Kneafsey v Commissioner of Garda Síochána

• Jurisdiction: Ireland
• Court: High Court
• Judge: O'Neill J.
• Judgment Date: 20 February 2009
• Neutral Citation: [2009] IEHC 89
• Date: 20 February 2009

[2009] IEHC 89

THE HIGH COURT

[No. 1312 J.R./2006]

Kneafsey v Commissioner of Garda Síochána

BETWEEN

JOHN KNEAFSEY

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

RESPONDENT

CONTROL OF DOGS ACT 1986 S9

CONTROL OF DOGS ACT S27

PROTECTION OF ANIMALS ACT 1911 S1 (UK)

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 8(2)

MCNEILL v GARDA SIOCHANA 1997 1 IR 469 1996/13/4146

GIBBONS v COMMISSIONER OF GARDA SIOCHANA UNREP EDWARDS 30.7.2007 2007/26/5247 2007 IEHC 266

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

EQUITABLE INSURANCE CO LONDON, IN RE 1970 IR 45

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 8(1)

GARDA SÍOCHÁNA

Discipline

Judicial review - Alleged neglect of duty and disobedience of order - Delay in investigating allegation - Complaint made by member of public in relation to failure to proceed with prosecution - Failure of applicant to respond to inquiries made by Superintendant in relation to matter - Applicant maintaining Superintendant aware of all matters - Witness deceased - Whether delay in investigating allegation - Whether delay of prejudice - Whether regulations were to be strictly construed - Whether duty on respondent to carry out investigation expeditiously - Whether lapse of time grossly excessive - Whether lapse of time breach of regulations - Whether lapse of time in making of complaint imposed added degree of urgency - Whether distinction to be drawn between complaint made under regulations and complaint to Garda Síochána Complaints Board - McNeill v Commissioner of An Garda Síochána [1997] 1 IR 467, Gibbons v Commissioner of An Garda Síochána [2007] IEHC 266 (Unrep, Edwards J, 30/07/2007), McCarthy v An Garda Síochána Complaints Tribunal [2002] 2 ILRM 341 and Application of Butler [1970] 1 IR 45 considered - Garda Síochána (Discipline) Regulations 1989 (SI 94/1989), reg 8 - Relief granted (2006/1312JR - O'Neill J - 20/2/2009) [2009] IEHC 89

Kneafsey v Commissioner of An Garda Síochána

Facts: Regulation 8 of the Garda Síochána (Discipline) Regulations 1989 provides that “…where it appears that there may have been a breach of discipline [by a member of the Gardaí], the matter shall be investigated as soon as practical….”. A complaint was made on the 12th August, 2005, against the applicant by a member of the public in relation to the non-investigation of a complaint made by him in 2001. Arising from that complaint, an investigating officer was appointed under regulation 8(2) of the Regulations of 1989. On the 22nd June, 2006, the applicant was notified that two charges for breach of discipline were laid against him and that a hearing of those charges would take place on the 7th November, 2006. He obtained leave of the High Court to seek an order of prohibition by way of judicial review to restrain the respondent from taking any further steps in the disciplinary enquiry on the grounds that the respondent failed to comply with the standard of urgency and expedition which was a mandatory requirement of regulation 8 of the Regulations of 1989 and that the delay caused him prejudice.

Held by O’Neill J in granting the relief sought that a heavy obligation of expedition was placed on the respondent to ensure that the investigative procedures and thereafter the enquiry procedure provided for in the Regulations of 1989 were carried out with expedition, if not urgency. That was a mandatory obligation and because the Regulations were a self contained statutory code, the failure to fulfil the obligation led inevitably to an illegality which required that the enquiry be halted. The lapse of time from the making of the complaint to the initiation of the investigation was grossly excessive and breached the mandatory requirement in regulation 8(1) of the Regulations of 1989.

Reporter: P.C.

1 JUDGMENT of O'Neill J. delivered the 20th day of February, 2009

2 In this case, the applicant, who is a Sergeant in An Garda Síochána, stationed now in Tullamore, County Offaly, was given leave of this court (Peart J.) on 6 ^th November, 2006, to seek inter alia an order of prohibition restraining the respondent from taking any further steps in a disciplinary enquiry initiated against the applicant and on which a hearing was arranged to take place on 7 ^th November, 2006.

3 The facts relevant to this matter and as set out in the affidavits are as follows:

4 On 6 ^th August, 2001, the applicant was then stationed at Clara in County Offaly. On that date, a Sean O'Brien called on him in the garda station and informed the applicant that his dog had been poisoned again. He had mentioned a similar complaint some time before. Mr. O'Brien also said that the dog would be okay and he indicated that the dog had bitten him and he showed the applicant what the applicant described as a "slight mark" on his hand. He said he had been to the doctor who told him he would be alright.

