Keith Harrison v Peter Charleton

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 22 June 2020
• Neutral Citation: [2020] IECA 168
• Docket Number: Record Number: 2019/447
• Court: Court of Appeal (Ireland)
• Date: 22 June 2020

BETWEEN/

KEITH HARRISON

PLAINTIFF/APPELLANT

-AND-

PETER CHARLETON

DEFENDANT/RESPONDENT

[2020] IECA 168

Noonan J.

Faherty J.

Power J.

Record Number: 2019/447

High Court Record Number: 2018/939JR

THE COURT OF APPEAL

Judicial review – Protected disclosure – Objective bias – Appellant seeking judicial review – Whether the appellant had established a case of objective bias

Facts: The High Court, on the 12th November, 2018, granted leave to the appellant, Garda Harrison, to commence judicial review proceedings seeking various orders including orders of certiorari quashing the findings in the second interim report by the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act, 2014 and certain other matters (the Disclosures Tribunal) in its entirety, and the third interim report insofar as it related to the appellant, together with ancillary reliefs. In his statement of grounds, the appellant pleaded that the protected disclosure made by him, which was the subject matter of investigation by the Disclosures Tribunal, identified Chief Superintendent McGinn as a key witness and made various allegations against her which questioned her bona fides and motivation in relation to the steps she directed be taken concerning the appellant. The statement of grounds alleged that the links between the respondent, Mr Charleton, and C.S. McGinn ought to have been disclosed and were such that the respondent was not sufficiently impartial or independent to fairly assess the issues between C.S. McGinn and the appellant. It was alleged that the determination of these issues required a determination of the truth or accuracy of the evidence of C.S. McGinn. The grounds alleged that the facts pleaded gave rise to a presumption of bias and that a reasonable person would apprehend that the respondent was biased and not impartial or independent. The appellant specifically pleaded at para. 41.11 of the statement of grounds that he did not know and could not properly make an allegation of bias until evidence of “previous dealings” came to his attention on the 11th October, 2018. On 23rd August, 2019, the High Court (Donnelly J) rejected the application for judicial review. The appellant appealed to the Court of Appeal from the judgment and order of Donnelly J. The appeal was primarily concerned with the issue of objective bias.

Held by Noonan J that the appellant had not established a case of objective bias in these proceedings and that the trial judge was correct in rejecting his claim.

Noonan J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Noonan delivered on the 22nd day of June, 2020

1 This appeal is brought from the judgment and order of the High Court (Donnelly J.) of the 23 ^rd August, 2019 and is primarily concerned with the issue of objective bias.

Background Facts

2 The applicant is a member of An Garda Síochána having completed his training in 2001. Thereafter he was stationed in Malahide and County Westmeath before being transferred at his own request to Buncrana in Donegal on the 11 ^th March, 2011. The appellant requested the transfer as he wished to pursue a personal relationship with Ms. Marisa Simms who lived in Donegal. The appellant and Ms. Simms had previously had a relationship when both were in college in Galway some years earlier. In the interim, Ms. Simms married and had a family. The appellant also married and was subsequently divorced. Ms. Simms is the sister of Martin McDermott. On the 14 ^th December, 2009, Martin McDermott unlawfully drove a motor vehicle at high speed while escaping lawful apprehension by gardaí and collided with a garda patrol car being driven by Garda Gary McLoughlin. a popular young garda stationed in Buncrana. Garda McLoughlin was killed in the impact and another garda seriously injured.

3 At the time of the appellant's transfer to Buncrana, Martin McDermott was awaiting trial on a charge of motor manslaughter, an offence of which he was subsequently convicted. At that time, the appellant's superiors were unaware of his relationship with the sister of the accused person. When this became known, it became the source of considerable bad feeling between the appellant and his colleagues in Buncrana. As a result, the appellant was transferred to Donegal Town Garda Station on the 2 ^nd June, 2011, against his wishes. At this time, the Donegal Division was under the command of Chief Superintendent Terry McGinn (“C.S. McGinn”).

4 From June, 2012, the appellant and Ms. Simms began living together as domestic partners. On the 28 ^th September, 2013, an argument took place between the appellant and Ms. Simms. On the 6 ^th October, 2013, Ms. Simms attended at Letterkenny Garda Station and made a lengthy statement detailing a number of complaints against the appellant. Arising from this statement, on the 8 ^th October, 2013, C.S. McGinn convened a meeting of senior garda management to consider the matter and determine what steps were to be taken in consequence of the statement by Ms. Simms.

