Walsh and Others v Garda Síochana Complaints Board
| Jurisdiction | Ireland |
| Judge | Mr. Justice Fennelly |
| Judgment Date | 18 January 2010 |
| Neutral Citation | [2010] IESC 2 |
| Date | 18 January 2010 |
| Court | Supreme Court |
| Docket Number | [S.C. Nos. 147, 148, 195, 196, 197, 198 & 199 of 2008] |
[2010] IESC 2
THE SUPREME COURT
Hardiman J.
Fennelly J.
Macken J.
BETWEEN:
- and -
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S1(1)
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(1)(A)
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(2)(A)
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(3)(A)
INTERPRETATION ACT 1937 S11(H)
MCGUINNESS v ARMSTRONG PATENTS LTD 1980 IR 289
FREENEY v BRAY URBAN DISTRICT COUNCIL 1982 ILRM 29
MCCANN v BORD PLEANALA 1997 1 IR 264
GARDA SIOCHANA (COMPLAINTS) ACT 1986 S4(3)(iv)
GARDA SIOCHÁNA
Complaints
Time limits - Making of complaint - Computation of time period for making of complaint - Garda Síochána - Complaints Board - Complaint by member of public - Whether complaint made within statutory time frame - Whether date of conduct of complaint included in calculation of time period - Whether date of receipt of complaint included in calculation of time period - Freeney v Bray Urban District Council [1982] ILRM 29, McCann v An Bord Pleanála [1997] 1 IR 264 and McGuinness v Armstrong Patents [1980] IR 289 followed - Garda Síochána (Complaints) Act 1986 (No 29), ss 1(1), 4(1)(a), 4(2)(a) and 4(3)(a) - Interpretation Act 1937 (No 38), s. 11(h) - Applicants' appeal allowed (147, 148, 195, 196, 197, 198 & 199/2008 - SC - 18/1/2010) [2010] IESC 2
Walsh v Garda Siochána Complaints Board
Facts: The issue arose as to the interpretation of a six-month time limit for making complaints against members of the Garda Siochana pursuant to the Garda Siochana (Complaints) Act 1986. The Act of 1986 set out a special procedure for considering whether a complaint complained with the statutory requirements. A complaint was made by telephone on 3rd September, 2004 about conduct that had taken place on 5th March, 2004 and the telephone call was followed up by a letter, pursuant to the complaints procedure provided for in the Act, dated 3rd September, 2004 transmitted by fax, which was received at 00.49.20 hours on 5th September, 2004. If the fax had arrived an hour earlier, it would have been in time. The appellants had failed in the High Court, where the Court had held that the complaint had been properly made by fax on 5th September, 2004. The issue arose as to how to count the six-month period and the appropriate rules applicable pursuant to the Interpretation Act 1937 and whether s. 4(1)(a) of the Act of 1986 prevailed.
Held by the Supreme Court per Fennelly J. (Hardiman, Macken JJ. concurring) that it would make no sense to interpret the two sections so as to contradict each other. The governing requirement evincing sufficient contrary intention was that the complaint would be made within six months of the date of the conduct. The appeal would be allowed and the order of the High Court set aside. An order of certiorari would be substituted quashing the decision of the Board.
Reporter: E.F.
JUDGMENT of Mr. Justice Fennelly delivered the 18th day of January 2010
Fennelly J. [nem diss]
1. There is a six-month time limit for making complaints against members of the Garda Síochána. It is enacted in the Garda Síochána (Complaints) Act, 1986 ("the Act of 1986"). Where, as in this case, the complaint is made on the anniversary date of the event complained of, it would normally be deemed to be late under a special rule in the Interpretation Act. That rule is that the date of any relevant event is included when counting any period which the Oireachtas requires to be measured. The Act of 1986 lays down a special procedure for considering whether a complaint complies with the statutory requirements. That procedure provides the basis for the Board's argument that the complaint is in time.
2. The essential facts are very simple. On 3 rd September 2004 Dr. David Cloran telephoned the chief executive of the Garda Síochána Complaints Board to make a complaint about conduct of the appellants, which had taken place on 5 th March 2004. It is agreed that the telephone call did not amount to the making of a valid complaint: while a complaint may be made orally, section 1(1) of the Act of 1986 provides that "an oral communication transmitted by electronic means" cannot amount to a complaint orally made. At the suggestion of the chief executive, Dr. Cloran followed up the telephone call by a letter of 3 rd September 2004 transmitted by fax to a number of the Board supplied by the chief executive. The fax was received by the Board at 00.49.20 hours on 5 th September 2004. If it had arrived an hour earlier, it would have been in time.
3. The chief executive decided that the complaint was in time. The appellants, each of whom is a member of the Garda Síochána, sought judicial review of that decision in the High Court. Two of the appellants claimed, in addition, that the chief executive had decided that the complaint had been validly made by means of the telephone call on 3 rd September. They pursue that point, insofar as necessary, on the appeal. It will be unnecessary to consider that issue, if the appellants succeed in persuading the Court that the complaint conveyed by fax was, in any event out of time.
4. The appellants failed in the High Court: Hedigan J., in reliance on an English authority concerning a period laid down by contract, held the complaint had been properly made by fax on 5 th September.
5. The Act of 1986 establishes the Garda Complaints Board. The Act lays down procedures for the making of complaints either to the Board, at a Garda station, or to a member of the force of defined rank. Only the first is here relevant. Among the definitions laid down by section 1(1) is that "complaint" means "a complaint under section 4(1)(a) of this Act."
6. Section 4 deals with the making of complaints to the Board. Section 4(1)(a) lays down the procedure, which includes a requirement that a complaint be made "within six months of the date of the conduct." There is no provision for...
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