KELLY v GARDA Síochána COMPLAINTS BOARD

• Jurisdiction: Ireland
• Judge: O'Sullivan J.
• Judgment Date: 15 February 2002
• Neutral Citation: [2002] IEHC 7
• Docket Number: 2001/134JR
• Court: High Court
• Date: 15 February 2002

[2002] IEHC 7

THE HIGH COURT

2001/134JR

KELLY v. GARDA SIOCHANA COMPLAINTS BOARD

BETWEEN

ANTHONY KELLY

APPLICANT

AND

THE GARDA SIOCHANA COMPLAINTS BOARD

RESPONDENT

Citations:

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(3)(a)(vi)

STANLEY v GARDA SIOCHANA COMPLAINTS BOARD 2000 2 ILRM 121

FLOOD v GARDA SIOCHANA COMPLAINTS BOARD & WALSH 1999 4 IR 560

MCCORMACK v GARDA SIOCHANA COMPLAINTS BOARD 1997 2 ILRM 321

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7

O'KEEFFE V AN BORD PLEANAL 1993 1 IR 39

ASSOCIATED PROVINCIAL PICTUREHOUSES LTD V WEDNESBURY CORP 1948 1 KB 223

Synopsis:

GARDA SIOCHANA

Complaints

Procedure -- Meaning of "vexatious" - Whether complaint vexatious - Garda Síochána (Complaints) Act, 1986 (2001/134 JR - O'Sullivan J - 15/2/02)

Kelly v Garda Síochána Complaints Board

Facts: The applicant had made a complaint about members of An Garda Síochána. The applicant was subsequently informed by the respondent that the complaint was inadmissible as it was vexatious but that he could appeal against the decision. His solicitor wrote back seeking clarification of the statutory basis for the appeal and also seeking copies of the statements and other papers which were before the respondent when the decision was made. The materials requested were denied because it was stated that the respondent regarded all documentation gathered in the course of an investigation as confidential. The appeal was not proceeded with but the applicant issued judicial review proceedings challenging the decision of the respondent deeming his complaint inadmissible. The applicant submitted that the decision that the applicant’s complaint was vexatious was clearly based on a conflict of evidence and as such the complaint could not be vexatious. The applicant was entitled to be given a reason for the decision which he was not. The applicant was denied access to the material before the respondents and accordingly the applicant did not have the information which would have enabled him to exercise a meaningful right of appeal. On behalf of the respondent it was contended that that there was no logic in the proposition that just because a complaint was countered by an opposing statement it could not be vexatious. The evidence in the present case was simply that there were such opposing statements and the respondent had formed the opinion that the complaint was vexatious. The applicant was told that his complaint was inadmissible because it was vexatious. This was a sufficient reason for him to decide whether or not to appeal and contest the proposition that his complaint was vexatious.

Held by O’Sullivan J in dismissing the case. If a complaint was vexatious then it remained vexatious whether there was an opposing statement or not. The legislation imposed a duty upon the respondent upon receipt of a complaint to consider whether it was admissible and this included considering whether it was vexatious or not. The applicant was given a reason for the decision and that the reason was sufficient for him to exercise the non statutory appeal procedure available. In the circumstances the applicant’s case would be dismissed.

JUDGMENT of

O'Sullivan J.

1 delivered the 15th day of February, 2002.

INTRODUCTION

2 On the 9th of May, 2000 the applicant made a complaint to the respondent that members of the Garda Siochana had hassled him on the 8th of May. He refused to sign the complaint. However on the 28th of July he sent in further material relating to this complaint and this time signed it.

3 On the 9th of October, 2000 he was sent a letter from the Garda Siochana Complaints Board stating that the Deputy Chief Executive had considered the complaint and a report into the incident which gave rise to it and stating that he was of opinion that the complaint was not admissible because it was, in particular, vexatious. He was also advised that if he wished to appeal he should do so within a month.

4 His solicitor wrote back on the 10th of November, 2000 expressing gratitude that an appeal would be heard notwithstanding that the month had gone by and seeking clarification of the statutory basis for the appeal and also seeking copies of the statements and other papers which were before the Deputy Chief Executive when he arrived at his decision, citing that fair procedures require that the Plaintiff be entitled to these.

5 He received a reply dated the 11th of December, 2000 stating that there was no specific provision in the Garda Siochana (Complaints) Act,1986which deals with appeals of inadmissibility decisions but that it was the Board's policy to provide for and hear such appeals. In his reply the material requested was denied because it was stated that the Board regarded all documentation gathered in the course of an investigation of a complaint as confidential to it.

6 The appeal was not proceeded with but on the 12th of March, 2001 leave was given (time having been extended) to the applicant to apply for Judicial Review of the decision of the respondent deeming his complaint inadmissible on a number of grounds. The Applicant's solicitor swore an affidavit grounding the application in which the foregoing facts are set out and the appropriate documents exhibited. The respondent filed a replying affidavit of Bryan O'Brien, Deputy Chief Executive of the respondent in which, inter alia, he says that

"The decision which I reached wasbona fide sustainable by the facts and not unreasonable. In reaching my decision, I considered the Applicant's statements, and background report from the Garda Authorities which included comprehensive statements from the Gardai who were present on the night in question. In particular a number of witnesses gave accounts of the incident which differed marked(ly) from the account given by the complainant."

THE SUBMISSIONS

7 Mr. Frank Callanan S.C. submits on behalf of the applicant as follows:-

8 (1) The Deputy Chief Executive's opinion that the Applicant's complaint was vexatious and therefore not admissible was clearly based on a conflict of evidence between the Applicant's complaint and the statements of the Garda witnesses. The existence of such a conflict means that the complaint cannot be vexatious because the very purpose of the Act is to deal with complaints where it is predictable that there will in many cases be such a conflict.

9 (2) The Statutory Jurisdiction to dismiss a complaint as vexatious is conferred by Section 4(3)(a)(vi) of the 1986 Act. The...