McEvoy v an Garda Síochána Ombudsman Commission

• Jurisdiction: Ireland
• Judge: Mr. Justice McDermott
• Judgment Date: 16 March 2015
• Neutral Citation: [2015] IEHC 203
• Court: High Court
• Date: 16 March 2015

McEvoy v Garda Siochana Ombudsman Commission

JUDICIAL REVIEW

No Redaction Needed

BETWEEN

PADRAIC McEYOY

APPLICANT

AND

AN GARDA SÍOCHÁNA OMBUDSMAN COMMISSION

RESPONDENT

[2015] IEHC 203

[No. 120 J.R./2014]

THE HIGH COURT

Criminal – Multiple offences – Garda Síochána Act 2005 – Negligence in the conduct of the investigation – Discovery of documents.

Facts: The applicant sought a direction by way of notice of motion for discovery of certain documents. The respondent claimed that the discovery sought was not relevant or necessary for the resolution of the issues between the parties. The respondent further claimed that as a matter of public policy documentation generated prior to the determination of the admissibility of Complaint No. 2 was not the subject of a discovery order.

Mr. Justice McDermott held that the application for a direction by way of notice of motion for discovery of certain documents would be granted. The Court held that the respondent's assertion of a privilege in cases of public policy would be premature. The Court held that the documents sought by the applicant would be relevant to the issues in the case and therefore, discovery would be necessary for the fair hearing of the case.

1 1. The applicant is a garda currently attached to Ballyconnell Garda Station, County Cavan. In 2007 he was involved in the investigation of an assault upon Mrs. Mary Lynch by Mr. Gerry McGrath, which took place on 30 ^th April, 2007. Mr. McGrath was prosecuted, but while on bail committed two further serious offences, namely the assault and abduction of a child in Tipperary in October, 2007 and the murder of Sylvia Roche Kelly in Limerick in December, 2007.

2 2. In 2007/2008 Sergeant Maurice McCabe was stationed at Ballyconnell and made allegations concerning the handling of the investigation and prosecution of offences against Mr. McGrath. This led to the establishment of an internal garda investigation headed by Chief Superintendent McGinn. Mrs. Lynch contacted Chief Superintendent McGinn in the course of that inquiry, and her complaint was documented in a report to garda management at a time when Mrs. Lynch had not sought to pursue the matter with the respondent. The matter was first referred to the respondent by garda authorities, arising from the findings of the McGinn investigation and Mrs. Lynch's contact with Chief Superintendent McGinn's inquiry.

3 3. Correspondence in respect of this matter was received from Assistant Commissioner Kenny by the respondent under cover of letter dated 23 ^rd November, 2010. At this stage the respondent was already dealing with a complaint relating to the investigation of the assault on Mrs. Lynch in the context of an investigation commenced under s. 94 of the Garda Síochána Act 2005, under the direction of Assistant Commissioner Jennings, which was taken over by the respondent under s.98 of the Act in June, 2010 arising out of a separate complaint made by Mr. Roche Kelly (the husband of the late Sylvia Roche Kelly).

4 4. By letter dated 12 ^th April, 2011, the applicant was advised that an admissible complaint had been received from both Mr. Roche Kelly and Mrs. Lynch (Complaint No. 1). On 25 ^th October, 2011, the applicant was notified by the respondent that it had discontinued its investigation into this complaint in accordance with s. 93(1)(c) of the Act because it had failed to consider whether the time for admitting a complaint should be extended in accordance with section 84. It did not relate to matters occurring within six months of the making of the complaint and no decision had been made to extend the time. The applicant was informed that the respondent would take "no further action in relation to the complaint of Mrs. Lynch".

5 5. Complaint No. 1 related to negligence in the conduct of the investigation of the assault on Mrs. Lynch (including the detail of the PULSE record created), a failure to facilitate her attendance in court to give evidence and a failure to keep her updated in respect of the investigation and prosecution of the matter.

6 6. On 17 ^th May, 2012, the applicant was the subject of a caution from Superintendent Sean Farrell pursuant to Regulation 10 of the Garda Síochána (Discipline) Regulations 2007, relating to his involvement in the investigation of the assault on Mrs. Lynch.

7 7. Subsequently, on 14 ^th August, 2012, the applicant was informed that a report pursuant to s. 97 of the Act had been forwarded to the Assistant Commissioner, Human Resource Management, An Garda Síochána in respect of the complaint of Mr. Lorcan Roche Kelly. The respondent formed the view that there may have been a "less serious" breach of discipline and recommended that the procedure contained in Regulation 45 of the Garda Síochána (Discipline) Regulations 2007 be followed. By letter dated 3 ^rd January, 2013, the applicant was informed by the respondent that he had not been found to be in breach of Disciplinary Regulations by the member appointed by the Garda Commissioner to investigate the matter.

