Walsh v Commissioner of an Garda Síochána & Others

• Jurisdiction: Ireland
• Judge: Kearns P.
• Judgment Date: 05 July 2010
• Neutral Citation: [2010] IEHC 257
• Court: High Court
• Date: 05 July 2010

[2010] IEHC 257

THE HIGH COURT

277 JR/[2009]

Walsh v Commissioner of Garda Síochána & Ors

JUDICIAL REVIEW

BETWEEN

PATRICK WALSH

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA AND RORY DEBRUIR, FRANCIS MOORE AND JOHN P. QUIRKE

RESPONDENTS

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 25

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 24

MISUSE OF DRUGS ACT 1977 S3

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 8

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 5

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 SCHED S1

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 SCHED S3(C)

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 SCHED S8(C)

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 PART I

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 PART II

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 23

MCGRATH v CMSR OF AN GARDA SIOCHANA 1991 1 IR 69 1990 ILRM 817 1990/7/2031

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 8(1)

GARDA SIOCHANA (DISCIPLINE) REGS 2007 SI 214/2007 REG 8(2)

MCGRATH v CMSR OF AN GARDA SIOCHANA 1989 IR 241 1990 ILRM 5

GARVEY v MIN FOR JUSTICE & GOVERNOR OF MOUNTJOY PRISON 2006 1 IR 548 2006 1 ILRM 486 2006/26/5597 2006 IESC 3

GARDA SIOCHANA

Disciplinary proceedings

Drugs search - Discreditable conduct off duty on being asked to submit to search - Possession of controlled drug - Disciplinary inquiry prohibited from proceeding pending criminal charge - Dismissal of charge in District Court - Outstanding non criminal charges before disciplinary inquiry - Charges before disciplinary inquiry arising from same circumstances as criminal charge - Whether unfair to continue disciplinary proceedings where acquittal on criminal charge - Whether facts in investigative report capable of consideration under Regulations - McGrath v Commissioner of An Garda Síochána [1991] 1 IR 69 and Garvey v Minister for Justice [2006] 1 IR 548 - Garda Síochána (Discipline) Regulations 2007 (SI 214/2007), reg 5 and 8 - Relief refused (2009/277JR - Kearns P - 05/07/2010) [2010] IEHC 257

Walsh v Commissioner of An Garda Síochána

Facts: The applicant sought an order of prohibition to bar the first named respondent from continuing proceedings between a Board of Inquiry pursuant to the Garda Siochana (Discipline) Regulations 2007. The applicant contended that the Commissioner was acting unfairly and ultra vires in continuing proceedings because the subject matter of the inquiry related to facts which were inconsistent with a District Court acquittal on a criminal charge in 2008. The respondents asserted that the disciplinary issues no longer included a criminal charge and related to different matters. The matters related to the attendance of the applicant at a music festival and the possession of controlled drugs in his possession and resulting behaviour of the applicant. The applicant argued that the statutory provisions did not permit or enable the respondent to withdraw a particular allegation of breach of discipline from the Board of Inquiry and to permit the proceedings continue as to other allegations.

Held by Kearns P. that the circumstances were such that to allow the disciplinary process was not unfair or oppressive. It was unreal and impractical to suggest that a fresh inquiry could be easily arranged. The Court did not believe that the respondents were contaminated by having before the original material or that they were incapable of differentiating between the different charges. It was both lawful and intra vires for the Commissioner to withdraw a particular charge. This was implicit from the case law and the 2007 Regulations themselves. There was no specific provision of the 2007 regulations which prohibited or precluded the withdrawal of an allegation of breach of discipline from a Board of Inquiry by the Commissioner. The reliefs sought would be refused

Reporter: E.F.

