McNeill v Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Hamilton C.J.
• Judgment Date: 01 January 1997
• Neutral Citation: 1996 WJSC-SC 4146
• Court: Supreme Court
• Docket Number: [1994 No. 2 J.R]
• Date: 01 January 1997

1996 WJSC-SC 4146

THE SUPREME COURT

HAMILTON C.J.

O'FLAHERTY J.

DENHAM J.

254/94

MCNEILL v. COMMISSIONER GARDA SIOCHANA

(JUDICIAL REVIEW)

BETWEEN

GEORGE McNEILL

Applicant/Respondent

and

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND AND THE ATTORNEY GENERAL

Respondents

Citations:

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 40

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 8

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 9

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 10

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 11

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 14

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 REG 8(1)

O'CONNELL, STATE V FAWSITT 1986 IR 362

HEALY, STATE V DONOGHUE 1976 IR 325

CONSTITUTION ART 38.1

HAUGHEY, IN RE 1971 IR 217

MCGRATH V COMMISSIONER OF AN GARDA SIOCHANA 1991 1 IR 69

DPP V BYRNE 1994 2 ILRM 91

BARKER V WINGO 1972 407 US 514

GALLAGHER V REVENUE COMMISSIONERS 1991 ILRM 632

C V COURT MARTIAL & ORS UNREP FINLAY 15.2.94

Synopsis:

DELAY

Tribunal

Enquiry - Commencement - Garda - Misconduct - Complaint - Investigation - Delay of four years before commencement of enquiry in proper form - Reasonable expedition required by statutory regulations - Disciplinary enquiry restrained - (254/94 - Supreme Court - 30/7/96) [1997] 1 IR 469

|McNeill v. Commissioner of Garda Siochana|

GARDA SIOCHANA

Discipline

Enforcement - Garda - Misconduct - Complaint - Investigation - Commencement - Delay of four years before commencement of enquiry in proper form - Reasonable expedition required by statutory regulations - Disciplinary enquiry restrained - Garda Siochana (Discipline) Regulations, 1989 (S.I. 94/89), articles 8–11, 14 - (254/94 - Supreme Court - 30/7/96) [1997] 1 IR 469

|McNeill v. Commissioner of Garda Siochana|

TRIBUNAL

Enquiry

Commencement - Delay - Garda - Misconduct - Complaint - Investigation - Delay of four years before commencement of enquiry in proper form - (254/94 - Supreme Court - 30/7/96) [1997] 1 IR 469

|McNeill v. Commissioner of Garda Siochana|

WORDS AND PHRASES

"As soon as practicable"

Tribunal - Enquiry - Commencement - Garda - Discipline - Breach - Investigation - Delay of four years before commencement of enquiry in proper form - Reasonable expedition required by statutory regulations - Disciplinary enquiry restrained - (254/94 - Supreme Court - 30/7/96) [1997] 1 IR 469

|McNeill v. Commissioner of Garda Siochana|

1 30th day of July 1996 by Hamilton C.J.

Hamilton C.J.

2 This is an appeal brought by the Appellant, George McNeill (hereinafter referred to as the Appellant) against the judgment of the High Court, Morris J., delivered on the 17th day of June, 1994 and the order made in pursuance thereof on the 17th day of June 1994.

3 By order of the High Court dated the 11th day of January, 1994 the Appellant had been granted leave to apply for orders of certiorari, prohibition and declaration by way of an application for judicial review in respect of a decision made by the first named Respondent or his servants or agents on the 14th day of December 1993 to hear and determine an enquiry of allegations against the Appellant on the 18th day of January, 1994.

4 By notice of motion issued, pursuant to the said order, on the 11th day of January, 1994 the Appellant sought:-

5 (a) Certiorari by way of an application for judicial review in respect of the decision made by the Respondent, his servants or agents on the 14th day of December, 1993 to proceed to hear and determine an enquiry into allegations against the Applicant on Tuesday, the 18th day of January, 1994;

6 (b) an injunction by way of an application for judicial review restraining the first named Respondent, his servants or agents from proceeding to conduct any further enquiry into the charges of alleged breach of discipline made against the Applicant pursuant to the Garda Síochána (Discipline) Regulations, 1989, which form the subject matter of these proceedings;

7 (c) a declaration by way of an application for judicial review that the Respondents, their servants or agents had been guilty of excessive delay in the conduct of an enquiry into alleged breaches of discipline by the Applicant and that the said delay constitutes a breach of natural and constitutional justice and in particular the Applicant's right to basic fairness of procedures.

