McKenna v The Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Gerard Hogan |
| Judgment Date | 12 March 2018 |
| Neutral Citation | [2018] IECA 69 |
| Date | 12 March 2018 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Neutral Citation Number: [2018] IECA 69 No. 2016/223 |
[2018] IECA 69
Neutral Citation Number: [2018] IECA 69
No. 2016/223
THE COURT OF APPEAL
Disciplinary proceedings – Prohibition – Article 8 of the Garda Síochána (Discipline) Regulations 2007 – Appellant seeking to restrain the holding of a Garda disciplinary investigation – Whether the prohibition contained in Article 8(2) of the Garda Síochána (Discipline) Regulations 2007 prevented the commencement of the investigation
Facts: The appellant, Garda McKenna, is a member of An Garda Síochána who was suspended from operational duties while on 90% pay by reason of events which allegedly took place in Waterford Garda Station as far back as June 2010. On that date he was alleged to have used unprofessional and discriminatory language towards a person in custody and also to have used excessive force. In judicial review proceedings he sought to restrain a Garda disciplinary investigation into those events. The appellant failed to obtain that relief in the High Court. The appellant appealed to the Court of Appeal against that decision.
Held by Hogan J that there was nothing in the Garda Síochána Act 2005 which expressly precluded the commencement of disciplinary proceedings following the acquittal of the member in the wake of a criminal prosecution which Garda Síochána Ombudsman Commission itself had recommended under s. 101(2)(a) of the 2005 Act. Hogan J held that the appellant’s acquittal must be regarded as an acquittal on the merits for the purposes of Article 8(2) of the Garda Síochána (Discipline) Regulations 2007 (S.I. No. 214 of 2007). Hogan J held that the appellant could demonstrate that two of three disciplinary charges involved an investigation into the same facts as the criminal prosecution; that requirement was not satisfied in the case of the other charge of using unprofessional language towards the prisoner. Hogan J held that the appellant could not demonstrate on the facts of the case that the commencement or continuation of any of the disciplinary charges would be oppressive or unfair within the meaning of Article 8(2). Hogan J held that, in the circumstances, it could not be said that the appellant had acquired any legitimate expectation which bound the respondent, the Commissioner of An Garda Síochána, and precluded the commencement of the disciplinary proceedings.
Hogan J held that he would refuse to grant the applicant the relief which he sought and would uphold the decision of the High Court.
Appeal dismissed.
The appellant is a member of An Garda Síochána who has been suspended from operational duties while on 90% pay by reason of events which allegedly took place in Waterford Garda Station as far back as June 2010. On that date Garda McKenna is alleged to have used unprofessional and discriminatory language towards a person in custody and also to have used excessive force. In these judicial review proceedings he seeks to restrain a Garda disciplinary investigation into these events in circumstances I will presently describe.
The applicant failed to obtain this relief in the High Court. In a judgment delivered on the 18th March 2016 Baker J. rejected the applicant's contentions: see McKenna v. Garda Commissioner [2016] IEHC 175. The appellant has now appealed to this Court against her decision.
Before considering any of the legal issues which arise, it is first necessary to narrate some of the background facts.
On the 20th June 2010 an incident occurred at Waterford Garda station in the course of which a foreign national in custody was allegedly assaulted. The Commissioner referred the matter to Garda Síochána Ombudsman Commission (‘GSOC’) under s. 102 of the Garda Síochána Act 2005 (‘the 2005 Act’) some time later day. GSOC investigated the matter under s. 98 of the 2005 Act and then referred the matter to the Director of Public Prosecutions with a recommendation for prosecution under s. 2 of the Non-Fatal Offences against the Person Act 1997 (‘the 1997 Act’).
As it happens, the Director chose instead to present charges under s. 3 of the 1997 Act which charge represented a more serious allegation and the applicant was charged with assaulting the prisoner. He was convicted of the s. 3 offence in the District Court in December 2011, but he was subsequently acquitted on appeal on the 10th April 2013 at Waterford Circuit Court. The situation that arose at that point on the appeal was that the alleged victim did not turn up for the hearing before the Circuit Court and, as a result, the Director did not present any evidence. The Circuit Court then duly acquitted Garda McKenna of the offence.
Some weeks later on the 24th April 2013 GSOC notified Garda McKenna by letter that its investigation had concluded and that it would not be pursuing the matter any further. The Garda authorities nevertheless continued to examine the question of further disciplinary action and the applicant was informed of this fact. On the 20th June 2013 the Garda Commissioner referred the matter to the Chief Superintendent of Waterford Division as to whether a further inquiry under the Garda Síochána (Discipline) Regulations 2007 ( S.I. No. 214 of 2007) (‘the 2007 Regulations’) was warranted. On the 20th June 2013 the Chief Superintendent appointed a Superintendent to investigate disciplinary aspects of the incident which is said to have occurred on the 20th June 2010. The applicant remains currently suspended pending this determination.
On 16th May 2014 the applicant was informed that a Mr. McCartan O'Gorman, solicitor, had been appointed to be the presiding officer of a Board of Inquiry established by the Commissioner in accordance with Article 27 of the 2007 Regulations in order to investigate three disciplinary charges, namely,:-
(i) behaving in an unprofessional manner by using offensive language to the person in custody,
(ii) failing to behave respectfully towards the prisoner, having regard to his rights to bodily integrity, and
(iii) using unreasonable force towards the prisoner.
In September 2014 the applicant duly applied to the High Court for orders restraining the prosecution of these disciplinary charges.
As I have already noted, Baker J. found against the applicant for the following reasons. She rejected arguments that the 2005 Act envisaged that once GSOC had concluded its investigation, the disciplinary matter could not be independently pursued by the Commissioner, saying:
‘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.’
Baker J. then drew attention to the provisions of s. 95(5) which provides as follows:
‘An investigation of a matter under this section does not preclude the subsequent investigation of the matter under section 98.’
Baker J. then continued by saying that applicant had argued 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.
Conclusion on role of GSOC:
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...
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