Stephen Murphy v Garda Siochana Ombudsman Commission and Garda Commissioner and Minister for Justice and Equality and Ambrose Whitty and Declan O'Sullivan and Con Cadogan and Ger O'Mahony and Martin Bohane
| Jurisdiction | Ireland |
| Judge | Mr Justice Maurice Collins |
| Judgment Date | 04 February 2021 |
| Neutral Citation | [2021] IECA 26 |
| Docket Number | Court of Appeal Record Nos 2020/151 |
| Court | Court of Appeal (Ireland) |
| Date | 04 February 2021 |
[2021] IECA 26
Haughton J
Murray J
Collins J
Court of Appeal Record Nos 2020/151
THE COURT OF APPEAL
CIVIL
Judicial review – Leave – Extension of time – Appellant seeking leave to seek judicial review – Whether challenge was out of time
Facts: The appellant, Mr Murphy, in December 2017, pursuant to s. 83(1)(a) of the Garda Síochána Act 2005, made a complaint. The essence of the complaint was that the fourth respondent, Garda Whitty, had neglected his duty by failing to properly investigate offences which, according to Mr Murphy, had been committed on 23 August 2017. The first respondent, the Garda Síochána Ombudsman Commission (GSOC), determined that the complaint was admissible and on 31 January 2018, it referred the complaint to the second respondent, the Garda Commissioner, for investigation under the 2005 Act. On 5 February 2018, the sixth respondent, Chief Superintendent Cadogan, appointed the seventh respondent, Superintendent O’Mahony, to investigate Mr Murphy’s complaint pursuant to Regulation 14 of the Garda Síochána (Discipline) Regulations 2007. Superintendent O’Mahony found the member not to be in breach of discipline. On 27 March 2019, Mr Murphy asked GSOC to review the investigation. GSOC was satisfied that the investigation undertaken was appropriate and that the available evidence supported the finding of no breach. Mr Murphy then sought to bring judicial review proceedings, seeking to have the decision of GSOC/the Garda Commissioner/Superintendent O’Mahony quashed/set aside as they were breaches of his constitutional rights, his human rights, data protection and his rights as a victim of crime. He also sought damages and costs. The grounds set out in the Statement of Grounds were as follows: bias by An Garda Síochána towards him because of previous issues; the denial of natural justice and fair procedures; the denial of a proper independent investigation of his complaint that the appointment by the Commissioner of a local Superintendent in the same division was flawed and incompatible with constitutional and human rights and that there was no proper independent appeal system by GSOC. Mr Murphy appealed to the Court of Appeal from the ex tempore judgment and order of the High Court (O’ Regan J) of 2 July 2020 refusing his application for leave to seek judicial review.
Held by Collins J that no basis for any extension of time to allow a late challenge to GSOC’s decision to refer the complaint to An Garda Síochána for investigation was identified in the papers or in submission. Collins J held that the position was the same as regards the appointment of Superintendent O’Mahony. Collins J held that any challenge to the decision by An Garda Síochána not to bring any prosecutions arising from the August 2017 incident was clearly out of time. Collins J held that no basis for any complaint of bias on the part of GSOC in its dealings with Mr Murphy was made out on the papers. Collins J held that Mr Murphy had not established an arguable ground for challenging Superintendent O’Mahony’s decision on fair procedures grounds. Collins J held that he would not grant leave to Mr Murphy to challenge Garda O’Mahony’s decision on the basis of an alleged failure to give reasons. Collins J found that no submission was made to the Court by Mr Murphy to the effect that he had any entitlement to any greater involvement in the GSOC review or was entitled to a more detailed statement of reasons for its conclusion than was set out in GSOC’s letter of 18 July 2019.
Collins J held that he would refuse Mr Murphy’s appeal and affirm the order made by the High Court.
Appeal dismissed.
JUDGMENT of Mr Justice Maurice Collins delivered on 4 February 2021
This is Mr Murphy's appeal from the ex tempore judgment and order of the High Court (O'Regan J) of 2 July 2020 refusing his application for leave to seek judicial review.
There are many parties named as respondents in the title to these proceedings. However, on the hearing of the appeal the Court was informed that the application for leave had proceeded only as against the First Respondent, the Garda Síochána Ombudsman Commission (“ GSOC”) and the Second Respondent, the Commissioner of An Garda Síochána (“ the Commissioner”) and only those Respondents were represented before us (the application for leave having been directed to proceed on notice to them). Mr Murphy represented himself and presented his arguments forcefully but courteously.
