McCarthy and Dennedy v Garda Síochána Complaints Tribunal and Others

JurisdictionIreland
JudgeMr. Justice Murray,Mr. Justice Geoghegan
Judgment Date15 March 2002
Neutral Citation[2002] IESC 18
Docket NumberRecord No: 258/98
CourtSupreme Court
Date15 March 2002

[2002] IESC 18

THE SUPREME COURT

Keane C.J.

Murphy J.

Murray J.

McGuinness J.

Geoghegan J.

Record No: 258/98
McCARTHY & DENNEDY v. GARDA SIOCHANA COMPLAINTS TRIBUNAL & ORS

BETWEEN

CHRISTOPHER McCARTHY and JOHN DENNEDY
APPLICANTS/APPELLANTS

and

THE GARDA SÍOCHÁNA COMPLAINTSTRIBUNAL,
THE GARDA SÍOCHÁNA COMPLAINTSBOARD
AND THE COMMISSIONER OF AN GARDASÍOCHÁNA
RESPONDENTS

Citations:

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(1)(A)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(3)(A)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(5)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S9(1)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(1)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(3)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S5(1)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6(1)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6(2)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(1)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(3)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(4)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(3)(A)(IV)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S9(1)(2)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S9(1)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(4)

MCNEILL V COMMISSIONER OF AN GARDA SIOCHANA 1997 1 IR 479

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6(6)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6(6)(A)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6(6)(B)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6(6)(C)

MACC & MACD V EASTERN HEALTH BOARD 1996 2 IR 296

GARDA SIOCHANA (DISCIPLINE) REGULATIONS 1989 SI 94/1989 REG 8

REGINA V CHIEF CONSTABLE OF THE MERSEYSIDE POLICE EX-PARTE MERRILL 1989 1 WLR 1077

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S9

ROAD TRAFFIC ACT 1961 S53

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGULATIONS 1987 SI 119/1987 ART 11.4

Synopsis:

JUDICIAL REVIEW

Garda Síochána

Complaints Board - Fair procedures - Delay - Whether Tribunal acted ultra vires - Whether specific breaches of discipline alleged bore relation to original complaint - Whether failure by respondents to act with reasonable expedition - Garda Síochána (Complaints) Act, 1986 - (258/1998 - Supreme Court - 15/03/2002) - [2002] 2 ILRM 341

McCarthy v Garda Síochána Complaints Tribunal

Facts: The applicants were members of An Garda Síochána who were the subject of complaints in relation to the arrest of a member of the public. The applicants sought to challenge the actions of the Garda Síochána Complaints Board on the grounds that the Chief Executive of the Board had acted ultra vires in formulating the alleged breaches of discipline and referring these to the Garda Síochána Complaints Tribunal. In addition the applicants sought to impugn the proceedings before the Tribunal on the grounds of delay. In the High Court Mr. Justice Smyth refused the reliefs sought and the applicants appealed.

Held by the Supreme Court (Murray J and Geoghegan J delivering judgments; Keane CJ, Murphy J and McGuinness J agreeing) in allowing the appeal. Murray J held that the applicants were erroneous in their view of what could constitute a relationship with an original complaint. The breaches of discipline alleged against the applicants were related to the original complaint and were not so unrelated as to render the actions of the Board ultra vires. On this ground the appeal would fail. However referring to the issue of delay (as contained in the judgment of Geoghegan J) the appeal would be allowed. Geoghegan J held that a disciplinary complaint against a member of An Garda Síochána was a serious matter and under any reasonable interpretation of the legislation it would have been intended that expedition was also in the interests of those members. Given the gross and unlawful delay that had occurred the appeal would be allowed.

1

Mr. Justice Murraydelivered the 15th day of March 2002.

2

The Applicants in this case are members of the GardaSíochána, with the rank of sergeant, who have been the subjects of the investigation and adjudication procedure provided for in the Garda Síochána (Complaints) Act, 1986where complaints are made by or on behalf of a member of the public about the conduct of members of the force.

3

The Applicants' appeal against the judgement and Order for Mr Justice Smyth in the High Court refusing them certain reliefs against the Respondents which they sought by way of judicial review on the grounds that they had acted ultra vires the powers conferred upon them under the 1986 Act.

