Maubury v Commissioner of an Garda Síochána
|Ms. Justice Baker
|03 May 2016
| IEHC 224
|[2013 No. 796 JR]
|03 May 2016
 IEHC 224
THE HIGH COURT
[2013 No. 796 JR]
Employment – Garda Siochana Code – Decision to transfer – Judicial review – Rejection of appeal – Retrospective review
Facts: Following the decision of the Transfers Review Body to reject the appeal of the applicant, thereby affirming the decision of the respondent on subsequent appeal, the applicant now sought an order of certiorari for quashing the decision of her transfer. The applicant had challenged the original as well as the other three decisions made on appeal by way of the present judicial review. The applicant contended that the Transfers Review Body was wrong in holding that the Garda Siochana Code did not provide any mechanism for a retrospective review. The applicant also alleged bias against the Transfers Review Body and that she was not provided any reasons which formed the basis of the impugned decision.
Ms. Justice Baker granted an order of certiorari and thus, quashed the decision of the Transfers Review Body. The Court also granted a declaration that the decision of the said Review Body was contrary to fair procedures and in breach of natural and constitutional justice for failure to give reasons. The Court held that it was only the decision of the Transfers Review Body that was amenable to judicial review and not others. The Court found that since the role of the named Assistant Commissioner was limited to the extent of communicating the decisions to the relevant decision-making bodies, the allegations of bias could not stand against him. The Court, however, found that inadequacy to give reasons, keeping in lieu the requirements of openness, transparency and fairness alone, was sufficient to warrant an order of certiorari.
The applicant is a member of An Garda Síochána and brings this application for judicial review arising from the decision of the respondent to transfer her from Killarney Garda Station to Tralee Garda Station on or about the 5th June, 2012. She seeks an order of certiorari quashing the decision and/or a declaration that in seeking to transfer her, the respondent acted without jurisdiction, in breach of fair procedures and in breach of the Garda Síochána Code (‘the Code’). The applicant asserts that it was not her wish to move to work in Tralee, and that she did not apply for a transfer. The facts may briefly be stated.
On the 5th June, 2012 the applicant was directed by the Chief Superintendent in Killarney to take up duties in Tralee Garda Station on the following day, the 6th June, 2012. The applicant did attend at Tralee Garda Station on the 6th June, 2012 but asserts that she did so as a matter of courtesy, not with a view to accepting the transfer, and as she so communicated to the Assistant Commissioner.
There is a process of appeal within the Code and this admits of appeal or review at a number of levels. The complex stages of the processes for appeals and reviews are set out in Chapter 8. In of an Garda Síochána McKechnie J. accepted as a matter of principle that members of An Garda Síochána:
‘have a legitimate expectation that the provisions of the Gardaí code would be applied unless there was a legal justification for not so doing.’
Having considered the judgment of the Supreme Court in , he went on to say that the legitimate expectation of a Garda in regards to the operation of the Code:
‘stems from the existence and publication of the Code and that the applicant's standing to rely upon it arises from his membership of An Garda Síochána to whom the Code is addressed.’ (para. 26)
The applicant's first appeal against her transfer was rejected on the 12th July, 2012 on the grounds that an appeal could not retrospectively alter a transfer which had already occurred. This was based on a view that the applicant had accepted the transfer by attending at Tralee on the 6th June, 2012.
She then asked for the matter to be submitted to the Garda Commissioner in accordance with the provisions of Article 8.13(5) of the Code. This second stage of appeal was commenced on the 7th August, 2012. Her file was referred back by the Commissioner to the same Assistant Commissioner who had earlier reviewed the decision. On the 24th September, 2012 her Chief Superintendent was informed that her appeal was rejected, and on the 7th November, 2012 her solicitor was informed by the Commissioner that this appeal was rejected.
On the 6th November, 2012 the applicant availed of the third procedural stage and applied for a review by the Transfers Review Body pursuant to the provisions of Article 8.14 of the Code. The Transfers Review Body met to hear the appeal on the 22nd April, 2012 and adjourned to the 29th August, 2012. On the 17th October, 2013 the Transfers Review Body informed the applicant that her appeal on review had been rejected.
The applicant asserts that the procedures adopted by the respondent are fundamentally unfair, and that at each stage of review and appeal the decision of the relevant body came to its decision on an erroneous view that she was seeking to retrospectively appeal what had been a valid transfer.
The respondent argues that the applicant had agreed to transfer from Killarney to Tralee as part of a compromise reached with the assistance of her representative association, arising from so-called ‘performance issues’, and because she would be subject to a greater degree of supervision in Tralee Garda Station. It is asserted that the applicant agreed to transfer at a meeting on the 4th May, 2012 and that she confirmed her agreement on the 5th June, 2012, the day before she attended at Tralee Garda Station.
By way of preliminary objection the respondent objects to the application for judicial review on the grounds that the applicant is out of time. It is asserted that time began to run when the applicant was directed to transfer to Tralee Garda Station on the 5th June, 2012, and that as the leave application was not brought until the 4th November, 2013, the applicant is out of time and has offered no justifying reason which would entitle her to an extension of time.
This issue can best be dealt with by first determining what decision is impugned in the present application for judicial review.
The applicant has sought to challenge four decisions: the decision of the 5th of June, 2012 transferring her, the decision of the 12th of July, 2012 by which her first appeal was rejected; and the decision of the 7th of November 2012 when her appeal to the Commissioner was rejected and the final rejection on 17th October 2013 by the Transfers Review Body.
The role of the High Court in a judicial review where an applicant has exhausted internal remedies has been considered by Finlay Geoghegan J. in in which she said the following:
‘…the normal position must be that where an appeal is determined an applicant has gone too far and the High Court will not subsequently interfere with the first instance decision by way of judicial review. Whilst the court retains a discretion to do so it should only exercise its discretion to grant certiorari of a decision which has been the subject of a decided appeal where there exist special circumstances which make such late interference necessary to do justice for the parties. (para. 67)
Finlay Geoghegan J. noted that there could not be an exhaustive list of what might constitute special circumstances, but held that no such circumstances existed in the case before her:
‘On these facts the applicant must also be considered to have acquiesced in or permitted the second respondent determining the appeal. No steps were taken on the applicant's behalf to prevent the [Tribunal] from deciding the appeal even after the [Commissioner] refused to quash her recommendation and reopen the investigation. All relevant facts and grounds were known to the applicant and by reason of her legal representation she was not precluded from applying for leave at an earlier date.’ (para. 77)
A person who has engaged in an internal grievance procedure cannot thereafter seek to impugn the decision in respect of which the grievance procedure is engaged. If an alleged error or legal frailty identified in a decision of first instance is appealed or reviewed by virtue of an internal appeals or review procedure, the same or substantially the same point or points will have been raised at various stages in the process. It is the final decision in the chain of decisions that may be the subject of judicial review, as it is that decision which is operative.
I adopt the statement of Charleton J. in the Supreme Court decision of where, he pointed to the fact that the decision of the earlier body was by virtue of an appeal ‘rendered merely historical’ (para. 15).
In the present case, the appellate process has the effect that the original decision has become merged in and extinguished by the later decisions, and in particular in the final decision by the Transfers Review Body. The various bodies or persons...
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