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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> O'Dowd v. Garda Commissioner & Ors [2004] IEHC 200 (19 May 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/200.html Cite as: [2004] IEHC 200 |
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[2004] IEHC 200
THE HIGH COURT
DUBLIN
HC 200/04
Record No. 2002/187JR
JOHN O'DOWD
Applicant
-V-
THE COMMISSIONER OF AN GARDA SÍOCHÁNA,
M. FACHTNA MURPHY, PATRICK M. MCHUGH,
PHILIP MOYNAHAN AND MICHAEL MEAGHER
Respondents
AND
Record No. 2002/188JR
PATRICK MULLIGAN
Applicant
-V-
COMMISSIONER OF AN GARDA SÍOCHÁNA,
M. FACHTNA MURPHY, PATRICK M. McHUGH,
PHILIP MOYNAHAN AND MICHAEL MEAGHER
Respondents
JUDGMENT DELIVERED BY MR. JUSTICE T.C SMYTH ON WEDNESDAY, 19TH MAY 2004
The Applicant seeks an order of prohibition by way of application for judicial review prohibiting the third, fourth and fifth-named Respondents from proceeding with a Sworn Inquiry fixed as of 1st May 2002, prior to and pending the outcome of a Tribunal of Inquiry established pursuant to the Tribunals of Inquiry (Evidence) Acts 1921 - 2002 on foot of a resolution passed by Dail Eireann on Thursday, 28th March 2002. McKechnie J, on 22nd April 2002 granted leave to apply on the following grounds:
l. The terms of reference of the said Tribunal of Inquiry involve the same or similar subject matter as that which is the subject of disciplinary proceedings against the Applicant. Therefore, if the said Sworn Inquiry were allowed to go ahead as scheduled on 1st May 2002, this would derogate from the said Tribunal of Inquiry, as it would necessarily entail the prejudging of issues which form part of the terms of reference of the Tribunal.
2. A determination of the disciplinary proceedings prior to the Tribunal of Inquiry would constitute a breach of fair procedures and due process and would be a denial of the principles of natural and constitutional justice.
3. The decision of the second-named Respondent to schedule the disciplinary proceedings against the Applicants for hearing on 1st May 2002 prior to the said Tribunal violates the Applicants' constitutional rights to the protection of their good name and a fair hearing during the course of the Tribunal.
4. There would be a grave risk that the Applicants or either of them and their right to the presumption of innocence and the right to due process would be breached by prejudging the issues before the Tribunal by the premature holding of such a sworn inquiry.
4. To proceed with the said Sworn Inquiry, given that the Board of Inquiry as constituted by the said order of the second-named Respondent comprises the third, fourth and fifth-named Respondents, who are all superior Garda officers, without the participation of any lay member would be a breach of natural justice and fair procedures on the principle of Nemo Iudex in Causa Sua.
The Facts:
The Applicants are members of An Garda Síochána and in October 1996 were stationed at Raphoe Garda Station in Co. Donegal. On the night of 13/14th
October 1996, the Applicants investigated the scene of the fatality of one Richard Barron, who died on the night of 13/14th October 1996 and whose death was believed to have occurred as a result of a road traffic hit and run accident. Some days later, on or about 16/17th October 1996, enquiries turned into a murder investigation.
