Ryan v Commissioner of an Garda Síochána

JurisdictionIreland
JudgeO'Neill J.
Judgment Date06 October 2009
Neutral Citation[2009] IEHC 424
CourtHigh Court
Date06 October 2009

[2009] IEHC 424

THE HIGH COURT

[No. 688 J.R./2008]
Ryan v Commissioner of An Garda Síochána
JOHN RYAN
APPLICANT

AND

COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENT

GARDA SIOCHANA (DISCIPLINE) REGS 1989 SI 94/1989

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

RUIGROK v CMSR OF AN GARDA SIOCHANA & ORS UNREP MURPHY 19.12.2005 2005/53/11109 2005 IEHC 439

GIBBONS v CMSR OF AN GARDA SIOCHANA UNREP EDWARDS 30.7.2007 2007/26/5247 2007 IEHC 266

KNEAFSEY v CMSR OF AN GARDA SIOCHANA UNREP O'NEILL 20.2.2009 2009 IEHC 89

HENDERSON v HENDERSON 1843 3 HARE 100 67 ER 313

KENNEDY v CMSR OF AN GARDA SIOCHANA UNREP MACMENAMIN 14.3.2008 2008/33/7149 2008 IEHC 72

M (P) v DPP 2006 3 IR 172 2006 2 ILRM 361 2006/37/7964 2006 IESC 22

M (P) v JUDGE MALONE & DPP 2002 2 IR 560 2002/16/3761

C (D) v DPP 2005 4 IR 281 2006 1 ILRM 348 2005/8/1599 2005 IESC 77

K (C) v DPP UNREP SUPREME 31.7.2006 (EX TEMPORE)

H v DPP 2007 1 ILRM 401 2006/27/5802 2006 IESC 55

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

GARDA SIOCHANA (COMPLAINTS) ACT 1986

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

GARDA SÍOCHÁNA

Discipline

Disclosure - Delay - Judicial review - Applicant alleged to have submitted fraudulent claims for payment and expenses - Applicant seeking disclosure of station records - Previous judicial review proceedings compelling respondent to make disclosure - Whether delay inordinate and inexcusable - Whether refusal to furnish documents culpable act contributing to delay - Whether documents necessary and relevant to defence - Whether applicant materially prejudiced by delay - Whether delay should have been raised in previous judicial review proceedings - Whether general jurisprudence on delay applied to operation of regulations - McNeill v Commissioner of An Garda Síochána [1997] 1 IR 469, McCarthy v Garda Síochána Complaints Tribunal [2002] 2 ILRM 341 and Henderson v Henderson (1843) 3 Hare 100 applied; Ruigrok v Commissioner of An Garda Síochána [2005] IEHC 439 (Unrep, Murphy J, 19/12/2005), Gibbons v Commissioner of An Garda Síochána [2007] IEHC 266 (Unrep, Edwards J, 30/7/2007), Kneafsey v Commisssioner of An Garda Síochána [2009] IEHC 89 (Unrep, O'Neill J, 20/2/ 2009), Kennedy v Commissioner of An Garda Síochána [2008] IEHC 72 (Unrep, MacMenamin J, 14/3/2008), PM v. DPP (Unrep, SC, 5th April, 2006), PM v.Malone [2002] 2 IR 560, C(D) v DPP [2005] IESC 77 [2006] 1 ILRM 348, K(C) v DPP (Unrep, SC, 31/7/2006), H v DPP [2006] IESC 55 (Unrep, SC, 31/7/2006) and R v Chief Constable of the Merseyside Police (Ex parte Merrill) [1989] 1 WLR 1077 considered (2008/688JR - O'Neill J - 6/10/2009) [2009] IEHC 424

Ryan v Commissioner of An Garda Síochána

Facts The applicant, who was the subject of a disciplinary proceedings, sought an order of prohibition permanently restraining the respondent and the board of inquiry constituted by the respondent from taking any further steps in those Garda Siochana disciplinary proceedings on the ground that the respondent was guilty of inordinate and inexcusable delay in and about the determination of the disciplinary matters. The applicant sought an order permanently restraining the respondent from taking any further steps in the disciplinary matters due to the respondent's failure to disclose to the applicant relevant documents. The applicant had previously instituted judicial review proceedings arising out of the respondent's failure to provide disclosure. Those proceedings were compromised upon the defendant agreeing to make certain disclosure. The applicant submitted that the respondent was guilty of inordinate and inexcusable delay, which was a breach of the Garda Siochana (Discipline) Regulations 1989 and he pointed to a seventeen month delay before the appointment of an investigating officer and a delay of three years between the first application for disclosure and an agreement to disclose same, and yet a further delay receiving documentation. Furthermore, the applicant submitted that he was still seeking outstanding documentation. The delay issue was not raised by the applicant in the first judicial review proceedings.

