Gillen v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: O'Donnell J.,Mr Justice Finnegan
• Judgment Date: 26 January 2012
• Neutral Citation: [2012] IESC 3
• Court: Supreme Court
• Docket Number: [S.C. No.174 of 2007]
• Date: 26 January 2012

[2012] IESC 3

THE SUPREME COURT

Finnegan J.

McKechnie J.

O'Donnell J.

No. 174/2007

Gillen v Commissioner of An Garda Siochana & Ors

BETWEEN:

IAN GILLEN

APPLICANT/APPELLANT

and

THE COMMISSIONER OF AN GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

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

GARDA SÍOCHÁNA (COMPLAINTS) ACT 1986 S15(2)

GARDA SÍOCHÁNA (COMPLAINTS) ACT 1986 S4

GARDA SÍOCHÁNA (DISCIPLINE) REGS SI 94/1989 REG 8

GARDA SÍOCHÁNA (DISCIPLINE) REGS SI 94/1989 REG 9

GARDA SÍOCHÁNA (DISCIPLINE) REGS SI 94/1989 REG 11

GARDA SÍOCHÁNA (DISCIPLINE) REGS SI 94/1989 REG 10

RSC O.84 r12

BUTLER, IN RE 1970 IR 45

RUIGROK v CMSR OF AN GARDA SÍOCHÁNA & ORS UNREP MURPHY 19.12.2005 2005/53/11109 2005 IEHC 439

MCNEILL v GARDA CMSR 1997 1 IR 469

MCCARTHY & DENNEDY v GARDA SÍOCHÁNA COMPLAINTS BOARD 2002 2 ILRM 341 2002/19/4881

KENNEDY v CMSR OF AN GARDA SÍOCHÁNA UNREP MACMENAMIN 14.3.2008 2008/33/7149 2008 IEHC 72

GARDA SÍOCHÁNA (DISCIPLINE) REGS SI 94/1989 REG 8(1)

GARDA SÍOCHÁNA (DISCIPLINE) REGS SI 94/1989 REG 9(1)

GARDA SÍOCHÁNA (DISCIPLINE) REGS SI 94/1989 REG 10(1)

HOWARD v BODDINGTON 1877 2 PD 203

STATE (ELM DEVELOPMENTS LTD) v BORD PLEANALA 1981 ILRM 108

CHARLES v JUDICIAL & LEGAL SERVICE COMMISSION 2003 LRC 422

R v SONEJI & ANOR 2006 1 AC 340

PROJECT BLUE SKY INC v AUSTRALIAN BROADCASTING AUTHORITY 1998 194 CLR 355

O'DONOVAN v AG 1961 IR 114

CONSTITUTION ART 16.2.3

R v SECRETARY OF STATE FOR THE HOME DEPARTMENT EX PARTE MILLER UNREP 4.5.1983

R v CHIEF CONSTABLE OF MERSEYSIDE POLICE EX PARTE CALVELEY 1986 1 QB 424

GARDA SÍOCHÁNA (DISCIPLINE) REGS SI 94/1989 REG 6

GARDA SÍOCHÁNA (DISCIPLINE) REGS SI 94/1989 REG 7

GARDA SÍOCHÁNA (COMPLAINTS) ACT 1986 S4(1)(A)

BARKER v WINGO 1972 420 US 514

KENNEDY v CMSR OF AN GARDA SIOCHANA UNREP MACMENAMIN 14.3.2008 2008/33/7149 2008 IEHC 72

GIBBONS v COMMISSIONER OF AN GARDA SÍOCHÁNA UNREP EDWARDS 30.7.2007 2007/26/5247 2007 IEHC 266

GARDA SÍOCHÁNA (DISCIPLINE) REGS SI 94/1989 REG 14(1)

GARDA SÍOCHÁNA (COMPLAINTS) ACT 1986 S4(1)(3)(A)(IV)

WHELTON v O'LEARY & DPP UNREP SUPREME 21.12.2010 2011/49/13932 2010 IESC 63

GARDA SIOCHANA

Discipline

Delay - Appointment of investigating officer - Whether failure to proceed with expedition resulted in disciplinary proceedings becoming void - Whether interference with right to fair hearing - Whether prejudice caused by delay - Whether requirement of expedition mandatory or directory -Statutory interpretation - Intention of legislature - Purpose of Regulations - Public interest in expeditious investigation of allegations of misconduct - McNeill v Commissioner of An Garda Síochána [1997] 1 IR 469 distinguished; McCarthy v Garda Síochána Complaints Tribunal [2002] 2 ILRM 371; Kennedy v Commissioner of An Garda Síochána [2008] IEHC 72, (Unrep, MacMenamin J, 14/3/2008); Ruigrok v Commissioner of An Garda Síochána [2005] IEHC 439, (Unrep, Murphy J, 19/12/2005); Ryan v Commissioner of An Garda Síochána [2009] IEHC 424, (Unrep, Ó Néill J, 6/10/2009) and The State (Elm Developments) v An Bord Pleanála [1981] ILRM 108 considered - Garda Síochána (Discipline) Regulations 1989 (SI 94/1989), reg 8 - Applicant's appeal dimissed (174/2007 - SC - 26/1/2012) [2012] IESC 3

Gillen v Commissioner of An Garda Síochána

1 Judgment of Mr Justice Finnegan delivered on the 26th day of January 2012

2 The appellant is a member of An Garcia Siochána and at all relevant times was stationed at Kill O Grange, Co. Dublin. By order of the High Court (Macken J.) dated 21 ^st February 2005 the appellant was granted leave to apply by way of judicial review for the following reliefs:-

3 2 "1. An Order by way of injunction restraining the respondents from holding an inquiry or further processing the disciplinary proceedings against the applicant herein in respect of three alleged breaches of discipline on the 15 ^th day of October 1999.

