Court of Appeal: Garda under investigation for using discriminatory language loses challenge to investigation

About this case:

• Judgment:
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Finding that the Garda authorities were not precluded from the commencement of disciplinary proceedings after the member of the force was acquitted of criminal charges, Mr Justice Gerard Hogan also found that the decision of the Garda Síochána Ombudsman Commission to inform the member that the matter would not be pursued further did not bind the Garda Commissioner from taking separate action.

Background

In June 2010 Garda Thomas McKenna was alleged to have used unprofessional and discriminatory language towards a foreign national in custody in Waterford Garda station, and was alleged to have used excessive force.

The Garda Commissioner referred the matter to Garda Síochána Ombudsman Commission (GSOC) under s. 102 of the Garda Síochána Act 2005 later day. GSOC investigated the matter under s. 98 of the Garda Síochána Act 2005 and then referred the matter to the Director of Public Prosecutions.

The DPP presented charges and in the District Court in December 2011, Garda McKenna was convicted of assaulting the prisoner under s. 3 3 of the Non-Fatal Offences against the Person Act 1997.

On appeal to the Waterford Circuit Court in April 2013, the alleged victim did not attend Court and therefore the DPP did not present any evidence. As a result, Garda McKenna was acquitted of the offence.

Later that month, Garda McKenna was notified in a letter from GSOC that its investigation had concluded and that it would not be pursuing the matter any further.

Further Disciplinary Action

Garda McKenna was informed that the Garda authorities continued to examine the question of further disciplinary action.

In June 2013 the Chief Superintendent of Waterford Division appointed a Superintendent to investigate disciplinary aspects of the incident.

In May 2014 Garda McKenna was informed that a Board of Inquiry to investigate three disciplinary charges had been established by the Commissioner in accordance with Article 27 of the Garda Síochána (Discipline) Regulations 2007 (S.I. No. 214 of 2007).

The charges to be investigated were:

Judicial Review Proceedings

Garda McKenna applied to the High Court for orders restraining the prosecution of the disciplinary charges, and in March 2016, Ms Justice Baker refused the relief sought.

In the Court of Appeal, Garda McKenna submitted that the structure of the Garda Síochána Act 2005 meant that if GSOC took disciplinary action there was “no further role for the Garda authorities to take fresh disciplinary proceedings, at least absent a positive decision to this effect on the part of GSOC itself”.

Agreeing with the findings of the High Court, Justice Hogan said there was nothing in the Garda Síochána Act 2005 expressly precluding the commencement of disciplinary proceedings following acquittal in a criminal prosecution which GSOC itself had recommended.

In the alternative Garda McKenna queried when, based on provisions of Article 8 of the Garda Síochána (Discipline) Regulations 2007 (S.I. No. 214 of 2007), disciplinary proceedings may be continued against a member of the force despite being acquitted of any criminal charge.

Emphasising the importance of Article 8(2), Justice Hogan identified three questions to consider:

Considering the first question, Justice Hogan rejected the High Court’s conclusion that the acquittal was “not an acquittal on the merits” due to the fact that the acquittal resulted from the alleged victim not attending court. Justice Hogan said that the Court could not “look behind the decision” of the DPP to offer no evidence. As such, Justice Hogan held that Garda McKenna’s acquittal must be regarded as an acquittal on the merits for the purposes of Article 8(2).

In relation to the second question, Justice Hogan held that Garda McKenna could demonstrate that two of three disciplinary charges involved an investigation into the same facts as the criminal prosecution. However, this requirement was not satisfied in the case of the charge of using unprofessional language towards the prisoner.

Finally, Justice Hogan held that Garda McKenna could not demonstrate on the facts that the commencement or continuation of any of these disciplinary charges would be oppressive or unfair within the meaning of Article 8(2). Considering Gillen v. Garda Commissioner IESC 3, 1 I.R. 574, Justice Hogan said that the inevitable strain, distress and upset caused by investigation into wrong-doing was not “of itself” a reason to justify the prohibition of disciplinary proceedings.

Legitimate Expectation

Justice Hogan also rejected the assertion that Garda McKenna had a legitimate expectation that no further action would be taken, due to the letter received from GSOC in the wake of his acquittal. Based on the finding that the Garda Síochána Act 2005 did not preclude the Garda authorities from taking separate disciplinary action, Justice Hogan said that the representation given by GSOC could not bind the Garda Commissioner. Justice Hogan was further satisfied that Garda McKenna had been informed after a short interval that disciplinary proceedings were under active consideration – as such, their commencement could not be said to have been unfair or oppressive.