4

A complaint which concerned the conduct of the Applicants having been investigated under the procedures laid down in the Act, specific breaches of discipline were alleged against them by the GardaSíochána Complaints Board (the Board) for adjudication by a tribunal appointed by the Board. Before the adjudication process was complete the applicants challenged, in these judicial review proceedings, the lawfulness of the procedures carried out pursuant to the 1986 Act.

5

There are two basic grounds upon which the applicants rely in this appeal. One is the submission to the effect that the Chief Executive of the Board acted ultra vires in formulated and alleging breaches of discipline to be referred to the Tribunal which bore no relation to the complaint initially made against them and the Tribunal in turn acted ultra vires in embarking on an adjudication upon those charges. In the other ground the applicants seek to impugn the proceedings before the Tribunal on the grounds of delay.

6

Facts

7

In order to explain the first ground of appeal to which I have referred it is necessary to set out the sequence of events, which are not really in dispute, commencing with the circumstances which led to the making of a complaint and the ensuing statutory procedures which were followed under the Garda Síochána (Complaints) Act, 1986.

8

On 12th June, 1988 Derek Fairbrother was arrested in the early hours of the morning in the Finglas area by members of the GardaSíochána and brought to Finglas Garda Station. He was detained there for a period of time before being eventually removed by ambulance to hospital.

9

Sergeant McCarthy was on duty in Finglas Garda Station and received a radio message from the arresting gardaí to the effect that they were on the way back to the gardastation with the arrested person who was injured. Not being aware of the extent of the injuries, Sergeant McCarthy telephoned for an ambulance as a precautionary measure. After Mr. Fairbrother had been brought to the garda station and placed in a cell Sergeant McCarthy spoke to him. He noticed some blood on the back of his head but there was no bleeding at that time. According to his account he asked Mr Fairbrother if he wished to see a doctor and he replied that he wanted to see his own specialist. Shortly afterwards Sergeant McCarthy met two ambulance men in the hallway of the garda station who had responded to his earlier call. He told the ambulance men to leave as Mr. Fairbrother was in custody and his injuries did not appear to be serious and he would call a garda doctor to examine him. The ambulance men then left. Sergeant Dennedy's account of what occurred in the garda station included an account of how members of Mr. Fairbrother's family, including his father, arrived at the garda station at 6.35am demanding to see the prisoner. He described them as being very disorderly, shouting abuse and insults. Because of their behaviour he said he feared for his safety, that of the station orderly and also for the safe custody of the prisoner. He described them as acting like a " mob" and refused to let any of them see the prisoner. At 6.50am the doctor called by the gardaíarrived. Later an ambulance was called to take Mr. Fairbrother to hospital because, according to Sergeant Dennedy, he refused to be examined by Dr. Williams. Controversy was to arise over the circumstances under which Mr. Fairbrother was arrested, received injuries and his treatment in custody.

10

Arising from these events Derek Fairbrother's solicitor wrote a letter in the following terms to the Superintendent at the Cabra Garda Station:

" June 15th, 1988

To Superintendent E.Sweeney,

Garda Siochana,

Cabra Station,

Dublin 7.

Dear Sir,

We have been consulted by Mr. Derek Fairbrother of Kilcaskan, Mays Court, the Ward, County Dublin in connection with an incident at Finglas Garda Station within your district between 3.30 and 5.00 a.m. on Sunday morning last the 12th June, 1988.

Our client alleges that he was wrongfully arrested and imprisoned by the Gardaí concerned and in the course of such arrest and imprisonment was seriously assaulted as a result of which he received very serious and very sever injuries inflicted by a number of 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 by ambulance where he was and still isdetained.

Obviously at this stage we haven't had an opportunity of obtaining full and detailed instructions from our client but we are concerned that the matter be brought to your attention as soon as possible so that you may have an opportunity of having the matter fully investigated and enquired into. In this regard the writer has been in telephone conversation with you today and tried to make telephone contact with you yesterday. We appreciate your assurances that the matter will receive your immediate attention and will be fully investigated and reported upon to the Director of Public Prosecutions.

In the meantime, we also confirm that we will arrange for Mr. Fairbrother to make a full and detailed statement to yourself or your representative as soon as he is available to do so but pending his being so available we will arrange for a number of members of the public who have come forward as witnesses to the incident to contact yourself or your representative Inspector Meeley with a view to making...

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