McGrath -v- Minister for Justice, Equality & Law Reform,  IESC 29 (2003)
|Party Name:||McGrath, Minister for Justice, Equality & Law Reform|
THE SUPREME COURTRecord No. 310/00
BETWEEN HUBERT PATRICK McGRATHRESPONDENT/PLAINTIFF
THE MINISTER FOR JUSTICE, IRELAND AND THE
Judgment of Murray, J. delivered on the 2nd day of May, 2003.
This is an appeal from the decision and judgment of the High Court delivered on the 9th day of November, 2000 in which the Plaintiff/Respondent (hereafter the Respondent) was awarded damages against the Defendants/Appellants (hereafter the Appellants) consequent upon a finding of the High Court that a suspension of the Respondent by the Garda Commissioner from duties as a member of the Garda Siochana had become, at a certain point of time, unlawful because the suspension had been negligently prolonged beyond a period that would have have been reasonable. The Respondent had been initially suspended from his duties as a member of the Garda Siochana pending a disciplinary enquiry on the 15th December, 1987. This suspension was followed by a series of events including various legal proceedings, which I refer to in more detail below, which culminated in the formal termination of his suspension on the 28th January, 1993. The learned High Court judge found that the Appellants were in breach of a duty owed to the Respondent to deal with all matters relating to a disciplinary enquiry concerning the Respondent in an expeditious manner. He held that if they had acted expeditiously his suspension would have been brought to an end at the latest November, 1988. They were negligent in not doing so. As a consequence he awarded the Respondent damages comprising £12,199.04 special damages representing his actual financial loss and £40,000 damages for "distress, anxiety and the general disruption of his enjoyment of life" during the suspension period subsequent to November, 1988.
The facts and circumstances preceding and leading up the present proceedings have a relatively long history. They include previous litigation between the Respondent and the Appellants in which the Respondent challenged, successfully, the procedures followed by the garda authorities for the purpose of holding a disciplinary enquiry concerning certain matters in which the conduct of the Respondent was impugned. These matters are referred to in the judgment of the learned High Court Judge and I summarise them as follows: -
In 1987 the Plaintiff was accused of criminal embezzlement, namely, that as a member of An Garda Siochana he had received monies paid to him but failed to account for those monies to his authorities. In this connection he was suspended from duty on the 15th December, 1987. He was charged with criminal offences arising from the aforesaid allegations and returned for trial to the Circuit Criminal Court. He was found not guilty by a jury in May, 1988. At all material times during the period of his suspension he was paid a suspension allowance which was equivalent to two thirds of his basic pay in lieu of pay.
After the criminal proceedings had concluded the Commissioner of An Garda Siochana initiated the holding of a disciplinary enquiry pursuant to the Garda Siochana (Disciplinary) Regulations1971. This enquiry was concerned with the alleged misconduct on the part of the Respondent which related to the matter in respect of which he had been acquitted by the jury. The Plaintiff successfully applied to the High Court for an order of prohibition prohibiting the holding of this enquiry. In a judgment dated the 11th September, 1989 Mr Justice Lynch made an order prohibiting the holding of an enquiry into certain alleged breaches of discipline on the grounds that it was not open to the enquiry to investigate charges of corruption or improper practice insofar as such charges constituted allegations of corruption or dishonesty in respect of which he had been acquitted by a verdict of the jury in the criminal proceedings. Lynch J. did however hold that the garda authorities were entitled to hold an enquiry into three charges dealing with the Applicant's failure to account for sums of money received in the course of his duty, provided that the breach of discipline alleged was confined to a charge of merely improper rather than corrupt practice. The High Court decision was appealed and subsequently affirmed by the Supreme Court on the 17th July, 1990.
At the conclusion of these particular proceedings the holding of an enquiry along the lines envisaged by the order of Mr Justice Lynch was proceeded with. However, a further application for prohibition by way of judicial review was successfully made by the Applicant to the High Court. The basis for this complaint was that the duly appointed investigating officer who was carrying out the investigation into the alleged breaches of conduct on the part of the Respondent availed of and relied on statements which had originally been taken in the course of the criminal investigation which led to the prosecution in the Circuit Court. Mr Justice Lardner held that "The decisions taken by the appointing officer and the Commissioner to proceed with the enquiry seem to have been taken when they had charges before them which were too wide and material which related to a far wider scope than merely improper practices than failure to account, so that a decision at each point was taken on material which was inappropriate and wrong." Having made the order for prohibition, Mr Justice Lardner indicated that "If it is decided to proceed anew, I think the safest thing [is] for an investigating officer to be appointed and conduct an investigation limited to the allegations of improper practice and [he] should take whatever decision he decides at the end of that and for the Commissioner then to make a fresh decision. Anything short of that would be liable to run into difficulties which may not be apparent today." This decision, was delivered on the 22nd February, 1991 and was not appealed.
The Garda Siochana (Discipline) Regulations 1989 came into force on the 1st June, 1989 replacing the 1971 Regulations which were revoked.
Subsequent to the decision of Mr Justice Lardner the Garda Authorities formally decided to discontinue the disciplinary proceedings which had been the subject of litigation before him and to institute a new disciplinary investigation. A new appointing officer and investigating officer were appointed and the matter proceeded in accordance with the 1989 regulations.
On the 31st July, 1991 the Respondent again initiated proceedings seeking orders of certiorari and prohibition by way of judicial review in respect of the newly initiated disciplinary investigation. In these proceedings the validity of the Plaintiffs suspension from the Garda Siochána pending the enquiry was challenged for the first time. By order dated 8th May, 1992 Mr Justice Francis Murphy refused the Respondent's application on all grounds and allowed the cause shown. I should add that the learned High Court judge erroneously referred to Mr Justice Murphy as having granted to the Plaintiff an order of prohibition but nothing turns on this since this court on appeal did grant such an order. The decision of Murphy J having been appealed to the Supreme Court, Finlay C.J., delivering the judgment of the court on the appeal, held that it would quite unfair for the Commissioner to be permitted "now in the light of the decision of this Court" to proceed with the existing disciplinary proceedings and moreover prohibited the institution of any further proceedings in any form in respect of the events asserting that the Plaintiff was in breach of the disciplinary code. This judgment was delivered on the 26th January, 1993.
Following that Supreme Court decision an order was made on 28th January, 1993 by the Garda authorities terminating the Plaintiff's suspension. On the 2nd April, 1993 the Respondent was paid the sum of £13,505.68 as being the amount which represented one third of his pay which had not been paid during the period of suspension.
The Respondents suspension from duty:
On the facts found by the High Court in these proceedings the Respondent was first suspended from duty on the 15th December, 1987 pending the determination of the criminal charges which had been brought against him. His suspension continued until 28th day of January, 1993 when it was terminated following the decision of the Supreme Court on 26th January, 1993. His suspension during that period consisted of a large number of suspension orders pursuant to the Garda Siochana (Discipline) Regulations 1971 and the Garda Siochana (Discipline) Regulations 1989, each of which was effective for a period of three months. For the purpose of these proceedings the suspensory periods were treated by the parties as one continuum. Subsequent to the termination of the criminal proceedings against the Respondent, the suspension orders were at all times made pending the completion of an investigation and/or enquiry pursuant to the aforesaid regulations. There is no issue in these proceedings concerning the power as such, of the relevant authorities to suspend the Respondent from duty pending the completion of such disciplinary proceedings the point being that the suspension became unlawful at a certain point (December, 1988) as found by the learned High Court Judge by virtue of a wrongful and negligent delay on the part of the Appellants...
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