McKenna v Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Ms. Justice Baker |
| Judgment Date | 18 March 2016 |
| Neutral Citation | [2016] IEHC 175 |
| Docket Number | [2014 No. 525 JR] |
| Court | High Court |
| Date | 18 March 2016 |
[2016] IEHC 175
[2014 No. 525 JR]
THE HIGH COURT
JUDICIAL REVIEW
Employment – An Garda Siochana Act 2005 – S. 25 of An Garda Siochana (Discipline) Regulations 2007 – Commencement of disciplinary proceedings – Certiorari – Whether an acquittal in criminal charge would act as an estoppel for initiating disciplinary proceedings
Facts: The applicant sought an order of certiorari for quashing his suspension from active duty and an order for restraining further disciplinary proceedings against him initiated by the respondent. The applicant contended that the respondent was precluded from continuing the investigation of the Board of Inquiry following the outcome of an investigation carried out by An Garda Ombudsman Commissioner ('GSOC') to the effect that no further action would be taken against the applicant in lieu of his acquittal on appeal before the Circuit Court in relation to an assault under s. 2 of the Non-Fatal Offences Against the Person Act, 1997.
Ms. Justice Baker refused to grant the desired reliefs to the applicant. The Court held that an acquittal in a criminal charge would not necessarily preclude the initiation of disciplinary proceedings against a person as the nature of a criminal charge was different from an allegation made in disciplinary proceeding namely, non-performance of statutory obligations. The Court found that since the acquittal of the applicant in the Circuit Court was based on lack of evidence and not on a determination of fact, the doctrine of estoppel would be inapplicable. The Court observed that initiation of disciplinary proceeding against a member of An Garda Siochana was essential in public interest as envisaged by the legislature while enacting the An Garda Siochana Act 2005 for ensuring accountability and transparency in the manner in which complaints against the members of An Garda Siochana were conducted. The Court held that reg. 8 as appeared under s. 123 of the Act of 2005 permitted the initiation or continuance of disciplinary proceedings following an acquittal of a member in relation to the same issue provided that such proceedings were not unfair and oppressive.
The applicant is a garda stationed at Waterford Garda Station who has been suspended from operational duties on 90% pay for a period of more than four years prior to the commencement of these proceedings.
He seeks an order restraining further disciplinary proceedings against him and/or the holding or continuance of the Board of Inquiry established by the respondent under s. 25 of An Garda Síochána (Discipline) Regulations 2007, ('the Regulations').
The applicant also seeks an order of certiorari quashing his suspension from active duty, and a declaration that the respondent was not entitled to either initiate or continue the disciplinary proceedings against him under the Regulations after he was acquitted at Waterford Circuit Court on 10th April, 2013 of charges relating to the incidents in respect of which the disciplinary hearing is being conducted. In the alternative, he seeks a similar declaration that the respondent is not entitled to initiate and/or continue those proceedings following the outcome of an investigation carried out by An Garda Síochána Ombudsman Commissioner ('GSOC') which was communicated to him by letter of 24th April, 2013.
He also seeks a declaration that there was undue and/or unwarranted and/or prejudicial delay in the initiation and/or progression of the disciplinary proceedings. This ground of application was added following an order made by the Supreme Court on 29th September, 2014.
The respondent pleads in opposition that there is nothing in An Garda Síochána Act 2005 ('the Act of 2005') or the Regulations which precludes the initiating and/or continuing of the disciplinary investigations or proceedings. It is also pleaded that it was appropriate that the respondent would refrain from engaging in the relevant disciplinary investigations or enquiries pending the outcome of the relevant criminal prosecutions and the investigation by GSOC, and that there is no material delay that should prevent the initiation and/or the continuation of those investigations and enquiries.
The applicant is accused of a breach of discipline, within the meaning of Regulation 5 of the Regulations, arising from an incident alleged to have occurred at Waterford Garda Station on the 20th June, 2010 when he is alleged to have used unprofessional and discriminatory language towards a person in custody.