4 2. A declaration that the failure by the respondents to process or progress the disciplinary proceedings against the applicant in respect of alleged breaches of discipline on the 15 ^th day of October 1999 expeditiously breached basic fairness of procedures to which the applicant was entitled and/or constituted a breach of statutory duty and/or breached the applicant's legitimate expectation that serious allegations of misconduct alleged against him pursuant to the Garda Siochána (Discipline) Regulations 1989 would be dealt with expeditiously."

5 The grounds relied upon for the said reliefs are as follows:-

6 2 "1. The delay by the respondents in processing the alleged breaches of discipline on the part of the applicant on the 15 ^th October 1999 was inordinate and inexcusable and breached the applicant's right to natural and constitutional justice and fair procedures, was ultra vires and in breach of statutory duty and breaches his legitimate expectation that serious allegations of misconduct alleged against him pursuant to the Garda Siochána (Discipline) Regulations 1989 would be dealt with expeditiously.

7 2. The respondents acted ultra vires and in breach of statutory duty in purporting to initiate an investigation pursuant to Article 8 of the Garda Siochána (Discipline) Regulations 1989 on the 4 ^th May 2004."

8 In the statement of opposition the respondents raised as a preliminary objection that the application is out of time in that it was not moved promptly or in any event within three months from the date upon which the grounds for the application first arose. Without prejudice to that objection the respondents relied upon grounds of objection which may be summarised as follows:-

9 2 "1. The investigations were conducted as soon as practicable and there was no inordinate delay.

10 2. The family reserved their rights to make a complaint and did not make a written complaint. The Garda Siochána (Complaints) Act 1986 section 15(2) stipulates that the procedure under that Act takes precedence over proceedings pursuant to the Garda Siochána (Discipline) Regulations 1989. The decision from the Complaints Board was not received until the 25 ^th March 2004 and there was no delay thereafter.

11 3. The appellant is not entitled to rely on delay caused by members of the Garda Siochána and/or the Murray family.

12 4. The appellant's complaint that he suffers disadvantage in that he is not being promoted as he would have been were it not for the allegations made against him is without substance, proof or reality and is in any event irrelevant to the proceedings. The appellant has not been prejudiced by the delay.

13 5. The appellant has not demonstrated that he will be subjected to any unfairness.

14 6. The appellant does not have a legitimate expectation that the misconduct will be dealt with expeditiously.

15 7. The respondents did not act ultra vires or in breach of statutory duty."

The factual background

16 On the 4 ^th September 1999 the body of Raonaid Murray ("the deceased") was found at Silchester Crescent, Glenageary. She had suffered stab wounds. A murder investigation commenced immediately. The appellant was appointed as Family Liaison Officer to the Murray family ("the family") his function being to liaise between the investigation team and the family and to support and assist the family during the course of the investigation. He was not involved with the murder investigation as such. On the 15 ^th October 1999 Chief Superintendent Martin Donnellan was one of the senior investigating officers investigating the murder. On the 15 ^th or 16 ^th October 1999 he was contacted by the parents of the deceased ("the parents") and he called to their home on the morning of the 16 ^th October 1999 when a complaint was made to him concerning the appellant's conduct on the previous evening and in the early hours of that morning. Earlier that morning the parents had confronted the appellant and informed him that they did not want him to continue as Family Liaison Officer. In his affidavit sworn on the 8 ^th June 2005 Superintendent Donnellan deals with the complaints made to him as follows:-

"I say that during the course of my meeting with the Murray family on the morning of the 16 ^th October 1999, following the behaviour of Garda Gillen on the previous night, the complaints involved inter alia: the fact that Garda Gillen had not returned home with their daughter from a public house at an agreed time, had driven their daughter home in circumstances where he had taken alcohol and would have been over the legal limit. I further say that before Mr Jim Murray outlined his concerns to me he told me that he reserved his right to make a complaint about the matter in the future, that I acknowledged Mr Murray's right in that regard, I say that Mr Jim Murray indicated that he wished to reserve the right to make a formal complaint at a future date."

17 Later on the 16 ^th October 1999 Chief Superintendent Donnellan spoke to the appellant about the complaint. The appellant was removed as Family Liaison Officer.

18 On the 28 ^th April 2002 the family wrote to Detective Superintendent Hanley as follows:-

"At the time (of the complaint) we reserved the right to make a formal complaint to the authorities (hopefully after the case had been solved) about the behaviour of Garda Gillen. We informed Chief Superintendent Donnellan of our intentions and he acknowledged our right to do this. Now, we want to know whether any report was made about his behaviour to his superiors and if so whether any internal disciplinary action was taken at the time."

19 Inspector Ward was then appointed to deal with the allegations against the appellant. On the 26 ^th November 2002 the parents wrote a detailed letter of complaint to Inspector Ward, this being the first written complaint. Enclosed with the...