Ivers v The Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 18 August 2022 |
| Neutral Citation | [2022] IECA 206 |
| Docket Number | Record Number: 2021/235 |
| Court | Court of Appeal (Ireland) |
| Year | 2022 |
[2022] IECA 206
Barniville P.
Noonan J.
Binchy J.
Record Number: 2021/235
High Court Record Number: 2020/363JR
THE COURT OF APPEAL
Breach of discipline – Prematurity – Garda Síochána Act 2005 s. 14(2) – Appellant seeking to quash a determination of the respondent that the appellant should be dismissed for an alleged breach of discipline – Whether the respondent acted ultra vires in invoking s. 14(2) of the Garda Síochána Act 2005
Facts: The appellant, Garda Ivers, sought to quash what was described as a “determination” of the respondent, the Commissioner of An Garda Síochána, that Garda Ivers should be dismissed from the force for an alleged breach of discipline. The Commissioner’s “determination” did not follow a disciplinary inquiry but rather was arrived at on a preliminary or provisional basis by the Commissioner without any formal inquiry or indeed consultation with Garda Ivers. In that respect, the Commissioner relied upon the powers conferred on him by s. 14 of the Garda Síochána Act 2005, notwithstanding that the conduct the subject matter of his consideration was in dispute. The High Court considered that the exercise by the Commissioner of the power in this case was not ultra vires for reasons set out in the detailed judgment of the court delivered on the 16th July, 2021. The court accordingly dismissed Garda Ivers’ application and it was against that dismissal that Garda Ivers appealed to the Court of Appeal.
Held by Noonan J that where the conduct in question is genuinely in dispute, s. 14(2) has simply no application. For that reason, Noonan J held that arguments about prematurity based on the Rowland jurisprudence (Rowland v An Post [2017] IESC) fell away and were immaterial to the issues in the appeal. In Noonan J’s view, the Commissioner had no power to invoke s. 14(2) in the circumstances of the case and acted ultra vires in doing so. Noonan J held that the issue of prematurity did not therefore arise for consideration.
Noonan J held that he would allow the appeal, set aside the order of the High Court and quash the terms of the Commissioner’s letter of the 8th May, 2020 insofar as it purported to invoke s. 14(2) of the Act. As Garda Ivers had been entirely successful in the appeal, Noonan J’s provisional view was that he was entitled to his costs in the Court of Appeal and in the High Court.
Appeal allowed.
JUDGMENT of Mr. Justice Noonan delivered on the 18th day of August, 2022
In these proceedings, the appellant (Garda Ivers) seeks to quash what is described as a “determination” of the respondent (the Commissioner) that Garda Ivers should be dismissed from the force for an alleged breach of discipline. What is perhaps unusual about this case is that the Commissioner's “determination” did not follow a disciplinary inquiry but rather was arrived at on a preliminary or provisional basis by the Commissioner without any formal inquiry or indeed consultation with Garda Ivers. In this respect, the Commissioner relies upon the powers conferred on him by s. 14 of the Garda Síochána Act, 2005, (“the Act”), notwithstanding that the conduct the subject matter of his consideration is in dispute. The High Court considered that the exercise by the Commissioner of the power in this case was not ultra vires for reasons set out in the detailed judgment of the court delivered on the 16th July, 2021. The court accordingly dismissed Garda Ivers' application and it is against that dismissal that Garda Ivers appealed to this court.
The appellant has been a member of An Garda Síochána for some 21 years and is said to have an unblemished service record. On the 21st January, 2020, Garda Ivers was the sole garda on duty in Cootehill Garda Station. At about 3:15pm, he received a call from Garda Aisling Walsh who had apprehended a person suspected of drug driving and seized the person's car. Garda Walsh drove the seized car to Cootehill Garda Station by arrangement with Garda Ivers and handed over the keys to him, advising him that the car would not lock. Shortly thereafter, Garda Ivers had to leave the station and checked the car for any property that might be at risk of being stolen while the car and the garda station were unattended. Garda Ivers noticed a Bluetooth speaker and charging cables in the car which he removed and brought into the station. Shortly before, Garda Ivers had collected his daughter from school and brought her to the station before dropping her home. He says that when his daughter saw the speaker, she asked him to play music on it by connecting his mobile phone to it.