5 The argument between the appellant and Ms. Simms referred to in the statement took place in the presence of Ms. Simms' children and the question of a referral to the HSE was discussed at the meeting. Such a referral was in fact made by one of the senior officers in attendance at the meeting, Superintendent McGovern, subsequently on the 10 ^th October, 2013. The matter was also referred to the Garda Síochána Ombudsman Commission but it was ultimately not pursued by GSOC for reasons not relevant to the issues herein. Ms. Simms later withdrew her statement. Subsequently, a member of the Child and Family Agency (Tusla), attended at Ms. Simms' home on the 19 ^th February, 2014 by agreement and interviewed the children. No issues were identified during this visit and accordingly the Tusla files were closed.

6 On the 17 ^th February, 2017, the Oireachtas established the Tribunal of Inquiry into protected disclosures made under the Protected Disclosures Act, 2014 and certain other matters, (“The Disclosures Tribunal”), and appointed the respondent sole member. The tribunal's terms of reference were primarily concerned with investigating allegations involving two garda “whistle-blowers”, Sergeant Maurice McCabe and Superintendent David Taylor. The appellant, also a garda whistle-blower, was the sole subject of one of the terms and concerned in a second. These terms were as follows: -

“(N) To investigate contact between members of An Garda Síochána and Tusla in relation to Garda Keith Harrison.

(O) To investigate any pattern of the creation, distribution and use by Tusla of files containing allegations of criminal misconduct against members of An Garda Síochána who had made allegations of wrongdoing within An Garda Síochána and of the use knowingly by members of An Garda Síochána of these files to discredit members who had made such allegations.”

7 The second interim report of the Disclosures Tribunal was published on the 30 ^th November, 2017 and was described as “a report relating to Garda Keith Harrison”. This report was highly critical of the appellant and Ms. Simms and rejected all of their allegations. Although the tribunal's second interim report was concerned with the appellant, he featured again in the tribunal's third interim report published on the 11 ^th October, 2018 and again was the subject of significant criticism. On the same date, the appellant says that he became aware for the first time of two newspaper articles published in the Irish Times on the 30 ^th and 31 ^st March, 2006. These articles referred to a report of proceedings before the Tribunal of Inquiry into complaints concerning some Gardaí of the Donegal Division, (“the Morris Tribunal”), in which the respondent appeared as senior counsel on behalf of the tribunal. The reports concerned a statement made by the respondent at the Morris Tribunal concerning C.S. McGinn which the appellant, in these proceedings, claims give rise to the appearance of bias on the part of the respondent in dealing with the appellant at the Disclosures Tribunal.

Chief Superintendent Terry McGinn

8 The Morris Tribunal was established in March 2002. This tribunal was tasked with investigating the conduct of certain members of An Garda Síochána in the Donegal Division. The respondent, at that time a member of the Inner Bar, was one of the legal team representing the tribunal. Superintendent Terry McGinn (as she then was) was appointed to act as liaison officer between An Garda Síochána and the tribunal. She carried out that function for a period of some three and a half years until August 2005 when she was promoted to the rank of Chief Superintendent and appointed to head up the Donegal Division. A new garda liaison officer was then appointed to replace her and take over her functions at the Morris Tribunal.

9 At the sitting of the Morris Tribunal on the 30 ^th March, 2006, in what is subsequently referred to as “the clarification statement”, the respondent addressed the tribunal as follows: -

“Mr. Charleton: I wonder if possible could I say something first. By reason of the way I get to work, which is usually on foot, I don't normally hear the very excellent programme, Morning Ireland. But, however, a tape of it was drawn to my attention this morning, particularly concerning Chief Superintendent Terry McGinn, who was, Sir, the garda liaison officer to the tribunal and fulfilled that post with distinction for some three years prior to being promoted to Chief Superintendent and given the responsibility of running the Donegal Division.

Sir, it may be an error, I do not know, but apparently during the course of a reconstruction of the evidence of Detective Garda John Dooley, as examined by myself, some substantial portions of the transcript were read out. Whereas I appreciate, Sir, that it is necessary of course that these matters be truncated and...