McGrath v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judgment Date: 11 September 1989
• Date: 11 September 1989
• Docket Number: [1989 No. 91 J.R.]
• Court: High Court

High Court

[1989 No. 91 J.R.]

McGrath v. Commissioner of the Garda Síochána

Hubert McGrath

Applicant

and

The Commissioner of the An Garda Síochána

Respondent

Cases mentioned in this report:l

Keady v. Commissioner of the Garda Síochána (Unreported, High Court,Costello J., 1st December, 1988).

The State (Murray) v. McRann [1979] I.R. 133; (1976) 112 I.L.T.R. 33.

Deaton v. The Attorney General [1963] I.R. 170; (1962) 98 I.L.T.R. 99.

Garda Síochána - Disciplinary inquiry - Double jeopardy - Garda charged with criminal offences -Charges tried before judge and jury - Garda acquitted of all charges - Garda then charged withbreaches of garda discipline arising from same events - "Conduct prejudicial to discipline andlikely to bring discredit on the Force" - Whether being acquitted by criminal court was likely to bringdiscredit on Force - "Corrupt or improper practice" - Whether Garda Commissioner entitled tore-open matters decided by criminal court before a domestic disciplinary tribunal - Garda Síochána(Discipline) Regulations, 1971 (S.I. No. 316), regs. 6, 9, 10, 16.

Practice - Issue - Res judicata - Issue estoppel - Double jeopardy - Garda acquitted of criminal charges- Commissioner seeking to hold disciplinary enquiry into alleged breaches of discipline arising fromsome events - Whether disciplinary enquiry entitled to re-open matters decided by criminal courts.

Judicial Review.

The facts have been summarised in the headnote and appear in the judgmentof Lynch J., post. On the 13th March, 1989, the applicant applied to the High Court(Barrington J.) and was granted leave to apply by way of judicial review for anorder prohibiting the respondent from holding an inquiry into alleged breachesof discipline by the applicant, which inquiry was convened by virtue of reg. 14 (2)of the Garda Síochána (Discipline) Regulations, 1971. The applicant's application,by notice of motion dated the 22nd March, 1989, was heard by the High Court(Lynch J.) on the 10th July, 1989.

Regulation 6 of the Garda Síochána (Discipline) Regulations, 1971, provides that acts or omissionsset out in the Schedule to the Regulations shall be breaches of discipline. Two breaches setout in the Schedule are "conduct prejudicial to discipline or likely to bring discredit on the Force"and "corrupt or improper practice, that is to say, misappropriation or failure to account for anymoney or property received by a member in the course of duty . . ." By reg. 9 as soon as practicableafter an officer has been appointed to investigate a breach of discipline, he shall inform in writingthe member concerned that it appears that the member may have been in breach of discipline andthat the matter is being investigated by him. Regulation 10 provides that the investigating officershall submit to the officer who appointed him to carry out the investigation (the appointing officer)a written report on the matter; the appointing officer, if he decides to continue the proceedings,must then without avoidable delay cause to be entered on a discipline form "such particulars of thebreach of discipline alleged as will leave the member concerned in no doubt as to the precisenature of it", and send two copies of the form duly completed to the member concerned. By reg.13, after the completion of those preliminary procedures, all relevant documents are to beforwarded by the appointing officer to the Garda Commissioner who (unless he decides notto continue the proceedings) shall then cause an inquiry to be held into the breach of disciplinealleged.

The applicant, a member of the Garda Síochána, was charged before the District Court withembezzlement of three sums of money received by him by virtue of his employment, contrary to s.17, sub-s. 2 (b) of the Larceny Act, 1916. The charges related to payments made to him in dischargeof court orders imposing fines; the orders made provision for imprisonment in default of payment.The applicant admitted that he had not issued official receipts for any of the payments made tohim. As a result, the orders had been returned to the District Court as unexecuted and the personswho had paid their fines remained in peril of being imprisoned on foot of those orders.

The applicant was returned for trial before the Circuit Court and was...