McCormack v Garda Síochána Complaints Board

Court:High Court
Docket Number:[1995 No. 338 J.R.]
Judge:Mr.Justice Costello.
Judgment Date:28 Jan 1997
Jurisdiction:Ireland
Neutral Citation:[1997] IEHC 200

[1997] IEHC 200

THE HIGH COURT

1995 - No.338JR
MCCORMACK v. GARDA SIOCHANA COMPLAINTS BOARD
Judicial Review

BETWEEN

JOHN McCORMACK
APPLICANT

AND

THE GARDA SIOCHANA COMPLAINTS BOARD AND THE COMMISSIONER OFAN GARDA SIOCHANA
RESPONDENT

AND

EDWARD McHALE
NOTICE PARTY

Citations:

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S3

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S5

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(1)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(5)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S7(3)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 SCHED 4

KEEGAN, STATE V STARDUST TRIBUNAL 1986 IR 642

PADFIELD V MIN FOR AGRICULTURE 1968 AC 997

R V GAMING BOARD FOR GREAT BRITAIN 1970 2 QB 417

EAST DONEGAL CO-OP V AG 1970 IR 317

CREEDON V CRIMINAL INJURIES COMPENSATION TRIBUNAL 1988 IR 51

P & F SHARPE V DUBLIN CITY MANAGER 1989 IR 701, 1989 ILRM 565

O'KEEFFE V BORD PLEANALA 1993 2 IR 39

GARDA COMPLAINTS ACT 1986 S6(3)(a)

Synopsis:

Judicial Review

Certiorari proceedings - challenge to decision of Board to take no further action in relation to complaint made against garda - whether decision irrational - whether duty on Board to give reasons for decision - whether applicants entitled to amend statement grounding application for judicial review - Held: Decision not irrational - no duty to give reasons - amendment allowed (High Court: Costello P. - 28/01/1997) - [1997] 2 ILRM 321

|McCormack v. Garda Siochana Complaints Board & Ors.|

W:G7

1

Mr.Justice Costello.Delivered the 28th day of January 1997

INTRODUCTION
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In December 1994 the applicant was convicted of robbery, burglary and unlawful taking of vehicles and was sentenced to 7 years, 5 years and 2 years respectively in respect of these offenses. By notice of appeal of 15 February1995 he appealed these convictions and sentences. whilst in Wheatfield prison (where he still is) he was visited by Garda Edward McHale, the notice party in these proceedings. The applicant claims that Garda McHale was the principal witness for the prosecution at his trial in that the principal evidence against him consisted of three written statements which Garda McHale alleged he had made to him and which he witnessed. These proceedings arise out of allegations of wrongdoing on the part of Garda McHale in connection with the visits paid by him to the applicant. Whilst in prison the allegations became the subject of a complaint by the applicant to the Garda Siochana Complaints Board. They were investigated and by letter of the 6 October 1995 the decision of the Board was communicated to the applicant. This was to the effect that the Board had considered a report from the investigating officer and that it "was of the opinion that neither an offence nor a breach of discipline on the part of the member complained of had been disclosed" and accordingly the Board "will take nofurther action in the matter". The applicant then instituted these proceedings for judicial review in which he claims an order of certiorari quashing the Board's decision and alternatively relief by way of mandamus. Before outlining the facts in greater detail it will, I think, be helpful if firstly I summarise the Board's functions under the Garda Siochana (Complaints) Act, 1986.

THE GARDA SIOCHANA (COMPLAINTS) ACT, 1986.
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The Board was established by virtue of section 3 of the Act. The Act empowers a member of the public who is directly affected by any conduct of a member of the Garda Siochana and who wishes to have the complaint concerning that conduct considered by the Board to make a compliant, inter alia, to a Garda Station. There is a chief executive attached to the Board and when the complaint is made to a Garda station (as happened here) the member in charge is required to notify the chief executive and the Commissioner of the Garda Siochana of the complaint and send to each a copy of it. On receipt ofa complaint the chief executive is required to consider "whether the complaint is admissible" and certain statutory conditions must be satisfied before he can so decide. These include a requirement that he consider whether the conduct alleged in the complaint "would constitute an offence or be conduct specified in the Fourth Schedule to this Act". If the chief executive decides that the complaint is admissible (as happened here) he is required so to notify the complainant and the Commissioner and send to the Commissioner a copy of the complaint which had been sent to the Board.The Commissioner is then required to notify the member that a complaint has been made against him by a specified person (section4).

