[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Garvey v. Minister for Justice, Equality and Law Reform & Anor [2003] IEHC 130 (5 December 2003) URL: http://www.bailii.org/ie/cases/IEHC/2003/130.html Cite as: [2003] IEHC 130

[New search] [Printable RTF version] [Help]

Garvey v. Minister for Justice, Equality and Law Reform & Anor [2003] IEHC 130 (5 December 2003)

 
THE HIGH COURT JUDICIAL REVIEW

[2002 No. 346 JR]

BETWEEN

ALAN GARVEY

APPLICANT

AND THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM AND THE GOVERNOR OR MOUNTJOY PRISON

RESPONDENTS

AND THE ATTORNEY GENERAL

NOTICE PARTY

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 5^th December, 2003.

The applicant is a prison officer stationed at Mountjoy Prison who was suspended from duty on 27^th September, 1999, arising out of an assault on a prisoner which occurred on 18^th September, 1999. Subsequently, in February of 2002, he was tried on indictment before a jury in the Circuit Criminal Court in Dublin on two charges of assault on Colm Fogarty on 18^th September, 1999, under ss. 3 and 4 of the Non Fatal Offences Against the Person Act, 1997. On the 24^th March, 2002, the applicant was found not guilty on both charges. In April of 2002, the applicant was served with further charges pursuant to the Prison (Disciplinary Code for Officers) Rules, 1996, in respect of which the charges were formulated as follows:

"1.(f) Discreditable Conduct, that is to say, while on duty assaulting any other member of the prison service or any other person.

11. (a) Unlawful or Unnecessary Exercise of Authority, that is to say, deliberately and unnecessarily acting in a manner calculated or likely to provoke a prisoner.

11.(b) Unlawful or Unnecessary Exercise of Authority, that is to say, using force unnecessarily in dealing with a prisoner or, where the application of force to a prisoner is necessary, using undue force.

In each case the particulars of allegation assert that the applicant assaulted Colm Fogarty by kicking him in the face on 18^th September, 1999."

By order of this Court (Murphy J.) on 24^th June, 2002, the applicant was given leave for:

1. A declaration that the purported decision of the respondents to suspend the applicant is without efficacy, ultra vires and unconstitutional;

2. A declaration that in purporting to suspend the applicant from his said post as a prison officer in Mountjoy Prison, the respondents have acted unreasonably and oppressively, alternatively, arbitrarily and capriciously;

3. An order prohibiting the second named respondent, his servants and agents from conducting a prison disciplinary hearing into the alleged conduct of the applicant;

4. An order prohibiting the second named respondent, his servants and agents from making any report and/or recommendation to the first named respondent, the Minister for Justice, Equality and Law Reform arising from the purported conduct of a prison disciplinary hearing into the applicant as already outlined above;

5. A declaration that the Prison (Disciplinary Code for Officers) Rules, 1996 are repugnant to the Constitution;

6. Damages.

The grounds upon which the applicant was given leave to seek the aforementioned relief are as follows:

The respondents have acted unreasonably and oppressively, alternatively, arbitrarily and capriciously, in purporting to suspend the applicant's said service and/or in failing to immediately reinstate the applicant to his job with full pay and benefits following his acquittal and/or in purporting to charge and hold a prison disciplinary hearing based on alleged new charges in view of:

(a) failing to afford the applicant any opportunity to make representations prior to being suspended;

(b) failing to apply or comply with the Prison (Disciplinary Code for Officers) Rules, 1996;

(c) failing to advise the applicant of the grounds upon which the purported decision was taken by unlawfully invoking and applying ss. 13 and 14 of the Civil Service Regulations Act, 1956, which required the respondents to observe the tenets of natural justice and constitutional justice by advising the applicant in advance of any contemplated intention to suspend him from office so as to afford him an opportunity of challenging the same whether by making representations on his behalf or otherwise;

(d) a severe loss including pecuniary loss and career damage which the applicant is suffering as a result of the respondent's said actions;

(e) by failing to immediately reinstate the applicant following his acquittal by jury the suspension has become unlawful and unconstitutional;

(f) insofar as the Prison (Disciplinary Code for Officers) Rules, 1996 are made the regulations must be constitutionally sound and provide for fair procedures. In the circumstances of this particular case the regulations do not provide for an independent adjudication;

(g) this purported disciplinary hearing is res judicata. An identical set of facts has been decided by judge and jury and to dress it up as a disciplinary hearing is a colourable device to get behind the decision of the jury;

(h) the substance of the criminal trial is identical with the substance of the alleged new changes. The Prison (Disciplinary Code for Officers) Rules, 1996 do not provide for an adequate element of independence in those carrying out:

1. the disciplinary investigation

2. the disciplinary hearing

3. the subsequent preparation of a report and/or recommendation that results from this.

(i) without prejudice to the above, in the event of an internal disciplinary hearing at this stage the second-named respondent is:

1. attempting to subvert the result of a trial

2. expose the plaintiff to the risk of double jeopardy

3. is tantamount to a prejudicial device to undermine the constitutionally mandated trial

4. no purported internal court and/or tribunal consisting of Mountjoy staff in the circumstances of this particular case can be impartial.

(j) the indefinite nature of the purported suspension;

(k) the timing of the said purported charges now being preferred;

(l) the alleged new set of charges is based on identical allegations of fact already tried by a judge and jury which led to the acquittal of the applicant;

(m) that in initiating an investigation purporting to be pursuant to the provisions of the Prison (Disciplinary Code for Officers) Rules, 1996 into alleged breaches of discipline on the part of the applicant, the second-named respondent is acting contrary to the rules of natural and constitutional justice and to the serious detriment of the applicant and his constitutional right to earn a livelihood;

(n) the second named respondent is excessively involved in the said proceedings;

(o) there was culpable delay by the second-named respondent, its (sic) servants and agents in purporting to conduct a prison disciplinary hearing;

(p) the suspension of the applicant is and was irregular in the first instance and the now proposed prison disciplinary hearing is indicative of oppression and bias;

(q) the fact that an internal prison disciplinary hearing is being held in the light of what transpired at the criminal trial, is unfair, unconstitutional, prejudicial, and certainly oppressive and biased;

(r) the unjustified suspension and subsequent failure to immediately re nstate the applicant following his acquittal on an identical set of allegations and facts is an infringement of, and/or alternatively an interference with the applicant's right to earn a livelihood as warranted by Article 40.3.2 of the Constitution.

The application is grounded upon an affidavit of the applicant in which he indicates that he was originally appointed as a prison officer to Mountjoy Prison on 24^th August, 1990, and has been employed as a prison officer since the successful completion of his probationary service on 18^th August, 1992. He says that on 27^th September, 1999, Governor Duffy of Mountjoy Prison contacted his wife by telephone to say he had a letter from the Department of Justice which he wanted to give to him. He made an arrangement with his wife that he should meet him that evening at Belladd House, which is the Prison Officers' Training Centre in Portlaoise, at 7.00 p.m. He says that he attended in the company of two members of the local branch of the Prison Officers' Association before Governor Duffy and Chief Officer Brennan.. He said that he was handed a letter dated 24^th September, 1999, which informed him that he was suspended without pay with immediate effect. He said that there then immediately followed a meeting and discussion between the Governor and the Chief Officer to the effect that he was being suspended. He said that at no stage was he offered an opportunity to make any statement in his own defence nor was it explained why he was being suspended. He said he was told, however, that another prison officer had made a statement to the prison authorities to the effect that he had caused injury to a certain prisoner by the name of Colm Fogarty in an incident which took place on 18^th September, 1999, at Mountjoy Prison. He said that the meeting was concluded and he went home.

