MCMAHON v Commissioner of an GARDA Síochána
| Jurisdiction | Ireland |
| Judge | Mr Justice Aindrias Ó Caoimh |
| Judgment Date | 19 October 2001 |
| Neutral Citation | [2001] IEHC 220 |
| Docket Number | No. 455JR/1998 |
| Court | High Court |
| Date | 19 October 2001 |
[2001] IEHC 220
THE HIGH COURT
BETWEEN
AND
Citations:
GARDA SIOCHANA (ADMISSIONS & APPOINTMENTS) REGS 1988 SI 164/1988
DUFFY V COMMISSIONER OF AN GARDA SIOCHANA 1992 IR 81
MCAULEY V COMMISSIONER OF AN GARDA SIOCHANA 1996 3 IR 208
HEALY V COMMISSIONER OF AN GARDA SIOCHANA UNREP HERBERT 7.11.2000 2000/10/3885
Synopsis:
JUDICIAL REVIEW
Certiorari
Garda Síochána - Disciplinary procedures - Termination of employment - Discrepancies relating to subsistence allowances - Whether fair procedures followed - Whether probationer garda unfairly dismissed - Garda Síochána (Admissions and Appointments) Regulations, 1988 (1998/455JR - Ó Caoimh J - 19/10/2001)
McMahon v Garda Commissioner
Facts: The applicant was a probationer garda. An investigation arose into subsistence claims made by the applicant. As a result the applicant was dismissed from An Garda Síochána. The applicant initiated judicial review proceedings seeking to quash his dismissal claiming inter alia that he had not been informed of the precise allegations being made against him and had not been given an opportunity to respond to same. In addition the applicant claimed that he had not been informed that his contract of employment could be terminated unless compelling submissions were made by him.
Held by Mr. Justice Ó Caoimh in refusing the relief sought. The applicant was accorded a fair hearing and was given an opportunity of responding to the allegations being made against him. The applicant must have been clearly aware from the terms of the notice he received that he was at risk of having his services dispensed with at the end of the probationary period by the Commissioner of An Garda Síochána. The applicant was not entitled to the relief sought.
This is an application for Judicial Review for the reliefs of
1. An Order of Certiorari quashing the decision of the respondent dated the 23rd of November 1998 which said decision was furnished to the applicant on the 27th day of November 1998.
2. Damages for breach of contract.
3. Damages for breach of constitutional rights.
The grounds upon which the relief is sought is as follows:-
(i) The decision of the respondent dated the 23rd day of November 1998 was made in breach of the applicant's entitlements to natural and constitutional justice.
(ii) The applicant was not furnished with a statement in writing of the precise nature of the allegations being made against him until the 18th day of November 1998 on which date the Commissioner's notice dated the 4th day of November 1998 was furnished to the applicant. The applicant was not informed orally or in writing prior to the interview with him on the 3rd day of June 1998 that a possible outcome of the investigation was the termination of his contract of employment.
(iii) The applicant was not informed prior to the 18th day of November 1998 on which date the aforesaid notice dated the 4th day of November 1998 was served on him stating that his employment could be terminated. The notice dated the 4th day of November 1998 did not specifically warn the applicant that his contract of employment could be terminated nor did it inform the applicant that his contract of employment could be terminated unless other compelling submissions were made by him in response to the allegations.
(iv) The applicant was not furnished with all the information and material relevant to the issues and in particular the applicant's diary was taken from him on the 3rd of June 1998 and his request for a copy of the diary was refused on that date.
(v) The applicant was not interviewed and/or no interview was conducted with the applicant in respect of the termination of his employment. The applicant was not furnished with a copy of the statements on which the respondent relied until the 18th day of November 1998. The applicant was not afforded an adequate opportunity to present a case in response to the allegations made against him.
(vi) The time frame afforded to the applicant to make submissions was inadequate given the extensive nature of the allegations made.
(vii) The applicant or the legal representative on his behalf were not afforded an opportunity of cross-examining or questioning the authors of the statements and reports furnished to the applicant on the 18th day of November 1998.