The circumstances in relation to the death of Richard Barron,.including the role played by the Applicants in the investigation into the incident, subsequently became the subject of several internal Garda investigations carried out under the supervision of various senior members of the Force. A letter dated 11th May 2000 from Detective Superintendent McGarty enclosed for the attention of the Applicants some 26 questions referable to duties performed by them on or about 13/14th October 1996. Initially, it appeared that a response would be forthcoming to these matters, but the Applicants, having consulted their solicitor, refused to reply. This was a singularly ill-advised course to adopt and it continued for over a period of almost two years. On 9th June 2000, a Superintendent Donal O'Cualain was appointed by Chief Superintendent D.N. Fitzpatrick under the provisions of Regulation 8 of the Garda Síochána (Discipline) Regulations 1989 (hereinafter referred to as the Regulations) appointing him (Mr. O'Cualain) to investigate and report to charges notified to the
Applicants that: -
"That you did on various dates between 13th October 1996 and 9th June 2000 fail to carry out your duties in relation to the investigation into the death of Richard Barron at Townparks, Raphoe; you behaved in a manner likely to bring discredit on the Garda Síochána. You neglected your duty and you failed to promptly carry out lawful orders, and to do other things which was your duty to do; you disobeyed lawful orders without good and sufficient cause. In your capacity as a member of an Garda Síochána that you did make and were involved in the procuring of statements which you knew were false or misleading and with a view to deceiving, thereby creating a falsehood or a prevarication."
On 11th July 2000, notice under Regulation 9 of the Regulations was directed to the Applicants informing them that it appeared to the Investigating Officer that they, the members concerned, may have been in breach of discipline. The brief outline of the acts of commission or omission alleged were as hereinbefore recited. The response to that notice
from the Solicitor for the Applicants was that, in the case of Mr. Mulligan in particular, he was sick on leave and whilst on sick leave would take no hand, act or part in any investigations which it was proposed to carry out. Furthermore, there were threats of injunctive relief being sought in the event of a protest being made to Mr. Mulligan in relation to the matter.
Some nine months later, Mr. O'Cualain wrote to the Applicants: reference was made to the notice served under Regulation 9 of 11th July 2000. Attached were a list of queries which Mr. O'Cualain considered to be relevant to his investigation and he requested a meeting to put the questions to the Applicants in person and, if they decided against that course, he requested them to make a statement covering all points raised and other points which they considered to be of relevance. A response was requested to be with the Inquirer by 27th April 2001. A response was not received by the indicated date and on 22nd June 2001 Mr. O'Cualain again wrote to the Applicants, again enclosed a copy of the questions in respect of which a response was required to allow him to properly investigate the alleged breaches of discipline against them. On this occasion, a deadline of 2nd July 2001 was set for a response to the questions. Again, no reply was received. The provisions of Regulation 39 had been brought to the attention of the Applicants in the letter of 22nd June 2001. On 12th September 2001, Mr. O'Cualain again wrote to the Applicants. He indicated that he had been directed by the Assistant Commissioner of the Gardai at the time to investigate the alleged breaches of discipline against the Applicants in accordance with Regulation 39 of the Regulations. Once again, he called upon the Applicants to answer the questions on the list which was attached to the letter, which had been previously supplied to them. The letter drew to the Applicants' attention the following provisions of Regulation 39: -
"(3) Where a direction under this Regulation for an investigation is given, the investigating officer concerned may, for the purposes of the investigation, require a member (other than a member who is a spouse of the member concerned) to answer a question, furnish information, or produce a document or thing, relevant to the further investigation of the breach of the discipline alleged.
(4) It shall be the duty of a member to comply with a requirement of an investigating officer under paragraph (3) but the answer given, the information furnished, or the document or thing produced, in pursuance of the requirement shall not be admissible in evidence against the member or his spouse in any proceedings whatsoever other than proceedings against the member for or in relation to a breach of discipline."
A response was requested on this occasion to be with the inquirer by 21st September 2001. Again, there was no response to the series of questions, notwithstanding its having been given to the Applicants on three different occasions in substantially the same form over a period of some 15 months.
On 14th November 2001, Chief Superintendent W.I Rice appointed Superintendent Eugene Gallagher as Investigating Officer to investigate and report on the following acts or omissions alleged against the Applicants: -
"That you, Garda Patrick Mulligan,
21095 A Raphoe refused to comply with
direction given under Regulation 39(4) of the Garda Síochána (Discipline) Regulations 1989."
