Keegan v Garda Síochána Ombudsman Commission

• Jurisdiction: Ireland
• Judge: O'Donnell J.
• Judgment Date: 30 July 2015
• Neutral Citation: [2015] IESC 68
• Docket Number: Appeal No. 14/13
• Court: Supreme Court
• Date: 30 July 2015

Between:

Andrew Keegan

Applicant/Respondent

and

Garda Síochána Ombudsman Commission

Respondent/Appellant

[2015] IESC 68

O'Donnell J.

McKechnie J.

Clarke J.

MacMenamin J.

Laffoy J.

Appeal No. 14/13

THE SUPREME COURT

Gardaí investigations – Road traffic accident – Prohibition of prosecution – Appellant seeking to appeal against an order of prohibition – Whether the interpretation of the High Court could be supported as a matter of law

Facts: The respondent/appellant, the Garda Síochána Ombudsman Commission (GSOC), in July 2008, decided in exercise of its powers under s. 102(4) of the Garda Síochána Act 2005, that it would be desirable in the public interest to investigate the adequacy of a garda investigation into a road traffic accident which occurred in May 2005, in which a pedestrian had been struck and killed by a garda vehicle. The applicant/respondent, Sergeant Keegan, had conducted the investigation. In October 2008 he had been notified that a Chief Superintendent had been appointed to conduct an investigation. In June 2011 the applicant sought and obtained leave from the High Court to seek judicial review for an order prohibiting the further prosecution of the investigation. Leave was granted on two grounds, retrospectivity and bias, but refused on a third ground related to the interpretation of s. 88(1)(c) of the 2005 Act. By a May 2012 decision, the Supreme Court reversed the decision to refuse leave on the third ground. In August 2012, the High Court rejected the first two grounds, but granted an order of prohibition on a variation of the third ground which had been added by order of the Supreme Court. GSOC then appealed to the Supreme Court from that judgment and order.

Held by O”Donnell J that the Court approved of the trial judge”s rejection of the applicant”s argument that s. 88(1)(c) prevents any further investigation pursuant to the powers set out in s. 102. O”Donnell J held that the argument had sufficient superficial appeal to permit leave to be granted to argue the point but that the argument could only be made by focusing on s. 88(1)(c) almost to the exclusion of the rest of the Act. O”Donnell J noted that when s. 87 is read in the context of the Act as a whole, it became clear that there were a number of compelling reasons to reject the applicant”s interpretation of s. 88(1)(c). It was held to be clear that s. 102 imposes certain statutory duties on GSOC and that if a garda commissioner refers a matter under s. 102(1) or if a matter appears to the Ombudsman Commission to indicate that conduct of and by a member of the Gardaí has resulted in death or serious harm, then in either case GSOC shall ensure that the matter is investigated. Similarly if the Minister makes a reference under s. 102(5), O”Donnell J held that the Commissioner shall investigate the matter. O”Donnell J concluded that if the applicant”s argument that s. 88(1)(c) imposes a mandatory obligation on the Ombudsman Commission not to proceed further in relation to the subject matter of a complaint ruled inadmissible is correct, there could be potential irreconcilable conflict with these provisions; if the applicant”s argument was accepted, then it would create the possibility of incompatible statutory duties arising. O”Donnell J held that the reasoning and decision of the trial judge could not be supported as the ground upon which he decided the case was simply not pleaded. O”Donnell J did not consider that the interpretation in the High Court judgment could be supported as a matter of law. O”Donnell J did not think that it was intended that the validity of GSOC”s actions could be reviewed by the Court against such ephemeral standards as effectiveness and efficiency, and moreover further action restrained on those grounds.

O”Donnell J held that there were a number of fundamental objections in law, evidence and procedure to the course adopted in the High Court. Accordingly the respondent”s appeal was allowed and the order of the High Court set aside.

Appeal allowed.

