2013) [2013] IEHC 158

Kelly v Commissioner of An Garda Síochána

Facts: The applicant had been a member of An Garda Síochána since 1982. On the 20 ^th September 2009, he conducted an after-hours inspection of licensed premises known as Monica”s bar which he found to be open at approximately 3.30am. In his statement, the applicant reported that he had entered the premises and observed four individuals, two of which were the licensee and his wife. However, the subsequent statement of the licensee”s wife to a Sergeant Fahy indicated that he had not in fact entered the premises. Sergeant Fahy asked the applicant to clarify his statement but he failed to do so adequately. At this point, a Superintendent Brian Brunton was appointed investigating officer who took statements from all individuals who were present in Monica”s Bar at the time in question. They all confirmed that the applicant had not entered the premises properly. However, a local taxi driver made a statement confirming the applicant”s version of events.

A board of inquiry was appointed to investigate whether the applicant had committed six breaches of misconduct under the Garda Síochána (Discipline) Regulations 2007 (‘the 2007 Regulations’). On the 11 ^th July 2011, following the conclusion of evidence being heard, the board recommended the applicant”s dismissal on four of the charges made against him. The applicant”s served a formal notice of appeal to the Appeal Board. The applicant”s grounds were considered at a meeting of the Appeal Board on the 12th March, 2012 where it was determined that the case made by the applicant on appeal was ‘without substance and foundation’ pursuant to the provisions of Regulation 35(2) (b) of the 2007 Regulations. His appeal was therefore dismissed. The applicant sought a judicial review of the decision on the grounds that there were a number of inconsistencies between the witnesses” statements. He contended that the board”s decision to uphold the charges against him despite these inconsistencies and its failure to give reasons for the decision reached amounted to procedural impropriety and a breach of natural justice. He further submitted that the board failed to consider the impact of different forms of penalty on him, meaning there was no evidence that the decision reached was proportional. He also alleged there was impropriety in that a statement of the licensee”s wife was not disclosed to him until the third day of hearing

Held by Hedigan J that the function of judicial review is not to investigate the decisions of the respondent but to ensure the procedure taken to reach decisions is lawful and proper. The issue to be considered was therefore whether there was procedural impropriety in the board”s lack of written reasons for its decision. It was held that the need for written reasons depended on the individual case. Here, it was determined that the reasons for dismissal were implicit in that the complaints made against the applicant were made clear at an early stage and that the evidence was therefore a factual dispute as to whether he was truthful in his statements or not. He would have been left in no doubt as to why he was dismissed meaning it was also possible to access whether the decision was proportional or not.

In relation to the late disclosure of the statement of the licensee”s wife, it was held that this evidence could not be regarded as contradictory evidence and that it would not have helped the applicant”s case in any substantial way.

Relief sought refused.

1 Judgment of Mr. Justice Hedigan delivered on 12th day of April 2013.

Parties

2 1. The applicant is a member of An Garda Síochána with an address at Drumshambo Garda Station, Co. Leitrim. The 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.

Application

3 2. The applicant seeks the following reliefs:-

4 (i) An order prohibiting the respondent from dismissing the applicant from his post as a member of An Garda Síochána;

5 (ii) Certiorari by way of judicial review of the decision of the respondent to dismiss the applicant dated the 12 ^th August, 2011;

6 (iii) Certiorari by way of judicial review of the recommendation dated the 11 ^th July, 2011, of the Board of Inquiry ( hereinafter "the Board") established pursuant to the Garda Síochána (Discipline) Regulations 2007;

7 (iv) Certiorari by way of judicial review of the refusal to consider an appeal, dated the 13 ^th March, 2012, of the Appeal Board (hereinafter "the Appeal Board") established pursuant to the Garda Síochána (Discipline) Regulations 2007;

8 (v) Prohibition of any further disciplinary investigation into the matters the subject matter of these proceedings;

9 (vi) A stay on the decision of the respondent pending the determination of the within proceedings;

10 (vii) An order, if necessary, pursuant to Order 84 Rule 21 of the Rules of the Superior Courts extending the time in which to bring proceedings to seek leave for judicial review;

11 (viii) Interim or interlocutory relief;

12 (ix) Further or other order;

13 (x) Costs.

Factual background

14 2 3.1 The applicant has been a member of An Garda Síochána for 27 years having joined in 1982. He was the subject of a number of disciplinary charges arising from statements made by him subsequent to his conducting an after-hours inspection of a licensed premises (Monica's Bar) in Drumshambo, Co. Leitrim on the 20 ^th September, 2009, which he found to be open at 3.30am.

15 3 3.2 A board of inquiry was later established to investigate charges made against the applicant in relation to the veracity of statements given by him.

16 4 3.3 An initial statement in relation to the inspection was provided by the applicant on the 27 ^th September, 2009, wherein he indicated that he had entered the premises and found people (two of whom were known to him) on the premises as well as the licensee and his wife, Mrs Mc Gourty.

17 5 3.4 In the days following, Mrs Mc Gourty made a statement to Sergeant Fahy to the effect that Garda Kelly had not entered the premises on the night in question but may have put his foot inside the hallway. This statement only came to the applicant's attention later on in proceedings.

18 6 3.5 The applicant's statement together with the file on the matter was submitted to Sergeant Fahy on the 18 ^th November, 2009. On the 20 ^th November, 2009, Sergeant Fahy sought clarification from the applicant on a number of matters. He was asked...