Keady v Commissioner of an Garda Síochána

JurisdictionIreland
Judgment Date01 January 1992
Date01 January 1992
Docket Number[S.C. No. 2 of 1989],[1987 No. 5541P]
CourtSupreme Court
Keady v. Commissioner of An Garda Síochána
John Keady
Plaintiff
and
The Commissioner of An Garda Síochána and Others
Defendants
[1987 No. 5541P]

High Court

Constitution - Courts - Administration of Justice - Tribunal of inquiry - Exception - Non-Criminal matter - Limited functions of a judicial nature - Commissioner of An Garda Síochána - Garda internal discipline - Garda Síochána (Discipline) Regulations, 1971 (S.I. No. 316), arts. 16, 17; Schedule - Constitution of Ireland 1937, Article 37.

Garda Síochána - Tribunal of enquiry - Disciplinary regulations - Tribunal of enquiry set up under regulations - Function of enquiry into alleged breaches of discipline - Whether such enquiry ultra vires the powers of the tribunal - Garda Síochána (Discipline) Regulations, 1971 (S.I. No. 316), arts. 16, 17, Schedule - Constitution of Ireland, 1937, Article 37.

Article 34, s. 1 of the Constitution of Ireland, 1937, states that justice shall be administered in courts established by law by judges appointed in the manner provided by the Constitution. Article 37 further provides that nothing in the Constitution shall operate to invalidate "the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person" duly authorised by law in that behalf, notwithstanding that such person is not a judge.

Regulation 6 of the Garda Síochána (Discipline) Regulations, 1971, provides:—

"An act or omission described at a reference number in the Schedule shall be a breach of discipline . . ."

Paragraph 5 of the said Schedule provides as a breach of discipline:—

"Falsehood or prevarication, that is to say —

  • (a) making . . .

    • (ii) any entry in an official document or record which is to the member's knowledge, false or misleading, or

  • (b) destroying or mutilating any official document or record or altering or erasing or adding to any entry therein with a view to deceiving."

Paragraph 16 of the Schedule provides that "criminal conduct, that is to say, conduct constituting an offence in respect of which there is a conviction in a court of law" is to be treated as a "breach of discipline",

Regulations 8 to 16 provide for the procedures to be followed in the investigation of alleged breaches of discipline and in the hearing of the alleged breach, including that the garda charged be provided with a statement of the alleged breaches of discipline, and the statements of evidence to be given against him, that he be given the opportunity to be represented by counsel and to examine witnesses etc.

Regulation 17 provides that where the inquiry established and administered pursuant to regulation 16 has found a breach of discipline to have occurred the Commissioner shall "decide what disciplinary action shall be taken."

A tribunal of inquiry constituted pursuant to regulation 16 found the plaintiff guilty of fifteen of sixteen breaches of discipline alleged against him relating to the falsification of claims in respect of night duty pursuant to the provisions of para. 5 of the Schedule, and so reported to the Commissioner of the Garda Síochána. Pursuant to regulation 17 of the said Regulations the plaintiff was dismissed from the Garda Síocána by a decision of the acting Commissioner.

The plaintiff sought inter alia a declaration that the decision of the acting Commissioner wasultra vires and void on the grounds, firstly, that the subject matter of the alleged breaches of discipline constituted criminal matters and were accordingly ultra vires the powers and functions of the tribunal of inquiry, being contrary to Article 37 of the Constitution. Secondly, he argued that the subject matter of the alleged breaches of discipline was ultra vires the powers of the tribunal in that the alleged breaches of discipline were not criminal conduct in respect of which there existed a conviction by a court as envisaged by paragraph 16 of the Schedule, the plaintiff not having been convicted of, though he had been charged with, a number of criminal offences which formed the subject matter of the disciplinary hearing. He further submitted that the proceedings of the tribunal involved an infringement of Article 37 of the Constitution in that the inquiry not being a court of law was exercising functions and powers of a judicial nature which were not limited.

Held by Costello J., in refusing to grant the relief sought, 1, that the board of inquiry was investigating allegations of breaches of discipline as laid down in the Regulations of 1971 and not breaches of the criminal law. The essential ingredient of a criminal matter was its association with the determination of the question as to whether a crime against the State or against the public had been committed. The fact that an act might constitute both a breach of discipline and an offence against the State and the public did not make the investigation an investigation of a criminal matter.