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If the Commissioner considers that the complaint is suitable for informal resolution he may so inform the Board (section 5). If he does not, then he appoints an "investigating officer", that is a person who is a member of the Garda Siochana not below the rank of superintendent (or in certaincircumstances not below the rank of inspector) "to investigate an admissible complaint". The investigating officer is required to complete his investigation as soon as may be and to report in writing to the chief executive. The Board is required to supervise generally the investigation of complaints and may give such directions to an investigating officer as appears necessary or expedient. The chief executive may request the furnishing of supplementary reports. The chief executive is required to furnish to the Board all reports received from the investigating officer together with his comments in writing on them and a recommendation by him of the action (if any) that might be appropriately taken by the Board (section 6).

5

If after considering the report or reports on an investigating officer and the comments and recommendations of the chief executive

"the Board is of the opinion that the complaint concerned is admissible and that the conduct alleged in the complaint may constitute an offence by the member concerned, it shall refer the matter to the Director of Public Prosecutions (section 7 (1))."

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The Board however, has a further power. The Act provides for the establishment of Tribunals to investigate complaints relating to breaches of discipline (as distinct from breaches of the criminal law) and so;

"if the Board is of the opinion that a breach of discipline on the part of the member concerned... may be disclosed, it shall refer the matter to a tribunal" (section 7 (5)).

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The Act also makes provision for another contingency. Section 7(3)reads;

"If the Board is of the opinion that neither an offence nor a breach of discipline on the part of the member is disclosed or that the complaint is otherwise not admissible, it shall, as soon as may be, notify the Commissioner, the complainant and the member concerned and shall take no further action in the matter".

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This is what happened in this case. It is this opinion and the Board's decision to take no further action in the matter of the complaint that is the basis for these proceedings.

THE FACTS
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The relevant facts may be summarised as follows;

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(1) As already pointed out the applicant was convicted of three offenses in December 1994 in the Dublin Circuit Court. He claims that the principal evidence against him were three statements which he made to Garda McHale. His notice of appeal disputes the validity of his detention at the time the statements were obtained and claims that they were "obtained by duress, threat and inducement by Garda Eddie McHale". The notice of appeal exhibited in his solicitor's affidavit is dated the 15 February 1995.

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(2) In an affidavit sworn on his behalf by his solicitor it is said that the applicant informed his solicitor that on or about the 14 February 1995 he was notified that a man wanted to see him called "Paddy Maughan", that he was taken to the visiting area, that the person calling himself "Paddy Maughan" was in fact Garda McHale, that the applicant become very annoyed and told Garda McHale that he did not wish to talk to him and that he had no right to visit him in prison, that Garda McHale told himthat he would be well advised to withdraw his appeal, that if he persisted in it the prison sentence might be increased significantly, that Garda McHale told the applicant that he had been reprimanded by his authorities in relation to certain aspects of the investigation which gave rise to the prosecution. At this point, the applicant stated he informed his solicitor, Garda McHale was identified by one of the prison officers and he immediately left the prison.

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(3) The applicant also informed his solicitor that he complained about the conduct of Garda McHale to the prison authorities and that he was interviewed about it.

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(4) On the 24 March 1995 the applicants solicitor wrote to the Superintendent of the Sligo Garda Station a formal letter of complaint. He was forwarded an official form of complaint which he completed and returned to the Superintendent. By letter of the 10 April 1995 he wasinformedby the chief executive of the Board that the complaint was admissible and that a request had been made for the appointment of an investigating officer. By letter of the 6 October 1995 the applicant was informed of the result of the investigation and that the Board was of the opinion that neither an offence nor a breach of discipline had been disclosed and that no further action in relation to the compliant would betaken.

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(5) It is agreed that the allegations made against Garda McHale were allegations of conduct which amounted to breach of discipline as provided for in the Fourth Schedule to the 1986 Act and also constituted a criminal offence, namely an attempt to pervert the course ofjustice.

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(6) By letter of the 30 November 1995 the applicants solicitors wrote to the Chairman of the Board requesting him to give the reasons for the Boards decision. This was replied to by letter of the...

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