The applicant refers to the letter of suspension dated 24^th September, 1999, which is signed by Mr. Sean Aylward in his capacity as Director General of the Department of Justice, Equality and Law Reform. The letter indicated that he was being suspended on the terms of s. 13 of the Civil Service Regulation Act, 1956 with immediate effect, pending further investigation into his involvement in an incident at Mountjoy Prison on 18^th September, 1999. The applicant points out that he was initially suspended without pay but subsequently on 1^st October, 1999, 75% of his basic pay was restored following an application which he lodged. He says that on 1^st November, 1999, following a successful application seeking leave to challenge his suspension by way of judicial review this court directed and ordered the full restoration of his basic pay forthwith. The applicant refers to correspondence between his solicitors in 1999 and Mr. Noel Dowling of the Prison's Personnel in the Department of Justice, Equality and Law Reform. Having had an exchange of correspondence in which the applicant sought a statement of reasons for his suspension on 1^st November, 1999, he obtained leave to challenge his suspension by way of judicial review from this court (McGuinness J.) in which an order was made restoring him to full pay with immediate effect. The applicant points out that these proceedings came on for hearing on 8^th May, 2001, on which occasion the proceedings were compromised in circumstances where criminal proceedings, which had been preferred against him, were then expected to come on for hearing shortly thereafter in the Circuit Criminal Court. It appears that it was part of the terms of the said settlement of the proceedings at that time that the applicant's salary would continue to be paid until the determination of the criminal proceedings and thereafter in the event of his acquittal until the final determination of disciplinary proceedings (if any), it being expressly understood between the parties that in the event of his acquittal in the criminal proceedings the applicant was entitled to contend that the disciplinary proceedings were not maintainable. At the same time it was understood that in the event of an unfavourable outcome overall the applicant reserved his right to seek damages on an indemnity arising out of the first matters.

The applicant complains that there was further delay in the processing of the criminal charges against him and that they were not ultimately heard until his trial commenced on 18^th February, 2002, before judge and jury in the Dublin Circuit Criminal Court. He points out that after a five week hearing he was acquitted of all charges. The applicant further points out that following his acquittal, despite requesting that his suspension be lifted, no steps were taken or have yet been taken to do this. He says that on 27^th April, 2002, he was handed an envelope containing a series of disciplinary charges purporting to be in compliance with the Prison (Disciplinary Code for Officers) Rules, 1996. He says that he has now been suspended for approximately two years and nine months. He says that he believes that the internal investigation into the events of 18^th September, 1999, has long been completed, and statements and other material gathered in the course of that investigation have been furnished to the Governor of the prison (several years ago) for consideration in accordance with the 1996 rules. In this regard he refers to the affidavit of Mr. Vincent Duffy sworn in the earlier judicial review proceedings and dated 27^th June, 2000. The applicant says that a comparison between the charges served on him and the indictment preferred against him at his criminal trial makes it clear that what is now proposed by the prison authorities is a re-trial of precisely that matter in relation to which he was recently acquitted by a jury. The applicant points out that, under the terms of the Disciplinary Rules of 1996, the hearing of the charges against him will be conducted by the Governor, will take place in private, and he will be afforded no opportunity to be legally represented. He contends that this procedure is entirely inappropriate in any circumstances and particularly so where he contends the governor himself was personally involved in the decision to suspend him in September, 1999. In this regard he refers to an affidavit sworn by Mr. Vincent Duffy in the early judicial review proceedings. The applicant also complains that the Governor will decide upon his guilt or innocence under the disciplinary rules and impose a sanction on him while thereafter further sanction might be imposed by the Minister. He complains that the entire machinery fails to provide for any form of independent adjudication or unbiased appeal procedure. The applicant sets out losses which he complains have caused him some hardship and in this regard he refers to the loss of various allowances including overtime which he expects that he would have earned had he not been suspended.

In his affidavit the applicant exhibits a letter dated 3^rd April, 2002, signed by Vincent Duffy, Deputy Governor of Mountjoy Prison, in which it is stated as follows:

"Re: Disturbance in Mountjoy Prison on 18^th September, 1999 and facial injuries received by offender Colm Fogarty.

It is noted the charges preferred against you in Dublin Circuit Court regarding the above incident were disposed of on Sunday 24^th March, 2002.

In relation to the prison investigation under the Prison (Disciplinary Code for Officers) Rules 1996, having considered the statements and other relevant information arising out of the prison investigation it appears you may have committed a breach of prison discipline under the code and there is a case to be answered on your behalf.

Accordingly, complaint forms under the second schedule of the code are forwarded to you for your completion together with all the statements and relevant information.

You are reminded of rules 7 (7), of the code which states:

"A complaint form shall be submitted to the Governor immediately on completion of the relevant section of it by the accused officer and in any event not later than 48 hours after its receipt by the accused officer. The time limit referred to in this paragraph may be extended by the Governor if he or she is satisfied that the accused officer cannot, for good reason, comply with or needs additional time to take advice."

Rules 7 (8) states:

"If a complaint form is not returned to the Governor within the time as specified in paragraph 7 or that time is extended under the paragraph, the Governor may deal with the allegation under rule 9."

The accompanying second schedule set out, under the title "Complaint Form" the complaints of breach of discipline alleged against the applicant. They read as follows:

1. Paragraph nos. in First Schedule to Prison (Disciplinary Code for Officers) Rules 1996, of breach of discipline alleged.

1(f) Discreditable conduct, that is to say, while on duty assaulting any other member of the prison service or any other person.

2. Particulars of allegation including place, time and date of breach of discipline alleged.

3. "At approximately 5.00 pm on 18^th September 1999 a C & R team were moving offender Colm Fogarty from cell 24 on B landing to F 3 padded cell in the Medical Unit. When the van carrying the offender arrived outside the Medical Unit and the C & R team were unloading the offender from the van you kicked Colm Fogarty in the face inflicting injury."

Then the second complaint reads as follows:

11 (a) Unlawful or unnecessary exercise of authority, that is to say deliberately and unnecessary acting in a manner calculated or likely to provoke a prisoner.

In the context of this charge identical particulars are given as in relation to the former charge. The third charge reads:

11(b) Unlawful or unnecessary exercise of authority, that is to say, using force unnecessarily in dealing with the prisoner or, where the application is forced to a prisoner is necessary, using undue force.

Again identical particulars are given in relation to this allegation as in relation to the two former charges.

