McEvoy v Garda Síochána Ombudsman Commission

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 26 May 2016
• Neutral Citation: [2016] IEHC 269
• Court: High Court
• Docket Number: Record No. 2014/120JR
• Date: 26 May 2016

[2016] IEHC 269

THE HIGH COURT

Barrett J.

Record No. 2014/120JR

BETWEEN:

PÁDRAIG McEVOY

APPLICANT

– AND –

GARDA SÍOCHÁNA OMBUDSMAN COMMISSION

RESPONDENT

Professional Ethics & Conduct – The Garda Siochana Act 2005 – Reg. 10 of the Garda Siochana (Discipline) Regulations 2007 – Initiation of investigation – Certiorari – Public interest – Res judicata – Issue estoppes – Fair procedures

Facts: The applicant sought an order of certiorari for quashing the decision of the respondent for admitting a complaint made against the applicant in relation to the handling of an investigation into the assault on the complainant and an order for restraining the respondent from taking further steps in the investigation of the said complaint. The applicant contended that since the first complaint against the applicant had been dismissed on account of delay, the admission of the complaint the second time would be a contravention of principles of res judicata and autrefois acquit. The respondent submitted that since the second complaint filed by the complainant represented new and substantial facts, it was necessary to investigate those matters.

Mr. Justice Max Barrett refused to grant the desired reliefs to the applicant. The Court held that a premature end to the disciplinary proceedings against the members of An Garda Siochana, who were entrusted the responsibility of public safety, would undermine the greater public interest and small delay in procedures should not hamper the investigations carried out against the concerned members. The Court observed that the doctrine of res judicata was applicable in cases where an issued had attained finality, which was not the case in the present proceedings. The issues under investigation in both the first and second complaints were different and there had been no determination of the first issue, namely, a flawed criminal investigation and thus, the doctrine of estoppels would be of no avail to the applicant. The Court held that the subject matter of the second complaint being conspiracy to conceal the fact of flawed criminal investigation could have bearing upon the first issue, yet both issues were different. The Court noted that there was no prejudice or unfairness caused to the applicant while the first complaint had not been proceeded with and thus, the contention of the applicant that there was a breach of fair procedures could not be relied upon.

JUDGMENT of Mr Justice Max Barrett delivered on 26th May, 2016.

Part 1

Overview

1 Garda McEvoy is a member of An Garda Síochána. In these proceedings he seeks, amongst other matters, to prohibit the investigation by the Garda Síochána Ombudsman Commission (GSOC) of a complaint made against him by Ms Mary Lynch. Ms Lynch previously made a complaint concerning the handling of the investigation and the prosecution of a Mr McGrath after he committed an assault upon her. However, for procedural reasons, this complaint was not investigated by GSOC. The subsequent provision to Ms Lynch by Sergeant Maurice McCabe, a Garda whistle-blower, of certain information, has led Ms Lynch to return to GSOC with a fresh complaint. This time she alleges that there was a cover-up within An Garda Síochána regarding the investigation of Mr McGrath's assault upon her. Garda McEvoy contends that this second complaint is in truth but the first complaint in a different guise and that it cannot now be re-investigated. GSOC contends that the new complaint is different in substance to the first complaint, that it is based on fresh information, and that no determination on the substance of the first complaint was ever made. Consequently, the investigation of the second complaint, GSOC maintains, ought not to be prohibited.

Part 2

Factual Background to the Proceedings

2 Garda McEvoy was attached to Bailieboro Garda station at the time of the arrest and prosecution of Mr McGrath for an assault on Ms Lynch on 30th April 2007. While on bail in respect of the assault, Mr McGrath went on to commit two further serious crimes, namely the assault and abduction of a minor in Tipperary in October 2007 and, tragically, the murder of Mrs Sylvia Roche Kelly in Limerick in December 2007. The complaints and related events that followed are best described by way of summary chronology:

12th April, 2011. Garda McEvoy is formally notified by letter that GSOC has received two complaints, one from Ms Lynch and one from Mr Lorcan Roche Kelly (the husband of Mrs Sylvia Roche Kelly) and that the complaints have been deemed admissible in accordance with the Garda Síochána Act 2005. The letter encloses two notices in accordance with s.95 of the Act of 2005. The two complaints made are in relation to Garda McEvoy's involvement in the investigation of the assault on Ms Lynch on 30th April, 2007.