Held by O'Neill J. in refusing the application: That in respect of the delay of seventeen months in the appointment of an investigating officer and the delay incurred in the convening of the Board of Inquiry, the well established rule in Henderson v Henderson (1843) 3 Hare 100 applied. The issue of delay should have been raised in the first judicial review proceedings initiated by the applicant herein. However, the wrongful refusal of the respondents to disclose documents was wholly inconsistent with the mandatory obligation of expediency imposed on the respondent under the regulations, which was recognized by the Supreme Court in McNeill v. The Commissioner of An Garda Siochana [1997] 1 I.R. 469. The delay of three years taken up by the earlier judicial review proceedings was the result of culpable delay within the context of the regulations on the part of the respondent. The applicant's defense was not impaired by lack of disclosure of certain documents, having regard to the disclosure already made. Having regard to the serious nature of the allegations involved and their potential to cause serious injury to the reputation to An Garda Siochana and the applicant himself if left without adjudication and the fact that his capacity to defend himself was not materially impaired by the culpable delay, the correct balance between of public interest factors lay in favour of permitting the disciplinary process to proceed to adjudication in the inquiry.

Reporter: L.O'S.

1. Relief sought
2

1.1 Leave was granted by this Court (Peart J.) on the 16 th June, 2008, to the applicant to pursue the following reliefs by way of judicial review proceedings:-

1

An order of prohibition permanently restraining the respondent and the board of inquiry constituted by the respondent from taking any further steps in the Garda Síochána discipline proceedings which are the subject matter of this application.

2

A declaration to the effect that the respondent is guilty of inordinate and inexcusable delay in and about the determination of the Garda Síochána discipline matters as are alleged against the applicant, thereby requiring that the proceedings be quashed or that the respondent be permanently prohibited from the continuance of the same, the delay being so inordinate that it would now be unfair and unjust to proceed further and/or any further proceedings that have the effect of undermining the applicant's constitutional right to natural justice and fairness of procedures in and about the conduct of an inquiry with due expedition should likewise be prohibited.

3

An order of prohibition permanently restraining the respondent from the taking of any further steps in the Garda Síochána discipline matters which are the subject of this application, the respondent having failed, refused or neglected to discover or to disclose to the applicant all of the relevant documents and materials which formed part of a request made by the applicant (and agreed to by the respondent), the documents being necessary for the conduct of the applicant's defence.

4

If necessary, an order of certiorari quashing the Garda Síochána discipline proceedings in so far as they relate to the applicant in their entirety.

2. The facts
2

2.1 The applicant is a member of An Gardaí Síochána and holds the rank of sergeant. He is attached to Kilrush Garda Station. It is alleged that the applicant, between the years 1998 and 2001, submitted overtime payments and claims for travel and subsistence expenses, which at time of submission, he knew to be false. In addition, it is alleged that the applicant, during the same period, submitted his claims for payment in respect of overtime and expenses in circumstances where he had not worked the hours claimed for or was not otherwise entitled to payments or expenses.

3

2.2 On the 14 th March, 2002, Superintendent Patrick Doyle of Westport Garda Station was appointed under the Garda Síochána (Discipline) Regulations 1989 ("the regulations") by Chief Superintendent T.P. Kelly of Ennis Garda Station to conduct a disciplinary investigation into the above allegations. The applicant was subsequently charged, under the regulations, on the 4 th April, 2003, with 36 alleged breaches of discipline relating to prevarication. A Board of Inquiry was appointed on the 6 th May, 2003, pursuant to regulation 14 to determine the applicant's culpability. The applicant strenuously denies these charges.

4

2.3 On the 12 th June, 2003, the applicant's solicitors wrote to Chief Superintendent Rooney, formerly of Ennis Garda Station, seeking disclosure of fifteen categories of documents in order to assist the applicant's defence. These included copies of Forms A85 of all members of the Ennis District between January 1998 and December 2001 and copies of all station diaries for Ennis District for the same period. A Form A85 is the form submitted by members to claim payment for overtime. The station diary is where members record their hours worked each day. It is the applicant's case that the practice was that certain members did not record their hours in the station diary. The applicant outlined the reason he considered these particular papers vital for the conduct of his defence at para. 3 of his affidavit sworn on the 27 th May, 2009:-

"Both the diaries and the said Forms A85 are required by me so as to establish that it was normal practice for members of all ranks to claim and to receive overtime payment notwithstanding any requirement, practice or procedure whereby members of An Garda Síochána signed the station diary at the commencement of a tour of duty. I am in no doubt about the...

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1 cases
  • Gillen v Commissioner of an Garda Síochána
    • Ireland
    • Supreme Court
    • 26 Enero 2012
    ...Ruigrok v Commissioner of An Garda Síochána [2005] IEHC 439, (Unrep, Murphy J, 19/12/2005); Ryan v Commissioner of An Garda Síochána [2009] IEHC 424, (Unrep, Ó Néill J, 6/10/2009) and The State (Elm Developments) v An Bord Pleanála [1981] ILRM 108 considered - Garda Síochána (Discipline) R......

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