O'Neill v The Commissioner of an Garda Siochana

• Jurisdiction: Ireland
• Judge: Mr. Justice Allen
• Judgment Date: 11 September 2020
• Neutral Citation: [2020] IEHC 448
• Docket Number: [2020/ No. 3036 P.]
• Court: High Court
• Date: 11 September 2020

BETWEEN

EDMUND ANTHONY O'NEILL

PLAINTIFF

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND

AND

THE ATTORNEY GENERAL

DEFENDANTS

[2020] IEHC 448

Allen

[2020/ No. 3036 P.]

THE HIGH COURT

JUDGMENT of Mr. Justice Allen delivered on the 11th day of September, 2020

Introduction

1 This is an application for an interlocutory injunction requiring the Commissioner of An Garda Síochána to restore to duty a Garda Superintendent who has been suspended on pay pending the outcome of two ongoing criminal investigations, a disciplinary enquiry upon which a Board of Inquiry has been convened, and a further disciplinary investigation into further allegations.

2 Mr. Louis McEntagart S.C., for the plaintiff, prefers to characterise the application as - or insists that it is, as it is formulated in the notice of motion - an application for an injunction restraining the Commissioner from continuing the suspension and for an order “mandating and directing the [Commissioner] to forthwith lift the suspension,” but it seems to me that it amounts to the same thing.

3 The plaintiff is critical of the progress of both criminal investigations and of the disciplinary investigation, but the motion is directed only to the suspension. The order if made would entitle the plaintiff to resume his duties. At the time of the hearing of the motion the plaintiff's case was that he was medically unfit for duty and that there was no clear prognosis as to when he would be fit for duty. The immediate effect of the order sought would be that the plaintiff would move from his current status to sick leave, but it would mean that upon his recovery he would be restored to duty.

The evidence

4 The plaintiff is a member of An Garda Síochána of about 30 years standing. He rose through the ranks to Superintendent, in which rank he has served since 2016. Superintendent O'Neill has served in a number of stations, mostly in the Limerick Division.

5 On the morning of 15th May, 2019 Superintendent O'Neill was arrested at home, pursuant to s. 4(3) of the Criminal Law Act, 1997, on suspicion that he had committed an offence contrary to s. 62 of the Garda Síochána Act 2005 – the disclosure of information obtained in the course of carrying out his duties which was likely to have a harmful effect - and taken to Athlone Garda Station. At the same time, on the authority of a warrant signed by a judge of a District Court, his home was searched, and a number of electronic devices were seized.

6 The suspicion that had fallen on Superintendent O'Neill was that he had disclosed information relating to an investigation which was being conducted by the Garda National Bureau of Criminal Investigation into alleged criminal activities of a member of An Garda Síochána of Garda rank, attached to the Limerick Division. The affidavits of Superintendent O'Neill show that his belief – presumably by reference to a question or line of questioning asked in the course of his detention – is that he is suspected of having tipped off the Garda that he was under investigation, but it is not at all clear that the investigation into the alleged disclosure is so confined.

7 The investigation into the activities of the Garda had commenced in November, 2018 and had been given the code name Operation Foray. In the course of that investigation, Superintendent O'Neill had been observed on 9th January, 2019 in a public house called Hurlers Bar at Dublin Road, Castletroy, Co. Limerick, in the company of the Garda and another member of the force of Inspector rank. The suggestion is that Superintendent O'Neill arrived at the public house in his car and that over the course of a little less than two and a half hours, while on duty, drank a number of pints of beer before leaving the bar and driving away. It is further suggested that on the same occasion the member of Inspector rank, while in the company of Superintendent O'Neill, was seen to place something on the back of his left hand, balance it, and, placing his right index finger to his nostril, to lean forward and sniff it. The surmise of the Detective Garda who viewed the CCTV footage of the meeting was that what the Inspector was shown to have done was indicative of cocaine use.

8 When Superintendent O'Neill arrived in Athlone Garda Station at 7.45 a.m. on the morning of 16th May, 2019, he was detained pursuant to s. 4 of the Criminal Justice Act, 1984 – initially for a period of six hours on the authorisation of the member in charge, and then for further periods of six hours and twelve hours on the direction of a Superintendent and a Chief Superintendent – for the investigation of the suspected offence contrary to s. 62 of the Act of 2005.

9 At 5.15 p.m. on 16th May, 2019 Superintendent O'Neill was suspended from duty pursuant to regulation 7 of the Garda Síochána (Discipline) Regulations, 2007 by Assistant Commissioner Michael Finn, who had been authorised under s. 31 of the Garda Síochána Act, 2005 to perform the functions of the Commissioner under the Regulations.

