Keegan v Garda Síochana Ombudsman Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 17 August 2012
• Neutral Citation: [2012] IEHC 356
• Court: High Court
• Date: 17 August 2012

[2012] IEHC 356

THE HIGH COURT

[No. 462 J.R./2011]

Keegan v Garda Siochana Ombudsman Cmsn

BETWEEN

ANDREW KEEGAN

APPLICANT

AND

GARDA SÍOCHÁNA OMBUDSMAN COMMISSION

DEFENDANT

GARDA SIOCHANA ACT 2005 S87

GARDA SIOCHANA ACT 2005 S88

GARDA SIOCHANA ACT 2005 S64

GARDA SIOCHANA ACT 2005 PART IV

GARDA SIOCHANA ACT 2005 S102

GARDA SIOCHANA ACT 2005 S84

GARDA SIOCHANA ACT 2005 S102(4)

GARDA SIOCHANA ACT 2005 S94

GARDA SIOCHANA ACT 2005 S94(12)

GARDA SIOCHANA ACT 2005 S94(5)

GARDA SIOCHANA ACT 2005 S95

GARDA SIOCHANA ACT 2005 S83

GARDA SIOCHANA ACT 2005 S84(1)

GARDA SIOCHANA ACT 2005 S84(2)

GARDA SIOCHANA ACT 2005 S87(1)

GARDA SIOCHANA ACT 2005 S88(1)

GARDA SIOCHANA ACT 2005 S111

GARDA SIOCHANA ACT 2005 S128

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 13

GARDA SIOCHANA ACT 2005 S111(3)

GARDA SIOCHANA ACT 2005 S111(2)

INTERPRETATION ACT 2005 S25

INTERPRETATION ACT 2005 S27(1)(C)

GARDA SIOCHANA ACT 2005 S94(1)(B)

GARDA SIOCHANA ACT 2005 S97(1)

GARDA SIOCHANA ACT 2005 S97(2)

GARDA SIOCHANA ACT 2005 S97

P (A) v JUDGE MCDONAGH UNREP CLARKE 10.7.2009 2009/46/11494 2009 IEHC 316

GARDA SIOCHANA ACT 2005 S67

GARDA SIOCHANA ACT 2005 S67(1)(B)

GARDA SIOCHANA ACT 2005 S67(2)(A)

GARDA SIOCHANA ACT 2005 S67(2)(B)

GARDA SIOCHANA ACT 2005 S67(2)(E)

DUBLIN WELLWOMAN CENTRE LTD & ORS v IRELAND & ORS 1995 1 ILRM 408 1994/9/2704

RSC O.84

EUROPEAN CONVENTION ON HUMAN RIGHTS & FUNDAMENTAL FREEDOMS ART 2

GARDA SIOCHANA ACT 2005 S88(1)(C)

GARDA SIOCHANA ACT 2005 S88(1)(A)

GARDA SIOCHANA ACT 2005 S88(1)(B)

GARDA SIOCHANA ACT 2005 S102

JORDAN v UNITED KINGDOM 2003 37 EHRR 2 11 BHRC 1

KIMBRAY v DRAPER 1867-68 3 LR QB 160

HEFFERON KEARNS LTD, IN RE (NO 1) 1993 3 IR 177 1992 ILRM 51 1991/8/1875

MAXWELL & LANGAN ON THE INTERPRETATION OF STATUTES 12ED 1969 222

GARDA SÍOCHÁNA

Complaints

Application for order prohibiting investigation into investigation of road traffic accident - Pedestrian killed by patrol car driven by garda - Complaint inadmissible as made out of time - Found desirable in public interest to investigate adequacy of garda investigation - Breach of discipline - Jurisdiction - Retrospectivity of legislation - New investigative body established - Bias by prejudgment - Objectives of ombudsman - Efficiency - Extension of time for complaint - Whether Ombudsman precluded from taking further action once complaint declared inadmissible - Whether new material warranting public interest investigation - Whether Garda Síochána Act 2005 retrospective - Whether investigator prejudged complaint - AP v Judge McDonagh [2009] IEHC 316, (Unrep, Clarke J, 10/7/2009); Dublin Wellwoman Centre Ltd v Ireland [1995] 1 ILRM 408; Jordan v United Kingdom [2001] 37 EHRR 52; Kimbray v Draper [1868] LR 3 QB 160 and In Re Hefferon Kearns Ltd (No 1) [1993] 3 IR 177 considered - Rules of the Superior Courts 1986 (SI 15/1986), O 84 - Garda Síochána (Discipline) Regulations 1989 (SI 94/1989) - Garda Síochána (Discipline) Regulations 2007 (SI 214/2007) - Garda Síochána Act 2005 (No 20), ss 64, 67, 87, 88, 94, 95, 97, 102, 111 and 128 - Garda Síochána (Complaints) Act 1986 (No 29) - Interpretation Act 2005 (No 23), ss 25 and 27(1)(c) - European Convention on Human Rights 1950 - Application granted (2011/462JR - Hedigan J - 17/8/2012) [2012] IEHC 356

Keegan v Garda Síochána Ombudsman Commission

Facts: The applicant had at all material times been a member of An Garda Siochána. He was involved in the investigation of a fatal road traffic accident in which a pedestrian as killed when struck by a Garda patrol vehicle. Following the conclusion of the investigation, a report was given to the Director of Public Prosecutions who decided that no prosecution would be pursued. The son of the deceased, Mr Seaver, made a complaint about the nature of the investigation into his mother's death. The complaint was however outside the 6 month limit prescribed by s. 84 of the Garda Siochána Act 2005 ("the 2005 Act"), and therefore inadmissible. Despite this, the respondent decided to investigate the sufficiency of the original investigation, as it was in the public interest to do so.