The background to the proceedings, and the precise parameters of the proceedings that Mr Murphy seeks to bring, are not as clear from the papers as ought to be the case and there were many gaps in the documents, though many of the missing documents were provided to this Court in the course of the hearing of the appeal.
In any event, the proceedings have their immediate origin in an incident that occurred on the late afternoon of 25 August 2017 when a JCB entering onto lands adjacent to lands owned by Mr Murphy and his sister Anne near Drimoleague, Co Cork collided with the phone line, thereby severing the phone and internet connection to the Murphys' residence. According to Mr Murphy, other damage was also caused to their land but the Court is not in a position to form any view on that.
The JCB was operated by a third party contractor who had been engaged by the neighbouring land owner, a Mr Dermot McCarthy. Mr McCarthy is married to a member of the Gardai who is stationed in Bantry Garda Station. The papers suggest that there has been “bad blood” between the Murphys and the McCarthys going back, it seems, to 1994, which has led to various criminal and civil proceedings, including actions brought by the Murphys that reached the Supreme Court and are the subject of two reserved decisions given by that Court. I do not think it is necessary to refer to these proceedings in any detail. It is sufficient to note that both Mr Murphy and his sister Anne (along with their father, also Stephen, who is since deceased) were convicted of public order offences arising from incidents also involving the McCarthys which took place in June 1996. Judicial review proceedings to quash those convictions failed. However, the Supreme Court subsequently concluded that certain of the Applicant's convictions were erroneous, though it rejected Mr Murphy's claim of malicious prosecution: [2016] IESC 27.
Mr Murphy says that, in addition to the property damage caused by the JCB on 25 August 2017, he observed a number of breaches of the Road Traffic Acts and of Health and Safety legislation on the same date both on the part of the contractor and Mr McCarthy.
Mr Murphy says that, following this “ hit and run” (as he characterises it), he waited for an hour or so to see whether an approach would be made to him. When none was, he contacted Bantry Garda Station and his call was passed to a Garda Whitty, who it seems had responsibility for the Drimoleague area. Mr Murphy spoke with Garda Whitty and he says that the Garda was aggressive, that he referred to his [Mr Murphy's] “ 20 year battle with the Guards” and accused him of causing trouble for the Gardai. According to Mr Murphy, Garda Whitty dismissed his complaints as amounting to a “civil matter.” Garda Whitty did, however, provide the identity of the owner of the JCB to Mr Murphy later that evening.
In reciting these complaints made by Mr Murphy – and the further complaints referred to below – I should make it clear that I am not expressing any view on them whatsoever, still less making any finding that such complaints are justified.
Following some further interaction with Garda Whitty, Mr Murphy resolved to make a formal complaint. Section 83(1)(a) of the Garda Síochána Act 2005 (“ the 2005 Act”) enables a member of the public directly affected by and/or who witnesses alleged misbehaviour by a member of the Gardai to make a complaint to GSOC. Mr Murphy made such a complaint in December 2017. A copy of the complaint form was provided to the Court in the course of the hearing. It is dated 6 December 2017 and appears to have been received by GSOC on 8 December 2017. The essence of the complaint was that Garda Whitty had neglected his duty by failing to properly investigate the offences which, according to Mr Murphy, had been committed on 23 August. The complaint drew attention to the fact that “ the 6 months for DPP prosecution” would be up on 23 February 2018. In answer to a question in the complaint form as whether he believed that there was a reason for the Garda's behaviour, Mr Murphy stated that it was because of who he (Mr Murphy) was (he had earlier referred to his “ 20 year legal battle with the Force”) and also referred to the fact that the Mr McCarthy's wife was a colleague of Garda Whitty in Bantry Garda Station. In answer to a question as to whether he had tried to have the matter dealt with at a Garda station before resorting to GSOC, Mr Murphy stated that he would be “ wasting his time” contacting Bantry Garda Station because “ the landowner's wife” was a Garda there and asserted that there was a “cover-up”.
GSOC acknowledged the complaint by return, enclosing an Information Leaflet about the initial steps in the complaints process. That Information Leaflet is of some relevance having regard to the issue that arises about Order 84, Rule 21 RSC. It clearly indicated that Mr Murphy's complaint (if found to be admissible) would be investigated by a Garda Síochána Investigating Officer (GSIO), usually a Superintendent, who would be not a line manager of the Garda the subject of investigation and...
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