Raymond Hegarty v The Commissioner of an Garda Síochána
| Jurisdiction | Ireland |
| Judge | Mr. Justice Noonan |
| Judgment Date | 07 December 2021 |
| Neutral Citation | [2021] IECA 328 |
| Docket Number | Record Number: 2021/122 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 328
Noonan J.
Faherty J.
Ní Raifeartaigh J.
Record Number: 2021/122
High Court Record Number: 2020/235JR
THE COURT OF APPEAL
JUDGMENT of Mr. Justice Noonan delivered on the 7th day of December, 2021
The appellant (“the Commissioner”) brings this appeal from the order of the High Court giving liberty to the respondent (“Garda Hegarty”) to cross-examine Chief Superintendent Margaret Nugent, who has sworn a number of affidavits on behalf of the Commissioner in these proceedings.
The High Court delivered a written judgment on the 15th March, 2021 setting out the facts in detail which I propose to summarise. Garda Hegarty is alleged to have engaged in inappropriate conduct while on duty in Lismore Garda Station, County Waterford in March 2017 which constituted breaches of garda discipline. This gave rise to a complaint to the garda authorities. The behaviour complained of is not disputed by Garda Hegarty. As a result of this complaint, a disciplinary process was commenced under the provisions of the Garda Síochána (Discipline) Regulations 2007 S.I. 214 of 2007 (“the Regulations”).
A Board of Inquiry was established to investigate the complaint, which it did in September 2018. The Board of Inquiry determined that Garda Hegarty should be required to retire or resign as an alternative to dismissal for the first alleged breach of discipline and that he be subjected to a deduction of two weeks' pay in respect of the second breach. On the 25th October, 2018, the Commissioner ordered that the sanction be imposed.
Garda Hegarty appealed on the 30th October, 2018, as he was entitled under the Regulations, and a Board of Appeal was established in mid-2019. It heard the appeal in September 2019 and gave its decision on the 9th January, 2020. It determined that the first penalty imposed by the Board of Inquiry was disproportionate and substituted a reduction in pay for four weeks. It left the second penalty unchanged.
This did not prove to be the end of the matter however, because on the 24th January, 2020, Garda Hegarty was suspended. The reason for the suspension was stated to be that the Commissioner was considering Garda Hegarty's position pursuant to s. 14 of the Garda Síochána Act, 2005 as amended. That section provides, in relevant part, as follows:-
“14(2) Notwithstanding anything in this Act or the regulations, the Garda Commissioner may dismiss from the Garda Síochána a member not above the rank of inspector if—
(a) the Commissioner is of the opinion that—
(i) by reason of the member's conduct (which includes any act or omission), his or her continued membership would undermine public confidence in the Garda Síochána, and
(ii) the dismissal of the member is necessary to maintain that confidence,
(b) the member has been informed of the basis for the Commissioner's opinion and has been given an opportunity to respond to the stated basis for that opinion and to advance reasons against the member's dismissal,
(c) the Commissioner has considered any response by the member and any reasons advanced by the member, but the Commissioner remains of his or her opinion, and
(d) the Authority consents to the member's dismissal. …”
The initial suspension was renewed and subsequently continued.
On the 30th March, 2020, Garda Hegarty obtained leave to seek judicial review of the decision to suspend him but prior to service of those proceedings, on the following day, the 31st March, 2020, the Commissioner wrote to Garda Hegarty stating that he was of the opinion that by reason of Garda Hegarty's behaviour and conduct in March 2017, his continued membership would undermine public confidence in An Garda Síochána and his dismissal pursuant to s. 14 was necessary to maintain that confidence.
The letter stated that the Commissioner had considered the decision of the Appeal Board but notwithstanding same, he must take cognisance of his broader responsibilities and duties as Commissioner. Garda Hegarty was invited to submit a response by the 29th April, 2020. Thereafter, the judicial review proceedings were amended to challenge this letter as well as the suspension. The amended statement of grounds seeks, inter alia, the following reliefs: at (v) a declaration that the suspension is ultra vires the Commissioner and at (ix), an order of certiorari of the determination of the Commissioner as set out in the letter.
