McAuley v Keating

• Jurisdiction: Ireland
• Judge: Mr. Justice O'Sullivan
• Judgment Date: 08 July 1997
• Neutral Citation: [1997] IEHC 118
• Court: High Court
• Date: 08 July 1997

[1997] IEHC 118

THE HIGH COURT

No. 397 J.R./1997

McAULEY v. KEATING, COMMISSIONER OF AN GARDA SIOCHANA & ATTORNEY GENERAL

BETWEEN

GARY BRIAN McAULEY

APPLICANT

AND

CHIEF SUPERINTENDENT E.T. KEATING, THE COMMISSIONER OF AN GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

GARDA SIOCHANA CODE OF CONDUCT FOR STUDENTS/PROBATIONERS REG 33

GARDA SIOCHANA CODE OF CONDUCT FOR STUDENTS/PROBATIONERS REG 33(8)

RSC O.84 r19

MCNEILL V COMMISSIONER OF AN GARDA SIOCHANA & AG 1997 1 IR 469

GARDA SIOCHANA CODE OF CONDUCT FOR STUDENTS/PROBATIONERS REG 33(9)

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989

O'NEILL V BEAUMONT HOSPITAL BOARD 1990 ILRM 419

DUBLIN WELL WOMAN CENTRE LTD V IRELAND 1995 1 ILRM 408

METROPOLITAN PROPERTIES CO (FGC) LTD V LANNON 1969 1 QB 577

Words & Phrases:

C

Subject Headings:

*

1 Mr. Justice O'Sullivan delivered the 8th day of July, 1997 .

2 The Applicant is a student member of An Garda Siochana. He commenced his training in August 1993. In October of that year an incident allegedly took place at Allens Licensed Premises in Templemore during which the Applicant allegedly was drunk, exposed his person and assaulted a fellow student guard. In December he was informed that disciplinary proceedings would be instituted against him.

3 The Applicant successfully challenged those proceedings. The facts and background are set out at length in the judgment of Barr J. delivered on the 4th July, 1995. This was appealed to the Supreme Court which upheld the decision of Barr J. insofar as it quashed the proceedings. The Supreme Court, however, did not agree with Barr J. that further proceedings should be prohibited. The judgment of the Chief Justice (delivered on the 15th February, 1996) specifically refused on Order prohibiting the second-named Respondent from taking further disciplinary proceedings "provided that such proceedings are conducted in accordance with the provisions of the Disciplinary Code and the requirements of natural and constitutional justice".

4 The documents discovered in the present case show that on the very next day the first-named Respondent had already considered the Supreme Court judgment and set out options available to the Respondents in relation to the Applicant. These options included a reinvestigation of the alleged breach of conduct on the 13th October, 1993. By the 27th February it had been decided to readmit the Applicant and to carry out in investigation in accordance with Regulation 33 of the Code of Conduct for Students/Probationers ("the relevant code"). In a letter dated the 28th February to the Chief State Solicitor it was indicated that the decision had been to "re-contract him" and after this, the Superintendent in charge of the student probationer school "will enquire into the incident in Allens Public House on the 30th October, 1993".

5 By the 12th March legal advice had been given which indicated that the Commissioner could start the investigation afresh and go as far as possible without approaching the Applicant. It was indicated he should not be approached until further directions were received from the law officers.

6 The Applicant's solicitors wrote on the 20th February, 1996 with a general enquiry in relation to "our client's assignment" to a Garda Station, and a specific enquiry in relation to the damages indicated by the Supreme Court. After a reminder they received a letter dated the 4th April, 1996 indicating that it was proposed to accommodate the Applicant with a group for Phase II training scheduled for the 15th July, 1996. It was suggested that the Applicant attend at the Garda College, Templemore, on some date between the 9th April and the 1st June "when he will be re-contracted as a student garda" for the remaining period of training until attestation at the end of Phase III. After a further enquiry from the Applicant's solicitor, the first-named Respondent wrote suggesting that the Applicant attend at 10 a.m. on the morning of Tuesday, 28th May, 1996 at the Garda College "for re-contracting as a student garda".

7 According to his Affidavit the Applicant did so attend on that date (erroneously described as the 20th May in the Affidavit). On the 25th June, 1996 he was served with a notice pursuant to Regulation 33(8) of the Code of Conduct informing him that he may have been in breach of the code, that one Louis Harkin, Superintendent had been appointed Investigating Officer and his attention was drawn to the alleged breaches being drunkenness, indecent exposure and assault.

