Ruigrok v The Commissioner of an Garda Síochána and Others

• Jurisdiction: Ireland
• Judge: Mr. Justice Roderick Murphy
• Judgment Date: 19 December 2005
• Neutral Citation: [2005] IEHC 439
• Docket Number: [No. 341 JR/2003]
• Court: High Court
• Date: 19 December 2005

[2005] IEHC 439

THE HIGH COURT

[No. 341 JR/2003]

RUIGROK v GARDA COMMISSIONER

JUDICIAL REVIEW

BETWEEN

BRENDAN RUIGROK

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

GARDA SIOCHANA (COMPLAINTS) ACT 1986

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 8

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989 ART 6

BUTLER, IN RE 1970 IR 45

MCNEILL v CMSR OF AN GARDA SIOCHANA & ORS 1997 1 IR 469

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

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

RSC O.84 r21

DE ROISTE v MIN FOR DEFENCE 2001 1 IR 190 2001 2 ILRM 241

CARR v MIN FOR EDUCATION 2001 2 ILRM 272

ABENGLEN PROPERTIES LTD, STATE v DUBLIN CORP 1984 IR 381 1982 ILRM 590

O'FLYNN v MID-WESTERN HEALTH BOARD 1991 2 IR 223

CONNORS v DELAP 1989 ILRM 93 1988 DULJ 131

WHITE v HUSSEY 1989 ILRM 109 1988 DULJ 133

GARDA SIOCHANA:

Discipline

Delay - Whether delay excessive or in breach of natural justice - Whether order restraining inquiry should be made - Words & phrases - "as soon as practicable" - In re Equitable Insurance Co London [1970] IR 45 and McNeill v An Garda Commissioner [1997] 1 IR 469 considered - Garda Síochána (Discipline) Regulations 1989 (SI 94/1989), reg 8 -Application refused (2003/341JR - Murphy J - 19/12/2005) [2005] IEHC 439

Ruigrok v Garda Commissioner

Facts: The applicant sought an order of prohibition preventing the Commissioner from holding a sworn inquiry in respect of an allegation of discreditable conduct by the applicant in November 1999. The applicant alleged that the delay in holding such inquiry was inordinate and inexcusable and breached his rights to fair procedure and was in breach of his legitimate expectation that serious allegations of misconduct alleged against him would be dealt with expeditiously.

Held by Murphy J. in refusing the application: That it was mandatory for the respondents to investigate the appearance of a breach of discipline as soon as the investigation was feasible as provided for in Regulation 8(1). However, in the circumstances of this case, despite being inordinate, the delay was excusable and in any event the applicant’s conduct was such that it disentitled him to rely on the delay.

Reporter: L.O’S.

Mr. Justice Roderick Murphy

1 This application for judicial review of a decision of the Commissioner of An Garda Síochána to hold a sworn inquiry was originally listed for 22nd May, 2003 in respect of an allegation of discreditable conduct by the applicant on 29th November, 1999,. A complaint had been made in respect of an alleged physical assault by the applicant on two sons of the complainant after a public swimming session.

2 The applicant, in these proceedings, seeks an order of prohibition or alternatively,

(a) an injunction restraining the Commissioner from holding such inquiry,

3 (b) a declaration that the failure by the Commissioner to investigate the matter expeditiously breached the applicant's entitlements to fair procedure constituted a breach of statutory duty and/or breach of the applicant's legitimate expectation of the serious allegations of misconduct alleged against him would be dealt with expeditiously.

4 The grounds on which such relief were sought, and allowed by order of O'Donovan J., granting leave on the 19th of May, 2003, were that the delay was inordinate and inexcusable and breached the applicant's rights; that the Commissioner had actedultra vires and in breach of statutory duty in failing to investigate the alleged breach of discipline and was contrary to natural and constitutional justice. The applicant also alleged that the Commissioner, in purporting to hold a hearing on 22nd May, 2003, in relation to the alleged breach of discipline on 29th November, 1999, had breached the applicant's legitimate expectation that serious allegations would be dealt with expeditiously. This had given rise to the applicant suffering significant additional distress and had prejudiced his ability to defend himself.

5 The respondents said that the first formal complaint, made pursuant to the Garda Síochána Complaints Act, on 28th November, 2000, was found to be inadmissible due to the passage of time. On 17th May, 2001, a fact finding report was requested. The Commissioner relied upon the applicant's representation made in June, 2001 that he intended to adopt a certain course of conduct towards the complainant by apologising unconditionally. For this reason the Commissioner decided not to initiate a formal investigation in the matter. However, the applicant did not do so and that fact was not brought to the attention of the Commissioner until February, 2002.

