About this case:

• Citation:
  [2019] IECA 288
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Finding that the Commissioner was deficient in responding to the assertion that the Garda had pleaded guilty only on the basis of receiving a monetary sanction, Mr Justice George Birmingham said the decision could not stand.

Background

In 2012, the Garda Síochána Ombudsman Commission (GSOC) launched an investigation into allegations made against the applicant, Colm O’Flaherty, who, at the time, was a member of the Gardaí. An allegation of sexual assault on a named female had been made against Mr O’Flaherty, as well as a number of related allegations of discreditable conduct relating to the same female.

The DPP directed that there should be no criminal prosecution; however, a further inquiry was conducted addressing the question of whether there was evidence of breaches of the Garda Síochána (Discipline) Regulations 2007. Thereafter, a report was furnished to the Commissioner of An Garda Síochána recommending disciplinary action.

A notice furnished to Mr O’Flaherty referred to six matters stated to amount to discreditable conduct, corrupt or improper practices, abuse of authority and neglect of duty.

The Board of Inquiry

In 2013, a Board of Inquiry was established to determine if Mr O’Flaherty had committed a serious breach of discipline. On the second day of the hearing before the Board, Mr O’Flaherty pleaded guilty to the charges he faced, and the Board recommended sanctions in the form of pay reductions for each of the disciplinary charges, totalling €22,693.22.

The Commissioner is not bound to accept recommendations from the Board, and thus informed Mr O’Flaherty that he proposed a more severe disciplinary action – namely, the requirement to resign as an alternative to dismissal.

Mr O’Flaherty’s solicitor urged the Commissioner not to impose a sanction greater than the Board’s recommendation, but the Commissioner declined to alter his position.  

‘Guaranteed from the top’

Mr O’Flaherty issued the judicial review proceedings in view of the background to his plea on the second day – wherein “negotiations” or “discussions” had taken place between Mr O’Flaherty’s solicitor and a member of the Board, Superintendent Flavin.

Mr O’Flaherty’s solicitor contended that during the negotiations, Superintendent Flavin “went away for a period of approximately twenty minutes” and then informed him that they were able to deal with the case by way of fines. He said he was assured that “contact had been made at the highest level”, and that he had been advised “if a guilty plea was entered … it was ‘guaranteed from the top’ that a fine would be the ultimate outcome of the disciplinary process”. He said this was open to one interpretation, that the commissioner had sanctioned the disposal of the proceedings in that manner and it was that understanding that guided his actions thereafter”.

In his application, Mr O’Flaherty relied upon the doctrine of legitimate expectation, and argued that the Commissioner failed to give adequate reasons for his decision.

Considering the widely diverging accounts advanced by the solicitor and Superintendent Flavin, Mr Justice Michael Moriarty said he preferred the evidence of the solicitor. Finding that the elements of failure to respect legitimate expectations had been established, Mr Justice Moriarty quashed the Commissioner’s decision and remitted the matter for consideration in light of what had transpired.

Court of Appeal

The issues advanced in the Commissioner’s appeal included:

1. Whether the Court of Appeal could or should interfere with the High Court’s finding of fact;
2. The scope of the doctrine of legitimate expectation;
3. Whether the Commissioner’s decision was void due to inadequate reasons.

Firstly, President Birmingham said that this was a case where the Hay v O’Grady [1992] 1 IR 210 line of jurisprudence as applicable and where the findings of fact are such that the Court should be very slow to intervene. Stating that he would not be prepared to intervene, President Birmingham said that, having read the transcript of the hearing, if the decision had been his, he “would have reached the same decision as the High Court judge” – although “by a slightly different route”.

Legitimate expectation

The Commissioner contended that the claim of legitimate expectation could not succeed “where the effect is to fetter a statutory discretion or to thwart the exercise of a statutory power or function”. As such, even if representations were made and “could theoretically constitute a representation that could be relied upon… in this case, the representations cannot have the legal effect contended for by the applicant”.

President Birmingham said it was necessary to establish “the existence of a clear and unambiguous representation”. Unconvinced that there had been such an explicit representation, President Birmingham said the evidence was “too tenuous and too speculative to permit of the invocation of the doctrine of legitimate expectation”.

Inadequate reasons

The Commissioner argued that Mr Justice Moriarty’s judgment could be read as rejecting the issue of inadequate reasons, however, President Birmingham said this was not well-founded. He noted that Mr Justice Moriarty had “commented that the actions of the Commissioner, in indicating tersely that having considered the Board of Inquiry report he was disposed to impose a vastly more serious sanction, were at odds with the recent authorities”. President Birmingham said that this remark indicated that Mr Justice Moriarty was sympathetic to Mr O’Flaherty’s arguments but preferred to decide the case on the basis of legitimate expectation.

President Birmingham said that there could be no real uncertainty about the Commissioner’s approach when he decided to impose a more severe sanction. However, he said that the Commissioner’s response to observations and submissions by Mr O’Flaherty’s solicitor was “deficient to a serious degree”. President Birmingham said that “at a minimum, it was necessary for the Commissioner to say whether he accepted that there had been interaction between [the solicitor] and Superintendent Flavin, but that anything said between them did not bind the Commissioner…”.

Commenting that what occurred was “sufficiently unorthodox” to be addressed by the Commissioner when it was brought to his attention, President Birmingham said the Commissioner’s failure to respond meant his decision to require resignation as an alternative could not stand.

In those circumstances, he dismissed the Commissioner’s appeal.