The pleaded grounds relied upon in support of relief (ix) include the following:-
“31. [ The letter of the 31st March] subverts the determination of the Appeal Board, made pursuant to Regulation 27 of the Garda Síochána (Discipline) Regulations, 2007 and is therefore:
(i) ultra vires the Respondent;
(ii) irrational;
(iii) an abuse of process;
(iv) in breach of natural and constitutional justice; and
(v) a decision that cannot properly be made.
32. By ignoring and/or failing to implement the decision of the Appeal Board the Respondent is in breach of Regulation 37(5) of the Garda Síochána (Discipline) Regulations, 2007.
33. The failure of the Respondent to conduct an inquiry as to whether the Applicant's continued membership of An Garda Síochána would undermine public confidence in that body, before making this determination was in breach of the Applicant's right to fair procedures and natural justice.
34. The failure of the Respondent to advise the Applicant of his concerns, to appraise ( sic) him of the basis upon which they arose, and to invite his response, before making this determination, was in breach of the Applicant's constitutional rights to fair procedures and natural justice.”
It is important to point out that there appears to be no factual dispute between the parties concerning any of these pleas. The Commissioner does not contend that he conducted an inquiry of the kind mentioned prior to writing the letter of the 31st March, 2020. Further, it is not in dispute that the Commissioner did not communicate with Garda Hegarty prior to writing the letter to advise him of his concerns or invite a response.
In his statement of opposition, the Commissioner pleads, inter alia, at para. 19 that the s. 14 procedure was initiated by him independently from the procedure followed pursuant to Part 3 of the 2007 Regulations. There is a further plea at para. 23 that the process pursuant to s. 14 is a separate and distinct process from that obtaining under the Regulations and the Commissioner has lawfully operated the provisions of the section.
The statement of opposition is verified in an affidavit sworn on the 18th June, 2020 by Chief Superintendent Margaret Nugent, head of Garda Internal Affairs.
On the 6th January, 2021, Garda Hegarty issued a motion seeking an order pursuant to O. 40, r. 1 of the RSC directing the attendance of Chief Superintendent Nugent for cross-examination. The motion was grounded upon the affidavit of Garda Hegarty's solicitor, Elizabeth Hughes, sworn on the 16th December, 2020.
In her affidavit, Ms. Hughes draws attention to certain pleas in the statement of opposition which were verified by C.S. Nugent, including that the s. 14 procedure was initiated by the Commissioner independently from the procedure followed pursuant to the Regulations and that the procedure, as required by both the Regulations and s. 14, had been fully adhered to throughout the process.
She refers to C.S. Nugent's affidavit and notes that it was not sworn by any decision maker who made the impugned decisions. At para. 6 of her affidavit, she avers that C.S. Nugent cannot give evidence as to the state of mind of the Commissioner in invoking s. 14 or to the matters considered by him in deciding to invoke those powers. At para. 7, she points to the fact that O. 40, r. 4 requires affidavits to be confined to facts within the knowledge of the deponent.
She refers to the fact that an application for interrogatories made by Garda Hegarty was refused by the High Court. She continues at para. 9:-
“The Applicant herein does not accept that ‘the Section 14 procedure was initiated by the Respondent independently from the procedure followed pursuant to part 3 of the 2007 Regulations’. Furthermore, the Applicant does not accept that ‘the procedures required by the Garda Síochána (Discipline) Regulations as amended and by section 14 of the Garda Síochána Act, 2005, as amended have been fully adhered to throughout this process’.”
Ms. Hughes goes on to say in para. 10 of her affidavit that the applicant does not accept the facts contained in the statement of opposition and does not have the means of knowledge necessary to contest them, absent cross-examination of the deponent. She further avers that the court cannot be required to determine the issues arising on the basis of hearsay evidence and consequently, it is necessary for the applicant to establish that the matters contained in the statement of opposition are not facts upon which the court has evidence upon which it can rely.
Her conclusion is as follows (at para. 10):-
“In all the circumstances, where the Respondent seeks to rely on facts set out in the statement of opposition, it is necessary to cross-examine Chief Superintendent Nugent to establish on oath whether she had the requisite means of knowledge or not.”
It is clear, therefore, that the primary basis upon which the motion seeking cross-examination was advanced was that it was necessary to determine whether C.S. Nugent was purporting to give hearsay evidence or not. Ms. Hughes also appears to suggest that Garda Hegarty should be permitted to cross-examine C.S. Nugent because he “does not accept” two matters in particular; first, that the s. 14 procedure was initiated independently from the procedure under the...
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