A statement of opposition has been filed on behalf of the respondents and the notice party herein in which the following grounds are raised:

1. It is admitted that the applicant was and remains suspended pursuant to the provisions of section 13 of the Civil Service Regulation Act, 1956,

2. It is denied that the suspension of the applicant was or is now unreasonable, oppressive, arbitrary or capricious as alleged in paragraph 4 of the applicant's Statement of Grounds or at all, whether by reason of the matters set out in subparagraphs a. to r. therein (all of which matters are denied), or any of them, or otherwise,

3. It is admitted that the applicant was not re-instated, and that his suspension was continued following his acquittal but it is denied that the failure to re-instate the applicant was unreasonable, oppressive, arbitrary or capricious as alleged in paragraph 4 of the Statement of Grounds or at all, whether by reason of the matters set out in sub-paragraphs a. to r. therein (all of which matters are denied) or any of them, or otherwise howsoever.

4. It is further admitted that disciplinary proceedings have been brought against the applicant but it is denied that the decision to bring such proceedings was unreasonable, oppressive, arbitrary or capricious as alleged in paragraph 4 of the Statements of Grounds or at all, whether by reason of the matters set out in sub-paragraphs a. to r. therein (all of which matters are denied) or otherwise howsoever.

5. Without prejudice to the generality of the foregoing denials, it is denied that sections 13 and/or 14 of the Civil Service Regulation Act, 1956 have the meaning or effect pleaded in paragraph 4 c. of the applicant's Statement of Grounds.

6. It is denied that the Minister was under any obligation (whether by reason of the provisions of sections 13 and/or 14 of the Civil Service Regulation Act, 1956 or otherwise howsoever) to advise the applicant in advance of any contemplated intention to suspend him from his duties and/or to afford him an opportunity of challenging same, as alleged in paragraph 4 b. of the Statement of Grounds or at all.

7. Without prejudice to the foregoing, it is denied that the respondents failed to afford the applicant any opportunity to make representations prior to being suspended, as alleged in paragraph 4 a. of the Statement of Grounds or at all and it is further denied that the respondents failed to advise the applicant of the grounds for his suspension as alleged in paragraph 4 c. thereof.

8. Further, or in the alternative, the respondents plead that it was at all times open to the applicant to make representations to the first respondents that his suspension should be not terminated pursuant to the provisions of section 13(1) of the Civil Service Regulation Act, 1956.

9. It is denied that the powers conferred upon the first respondent by section 13 of the Civil Service Regulation Act, 1956 are constrained or otherwise affected by the provisions of the Prison (Disciplinary Code for Officers) Rules, 1996 (SI 289 of 1996).

10. Without prejudice to the foregoing, it is denied that the respondents failed to apply or comply with the said Rules as alleged or at all.

11. It is denied that the applicant suffered a severe loss as a result of his suspension, as alleged in paragraph 4 d. of the Statement of Grounds or at all. Further, or in the alternative (but without prejudice to the foregoing), if the applicant has suffered or is suffering any such loss, same is the inevitable results of his lawful suspension.

12. It is denied that the suspension of the applicant became unlawful or unconstitutional by reason of his acquittal on the criminal charges brought against him, as alleged in paragraph 4 e. of the Statement of Grounds or at all, and it is further denied that the respondents were thereby obliged to terminate that suspension or that their failure to do so was unlawful. The applicant's acquittal determined the issue of the applicant's criminal liability but did not determine the issue of whether the applicant had acted in breach of discipline.

13. It is denied that the Prison (Disciplinary Code for Officers) Rules, 1996 fail to provide for fair procedurals as alleged or at all and, in particular, it is denied that the adjudication provided for by the Rules is not independent as alleged in paragraph 4 f. or at all and the purported particulars of this allegation subsequently set out in paragraph 4 h. are fully denied by the respondents and the Notice Party.

14. It is denied that the breaches of discipline alleged against the applicants are res judicata as alleged in paragraph 4 g of the statement of grounds or at all and it is further denied that the disciplinary proceedings which have been brought against the appearance are a colourable device to get behind the decision of the jury as is also alleged in that paragraph.

15. It is denied that the substance of the disciplinary proceedings brought against the applicant is identical with the criminal trial as alleged or at all; the function and purpose of the criminal trial was to determine the criminal liability (if any) of the applicant whereas the function and purpose of the disciplinary proceedings is to determine whether the applicant has committed certain alleged breaches of discipline.

16. Accordingly, it is denied that the disciplinary proceedings against the applicant are an attempt to subvert the result of his criminal trial or are intended to and/or would as a matter of fact undermine that trial, as alleged in paragraph 4 i. of the Statement of Grounds or at all. It is further denied that the disciplinary proceedings expose the applicant to the risk of double jeopardy as further alleged in that paragraph or at all.

17. It is denied that any tribunal which hears the disciplinary proceedings against the applicant could not be or would not be impartial, as alleged at paragraph 4 i.4 of the Statement of Grounds or at all.

18. It is denied that the suspension of the applicant is indefinite as alleged or at all. The suspension of the applicant will continue only for the period necessary to determine finally the disciplinary proceedings which have been brought against him.

19. The disciplinary charges against the applicant were brought as soon as practicable following the conclusion of the criminal proceedings against the applicant.

20. It is not admitted that the disciplinary charges against the applicant are based on identical allegations of fact to those determined in the criminal proceedings against the applicant. Further, or in the alternative (but strictly without prejudice to the foregoing), of and to the extent that the allegations of fact are identical as alleged or at all, that provides no bar to the respondents proceeding with those disciplinary charges against the applicant.

21. It is denied that, in initiating an investigation into alleged breaches of discipline by the applicant pursuant to the provision of the Prison (Disciplinary Code for Officers) Rules, 1996, the second respondent acted or is acting contrary to the rules of natural or constitutional justice or in breach of the applicant's alleged constitutional right to earn a livelihood (which alleged right is not admitted) as alleged in paragraph 4 n of the Statements of Grounds.

22. The respondents do not know what precise allegation is being made in paragraph 4 n. of the Statements of Grounds but deny that it discloses any wrongdoing on the part of the second respondent.

23. It is denied that there was any culpable delay on the part of the second respondent his servants or agents in initiating disciplinary proceedings against the applicant as alleged in paragraph 4 n of the Statements of Grounds.

24. Without prejudice to the foregoing, the respondents plead that the disciplinary proceedings against the applicant were initiated as soon as practicable after the conclusion of the criminal proceedings against the applicant and further plead that they were entitled to await the conclusion to the applicant's criminal proceedings before initiating disciplinary proceedings against him and acted appropriately in so doing. The respondents further plead that the public interest would be served by permitting these disciplinary proceedings to proceed.

25. It is denied that the suspension of the applicant is irregular as alleged in paragraph 4 p. and it is further denied that the disciplinary proceedings constitute, or are indicative of, oppression or bias on the part of the respondents as also alleged in that paragraph or at all.

26. It is denied that the maintenance of disciplinary proceedings against the applicant is, or would be, unfair, unconstitutional, prejudicial, oppressive or biased as alleged in paragraph 4 q. of the Statement of Grounds or at all.

