Healy v Garda Commissioner

• Jurisdiction: Ireland
• Judge: Justice Herbert
• Judgment Date: 07 November 2000
• Neutral Citation: 2000 WJSC-HC 3885
• Court: High Court
• Date: 07 November 2000

2000 WJSC-HC 3885

THE HIGH COURT

No. 68JR/1999

HEALY v. COMMISSIONER OF GARDA SIOCHANA

BETWEEN

DECLAN HEALY

PLAINTIFF

AND

THE COMMISSIONER OF GARDA SÍOCHÁNA

DEFENDANT

Citations:

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(4)

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

GARDA SIOCHANA (ADMISSIONS & APPOINTMENTS) REGS 1988 SI 164/1988 REG 16

HYNES V GARVEY 1978 IR 174

MCGARRITY, STATE V DEPUTY COMMISSIONER OF AN GARDA SIOCHANA 112 ILTR 25

BURKE, STATE V GARVEY 1979 ILRM 232

BEIRNE V COMMISSIONER OF AN GARDA SIOCHANA 1993 ILRM 1

O'BRIEN V COMMISSIONER OF AN GARDA SIOCHANA UNREP KELLY 19.8.1996 1998/27/11012

MCAULEY V COMMISSIONER OF AN GARDA SIOCHANA 1996 3 IR 208

DUFFY V COMMISSIONER OF AN GARDA SIOCHANA 1999 2 IR 81

CLEARY V COMMISSIONER OF AN GARDA SIOCHANA UNREP SUPREME 13.7.1998 1998/14/4761

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989

Synopsis:

Judicial Review

Administrative; judicial review; certiorari; disciplinary procedure; whether requirements of natural and constitutional justice were observed; whether decision-making process in accordance with the principles of natural justice; whether applicant given sufficient time to make his defence; whether applicant was given an opportunity to put forward his case; whether applicant informed of the seriousness of the allegations brought against him.

Held: Applicant not afforded proper hearing or fair procedures; respondent must establish new inquiry and reconsider the matter using the principles of natural and constitutional justice; per curiam, strong recommendation to applicants seeking judicial review on grounds of failure to offer sufficient time that they should exhibit and formally verify in the grounding affidavit a Schedule of times and events setting out briefly and in chronological order the sequence of the facts upon which the applicant relies to establish such failure.

Healy v. The Commissioner of Garda Síochána - High Court: Herbert J. - 07/11/2000

The applicant was a probationer garda against whom a number of complaints had been made. A disciplinary inquiry had been instituted on foot of a complaint into allegedly inappropriate behaviour on the part of the applicant. Ultimately as a result of the allegations the applicant was dismissed. The applicant initiated judicial review proceedings seeking to have the decision to dismiss him quashed. Herbert J, delivering judgment, held that the applicant had not been afforded fair procedures. In particular the applicant had not been afforded an adequate opportunity to respond to the allegations being made against him. An order of certiorari would issue quashing the decision of the Commissioner of An Garda Síochána. Accordingly a new inquiry must be established to reconsider the matter.

1 Justice Herbert delivered the 7th day of November, 2000.

THE FACTS

2 On the 10th July 1995, the Applicant, Declan Healy was admitted to the Garda Síochána Training College at Templemore Co. Tipperary as a Trainee Garda. Having completed his Phase 3 training he was, "attested" to Bridewell Garda Station in the Dublin Metropolitan District of An Garda Síochána. This means that he was given the right to wear Garda Uniform and permitted to carry a warrant card and was empowered to carry out such public duties as his superior officers might direct.

3 On the 5th October 1997, Probationer Garda Healy, as acknowledged by his signature on the document, received written notification under Section 4 (4) of the Garda Síochána (Complaints) Act 1988 of a complaint made against him on the 22nd July 1997 by Patrick Kelch of two assaults and a denial of access to a Doctor and to a Solicitor all incidents alleged to have occurred on the 20th July 1997. This notification was given by Chief Superintendent R. V. Kelly of the North Central Division of An Garda Síochána.

4 On the 28th August 1997, Inspector Frank Keavey of the Dublin Metropolitan Area Complaints Section had been appointed to carry out an investigation into the complaints of Patrick Kelch and he furnished a Report on the 20th October 1997. The matter was referred to the Garda Síochána Complaints Board. By a letter dated the 11th May 1998 Probationer Garda Healy was advised by the Deputy Chief Executive of the Board that the Complaint of Patrick Kelch had been referred by the Board to the Director of Public Prosecutions who had decided not to institute proceedings against Probationer Garda Healy. However, the letter continued that as the Board considered that a non-minor breach of discipline on the part of Probationer Garda Healy might be involved, the matter was being referred to a Tribunal for hearing and determination. In the events which occurred this hearing did not in fact take place.

