McNeill v Commissioner of an Garda Síochána

JudgeMr Justice Morris
Judgment Date17 June 1994
Neutral Citation1994 WJSC-HC 3624
CourtHigh Court
Docket Number[1994 No. 2 J.R.],Record Number 2 J.R./1994
Date17 June 1994

1994 WJSC-HC 3624


Record Number 2 J.R./1994





Judgment of Mr Justice Morrisdelivered the17th day of June 1994.


In this case the Plaintiff is a member of An Garda Siochana and he seeks an Order of Certiorari by way of Judicial Review in respect of a decision made by the Respondent, his servants or agents on the 14th of December, 1993 to proceed to hear and determine an inquiry into allegations against the Applicant on Tuesday the 18th of January, 1994 and he seeks an injunction restraining the Respondent or his servants or agents from proceeding to conduct any further inquiry into charges of alleged breaches of discipline made against the Applicant pursuant to the Garda Siochana (Discipline) Regulations, 1989 which form the subject matter of this enquiry and he claims a declaration that the Respondents have been guilty of excessive delay in the conduct of the inquiry which constitute a breach of natural and constitutional justice and a breach of the Applicant's right to fair procedures.


The grounds upon which these reliefs are sought are set out in the Applicant's Statements of Grounds of the 11thof January, 1994, in which he claims


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


(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 rights to basic fairness of procedures guaranteed to him by natural and constitutionaljustice,


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


The facts and the circumstances in which this Application comes before the Court as they emerge from the Affidavits filed are as follows:-


The Applicant has been a member of An Garda Siochana since June, 1973 and since 1979 has been stationed in Letterkenny and assigned to the Glenties Garda Station. He was approached by a Superior Officer on the 18th of December,1989 and interviewed concerning false entries alleged to have been made in an official record book in relation to his entitlement to payment for working hours, between January '85 and June 1989. The main thrust of the complaint made against the Applicant was that whereas it was alleged that he worked, on given dates, a number of hours, he claimed entitlement to payment for a significantly larger number of hours and it was alleged that he made entries in the official record, knowing them to be false, with the intention of obtaining money over and above his true entitlement. In the course of the interview the Applicant was asked for an explanation for these discrepancies and the explanation which he offered was that he had not worked the hours which were claimed for but that he claimed the amount for compensation for work which he had taken home with him from his office and for which he got no other compensation. It would appear that this matter was referred to the Director of Public Prosecutions and on the 27th of May, 1991, the Director of Public Prosecutions directed that the Applicant be prosecuted. Accordingly, on the 17th of June, 1991 he was suspended from duty and on the 18th of July, 1991 he was served with 87 summonses arising out of these allegations. On the 23rd of September, 1991 the matter was dealt with in the District Court. The Applicant elected for trial on indictment before a jury and he was duly sent forward for trial. However, the trial did not proceed because it was realised by the Prosecution that the statements made by the Applicant when confronted with the allegations, were made without caution and were accordingly, it was assumed, inadmissible and therefore on either the 30th of September or the 7th of October, depending on which dateone accepts, 1991 all the summonses against the Applicant werewithdrawn.


On the 17th of February, 1992 the Applicant was served with a Notice under Regulation 40 of the Garda Siochana (Discipline) Regulations, 1989. Regulation 40 of these regulations empowers the Commissioner in certain circumstances to dismiss from the Garda Siochana any member, not being above the rank of Inspector, whom he considers unfit for retention in the Garda Siochana. However, the powers under this regulation may only be exercised were the Commissioner is not in any doubt as to the material facts and where the relevant breach of discipline is of such gravity that the Commissioner has decided that the facts and breach merit dismissal and that the holding of an inquiry could not affect his decision. In reply to that Notice on the 27th of February, 1992 the Applicant's then Solicitors, Messrs. James Boyle and Company, wrote to the Commissioner of An Garda Siochana giving notice that the alleged breaches were strenously denied and that it was their intention to apply for Judicial Review if "should you persist in your application fordismissal".


On the 29th of May, 1992 this Notice was withdrawn. The reason for its withdrawal was that the Commissioner was in receipt of advice from the Department of Justice indicating that by reason of the fact that the Applicant had given an explanation for his claim which related to authority to do his work at home and to charge for it, the Regulation 40 procedure was inappropriate. This was because it was possible that upon the holding of an inquiry facts might emerge which could affect the Commissioner's decision and accordingly Regulation 40 did notapply.


On the 30th of July, 1992 the Applicant's suspension from duty was lifted. Accordingly, he had been suspended from duty from the 17th of June, 1991 to the 31st of July, 1992. This was not a suspension without pay. The Applicant resumed full duties the following day.


On the 16th of July, 1992 procedures under Regulation 8 of the Garda Siochana (Discipline) Regulations, 1989 were commenced. This regulation provides that where it appears that there may have been a breach of discipline the matter shall be investigated "as soon as practicable" by a member not below the rank of Inspector. Accordingly, Chief Superintendent Ginty was appointed on that date to investigate the matter and the investigation commenced on the 7th of September, 1992 when the annual leave of the acting District Officer concluded.


On the 3rd of October, 1992 the Applicant was served with a Notice indicating that Inspector Lennon had been appointed to investigate these alleged breaches and the breaches, numbering 5, related to false entries made in payroll Temporary Allowance claims forms dated respectively the 3rd of April, 1989, the 8th of May, 1989, the 20th May, 1989, the 29th of May, 1989 and the 25th of June, 1989. All of these alleged offences are mirrored among the summonses with which the Applicant was originally served on the 18th of July, 1991.


On receipt of that Notice the Applicant's Solicitors wrote a series of three letters dated respectively the 12th of October, 1992, the 22nd of October, 1992 and the 24th of November, 1992 in which they asked that Inspector Lennon would hold his hand so as to give them an opportunity to prepare the defence and subsequently notifying InspectorLennon of their intention to apply for Judicial Review "with as much speed as possible".


On the 17th of January, 1993 the appropriate Notice under Sections 11 and 12 of the 1989 Regulations was served on the Applicant. This Notice contains a list of the witnesses whom it is proposed to call before the inquiry and to gives us certain other information. This Notice was appropriately called, at the hearing, "The Book of Evidence". However, on the 26th of January, 1993 the Supreme Court gave judgment in McGrath v. Commissioner of An Garda Siochana and as a result it became necessary for the Respondents to seek legal advice and as a result of that advice on the 30th of September, 1993 fresh charges were prepared to the extent that some of the charges related to the 1971 Regulations and others to the 1989 Regulations but otherwise the substance of the charge remain the same and this Notice was duly served on the 14th of October,1993.


On the 23rd of December, 1993 the Applicant's present Solicitors wrote requiring that the Respondents agree not to pursue the matter and on the 11th of January, 1994 an application ex parte was made to the Court giving the Applicant leave to apply for the relief now sought by way of Judicial Review.


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