Garda Ivers left the station with his daughter and the speaker and played the music she had requested on the drive home in his private car. Thereafter he left the Bluetooth speaker in his car. When he returned to the station, the seized vehicle had been towed away by a contracted towing service. In essence, Garda Ivers says he forgot about the speaker in his car thereafter until two days later, on the 23rd January, 2020, when he cleaned his car and noticed the speaker. He says that he decided to call Garda Walsh to see about returning the speaker to its owner, but before he did so he received a call on that day at 14:42 from Inspector Valerie Gahan, who told him that she wished to speak to him at Cootehill Garda Station but did not say why. Garda Ivers rang Garda Walsh seeking contact details of the owner of the car so that he could return the speaker.
He then attended at Cootehill Garda Station where he was informed by Inspector Gahan that he was under investigation for the theft of the speaker and was cautioned by her. He denied the charge, offered an explanation and handed over his mobile phone as requested by Inspector Gahan. She had told Garda Ivers that she required the phone to see if it had been connected to the speaker but he volunteered that it had.
On the 6th February, 2020, Garda Ivers was suspended from duty on foot of a formal notice served on him pursuant to Regulation 7 of the Garda Síochána (Discipline) Regulations 2007 (“the Regulations”). The notice specified that the suspension arose as a result of an allegation that Garda Ivers took property from an identified motor vehicle which was not his property and he did not have permission to take and further that he failed to store and retain the property in accordance with garda protocol.
On the 25th February, 2020, Garda Ivers was served with a notice of investigation pursuant to Regulation 24 of the Regulations, dealing with serious breaches of discipline, and the notice identified the investigating officer as Inspector Anne Marie Lardner. The notice specified the subject of the investigation as being “alleged misappropriation of property belonging to a member of the public at Cootehill Garda Station on the 21st January 2020.”
It is relevant to note that the investigation under the Regulations was initiated by the Commissioner who is empowered by Regulation 23 to appoint a member of the force to investigate the alleged breach of discipline. Thereafter, an elaborate procedure is provided for in relation to the progress of such an investigation to which I shall return. However, it appears that Inspector Lardner did not in fact proceed to investigate the impugned conduct of Garda Ivers because of the intervention of the Garda Síochána Ombudsman Commission (GSOC). During the course of this appeal, the court was told that GSOC had “taken over” the investigation. In that respect, it would appear that Inspector Lardner swore an affidavit on the 14th May, 2021 which was before the High Court and is referred to at paras. 23–29 of the judgment of the trial judge. While that affidavit was, for some reason, not put before this court, perhaps due to oversight, its content is set out in some detail in the High Court judgment.
In the affidavit, Inspector Lardner averred that when she handed the form to Garda Ivers on the 25th February, 2020, she informed him that the criminal investigation had been taken over by GSOC and she says that Garda Ivers agreed to the discipline investigation being placed in abeyance until the criminal investigation was carried out. The reason for this is explained at para. 25 of the judgment:
“25. During the hearing, counsel for the applicant submitted that, in circumstances where a member of An Garda Síochána is obliged to answer questions in the context of a disciplinary investigation and cannot rely on a right to silence, the practice has developed that, where a criminal investigation is ongoing, any disciplinary investigation is put in abeyance, pending the conclusion of the criminal investigation, with any findings of guilt in criminal proceedings being binding insofar as disciplinary proceedings are concerned.”
Strictly speaking therefore, it is not correct to suggest that GSOC “took over” the investigation but rather utilised its own powers to launch a criminal investigation into the complaint against Garda Ivers. Incidentally, it was not explained how GSOC became involved in this matter, but it may possibly have been as a result of a complaint made by the owner of the Bluetooth speaker.
In the course of the GSOC investigation, Garda Ivers made a detailed statement setting out the facts from his perspective and placing emphasis in particular on the fact that it was his intention at all times to return the Bluetooth speaker and his delay in doing so was through inadvertence.
The next relevant event occurred on the 8th May, 2020 when the Commissioner wrote to Garda Ivers pursuant to s. 14(2) of the 2005 Act informing him that the Commissioner intended to dismiss him. It must be borne in mind that this letter was written by the Commissioner notwithstanding that the Commissioner had previously initiated an...
To continue reading
Request your trial
-
Hegarty v The Commissioner of an Garda Síochána
...on 30 August 2022, some five months or so, after the High Court judgment in the present case, this Court delivered its judgment in Ivers [2022] IECA 206. Writing for the Court, Noonan J. allowed Garda Ivers' appeal. He did not agree with Heslin J. that s.14(2)(b) could be considered in such......