Investigating Officer, Eugene Gallagher aforesaid, notified the Applicants by notice dated 24th November 2001 and acknowledged by them on 25th November 2001 of the acts and omissions immediately hereinbefore referred to. Matters had not progressed by way of response to the investigations and, accordingly, on 12th February 2002 the Assistant Commissioner of the Garda Síochána, F. Murphy, appointed a Board of Inquiry. The Board was set up pursuant to the terms of Regulations 14 and 15 of the Regulations and the Assistant Garda Commissioner, being of opinion that the breaches of discipline alleged against the Applicants were of so serious a nature as to warrant an inquiry at which information would be given on oath, appointed three persons to the Board of Inquiry. The Chairman was a chief superintendent from a Garda station in the city of Dublin. A superintendent was appointed from Bray and a superintendent stationed at Killarney made up the third member of the Board. Particulars of breaches of discipline alleged in form B 30, which is the discipline form provided for under the regulations are, as follows: -
1. Neglect of duty, that is to say, without good and sufficient cause failing to do a thing which it was your duty to do, to wit, on or after 8th May 2000 you failed to cooperate with Detective Superintendent Joseph McGarty and his investigation team in answering questions within your knowledge which would assist them in the investigation of the suspicious death of Richard Barron on 14th October 1996.
The said neglect of duty is a breach of discipline within the meaning of Regulation 6 of An Garda Síochána (Discipline) Regulations, 1989 and is described as reference number 3 in the schedule hereto.
2. Discreditable conduct, that is to say, conducting yourself in a manner which you knew, or ought to have known, would be reasonably likely to bring discredit on the Garda Síochána, to wit, on or after 8th May 2000 you refused to answer specific questions properly put to you by the Garda personnel investigating the suspicious death of Richard Barron on 14th October 1996, the said answers being within your competence to supply and with which you could assist the said investigation.
The said discreditable conduct is a breach of discipline within the meaning of Regulation 6 of an Garda Síochána (Discipline) Regulations, 1989 and is described as reference number 1 in the schedule hereto.
3.Unauthorised entering of licensed premises, that is to say, without good and sufficient cause, while on duty you entered Daly's Licensed Premises at Main Street, Lifford between 11:00p.m. on 13th October 1996 and 12:30a.m. on 14th October 1996.
The said unauthorised entering of licensed premises is a breach of discipline within the meaning of Regulation 6 of An Garda Síochána (Discipline) Regulations, 1989 and is described as reference number 14 in the schedule hereto."
The Sworn Inquiry was originally due to begin its deliberations on 25th March 2002. On 28th March 2002 a Tribunal of Inquiry into Garda activities in Donegal was set up on foot of a motion introduced to the Dáil by the Minister for Justice, Equality and Law Reform (as recorded in the Dáil debates official report 28th March 2002). This Tribunal is presided over by the Hon. Mr. F. Morris SC (formerly a President of the High Court). It is unnecessary to consider its terms of reference, suffice it to say it was a Tribunal of Inquiry concerned with issues of fundamental public importance.
In the course of his speech in the Dáil, the Minister stated inter alia as follows:
"I do not intend, nor would it be appropriate for me, to outline the details of the Garda investigations, the details of criminal proceedings, the details of civil proceedings, the details of disciplinary proceedings, or details of complaints s made to the Garda Complaints Board."
"When dealing with parliamentary questions or motions in the Dáil on alleged misconduct by Gardai in Donegal, I have consistently stated that it is a matter of great concern that individual members of the Garda Síochána might be implicated in wrongdoing. It is essential for the reputation of the Force that any alleged wrongdoing by members is investigated thoroughly and, if well-founded, appropriate disciplinary or criminal proceedings should be initiated."
"Neither the criminal nor civil proceedings advanced very quickly and there was a real concern, which I shared, over the length of time it was taking to bring the various inquiries and proceedings to finality. In addition, the decision of Mr. McBrearty and his associates to withdraw from the Garda Complaints Board a number of complaints they had made was a cause of concern. It is a matter of great concern to me that individual members of the Garda Síochána have been implicated in wrongdoing. In this regard, my guiding principle has been that it is essential for the reputation of the Force that any alleged wrongdoing be investigated thoroughly and appropriate disciplinary or criminal proceedings taken."
