Murphy v The Commissioner of an Garda Siochana

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 24 April 2023
• Neutral Citation: [2023] IECA 92
• Docket Number: Record No.: 2022 145
• Court: Court of Appeal (Ireland)

Thomas Murphy

Respondent

and

The Commissioner of An Garda Síochána

Appellant

[2023] IECA 92

Whelan J.

Donnelly J.

Ni Raifeartaigh J.

Record No.: 2022 145

THE COURT OF APPEAL

JUDGMENT of Ms. Justice Donnelly delivered this 24th day of April, 2023.

1 This is an appeal in respect of an order of the High Court granting certiorari of a decision of the appellant Commissioner of An Garda Síochána (“the Commissioner”) to notify the respondent, who is a member of An Garda Síochána who is on probation, of the Commissioner's intention to dispense with the respondent's service. The issues raised in the case include whether or not the respondent's judicial review was premature and whether the High Court's conclusion of the presumption of innocence and the interaction of that presumption on the process was correct.

2 Regulation 12 of the Garda Síochána (Admissions and Appointments) Regulations 2013 (“the 2013 Regulations”) permits the Commissioner of An Garda Síochána to dispense with the services of a member of An Garda Síochána who is on probation (“a probationer Garda”) in accordance with the procedures set out in that regulation. Both the respondent, and the Commissioner of An Garda Síochána, are now in agreement that Regulation 12 does not provide a mechanism to discipline a probationer Garda. Instead, the said regulation addresses the suitability of a probationer Garda to perform the functions of a member of An Garda Síochána.

3 On 17 December 2019, the Commissioner wrote to the respondent giving notice that he proposed to dispense with his services as a probationer Garda, citing Regulation 12(8)(a) of the 2013 Regulations. Part of the notice stated: “Your suitability with regard to your behaviour and/or disciplinary record has been assessed and the following allegation of commission/omission on your part have been brought to my attention… [sets out alleged incidents in the early hours of New Year's Day, 2019]”. According to the notice, this “was a serious matter” and the Commissioner had to consider and decide whether the respondent was likely to become an efficient and well-conducted member of the Garda Síochána in accordance with Regulation 12(8). The notice expressly stated that before doing so the Commissioner was giving the respondent an opportunity in accordance with Regulation 12(9) to make any submissions regarding the proposal within 28 days which is the period set out in the 2013 Regulations. At that time, a prosecution in the District Court was pending against the respondent in relation to an allegation of driving while intoxicated and an allegation under s. 4 of the Criminal Justice (Public Order) Act, 1994, for intoxication in a public place.

4 The solicitors for the respondent replied by way of a lengthy letter dated 8 January 2020 to the Commissioner. The letter sought, inter alia, confirmation that prior to the expiration of the 28-day deadline set by the notice, the Commissioner would not take any further steps on the issue until the pending prosecution was dealt with and until such time as the respondent was provided with all the material to be relied upon by the Commissioner and also afforded the opportunity to make further submissions. It is an entirely regrettable part of this entire dispute between the parties that the Commissioner failed to respond in any way to that letter; not even by way of a holding letter. The Commissioner submits that nothing ought to be read into the absence of response as the Commissioner ought to be presumed to behave in a constitutionally fair manner. The Commissioner also submitted that the deadline given to reply to the letter of 8 January 2020 was too tight, but is it only fair to point out that the initial deadline of 28 days given to the respondent was one imposed by the Regulation. Having initiated a process which contained a 28-day deadline for the respondent, the Commissioner ought therefore to have been ready to respond to a request for an extension to that time. This is a matter that will be addressed later in this judgment.

5 In a further unusual twist, in August 2020, eight months after the commencement of these proceedings, the Commissioner furnished the information requested by the respondent in the letter of 8 January 2020. That information was accompanied by what appeared on its face to be a new notice under Regulation 12, but the Commissioner sent a subsequent letter stating “[t]o the extent that [his] letter dated 6 August 2020 gave the impression that there is a second process in being this was an error and is withdrawn.” The August 2020 letter triggered complaints as to whether such action had breached the stay granted by the High Court on 20 January 2020. That issue was resolved by the High Court and is not a matter for this Court.

