Molloy v Garda Síochána Complaints Tribunal

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan,
• Judgment Date: 28 April 2009
• Neutral Citation: [2009] IEHC 197
• Court: High Court
• Docket Number: RECORD NO. 1707 JR/2007
• Date: 28 April 2009

[2009] IEHC 197

THE HIGH COURT

RECORD NO. 1707 JR/2007

Molloy v Garda Síochána Complaints Tribunal

BETWEEN:

TOM MOLLOY

APPLICANT

AND

THE GARDA SÍOCHÁNA COMPLAINTS TRIBUNAL

RESPONDENT

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(3)(A)(iv)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S6(2)(A)

GARDA SIOCHANA (COMPLAINTS) ACT 1986 S9(4)

R v CHIEF CONSTABLE OF MERSEYSIDE POLICE, EX PARTE MERRILL 1989 1 WLR 1077

MCCARTHY & DENNEDY v GARDA SIOCHANA COMPLAINTS BOARD 2002 2 ILRM 341 2002/19/4881

MCNEILL v CMSR OF AN GARDA SIOCHANA 1997 1 IR 469 1996/13/4146

BOLAND v GARDA SIOCHANA COMPLAINTS BOARD & GARDA SIOCHANA COMPLAINTS TRIBUNAL UNREP KEARNS 28.11.2003 2003/5/1090

GARDA SÍOCHÁNA

Discipline

Fair procedures - Undue delay - Right to expeditious resolution of disciplinary inquiries - Alleged failure to process complaint expeditiously - Whether breach of natural and constitutional justice - Public interest - Rationale behind need for expeditious resolution of complaints - Whether any overall time limit provided for completion of investigation - Whether statutory provisions required speedy resolution of complaints - Minimum degree of expediency required in all cases - R v Chief Constable Merseyside Police [1989] 1 WLR 1077; McCarthy v Garda Síochána Complaints Tribunal [2002] 2 ILRM 341; Boland v Garda Síochána Complaints Board (Unrep, Kearns J, 28/11/2003) considered; McNeill v Commissioner of An Garda Síochána [1997] 1 IR 469 applied - Garda Síochána (Complaints) Act 1986 (No 29), ss 4(1)(a), 4(3)(c), 4(4), 5(5), 6(2)(a) and 7(5) - Relief granted (2007/1707JR - Hedigan J - 28/4/2009) [2009] IEHC 197

Molloy v Garda Síochána Complaints Tribunal

Facts: The applicant member of An Garda Siochana sought an order of prohibition to restrain the respondent from holding a hearing as to a complaint against the applicant dating back to 2004 and a declaration that the respondent failed to process the complaint of the applicant with speed.

Held by Hedigan J. that pursuant to s. 4(1)(a) of the Act, a complaint had to be made within six months of the date of the conduct. The statutory provisions required a speedy resolution of procedures under the Act. There was a delay of almost three years during which the complaint had been postponed on 4 occasions and the applicant had provided legitimate excuses for a minority of instances when unavailable. The applicant was not entitled to maintain pressure on the decision maker to perform the function assigned to it by statute. The respondent had failed to provide its functions satisfactorily. The delay in processing the complaint was inordinate and inexcusable so as to violate the basic right to natural and constitutional justice and the reliefs sought would be refused.

Reporter: E.F.

Mr. Justice Hedigan,

1 The applicant has been a member of An Garda Síochána since 1979.

2 The respondent is a statutory body established under the Garda Síochána (Complaints) Act1986 ('the 1986 Act'). Its function is to investigate, and to adjudicate upon where necessary, complaints made by the public against members of An Garda Síochána.

3 The applicant seeks the following relief by way of judicial review:

4 (a) An order of prohibition, or in the alternative an injunction, restraining the respondent from holding a full hearing in respect of a complaint made against him on the 21^st of April 2004 by a member of the public; and

5 (b) A declaration that the failure by the respondent to process the complaint made against the applicant expeditiously amounted to a breach of the principles of natural and constitutional justice and/or a breach of statutory duty and/or a breach of the applicant's legitimate expectation that any complaints made against him under the 1986 Act would be dealt with expeditiously.

