John Wilson v Superintendent Sean Farrell and Others

• Jurisdiction: Ireland
• Judge: Ms. Justice Iseult O'Malley
• Judgment Date: 11 April 2014
• Neutral Citation: [2014] IEHC 201
• Docket Number: Record No. 687JR/2012
• Court: High Court
• Date: 11 April 2014

[2014] IEHC 201

THE HIGH COURT

Record No. 687JR/2012

Wilson v Superintendent Farrell & Ors

Between/

JOHN WILSON

Applicant

AND

SUPERINTENDENT SEAN FARRELL, CHIEF SUPERINTENDENT PATRICK MCGEE, THE COMMISSIONER OF AN GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

Respondents

The Garda Siochana – Disciplinary proceedings – Off duty conduct – Right to privacy and private life - s. 39, s. 123 and Sch. 5 The Garda Siochana Act, 2005 – Reg. 5 and Reg. 12 The Garda Síochána (Discipline) Regulations, 2007

Facts: The issue in this case was whether a failure by a member of the Garda Síochána to comply with an order to account for his activities while off duty should be susceptible to disciplinary proceedings. The background to the issue concerned the attendance of the Garda member at criminal court proceedings in relation to a long-running dispute between neighbours. TheChief Superintendent requested an explanation of the applicant”s attendance at court and a series of correspondence followed with neither party being satisfied as to the response received. As a result, the Chief Superintendent initiated disciplinary procedures to investigate the matter. The applicant did not provide an explanation because he believed he was entitled to privacy when he was off duty. By failing to submit a report it was alleged that the applicant had been in breach of discipline and a notice pursuant to the Garda Síochána (Discipline) Regulations, 2007 was served upon him. Although the applicant had been off duty he was still a serving member of An Garda Siochana when attending court with two persons charged with criminal offences and his superiors were entitled to enquire into the circumstances surrounding his presence there. Two disciplinary sanctions were imposed on the applicant who subsequently sought a review of the decision. This review concluded by affirming the decision taken by the Deciding Officer in the disciplinary proceedings. The High Court then granted the applicant leave to apply for judicial review orders of certiorari in relation to the decisions of the first and second named respondents and a declaration that those decisions were ultra vires the Garda Síochána (Discipline) Regulations, 2007. The court had to decide upon the proper interpretation of the 2007 Regulations and s. 39, s. 123 and Sch. 5 of The Garda Siochana Act, 2005. Schedule 5 lists the behavior that may constitute a breach of discipline even when a member is off duty. It specifically refers to conduct by a member that is reasonably likely to discredit the Garda Siochana. Regulation 5 of the 2007 Regulations states that it is a member”s duty to carry out lawful orders and a failure to do so constitutes a breach of discipline. In addition, regulation 12 says that if a member is suspected of a breach of discipline they must answer fully any question put during the disciplinary proceedings.

Held by O”Malley J,

The duties of a Garda encompass a duty to carry out lawful orders. Therefore, the court had to determine if the direction given by the Chief Superindendant was lawful. As members of the force hold positions in the public life of the community their right to privacy and to a private life is restricted because their actions can impact on the reputation of the force. The attendance by a serving Garda, even if off duty, at a criminal hearing is not something that is private. The administration of justice in criminal cases is, for the most part, a public matter. Given that the case was being heard in the area where the applicant worked, and was being heard by a judge before whom he would probably have had occasion to give evidence, that would be a matter capable of impinging upon his role as a Garda and upon the public perception of the force as a whole. This was particularly so in the context of such a long-running neighbour dispute which had given rise to allegations of bias on the part of other Garda officers. O” Malley J held that it was not unlawful of the respondents to question the applicant in relation to off-duty conduct. The respondents were entitled to consider that the applicant”s failure to deal with the matter appropriately amounted to neglect of duty. The court refused the relief sought by applicant.

Ms. Justice Iseult O'Malley

1 The issue in this case is whether or not a failure by a member of An Garda Siochana to comply with an order to give an account of activity engaged in by him while off duty is susceptible to disciplinary proceedings.

2 The applicant is a now-retired Garda, who at the material time was stationed in Clones, County Monaghan in the Cavan/Monaghan Division of An Garda Siochana. The court has been told that the events dealt with in this judgment do not relate to his departure from the force.