Judgment of O'Donnell J. delivered on the 30th of July, 2015

1 On the 30th of July 2008, the respondent/appellant, the Garda Síochána Ombudsman Commission (‘GSOC or ‘the Ombudsman Commission’ ), decided in exercise of its powers under s.102(4) of the Garda Síochána Act 2005 (‘the 2005 Act’), that it would be desirable in the public interest to investigate the adequacy of a garda investigation into a road traffic accident which occurred on the 22nd of May 2005, in which a pedestrian, the late Mary Seavers, had been struck and killed by a garda vehicle. The applicant, Sergeant Andrew Keegan, had conducted the investigation. On the 20th of October 2008 he had been notified that a Chief Superintendent had been appointed to conduct an investigation. On the 8th of June 2011 the applicant sought and obtained leave from the High Court (Hedigan J.) to seek judicial review for an order prohibiting the further prosecution of the investigation. Leave was granted on two grounds, retrospectivity and bias, but refused on a third ground related to the interpretation of s.88(1)(c) of the 2005 Act. By a decision of the 1st of May 2012 ( Keegan v. An Garda Síochána Ombudsman Commission [2012] IESC 29), the Supreme Court reversed the decision to refuse leave on the third ground. In a judgment of the 17th of August 2012 ( Keegan v. An Garda Síochána Ombudsman Commission [2012 IEHC 356), the High Court (Hedigan J.) rejected the first two grounds, but granted an order of prohibition on what might be described as a variation of the third ground which had been added by order of the Supreme Court. GSOC now appeals to this Court from that judgment and order. It will be necessary to address the underlying facts in greater detail later in this judgment. First, however, it is necessary to set out the somewhat complex legislative background by reference to which the legal issue arises.

Legislative Background

2 The Act of 2005 represented a comprehensive statutory reorganisation of the Garda Síochána. Included in that reorganisation was a significantly altered complaint process. Part 3 of the Act provided for the establishment of a new body, GSOC. Section 67 set out objectives, functions and powers of the new body:

‘67.—(1) The objectives of the Ombudsman Commission are —

(a) to ensure that its functions are performed in an efficient and effective manner and with full fairness to all persons involved in complaints and investigations under Part 4 concerning the conduct of members of the Garda Síochána, and

(b) to promote public confidence in the process for resolving those complaints.

(2) The functions of the Ombudsman Commission are —

(a) to receive complaints made by members of the public concerning the conduct of members of the Garda Síochána,

(b) to carry out the duties and exercise the powers assigned to it under Part 4 in relation to those complaints,

(c) to issue guidelines for the informal resolution under section 90 of certain categories of complaints and to make procedural rules for investigations under section 95,

(d) to report the results of its investigations under Part 4 to the Garda Commissioner and, in appropriate cases, to the Director of Public Prosecutions and, if it reports to the Director, to send him or her a copy of each investigation file,

(e) to conduct, in accordance with section 102, other investigations of matters concerning the conduct of members of the Garda Síochána,

(f) to examine practices, policies and procedures of the Garda Síochána in accordance with section 106,

(g) to draw up with the Garda Commissioner protocols in accordance with section 108, and

(h) to carry out any other duties and exercise any other powers assigned to it under this Act.

(3) The Ombudsman Commission has all powers that are necessary for, or incidental to, the performance of its functions under this Act.

(4) Subject to this Act, the Ombudsman Commission shall be independent in the performance of its functions.

(5) The chairperson of the Ombudsman Commission shall manage and control generally the officers, administration and business of the Commission.’

It may be noted that the section is careful to distinguish between the objectives, functions and powers of GSOC. This case involves a consideration of the objective set out at s.67(1)(a) to ensure that GSOC's functions are performed in an efficient and effective manner with full fairness to all persons, the functions of GSOC under s.67(2)(a) and (b) to receive complaints made by members of the public, and to carry out duties and exercise powers assigned to it in respect of those complaints, and the function under s.67(2)(e) to conduct in accordance with s.102 other investigations into the conduct of members of the Garda Síochána.

3 Part 4 of the Act is headed ‘Complaints, Investigations and other Procedures’. It has been amended in a number of respects recently but for the purposes of this case it is necessary to consider only the terms of the 2005 Act in its original form. Section 82 contains definitions of terms used in that part to which it will be necessary to refer as appropriate. Section 83 provides for complaints by members of the public. It states:

‘(1) Subject to section 84, a complaint concerning any conduct of a member of the Garda Síochána that is alleged to constitute misbehaviour may be made to the Ombudsman Commission —

(a) by a member of the public who is directly affected by, or who witnesses, the conduct, or

(b) on behalf of that member of the public, by any other person if the member of the public on whose behalf the complaint is being made consents in writing or orally to its being made or is, because of age or a mental or physical condition, incapable of giving consent.’

It might first be noted that complaints are limited to conduct alleged to constitute ‘misbehaviour’. Misbehaviour in turn is...