1 JUDGMENT of Kearns P. delivered the 5th day of July, 2010

2 In this case the applicant seeks an order of prohibition by way of judicial review to bar the first named respondent and/or the second to last named respondents (hereinafter referred to as "the Board of Inquiry") from continuing proceedings before the Board of Inquiry (established on the 28 ^th February, 2008 pursuant to Regulation 25 of The Garda Síochána (Discipline) Regulations 2007 (hereinafter referred to as "the 2007 Regulations")), the said proceedings being in respect of the matters the subject of a notification signed by the second named respondent on the 18th March, 2008. The applicant contends that the Commissioner is acting unfairly and ultra vires in continuing proceedings before the Board of Inquiry because the subject matter of the inquiry relates to facts which are inconsistent with a District Court acquittal of the applicant on a criminal charge on the 26 ^th November, 2008. The respondents, however, assert that the disciplinary issues no longer include the criminal charge against the applicant and relate to different matters, even if the matters in question arose at the same time as the criminal charge in respect of which the applicant was acquitted. The respondents thus contend that, pursuant to Regulation 25 of the 2007 Regulations, facts from the investigative report can lawfully and fairly be considered by the Board of Inquiry under the terms of the 2007 Regulations.

BACKGROUND

3 The applicant is a member of An Garda Síochána who works in the I.T. Section of Garda headquarters. On the evening of 2 ^nd September, 2007 the applicant was entering the Electric Picnic concert at Stradbally, County Laois when he was searched by a security man who was employed to carry out such searches on patrons entering the concert. The promoters had an obligation to control the event and ensure patrons entering were not in possession of controlled drugs or offensive or potentially offensive weapons. In order to achieve that objective the promoters had employed a specialised security company whose employees were positioned at each entrance to the event. A condition of entry to the event printed on every ticket was that all patrons had to submit to search on request.

4 It is alleged that a struggle took place when the security men endeavoured to search the applicant following which the applicant was brought to a designated search area where he was searched with negative results. It is also alleged that during this sequence of events the applicant identified himself as a garda and further that he used abusive language to a superior officer when asked to submit to the search in question.

5 The Commissioner thereafter established a Board of Inquiry pursuant to the terms of Regulation 24 of the 2007 Regulations and the applicant was notified by letter dated 18 ^th March, 2008 of the establishment of the Board of Inquiry and the details of four separate charges against him which may be summarised as follows:-

6 (1) Discreditable Conduct in that the applicant on the date in question had in his position a controlled drug, to wit, Amphetamine

7 (2) Discreditable Conduct in that on the date in question the applicant failed to submit to a legal drugs search

8 (3) Improper practice in that the applicant identified himself as an off-duty member of An Garda Síochána when required to submit to a drugs search

9 (4) Misconduct towards a member in that the applicant used abusive and insulting language to Sergeant Sylvester Murphy when failing to submit to the drugs search after being directed to do so

10 Criminal proceedings were commenced by Inspector Patrick Murray, (who had been appointed by the first named respondent to investigate the alleged breaches of discipline) and were heard in the District Court in Portlaoise when the applicant was charged under s. 3 of the Misuse of Drugs Act, 1997- 1984 in respect of an accusation of possession of a controlled drug. The applicant was granted leave by way of judicial review on the 19 ^th May, 2008 to prohibit the sworn inquiry from proceeding pending the determination of the criminal proceedings. The criminal proceedings were heard by District Judge Haughton on the 26 ^th November, 2008. At the conclusion of the case for the prosecution, the District Judge acceded to an application for a direction on behalf of the applicant and dismissed the charge against him.

11 In the light of this acquittal, the Commissioner directed that breach No. 1, as outlined above, should not be tried in the proceedings before the Board of Inquiry. Implicit in this direction was that the Board of Inquiry would continue and would consider charges Nos. 2, 3 and 4. The applicant's solicitors then wrote to the Assistant Commissioner contending that as the criminal charges arising out of the same circumstances had been dismissed in Portlaoise it would be ultra vires the 2007 Regulations to continue the proceedings and that any such proceedings would not be in accordance with fair procedures and natural justice.

THE REGULATIONS

12 The 2007 Regulations came into effect on the 1 ^st June, 2007.

13 Regulation 8 of the Regulations provides as follows:-

14 2 "(1) Disciplinary proceedings may be taken against a member under these regulations notwithstanding that proceedings for an offence have been or may be instituted against the member arising out of the same circumstances.

15 (2) Where a member has been acquitted on the merits of an offence, proceedings under these regulations for an alleged breach of discipline shall not be commenced or, if already commenced, continued if-

16 (a) The proceedings would involve conducting an inquiry into the same issues in respect of which the member was acquitted, and

17 (b) In all the circumstances of the particular case and their cumulative effect, it would be unfair and oppressive to...