27. It is denied that the suspension of the applicant (which suspension is not unjustified as alleged) and/or the failure to re-instate him following his acquittal is an infringement or interference with (or in the alternative, an unlawful infringement or interference with) the applicant's purported right to earn a livelihood as alleged in paragraph 4 r. of the Statements of Grounds or at all.

28. Without prejudice to the foregoing, if the suspension of the applicant constitutes an infringement of and/or an interference with his right to earn a livelihood (which is denied) such infringement and/or interference is in accordance with law and does not amount to an unjust attack on the rights of the applicant.

29. Without prejudice to the foregoing, the Minister pleads that, notwithstanding his said suspension, the applicant is, and at all material times has been, in receipt of his basic ordinary remuneration.

An affidavit has been sworn by Vincent Duffy, Deputy Prison Governor of Mountjoy Prison Dublin in which he refers to an affidavit sworn by him under Judicial Review proceedings taken by the applicant against the Minister for Justice, Equality and Law Reform. He indicates in that affidavit that on 21^st September, 1999, he received a complaint in relation to an injury sustained by a prisoner, Colm Fogarty, and that upon receipt of this complaint he requested the Gardaí to carry out an investigation into the incident and into the circumstances in which the prisoner had sustained his injuries. He says that at the same time he initiated an internal investigation in Mountjoy Prison on the instructions of the Governor. He says that on 24^th September, 1999 he received a written report from the Chief Officer William Connelly stating that the prisoner had been injured on 18^th September, 1999, as a result of which he had been transferred to the Mater hospital and kept there as an inpatient. He also received a statement in which it was alleged that the applicant had kicked the prisoner in the face and head on two occasions. He says that he instructed Chief Officer Brennan to investigate the incident and to inform the officers involved of the fact that this complaint had been made. He says that Chief Officer Brennan was given the role because he had not been on duty at the time of the disturbance on 18^th September and therefore had no involvement in the incident. He indicates that the applicant met this Chief Officer Brennan on 27^th September, 1999. He indicates that as soon as he became aware of the alleged assault on the prisoner he informed the Governor and he in turn informed the relevant personnel in the Department of Justice, Equality and Law Reform and also informed the Director General of the Prison Authority, Mr. Sean Aylward, of what happened. He says that on or around 24^th September, 1999, he was informed that it had been determined to suspend the applicant from duty pursuant to s. 13 of the Civil Service Regulation Act, 1956 and he was furnished with a letter of suspension which he was directed to serve on the applicant. He says that he thereafter accompanied Chief Officer Brennan on 27^th September for the purpose of informing the applicant of his suspension and of formally serving the letter of suspension on him. He says that at the outset of the meeting he handed the applicant the letter of suspension and explained the background to it. He also advised the applicant that a Garda investigation into the incident had commenced and that there was an internal investigation being conducted, same having been directed by the Governor. He told the applicant that he would be required to make a statement, the applicant replied that he would be taking advice on the matter and he agreed to allow the applicant to take such advice.

In his affidavit Mr. Duffy refers to the suggestion that the applicant was not made aware of the reason for his suspension or that the matter was not certainly explained to him. Further in his affidavit Mr. Duffy confirms that the applicant was served with the disciplinary proceedings on the 20^th April, 2002, and not on the 27^th April, 2002 as it was told by him. He indicates in his affidavit the fact that the disciplinary proceedings were suspended during the currency of the criminal proceedings against the applicant. He indicates that this is in accordance with a departmental circular which addresses this issue and which clearly contemplates that, where criminal investigation and criminal proceedings are in existence, it is not appropriate to bring disciplinary proceedings until these are completed. Mr. Duffy explains the regret over the delay in the criminal proceedings of which he had no control and the fact that this has resulted in a prolonged period of suspension of the applicant. He accepts that there is an overlap in the facts and circumstances underlying the disciplinary proceedings brought against the applicant in the case and the circumstances underlying the criminal proceedings against him. He stresses the purpose of the disciplinary proceedings as being to determine whether the applicant has committed any breaches of discipline. He contends that it is in the public interest for the disciplinary proceedings to proceed to determination.

In the context of the criticism levelled at the 1996 rules, Mr. Duffy indicates that the decision to suspend the applicant was taken by Mr. Aylward, Secretary General of the Department of Justice, Equality and Law Reform at the time. He stressed that this did not involve or imply any finding of guilt on the applicant's part. Mr. Duffy further contends that the disciplinary proceedings represented the only available means by which some certainty could be obtained as to what precisely happened to the prisoner in Mountjoy prison on 8^th September, 1999. Much of this affidavit consists of matters of submission and it is not proposed to repeat them in the context of indicating the facts in this case.

The affidavit of James Maloney was filed in court in the course of the proceedings before me exhibiting correspondence from the applicant's solicitors of 3^rd August, 2000, and 9^th October, 2000, in which it was contended on his behalf, inter alia, that there should be no proceeding with the disciplinary matters at that time in view of the pending charges before the criminal courts against the applicant.

Submissions

Counsel on behalf of the applicant, Mr. John Gordon, S.C., submits that in the first place the charges represent a re-trial of matters on which the applicant was acquitted by order of the Circuit Court. It is submitted that the result of this is to lead to an end of his service within the Prison Service and a loss of his good name. Counsel submits that the formulation of the charges in the instant case represents a device to get around the formulation of the same charges faced by the applicant in the Circuit Court. Counsel refers to the charges of discreditable conduct under paragraph 1 (f) of the Regulations and a further charge of unlawful exercise of authority under paragraph 11 (a) of the Regulations and submits that the charges are contrived. Counsel refers to the fact that the particulars in all cases are the same. Counsel submits that the formulation of the charge under paragraph 1 (f) in particular represents a 'grasping at straws' to formulate this charge in the context of a breach of discipline having regard to the decision in the criminal trial. It is submitted also in regard to the charge for breach of article 11 (b) of the regulations referrable to the use of undue force, that when taken together with the other two charges, all three charges amount directly or indirectly to an intention on the part of the prison authorities to retry the applicant for assault. Having regard to the particulars in each case it is submitted that the issue being faced in each case is whether the applicant Alan Garvey assaulted prisoner Fogarty. It is submitted that in light of this act that it can be seen that he now faces the same charges and the same evidence as was before the Circuit Criminal Court. Counsel submits that this amounts to oppressive and unfair conduct and ought not to be condoned by this court. In support of his submissions counsel refers to the authorities of McGrath v. Commissioner of An Garda Siochána [1991] 1 I.R. 69:, McCarthy v. Commissioner of An Garda Síochána [1993] 1 I.R. 489 and A.A. v. The Medical Council [2002] 3 I.R. 1. In relation to the authority of McGrath v. Commission of An Garda Síochána, counsel refers to the conclusion reached in that case that the object of the disciplinary proceedings was to establish that the applicant was guilty of the same acts as those in respect of which he was acquitted. At page 74 of the report Hederman J. indicated that if the allegation in that case was made out at the disciplinary hearing he was again exposed to punishment. He stated as follows:

"Thus he is in effect being retried on issues already determined and he is, once again, exposed to the possibility of punishment. This cannot be done without seeking to set at nought the result of the verdict of the jury. I make a distinction between the consequences that might flow from any purely civil action and the disciplinary hearing procedure. The disciplinary hearing is more serious in its consequences than a mere civil action."