The Dáil Reports are referred to in this judgment because they were brought in to court by way of exhibit the affidavit of the Applicants and used to found an argument in their legal submissions to which I will refer. It is of importance to note that the matters the subject of the correspondence and questions between the Garda authorities and the Applicants had continued for almost two years before the setting up of the statutory inquiry. However, in less than one month from the matters referred to in Dáil Eireann, the Applicants, who for almost two years were unwilling or unable or advised not to attend to answering queries under the Regulations, brought these judicial review proceedings and the Respondents were prohibited as a result from embarking upon the disciplinary investigations by Order of McKechnie J. on 22nd April 2002.
For the purposes of determination of the issues arising on a judicial review application, it is unnecessary for me to determine the extent- (if any) to which the stated illnesses of Mr. Mulligan were genuine over some or part of the time from the year 1999 onwards or to draw any inferences or conclusions as to why, if it be the case (established in evidence on cross-examination) that he only showed up to 5 out of the 15 medical appointments. These are not matters the subject of judicial review.
The Law
The grounds upon which the order of Prohibition was granted can be conveniently considered under two headings:
(a) The Applicants argue that the Disciplinary Inquiry established pursuant to the Regulations should be postponed pending the outcome of the Statutory Tribunal. The Applicants allege overlap or duplication in relation to the Statutory Tribunal in that the terms of reference of the Statutory Tribunal involves the same or similar subject matter as that which is the subject of the Disciplinary Inquiry. It was submitted that the Disciplinary Inquiry, if scheduled prior to the matters to be investigated by the Statutory Tribunal, would entail the prejudging of issues forming part of the terms of reference of the Statutory Tribunal. This, it is alleged, would constitute a breach of fair procedures and would violate the constitutional rights of the Applicants. Mr. Devally SC for the Applicants submitted that the Applicants should not be subjected to a multiplicity of proceedings and that the subject matter of the questionnaire of some 26/28 queries thrice sent to the Applicants if considered or in any way determined by the Disciplinary Inquiry would result in a prejudging of the issues and would effect a prejudice to the Applicants at the hearings before the
Statutory Tribunal.
The submissions of the Respondents on this ground or issue were made by Mr. Feichin McDonagh SC and were that:
The control and direction of the Garda Síochána is vested in the first named Respondent pursuant to Section 8 of the Police Forces Amalgamation Act, 1925. The maintenance of good order and discipline within the Garda Síochána is an essential and vital element of the direction and control of the Garda Síochána so vested in the first named Respondent in that Act and the Acts following. The Applicants, in seeking an Order of Prohibition are attempting to prevent the first named Respondent from investigating breaches of discipline within the Garda Síochána for the duration of the Statutory Tribunal. The Tribunal has been established to deal with apparently some ten separate modules. It is anticipated that the Statutory Tribunal is going to take a considerable time, certainly in excess of a year to conclude its deliberations. In those circumstances, it is stated the Court should not exercise its discretion to grant the Order of Prohibition as sought.
The Respondents referred and relied on the case of Keady -V- Commissioner of An Garda Síochána [1992] ILRM 312 wherein O'Flaherty J. stated as follows:
"The Force could not properly carry out its essential function of preserving law and order unless there was an entitlement in the Commissioner to enforce discipline which necessarily involves the ultimate sanction to dismiss from the Force for sufficient grave breaches of discipline."
The Respondents contended that if the Applicants are successful in their application for prohibition, it would mean that serious disciplinary matters would be left outstanding for a year or many years and this would undermine the first named Respondent's authority and would be harmful to the well being of the Force, contrary to public policy, the law and the Constitution.