25th October, 2011. Garda McEvoy is notified by GSOC that it had discontinued the investigation into Ms Lynch's complaint. The reason given for the discontinuance of the investigation is that GSOC had failed to give consideration as to whether the time for admitting a complaint should be extended in accordance with s.84 of the Act of 2005. GSOC states in the letter that it 'shall take no further action in relation to the complaint of Ms Lynch.'

17th May, 2012. Garda McEvoy is the subject of a caution from Superintendent Seán Farrell pursuant to reg.10 of the Garda Síochána (Discipline) Regulations 2007 arising out of his involvement in the investigation of the assault on Ms Lynch.

14th August, 2012. The complaint of Mr Roche Kelly continued to be investigated by GSOC. On 14th August, 2012, Garda McEvoy is informed that a report pursuant to s.97 of the Act of 2005 has been forwarded to the Assistant Garda Commissioner with responsibility for HR Management. Garda McEvoy is advised that GSOC has formed the view that there may have been a 'less serious' breach of discipline and has recommended that the procedure contained in reg.45 of the Garda Síochána (Discipline) Regulations 2007 be followed.

October 2012. GSOC is contacted afresh by Ms Lynch. She tells GSOC staff that she has new information indicating that she was lied to by Garda members during the investigation and prosecution of Mr McGrath. In a meeting with GSOC staff, she tells them that she was informed by Sergeant McCabe, a Garda whistle-blower, that he has a recording of Garda McEvoy in which Garda McEvoy states that he had discussed Mr McGrath's release with a named garda inspector, even though that Inspector Cunningham allegedly told Ms Lynch that he was not in Monaghan Station at the time.

In passing, the court notes that there was suggestion at the hearings that Ms Lynch had somehow been coached by GSOC staff and/or that her complaint as made in January 2013 had somehow been crafted or "shoe-horned" by GSOC so that it was a new complaint of conspiracy and not a re-opening of her old complaint. There is no evidence of any nature before the court which suggests that any member of GSOC has behaved improperly in any way. Specifically, the court considers that such meetings as took place between GSOC and Ms Lynch around October 2012 involved a proper engagement between GSOC staff and a woman who had contacted GSOC and indicated that she was minded to make a serious complaint concerning one or more members of An Garda Síochána.

3rd January, 2013. By letter dated 3rd January, Garda McEvoy is informed by GSOC that that he has been found not to be in breach of the Regulations aforesaid by the member of An Garda Síochána appointed by the Garda Commissioner to investigate same.

9th January, 2013. Following her approach to GSOC the previous October, Ms Lynch makes a formal written complaint concerning the cover-up that she alleges to have occurred within An Garda Síochána regarding the investigation of her assault.

11th January, 2013. The Garda Commissioner is notified of Ms Lynch's fresh complaint.

Jan-Sept 2013. Following receipt, the fresh complaint is considered for admissibility for a strikingly long period between January and September 2013. GSOC maintains that careful deliberation took place during this period; these considerations, per GSOC, were complex because it needed to identify the parameters of the complaint and when the new information became available to Ms Lynch.

10th September, 2013. GSOC records an admissibility determination.

8th November, 2013. The Garda Commissioner is notified of an admissible complaint by letter of this date.

28th November 2013. GSOC records a second admissibility determination.

29th November, 2013. Garda McEvoy is notified by a letter of the 29th that GSOC has deemed a complaint made on 11th January, 2013 admissible under s.87 of the Act of 2005 and has decided that the complaint should be investigated in accordance with s.95 of that Act. The existence of the new information is made clear, the recorded conversation being referred to in a manner which makes clear that it is the new evidence.

3. The newly admitted complaint, so far as it concerns Garda McEvoy, appears to be that he lied when he said that he did not know who gave the order to release Mr McGrath, and that this lie was part of a cover-up of mistakes made in the investigation carried out into the assault committed upon Ms Lynch in 2007. GSOC maintains that this allegation of lying and cover-up is a new allegation concerning Garda McEvoy which has not previously been investigated.

Part 3

Reliefs Sought

4 Garda McEvoy comes to court seeking the following principal reliefs:

(1) an order restraining GSOC from any further steps in the investigation of Garda McEvoy;

(2) an order of certiorari quashing the decision of GSOC deeming a complaint made against Garda McEvoy dated 11th January, 2013 (the 'Complaint') admissible in accordance with s.87 of the Garda Síochána Act 2005, which decision was...