6 Pursuant to Regulation 8 of the Garda Síochána (Discipline) Regulations, 1989, an officer was appointed on 8th March, 2002, to formally investigate the allegations. On the completion of his report he attempted to effect service of documents directing that the applicant was to be the subject of a sworn inquiry on 19th August, 2002. The applicant could not be served until 14th January, 2003.

7 The Commissioner stated that he had not failed to comply with natural or constitutional justice or fair procedures nor had he actedultra vires nor in breach of statutory duty in purporting to hold a sworn inquiry on 14th April, 2003, relating to the alleged incident of 29th November, 1999.

8 The applicant's affidavit sworn 19th May, 2003, referred to the complaint made by Mr. Declan Kelly in respect of an incident alleging that the applicant physically assaulted two of his sons on 19th November, 1999, at Gormanstown College Swimming Pool. He denied the allegations and said that it was his own son who was the victim of bullying on the occasion in question.

9 A week afterwards, Garda Denis Ford requested that he meet the Kelly Family in order to discuss the incident, which he did. Both Mr. Kelly and he differed as to what had taken place. He received two solicitor's letters from Mr. Kelly.

10 Superintendent Meally was appointed to investigate the complaint with the Garda Complaints Board who ruled the complaint was inadmissible as being out of time.

11 Some short time afterwards, in March, 2001, he was contacted by Superintendent Gallagher and Inspector Galwey informing him that he was under investigation for an alleged assault on the two Kelly children. He was requested by Superintendent Galwey to pay a doctor's bill of £40 and to offer an apology to the Kelly family in order to bring the matter to a conclusion. He said he would meet the family concerned at a neutral venue if a solicitor and an independent member of An Garda Síochána could be present but was not prepared to pay £40 medical expenses for injuries for which he said he was not responsible. As a result, a meeting did not take place.

12 On or about October, 2001 he was contacted by Inspector Gilcrest who asked him to meet the family to which he agreed, subject to the same conditions as before. This was not agreeable to Inspector Galwey.

13 On 8th March, 2002, Inspector Galwey was appointed as investigating officer to investigate a breach of discipline. He met Inspector Galwey on 21st March, 2002. A report was submitted by Inspector Galwey to Chief Superintendent Finnegan on 29th July, 2002. He said he was not served with the documents until 14th January, 2003, when he signed and returned the same promptly.

14 He said that he had previously received a phone call from Inspector Galwey in mid August, 2002 requesting that he call into Balbriggan Garda Station to collect a copy of the book of evidence and form B30 with regard to disciplinary action being taken against him. He replied that he would not be calling into that Garda Station but that he could be served with the papers at his home address and his place of work. He duly attended work on 26th August, 2002. On 6th September, 2002, he was diagnosed with high blood pressure as a result of anxiety and was absent from work on that date until 15th November, 2002.

15 On 11th March, 2003, he was notified that the Commissioner had directed a sworn inquiry be held in respect of disciplinary breach to take place on 14th April, 2003. He contacted his solicitor who asked why it had taken so long for the matter to be determined. He said that no reason had been given for the inordinate delay from November, 1999 to March, 2002 when the investigating officer was appointed and the further period of inordinate, unexplained and significant delay from that date to 14th April, 2003, when the sworn inquiry was scheduled to take place. He said it was now forty-two months since the alleged incident took place and that the matter had adversely affected his feeling of security in his employment for an unduly protracted length of time which had greatly enhanced his stress levels and caused worry to his family.

16 The discipline form (B30) gives particulars of the breaches as follows:

17 1. Discreditable conduct; that is to say conducing yourself in a manner which you knew or ought to have known, would be prejudicial to discipline or reasonably likely to bring discredit upon An Garda Síochána in that on 29th November, 1999, at Gormanstown College, Co. Meath you caught hold of Shane Kelly's finger and bent it backwards causing his finger to swell.

18 The said discreditable conduct is a breach of discipline within the meaning of Regulation 6 of the Garda Síochána (Discipline) Regulations, 1989 and is described at reference No. 1 in the schedule of the said regulations.

19 2. Discreditable conduct: that is to say conducting yourself in a manner which you knew or ought to have known would be prejudicial to discipline or reasonably likely to bring discredit upon the Garda Síochána in that on 29th November, 1999, at Gormanstown College, Co. Meath, you slapped Feargal...