About this case:

• Citation:
  [2022] IEHC 230
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Charles Meenan

Delivering judgment in the case, Mr Justice Charles Meenan held that the member faced a penalty, being the delay of his promotion, even though the complaint made against him was false. The court held that it was unreasonable for the member to face such penalty in the circumstances (McCarron v. Superintendent Kearney [2008] IEHC 195 applied).

Background

The applicant was a member of An Garda Síochána since 1997 and applied for a promotion to the rank of inspector in 2018. The applicant was subsequently placed on a list of sergeants that were deemed suitable for promotion.

In December 2018, the applicant was involved in a criminal incident with a man named Edward Stokes. During an altercation with Mr Stokes, the applicant discharged his firearm. Mr Stokes made a complaint to the Garda Síochána Ombudsman Commission, claiming that the applicant waved the firearm at him and his wife, before discharging a shot into Mr Stokes’ foot.

The applicant’s account of events was that Mr Stokes assaulted a civilian, attacked the applicant with a slash hook and loosed a dog on the applicant. The dog bit and held onto the applicant’s tie, at which point the applicant fired his weapon at the dog. The bullet hit the dog and ricocheted into Mr Stokes’ ankle. The incident was recorded by Mr Stokes’ wife but only a portion of the footage was circulated which tended to favour Mr Stokes.

In July 2019, GSOC determined that there was no misbehaviour by the applicant and that he lawfully discharged his firearm. A file was sent to the DPP seeking directions as to whether Mr Stokes should be prosecuted for making a false statement to GSOC.

During the initial GSOC investigation, Mr Stokes made a second complaint to GSOC about the applicant mocking Mr Stokes, but this was also rejected. However, as a result of the complaint, the Commissioner was not satisfied to promote the applicant in January 2019. The promotion only took place in August 2019 after the investigation was complete.

As a result of the delay in promotion, the applicant did not receive the higher level of pay or pension rights during the period. Further, the applicant did not obtain the seven months of service time which would have counted towards a further promotion.

The applicant sought to have these entitlements backdated to January 2019. The Commissioner refused to do so. The applicant issued judicial review proceedings seeking orders that the promotion be backdated to January 2019. The applicant submitted that he was entitled to be treated equally to those who were promoted in January 2019. He argued that the only reason for the delay was the false complaint made by Mr Stokes.

The applicant relied on McMahon v. Leahy [1984] I.R. 525, which stated that “like persons must be treated alike by the law”. In response, the Commissioner relied on the discretionary nature of the promotion process under the Garda Síochána Act, 2005. Further, the Commissioner argued that the decision did not “fly in the face of fundamental reason and common sense”, as required in McCarron.

High Court

Mr Justice Meenan held that the reason that the applicant was not promoted in January 2019 was due to Mr Stokes’ complaint. This had been outlined to the applicant in a letter from the Commissioner in March 2020. As such, it was clear that the Commissioner did not rely on a general discretion to delay the promotion but instead on the ongoing investigation.

The court held that it was reasonable that a promotion should not proceed where there was an outstanding complaint which might render an applicant unsuitable for promotion. However, the complaint in this case was found to be false. Despite this, the applicant still faced a penalty due to the delay of his promotion.

The court determined that the decision to not backdate the applicant’s promotion was unreasonable within the meaning of McCarron. The court held that the applicant had the right to equality under Article 40 of the Constitution and, if this were to mean anything, then the applicant should be put in the position that he would have been in had the false complaint not been made.

The court stated that “no rational reason or legal hurdle” was identified which would prevent the backdating from taking place. While the applicant would be remunerated as an inspector when he did not hold the position, the court held that the greater wrong was to penalise the applicant for being the subject of a false complaint.

The court observed that the delay in promotion was not being determined by legislation, the Garda Code or the Garda Commission, but rather by Mr Stokes who had made the false complaint.

Conclusion

The court held that the applicant was entitled to have his promotion backdated, to include pay, pension rights and service time. The court outlined the provisional view that the applicant was entitled to his costs.

Quinn v. The Commissioner of An Garda Síochána [2022] IEHC 230