10 The suspension order showed the reasons for the suspension as being the plaintiff's alleged disclosure of information relating to Operation Foray and his alleged presence at Hurlers Bar in the company of another member of An Garda Síochána who allegedly consumed a substance suspected of being a controlled drug. The suspension order first served erroneously showed the date of the incident in Hurlers Bar to have been 1st February, 2019 rather than 9th January, 2019 but no complaint is made of that mistake, which was promptly corrected when Superintendent O'Neill's solicitor, Mr. Daniel J. O'Gorman, suggested that the date on the order should be checked.

11 Meanwhile, on 16th May, 2019, on the authority of a warrant signed by a judge of the District Court, a search was conducted of Superintendent O'Neill's office and office safe at Roxboro Garda Station and a number of mobile telephones were taken away for forensic examination.

12 The suspension order signed by Assistant Commissioner Finn on 16th May, 2019 took effect from 5.15 p.m. that day and was effective until 6.00 a.m. on 1st August, 2019. Assistant Commissioner Finn signed three further suspension orders: on 24th July, 2019 effective from 6.00 a.m. on 1st August, 2019 to 6.00 a.m. on 1st November, 2019; on 25th October, 2019 effective from 6.00 a.m. on 1st November, 2019 to 6.00 a.m. on 1st February, 2020; and on 24th January, 2020, effective from 6.00 a.m. on 1st February, 2020 to 6.00 a.m. on 1st May, 2020. In each case the stated grounds for the suspension were the alleged disclosure of information relating to Operation Foray and the alleged incident in Hurlers Bar.

13 On 29th June, 2019 Chief Superintendent Michael Gubbins was appointed as Investigating Officer pursuant to regulation 23 of the 2007 Regulations to investigate the alleged disclosure of information in relation to Operation Foray and the alleged incident in Hurlers Bar and, in accordance with regulation 24, a formal notice of that appointment, Form I.A. 32, was served on Superintendent O'Neill on 16th July, 2019.

14 In the meantime, on 12th July, 2019, Mr. O'Gorman had written a long letter to the Garda Commissioner. On the one hand, he complained bitterly at the allegedly heavy handed and disrespectful manner in which Superintendent O'Neill had been arrested and his home searched, and on the other disclaimed any suggestion “(at this time)” that those involved in the search had acted illegally. Mr. O'Gorman protested his client's innocence, asserted his client's right to expedition in the conduct of the investigation, and complained that information had been leaked to the media. The letter concluded with a nine paragraph request for information and documents, said to have been made pursuant to Superintendent O'Neill's right to information under articles 5(4), 6(1) and 6(3) of “EHCR” Directive 2012/13/EU of 22nd May, 2012. I will come in due course to the detail of the information and documents requested.

15 By letter dated 17th July, 2019 Superintendent O'Neill, by Mr. O'Gorman, declared himself to be ready, willing and able to engage with Chief Superintendent Gubbins. Chief Superintendent Gubbins acknowledged that letter and Superintendent O'Neill's position by letter of 9th August, 2019 and indicated that he would be in contact in due course to arrange an interview. Chief Superintendent Gubbins invited Superintendent O'Neill, in the meantime, to provide him with any information, document or thing which he, Superintendent O'Neill, felt might be relevant to the investigation or would assist Chief Superintendent Gubbins in establishing the facts.

16 In a memorandum of 9th August, 2019 to Superintendent O'Neill and a letter to Mr. O'Gorman of the same date, Chief Superintendent Gubbins advised that his investigation of the first aspect of his appointment - the alleged disclosure of information relating to Operation Foray - was being put in abeyance because it was the subject of an ongoing separate criminal investigation. However, said Chief Superintendent Gubbins, he would be progressing the remaining aspect of his appointment and would be in contact in due course to arrange an interview. Chief Superintendent Gubbins renewed his invitation to Superintendent O'Neill to provide, in the meantime, any information, document or thing which Superintendent O'Neill felt might be relevant or might assist.

17 On 2nd September, 2019 Mr. O'Gorman (who had been on leave for a good part of August) acknowledged Chief Superintendent Gubbins's letter of 9th August, 2019 and noted its contents. He wrote:-

“I understand that part of your investigation is being held in abeyance as a criminal investigation is still ‘developing’. My client looks forward to such developments that will create circumstances which will involve you meeting with my client with a view to progressing and finalising your...