8 8. In October, 2012 Mrs. Lynch again contacted the respondent (initially by telephone) to inform it that information had been made available to her which, in her view, confirmed that she had been told untruths by members of An Garda Síochána about the course of the investigation and prosecution of Mr. McGrath, in respect of his assault upon her. A meeting took place between Mrs. Lynch and authorised officers of the respondent in which she disclosed that she had been informed by Sergeant Maurice McCabe that he had recorded a conversation in which he and the applicant discussed the applicant's involvement in the assault investigation. Sergeant McCabe told Mrs. Lynch that the applicant had informed him that he had discussed Mr. McGrath's release with an Inspector B., but that Inspector B. had lied to her by telling her that he was not in Monaghan Garda Station at that time. Mrs. Lynch completed a GSOC Form 1 of complaint, dated 9 ^th January, 2013 (Complaint No. 2).

9 9. The applicant was informed of Complaint No. 2 which had been formally made on 11 ^th January, on 2 ^nd December, 2013, and that the respondent had deemed that complaint admissible under s. 87 of the Act and that it should be investigated in accordance with section 95.

10 10. The information provided to the applicant concerning the commencement of this investigation states, inter alia:-

"In making this complaint, Mrs. Lynch states that in or about October, 2012 she obtained new information which was not known to her previously. As a result of this new information, Mrs. Lynch has now alleged that garda members attached to Bailieborough Garda Station lied to her to cover up mistakes they made in the investigation…"

According to Mrs. Lynch, Sergeant Maurice McCabe, who was stationed at Bailieborough Garda Station at the time, had recorded a conversation he had by telephone with Garda Padraic McEvoy and which he says contains evidence against Inspector B. and Garda McEvoy in relation to this complaint. Mrs. Lynch stated that she did not have a copy of the telephone recording and has only heard part of the recording which Sergeant McCabe played to her. As far as she is aware, Sergeant McCabe retains possession of the telephone recording concerned."

There then follows a recital of Mrs. Lynch's allegations as follows:-

2 "1. Inspector B. (now Superintendent) "lied" to Mrs. Lynch when he told her that he was not attached to Bailieborough Garda Station. Mrs. Lynch says she now knows that Inspector B. gave the order to release her assailant, Gerry McGrath, on the morning of her assault;

2 Superintendent C. (now Chief Superintendent) "lied" when he agreed with the statement made by Inspector B. (now Superintendent) to Mrs. Lynch and her husband in this regard at their home on 14 ^th January, 2008;

3 Superintendent C. (now Chief Superintendent) "lied" when he said that he could not contact Garda P. S.an for five days to find out why Garda P.S. phoned Mrs. Lynch on Saturday 5 January, 2008, to tell her not to attend court as the court case was not proceeding;

4 Garda Padraic McEvoy "lied" when he said that he did not know who gave the order to release Gerry McGrath. Mrs. Lynch now believes that it was Garda McEvoy who went to Inspector B.'s office (now Superintendent) to get J. Sheridan and Superintendent T.M. have failed to provide Mrs. Lynch with the response they promised her in relation to a list of 24 questions she gave to them when they visited her home in early September, 2012. Mrs. Lynch says that to date no one has contacted her in this regard; and

6 Mrs. Lynch is alleging that garda members then attached to Bailieborough Garda Station lied to her to cover up mistakes they made in the investigation they carried out into an assault on her in 2007 by a man named Gerry McGrath. Mrs. Lynch alleges that because her case was treated "so disgracefully, a more serious crime was committed" at a later time by Gerry McGrath."

11 11. By letter dated 20 ^th December, 2013, solicitors on behalf of the applicant wrote to Mr. William Hickey, Senior Investigation Officer to the respondent, requesting confirmation as to when the complaint made by Mrs. Lynch was deemed admissible by the respondent, when the Garda Commissioner was notified and an explanation of the delay in notifying the applicant. The letter also raised issues in respect of the "new information" which it was alleged may have been obtained illegally. It was contended that the complaint was inadmissible and could not meet the requirements of s. 87 of the Act. For that reason and because it was based on illegally obtained evidence, the respondent was requested to close the investigation or set out its reasons for deeming the complaint admissible under section 87.

The Challenge

12 12. Section 84 of the...