The applicant applied and obtained leave to apply for judicial review on three grounds. Firstly, he stated that the new investigation was ordered pursuant to s. 102(4) of the 2005 which requires there be new evidence that has come to light. It was the applicant's contention that the only new "evidence" was Mr Seaver's complaint alone which was an inadmissible complaint. Further, s. 88(1) outlines that where a complaint is ruled inadmissible, a gardai is protected from further action. Secondly, the applicant claimed that the investigation could not be carried out under the 2005 Act as the original investigation had concluded in August 2005 yet the 2005 Act did not come into force until May 2007. It is argued that there is no retrospectivity provision in the legislation and so an investigation under the 2005 Act is not possible. Thirdly, the applicant claims that the Senior Investigations Officer had prejudged the investigation. His basis for this is a conversation between the Officer and the applicant's solicitor where it was revealed by the former that the applicant job was at a serious risk but if the applicant were to take a certain course of action; he may be able to make a certain decision in turn.

Held by Hedigan J that in terms of the applicant's first point, where a complaint was deemed inadmissible in the absence of further evidence, no further action should be taken as to do otherwise would constitute unfairness. Effectively, the respondent was trying to investigate on the exact same facts. In terms of the retrospective issue, there was nothing in the 2005 legislation that would allow immunity of conduct from investigation where said conduct was committed prior to the enactment of the legislation. The 2005 Act replaced the Garda Complaints Board and envisioned the Ombudsman acquiring any existing complaints

Finally, on the issue of bias, it was held that because the applicant's solicitor had not made a detailed report immediately after his meeting with the Senior Investigations Officer, outlining the comments that could amount to bias, the honesty of the complaint could be called into question. Generally, a complaint of bias should be made almost immediately or be struck out.

Order of prohibition granted on any further investigation by the respondent into the applicant's investigation of the road traffic accident that occurred on the 22 May 2005.

1. Application

2 2 1.1 This matter comes before the Court by way of an application for judicial review. The applicant is seeking an order prohibiting the respondent from carrying out any further investigation into his investigation of a road traffic accident which occurred on 22 ^nd May, 2005 at Clonskeagh, Dublin. The applicant further seeks a declaration that the respondent has no lawful entitlement to investigate the applicant in respect of his investigation and seeks in the alternative injunctive relief restraining the respondent from any such further investigation. This Court granted leave to apply for judicial review on two grounds by order dated 8 ^th June 2011, and it was also ordered that the respondent be restrained from carrying out any further investigation of the applicant until the 29 ^th June, 2011, and that order has continued from time to time since then. By order of the Supreme Court made on the 23 ^rd March, 2012, the applicant was permitted to amend his grounds by the addition of one further ground. These are that the respondent, having determined pursuant to section 87 of the Garda Siochana Act 2005 that the complaint of David Seavers was inadmissible, has no jurisdiction by virtue of section 88 of the said act to take any further action against the applicant

2. Parties

2 2 2.1 The applicant is a Garda Sergeant who was involved in the investigation and compilation of a report for the Director of Public Prosecutions in respect of a fatal road traffic accident which occurred on 22 ^nd May, 2005 in which a pedestrian, the late Mrs. Mary Seavers, was killed when struck by a vehicle driven by a member of An Garda Síochána.

3 3 2.2 The respondent (hereinafter GSOC) is a body corporate established by s. 64 of the Garda Síochána Act 2005 (hereafter referred to as 'the 2005 Act'). The functions of the respondent are inter alia to receive complaints from members of the public concerning the conduct of members of An Garda Síochána, to carry out the duties and exercise the powers assigned to it under Part 4 of the 2005 Act and 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. The respondent also has the power under s. 102 of the 2005 Act to investigate any matter that appears to it to indicate that a garda may have committed an offence or behaved in a manner that would justify disciplinary proceedings, where it appears to the respondent desirable in the public interest to do so.

3. Factual Background

2 2 3.1 The road traffic collision which was the subject-matter of the applicant's investigation occurred on the 22 ^nd May, 2005, when a patrol car driven by Garda Niamh Seberry went out of control on a bend in Clonskeagh, Dublin. The patrol car crossed onto the incorrect side of the roadway, mounted the pavement, knocked down a bus shelter and drove into and killed the late Mrs. Seavers, who was standing at the bus stop at the time.

3 3 3.2 The applicant conducted the initial Garda Investigation of the road traffic accident, under the supervision of Superintendent William McCahey of Blackrock Garda Station, Dublin. An investigation file was prepared by the...