Kennedy v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 14 March 2008
• Neutral Citation: [2008] IEHC 72
• Court: High Court
• Docket Number: RECORD NO. 2005 No. 1131 J.R.
• Date: 14 March 2008

Kennedy v Commissioner of An Garda Síochána

JUDICIAL REVIEW

BETEWEEN/

DARAGH KENNEDY

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁ NA

RESPONDENT

[2008] IEHC 72

RECORD NO. 2005 No. 1131 J.R.

THE HIGH COURT

GARDA SÍOCHÁNA

Discipline

Judicial review - Postponement of disciplinary proceedings pending criminal prosecution - Nolle prosequi - Sworn inquiry - Prohibition - Delay - Fair procedures - Breach of statutory duty - Failure to investigate as soon as practicable - Directory nature of regulations - Admissions - Failure to assert innocence - Whether prejudice to applicant - Discretionary remedy - Failure to bring application promptly - Failure to explain delay - McNeill v Commissioner of An Garda Síochána [1997] 1 IR 469 and Gibbons v Commissioner of An Garda Síochána [2007] IEHC 266 (Unrep, Edwards J, 20/7/2007) distinguished - Re Butler [1970] IR 45; Ruigrok v Commissioner of An Garda Síochána [2005] IEHC 439 (Unrep, Murphy J, 19/12/2005); McGrath v Commissioner of An Garda Síochána [1991] 1 IR 69; McCarthy v Garda Síochána [2002] 2 ILRM 341; McCauley v Keating [1998] 4 IR 138; De Róiste v Minister for Defence [2001] 1 IR 190 and Scully v DPP [2001] 1 IR 242 considered - Garda Síochána (Discipline) Regulations 1989, regs 6 to 10 - Judicial review refused (2005/1131JR - MacMenamin J - 14/3/2008)

Kennedy v Commissioner of An Garda Síochána

: The applicant sought to restrain the respondent from holding an inquiry or from processing further disciplinary proceedings. The applicant was alleged to have accessed child pornography at Garda Headquarters. A criminal investigation and prosecution followed. The applicant alleged inter alia that the disciplinary procedures were unfair and that the proceedings were not dealt with expeditiously.

Held by MacMenamin J. that the lapse of time alleged to be unfair was not in breach of the regulations. No prejudice could be said to exist. The application for judicial review was not made promptly. The applicant had not denied the admissions made in response to allegations.

Reporter: E.F.

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 15(2)

CHILD TRAFFICKING & PORNOGRAPHY ACT 1998 S6(1)

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 8

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 9

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 11

MCNEILL v COMMISSIONER OF AN GARDA SIOCHANA 1997 1 IR 469

GIBBONS v COMMISSIONER OF AN GARDA SIOCHANA UNREP EDWARDS 30.7.2007 2007 IEHC 266

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 6

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 7

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 10

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 36

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 38

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 39

BUTLER, RE 1970 IR 45

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 40

MCGRATH v COMMISSIONER OF AN GARDA SIOCHANA 1991 1 IR 69

BARKER v WINGO 1972 407 US 514

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 12

MCCARTHY & DENNEDY v GARDA SIOCHANA COMPLAINTS TRIBUNAL & ORS 2002 2 ILRM 341 2002/19/4881

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 37

MCAULEY v KEATING, COMMISSIONER OF AN GARDA SIOCHANA & AG UNREP O'SULLIVAN 8.7.1997 1997/24/9389 1997 IEHC 118

DE ROISTE v MIN FOR DEFENCE & ORS 2001 1 IR 190 2001 2 ILRM 241 2001 ELR 33 2001/6/1371

SCULLY v DPP 2005 1 IR 242 2005 2 ILRM 203 2005/54/11281 2005 IESC 11

RSC O.84 r21

Mr. Justice John MacMenamin

1 The applicant seeks an order by way of prohibition or alternatively injunction restraining the respondent from holding a sworn inquiry pursuant to article 15(2) of the Garda Síochána (Discipline) Regulations, 1989, or further processing disciplinary proceedings against the applicant in respect of alleged breaches of discipline between the years 2000 and 2002, in an inquiry which had been listed for 25^th October, 2005. The applicant also seeks a declaration that the failure by the respondent to investigate the matters in issue expeditiously breached the applicant's entitlement to fair procedures and/or constituted a breach of statutory duty, were ultra vires, and breached the applicant's legitimate expectation that serious allegations of misconduct alleged against him pursuant to the Garda Síochána (Discipline) Regulations, 1989 would be dealt with expeditiously.