5 On the 3rd June 1998 Probationer Garda Healy, as similarly acknowledged received a similar notification from Chief Superintendent W.I. Rice, of the same Division, of a complaint made by David Keogh of an alleged assault on him by Probationer Garda Healy on 17th February 1998 which he alleged occurred at Bridewell Garda Station in the presence of three Prison Officers to one of whom the complainant, himself handcuffed, was further handcuffed.

6 On the 11th March 1998 Inspector John Keenan of the Dublin Metropolitan Area Complaints Section had been appointed to carry out an investigation into the complaint of David Keogh and he furnished a Report on the 8th July 1998. In his Report Inspector Keenan sets out that he interviewed the Applicant whom he cautioned in the usual manner and invited to provide a cautioned statement. He reports that Probationer Garda Healy did not make a cautioned statement but later furnished a written report which is either paraphrased or summarised by Inspector Keenan in his Report. Inspector Keenan states in his Report that on the same day as he interview Probationer Garda Healy he served on him a copy of what is described as a, "Form G.S.C. 3", and Probationer Garda Healy signed a copy of this form acknowledging this service on him. I believe that I am entitled to infer that this is the notice to which reference is made in the immediately preceding paragraph of this Judgment as the notice is designated, "G.S.C. 3"., and is signed and dated 3rd June 1998 under the recital, "I Declan Healy - Rank Garda Reg No., 26463f., hereby acknowledge receipt of this document".

7 On the 13th July 1998 the matter was referred to the Garda Síochána Complaints Board. On the 9th August 1998 the Applicant was summoned to the office of Inspector Horan, and informed that he was to be charged with assaulting David Keogh contrary to the provisions of Section 3 of the Non Fatal Offences Against the Person Act 1997. A Summons was issued on the 11th August 1998 on the complaint of the Director of Public Prosecutions at the suit of Inspector Flor Horan returnable for the 29th October 1998.

8 By a letter dated the 19th of August 1998 to the Assistant Commissioner "B" Branch Dublin Metropolitan Area (North Central), Chief Superintendent W. I. Rice stated that having considered the investigation files in respect of the complaints of Patrick Kelch and David Keogh and based on the statements made by Prison Officers and medical reports:

9 (1) He was satisfied that the Applicant had assaulted David Keogh as alleged;

10 (2) Regardless of provocation on part of David Keogh, the response of the Applicant was totally at variance with his responsibilities as a member of An Garda Síochána;

11 (3) He was resiling from his report of 7th July 1998 favourable to the Applicant, and,

12 (4) It was now his belief that the Applicant should not be retained in An Garda Síochána.

13 In his original assessment of the Applicant dated the 7th July 1998 in his capacity as the Applicant's Divisional Officer, Chief Superintendent W.I. Rice had reported that:-

" Probationer Garda Declan Healy has made very good progress to date. He is confident, articulate and listens attentively. His overall performance is excellent and he should become a very effective member".

14 By a letter dated the 19th August 1998 an Assistant Commissioner of An Garda Síochána wrote to the Deputy Commissioner in charge of Administration. In this letter he gave a brief résumé of the Applicant's history in An Garda Síochána and of the allegations now made against him and,

15 (1) recorded that the Commissioner of An Garda Síochána was informed about the files in relation to these complaints on the 10th August 1998:

16 (2) cited the above Report of Chief Superintendent W.I. Rice recommending that the Applicant should not be retained in An Garda Síochána, and

17 (3) noted that the Applicant was due for confirmation of his appointment on the 12th of September 1998.

18 He stated that he believed that the Applicant had struck and injured David Keogh. He stated that in the case of Patrick Kelch as the only evidence of the alleged assault was that of the complainant himself it might be considered a, "weak enough" case, but nontheless he considered that the Applicant had a case to answer. The letter then continued:-

" Probationer Garda Healy's alleged actions on both occasions leads me to believe that he may not be likely to become an efficient and well conducted member of the Garda Síochána and accordingly I recommend that the Commissioner give consideration to dispensing with the member's services as provided by the Garda Síochána (Admissions and Appointments) Regulations, 1988. The enclosed notice to the member is forwarded for favour of signature should the Commissioner approve. This notice has been revised to take account of the Judgment in the Duffy case. The member will be given copies of all relevant information in conjunction with the service of the Notice on him. This will enable the member to make a comprehensive response to the allegations against him and is in line with the requirements of the Duffy...