McHugh v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: FINLAY C.J.
• Judgment Date: 01 January 1987
• Neutral Citation: 1986 WJSC-SC 1187
• Court: Supreme Court
• Docket Number: [1984 No. 322]
• Date: 01 January 1987

1986 WJSC-SC 1187

THE SUPREME COURT

Finlay C.J.

Walsh J.

Henchy J.

Griffin J.

McCarthy

322/84

MCHUGH v. COMMISSIONER GARDA SIOCHANA

BETWEEN

OISIN McHUGH

Plaintiff/

Appellant

and

THE COMMISSIONER OF THE GARDA SIOCHANA, P. McLOUGHLIN;IRELAND; AND THE ATTORNEY GENERAL

Defendants/

Respondents

Citations:

BYRNE V IRELAND 1972 IR 241

GARDA SIOCHANA (DISCIPLINE) REGS 1971 SI 316/1971 ART 8.2

GARDA SIOCHANA (DISCIPLINE) REGS 1971 SI 316/1971 ART 11

GARVEY V IRELAND 1981 IR 75, 1979 ILRM 266, 113 ILTR 61

MCHUGH V COMMISSIONER OF GARDA SIOCHANA 1985 ILRM 606

Synopsis:

NATURAL JUSTICE

Fair procedures

Office holder - Dismissal - Garda Siochana - Suspension - Statutory procedure - Decision of Costello J. (9/11/84) affirmed - ~See~ Garda Siochana, discipline - (322/84 - Supreme Court - 8/7/86) - [1986] IR 228

|McHugh v. Commissioner of Garda Siochana|

EMPLOYMENT

Termination

Natural justice - Garda Siochana - Suspension - Dismissal - Statutory procedure - Decision of Costello J. (9/11/84) affirmed - See Garda Siochana, discipline - (322/84 - Supreme Court - 8/7/86) - [1986] IR 228

|McHugh v. Commissioner of Garda Siochana|

DAMAGES

Entitlement

Inquiry - Invalidity - Expenses of party concerned - Garda charged with act of indiscipline - Garda incurring expenses in attending inquiry to defend charge - Inquiry invalid - Garda, as plaintiff, instituting action to restrain continuance of new investigation - Claim to recoupment of inquiry expenses as damages - Held that State obliged to respect plaintiff's property rights - Held that State bound to recoup plaintiff amount of expenses - See Garda Siochana, discipline - (322/84 - Supreme Court - 8/7/86) - [1986] IR 228

|McHugh v. Commissioner of Garda Siochana|

GARDA SIOCHANA

Discipline

Enforcement - Procedure - Natural justice - Suspension - Statutory procedures - Fair procedures - Delay - Plaintiff garda accused by senior officer of assault on senior officer - Plaintiff accusing senior officer of assault - Preliminary investigation ordered and report made by investigator - Sworn inquiry directed by defendant commissioner on 16th November 1978 into responsibility of plaintiff for incident - No investigation made in regard to responsibility of senior officer for incident - As result of inquiry defendant commissioner purported to dismiss plaintiff from the force in February 1979 - Defendant commissioner not validly appointed as commissioner until June 1979 - Dismissal of plaintiff and sworn inquiry invalid by reason of invalidity of defendant commissioner's appointment prior to June 1979 - Continued suspension of plaintiff by defendant commissioner since June 1979 - Renewed investigation into incident ordered in August 1980 - Plaintiff seeking to restrain continuance of renewed investigation - Held that there was no obligation to inform the plaintiff, prior to his suspension, of the reasons for the suspension - Held that the fact that the plaintiff had not been informed of the contents of the report made after the preliminary investigation did not constitute a breach of the requirements of fair procedures - Held that the absence of an investigation into the responsibility of the senior officer for the incident did not constitute a breach of the requirements of fair procedures - Decision of Costello J. (9/11/84) affirmed - Held that, as the State was obliged to respect the plaintiff's property rights, the second defendant (Ireland) must recoup the plaintiff the sum of the costs he incurred in appearing at the invalid inquiry - Garda Siochana (Discipline) Regulations, 1971, articles 8, 11 - Constitution of - [1986] IR 228

1 JUDGMENT delivered on the 8th day of July 1986by FINLAY C.J.

2 This is an appeal by the Plaintiff against the Order of the High Court made by Costello J. on the 9th day of November 1984, dismissing his action against the Defendants.

3 The Plaintiff is a member of the Garda Siochana. On the 21st August 1978, he was involved in an incident at Clonmel Garda Station whilst on duty, in which it was alleged by his superior officer, Supt. J. F. Murray, that the Plaintiff assaulted him and in which he (the Plaintiff) alleged that Supt. J. F. Murray had assaulted him.

4 On the 23rd August 1978 the first-named Defendant purported to suspend the Plaintiff from duty and continued to purport so to do at regular intervals between that time and June 1979. In June of 1979 the first-named Defendant again suspended the Plaintiff from duty and he has been suspended by successors to the first-named Defendant as Commissioners of An Garda Siochana since that time.

5 Chief Supt. Kennedy, who was the appointing officer for the purpose of the Garda Siochana (Discipline) Regulations 1971, requested Chief Supt. J. M. Doyle to carry out an investigation of the incident and to report to him in order to permit him to reach a decision as to whether criminal proceedings in the courts should be instituted against the Plaintiff. Chief Supt. Doyle carried out that investigation and inter aliainterviewed the Plaintiff who made a statement concerning the incident and in reporting to Chief Supt. Kennedy, that statement was included in the file. Chief Supt. Kennedy submitted that file to the then StateSolicitorfor Tipperary and received his advice concerning it.

6 Chief Supt. Kennedy then appointed Chief Supt. Doyle as an Investigating Officer pursuant to Article 8.2 of the 1971 Regulations, to carry out an investigation of the matter.

7 No investigation with regard to the conduct of Supt. Murray was initiated under the Regulations of 1971 or otherwise.

8 Chief Supt. Doyle carried out the investigation in accordance with the provisions of the 1971 Regulations and reported upon it to the Appointing Officer, Chief Supt. Kennedy.

9 Upon receipt of that report, Chief Supt. Kennedy decided to continue the proceedings under the Regulations and caused to be filled out a discipline form which, together with the other documents referred to in Article 11 of the 1971 Regulations, were duly served on the Plaintiff. After the appropriate time, Chief Supt. Kennedy forwarded to the first-named Defendant all the documents in his possession relatingto the breach of discipline alleged.

10 On the 16th November 1978, the first-named Defendant purported as Commissioner to direct the holding of a sworn inquiry into the allegations of breach of discipline against the Plaintiff and such an inquiry was had in January 1979. In February 1979 the first-named Defendant purported to confirm the decision and to impose a penalty of dismissal from the force on the Plaintiff.

11 On the 19th January 1978, the Government had purported to dismiss from the position of Commissioner of the Garda Siochana Edmund P. Garvey, and had purported to appoint in lieu of him the first-named Defendant. By a decision of the High Court (McWilliam J.) delivered on the 31st October 1978, in proceedings brought by Mr. Garvey against Ireland, it was held that his dismissal was invalid and of no effect. This decision was affirmed on appeal by this Court on the 9th March 1979.

12 As a result of these decisions it was concededprior to the trial of this action in the High Court on behalf of the Defendants that the purported suspensions of the Plaintiff made prior to June of 1979 by the first-named Defendant were null and void and of no effect. It was secondly conceded that the purported appointment of a sworn inquiry and the confirmation of the decision thereon made by the first-named Defendant in November of 1978 and February of 1979, respectively, were null and void and of no effect. The Defendants have...