Keady v Commissioner of an Garda Síochána

JurisdictionIreland
CourtSupreme Court
Judgment Date01 Jan 1992
Docket Number[S.C. No. 2 of 1989],[1987 No. 5541P]

Supreme Court

[S.C. No. 2 of 1989]
Keady v. Commissioner of An Garda Síochána
John Keady
Plaintiff
and
Commissioner of An Garda Síochána and Others
Defendants

Cases mentioned in this report:—

Cowan v. The Attorney GeneralIR [1961] I.R. 411.

Deaton v. The Attorney GeneralIRDLTR [1963] I.R. 170; (1962) 98 I.L.T.R. 99.

East Donegal Co-Operative Livestock Mart Ltd. v. The Attorney GeneralIRDLTR [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Fisher v. Irish Land Commission and the Attorney GeneralIRDLTR [1948] I.R. 3; (1945) 82 I.L.T.R. 50.

Foley v. Irish Land Commission and The Attorney GeneralIRDLTR [1952] I.R. 118; (1951) 86 I.L.T.R. 44.

Garvey v. IrelandIRDLTR [1981] I.R. 75; (1979) 113 I.L.T.R. 61.

Halpin v. The Attorney GeneralIRDLTR [1936] I.R. 226; (1935) 69 I.L.T.R. 259.

In re HaugheyIR [1971] I.R. 217.

C.K. v. An Bord AltranaisIR [1990] 2 I.R. 396.

Kiely v. Minister for Social Welfare (No. 2)IR [1977] I.R. 267.

Lynham v. Butler (No. 2)IRDLTR [1933] I.R. 74; (1931) 67 I.L.T.R. 75; [1932] L.J. Ir. 172.

M. v. The Medical CouncilIR [1984] I.R. 485.

In re M. a DoctorIR [1984] I.R. 479.

McDonald v. Bord na gCon (No. 2)IRDLTR [1965] I.R. 217; (1965) 100 I.L.T.R. 89.

McGrath v. McDermottIRDLRM [1988] I.R. 258; [1988] I.L.R.M. 181.

O'Keeffe v. An Bord PleanálaDLRM [1992] I.L.R.M. 237.

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

The State (Crowley) v. The Irish Land CommissionIRDLTR [1951] I.R. 250; (1950) 85 I.L.T.R. 26.

The State (McKay) v. Cork Circuit JudgeIR [1937] I.R. 650.

The State (Murray) v. McRannIRDLTR [1979] I.R. 133; (1976) 112 I.L.T.R. 33.

The State (O'Callaghan) v. Ó hUadhaigh ó huadhaighIR [1977] I.R. 42.

The State (Shanahan) v. The Attorney General and OthersIR [1964] I.R. 239.

Stroker v. DohertyIR [1991] 1 I.R. 23.

Constitution - Courts - Tribunal of Inquiry - Limited functions - Powers of a judicial nature - Garda discipline - Alleged breach - Whether acts or omissions constituting breach also a criminal offence - Whether such breach contest between parties - Whether justiciable by judicial power only - Penalty - Dismissal - Effects - Whether qualifications affected - Garda Síochána (Discipline) Regulations, 1972 (S.I. No. 316) - Police Forces Amalgamation Act, 1925 (No. 7) - Constitution of Ireland, 1937, Article 37.

Garda Síochána - Tribunal of Inquiry - Disciplinary regulations - Alleged breach - Misconduct also constituting criminal offence - Whether determination of breach within powers of Garda Tribunal of Inquiry - Penalty - Garda Síochána (Discipline) Regulations, 1971 (S.I. No. 316) -Police Forces Amalgamation Act, 1925 (No. 7).

Judicial Review.

The facts are summarised in the headnote and are set out in the judgment of O'Flaherty J., post. The proceedings in the High Court are reported at [1990] 2 I.R. 493.

The plaintiff's appeal to the Supreme Court was heard on the 10th October, 1991.

Article 37, s. 1 of the Constitution of Ireland, 1937, 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 a court appointed or established as such under this Constitution."

The Garda Síochána (Discipline) Regulations, 1971, provide that any act or omission described by a reference number in the Schedule to the Regulations shall be a breach of discipline for which, following such a determination by a tribunal of inquiry established under Regulations, the Commissioner shall "decide what disciplinary action shall be taken". By reference no. 5 falsification of official documents and by no. 16 of the Schedule "criminal conduct, that is to say conduct constituting an offence in respect of which there is a conviction in a court of law" were each to be treated as a breach of discipline.