It was submitted for the Respondents that there is no basis in the Constitution, the law, practice or public policy for the contention that the establishment of a Statutory Tribunal of Inquiry can act so as to prevent the implementation of the laws or excuse any person from carrying out legal duties, functions or obligations under the law. The implied contention in the application is that the establishment of the Tribunal of Inquiry suspends or impinges in some way upon the jurisdiction of disciplinary bodies (including a Disciplinary Inquiry under the Regulations) is without warrant in law, where the suspension in the code or Regulations even temporarily would not adequately protect the rule of law.
The Respondents cited the case of Goodman International -V- Mr. Justice Hamilton [1992] 2 IR 542. There the Applicant brought an application for prohibition on the grounds that matters which the Beef Tribunal intended investigating were the subject of existing civil proceedings and also involved allegations of criminal conduct. This, in effect, is the reverse argument being applied by the Applicants in the instant case, with the applicants in that case alleging that the Tribunal could not undertake its business while civil and criminal matters were before the Court. Both the High Court and the Supreme Court had no hesitation in refusing the application for Judicial Review in that case. In the High Court, Costello J. at page 55 stated as follows:
"The functions of the Tribunal are to inquire, report and, if appropriate, to make recommendations. When reporting on allegations of wrongdoing, it expresses an opinion as to whether the allegations are true or false, but this opinion is of no legal effect. The Tribunal determines no legal right; it imposes no legal obligations. It expresses conclusions for the guidance of the legislature and the executive."
In the Supreme Court, Finlay CJ at page 588 stated as follows:
"The tribunal has no jurisdiction or authority of any description to impose a penalty or punishment on any person. Its finding, whether rejecting an allegation of criminal activity or
accepting the proof of an allegation of criminal activity, can form no basis for either the conviction or the acquittal of the party concerned on a criminal charge if one were subsequently brought, nor can it form any basis for the punishment by any other authority of that person. It is a simple, fact finding operation reporting to the legislature."
The Disciplinary Inquiry is set up for a very specific task, namely, to investigate alleged breaches of Garda discipline, and pursuant to the Regulations there are a variety of disciplinary sanctions which can be imposed. The Statutory Tribunal, as stated, has been established to investigate a wide variety of matters in relation to policing in the Donegal area and report to the Minister for Justice, Equality & Law Reform and to make such findings and recommendations as it sees fit. The Statutory Tribunal does not in any way restrict, curtail, postpone or in any way impact upon the normal function of the criminal or civil law, nor the investigation and determination of disciplinary matters in accordance with the Regulations.
I accept the submissions of the Respondents as correct in law for the very clear reasons and distinctions made in the judgments in the case of Goodman International quoted above. The Applicant contends that the decision of the second-named Respondent to schedule the Disciplinary Inquiry hearing(s) prior to the matter(s) being heard and dealt with by the Statutory Tribunal violates his constitutional right to the protection of his good name and to a fair hearing during the course of the proceedings of the Statutory Tribunal. It was further submitted that if the Disciplinary Inquiry were to proceed to a hearing and a determination of the three identified charges on Form B 30 referred to earlier in this judgment there would be a great risk that the right of both Applicants to the presumption of innocence and the right to due process would be breached by prejudging the issues before the Tribunal by the premature holding of the Disciplinary Inquiry. In this regard, the Respondents submitted that the application for prohibition is wholly misconceived and in that context relied on the decision of Atkin LJ in the case of R -V- The Electricity Commissioners [1924] 1 KB wherein the Lord Justice stated as follows:
"Prohibition restrains the Tribunal from proceeding further in excess of jurisdiction. Certiorari requires the record or the Order of the Court to be sent up to the Kings Bench Division to have its legality inquired into and, if necessary, to have the Order quashed. It is to be noted that both Writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in other parlance as a Court of Justice. The operation of the Writs was extended to control the proceedings of bodies which do not claim to be, and would not be recognized as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of suspects and having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs."
The comments of at Atkin LJ were adopted by O'Sullivan P. in The State (Culquhoun) -V- D'Arcy [1936] IR 641 at 655.