Later in a judgment Hederman J. indicated that for the applicant in that case to be tried again before disciplinary tribunal on "charges" identical to those in respect of which he had been acquitted by a jury, having regard to the narrow purview in which the inquiry must be held, would involve a form of unfair and oppressive procedure which called for the intervention of the court.

In the same case McCarthy J. stated, inter alia, at p. 75 of the judgment as follows:

"Lest it could be considered that a criminal charge necessarily precludes a disciplinary investigation into the facts arising out of which a criminal charge was brought I reject such a proposition. The argument in support of such view is one of estoppel. The vital features of issue estoppel are that the facts and the parties in dispute are essentially the same. Where one organ of State has been a contestant in the first trial of the issue, then, in my view, another organ of State has the necessary privity. What is an organ of state? Certainly the Attorney General, Ireland, the Director of Public Prosecutions, and the Commissioner of the Garda Siochána come within that category. The core question is whether or not the issue was the same. The issue in a criminal trial is the guilt or innocence of the accused; such depends upon a wide variety of circumstances the existence of which has to be proved by the prosecution. As pointed out by Henchy J. in Dublin Corporation v. Flynn [1980] I.R. 157, for a variety of reasons an accused person may have been prepared to accept a wrong decision in an earlier prosecution to the effect that he had committed an act or assault or had driven a motor car dangerously. In such circumstances, estoppel would be repugnant to the fair administration of justice. In the instant case, the claim of estoppel is made by the accused but the legal principle is they same. 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. In Kelly v. Ireland [1986] I.L.R.M. 318, O'Hanlon J. elaborated on this topic, including in his judgment a consideration of issue estoppel and he concluded, p. 328:

'In the rare case where a clearly identifiable issue has been raised in the course of a criminal trial and has been decided against a party to those proceedings by means of a judgment explaining how the issue has been decided, I would be prepared to hold that such a decision may give rise to issue estoppel in later civil proceedings in which that party is also involved. Such estoppel would arise, not only in relation to the specific issue determined (in this case, whether the statement was made freely and voluntarily) but also to findings which were fundamental to the court's decision on such issue.'

He went on to hold that, apart from the applicability of the concept of issue estoppel, the effort to challenge the correctness of a decision made by a court of competent jurisdiction against a party in the course of the criminal trial, by means of civil proceedings instituted by such person after that decision had been made, should normally be restrained as an abuse of process of the court."

Counsel refers to the authority of McCarthy Commissioner of An Garda Síochána [1993] 1 I.R. 489 where, at p. 498 of the report, Flood J. stated as follows:

"Fundamental to our criminal procedure, and indeed to the liberty of the individual, is the presumption of innocence. The finding by a jury of a verdict of not guilty in respect of criminal charges is more than a verdict of not guilty. It is a certificate of the person's uninterrupted innocence.

To all persons concerned in the Kilkenny indictment trial it was an accepted assumption that, on the return of the verdict of not guilty, there was vested in the applicant a certificate of that uninterrupted innocence to which I have made reference. The verdict of that jury was unappealable on fact. No court and no power in the land could challenge it. It was the applicant's shield against any allegation of dishonesty on his part in relation to the matters which have been the subject matter of consideration and adjudication by his twelve peers, the jurymen of that trial. That trial on its face, was perfectly fair, all embracing, valid and conclusive. It seems to me that to rip the certificate of innocence from the hands of the applicant and metaphorically to shred it and declare it a total nullity and to claim that it never in fact existed, all by reason of a clerical error made in 1977 as to the age of the District Justice, would be wholly inequitable. To permit the State or any arm of the State to purport in any other proceedings to retry the applicant on the same facts in relation to the same events would in my opinion be an oppressive and unfair procedure."

In reliance upon these authorities Counsel stresses that the disciplinary charges in the instant case are identical in subject matter to the criminal charges in respect of which the applicant was acquitted. Counsel stresses that the substance is the same in each case.

Counsel refers to the authority of Gallagher v. Revenue Commissioners [1991] 2 I.R. 370. In that case Blayney J. indicated that consequences for the plaintiff if the charges against him were established could be extremely serious. He indicated that he would be liable to be dismissed and on that basis he held that there was no doubt as to the gravity of the matter. In his conclusion he indicated that in light of these facts he was satisfied that this was a case in which the plaintiff was entitled to legal representation. It was submitted that in the instant case the applicant has been deprived of legal representation insofar as there is no provision made for same in the rules.

Counsel refers to the role of the Governor under the Rules as being to determine the charges. Counsel also refers to the fact that his role under the rules is to evaluate a complaint and to formulate the complaints or charges. Counsel submits that this indicates a level of objective bias to an informed disinterested bystander. It is submitted that the Governor decides on the guilt or innocence of this person in respect of whom the complaints are made. Counsel submits that in the instant case there is a real risk of bias.

Counsel submits that the instant case amounts to a "complete and irretrievable mess". Dealing with the issue of objective bias, counsel refers to the authority of O'Neill v. Beaumont Hospital [1990] I.L.R.M. 417, Bane v. Garda Representative Association [1997] 2 IR 449 and Allman v. Minister for Justice [2003] E.L.R. 7. In conclusion, counsel refers to the fact that there has been what he describes as inordinate delay in the bringing of the charges against the applicant.

It is submitted that the Prison (Disciplinary Code for Officers) Rules, 1996 do not provide for an adequate element of independence in those carrying out

(a) a disciplinary investigation

(b) the disciplinary hearing and

(c) the subsequent preparation of a report and/or recommendation that results from that.

It is submitted that in an investigation pursuant to the Rules of 1996 the second respondent is acting contrary to the rules of natural and constitutional justice and to the serious detriment of the applicant and his constitutional rights to earn a livelihood. It is submitted that the second respondent is excessively involved in the proceedings.

In reply, Mr. Paul O'Higgins on behalf of the respondents submitted in the first instance that, regarding the issue of legal representation, no disagreement exists with regard to the authorities cited by counsel for the applicant. Counsel submits that it has not been made apparent that there was any complaint to the Governor relating to the absence of legal representation. It is conceded that the applicant is entitled to legal representation.

Counsel submits that the rules, insofar as they provide for representation by other officers, are permissive in nature and are not such as to exclude the rights to legal representation.

