Landers v Garda Síochána Complaints Board

• Jurisdiction: Ireland
• Judge: Mr. Justice Kelly
• Judgment Date: 07 March 1997
• Neutral Citation: [1997] IEHC 46
• Court: High Court
• Docket Number: [1994 No. 7734P]
• Date: 07 March 1997

[1997] IEHC 46

THE HIGH COURT

No. 7734P/1994

LANDERS v. GARDA SIOCHANA COMPLAINTS BOARD

BETWEEN

LIAM LANDERS, SEAN WALSH AND PATRICK HANNIGAN

PLAINTIFFS

AND

THE GARDA SIOCHANA COMPLAINTS BOARD, THE GARDA SIOCHANA COMPLAINTS TIBUNAL, THE DIRECTOR OF PUBLIC PROSECUTIONS, SEAN D.HURLEY IRELAND,AND THE ATTORNEY GENERAL

DEFENDANTS

Citations:

RSC O.19 r27

RSC O.19 r28

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

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6

RSC O.84

RSC O.84 r21

O'DONNELL V DUN LAOGHAIRE CORPORATION 1991 ILRM 301

O'REILLY V MACKMAN 1983 2 AC 237

BARRY V BUCKLEY 1981 IR 306

SUN FAT CHAN V OSSEOUS LTD 1992 1 IR 425

K (D) V K (A) 1993 ILRM 710

O'NEILL V RYAN 1993 ILRM 557

PROSECUTION OF OFFENCES ACT 1974

MCCORMACK, STATE V CURRAN 1987 ILRM 225

H V DPP 1994 1 IR 589

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(5)

Synopsis:

Judicial Review

Application to strike party from proceedings; proceedings claiming that D.P.P. acted ultra vires and unconstitutionally by failing to prosecute plaintiffs; whether plaintiffs entitled to add D.P.P. as additional defendant in plenary proceedings following granting of leave to apply for judicial review; whether proceedings as against D.P.P. should be struck out under Ord.19, r.27 or inherent jurisdiction of the court Held: Plaintiffs entitled to add D.P.P. as additional defendant in plenary proceedings; plaintiffs not within scope of Court's jurisdiction to review D.P.P's decision; claim against D.P.P struck out (High Court: Kelly J. 07/03/1997)

Landers & Ors. v. Garda Siochana Complaints Board & Ors.

[1997] 3 IR 347

1 JUDGMENT of Mr. Justice Kelly delivered the 7th day of March, 1997.

2 The Director of Public Prosecutions applies to have his name struck from the title of these proceedings. He also seeks to have the claims made against him struck out.

3 Insofar as the first relief is concerned, he relies upon what he contends are procedural irregularities in the way in which he came to be joined in these proceedings.

4 Insofar as the second claim is concerned, he relies upon the jurisdiction of this Court conferred by Order 19 Rules 27 and 28 of the Rules of the Superior Courts and the inherent jurisdiction of the Court.

5 In order to understand the basis of the application, it is necessary to refer in some detail to the Statement of Claim which has been delivered in the proceedings and to the background which gave rise to them.

THE STATEMENT OF CLAIM AND ITS BACKGROUND

6 Each of the Plaintiffs are members of the Garda Siochana. The Statement of Claim in this case was delivered on the 25th January, 1996. Insofar as it is relevant, it alleges as follows:-

7 2 "5. On Saturday night/Sunday morning of the 12th June, 1988 an incident took place on the main Finglas road, Finglas in the City of Dublin on the forecourt of Finglas Garda Station, Finglas in the City of Dublin. It is alleged that one Derek Fairbrother was assaulted severely and in an unprovoked way by the Plaintiffs. There is a complete conflict as to what actually happened on the occasion in question and as to why it happened. However, if the allegation by the said Derek Fairbrother was to be proven, then the Plaintiffs were guilty of a serious assault on the said Derek Fairbrother.

8 6. On or about the 15th day of June 1988, the Solicitor on behalf of the said Derek Fairbrother complained to Superintendent Sweeney that "the said Derek Fairbrother was wrongfully arrested and imprisoned by the Gardai concerned and in the course of such arrest and imprisonment was seriously assaulted, as a result of which, he received very serious and severe injuries inflicted by a member or members of the Garda Siochana. The injuries consisted of severe cuts and bruises as a result of which he lost consciousness and after a time, was conveyed to the Mater Hospital where he was detained". This complaint formed the basis of a complaint to the Garda Siochana Complaints Board.

9 7. On or about the 22nd June, 1988 the Fourth named Defendant wrote to the Assistant Commissioner of the Gardai informing him by letter as follows:

10 "I am of opinion that the complaint is admissible under Section 4(3)(a)(iii) of the Garda Siochana (Complaints) Act, 1986in that the conduct complained of would be conduct specified in the Fourth Schedule to the Act.