He is also accused of acting in contravention of his obligations, and in neglect of duty and in breach of discipline under the Criminal Justice (Treatment of Persons in Custody) Regulations, 1987 arising from the same incident, in that he failed to respect and protect the human dignity, bodily integrity and human rights of a person detained at Waterford Garda Station, and used unreasonable force and unprofessional and discriminatory language to that person.
On 16th May, 2014 the applicant was notified that Macarten O'Gorman, solicitor had been appointed presiding officer of a Board of Inquiry established by the Commissioner of An Garda Síochána ('the Commissioner') pursuant to Regulation 27 of the Regulations of 2007 to investigate these alleged breaches of discipline arising from the incident.
A referral had been made on the day of the alleged incident to GSOC pursuant to s. 102 of the Act of 2005. GSOC determined that the complaints against the applicant should be investigated, and pursuant to s. 98 of the Act submitted a file to the DPP with a recommendation that he should be prosecuted for assault pursuant to s. 2 of the Non-Fatal Offences Against the Person Act, 1997.
GSOC awaited the determination of the prosecution arising from the incident, which resulted in an acquittal on appeal before Waterford Circuit Court on the 10th April, 2013 and on the 24th April, 2013 the applicant was informed that the GSOC investigation had concluded, and that no further action would be taken by it.
The first argument made by the applicant was that the respondent was not entitled to initiate and/or continue the investigation of the Board of Inquiry having regard to the conclusion of its investigation by GSOC.
GSOC was established under the provisions of the Garda Síochána Act, 2005 as a body corporate to perform the functions assigned to it by that Act. Its statutory objectives, functions and powers are set out in s. 67 of the Act and include, inter alia, those identified in s. 67 (2), to receive complaints made by members of the public concerning the conduct of members of An Garda Síochána. Part 4 of the Act sets out the procedures for complaints and investigations before GSOC and this provides, inter alia, for the referral of a complaint to the Garda Commissioner to be dealt with in accordance with s. 94.
Section 94 of the Act requires the Garda Commissioner on referral of a complaint under s. 92 to appoint a member of An Garda Síochána to investigate the complaint under the Disciplinary Regulations and to submit a report under s. 94 (6) to GSOC as soon as practicable after completing an investigation of complaint.
Section 95 (5) is important in the context of this case and provides as follows:
'An investigation of a matter under this section does not preclude the subsequent investigation of the matter under section 98.'
The applicant argues that, as GSOC has concluded its investigation, no power lies in the respondent to carry out a separate investigation under the Regulations, and that as GSOC is the statutory authority tasked with the investigation that no other investigation is permissible under the Act.
The legislation establishes GSOC as an independent third party charged with exercising an independent role in regard to matters involving serving members of An Garda Síochána, including disciplinary matters. The focus of GSOC relates to complaints which may legitimately concern the general public regarding members of the Gardaí. The Act also permits the Minister under s. 123 to enact regulations concerning disciplinary matters within the Force. There is some overlap between the matters within the remit of the two investigatory procedures. For example, conduct requiring investigation of disciplinary matters at the more serious end of the scale may also draw the attention of GSOC, as happened here.
On the other hand, the primary focus of the Regulations are matters of internal discipline, for example 'matters relating to work performance' as found under s.123 (2)(g). Such matters may have a public interest element insofar as the public is interested in seeing a well-run and disciplined police force, but they are appropriately matters to be dealt with internally within the Force. Although commonality of subject matter may exist, the different mechanisms of oversight exist to fulfil different regulatory goals with different standards against which conduct might be scrutinised and different possible consequences for individuals under investigation.
The legislation establishing GSOC makes express provision for matters referred to it that may constitute criminal liability. Section 101 of the Act of 2005 requires GSOC, if it is of the opinion that the conduct under investigation before it may constitute an offence, to send a copy of the report and of the investigation file to the DPP and provide to the DPP any information relating to the investigation that may be required by the DPP in performing her functions.
Section 101(5) deals with circumstances where a member of An Garda Síochána is convicted of an offence...
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McKenna v The Commissioner of an Garda Síochána
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