With regard to the previous trial and the entitlement to maintain the disciplinary proceedings, counsel submits that significant difficulty stems from the considerable confusion arising from the decision in the McGrath case and the decision of Mooney v. An Post [1998] 4 I.R. 288. Counsel submits that in the instant case there can be no res judicata and that no legitimate expectation has been identified in principle. Counsel submits that in the case of McGrath v. Revenue Commissioners what the court was primarily concerned with was conduct which was held to be oppressive. Counsel submits that one must have regard to the particular facts of that case to understand same. Counsel submits by reference to the decisions in McGrath and Mooney that there is no general principle such as to preclude the disciplinary hearing arising out of the same facts as a criminal trial in which the applicant has been acquitted. Counsel submits that these authorities do not show that the same facts cannot be looked into twice. Counsel submits that in relation to the formulation of charges in the disciplinary context different standards of proof apply. Counsel raises the query whether there are other features within the control of a body seeking to exercise discipline such as to preclude a further inquiry. It is submitted that there may be in any given case circumstances which may be found to be particularly oppressive. Counsel submits that, while it might be submitted that the continuation of the disciplinary proceedings are stressful, there is no foundation for preventing logically what should occur. Counsel submits that there is no feature here involving any exacerbation of the inevitable stress of having to face disciplinary charges. Counsel contrasted the facts of the case in Flynn v. An Post [1987] I.R. 68 with those in the instant case. It was submitted that in the earlier decision the court was concerned with delay in circumstances where the applicant was deprived of all pay while he stood suspended from duty.

Counsel refers to the decision of Costello J. in Myers v. Commissioner of An Garda Siochána , Unreported, High Court, 22^nd January, 1988, in which it was held that the absence of a request that an immediate disciplinary inquiry be held was such that the Gardaí had acted fairly in postponing the inquiry and suspending the applicant on a suspension allowance while criminal charges were pending against the applicant.

Dealing with the authority of McGrath v. Commissioner of An Garda Síochána [1991] I.R. 69, counsel notes that while Hederman J. stated, inter alia, as follows at p. 74 of the report:

"For this member of the garda to be tried again before a disciplinary tribunal on 'charges' identical to those of which he has been acquitted by a jury having regard to the narrow purview within which the inquiry must be held, would involve a form of unfair and oppressive procedure which calls for the intervention of the Court."

Counsel submits that both Finlay C.J. and McCarthy J. rejected the suggestion that there was a general principle that an acquittal on a criminal charge would necessarily prevent a disciplinary investigation arising out of the same set of facts.

Counsel refers to the decisions in McCarthy v. Commission for An Garda Síochána [1991] I.R. 489 and McGlynn v. Commission of An Garda Siochána High Court 12^th June, 1998, in which this court restrained disciplinary proceedings on the basis that the proceedings related to the same matters in respect of which the applicants had been prosecuted and acquitted. Counsel submits that those decisions and the judgment of Hederman J. in McGrath have to be reconsidered in the light of the Supreme Court judgment in Mooney v. An Post [1998] 4 I.R. 288. Counsel refers to the fact that in that case Barrington J., having referred to the judgment of Hederman J. in McGrath, indicated that he did not find its logic compelling. Counsel refers to the passage of Barrington J. where he stated at the end of p. 295 of the report:

"The Commissioner did not appeal against so much of the order of Lynch J. as had granted an absolute prohibition against proceeding with the charges of breach of discipline based on the mere fact of having been charged. It is clear however that the fact that such oppressive charges had been brought influenced the attitude of the Supreme Court towards the balance of the case."

Later at page 296 of the report Barrington J. referred to the fact that Finlay C.J., concurring in the judgment of Hedermen J., stressed that to permit the Garda investigation to proceed into a complaint of corrupt practices would "in the particular circumstances of this case amount to an unfair procedure." Barrington J. then refers to the fact that Griffin and McCarthy JJ. agreed with these conclusions. He refers to the fact that at p. 75 of the report McCarthy J. went on to add as follows:

"Lest it be considered that acquittal on a criminal charge necessarily precludes a disciplinary investigation into the facts arising out of which a criminal charge was brought I reject such a proposition."

Barrington J. continued at the end of p. 296 as follows:

"The learned trial judge therefore was right in concluding that McGrath v. Commissioner on An Garda Siochána [1991] 1 I.R. 69, was not a precedent to which the plaintiff in the present case could usefully appeal. Moreover and even assuming the employer in the present case and the prosecutor in a criminal trial where the same person, it would be absurd if a party who had failed to establish a proposition beyond all reasonable doubt should, by that fact alone, be debarred from attempting to establish the same proposition on the balance of probabilities."

Counsel submits therefore that there must be some other aspect such as oppression for a court to intervene to exclude such inquiry. Counsel submits that it is in the interest of public policy that criminal activity be prosecuted. He submits, however, that this does not operate to prevent all other proceedings. Counsel submits that in the instant case it would be absurd to suggest that the disciplinary proceedings could not continue albeit that they arise from the same facts as the criminal trial. Counsel submits that this does not amount to a tearing up of the jury's verdict. Counsel submits further that the disciplinary proceedings involve different procedures to the criminal trial and that different persons are concerned with them.

Dealing with the issue of objective or perceived bias, it is submitted that there is no basis for this submission. It is submitted on the facts that no such case has been established. Counsels refers to the decision of Kearns J. in Allman v. Minister for Justice, Equality and Law Reform, [2003] E.L.R. 7 in which it had been contended on behalf of the applicant prison officer that, in the absence of an external independent adjudicator, there was a reasonable fear that the applicant would not obtain a fair and independent hearing under the rules. Counsel refers to the fact that Kearns J. was of the opinion that neither the Governor of Mountjoy Prison nor the Minister had what might be described as a pecuniary or proprietary interest in the outcome of disciplinary proceedings. At p. 19 of his judgment Kearns J. stated, inter alia, as follows:

"Nor do I accept that it is desirable or appropriate in areas of prison discipline to seek to involve outside independent arbitrators or agencies, given the multiple statutory layers of protection available to prison officers before a dismissal can be effected."

Counsel submits that, in light of this quotation, equally it can be stated in the instant case that there is no perception of bias warranting the granting to the applicant of the relief sought herein.

Counsel submits that it is intrinsic to the inquiry that once it is begun it should be seen through. It is submitted that this is important in any society. It is submitted that the role of the Governor is such as that he simply receives an allegation which is made and does not adjudicate upon same at the outset insofar as the formulation of charges is concerned. It is conceded that it is under this aegis that disciplinary charges are formulated. It is submitted that it is clear that all that was decided at that time was what disciplinary charges might have been disclosed based upon the allegations made at the time and nothing more. It is submitted that under the regulations he had to decide whether the allegation made disclosed a possible breach of discipline. If he so found, he had to decide whether there was a case to be answered. Counsel then compared this process with the situation where a judge of the District Court may issue a summons in a case coming before the court.

Dealing with the criticism levelled at the relevant rules and in particular 8 (6) wherein it is indicated that the Governor in the oral hearing may disallow any question, it is submitted that this amounts to no more than an obligation on the part of the Governor to ensure that fair procedures exist in the hearing process itself. It is submitted by counsel that it is not necessary for the rules to prescribe all circumstances providing for fair procedures. Dealing with the authority of McCarthy v. Garda Commissioner [1993] 1 I.R. 489 and the judgment of Flood J. previously referred to herein, counsel questions the correctness of that decision insofar as it suggests that a finding of not guilty constitutes a certificate of innocence for all purposes.