6 The respondent's letter of 8 January 2020 addressed a range of factors. Some of these issues became the focus of the respondent's statement grounding his application for judicial review. The letter commented that no investigator appeared to have been appointed (in fact none is required under Regulation 12). The failure to provide material/evidence was particularised to include management reports, and the letter questioned if relevant points regarding his probation, both positive and negative, had been identified for consideration. The letter also stated under the heading “Innocent until proven guilty” that the only matters that the Commissioner considered relevant were subject to a pending prosecution. The respondent said that the statements in the Commissioner's letter were presented as facts, regarding which he had no opportunity to be heard. It was said that the findings were made without due process and in breach of the respondent's constitutional rights.

7 The primary relief sought in the statement grounding the application for judicial review was for an order of certiorari of “the determination of the [Commissioner] to dispense with the [respondent's] services as a probationary member of An Garda Síochána”. The description of the relief claimed reflects the respondent's contention in the grounding statement that the Commissioner had made a determination (and that such a determination was in breach of s.14 of the Garda Síochána Act 2005 and the Garda Síochána (Discipline) Regulations, 2007). No breach of discipline is now asserted. Moreover, the High Court ( [2021] IEHC 354) held that the notice of the Commissioner pursuant to Reg 12(8) did not make any determination of any fact. The trial judge examined the wording of the notice and the provisions of the regulation, pointing in particular to the use of the word ‘allegations’. The High Court finding that the notice did not make any determination of fact was clear and well-reasoned and was not the subject matter of any cross-appeal by the respondent. The trial judge's finding that there was no determination is an important factor in this appeal.

8 The trial judge, having identified “a number of objectionable legal flaws presenting in what has occurred”, ultimately decided to grant an order of certiorari quashing the decision to notify the respondent of the Commissioner's decision to issue the notice under Regulation 12 of the 2013 Regulations. The two grounds identified in the judgment as the basis for the order of certiorari were:

• a) The respondent was not provided with a copy of the materials on which the Commissioner intended to rely in reaching any ultimate decision as to whether or not to dispense with the respondent's services as a probationer Garda.

• b) The manner in which the Commissioner proposed to proceed impinged upon the presumption of innocence enjoyed by the respondent in criminal proceedings.

Grounds of Appeal

9 The Commissioner has appealed against the decision of the High Court on a number of grounds:

• a) that the trial judge ought to have dismissed the proceedings as being premature,

• b) in concluding that by inviting the respondent to make submissions in accordance with the 2013 Regulations, the Commissioner proceeded in a manner which impinged the presumption of innocence and in misapplying the privilege against self-incrimination on the facts,

• c) in concluding that the failure at the first stage of proceedings to provide the respondent with materials upon which the Commissioner intended to rely in reaching a final determination gave rise to a breach of the respondent's rights to fair procedures.

Were proceedings before the High Court moot and is the appeal moot?

10 At the hearing of this appeal, the Court raised the issue of mootness with the parties. The first concern was whether the hearing became moot at the time the documents were given over by the Commissioner. Counsel for the Commissioner strongly urged on the Court that the appeal was not moot. She submitted that there were a number of issues at play in the High Court; one was whether the Commissioner had made a determination and that was still live even when the documents were forwarded. Primarily however, the Commissioner wished to argue that the judicial review application had been premature in circumstances where the suitability process was in being. This again raises the question as to why the Commissioner had not replied to the letter of 8 January 2020 to say that these matters were being considered and that no further steps would be taken pending a reply to that letter.

11 A separate consideration as to mootness arose in the context of the appeal. This was because the respondent's conviction in the District Court (which was known at the time of the hearing before the High Court) had since been affirmed on appeal. The Commissioner's view was that the findings in the High Court judgment were of such significance for the operation of the 2013 Regulations that it would urge the court to hear the case even if the Court considered it to be moot. It is also the case that the suitability...