8 On the 9th September, 1996 Superintendent Harkin informed him that he had taken fresh witness statements and gave him copies. They met by agreement on the 8th October, 1996 when the Applicant gave a statement to Superintendent Harkin. On the 25th November, 1996 he was informed that the first-named Respondent proposed to conduct an oral enquiry on the 3rd December, 1996 into the alleged incident at Allens Licensed Premises on the 13th October, 1993. His solicitors wrote a letter on the 28th November, 1996 seeking an explanation as to the nature and composition of the proposed hearing and further details in relation to it. They also sought an adjournment. In his reply of the 29th November, 1996 the first-named Respondent gave certain replies to which I will return. He also refused an adjournment. A further letter of the 2nd December, 1996 from the Applicant's solicitors raised further queries and repeated unanswered queries, insisting on satisfactory replies and threatening steps to protect their client's interest if the hearing was not adjourned. By letter of the 2nd December the adjournment was conceded to the 17th December, 1996 and certain other replies were furnished.

9 Before the adjourned date was reached, however, an application was made to this Court on the 13th December, 1996 and an Order giving liberty to institute the present proceedings was granted by Mr. Justice McCracken. He also made an Order that the Respondent, their servants or agents be restrained from taking any further steps against the Applicant in relation to the alleged incident until the determination of the application for Judicial Review or until further Order or until the injunction should have lapsed by reason of the Applicant's failure to serve an originating Notice of Motion within the proper time.

10 The Applicant had obtained the necessary academic requirements in order to successfully complete Phase III. He was due to be attested on Wednesday, the 22nd April, 1997 and to be assigned to a Garda Station for Phase IV of the training. However, on the 27th March, 1997 he was notified that he would not be attested nor would he be assigned to a Garda Station due to the fact that the internal investigation had not been concluded.

11 A Motion was brought in these proceedings by the Applicant for a declaration or direction that the decision of the first-named Respondent on the 1st April, 1997 preventing him from being attested and from progressing to Phase IV of his training programme constituted a breach of the Order of Mr. Justice McCracken dated the 13th December, 1996 and this Motion was heard by Mr. Justice Kelly on the 21st April, 1997 who delivered judgment thereon on the 24th. The Applicant was refused the relief he sought, Kelly J. having decided that the refusal of the first Respondent to advance the Applicant into the next phase of his training course was not in breach of the injunction.

12 These proceedings were heard by me on the 1st and 2nd July, 1997.

13 In them the Applicant advances two attacks on the reconstituted investigation as follows:-

14 (a) he says that there has been an unconscionable delay which is in breach of the relevant regulations and an infringement of his right to constitutional and natural justice;

15 (b) he further says that the first Respondent who was the officer appointed to investigate the Applicant's alleged breach of the code has exhibited bias by stating, more than once, that he has decided that the Applicant has committed the offence.

16 Additionally, the Applicant seeks a declaration that Regulation 33 of the Garda Siochana Code of Conduct for Students/Probationers in wrongful, null and void and constitutes a breach of the Applicant's constitutional right to basic fairness of procedures. The Applicant was not given leave to seek this additional relief in the initiating Order of McCracken J. but relies on Order 84 Rule 19 of the Rules of the Superior Courts which provides that any relief which the Court considers appropriate may be granted if it arises out of or relates to or is connected with the subject matter of Judicial Review proceedings notwithstanding that it has not been specifically claimed.

THE APPLICANTS CLAIMS

DELAY

17 The Applicant says that he cannot understand why it took seven months from the date of delivery of the Supreme Court judgment to serve him with fresh statements; that this is clearly contrary to the judgment of the Supreme Court in his own case which requires any further proceedings to be conducted in accordance with the provisions of the relevant code and the Applicant points out that in an earlier case of McNeill v. The Commissioner of An Garda Siochana, Ireland and the Attorney General (30th July, 1996), the Supreme Court stressed particularly that the procedure under the disciplinary code under consideration in that case must be dealt with expeditiously "and as a matter of urgency", (see the judgment of Hamilton C.J. at page 24) and that the judgment of O'Flaherty J. indicated that a timetable that accords with the requirements of those regulations "would have to lay down a much shorter time shorter time span: ideally, a matter of weeks, or months at the most".

18 The Applicant says that not only did severn months clapse before he was served with fresh statements but a further period...