Gibbons v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice John Edwards
• Judgment Date: 30 July 2007
• Neutral Citation: [2007] IEHC 266
• Docket Number: [No. 210 J.R./2006]
• Court: High Court
• Date: 30 July 2007

[2007] IEHC 266

THE HIGH COURT

[No. 210 J.R./2006]

GIBBONS v COMMISSIONER OF AN GARDA SIOCHANA

JUDICIAL REVIEW

BETWEEN

MARK GIBBONS

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 8

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 9

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 11

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 13

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 14

GARDA SIOCHANA (DISCIPLINE) REGS 1971 SI 316/1971

BUTLER, RE 1970 IR 45

RUIGROK v COMMISSIONER OF AN GARDA SIOCHANA UNREP MURPHY 19.12.2005 2005/53/11109

MCNEILL v COMMISSIONER OF AN GARDA SIOCHANA 1997 IR 469

MCCARTHY & DENNEDY v GARDA SIOCHANA COMPLAINTS TRIBUNAL & ORS 2002 2 ILRM 341 2002 19 4881

GARDA SIOCHANA (COMPLAINTS) ACT 1986

RSC O.24 r21

M (P) v DPP UNREP GEOGHEGAN 5.4.2006 2006 IESC 22

H v DPP UNREP SUPREME 31.7.2006 2006 IESC 55

GARDA SÍOCHÁNA

Discipline

Judicial review - Disciplinary proceedings - Prohibition - Delay - Fair procedures - Prejudice to respondent -Mandatory nature of regulations - Requirement of expedition - Whether respondent guilty of inordinate and inexcusable delay in conducting disciplinary proceedings - Whether regulations to be strictly interpreted - Re Butler [1970] IR 45; Ruigrok v Commissioner of An Garda Síochána [2005] IEHC 439 (Unrep, Murphy J,19/12/2005); McNeill v Commissioner of An Garda Síochána [1997] 1 IR 469; McCarthy v Garda Síochána [2002] 2 ILRM 341; M(P) v DPP [2006] 3 IR 172 and H v DPP [2006] IESC 55 {2006] 3 IR 575 considered - Garda Síochána (Discipline) Regulations 1989 (SI No 94/1989) - Relief granted (2006/210JR - Edwards J - 30/7/2007)

Gibbons v Commissioner of An Garda Síochána

The applicant, who was a member of An Garda Siochana sought an order by way of judicial review prohibiting the respondent from further processing disciplinary proceedings against the applicant in respect of two alleged breaches of discipline on 19 September 2001. The applicant submitted that the delay by the respondent in investigating the alleged breaches of discipline by the applicant was inordinate and inexcusable and breached the applicant’s right to natural and constitutional justice and fair procedures and he referred to the use of the phrase “as soon as practicable” contained in Article 8 of the Regulations in support of his argument in this regard.

Held by Edwards J. in allowing the application: That the respondent was guilty of delay in this case and that delay was inordinate and inexcusable. The applicant’s contention that the Regulations embraced a self contained and discreet statutory code and therefore must be strictly interpreted was correct. Consequently, the respondent did not comply with the regulations and in particular breached Article 8 thereof.

Reporter: L.O’S.

Mr. Justice John Edwards

1 The applicant is a member of An Garda Síochána. He currently faces disciplinary charges under the Garda Síochána (Discipline) Regulations 1989 and the alleged breaches of discipline relate to alleged mishandling of lost property handed into Kevin Street Garda Station by a Mr. Alan Harper on the 19th September, 2001. The lost property in question went missing whilst in Garda custody and it is alleged that the applicant was negligent in his duties and that he did not properly record the lost property or issue a proper receipt for it. The applicant was the member-in-charge of property in Kevin Street Garda Station at the relevant time.

2 On the 1st November, 2003 Mr. Harper wrote a letter to the addressed to the Lost Property Office, Garda Station, Kevin Street, Dublin 2 in the following terms:-

"Dear Sirs,"

3 In November, 2001 I submitted nine small plastic bags containing a variety of valuable stones to the Garda Station in Kevin Street as found items for passing on to the Lost Property Office.

4 Will you please confirm that the person who lost them has subsequently claimed these bags?

Yours sincerely,

Alan Harper."

5 Though nothing of significance turns on it, Mr. Harper was incorrect in his recollection that he handed in the lost property in question in November, 2001. An examination of the lost property book at Kevin Street Garda Station subsequently revealed that he in fact handed in the property in question on the 19th September, 2001.

6 This letter is characterised in the applicant's submissions as being "a letter of complaint which disclosed an apparent breach of discipline by unknown members of An Garda Síochána". It is nothing of the sort. It is merely an enquiry.