As pointed out, prohibition restrains a Tribunal from proceeding in excess of jurisdiction. The grounds upon which relief is sought in paragraphs E(1), (2), (6) and (7) of the Statement of Grounds rely and focus upon the existence of the Statutory Tribunal but do not in any way focus upon how this wholly separate Tribunal can result in any excess of jurisdiction on a properly constituted Board of Inquiry established under the Regulations. In those circumstances, the Applicants' claim is wholly misconceived.
It appears to me that there is a want of a clear understanding by the Applicants as to what it is the Disciplinary Inquiry is to consider. It is the three charges on Form B 30. These are matters specifically referable to specific regulations in the Regulations. It is clear from the express terms of the Regulations (e.g. Regulations 8, 9, 10 and 14) themselves that matters arising to the dealt with under the Regulations should be dealt with promptly. In McNeill -V- the Commissioner of an Garda Síochána [1997] 1 IR 469, the case ís accurately and concisely recorded in the headnote at page 470: there the applicant applied, by way of judicial review, for an order quashing the decision to proceed with a formal inquiry and restraining any further proceedings. The applicant claimed that the respondents had been guilty of excessive and unconstitutional delay and delay amounting to a breach of natural and constitutional justice. It was argued for the applicant that in addition to the ordinary obligation imposed on any investigating party to proceed quickly to a hearing, the Regulations of 1989 required that the reg. 8 procedure be pursued with particular expedition. In the High Court, the trial judge found there had been no delay on the part of the respondents and dismissed the proceedings.
The Supreme Court, allowing the appeal, held that:
1. The Court was not concerned with the principles established with regard to the effect of delay on either civil or criminal proceedings because the proceedings in the McNeill case had to be dealt with in accordance with the Regulations of 1989.
2. That the court should not intervene if satisfied that the procedures provided for in. the Regulations of 1989 had been followed and the principle of fair procedures applied.
3. That the language used ín the Regulations of 1989 indicated that it was the intention of the Minister for Justice that any alleged breaches of discipline by members of the Garda Síochána be dealt with expeditiously and as a matter of urgency.
There is and can be no question of the decisions of the Disciplinary Inquiry prejudging matters within the remit of the statutory tribunal. There is no reason to suppose that the Statutory Tribunal will not carry out its function within the terms of reference given to it and of the provisions of the Tribunals of Inquiry (Evidence) Acts 1921 - 2002.
The matters entrusted to the Disciplinary Inquiry relate to Garda discipline, those entrusted to the Statutory Tribunal are matters of public concern.
The Applicants will have the opportunity, if called upon in the course of the proceedings before the Statutory Tribunal, to answer the 26/28 questions they so diligently failed or refused or were advised not to answer to their superiors since May 2000, just some four years ago. Their "presumption of innocence and right to due process" will not have been breached in this regard because the Disciplinary Inquiry is only dealing with the three charges on Form B 30. In my judgment, the constitutional right to the protection of the good name and to a fair hearing before the Statutory Tribunal of the Applicants is not lost or forfeited by the proceedings to take place before the Disciplinary Inquiry.
(b) The Applicants attack the composition of the Board of Inquiry established under and pursuant to the Regulations on the basis that there is no lay member appointed to the Board.
