McAuley v Keating

• Jurisdiction: Ireland
• Judge: Mr Justice Francis D Murphy,Lynch J.
• Judgment Date: 21 January 1998
• Neutral Citation: 1998 WJSC-SC 9412
• Court: Supreme Court
• Docket Number: (298+301/97),[S.C. Nos. 298 & 301 of 1997]
• Date: 21 January 1998

1998 WJSC-SC 9412

THE SUPREME COURT

O'Flaherty J.,

Murphy J.,

Lynch J.,

(298+301/97)

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

AN CH ÚIRT UACHTARACH

GARY BRIAN McAULEY

Applicant

.V.

CHIEF SUPERINTENDENT E.T. KEATING THE COMMISSIONER OF ANGARDA SIOCHANA IRELAND AND THE ATTORNEY GENERAL

Respondents

Citations:

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

O'NEILL V BEAUMONT HOSPITAL 1990 ILRM 419

DUBLIN WELL WOMAN CENTRE LTD V IRELAND 1995 1 ILRM 408

MCNEILL V COMMISSIONER OF AN GARDA SIOCHANA & AG 1995 1 ILRM 321

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

Synopsis

Garda Siochana

Judicial review; disciplinary inquiry; bias; natural and constitutional justice; delay; investigation into alleged misdeeds of applicant; whether objective bias on behalf of respondent purporting to conduct inquiry; whether breach of disciplinary code by applicant; whether undue delay in conducting inquiry Held: No bias or undue delay (Supreme Court: O'Flaherty J., Murphy J., Lynch J. 21/01/1998) - [1998] 4 IR 138

McAuley v. Chief Superintendent Keating

1 Judgment (ex-tempore) delivered on the 21st day of January, 1998,by O'Flaherty J. [MURPHY, LYNCH CONC]

2 In these proceedings Gary Brian McAuley, who is a probationer garda, seeks a reversal of the judgment and order of the High Court (O'Sullivan J.) of the 8th July, 1997. He seeks in effect a declaration by way of judicial review that a decision of Chief Superintendent Keating's in relation to the way that he would conduct an enquiry into alleged wrongs of the appellant was such as to be null and void and that this Court on appeal should prevent this enquiry taking place.

3 Therefore, it is necessary to sketch in some of the background, which indeed the High Court judge has done. He sets forth that the appellant was a student member of the garda siochana. He commenced his traininginAugust, 1993. In October of that year there was an incident at a licensed premises in Templemore, which is the location of the Garda College. The upshot of what allegedly took place on that occasion is that the appellant was drunk, exposed is person and assaulted a fellow female student.

4 His alleged misdeeds were the subject of an investigation. In due course, he challenged certain proceedings and findings of the then Commissioner of the garda and he succeeded in full before Barr J. on the 4th July, 1995. The matter then went to the Supreme Court and the Court consisting of the Chief Justice, Blayney J. and Denham J. on the 15th February, 1996 upheld Barr J.'s essential finding that there had been a lack of what I might call in a form of shorthand due process in relation to the proposed enquiry and that it was right that the learned High Court judge's order should be affirmed in that respect. However, the learned High Court judge had gone further and said that there could be no further proceedings in the circumstances and this Court did not follow that course. The Chief Justice said in the course of his judgment, and I quote from p. 40 of the unreported text:-

"The Commissioner has also appealed against that portion of the learned trial judge's order which prohibited him or his subordinates from taking any further disciplinary proceedings against the applicant in relation to the alleged incident in Allen's licensed premises, Templemore, on the 13th October, 1993, and has submitted that if his decision made on the 11th February,1994, were to be quashed for want of fairness of procedures the appropriate order to be made by this Court would be to direct the reconsideration of the disciplinary issue in accordance with fair procedures and constitutional and natural justice."

5 The Court, speaking through the Chief Justice, upheld the entitlement of the Commissioner to proceed further with the case and I quote from p.42 of his judgment:-

"In forming such an opinion and in making the decision based upon such opinion the Commissioner was and is obliged to have regard to the provisions of the disciplinary code and the requirements of natural and constitutional justice and the applicant was and is entitled to the benefit of such procedures and requirements."

6 He then went on to say:-

"An order of prohibition, if granted, would have the effect of depriving the Commissioner of the power to and responsibility of terminating the training of the applicant if after an inquiry or investigation conducted in accordance with fair procedures he formed the opinion that the applicant was unsuitable for continued employment as a trainee by reason of misconduct.