7 Garda John Sheridan on behalf of the Lost Property Office at Kevin Street replied to Mr. Harper's letter by a letter dated the 13th November, 2003 in the following terms:-

"Dear Sir,"

8 I am in receipt of your letter dated the 1st November, 2003. Can you please forward the Garda Receipt issued to you when the property was surrendered, as this contains important information, which will help me to inquire further re same property.

Yours sincerely,

John Sheridan

Garda."

9 On the 15th November, 2003 Mr. Harper replied to Garda Sheridan in the following terms:-

"Dear Sir,"

10 Thank you for your letter of the 13th November, 2003. I do not have a receipt number from when I surrendered the bags to the Garda Office in Kevin Street. The reason I don't have a receipt is that when I submitted the bags the Gardaí in the office were under pressure of work and the young Garda who registered the acceptance was a little unfamiliar with the acceptance procedure. He entered my name in the big book a more Senior Garda had indicated he should use and when I asked him for a receipt he showed me the entry in the book and said that this was as much as I got.

11 I recall that the transaction was entered under my name and address, and was registered as nine small bags of stones or precious stones, or valuable stones. The location where found was in Clonskeagh, and I surrendered them in late November or early December, 2001.

Yours sincerely,

Alan Harper"

12 On the basis of this information the gardaí went about making enquiries. Arising out of those enquiries an Inspector Will Muldoon telephoned Mr. Harper sometime in January, 2004. Following that telephone conversation Mr. Harper wrote again to Garda Sheridan on the 4th February, 2004, in the these terms:-

"Dear Sir,"

13 I refer to your letter of the 15th November, 2003 and a subsequent conversation I had with an Inspector Will Muldoon who rang me last month.

14 I would like to confirm the details of the conversation I had with Inspector Muldoon. Apparently I left the stones into Kevin Street on the 19th September, 2001 and they were received by a Garda James Newman who was very new to the office. The receipt number was 227378 and the property number was 96801. Inspector Muldoon was confident that they had not been claimed and that you are continuing in your efforts to find the bags.

15 When I had the bags of stones I roughly valued them at somewhere in the region of €3,000 to €10,000 and as you can imagine I would be anxious that they be found. I would be interested to have news of how your search is progressing.

Yours sincerely,

Alan Harper"

16 It would appear that the Garda inquiries continued but they were unsuccessful in locating the property in question. In consequence of this Inspector Muldoon of the Superintendents Office at Kevin Street Garda Street Station wrote to Mr. Harper on the 7th July, 2004 in the following terms:-

"Dear Alan,"

17 Initially may I apologise for the delay in responding to your correspondence to Garda John Sheridan, Division Stores based at Kevin Street. Since our conversation I have had comprehensive enquiries carried out with the Gardaí who were on duty on the 19th September, 2001 at Kevin Street when you surrendered property which you had found (receipt number 227378 refers).

18 Some of these members are no longer stationed in Kevin Street, hence the delay since your original inquiry. Unfortunately the results of these enquiries have been negative and the items referred to in receipt number 227378 have not been located. If I can be of any further assistance do not hesitate to contact me.

Thady P. Muldoon

Inspector for Superintendent."

19 The next piece of relevant correspondence was a letter of the 13th of July 2004 from Mr. Harper to Inspector Muldoon responding to the Inspector's letter of the 7th July. It is fairly characterised as being a letter of complaint and protest in robust terms. Having so characterised it, and as the letter is of some length, it is not necessary for me to recite it. However, I would comment that this is the first letter in the nature of a formal complaint.

20 Unfortunately, Mr. Harper's letter of the 13th July, 2004 was not responded to and this further irritated an already incensed Mr. Harper, who then wrote directly to the Commissioner of An Garda Síochána on the 14th October, 2004. Again it is not necessary to recite the precise terms of Mr. Harper's letter to the Garda Commissioner. However, it is fair to say that it elicited an immediate response. The Commissioner immediately passed the matter to the Assistant Commissioner for Human Resource Management at Garda Headquarters who was then Assistant Commissioner W. I. Rice. On the 28th October, 2004 Assistant Commissioner Rice wrote to Chief Superintendent William Donoghue of Pearse Street Garda Station who was the Divisional Officer in charge of the Dublin Metropolitan Region South Central Division. Kevin Street Garda Station is within the Dublin Metropolitan Region South Central Division. Assistant Commissioner Rice's letter was in the following terms:-

"Please find attached complaint from Mr. Alan Harper, Moneyteigue, Aughrim, made to the Commissioner on 14th October, 2004.

The...