The gravamen of the Applicant's case was that given the notoriety of the issues involved, that they would be made scapegoats to make up for the perceived inadequacies of the investigation in October 1996, that given the composition of the Board of Inquiry in the absence of a lay person, there was objective bias. The test of objective bias is as stated by Finlay CJ in O'Neill -V- Beaumont Hospital Board (1990] ILRM 419 at 439 and is "whether a person in the position of the plaintiff who is a reasonable man and not either over sensitive or careless of his own position would have good grounds for a fear that he would not get in respect of the issues involved, from a body which included the Chairman, an independent hearing". However, the facts in that case are clearly distinguishable from the instant case where there is no evidence as to any element of prejudgment by any member of the Board of Inquiry. In O'Neill's case, the bias alleged was a bias consisting of prejudgment. It consisted of statements made by the Chairman and two members of the Board who were before ever undertaking "to sit in judgment" were recorded in minutes as having said that the case against O'Neill was overwhelming. The Applicants referred to McAuley -V- Keating [1998] 4 IR 138 as an authority on the issue of bias. I am unable to appreciate what assistance that case is for the proposition advocated. In that case, it was argued that the Respondents' (Chief Superintendent Keating, the Commissioner of An Garda Síochána and the Attorney General) statement in requiring the conduct of an oral inquiry would lead to the reasonable apprehension on the part of the Applicant that the case had already been decided. O'Sullivan J dismissed the application for judicial review as there was no evidence of bias in the conduct of the investigation and the utterances of the Respondent were merely formalistic statements of a conclusion. The Supreme Court affirmed the order of the High Court. The lack of independence of the deciding body in Turner -V- The Pilotage Committee of Dublin Pilotage Authority (unreported High Court, Barron J. 14th June 1988) was relied upon by the Applicants as disentitling the Board of Inquiry in the instant case from proceeding to the hearing which was restrained by the order of leave in this case. It is clear from page 9 of the transcript of the judgment of Barron J. that he found "the inquiry tribunal acted totally without jurisdiction and also totally without fair procedures." In concluding his judgment, Barron J. stated:
"Finally, the proposed tribunal could not be independent. Four members have already decided the facts; another four members have already considered evidence which has neither been available to the Applicant or the subject of cross-examination on his behalf. Having regard to all these factors, I am satisfied that the Pilotage Committee is not at present entitled to entertain proceedings."
In my judgment, the instant case is in no way comparable to Turner's. In Dublin Wellwoman Centre Ltd. -V- Ireland [1999] ILRM 408 the Supreme Court, applying O'Neill -V- Beaumont Hospital, held that statements and actions of a trial judge previously made on an issue in a non judicial position can give rise to perceived or objective bias when the trial judge sought to embark upon a trial on like issues which constituted the kernel of the case. In the instant case, no member of the Board of Inquiry (on the evidence before me) has expressed any view on any issue given to them to determine. Bane -V- An Garda Representative Association [1977] 2 IR 449 was relied upon by the Applicants to support their attack or criticism of the composition of the Board of Inquiry. However, in my judgment, it is clearly distinguishable from the instant case because in Bane's case the applicants instituted judicial review proceedings seeking an order of certiorari on grounds, inter alia, that the decision was ultra vires the first Respondent and contrary to natural justice because of the prior involvement by members of the committee and because a number of charges had been investigated by the committee itself. Kelly J. held that members of the committee had given evidence controverting that of the applicants in earlier proceedings. This alone rendered the decision defective by reason of perceived bias. With unfeigned respect, I agree with the judge in his determination.
The case of Greaves -V- the United Kingdom ECHR 16-12-2003, a decision of the European Court of Human Rights, considered whether there had been violations of different Articles of the Convention. It found that there had been a violation of Article 6 in that the distinctions between the airforce court-martial system assessed is the Cooper case (a judgment delivered on the same day dealing with an airforce court-martial) and a naval court-martial system which was in issue in Greaves' case were such that the complainant's misgivings about the independence and impartiality of his naval court-martial convened under the Armed Forces Act, 1996 were considered to be objectively justified. In Greaves' case, the applicant had been convicted pursuant to Section 42 of the Naval Discipline Act, 1959 by a naval court-martial of unlawfully and maliciously wounding with intent to do grievous bodily harm contrary to
the Offences Against the Person Act, 1861 (a criminal offence) and was sentenced to, inter alia, three years imprisonment and to be dismissed from the service and reduced in rank and to pay compensation. [In the instant case the Board of Inquiry cannot deprive the Applicants of their liberty -- theirs is a much more curtailed jurisdiction]. It was because of the pivotal role of the Judge Advocate in Greaves case deprived a naval court martial of one of the most significant guarantees of independence enjoyed by the other services courts-martial that Greaves succeeded.