Counsel submits that an acquittal on a criminal charge is not necessarily conclusive of an issue that may arise in subsequent libel proceedings. Counsel further submits that it was only in the circumstances of oppression that the McGrath case could prevail. With reference to the decision of Flood J. in the McCarthy case, counsel refers to the fact that in the Supreme Court in the McGrath case all of the judges chose to deal with the case other than on a basis that the matters in question were res judicata.

Dealing with the particular facts of this case it is submitted that the documentation does not establish that the applicant was at any time denied legal representation. Furthermore it is submitted that the respondent Governor has not been shown to have been involved in the actual preparation of the charges in the instant case.

In reply to the submissions made on behalf of the respondents it is submitted by Mr. Gordon that in the first instance, dealing with the issue of legal representation, the assertion at paragraph 15 of the applicant's affidavit that, having regard to the terms of the Disciplinary Rules in question, he would not be afforded an opportunity to be legally represented, was not replied to on behalf of the respondents.

It is submitted that the applicant sought leave in the instant case in circumstances where all correspondence addressed on his behalf had been ignored.

It is submitted that, having regard to the terms of article 8 of the regulations, that the involvement of the respondent was a significant involvement contrary to the assertion made on his behalf. Counsel refers to the affidavit of Vincent Duffy in which it is indicated that a comprehensive report was furnished to the Governor in January of 2000. Insofar as an analogy has been drawn by counsel for the respondents with the role of the Director of Public Prosecutions and the role of the respondent Governor, counsel for the applicant points out that the Director of Public Prosecutions does not sit in judgment on cases in which he directs that certain charges be preferred.

With regard to the grounds on which counsel for the respondent purports to distinguish the instant case from that of McGrath, counsel submits that it is impossible to get away from the direct analogy between the McGrath case and the instant case. Counsel submits that it is unfair to have a re-run of the criminal trial. In conclusion counsel stresses the fact that there has been no suggestion that anything other than a full and considered hearing of the charges took place at the criminal trial of the applicant herein.

Conclusions

The Rules of 1996 provide, inter alia, as follows:

7. Preliminary Procedure

(1) Where it appears that an officer may have committed a breach of discipline and the Governor, having considered any statements and other relevant information, decides that there is a case to be answered, particulars of the breach shall be entered in a Complaint Form. A Complaint Form shall be in the form set out in the Second Schedule.

(2) An allegation against an officer of a breach of discipline shall be made to the Governor as soon as practicable, but not later than 7 working days, after the coming to the notice of a relevant superior officer of the information which gave rise to the allegation.

(3) A Complaint Form shall specify the paragraph number in the First Schedule of the breach of discipline alleged and there shall be attached to it a copy of a statement in writing of the evidence of each witness concerned in relation to the breach and the Form shall contain -

(a) such particulars as will enable the accused officer concerned to understand the nature of the allegation made against him or her, and

(b) a summary of the evidence on which the allegation is based.

No statement (other than a statement that constitutes or is part of the breach of discipline alleged), whether written or oral, made by the officer before the Complaint Form is given to him or her may be used in any subsequent proceedings in relation to the said breach without the officer's consent.

(4) Where more than one breach of discipline is alleged against the same officer, each one shall be entered in a separate Complaint Form.

(5) Each Complaint Form on which an alleged breach of discipline has been entered shall be given to the accused officer as soon as practicable.

(6) The accused officer shall state in the Complaint Form-

(a) whether he or she admits or denies the allegation,

(b) any comments he or she may wish to make on the allegation, and

(c) the names of any persons (from whom the Governor may request a written statement of evidence) whom he or she would wish to call as witnesses at any oral hearing of the allegation.

(7) A Complaint Form shall be submitted to the Governor immediately on completion of the relevant section of it by the accused officer and in any event not later than 48 hours after its receipt by the accused officer. The time limit referred to in this paragraph may be extended by the Governor if he or she is satisfied that the accused officer cannot, for good reason, comply with it or needs additional time to take advice.

(8) If a Complaint Form is not returned to the Governor within the time as specified in paragraph 7 or that time as extended under that paragraph, the Governor may deal with the allegation under Rule 9.

(9) Upon the submission of a Complaint Form to the Governor in accordance with paragraph (7) the Governor, having considered the matter, including any comments of the accused officer, if he or she is satisfied that the breach of discipline alleged is a serious one, shall arrange for the holding of an oral hearing of the allegation.

(10) Notwithstanding paragraph (9), if the accused officer concerned-

(a) admits the alleged breach of discipline, or

(b) denies the alleged breach of discipline and admits another such breach and the Governor substitutes in the Complaint Form the admitted breach for the alleged breach, the Governor may dispense with an oral hearing of the allegation and deal with the admitted breach under Rule 9(2).

(11) Where the Governor dispenses with an oral hearing under paragraph (10), the accused officer concerned, or another officer acting on his or her behalf, if so requested by the accused officer, may make representations orally or in writing or both to the Governor.

8. Oral Hearing

(1) An oral hearing shall be conducted by the Governor.

(2) The accused officer shall be present throughout an oral hearing and may put forward his or her answer to the allegation and call any relevant witness.

(3) The accused officer shall be allowed to have an officer of his or her choice to act on his or her behalf or assist him or her in the presentation of his or her case at an oral hearing.

(4) The accused officer or, on his or her behalf, the officer assisting him or her, if so requested by the accused officer, may present any relevant evidence, put questions to witnesses and address the Governor at an oral hearing.

(5) The officer making the allegation may be present throughout an oral hearing and may present any relevant evidence, put questions to witnesses and address the Governor at the hearing.

(6) At an oral hearing any question directed to a witness may be disallowed by the Governor.

(7) At an oral hearing the Governor may put questions to any person present.

(8) The Governor shall make or cause to be made a record of the proceedings at an oral hearing, including any rulings of the Governor in the course of the hearing.

9.Conclusion of Investigation

(1) At an oral hearing the Governor-

(a) shall if he or she is satisfied that the commission by the accused officer of any breach of discipline alleged has not been proved or admitted, dismiss the allegation, or

(b) may, if he or she is satisfied that the I commission by the accused officer of a breach of discipline alleged has been admitted or proved-

(i) in case the breach is of a minor nature, deal with it under Rule 5, and

(ii) in case the breach is not of a minor nature, deal with it under paragraph (2).

(2) Where the Governor decides to deal with a breach of discipline under this paragraph he or she may -

(a) award a reprimand, or

(b) award a reprimand and recommend to the Minister that the officer concerned be reduced in rank, where appropriate, or suffer a reduction in pay by way of deferment of one or more than one increment for one month, three months, six months or twelve months or such longer period as he or she may specify, or

(c) award a reprimand and recommend to the Minister that the officer be dismissed from the Prison Service and shall notify the officer accordingly

(3) The Governor shall notify the Minister of the award of a reprimand and of any recommendation under paragraph (2).

10. (1) On receipt of a notification from the Governor under Rule 9(3) the Minister, having considered the record of the oral hearing concerned or, if there has not been an oral hearing, the matters on which the Governor based his or her decision, shall -

(a) in case he or she is not satisfied of the guilt of the accused officer, reverse the finding of guilt and notify the Governor and the accused officer accordingly.