11 I should be obliged if you would kindly formally appoint an investigating officer to investigate the complaint under Section 6 of the Act and request him to contact this office as soon as possible".

12 8. A letter in similar form was sent by the Fourth named Defendant to the Solicitors for the said complainant, Derek Fairbrother.

13 9. On or about the 25th day of June 1988 notification under Section 4(4) of the 1986 Act was served on the Third named Plaintiff, indicating that a complaint was being investigated, namely:-

14 "That Derek Fairbrother of Kilcoscan, Mays Cross, The Ward, Co. Dublin alleges that on the 12th June, 1988 he was wrongfully arrested and imprisoned by the Gardai and in the course of such arrest and imprisonment was seriously assaulted, as a result of which, he received very serious and severe injuries inflicted by a number of members of An Garda Siochana".

15 10. On the 22nd June, 1988 a Superintendent Patrick E.S. Jordan was appointed Investigating Officer under Section 6 of the 1986Garda Siochana (Complaints) Act to investigate the said complaint.

16 11. On or about the 15th day of August 1988 the First named Defendant considered the matter at their meeting and on that date took a decision that the Third named Defendant should reconsider the matter. Some time prior to the said date, at a time unknown to the Plaintiffs, the Third named Defendant considered the complaint and indicated to the First and Fourth named Defendants that he was not intending to prosecute the members concerned. However, despite that, on the 16th August 1988, the First and Fourth named Defendants sent a further report and statements to the Third named Defendant for further consideration and on the 29th November, 1988 the Third named Defendant informed the First and Fourth named Defendants that he, the D.P.P., did not intend to institute proceedings in relation to the conduct alleged in the complaint.

17 12. Pursuant to the said letter on the 6th December, 1988 the Fourth named Defendant wrote to the Plaintiffs in the following terms:

18 "The report of the Investigating Officer appointed to investigate the complaint has been considered carefully by the Board. The Board is satisfied that the matter has been thoroughly investigated and being of opinion that the complaint is admissible and that the conduct alleged could constitute an offence on the part of the members concerned, referred the matter to the Director of Public Prosecutions who decided not to institute proceedings in relation to this case.

19 The Board will give further consideration to the report of the Investigating Officer in accordance with the terms of the Garda Siochana (Complaints) Act, 1986and I will be in touch with you again to inform you of any decisions which the Board may make in relation to this matter".

20 13. A similar communication was sent to the solicitor for the complainant, Mr. Derek Fairbrother.

21 14. On or about the 12th December, 1988 the First named Defendant further considered the complaint at a meeting on the said date. It was decided at that meeting that as civil proceedings had been instituted in relation to the incident which gave rise to the complaint and the First named Defendant considered it likely that the Court would determine an issue or issues relevant to or concerning the conduct alleged in the complaint, that any further action by the Board in relation to the complaint would be postponed until the civil proceedings had been finally determined. The Plaintiffs were not parties to the said civil proceedings.

22 15. No further step was taken by the First named Defendant until the 29th October, 1992 when a Superintendent John McLoughlin was appointed Investigating Officer by Chief Superintendent Walsh of B Branch, Garda Headquarters to continue the investigation started by Superintendent Jordan in 1988.

23 The civil case concluded on the 20th November, 1992.

24 16. The complaint was again considered by the First named Defendant on the 14th February, 1994 when the First named Defendant made the decision to again refer the matter to the Third named Defendant and on the 16th February, 1994, documents were re-sent to the Director of Public Prosecutions, the Third named Defendant and on the 7th April, 1994 the Third named Defendant formed the view "the additional material that accompanied the letter has now been considered here. It has been concluded that there is not the basis therein either for an alteration in the directions from this office that have already issued or for new directions to issue".

25 17. On the 20th May, 1994 the Plaintiffs were informed by the First named Defendant that

26 "The Board is satisfied that the matter has been thoroughly investigated and that having considered all reports is of the opinion that a breach of discipline on your part other than a breach of a minor nature appropriate to be dealt with informally by the Commissioner may be disclosed in this case and accordingly the Board is required to refer the matter to a Tribunal under Section 7(5) of the Act".

27 This was the first time the First named Defendant formed an opinion that a breach of discipline as opposed to an offence had possibly occurred on the part of the Plaintiffs.

28 18. The injuries sustained by Derek Fairbrother were such that he was subsequently made a Ward of Court.

29 19. The Fourth named Defendant proceeded to refer the complaint to the Second named Defendant which purported to proceed with the hearing of the complaint pursuant to...