High Court: Commissioner of An Garda Síochána does not have power to substitute presiding officer to Board of Inquiry

About this case:

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Background

Three serving members of An Garda Síochána, Damien Broughall, Avril Doyle, and Ronan Waldron; face allegations of serious breaches of discipline involving their handling and control of exhibits in the course of a murder investigation in 2007.

In October 2014 the Commissioner of An Garda Síochána, pursuant to Regulation 25(1) of the Garda Síochána (Discipline) Regulations 2007, established a Board of Inquiry to determine whether the applicants had committed the alleged breaches of discipline. Tony Williams, solicitor, was “selected” by the Commissioner to act as the Board’s “presiding officer”.

In the exercise of its power to regulate its own procedure under Regulation 29(5), the Board sat in December 2014 and April 2015 to hear and rule upon preliminary issues.

In December 2016, the Commissioner informed the applicants that Mr Williams was no longer in a position to act as the presiding officer of the Board as he had ceased to be a practicing solicitor.

In January 2017, the Commissioner purported to appoint Mr Karl Carney as the presiding officer of the Board “in substitution for” Mr Williams, “pursuant to Regulation 25(4)”.

High Court

The application for judicial review centred upon the fact that Regulation 25(4) does not expressly confer on the Commissioner a power to reselect or to substitute a presiding officer. As such, the applicants contended that the purported appointment of Mr Carney was ultra vires and sought orders of certiorari and other related declaratory reliefs to quash the appointment of Mr. Carney.

Furthermore, Mr. Broughall contended that the Commissioner failed to comply with the principles of natural and constitutional justice, basic fair procedures and Article 6 of the European Convention on Human Rights.

The Commissioner contended that there was “a derived or, if not, an implied power to make the appointment; and that this was exercised at such a time, and in such circumstances, that it did not offend fair procedures because the appointment was made prior to the Board commencing its hearing of the substantive allegations against the applicants”.

Justice Coffey explained that as a statutory office holder, the Commissioner had no inherent power and was strictly confined to such powers as conferred on the office by primary and secondary legislation.

Justice Coffey said that the conferred powers on the office include express powers; those which can be derived from the express powers by logical implication (GE v the Chairperson of the Refugee Appeals Tribunal & Ors. 2 IR 11); those which can been properly inferred by application of the “reasonably incidental” principle (Attorney General v Great Eastern Railway Company (5 App Cas 473, 478), Howard v Commissioners of Public Works IR 101) and the principle of effectiveness (Keane v An Bord Pleanala 1 IR 184).

Counsel for the Commissioner sought to rely on GE, arguing that the power arose by logical implication from the underlying power to establish a Board of Inquiry. However, Justice Coffey pointed out that the Commissioners powers were subject to limitations and requirements set out in Regulation 25(2) – (6); that the Commissioner has no express power to interfere with the composition of the Board after it was established “other than an unqualified duty to appoint a further Garda member to a board of inquiry where an objection is made by the member concerned in accordance with the requirements of Regulation 26(1)”. Justice Coffey said that it was significant that this right of objection, designed to provide reciprocity, was time-limited to ensure that it did not “affect the composition of the board during the currency of its work”.

Justice Coffey rejected the arguments made on behalf of the Commissioner and held that, if a Board of Inquiry cannot complete its work, “the Commissioner has by logical implication a derived power under Regulation 25(1) to establish a new board of inquiry with different members to deal with the matter de novo”, which was an interpretation in accordance with GE.

Satisfied that the purported power to substitute a presiding officer to a board of inquiry which was already established could not be “read into the Regulations without producing incoherence, anomaly and confusion”, Justice Coffey granted the reliefs sought.

In each case Justice Coffey made an order of certiorari quashing the purported appointment of Karl Carney.