McGowan v The Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 09 October 2019 |
| Neutral Citation | [2019] IECA 244 |
| Date | 09 October 2019 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [2017 No. 597] [2018 No. 50] |
[2019] IECA 244
THE COURT OF APPEAL
The President
Peart J.
Kennedy J.
[2017 No. 597]
[2018 No. 50]
AND
Board of Inquiry – Order of prohibition – Statement of grounds – Applicant seeking to challenge the decision of the respondent to establish a Board of Inquiry – Whether there was any obligation to provide reasons as to why the Board of Inquiry was being established
Facts: In the High Court, the applicant, Ms McGowan, sought and was granted leave to challenge the decision of the first respondent, the Garda Commissioner, to establish a Board of Inquiry, an order of prohibition restraining the respondents from taking any further steps with the Inquiry, along with other reliefs. The second, third and fourth respondents, Mr Fitzgibbon BL, Chief Superintendent Clerkin and Superintendent Mann, constituted the Board. The reliefs sought by the applicant were refused by the High Court (White J) in a judgment delivered on 16th November 2017. The applicant appealed the High Court’s refusal of those reliefs. In the course of the judicial review proceedings before the High Court, the applicant sought and was granted leave to amend her statement of grounds. The respondents appealed the decision to permit an extension of the statement of grounds.
Held by the Court of Appeal (Birmingham P) that, having acknowledged that it could be said that all of the allegations made against the complainant, criminal charges and alleged breaches of discipline alike, all arose out of that same failure to conduct an investigation, it did not follow that these concerned the same issues simply because they shared a common place of origin. While Birmingham P agreed with the High Court Judge that any Garda who is the subject of allegations of breach of discipline is entitled to a fair inquiry, part of which involves being given notice of the allegations being made, Birmingham P did not believe that there was any obligation to provide reasons as to why the Board of Inquiry was being established. Birmingham P could see how the view might be taken that the validity of the decision was already under challenge and that allowing additional grounds to be argued did not represent any radical or fundamental departure from the underlying claim. It seemed to Birmingham P that this was an area where a considerable margin of appreciation should be afforded a trial judge. Birmingham P had not been persuaded that the decision to permit the amendment was an impermissible one.
Birmingham P held that the approach of the High Court would be upheld and that the appeal and cross-appeal would be dismissed.
Appeal and cross-appeal dismissed.
This an appeal in judicial review proceedings concerning a member of An Garda Síochána, Ms. Catherine McGowan, who faces disciplinary proceedings pursuant to the Garda Síochána Disciplinary Code. For the sake of convenience, I shall be refer to Ms. McGowan as the applicant throughout this judgment. Mr. Michael Fitzgibbon BL, Chief Superintendent Francis Clerkin, and Superintendent Dermot Mann constitute a Board of Inquiry established to determine whether the applicant had committed certain breaches of discipline alleged. I will be collectively referring to these individuals, and to the Commissioner of An Garda Síochána, as the respondents.
In the High Court, the applicant sought and was granted leave to challenge the decision of the first named respondent, the Garda Commissioner, to establish a Board of Inquiry, an order of prohibition restraining the respondents from taking any further steps with the Inquiry, along with other reliefs. The reliefs sought by the applicant were refused by the High Court (White J) in a judgment delivered on 16th November 2017. The applicant has now appealed the High Court's refusal of those reliefs. In the course of the judicial review proceedings before the High Court, the applicant sought and was granted leave to amend her statement of grounds. The respondents have appealed the decision to permit an extension of the statement of grounds.
The background to the case is set out in some detail in the course of the judgment of 16th November 2017 and I gratefully draw upon it. What has now become a lengthy saga began in 2005, when Ms. MK made a complaint to the Roman Catholic Archdiocese of Dublin that she had been sexually abused in the 1980s by a priest of the Archdiocese. An Garda Síochána was notified of the making of the complaint and the matter was passed to Bray Garda Station for investigation. The applicant, a member of An Garda Síochána then stationed in Bray Garda Station, was assigned the task of investigating the complaint. It is alleged that she failed to properly investigate same.
