Stroker v Doherty

• Jurisdiction: Ireland
• Judge: GRIFFIN J.,McCarthy, J.
• Judgment Date: 01 January 1991
• Neutral Citation: [1990] IESC 4
• Court: Supreme Court
• Docket Number: [S.C. No. 127 of 1989],(127/89)
• Date: 01 January 1991

[1990] IESC 4

THE SUPREME COURT

Finlay C.J.

Griffin J.

McCarthy J.

(127/89)

STROKER v. DOHERTY

THOMAS STROKER

v.

EDWARD J. DOHERTY AND OTHERS

Citations:

GARDA SIOCHANA (DISCIPLINE) REGS 1971 SI 316/1971

KEEGAN & LYSAGHT, STATE V THE STARDUST VICTIMS COMPENSATION TRIBUNAL 1986 IR 642

GARDA SIOCHANA (DISCIPLINE) REGS 1971 SI 316/1971 REG 6

STROKER V DOHERTY & ORS 1989 ILRM 428

POLICE FORCES AMALGAMATION ACT 1925 S8

POLICE FORCES AMALGAMATION ACT 1925 S14

Synopsis:

GARDA SIOCHANA

Discipline

Enforcement - Misconduct - Penalty - Reasonableness - Tribunal - Decision - Judicial review - Principles applicable - Whether decision unreasonable or irrational - Garda Siochana (Discipline) Regulations, 1971, articles, 6, 19 - (127/89 - Supreme Court - 26/7/90) - [1991] 1 I.R. 23

|Stroker v. Doherty|

JUDICIAL REVIEW

Remedy

Principles - Tribunal - Decision - Review - Garda - Dismissal - Justification - Domestic tribunal - (127/89 - Supreme Court - 26/7/90) - [1991] 1 I.R. 23

|Stroker v. Doherty|

TRIBUNAL

Decision

Review - Principles - Garda - Conduct - Domestic enquiry - Dismissal - Justification - Judicial review - (127/89 - Supreme Court - 26/7/90) - [1991] 1 I.R. 23

|Stroker v. Doherty|

1 JUDGMENT delivered the 26th day of July 1990by GRIFFIN J.

2 I also have had the advantage of reading in advance a copy of the judgment about to be delivered by Mr. Justice McCarthy and I agree with it and that this appeal should be allowed. I would like to add a few observations on one aspect of the case.

3 The Garda Siochana is a national police force. In every village and small town in which there is a Garda Station, the Gardai will know and will certainly be known to almost the entire community. The members of the higher ranks of Superintendent; Chief Superintendent, Assistant Commissioner, Deputy Commissioner, and Commissioner do not enter the Force through a cadet corps. They join the Force at the rank of Garda, and those whoreach the higher ranks do so by graduating through the ranks by way of promotion. In the past 5O years I believe that all those who became Commissioner, save one, reached what is the highest rank in the Force in that manner.

4 All those members of the Force who reached the rank of Superintendent and higher ranks have had considerable knowledge and experience of the standards of conduct and of discipline to be expected from members of the Force at all ranks, and are particularly, if not uniquely, equipped to determine whether or not the conduct of any member falls below the required standard. To provide for circumstances in which it is alleged that there has been a breach of discipline on the part of a member of the Force, statutory regulations have been made to ensure a proper and fair investigation of any such allegation. The relevant regulations in this case are the Garda Siochana (Discipline) Regulations, 1971 (S.I. No. 316 of 1971). These provide the detailed procedures to be followed in the course of any such investigation.They also make provision for the procedures to be followed in the event of a decision by the Commissioner, consequent upon the request of the officer who investigates the allegations, to cause an inquiry to be held into the breach of discipline alleged.

5 Where, as in this case, the breach of discipline alleged is, in the opinion of the Commissioner, of so serious a nature as to warrant the information at the inquiry to be given on oath, the inquiry is held by three officers (being Superintendents or higher rank) one of whom at least must be of a rank not lower than Chief Superintendent. The inquiry in this case lasted three days during which all the alleged breaches of discipline were fully investigated. Where, again as in this case, the inquiry decides that the member has been in breach of discipline, the Presiding Officer is required to send to the Commissioner a written report thereof, and this report must state the decision of the inquiry and, where appropriate, its recommendation as to disciplinary action.Where a breach of discipline has been found to have occurred, the Commissioner decides what disciplinary action shall be taken, the member being liable (inter alia) to dismissal.

6 The member who has been found in breach of discipline is given the right to apply to the Commissioner for a review of a decision, and where dismissal has been the penalty decided upon, the right to have the application referred to an Appeal Board consisting of three persons. The Chairman of the Appeal Board is required to be a District Justice or a Barrister or Solicitor of seven years standing at least. The other two members are chosen from a panel of five, (one Superintendent, two Chief Superintendents and two being either an Assistant Commissioner or Deputy Commissioner). In this case, the Chairman of the Appeal Board was a Senior Counsel, and the two remaining members were a Chief Superintendent and Assistant Commissioner respectively.

7 The Appeal Board is required to deal with the matter by considering the verbatim report of the inquiry andany additional information which may be submitted. It may affirm or set aside the decision against which the appeal is taken and, as appears from the judgment of Mr. Justice McCarthy, it affirmed the decision in respect of two of the alleged breaches of discipline, and set aside two of which the member had been found in breach, and the decision of the Appeal Board was communicated to the Commissioner for implementation. The Commissioner implemented the decision and ordered the dismissal of the applicant.

8 The foregoing is a summary of the statutory scheme provided for the investigation of allegations of breach of discipline by members of the Gardai. Those investigating the breaches are, as I stated earlier in this judgment, appropriately equipped to investigate and deal with such allegations. Where the procedures provided for have been carried out, and where there is no allegation (as in this case) that there was not a full and fair hearing at the inquiry, or by the Appeal Board, the Court, in my opinion has no powerby judicial review to substitute its opinion for that of the body provided by law to investigate the matters in question, unless, as stated by Henchy J. in The State (Keegan and Lysaght) v. The Stardust Victims Compensation Tribunal, 1986 I.R. 642, at p.658:

"the impugned decision flies in the face of fundamental reason and common sense."

9 In that case, the Chief Justice and I were the other members of the Court, and although we gave separate judgments each of us adopted that statement of Henchy J. as stating the correct principle to beapplied.

10 In my opinion, under no circumstances could it be held in this case that the decision of the Appeal Board, or that of the Commissioner to dismiss the applicant fell below the required standard.

11 Judgment of McCarthy, J.delivered the 26th day of July, 1990 [FINLAYCONC.]

12 The second, third and fourth Appellants constituted the Appeal Board which sat on the 16th May, 1988 to review the decision of the Board of Enquiry which heard allegations of breach of Garda discipline...