2 It is necessary first to deal with the nature of the allegations which were to be put to the applicant in the course of the inquiry. In brief, it is alleged that between the years 2000 and 2002 he accessed pornographic websites, including websites including images of child pornography by means of a computer located at the purchasing support office at Garda Headquarters, Phoenix Park, Dublin, 8. At all relevant times the applicant was a working member of An Garda Síochána in that section.

3 In or about November, 2002, it came to light that staff in the office in question had noted that the internet on the computers was running slow and giving error messages. A member of the force examined the computers, and on one discovered material which appeared to relate to gay pornographic sites. This member of the force, Sergeant Eugene Lynch, investigated the matter further and discovered that the recycle bin on the machine contained a considerable amount of material on the sites that had been visited via the internet from the computer. On 14^th November, 2002, Sergeant Daly removed the computer from the office and on the following day found child pornographic images on the computer.

4 On 15^th November, 2002 a criminal investigation into the matter was commenced. Detective Chief Superintendent John Camon directed that Detective Inspector Dominic Hayes of the National Bureau of Criminal Investigation conduct that investigation. On 11^th December, 2002 the applicant was interviewed for the purposes of the criminal investigation. A copy of the memo of interview which resulted is contained in the statement of Detective Inspector Dominic Hayes and has been exhibited during the course of these proceedings. This is of particular importance in the light of the fact that the applicant made a number of admissions in respect of accessing pornography on the computer, including child pornography. Included in the statement the following exchanges took place.

"Q. Have you accessed the internet in relation to pornographic sites?

A. Yes I have. I suppose it started with SPAM coming into my Hotmail and clicking onto the site out of curiosity. I suppose this was two or two and a half years ago maybe."

5 Later in the same interview the following exchange was recorded:

"Q. What search criteria would you use?

A. Maybe Teen Sex or something like that. These searches then produced other sites, some of which are gay and underage sites. Again, from curiosity I clicked on both of these sites and I looked at some of the images that were there."

6 Later in the same interview the following exchange took place:

"Q. Did any of the images that you described earlier depict images as you have described above?

A. The only site that depicted boys under 18 was (name of site identified) and the pictures on that were boys on their own and there was no sexual activity."

7 Later in the interview the following exchange took place:

"Q. Detective Inspector Hayes now shows exhibit 'DH3' which are images extracted from the old computer in your office.

A. I have looked at the images as shown to me by Detective Inspector Hayes and I say that they are images from the (name provided) site and I don't recollect a lot of them. I would have clicked on a few thumbnails and then closed them down. I have examined the book and I recognise some of the pictures. I have gone through the book and I have marked the images I recall seeing on the screen. I have put question marks beside a couple that I am not sure about.

Q. Do you accept that your searches are responsible for the images on the computer that was downstairs in your office?

A. I accept this and I have no knowledge of anybody else accessing sites like this on the computer or this type of material.

Q. Do you accept that some of the images that you have seen on the computer downstairs in your office are of children and not of men?

A. Yes."

8 5. On 14^th April, 2003 the applicant was interviewed by members of the Gardaí at Harcourt Square. This interview, as was the last, was conducted as part of a criminal investigation. During the course of this interview the applicant maintained his right to silence in respect of a number of questions. On 29^th April, 2003 a file in the matter was sent to the Director of Public Prosecutions. Thereafter, on 6^th May, 2003 a direction was received from the Director to prosecute the applicant for summary offences. On 7^th May, 2003 two summonses were served on the applicant returnable for 4^th June, 2003. One summons related to breaches of s. 6(1) of the Child Trafficking and Pornography Act, 1998 on 7^th November, 2002 at Garda Headquarters. The second summons related to similar breaches of the law at the applicant's home.

9 6. On 9^th May, 2003 a decision was made to suspend the applicant from duty and he was served with notice of this decision.

10 7. On 15^th July, 2003 Detective Superintendent John O'Mahoney was appointed to investigate alleged breaches of discipline by the applicant pursuant to Regulation 8 of the Garda Síochána (Discipline) Regulations, 1989 by Detective Chief Superintendent Camon. This was a distinct process from the criminal investigation. On the same date Detective Superintendent O'Mahoney served a notice under Regulation 9 of these Regulations on the applicant and asked him whether he wished to make a submission or report in relation to the allegations. He also brought the terms of certain...