The Commissioner and the garda authorities should not be precluded from conducting such an inquiry into the alleged misconduct of theapplicant."

7 That was the ruling of the Supreme Court in that matter.

8 The next thing that happened is that Chief Superintendent Keating who by this time was the Academic Co-Ordinator at the Garda College came on the scene - previously Chief Superintendent Harris had had that job. He took the appropriate legal advice as to what should be done. The appellant was re-contracted and commenced duties as a student on the 6th June,1996.

9 Then the matter of the alleged incident or incidents in Allen's public house was brought up again. Chief Superintendent Keating took the view that he should investigate this under Regulation 33(8) of the Garda Siochana Code of Conduct for Students/Probationers. He appointed Superintendent Louis Harkin as investigating officer. On the 25th June, 1996, the appellant was given formal notice in writing about the investigation. What Chief Superintendent Keating directed at this stage was that there should be a complete and thorough independent, impartial, fresh look at the alleged breaches and circumstances surrounding it because he had no involvement in the previous enquiry that had been the subject of the decision by Barr J. and appealed to the Supreme Court. Superintendent Harkin, it seems to be clear, took up to 30 or more statements. He had to correspond with various superintendents throughout the country at this stage as well. Because of various emergency duties that the police were involved in many of the studentshad been scattered to different parts of the country. This matter of the taking of the statements seemed to have gone on to towards the end of August. Then on the 22nd August the Chief Superintendent met the appellant at Kevin Street Garda Station, Dublin, and he was given a copy of the investigation file. There were some further meetings on which I need not spend time.

10 There was a meeting on the 25th November, 1996, which is of some importance and which I will refer to later. The appellant's essential case before the High Court judge and before us is that there has been a measure of bias by Chief Superintendent Keating in the way in which he is setting about this investigation and he of course is the one who will actually conduct the enquiry. It is not alleged, as I understand Mr. McGovern's very able submission, that there is subjective bias on the part of the Chief Superintendent but it is said that any fair reading of the three documents on which he relies and which I will come to in a moment would give on an objective basis the impression to the appellant that his case is being prejudged and he relies on the O'Neill .v. Beaumont Hospital [1990] ILRM 419 case and the Well Woman Centre case [1995] 1 ILRM 408 for these essential propositions. So that is leg one of his argument.

11 The second leg is that there has been undue delay. He has put before us the totality of the delay (since the original incident) but I think we are restrictedto considering the delay, such as it was, since this Court previously gave its decision.

12 So to come then to the meeting on the 25th November, 1996. The parties present were the Chief Superintendent and Mr. McAuley and there was a note taker also present. The Chief Superintendent outlined to the appellant the background to what he was investigating. Everyone knew about it at this stage. The Chief Superintendent said:-

"C/Supt:	I know you have a copy of the file - correct?
GMcA:	Yes, Sir.
C/Supt:	Have you read it?
GMcA:	Yes, Sir.
C/Supt:	As you see from the investigation file, a lot of statements in it. I have examined the investigation file and based on the contents it discloses breaches of discipline in respect of the following issues, drunkenness, indecent exposure and assault by you. Anything to say at this stage?
GMcA:	No, Sir
C/Supt:	As you are aware, some conflicts in the investigationfile.

GMcA:	Only in some of the statements.
C/Supt:	I propose to hold an oral enquiry before coming to a finaldecision.
GMcA:	Who will be on the Board?
C/Supt:	Me.
GMcA:	Just yourself?
C/Supt:	Yes. It is my duty to make final determination on the issue. I alone will decide on that. I will hear the witnesses and allow then to be cross-examined. You can put your case forward or call witnesses if you wish.
GMcA:	Am I entitled to legal advisors?
C/Supt:	Yes.
GMcA:	Who will give evidence?
C/Supt:	From my end all witnesses whose statements are in investigation file. You have a list of them at the front of the file, haven'tyou?
GMcA:	Yes, Sir. When will it take place?

C/Supt:	We can discuss that now.
GMcA:	Will it be done in one day?
C/Supt:	A day may complete it or as long as takes. Any suitabledates?"

13 They fixed on the 3rd December, 1996, at 11.00 am. The meeting concluded on a very cordial and amicable note between the Chief Superintendent and Mr. McAuley. The Chief Superintendent asked him how he was getting on with the duties he was performing at Kevin Street Garda Station at thattime.

14 Before coming to the other two documents it might be...