Thomas Murphy v The Commissioner of an Garda Síochána

• Jurisdiction: Ireland
• Judge: Mr Justice Max Barrett
• Judgment Date: 11 May 2021
• Neutral Citation: [2021] IEHC 354
• Date: 11 May 2021
• Docket Number: [2020 No. 40 JR]
• Court: High Court

Between

Thomas Murphy

Applicant

and

The Commissioner of an Garda Síochána

Respondent

[2021] IEHC 354

[2020 No. 40 JR]

THE HIGH COURT

Fair procedures – Presumption of innocence – Garda Síochána (Admissions and Appointments) Regulations 2013 reg. 12 – Applicant seeking an order of certiorari – Whether the respondent could seek submissions without providing the applicant with the documentation that the respondent proposed to rely upon

Facts: The applicant, probationer Garda Murphy, applied to the High Court seeking as his principal reliefs: (i) an order of certiorari in respect of the determination of the respondent, the Commissioner of An Garda Síochána, pursuant to reg. 12 of the Garda Síochána (Admissions and Appointments) Regulations 2013, to dispense with the applicant’s services as a probationary member of An Garda Síochána; (ii) an injunction preventing or restraining the respondent from dismissing the applicant from An Garda Síochána; (iii) an order of prohibition restraining the respondent from dismissing the applicant from An Garda Síochána; or (iv) such further or other relief as to the court shall seem meet. The essence of the applicant’s case was that the Commissioner, when dealing with a probationer Garda with whose services he proposes to dispense, cannot make findings of fact in the absence of a hearing, rely on such findings of fact to form a proposal to dispense with the probationer’s services, and then seek submissions without providing the probationer with the documentation that the Commissioner proposes to rely upon.

Held by Barrett J that there were a number of objectionable legal flaws presenting in what had occurred, this in a context where submissions were made on 8th January 2020, the Commissioner never bothered to issue any reply of any nature by 14th January and after that date was at large to reach a decision to dismiss (if so minded), the order of the leave judge on 20th January 2020 being all that eventually held him back in this regard. Barrett J held that the applicant was constrained in such submissions as he could make by the presumption of innocence that he enjoyed in the then pending criminal proceedings and by the failure to provide him with such materials as the Minister proposed to rely upon. Barrett J held that, from 14th January 2020, the applicant was at risk of an adverse decision against him until the stay order issued from the leave-granting judge, and the Commissioner (or his advisors) did not deign to reply to the letter of 8th January 2020 until the shenanigans of August 2020 (some seven months later) saw the requested documentation issue to the applicant when, remarkably a second reg. 12(9) notice also issued to him. The court did not see that so tainted a process could be rescued via reg. 12(10) or (11).

Barrett J held that relief (i) as sought could not be granted; there had been no such determination. Barrett J found it difficult to conceive of circumstances in which a court would so interfere with the internal operation of An Garda Síochána as to grant relief (ii) or (iii) as sought; such circumstances did not present in this case. Whether as a variant of relief (i) and/or as a form of relief (iv), the court proposed quashing the notice of 17th December 2019 (or, more particularly, the decision to issue that notice at the time and in the circumstances in which it issued). The court was conscious that this proposed relief was not expressly sought, nor was it discussed at the hearing. Thus, the court scheduled a brief further hearing should the parties wish to make any submissions as to the proposed relief. Barrett J held that as the applicant had won his application he seemed to have a fairly unanswerable case to be awarded his costs; however, if counsel for either side took a different view the court would schedule a brief costs hearing.

Application granted.

JUDGMENT of Mr Justice Max Barrett delivered on 11th May 2021.

A. Subject of Judgment

1 There was a lot of argument over the 1 ¹/₂ days that this case was at hearing. So it may be useful for the court to state at the outset what this application is concerned with from a legal perspective. It is an application concerned with fair procedures and also with the fact that P/Garda Murphy, when invited to make submissions about his prospective dismissal, was not given the information on which the Commissioner as decisionmaker proposed to rely. It is not a case in which reasonableness is challenged. The essence of P/Garda Murphy's case is that the Commissioner, when dealing with a probationer Garda with whose services he proposes to dispense, cannot (i) make findings of fact in the absence of a hearing, (ii) rely on such findings of fact to form a proposal to dispense with the probationer's services, and (iii) then seek submissions without providing the probationer with the documentation that the Commissioner proposes to rely upon.