The Respondent in the instant case submitted that the mere absence or participation of a lay person on the Board of Inquiry did not ipso facto infringe the principles of natural and constitutional justice and fair procedures and give rise automatically to objective bias. If the Court were to prohibit the carrying out of its function by the Board of Inquiry because of the absence of a lay person it would, in effect, be seeking to alter the law which is the function of the Oireachtas.
The proximity, if that word be appropriate, between the investigating officer and a member of the Garda Síochána has been considered ín McAuley -V- Keating [1998] 4 IR 138 ín the judgment of Lynch J. at 149 and more recently ín Hughes -V- Garda Commissioner(unreported the High Court, July 23rd 1996). In the latter case, McCracken J. held that the appointment of an investigating officer under the Regulations by a Chief Superintendent who was also the complainant, while undesirable, did not invalidate the inquiry.
In the instant case, however, the Respondent contended that it would be wholly inappropriate for lay members to be involved in internal Garda inquiries. The Police Force is not like a professional body and different considerations must apply to internal disciplinary matters. These include:
(i) Rights and privileges not possessed by other citizens (commented upon by O'Flaherty J. in McNeill -V- The Commissioner of An Garda Síochána [1997] earlier recited);
(ii) Onerous duties imposed bylaw and statute and the Constitution;
(iii) A particular role within society;
(iv) The necessity to impose immediate penalties on members of the Force who have been in breach of discipline, including the power to summarily suspend; (v) The public perception of a breach of discipline by members of the Force and the inherent dangers which flow therefrom if the disciplinary action is not taken.
The approach of the Supreme Court regarding the working of the Regulations finds expression in the judgment of McCarthy J. in Stoker -V- Doherty [1991]
1 IR 23 at page 30 where McCarthy J. stated as follows:
"The considerations of such matters as to whether or not a particular incident amounts to conduct prejudicial to discipline or likely to bring discredit on the Force is peculiarly appropriate for determination by the Gardai themselves; so also is the assessment of the penalty appropriate to any such breach or breaches."
In addition, O'Flaherty J. stated in Keady –V Commissioner of An Garda Síochána, already referred to, as follows:
"The Garda Síochána is a Force which consist of members each of whom, on appointment, undertakes the duty of preserving the peace and preventing crime. The members comprise a disciplined Force who are subject to the authority of the Commissioner in whom the general direction and control of the Force is vested; section 8 of the Police Force Amalgamation Act, 1925. Membership of that Force carries rights and privileges not possessed by other citizens; it also involves onerous duties not shared by others. The Force could not properly carry out its essential function of preserving law and order unless there was an entitlement in the Commissioner to enforce discipline which necessarily involved the ultimate sanction of dismissal."
Mr. McDonagh SC brought to the attention of the Court in his address the following additional matters to be found in the Regulations:
(a) Members of the board, it is stated, were wholly independent of any other inquiry or tribunal and there is no suggestion or allegation that the members of the Board of Inquiry know the Applicants or have ever met them, nor is there any suggestion that they have pre-judged the matter. The matter is simply pleaded on the basis that because there is no lay member within the Board, that it would be impossible to receive a fair hearing and impartial hearing. There is nothing to support this proposition.
(b) Furthermore, the Regulations themselves provide for a situation in which an objection can be made to the Commissioner regarding the members of the Board. When objection is made, the Commissioner may substitute members of the Board other than the Chairman.
(c) In addition, there is a right of appeal from any decision of the Tribunal and for any penalty which it may impose and the Appeal Board includes a civilian person who is a barrister or solicitor of ten years standing and other members who are not immediately members of the Force in the fashion earlier referred to.
In my judgment, the fact that the statutory Tribunal may have heard in part any of the evidence in what has been referred to as the "Barron Module" does not mean that the Disciplinary Inquiry should be restrained by the Court Order from proceeding with its functions and duties and responsibilities.
Accordingly, I refuse the application.
END OF JUDGMENT
Approved
T.C Smyth
21/05/2004
