High Court dismisses Garda challenge to disciplinary proceedings

About this case:

• Judgment:
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The applicant was accused of a breach of discipline under Regulation 5 of the An Garda Síochána (Discipline) Regulations 2007 and under the Criminal Justice (Treatment of Persons in Custody) Regulations, 1987.

On 16 May 2014 he was notified that a Board of Inquiry had been established by the Commissioner under Regulation 27 of the Regulations.

A referral had been made on the day of the incident to the An Garda Síochána Ombudsman Commissioner (“GSOC”), leading to the GSOC submitting a file to the DPP with a recommendation that he should be prosecuted for assault pursuant to s. 2 of the Non-Fatal Offences Against the Person Act, 1997.

This led to an acquittal on 24 April 2013, after which the GSOC concluded its investigation without further action.

The applicant argued that as GSOC has concluded its investigation, no power lay in the Commissioner to carry out a separate investigation under the Regulations.

However, the High Court judge Ms Justice Baker noted that the GSOC was an independent third party charged with exercising an independent role in regard to matters involving serving members of An Garda Síochána, while the Regulations continued to allow for internal discipline. Thus, though commonality existed, the different mechanisms were not intended to be mutually exclusive.

She therefore concluded that neither the conclusion of the GSOC investigation nor the acquittal preclude a disciplinary hearing.

The applicant argued that the Oireachtas intended a coherence in its legislative provisions dealing with disciplinary processes concerning members of the Force, and that the scheme of the An Garda Síochána Act 2005, which established the GSOC, was intended to provide the entire scheme for dealing with such matters, and that the legislative provisions mean that no further enquiry by whatever body or person is permissible under the legislation once a member is acquitted.

However, the judge noted that the Regulations made under s. 123 of the Act provide for a disciplinary process which is distinct from that engaged in by GSOC, and in a criminal prosecution.

Regulation 8 in particular allowed for the commencement or continuation of disciplinary proceedings where a member had been acquitted even if those proceedings involved an inquiry into the same issues in respect of which the member was so acquitted but only if, in all the circumstances of the particular case, and their cumulative effects meant that it would not be unfair and oppressive to continue the proceedings.

The judge therefore rejected the argument that there was no statutory basis for the disciplinary inquiry, and turned to whether the enquiry would be unfair.

The applicant had argued that the enquiry would be unfair and oppressive due to delay.

As it was not suggested that the enquiry ought to have continued until the criminal proceedings concluded, the relevant delay was determined as being between the date of the acquittal on 10th April, 2013 and the appointment of a Board of Inquiry on 16th May, 2014, a period of thirteen months.

The judge observed that it may arguably have been oppressive and unfair to the applicant to continue the disciplinary inquiry had nothing occurred between June, 2010, when the matters complained of are said to have occurred, and May, 2014, when the Board of Inquiry was established.

However, the applicant could be assumed to have been fully engaged with the facts up to 10th April, 2013. He might have hoped that no further action would be taken, but within two months he knew that the internal investigation was underway and that there was the possibility that a formal enquiry would be directed.

She found that:

“Having regard to the purpose of the legislation in the maintenance of public confidence in An Garda Síochána, the process I must engage is to weigh against the public interest the interests of the applicant in having the matter dealt with speedily and having his reputation vindicated and returning to his duties. I am not satisfied that any prejudice or unfairness arises to tip the balance in favour of the applicant such that the investigation must be prohibited.”

In relation to the impact of the applicant’s acquittal, Justice Baker considered the leading case of McGrath v. The Commissioner of An Garda Síochána 1 I.R. 69, which found that there was no principle that an acquittal would be an estoppel on disciplinary proceedings.

This decision had been followed in Walsh v. Commissioner of An Garda Síochána & Ors. IEHC 257 and Garvey v. Minister for Justice Equality & Law Reform 1 I.R. 548. However, it had been noted in Garvey that it could be unfair and oppressive to conduct an inquiry into identical allegations based on essentially the same evidence and same witnesses.

Justice Baker found that there was a difference in character, and one envisaged by the case law, between circumstances when a member of the Force is acquitted without a hearing and without a finding of fact on the merits, and the consequences for the conduct of the disciplinary hearing when the acquittal has resulted from a full criminal process.

In the present case, the applicant was acquitted because the complainant did not offer any evidence and did not attend at the hearing before the Circuit Court.

Further, the character of the criminal charges was different to those in respect of which the disciplinary proceedings were commenced.

While the District Court charges related to criminal assault, the disciplinary charges related to conduct towards a person not stated to amount to an assault but rather a failure to respect the dignity and person of the prisoner and his physical safety, the language that he used towards him, his failure to ensure the safe custody and care of the arrested person and his failure to respect and protect his human dignity, bodily integrity and human rights.

Thus, she found that this argument was not made out.

The applicant also relied on the principles in Glencar Exploration Plc. v. Mayo Co. Co. IESC 64, 1 I.R. 84, 1 ILRM 481, pleading that he had a legitimate expectation that the respondent would not proceed to a disciplinary inquiry once it had opted to avail of the complaints procedure involving GSOC and that the respondent having elected to take a particular course it may not now seek to avail of what is argued to be an inconsistent approach.

However, the judge found that this argument was misplaced, as it omitted to take into account the independence of the GSOC, which could not create a legitimate expectation that An Garda Síochána would not activate an investigation under the Regulations.

For these reasons, the judge refused the relief sought.