B. Probationer Gardaí

2 It is as well to get one issue out of the way before proceeding with a consideration of the more substantive matters at play. This application is brought by Probationer Garda (or ‘P/Garda’) Murphy. However, his counsel claims that in law there is no such thing as a ‘probationer’ Garda, that one can be a ‘trainee’ Garda and then, once attested as a member of the force, one becomes a ‘Garda’ but that the concept of a probationer Garda is something unknown to law. There is no doubt that a so-called ‘probationer’ Garda is an attested member of An Garda Síochána. However, that does not mean that it is not possible for the Commissioner to distinguish between e.g., probationer Gardaí and non-probationer Gardaí (the latter being Gardaí within typically the first two years of their careers as Gardaí, though this period is subject to extension). Section 123 of the Garda Síochána Act 2005, which is concerned with the making of disciplinary regulations, expressly provides, amongst other matters, at subsection (6), that “The regulations may…(b) provide for the taking of different forms of disciplinary action against members of the Garda Síochána based on their rank or on any other factor”, the phrase “any other factor” patently including the period of time that has elapsed since once's attestation as a member of An Garda Síochána.

3 Little if any of the foregoing will come as a surprise to P/Garda Murphy. On 30th January 2018, around the time that he became a trainee Garda, P/Garda Murphy signed up, amongst other matters, to the Garda “Code of Professional Practice” which provides, amongst other matters (at p.20) that “Probationer Gardaí are in a unique position as they are attested with Garda powers at the end of Phase 1 of their programme of study. Therefore, they occupy a privileged position in that he or she has full Garda powers while still undergoing training”.

C. Background

4 In the early hours of New Years' Day 2019, P/Garda Murphy, then 20 years of age, so a very young man, came to the attention of fellow Gardaí while ‘out on the town’. As a consequence of his interactions with certain of those Gardaí, P/Garda Murphy was later charged with a public order offence and under the Road Traffic Acts. Following on the foregoing, the Garda Commissioner, by notice of 17th December 2019, invoked the Garda Síochána (Admissions and Appointments) Regulations 2013, and advised that he proposed to dispense with P/Garda Murphy's services. The notice, as required by the regulations, afforded P/Garda Murphy 28 days to make submissions as to the Commissioner's proposal.

5 Probationer Garda Murphy contends that there was a fundamental deficiency in how the Garda Commissioner approached the proposed dispensing with his services and has come to court seeking certain reliefs. Out of respect for P/Garda Murphy's privacy the court does not propose to go into more detail concerning the events of New Year's Eve/Day 2018/2019. It is really with the process to which the letter of 17th December 2019 relates that these proceedings are concerned. For the assistance of the parties, the court notes that it accepts as correct the facts as stated in the statement of grounds under the heading “Facts” (paragraphs 1–7) (Book of Pleadings, pp.4–6).

6 In his notice of 17th December 2019, the Garda Commissioner states as follows (the square bracketed bold numbers have been inserted by the court):

“ [1] I…hereby give you notice that I propose to dispense with your services as a member of the Garda Síochána.

[2] Regulation 12(8)(a) of the Garda Síochána (Admissions and Appointments) Regulations 2013 provides that [– it provides for dispensing with the services of a probationer and is considered more fully later below.]

[3] Your suitability with regard to your behaviour and/or disciplinary record has been assessed and the following allegations of commission/omission on your part have been brought to my attention:-[the alleged events of the early hours of New Year's Day 2019 are recounted]

• 1 …

• 2 …

• 3 …

• 4 …

• 5 …

• 6 …The behaviour displayed by you on 1st January 2019 does not represent behaviour that is consistent with that expected of a member of An Garda Síochána. Furthermore, it does not attribute [sic – attest?] to your suitability and ability to serve as an efficient and effective member of An Garda Síochána.

[4] This is a serious matter and I have to consider and decide whether you are likely to become an efficient and well-conducted member of the Garda Síochána in accordance with Regulation 12(8)….

[5] Before doing so, I hereby give you an opportunity in accordance with Regulation 12(9) [considered later below] of the Regulations of advancing to me on or before the 14th of January 2020 (28 days from date of this notification), any submission you wish to make concerning the allegation(s).”

[Emphasis added]

7 Probationer Garda Murphy maintains that the Commissioner's notice involves findings of fact....