(viii) The notice dated the 4th day of November 1998 did not inform the applicant that (a) he should seek legal advice; (b) he was entitled to cross-examine or question the contents of the statement and reports and (c) he was entitled to introduce mitigating evidence on his behalf.
(ix) The respondent agreed with the recommendation of the Assistant Commissioner and the Deputy Commissioner and that he should consider dispensing with the applicant's services prior to hearing of the applicant and accordingly the respondent prejudged the issue and/or the respondent's decision was tainted or biased or otherwise.
(x) Allegation number 18 of the respondent's notice dated the 4th day of November 1998 was not put to the applicant in the interview of the 3rd day of June 1998 nor were the specific allegations contained in the said notice and the details in respect of the said allegations were not put to the applicant in the interview of the 3rd of June 1998.
The application is grounded upon an affidavit of the applicant in which states that he is a probationer garda. He says that he was attested to An Garda Siochána on the 6th day of December 1996 and that he is due for confirmation of appointment on the 5th of December 1998 and he was allocated to Cabra Garda Station from Templemore College on the 6th of December 1996 and took up duty in Unit A under the supervision of stationhouse officer Sergeant James Tutty. The applicant says he performed miscellaneous duties in Cabra Garda Station. He says that one of his duties consisted of protection duties at Áras an Uachtaráin. He says that members who performed protection duties at Áras an Uachtaráin are entitled to claim maximum subsistence when it becomes available if protection duties exceed five hours of a regular pattern. He says that subsistence allowances are paid at a rate of £7.69 for five hours and £12.88 for eight hours. The applicant says that he did not receive instructions in respect of the method of calculating subsistence allowances and in respect of completion of forms claiming subsistence allowances. He says he was first given a form in respect of subsistence allowance in or about the 19th of May 1997. The applicant says that the form was countersigned by Sergeant James Tutty and forwarded to the District Office for payment. The claim was for a total amount of £379.86. He says that he submitted a further claim for subsistence allowance on the 10th of September 1997 and again these were countersigned by his Sergeant James Tutty and forwarded to the District Office and these claims were for a total amount of £618.24. He says he received payment of the said sum of £379.86 and £618.24.
The applicant says that in or about November of 1997 he was approached by Sergeant Tutty and a Sergeant Fearon who stated that there were discrepancies in claims he had made for subsistence allowances that he had claimed for being on duty at Áras an Uachtaráin on dates when the records showed that he was not there. He says that he immediately said he was sorry for the mistake and asked what he could do and stated that he wanted to pay back any monies wrongfully claimed. He said that Sergeant Fearon told him that £12 of arrears could not be claimed and also agreed that when he submitted his next claim he could make allowances for previously submitting incorrect claims. He also asks the Sergeants should he write up a report in the matter and forward same to the Superintendent in charge and he was informed by both of them that this would not be necessary. He said he understood that both Sergeants accepted that he had made a genuine mistake and the matter was then dealt with at station level.
On the 3rd of June 1998 the applicant was cautioned by Inspector Michael Feehan and informed that a criminal investigation was being conducted into subsistence claims he had previously made. He says that this interview took him by complete surprise and he recalled that he hadn't his probationer's diary with him during the course of the interview and he had to leave the interview room to retrieve it from his car.
The applicant says that he was concerned that a criminal prosecution was being contemplated and accordingly he was reluctant to say anything at interview especially as he hadn't been furnished in advance with the charges that were being made against him. He says that he asked at the conclusion of the interview for the return of his diary and was informed that it was being retained as it would constitute evidence. He says that he then asked for a copy of his diary together with a copy of the memorandum of the interview which had just taken place and that he was refused a copy of his diary and the memorandum of the interview. The applicant says that he had no idea that termination of his employment as a member of An Garda Siochána was being contemplated or that anything he said or didn't say at the interview of the 3rd of June 1998 would be used as a basis for termination of his said employment.
The applicant says that on or about the 18th of November 1998 he received a notice from the respondent dated the 4th of November 1998. This notice contained each and every allegation described as being allegations of commission/omission on his part. The applicant complained that the notice did not specifically warn him that termination of his employment was being...
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