(b) in any other case, notify the accused officer that he or she intends to confirm the finding of guilt and confirm, vary or quash any penalty and confirm or quash any reprimand and notify the officer of his or her right to appeal under paragraph (2), and

(c) unless an appeal is brought under paragraph (2), cause any reprimand to be implemented and implement any penalty confirmed or varied under subparagraph (b) or, where appropriate, recommend to the Government the implementation of any such penalty.

(2) (a) Within 14 days of the receipt of a notification under paragraph (1 )(b), the accused officer may appeal to the Minister against one or more of the following, that is to say:

(i) the reprimand,

(ii) the penalty,

(iii) the severity of the penalty,

(iv) the Governor's finding of guilt in relation to charge of a breach or breaches of discipline.

(b) The accused officer shall, if he or she decides to appeal, give to the Minister, within the time aforesaid, notice in writing of the appeal and shall include in the notice detailed particulars of the grounds of the appeal.

(3) Where an appeal is brought under clause (i), (ii) or (iii) of paragraph (2)(a) but not under clause (iv) of that paragraph, the Minister, having considered any grounds of the appeal, notice of which was duly given to him or her pursuant to paragraph (2)(b), shall confirm or quash the reprimand or penalty concerned or vary the penalty concerned and he or she shall notify the accused officer of his or her decision and no further appeal shall lie in relation to the manner.

(4) The Minister shall implement any penalty confirmed or varied by him or her (Of, if appropriate, recommend to the Government the implementation of any such penalty) and cause any reprimand so confirmed to be implemented, and the Governor shall record any such penalty or reprimand in the accused officer's record of service.

11. A decision to dismiss an officer from the Prison Service shall be made-

(a) in case the officer is on probation, by the Minister, and

(b) in case the officer has successfully completed his or her period of probation and has been finally appointed, by the Government.

The procedures for such dismissal shall be those which apply to civil servants generally.

The First Schedule to these rules sets forth acts and omissions by an officer constituting breach of discipline. These include the following:

"1. Discreditable conduct, that is to say-

(f) while on duty assaulting any other member of the Prison Service or any other person,

…

11. Unlawful or unnecessary exercise of authority, that is to say-

(a) deliberately and unnecessarily acting in a manner calculated or likely to provoke a prisoner, or

(b) using force unnecessarily in dealing with a prisoner or, where the application of force to a prisoner is necessary, using undue force."

While these rules provide for representation by a fellow officer, I am satisfied that they do not either expressly or impliedly restrict any right to legal representation. It is also clear that the question of legal representation was not addressed to the respondent governor and no adverse decision was taken precluding such representation. Counsel for the respondents has not sought to argue in favour of any restriction on the right to legal representation and accordingly, I am satisfied that the applicant has failed to satisfy this Court that the Rules of 1996 operate to defeat his rights to legal representation.

With regard to the terms of the rules themselves and the role of the Governor under these rules, I am satisfied that the role of receiving a complaint and deciding whether the complaint discloses any possible breach of discipline as defined under the rules is not such as to preclude the Governor further acting in the matter under the terms of the rules, and I am not satisfied that the applicant has demonstrated that the Rules of 1996 operate to defeat his entitlement to natural or constitutional justice. On the particular facts of this case I am satisfied that there was no breach of the requirements of natural justice in the role played by the respondent Governor.

With regard to the more fundamental issue, namely whether the applicant may be subjected to the disciplinary process in respect of the charges preferred against him, the matter is less straightforward. These arise in circumstances where he was acquitted in a trial on indictment by a decision of a jury of charges pertaining to the assault of prisoner Fogarty in circumstances where each of the disciplinary charges contains identical particulars of the allegation and all include the following:

"When the van carrying the offender arrived outside the Medical Unit and the C. & R. team were unloading the offender from the van you kicked Colm Fogarty in the face inflicting injury".

The indictment in the criminal trial contained two counts, namely charges of assault causing harm and assault causing serious harm contrary to ss.3 and 4 of

the Non-fatal Offences Against the Person Act, 1997, and in each case related to the same assault as referred to in the disciplinary charges against the applicant.

I have considered the submissions of counsel relating to the construction to be placed upon the judgments of the members of the Supreme Court in the case of McGrath v. Commissioner of An Garda Siochana [1991] 1 I.R. 69 and the judgment of Flood J. in McCarthy v. Commissioner of An Garda Siochana [1993] 1 I.R. 489, in light of the subsequent judgment of the Supreme Court in the case of Mooney v. An Post [1998] 4 I.R. 289.

I am satisfied that the judgment of Flood J. in McCarthy v. Commissioner of An Garda Siochana was one relating to its own particular facts and did not purport to indicate that a person could not be disciplined out of the same set of facts as grounded a criminal prosecution.

With regard to the judgment of Barrington J. in Mooney v. An Post, I am satisfied that it distinguished the earlier decision in McGrath v. Commissioner of An Garda Siochana and indicated that the earlier decision was reached in the light of the particular circumstances of that case, including the fact that some of the disciplinary charges against the applicant related to the fact that he had been charged in court with embezzlement.

I am satisfied that the decision of the Supreme Court in McGrath v. Commissioner of An Garda Siochana related to the conclusion, on the facts of that case, that the disciplinary hearing arising out of identical facts would be an unfair procedure.

It is clear that the general principle identified in the judgment of the Chief Justice in that case is one which was not questioned by any member of that court at

the time or subsequently, namely that there cannot be any general principle that an acquittal on a criminal charge in respect of an offence, irrespective of the reason for such acquittal, or the basis upon which it was achieved, will be inevitably an estoppel preventing a disciplinary investigation arising out of the same set of facts.

It is to be noted that in the same case McCarthy J. emphasised at p. 75 of the report 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.

I am satisfied that the instant case must be considered by me, not on the basis of any estoppel, but on the basis of whether the disciplinary charges against the applicant would amount to an unfair or oppressive procedure.

While the Supreme Court has distinguished the decision in McGrath v. Commissioner of An Garda Siochana [1991] 1 I.R. 69, it did so by reference to the particular facts of that case. While it is clear that in the instant case the essential subject matter of the criminal charge is the substance upon which the disciplinary charges are grounded and it appears that the case will rest upon the same evidence as was before the Circuit Criminal Court and the jury which acquitted the applicant in that court, the charges are formulated in light of the acts which are specified in the Rules of 1996 as constituting acts or omissions amounting to breaches of discipline. In all the circumstances of the case, I am satisfied, by reference to the decision of the Supreme Court in Mooney v. An Post [1998] 4 I.R. 289, that the acquittal of the applicant in the Circuit court is not such as to cause the further disciplinary charges to amount to an unfair procedure. In so ruling, I am satisfied that the Supreme Court in McGrath v. Commissioner of An Garda Siochana decided that case on its peculiar facts, including the previous history in relation to not preferring disciplinary charges against gardai who had been acquitted of criminal offences.

In all the circumstances, I refuse the applicant the relief which he seeks.