8 As appears from the statement required to ground application for judicial review delivered in accordance with the Rules of the Superior Courts on behalf of the Appellant, the grounds upon which relief was sought were

9 i "(i) The Respondents have been guilty of excessive delay in proceeding to hear and determine the allegations made against the Applicant herein,

10 (ii) The Respondents have been guilty of unconscionable delay and have failed to afford the Applicant a hearing with reasonable expedition and thereby failed to vindicate the Applicant's right to basic fairness of procedures guaranteed to him by natural and constitutional justice.

11 (iii) The Respondents have acted in breach of natural and constitutional justice by reason of their failure to conduct and complete the investigation and hearing of the allegations made against the Applicant within a reasonable time which said delay has prejudiced the Applicant in his attempt to properly prepare and conduct his defence."

12 In the notice of opposition delivered on behalf of the Commissioner, it is stated inter alia that the Respondents herein have not been guilty of excessive delay into the enquiry of breaches of discipline in respect of the Appellant and that no breach of natural and constitutional justice has occurred in respect of the Appellant's rights to basic fairness of procedure.

13 It is stated that the Respondents propose to proceed to hold an enquiry into allegations that the Appellant was guilty of falsehood in respect of entries made in an official record of An Garda Síochána in the following respect:-

14 (1) A false entry on the 3rd April, 1989 in the official record form that he had worked 41 hours night duty during a roster period which ended on 2nd April, 1989.

15 (2) A false entry on the 8th May, 1989 in the official record form that he had worked 30 hours night duty during a roster period which ended on the 30th April, 1989.

16 (3) A false entry on the 29th May, 1989 in the official record form that he had worked 26 hours night duty during a roster period which ended on the 28th May, 1989.

17 (4) A false entry on the 26th May, 1989 in the official record form that he had worked 26 hours night duty during a roster period which ended on the 28th May, 1989.

18 (5) A false entry on the 26th June, 1989 in the official record form that he had worked 37 hours night duty during a roster period which ended on the 25th June, 1989.

19 It is further stated that the aforesaid allegation are capable of being dealt with fairly at the Disciplinary enquiry and no prejudice has resulted to the Applicant by reason of the delay; the allegations set out were capable of being dealt with in January 1994 and continue to be capable of being made the subject of a garda enquiry as of the 31st March, 1994.

20 The facts relevant to the Appellant's application are set forth in the judgment of the learned trial judge and may be summarised as follows:-

21 (1) The Appellant has been a member of the Garda Síochána since June 1973 and is at present assigned Glenties Garda Station.

22 (2) About the month of June, 1989 an investigation was carried out into allegations that he had made false entries in official record books in relation to his entitlement to payment for working hours between January 1985 and June 1989.

23 (3) On the 18th day of December, 1989, he was interviewed by a Superior Officer and during the course of this interview, he was informed of the nature of the investigations taking place.

24 (4) On the conclusion of the said investigation, a file in regard thereto was submitted by the Garda Authorities to the Director of Public Prosecutions.

25 (5) On the 27th day of May, 1991 the Director of Public Prosecutions directed that the Applicant should be charged on a total of 89 summonses. The Appellant was suspended from duty with effect from the 17th day of June, 1991.

26 (6) On the 18th day of July, 1991 the Appellant was charged before the District Court, sitting at Letterkenny in respect of the said charges when the matter was adjourned to Raphoe District Court on the 23rd day of September, 1991.

27 (7) On the said 23rd day of September, 1991 the Appellant elected to be tried by judge and jury.

28 (8) On the 30th day of September, 1991 all of the said charges were withdrawn on the instructions of the Director of Public Prosecutions.

29 (9) Despite the withdrawal of the said charges, the Appellant remained on suspension.

30 (10) On the 17th day of February, 1992 the Appellant was served with documents pursuant to Regulation 40 of the Garda Síochána (Discipline) Regulations, 1989.

31 (11) The said notice stated that:-

32 i "(i) I, Patrick J. Culligan, Commissioner of an Garda Síochána in accordance with Regulation 40 of the Garda Síochána (Discipline) Regulations, 1989, hereby give you notice that I propose, subject to the consent of the Minister for Justice, to dismiss you from the Garda Síochána on the ground that I consider you unfit for retention in the Garda Síochána.

33 (ii) I am not in any doubt that you have committed the following breaches of the Garda Síochána (Discipline) Regulations, 1989 in which the material facts are outlined."

34 He outlined 43 specific breaches in the course of the said notice, which then continued as follows:-

35 i "(iii) I am not in any doubt as to the material facts relevant to the breaches of discipline specified above, and I have decided that the facts abd...