The State (Murray) v. McRannIR [1979] I.R. 133 applied.

2. That the allegations that the plaintiff was in breach of discipline had been brought under paragraph 5 of the Schedule to the Regulations of 1971 not under paragraph 16, and the prior criminal prosecution of the plaintiff did not prohibit the holding of disciplinary enquiry as to whether the facts which it had been alleged amounted to a breach of the criminal law amounted also to a breach of the disciplinary code.

3. That there was a distinction between functions and powers of a judicial nature and functions and powers which had to be exercised judicially; the former requiring to be exercised in courts of law, unless they were of a limited character; the latter not so requiring. The disciplinary decision in the instant case was an administrative one and the power to make it was an administrative power and the body exercising the power was performing an administrative function, although under an obligation to exercise the disciplinary power judicially. The provision of machinery to enable the functions to be performed judicially did not alter the nature of the function being performed.

Cases mentioned in this report:—

The State (Murray) v. McRannIR [1979] I.R. 133.

In re The Solicitors Act, 1954 [1960] I.R. 239.

Judicial Review.

By a decision of the acting Commissioner of the Garda Síochána of the 27th February, 1987, the plaintiff was dismissed from the force with effect from the 16th March, 1987. By order of the High Court (Hamilton P.) of the 3rd June, 1987, the plaintiff was given leave to apply for an order of certiorari, an injunction and declaration by way of application for judicial review in respect of this order of dismissal. The High Court directed that the application be made by way of originating plenary summons. The plenary summons was issued on the 16th June, 1987, and, the defendant having entered an appearance and defence, the matter was heard by the High Court (Costello J.) on the 10th November, 1988.

Article 34, s. 1 of the Constitution of Ireland, 1937, provides:—

"Justice shall be administered in courts established by law by judges appointed in the manner provided by this Constitution, and, save in such special and limited cases as may be prescribed by law, shall be administered in public."

Article 37 of the Constitution provides:—

"Nothing in this Constitution shall operate to invalidate the exercise of limited functions and powers of a judicial nature, in matters other than criminal matters, by any person or body of persons duly authorised by law to exercise such functions and powers notwithstanding that such person or such body of persons is not a judge or court appointed or established as such under this Constitution."

Cur. adv. vult.

Costello J.

In the month of March, 1983, the plaintiff, then a member of the Garda Síochána, was served with 29 summonses alleging that he had committed a number of criminal offences relating to the completion of claims in respect of night duty as a member of the Garda Síochána on different dates in the years 1978 to 1980. The charges were not dealt with summarily but at his request he was sent forward for trial on them on indictment. In respect of all of them a nolle prosequiwas entered on 21st January, 1986. Thereafter disciplinary proceedings under the Garda Síochána (Discipline) Regulations, 1971, were instituted arising out of the same facts which had led to the criminal charges and he was served with a discipline form dated 1st May, 1986, containing a list of 16 alleged breaches of discipline. An inquiry into the allegations was then constituted whose function was to decide inter alia whether he had been guilty of the breaches alleged (regulation 16). A hearing was held on 3rd November, 1986, (at which the plaintiff was represented by senior counsel) and the inquiry decided that he had been guilty of 15 of the 16 breaches alleged against him and so reported to the Commissioner of the Garda Síochána. It was the Commissioner's function to decide what disciplinary action should be taken (regulation 17). By a decision of the acting Commissioner of 25th February, 1987, the plaintiff was dismissed from the force with effect from 16th March, 1987. It is that decision which is challenged in these proceedings. By order of the 3rd June, 1987, the President of the High Court gave leave to the plaintiff to apply for an order of certiorari, for an injunction and declaration by way of application for judicial review in respect of this order of dismissal and directed that the application be by way of originating plenary summons. The decision of the acting Commissioner was challenged on four grounds, of which the first three relate to the alleged invalidity of the decision of the inquiry on which the decision of the acting Commissioner was based. I will consider these three grounds as they were set out in the order giving leave for the review of that decision.

The first ground on which leave was granted was that:—

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