6 4. On the 21^st of April 2004, a complaint was made to the respondent by a member of the public, alleging that the applicant had failed to inform her of the outcome of an investigation into an alleged forged letter and that he had also failed to reply to correspondence in relation to same.

7 5. On the 26^th of July 2004, the Deputy Chief Executive of the respondent determined that the complaint was inadmissible under section 4(3)(a)(iii) of the 1986 Act, on the basis that it had not been made within 6 months of the incident complained of.

8 6. On the 28^th of July 2004, the complainant lodged an appeal against this decision with the Garda Síochána Complaints Board ('the Board'). On the 6^th of August 2004, the Board upheld this appeal and the complaint against the applicant was deemed admissible.

9 7. On the 23^rd of September 2004, a Superintendent of An Garda Síochána ('the investigating officer') was appointed to investigate the complaint pursuant to section 6 of the 1986 Act. On the 30^th of September 2004, the applicant was served with the GSC3 form, outlining the nature of the complaint.

10 8. By late October 2004, the investigating officer had still not completed his final report so he prepared an interim report, as envisaged by section 6(2)(a) of the 1986 Act. The final statements in respect of the investigation were ultimately taken on the 22^nd of December 2004 and the Board received the investigating officer's final report on the 31^st of December 2004.

11 9. On the 7^th of March 2005, the Board decided to refer the matter to the respondent for consideration. By letters dated the 15^th of March 2005, the applicant and the complainant were both notified of this fact and on the 5^th of April 2005, the complainant informed the respondent that she wished to have the matter heard in Galway, as opposed to Dublin.

12 10. On the 8^th of July 2005, the applicant received a set of documents relating to the complaint which might loosely be referred to as the 'book of evidence'. It included specifications of the three breaches of discipline which were being alleged against him as well as a copy of all relevant witness statements. The applicant responded via his solicitor on the 16^th of August 2005 and denied the alleged breaches of discipline.

13 11. On the 30^th of August 2005, the applicant received notification from the respondent that the hearing was intended to take place at some point during October or November of that year. Again the complainant requested that the hearing should take place in Galway. Shortly thereafter, on the 5^th of September 2005, the respondent informed the complainant that in order to transfer the hearing to Galway, she would need to produce medical evidence of her incapacity to attend in Dublin. The complainant duly provided a medical report on the 15^th of September 2005.

14 12. On the 14^th of October 2005, the chairperson of the respondent wrote to its other members stating that there was "no objection to the transfer of the hearing to Galway provided this [did] not delay the hearing of the case". Exactly one month later, on the 14^th of November 2005, the complainant was informed that the hearing would take place in Galway in line with her request.

15 13. On the 30^th of November 2005, the applicant was informed by telephone that the respondent would hold its full hearing in respect of the complaint on the 6^th of January 2006. However, this proposed hearing was postponed owing to an alleged difficulty in securing the attendance of witnesses. The applicant was informed of such a postponement by letters dated the 22^nd of December 2005 and the 4^th of January 2006. It subsequently emerged that the purported difficulty was in fact the unavailability of the complainant's solicitor on the proposed date.

16 14. On the 28^th of February 2006, the applicant was informed, again by telephone, that the hearing had been rescheduled for the 24^th of March 2006. This proposed hearing was postponed at the applicant's request by a letter from the respondent to all parties dated the 13^th of March 2006. There is some dispute as to the basis for the postponement but in any event the hearing was ultimately re-scheduled for the 21^st of July 2006. The applicant was informed of this revised arrangement, initially by telephone call on the 31^st of May 2006 and also by formal letter on the 12^th of June 2006.

17 15. On the 29^th of June 2006, the applicant was informed by telephone that the third proposed hearing date was to be postponed owing to circumstances beyond the respondent's control. It has since been clarified that the chairperson of the respondent was...