On 14th July 2011, Chief Superintendent Aidan Glacken, was appointed pursuant to Regulation 23 of the Garda Síochána (Discipline) Regulations 2007, as amended, to investigate certain alleged breaches of discipline. On 19th July 2012, the applicant was put on notice that it appeared there may have been a breach of discipline and that Chief Superintendent Glacken had been appointed to investigate. Brief details of the misconduct alleged were set out in an accompanying notice.
A criminal investigation also commenced and the applicant was charged with certain offences on 10th May 2013. The matter proceeded by way of indictment and the applicant's trial commenced in the Circuit Criminal Court in Dublin on 23rd February 2015.
The Particulars of Offence which appeared on the indictment were as follows:
“Count 1: Catherine McGowan, within the State, on a date unknown between the 15th day of January 2009 and the 21st June 2011 (both dates inclusive) made a False Instrument, being ostensibly a photocopy of a letter dated the 14th of January 2009 from the Office of the Director of Public Prosecutions, issued by Henry Matthews, which purported to have been made in circumstances in which it was not in fact made, intending that it be used to induce officers of An Garda Síochána to accept it as genuine, and by reason of so accepting it, to act to their prejudice in connection with the performance of their duty.
Count 2: Catherine McGowan, on the 21st day of June 2011, in the County of Wicklow, used by showing to an officer of An Garda Síochána an Instrument was false and which she knew and believed to be a False Instrument, ostensibly a photocopy of a letter dated the 14th of January 2009, Reference Number 2007/1972 from the Office of the Director of Public Prosecutions to James Boyle, Solicitor, and appearing to be issued by Henry Matthews, purporting to have been made in circumstances in which it was not in fact made with the intention of enduring an officer of An Garda Síochána to accept it as genuine, and by reason of so accepting it, to act to its prejudice in connection with the performance of his duty.
Count 3: Catherine McGowan, at a time unknown, on the 21st or 22nd day of June 2011 within the State, used, by causing to be delivered to Gardaí at Garda Offices, Harcourt Square, Harcourt Street, an Instrument which was and which she knew or believed to be a False Instrument, being ostensibly a photocopy of a letter dated the 14th of January, from the Office of the Director of Public Prosecutions to James Boyle, Solicitor, under Sender's Reference 2007/1973 and appearing to be issued by Henry Matthews which purported to have been made in circumstances in which it was not in fact made, with the intention of inducing officers of An Garda Síochána to accept it as genuine, and by reasons of so accepting it, to act to their prejudice in connection with the performance of their duty.”
On 12th March 2015, the jury returned “not guilty” verdicts on all charges before the Court. This was not, however, to be the end of the matter. Within An Garda Síochána, the view was taken that there were outstanding disciplinary issues arising from the report of Chief Superintendent Glacken that had not been the subject of the criminal trial. On 8th June 2015, a Board of Inquiry was established pursuant to Regulation 25 of the Garda Síochána (Discipline) Regulations Act 2007, as amended, to determine whether the applicant had committed such a breach, or breaches, and if so, recommend to the Commissioner of An Garda Síochána an appropriate course of disciplinary action that should be taken.
The particulars of the serious breaches of discipline alleged were as follows:
“(i) Neglect of duty: that is to say that you, Detective Garda Catherine McGowan, 00671H, Bray Garda Station, in your capacity as a Member of An Garda Síochána, without good and sufficient cause, failed to properly investigate an allegation of defilement of a child between the ages of 15 and 17 years which was made by MK and reported to you in February 2007, which was your duty to do.
The said neglect of duty is a breach of discipline within the meaning of Regulation 5 of the Garda Síochána (Discipline) Regulations 2007, and is described at Reference No. 4 in the Schedule to the said Regulations.
(ii) Neglect of duty, that is to say, that you, Detective Garda Catherine McGowan, 00671H, Bray Garda station, in your capacity as a member of An Garda Síochána, without good and sufficient cause, failed to submit a complete investigation file in respect of an allegation of defilement of a child aged between 15 and 17 years which was made by MK and reported to you in February 2007, and in accordance with Garda instructions, in order to seek directions from the law officers, and in accordance with standard investigative practices which was your duty to do.
The said neglect of duty is a breach of discipline within the meaning of...
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