O'SHEA v Commissioner GARDA Síochána

• Jurisdiction: Ireland
• Judge: Miss Justice Carroll
• Judgment Date: 01 January 1994
• Neutral Citation: 1993 WJSC-HC 4278
• Docket Number: 292 J.R./1992,[1992 No.292 J.R.]
• Court: High Court
• Date: 01 January 1994

1993 WJSC-HC 4278

THE HIGH COURT

292 J.R./1992

O'SHEA v. COMMISSIONER GARDA SIOCHANA

BETWEEN

ANDREW O'SHEA

APPLICANT

AND

THE COMMISSIONER OF THE GARDA SIOCHANA, MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

Citations:

GARDA SIOCHANA (DISCIPLINE) REGULATIONS 1989 SI 94/1989 ART 40

GARDA SIOCHANA (DISCIPLINE) REGULATIONS 1989 SI 94/1989 ART S40(1)

GARDA SIOCHANA (DISCIPLINE) REGULATIONS 1989 SI 94/1989 ART 40(2)(a)

GARDA SIOCHANA (DISCIPLINE) REGULATIONS 1989 SI 94/1989 ART 40(3)

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

JORDAN, STATE V COMMISSIONER OF THE GARDA SIOCHANA 1987 ILRM 107

GLEESON, STATE V MIN FOR DEFENCE 1976 IR 280

GARVEY V IRELAND 1981 IR 76

GARDA SIOCHANA (DISCIPLINE) REGULATIONS 1971 SI 316/1971 REG 34

Synopsis:

EMPLOYMENT

Termination

Validity - Garda - Misconduct - Allegation - Commissioner - Powers - Exercise - Natural justice - Fair procedures - Right of garda to be informed of evidence on which allegation based - Judicial review - Proceedings - Remittal - Garda Siochana (Dis cipline) Regulations, 1989 (S.I. 94/89), article 40 - (1992/272 JR - Carroll J. - 25/3/93)

|O'Shea v. Commissioner of the Garda Siochana|

GARDA SIOCHANA

Garda

Dismissal - Misconduct - Allegation - Commissioner - Powers - Exercise - Right of garda to evidence on which allegation based - Natural justice - Fair procedures - (1992/272 JR - Carroll J. - 25/3/93)

|O'Shea v. Commissioner of the Garda Siochana|

JUDICIAL REVIEW

Proceedings

Remittal - Propriety - Garda - Dismissal - Commissioner - Powers - Exercise - Commissioner satisfied about the facts - Dismissal quashed - Proceedings remitted to commissioner to continue investigation of alleged misconduct - (1992/272 JR - Carroll J. - 25/3/93)

|O'Shea v. Commissioner of the Garda Siochana|

NATURAL JUSTICE

Fair procedures

Garda - Dismissal - Misconduct - Allegation - Evidence - Request for nature of evidence on which allegation based - Request re fused - Dismissal quashed on certiorari - (1992/272 JR - Carroll J. - 25/3/93)

|O'Shea v. Commissioner of the Garda Siochana|

1 Judgment of Miss Justice Carroll delivered the 25th day of March 1993.

2 The Applicant has brought Judicial Review proceedings in respect of his dismissal from the Garda Siochana. He was served with Notice of Proposal to Dismiss by the Commissioner subject to obtaining the consent of the Minister for Justice by letter dated the 11th of May 1992. The consent of the Minister was obtained on the 2nd of October 1992 and the actual dismissal was dated the 12th of October 1992 with effect from the 19th of October 1992. He was on suspension until then. The dismissal is challenged on the grounds that the decisions were not made in accordance with the Rules of natural and constitutional justice or in accordance with fair procedures.

3 A power of dismissal is conferred by Article 40 of the Garda Siochana Disciplinary Regulations 1989 (S.I. No. 94 of 1989). It provides in Article 40(1):-

"Notwithstanding anything in these Regulations, the Commissioner may, subject to this Regulation, dismiss from the Garda Siochana any member (not being above the rank of Inspector) whom he considers unfit for retention in the Garda Siochana."

4 Sub-section 2(a) provides:-

"The power of dismissal conferred by this Regulation shall not be exercised except in the following cases -"

(a) Where the Commissioner is not in any doubt as to the material facts and the relevant breach of discipline is of such gravity that the Commissioner has decided that the facts and breach merit dismissal and that the holding of an inquiry could not affect his decision,

5 Sub-section 3 provides:-

"The power of dismissal conferred by this Regulation shall not be exercised -"

(a) in the case of a member who has completed his period of probation without the consent of the Minister

(b) in a case to which paragraph 2 (a) applies, without the member concerned being informed of the material facts and the relevant breach of discipline.

(c) does not apply."

6 The dismissal arose in the following circumstances:- at 4.00 a.m. on the 16th of April 1992 Miss K., a prostitute, called to Harcourt Terrace Garda Station and reported the robbery from her of £85 earlier that morning. She had been soliciting with fellow prostitutes. They were attending to customers when a white car pulled up beside her. The driver and herself agreed a price of £30 for sex and the driver handed her two £20 notes. When she got the money she closed the door and they drove down to the apartments on Wilton Terrace. When they stopped the driver asked for £10 change. Miss K. informed him that she did not have the change and told him she would go and get it. None of her companions had change nor, it appears, did a taxi man also at the scene. The taxi man drove off accompanied by the other two prostitutes. Miss K. was walking along the street still looking for change when the white car pulled up beside her and the driver got out, went over to Miss K. and said "right, money". She alleges that he was holding a wooden baton over her head and he struck her with the baton. She handed him his £40 and he struck her again on the upper arm and demanded the rest of her money. She handed over all her money, £85 in total.

7 At this point the taxi had returned to the scene. The other two prostitutes and the taxi driver all allege that they saw the driver with a baton in his hand but they did not see him use it. All four witnesses noted the registered number of the car but only one of the prostitutes and the taxi driver gave the number in their Statement to be 85D 2414. The car number which was given at Harcourt Terrace in the morning was 85D 2414. In their Statements taken later that day Miss K and the second prostitute gave the number as 85D 2514. Initial Garda inquiries established that the number 85D 2414 was registered to the Applicant at an address which is the address of the Garda Station in Donnybrook. Immediate searches failed to locate the Applicant or his car. At 1.45 p.m. on the 16th of April 1992 the Applicant was interviewed at Donnybrook Garda Station. While he admitted to being in the area at the time, he did not recollect to being involved in the incident. He volunteered his car for technical examination.

8 The Applicant was again interviewed that day at 7.25 p.m.. On this occasion he admitted being with "that woman". He denied assaulting or robbing her but said "I agreed a price of £30 with her for sex". He said he gave her £40 and she left the car. He...