The plaintiff, a garda, was indicted on various counts of obtaining public funds by false pretences in relation to false and misleading entries in a night duty book, but at his trial the Director of Public Prosecutions entered a nolle prosequi. Shortly thereafter a tribunal of inquiry was set up under the Regulations of 1971 which determined that the conduct the subject matter of the indictment constituted fifteen breaches of discipline and, upon receipt of this determination, the first defendant as Commissioner of the Garda Síochána decided to dismiss the plaintiff from the force. The plaintiff obtained leave in the High Court to seek an order of certiorari, and injunctive and declaratory relief in respect of that decision on the grounds that the tribunal acted ultra vires in determining upon criminal matters; that it acted ultra vires in the absence of criminal convictions; and that the effect of the tribunal's decision constituted more than the mere "exercise of limited functions and powers of a judicial nature" permitted by Article 37 of the Constitution. Costello J. dismissed the plaintiff's claim: see [1990] 2 I.R. 493. The plaintiff appealed on the same grounds.

Held by the Supreme Court (Finlay C.J., Hederman, McCarthy, O'Flaherty and Egan JJ.) in dismissing the appeal, 1, that Articles 37 and 38 of the Constitution did not operate to prohibit the making of allegations which might also found a criminal prosecution before any statutory or other domestic tribunal or inquiry.

The State (Murray) v. McRannIR [1979] I.R. 133 and Deaton v. The Attorney GeneralIR[1963] I.R. 170 applied.

2. That the Garda Tribunal of Inquiry had power to determine a breach of discipline in respect of conduct set out in any one of the reference numbers in the Schedule and thus the elements required at reference no. 16, viz. criminal conviction, were not necessary to found breaches under the other reference numbers.

3. That having regard to long and settled authority the Garda Tribunal of Inquiry, although obliged to act judicially, did not exercise a judicial function, in that its determination was not upon a contest between parties before it, but an inquiry only, and moreover matters of internal police discipline historically had never been reserved to the jurisdiction of the courts in the administration of justice.

McDonald v. Bord na gConIR [1965] I.R. 217 applied.

4. That unlike the powers of certain tribunals established to regulate the professions, with powers of disqualification or striking from the register and powers to make further professional practice in the absence of proper certification or registration a criminal offence, a garda was appointed to or dismissed from his office by the Commissioner in accordance with the Regulations.

In re The Solicitors Act, 1954IR [1960] I.R. 239 and C.K. v. An Bord AltranaisIR[1990] 2 I.R. 396 distinguished; Garvey v. IrelandIR[1981] I.R. 75 considered.

Per McCarthy J.: The settled five part index of what constitutes administration of justice by a judicial function set out by Kenny J. in McDonald v. Bord na gConIR[1965] I.R. 217 does not exclude other qualifying criteria, e.g. a tribunal's authority to compel appearance of a party or the attendance of witnesses before it or to order the execution of its judgments against persons and property.

Lynham v. ButlerIR [1933] I.R. 74 considered.

Cur. adv. vult.

Finlay C.J.

I agree with the judgments to be delivered.

Hederman J.

I agree.

McCarthy J.

In my view, the significant questions raised are those identified in the notice of appeal as:—

"3. That the learned trial judge misdirected himself in law in holding that the exercise of the powers and functions by the tribunal of inquiry and that of the Commissioner of An Garda Síochána were administrative as opposed to judicial acts.

4. That the learned trial judge misdirected himself in law and in fact in not holding that the provisions of the Garda Síochána (Discipline) Regulations, 1971, were invalid having regard to the provisions of the Constitution of Ireland, 1937, in that having regard to the nature of the case, including the decision of the Commissioner of An Garda Síochána to dismiss the plaintiff, the failure of the said Regulations to make provision for access to the judicial organ of government, had the effect of taking the exercise of the said functions and powers outside the scope of limited functions and powers of a judicial nature authorised by Article 37 of the Constitution of Ireland, 1937."

The issue, therefore, is whether or not the procedure under the Regulations of 1971, made pursuant to the Police Forces Amalgamation Act, 1925, is the administration of justice or, apropos Article 37 of the Constitution, is the exercise of functions and powers of a judicial nature, and, if so, whether such functions and powers are limited within the meaning of Article 37.

Administration of justice

The constitutional prescript is that justice shall be administered by judges appointed in the manner provided by the Constitution. The meaning of these terms or the breadth of their application have been examined in a series of decisions of our courts. See:—Lynham v. Butler (No. 2)IR [1933] I.R. 74; Halpin v. The Attorney GeneralIR [1936] I.R. 226;The State (McKay) v. Cork Circuit JudgeIR [1937] I.R. 650; Fisher v. Irish Land Commission and The Attorney GeneralIR [1948] I.R. 3.; The State (Crowley) v. Irish Land Commission and The Attorney GeneralIR [1951] I.R. 250; Foley v. Irish Land Commission and The Attorney GeneralIR[1952] I.R. 118; Cowan v. The Attorney GeneralIR [1961] I.R. 411; Deaton v. The Attorney GeneralIR [1963] I.R. 170; The State (Shanahan) v. The Attorney General and OthersIR [1964] I.R. 239; In re the Solicitors Act, 1954IR[1960] I.R. 239; McDonald v. Bord na gCon (No. 2)IR [1965] I.R. 217;Garvey v. IrelandIR [1981] I.R. 75. Some of these cases were cited in the course of argument.

In Lynham v. Butler (No. 2)IR...

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