3 The context in which the issue arose related to a long-running dispute between neighbours in an estate in Virginia, County Cavan. On the 12^th January, 2012 four individuals, from both sides in the dispute, were prosecuted at a sitting of Virginia District Court in Cavan Courthouse on charges of harassment contrary to s.10 of the Non-Fatal Offences Against the Person Act, 1997. After hearing one witness, the District Judge dismissed all charges, with voluntary sworn undertakings being given by all of the accused and the spouse of one of them.

4 On the 19^th January, 2012, the prosecuting officer, Inspector Aidan Farrelly, sent a report on the court proceedings to the Superintendent in Bailieboro.

5 According to the report, the neighbour dispute had begun in or around 2005. There had been over 90 complaints to local Gardai since then, with numerous investigations and files sent to the Director of Public Prosecutions. The report concluded with the following paragraph:

"During the hearing of this case at Cavan Courthouse it was noted that Garda John Wilson attached to Clones Garda Station sat next to Walter and Genevieve Smith defendants in the case. Garda Wilson was not in uniform and was not a witness for prosecution in case. There were no other cases listed in this special sitting."

6 On the 31^st January, 2012 the Chief Superintendent of the Division sent a note to the Superintendent in Monaghan, attaching the report of Inspector Farrelly and stating that an explanation was required in respect of the applicant's attendance at the case. The note was headed "Re: Correspondence to Commissioner from Ms. Marie Byrne" with the address of that person and the title of the District Court criminal proceedings. It may be noted that Marie Byrne had been one of the defendants in the District Court prosecution. The note and the attached report were forwarded to the applicant through his sergeant, with the instruction that he was to report to the Superintendent by the 9^th February.

7 The applicant's reply, dated the 6^th February, 2012 was as follows:

"Re: Correspondence from Chief Superintendent Sheridan, Divisional Officer, Cavan Monaghan Garda Division"

8 In relation to above, what is Inspector Aiden Farrelly insinuating about me in his correspondence to the Divisional Officer Cavan Monaghan Garda Division dated 19^th January, 2012?"

9 8. This reply was forwarded to the Superintendent, eliciting the response, on the 9^th February, that

"Garda Wilson is directed to report in respect of the issue as set out in the Divisional Officer's minute."

"In relation to the above, I will report when I establish what Inspector Aiden Farrelly is insinuating about me in his correspondence to the Divisional Officer Cavan Monaghan Garda Division dated 19^th of January 2012. I requested this information in my report dated 06/02/2012."

For report without further delay."

9. The applicant replied on the 12^th February, saying

10 The Superintendent's response, on the 15^th February, was as follows:

"Garda Wilson should comply with directions issued in minute dated 9^th February 2012. It should be noted that the member is duty bound to account for his presence on the occasion."

11 The applicant did not accept this. In an undated note stamped by the sergeant on the 21^st February, he referred to the statement that he was "duty bound" to account for his presence and asked that he be furnished "as a matter of urgency" with the Garda regulations governing this statement.

12 The next communication was from the Chief Superintendent to the Superintendent, on the 22^nd February when he gave the following direction:

"Garda Wilson will report as previously directed in my correspondence dated 31^st ult."

Ensure compliance."

13 There appears to have been a report from the Superintendent to the Chief Superintendent, which is omitted from the exhibits but which was responded to as follows on the 6^th March, 2012:

"Inspector Farrelly has merely reported the facts as observed by him whilst acting as prosecuting Officer before a special sitting of Virginia District court held at Cavan Courthouse on 12^th January 2012."

14 My directions dated 31^st January 2012 in which I sought a report from Garda Wilson have not been complied with; I will afford the member until the 20^th March 2012 to submit the required report.

15 Inform the member accordingly and report further by 23^rd March 2012."

16 14. According to the applicant, he responded on the 20^th March by referring to the heading on the correspondence (set out in paragraph 6 above) in the following terms;

"In relation to the above, how does this correspondence relate to me? Please forward me this correspondence as a matter of urgency. "

17 15. On the 26^th March, 2012 the Chief Superintendent initiated disciplinary procedures by appointing the first named respondent as Deciding Officer to investigate the matter pursuant to the relevant regulations.

18 16. The applicant has deposed that throughout this correspondence he was very concerned at both...