5 Later that day, the applicant was informed by Garda Pat Cleary that Mr. O'Brien had been taken to hospital and was seriously ill.

6 The applicant rushed to the hospital. Members of Mr. O'Brien's family suggested that he had been poisoned and indicated the person they suspected as the culprit.

7 The applicant and Garda Cleary went immediately to this person and told him of Mr. O'Brien's state of health and enquired, as a matter of urgency, as to the type of poison (if any) that had been laid. This person directed the gardaí to another individual to whom they went immediately and upon enquiry with this person, he immediately handed over a small container which he said contained strychnine, together with a sweetener.

8 The applicant brought these straight away to the hospital and told the doctor what they had discovered.

9 The following day, the applicant made enquiries of his brother, a research chemist, and with the Forensic Science Laboratory and the Poisons Unit of St. Jame's Hospital to ascertain how this poison would work. From these enquiries, he learned that it was not possible for Mr. O'Brien to be poisoned in the manner alleged and, secondly, if he was poisoned in this way, it would be detectable in his system though a blood test. The applicant was advised to seek a medical report on Mr. O'Brien as part of the investigation.

10 The applicant called on a number of times when Mr. O'Brien was in hospital but could not speak to him because he was sedated. He spoke at different stages with nursing staff and, in particular, was informed by Pamela O'Brien, who is in charge of nursing staff on night duty, that Mr. O'Brien was "only acting" and that she had seen him before.

11 The applicant informed Superintendent Wheeler of the incident on 7 ^th August, 2001, who advised the applicant to be cautious in respect of Mr. O'Brien.

12 After Mr. O'Brien left hospital, he came to the garda station and made a written statement. When he had done that, the applicant asked him to provide a medical report. He said he would but did not do so and failed to respond to one or two further requests to produce a medical report. In fact, a medical report was never furnished by Mr. O'Brien.

13 The applicant was of the view that he needed a medical report to mount a prosecution against the persons alleged to have poisoned Mr. O'Brien. In light of the information which the applicant had gathered from his enquiries and from hospital staff, he was of the view that Mr. O'Brien's claim, or allegation, that he had been poisoned, was not genuine.

14 At one stage, he considered issuing summonses against all the parties involved, namely, against Mr. O'Brien for allowing his dogs to wander and against the other two persons for laying poison.

15 The applicant did, on 3 ^rd May, 2002, cause summonses to issue against all three persons. Against Mr. O'Brien, the offence alleged was permitting his dog, being unaccompanied, not to be under effective control contrary to sections 9 and 27 of the Control of Dogs Act 1986. Against the other two, the offence alleged was wilfully and without any reasonable cause or excuse administering a poison, namely, strychnine, to a dog the property of Sean O'Brien, contrary to s. 1 of the Protection of Animals Act 1911. The applicant decided not to serve the summonses or to proceed further on them as he had decided to deal with the matter by cautioning each of the parties and he advised Mr. O'Brien of this accordingly.

16 Nothing at all happened thereafter until 25 ^th March, 2005, when Mr. O'Brien called, by appointment, to see Superintendent Wheeler at Tullamore Garda Station and complained to him to the effect that his dog had been poisoned and that he had received secondary poisoning and was hospitalised. He complained that the applicant had retrieved the poison and knew the identity of the culprits but had not initiated a prosecution. Mr. O'Brien was very upset at this outcome.

17 Superintendent Wheeler informed Mr. O'Brien that he would get the applicant to liaise with him and in the meantime, he would seek sight of the investigation file. At that stage, Mr. O'Brien did not want to make an official complaint against the applicant.

18 Superintendent Wheeler then wrote to the applicant asking for a copy of the investigation file and requesting the applicant to liaise with Mr. O'Brien. By 3 ^rd May, 2005, Superintendent Wheeler had not received a reply from the applicant so he caused a reminder to be sent to the applicant. This reminder appears to have been generated or "activated" presumably by a computer. Further, similar reminders issued on 10 ^th May, 2005, 17 ^th May, 2005, 1 ^st June, 2005, 8 ^th June, 2005, 15 ^th June, 2005, 22 ^nd June, 2005, 27 ^th June, 2005, 4 ^th July, 2005, 11 ^th July, 2005, 18 ^th July, 2005, 25 ^th July, 2005, 1 ^st August, 2005, 9 ^th August, 2005, 16 ^th August, 2005 and 23 ^rd August,...