About this case:

• Citation:
  [2022] IEHC 183
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Cian Ferriter

Delivering judgment in the case, Mr Justice Cian Ferriter held that the further attempt to dismiss the garda after the Appeal Board’s decision was in breach of constitutional justice. In particular, the court held that it would be unfair for the garda to face a second dismissal procedure for the exact same misconduct.

Background

The applicant was a member of An Garda Síochána. In March 2017, a woman and her sister came into a station where the applicant was on duty. The sister was providing a statement to gardaí in relation to her arrest. During that time, the applicant engaged in a sexual act with the woman.

When this was discovered, the Commissioner appointed an investigating officer, who recommended that a Board of Inquiry be set up in relation to the incident. The Board of Inquiry was established pursuant to the Garda Síochána (Discipline) Regulations S.I. 214/2007. The Board of Inquiry investigated two issues of discreditable conduct and neglect of duty, which were admitted by the member.

The Board of Inquiry recommended that the member be required to retire or resign as an alternative to dismissal and docked two weeks’ pay for the breaches of the Regulations. The Commissioner accepted the recommendations and sought to implement them. The member exercised his right of appeal to an independent Appeal Board.

The Appeal Board unanimously determined that dismissal was disproportionate in all the circumstances and substituted a penalty of four weeks’ reduction in pay in addition to the other two-week reduction. While the Appeal Board accepted that the breaches were “very grave”, it did not come up to the level of taking away the member’s livelihood.

The Commissioner was obliged to implement the decision of the Appeal Board. However, in January 2020, immediately after implementing the Appeal Board’s decision, the Commissioner suspended the member with a view to invoking section 14 of the Garda Síochána Act 2005 to dismiss the member.

Section 14(2) of the 2005 Act provided that the Commissioner could dismiss the member where he formed the opinion that the continued membership would undermine public confidence in the Gardaí and where dismissal was necessary to maintain that confidence.

The member remained suspended while the Commissioner was considering his decision as to whether the member should be dismissed under section 14. The member brought judicial review proceedings on the basis that the Commissioner acted ultra vires, irrationally and in abuse of process by failing to respect the decision of the Appeal Board.

Just after leave was granted for judicial review, the Commissioner wrote to the member and confirmed that he was dismissed from the gardaí. It was stated that his misconduct would lessen public confidence in the force and that it was not appropriate to allow the member to continue. The letter concluded by offering the member the opportunity to make representations to the Commissioner on his dismissal, including why he should not be dismissed.

At the hearing, the member submitted that the Commissioner had subverted the decision of the Appeal Board by seeking to dismiss him, which was in breach of constitutional and natural justice. Further, it was argued that the member was being subjected to a second disciplinary action for the same offence.

The Commissioner argued that the proceedings were premature in circumstances where the member had not provided submissions to the Commissioner on his decision. Further, it was argued that section 14 was a self-standing provision which could be invoked separately from the 2007 Regulations.

High Court

Mr Justice Ferriter began by outlining two recent judgments on dismissals of member by the Commissioner (Ivers v Commissioner of An Garda Síochána [2021] IEHC 574 and Keane v. Commissioner of An Garda Síochána [2021] IEHC 577).

In applying Keane, the court held that section 14 was a self-standing provision to the disciplinary regulations under the 2007 Regulations. A plain reading of section 14 showed that it was applicable “[n]otwithstanding anything in this Act or the Regulations”. However, this was not the end of the matter because any invocation of the section had to be complied with natural and constitutional justice.

The court rejected the submission that the applicant’s challenge was premature. It was held that the Commissioner’s invocation of section 14 placed the member at the peril of being removed from the force despite successfully overturning the previous decision with the Appeal Board. Although the member had not yet made submissions to the Commissioner, the Commissioner had already formed and expressed an opinion.

The court noted that, in Keane, it was determined that the invocation of section 14 was in breach of natural and constitutional justice because (as in this case) the Commissioner sought to dismiss the applicant for the same conduct which the Appeal Board determined required a financial penalty.

The court noted that the judge in Keane relied on the decision of Eviston v. DPP [2002] 3 IR 260, where it was held that the changing of a decision to prosecute a defendant by the DPP was unlawful. The court accepted that Eviston had been limited by Carlin v. DPP [2010] 3 IR 547. However, the court held that in both Eviston and Carlin, the applicants were only at risk of one trial for offences. Here, the member was being subjected to a second dismissal for the exact same conduct.

Accordingly, the potential injustice in the case was “of a much more serious order”, involving the “devastating penalty” of dismissal from the force. The concept of constitutional justice was sufficiently flexible to apply in the present case, the court said.

The court stated: “In my view, the actions of the Commissioner in seeking to invoke s.14 can be fairly said to involve vexing the applicant twice in the same matter. This renders the s.14 process in fundamental breach of constitutional justice; it is not merely procedurally unfair, but substantively unfair.”

The court noted that the Commissioner’s letter to the member did not refer to his rights and appeared to take the view that the Appeal Board’s decision was “legally irrelevant.” This disregarded the member’s rights in the matter, the court said.

Finally, it was noted that a summary dismissal under section 14 was an exceptional power (McEnery v Commissioner of An Garda Siochana [2015] IECA 57). Again, the facts showed that the exceptional power had been invoked unfairly.

Conclusion

The court quashed the decision to suspend the member from the force. The court would hear further submissions from the parties on the appropriate form of order in light of the judgment.