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1. This case is decidedly unusual, both in the way in which it comes before the Court and in the way in which the hearing was conducted. The Plaintiff seeks to challenge the decision of a Tribunal of Inquiry set up pursuant to the Garda Siochana (Discipline) Regulations, 1971 and seeks a declaration that his dismissal from membership of An Garda Siochana on 17th May, 1990 was invalid. This relief sought is of a nature which one would expect to be brought by way of Judicial Review, but in fact it has been brought in Plenary proceedings. Furthermore, the Plaintiff has conducted this case purely on the basis of the Pleadings, and has elected to call no evidence. Accordingly, the facts upon which I have to decide this case are not in dispute.

2. On 12th October, 1988 the Applicant was served with a discipline form pursuant to the Garda Siochana (Discipline) Regulations, 1971 alleging eleven separate breaches of discipline against him. For the purpose of this judgment I am only concerned with two of those breaches, and the complaints as set out on the discipline form were as follows:-

3. In due course a Tribunal of Inquiry was set up under the Disciplinary Regulations and an inquiry was held on 11th and 12th May, 1989. Evidence was given before that inquiry in relation to the alleged breach of discipline set out at paragraph (6) above and the decision of the inquiry was that the Applicant was in breach of discipline as alleged at (5) and (6), as a result of which on 4th July, 1989 the Commissioner of An Garda Siochana dismissed the Applicant with effect from 24th July, 1989. The Applicant appealed this finding and sought a review from the Appeal Board on the grounds:-

4. In fact on 7th December, 1987 the Applicant had been prosecuted by way of Summons before the District Court charged with committing an assault occasioning actual bodily harm in relation to the event which was the subject matter of the complaint at (6) above, and the complaint was dismissed by the District Judge on its merits. The Applicant now argues that the Disciplinary Inquiry ought not to have heard any evidence relating to this alleged breach of discipline, as at the time of the inquiry he had already been acquitted of the charge of committing the assault referred to.

5. When the matter came before the Appeal Board this point was also made, and as a result of the arguments which it heard, the Appeal Board affirmed the breach of discipline in respect of breach No. (5) and revoked the decision to find the Plaintiff in breach in relation to the complaint No. (6). They also affirmed the Commissioner's decision to dismiss him in respect of breach No. (5).

6. The Plaintiff relies strongly on the decision of the Supreme Court in McGrath -v- The Commissioner of An Garda Siochana (1990) I.R.L.M 817, which case bore many similarities to the present case. The Applicant in that case had been charged with embezzlement of monies which he allegedly received from a member of the public as payment of a fine. He was acquitted by a jury of this charge, but nevertheless the Garda authorities sought to discipline him for a corrupt or improper practice, namely that he failed to account for a sum of money received by him in the course of his duty, this being the same monies as in the embezzlement charge. The Supreme Court held that the disciplinary proceedings should be prohibited on the basis, as stated by Hederman J. at page 822, :-

7. However, McCarthy J., while agreeing with the judgment of Hederman J., said at p. 822 :-

8. He then gave the example that acquitting a Garda of assault would not preclude a Garda investigation into a breach of discipline such as abuse of authority in failing to behave with due courtesy towards a member of the public.

9. I have no doubt that, had the Applicant taken Judicial Review proceedings to prohibit the Disciplinary Tribunal from holding its inquiry, which was the course taken in the McGrath case, the Board of Inquiry would have been prohibited from considering breach No. (6) alleged against the Applicant. However, I have equally no doubt that the Court would have allowed the inquiry to continue in relation to the other alleged breaches, and in particular breach No. (5). The Applicant chose not to take this course, but to appear before the Board of Inquiry and dispute the charges on their merits. I cannot accept the Applicant's arguments that because the inquiry considered charge No. (6) under those circumstances, when it ought not to have done so, that this renders the entire inquiry a nullity. It certainly could be said to have been acting ultra vires in relation to hearing evidence regarding count (6), but nevertheless it was a properly constituted Board of Inquiry, to which no objection was taken by the Applicant.

10. The Applicant also relies on paragraph 2 of the defence. This reads:-

11. The Applicant says that this is an admission that he was dismissed partly because of a finding that he was guilty of a disciplinary breach with which he ought never have been charged, and that this admission in itself is sufficient to prove the Plaintiff's case. This might well be a valid argument were it not for the plea contained in paragraph 3 of the defence, which reads:-

12. In my view this defence is unanswerable. The Plaintiff, having disputed the charges against him before the original Board of Inquiry, then chose to appeal to the Board of Appeal, at which he was represented by Counsel. The point was made on his behalf before the Board of Appeal that he had been acquitted of the criminal charge, but there was no application to dismiss charge No. (5) on that basis. Instead, Counsel dealt with charge No. (5) on the basis that the evidence before the Tribunal did not justify the finding. The argument made before the Board of Appeal, as taken from the transcript, was stated by Counsel as being:-

13. Count No. (5) did not in any way deal with the assault, but dealt with an entirely different happening at a different time. The Board of Appeal presumably agreed with the submission, as they found the Plaintiff guilty of count No. (5) only, and overruled the decision of the Board of Inquiry in relation to count No. (6). It is not open to the Plaintiff, having chosen this course of action and made these arguments to the Board of Appeal, to come into Court six years later and argue that the entire proceedings were a nullity.

14. Finally, it is submitted on behalf of the Respondents that the Order sought is a discretionary Order, and in any event ought to be refused in the discretion of the Court because of the delay which has taken place. It is in fact strongly arguable that these proceedings are statute barred, but of course the Statute of Limitations is a defence, and the Defendants have chosen not to plead it specifically. However, the original decision to dismiss the Plaintiff was taken on 3rd July, 1989, and the Appeal Board's decision was given on 30th April, 1990. The Plenary Summons in these proceedings were issued on 26th March, 1996. There is no doubt that if the Plaintiff had sought to proceed by way of Judicial Review he would have been many years out of time, and I do not believe any Court would have extended the time. This is certainly a matter which I must take into account in considering whether to exercise my discretion in the Plaintiff's favour, even were he correct in his submissions. A further feature which I feel I must take into account is that the Plaintiff has not chosen to give evidence, and the Statement of Claim does not aver that the Plaintiff was not guilty of the breach of discipline set out in charge No.(5). The primary purpose of the provisions relating to disciplinary proceedings in the Garda Siochana is to protect the public from wrongful acts of members of the Garda Siochana. In effect, the Plaintiff here has admitted that he committed a wrongful act. While the Court has a duty to ensure that fair procedures were applied in disciplinary proceedings against the Plaintiff, the Court also has a duty to ensure that the public is protected from wrongful actions by members of the Gardai. I think that it would be a breach of the Court's duty in that regard to make declarations in relation to a hearing that took place some eight years ago, and which remained unchallenged for six years, where a member of the Gardai behaved in such a way as to justify his dismissal from the force.

15. In my judgment, therefore, the hearings, both before the Tribunal of Inquiry and the Board of Appeal, were valid hearings, although the Board of Inquiry ought not to have convicted the Plaintiff in relation to charge No. (6), and the finding in relation to charge No. (5) was valid as also was the decision of the Commissioner to dismiss him. In any event, were I to be wrong in this, I think the discretion of the Court ought to be exercised by refusing the relief sought because of the delay in bringing these proceedings and because of the implicit admission of the offence by the Plaintiff.