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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Herlihy -v- Commissioner of an Gards Siochana & Anor [2012] IEHC 531 (12 November 2012)
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Cite as: [2012] IEHC 531
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Judgment Title: Herlihy -v- Commissioner of an Gards Siochana & Anor Neutral Citation: 2012 IEHC 531 High Court Record Number: 2009 1304 JR Date of Delivery: 11/12/2012 Court: High Court Composition of Court: Judgment by: O'Malley J. Status of Judgment: Approved |
Neutral Citation Number [2012] IEHC 531 THE HIGH COURT [2009 No. 1304 J.R.] BETWEEN JAMES HERLIHY APPLICANT AND
SUPERINTENDENT OF GURRANABRAHER GARDA STATION AND THE COMMISSIONER OF AN GARDA SIOCHANA RESPONDENTS Judgment of Ms. Justice Iseult O'Malley delivered the 12th day of November, 2012 INTRODUCTION 2. The first named respondent is Superintendent Con Cadogan, who is and was at all material times the District Officer of An Garda Siochana in the Gurranabraher District. He is named by the applicant as a respondent due to a misapprehension on the part of the applicant as to his role in the transfer. The applicant believed, mistakenly, that Superintendent Cadogan had purported to direct the transfer on his own authority. As will become apparent, this is a power that a District Officer does not have. 3. Some time between 9.15 and 9.30 a.m. on the 7th September, 2009 there was an altercation between the applicant and his wife in the family home at Ballincollig. Members of An Garda Siochana arrived at the scene as the result of a 999 call at 9.20 from a member of the public. They found the applicant's wife in a state of distress. She was bleeding from a cut on her hand and had an injury to her back. The applicant had already called an ambulance and his wife was taken to hospital where she received stitches to her finger. She did not require further treatment. 4. The Gardai who had arrived at the house naturally contacted their senior officers. 5. During the course of the morning Inspector Gary McPolin took formal statements, firstly from the applicant and then, at the hospital, from his wife. It is clear that there had been a row between the two and that Mrs. Herlihy fell against a glass door in the family home but there was a conflict between the two accounts as to how that happened. The statements are exhibited by the first respondent in his affidavit. The Court is not concerned in these proceedings to establish the truth of either statement but it is necessary to quote from them because of steps taken as a result of what was said in them. 6. The applicant stated that he was sorting out some photographs in the computer room when his wife came in. According to him there had been no words between them earlier that morning. He went on to say:
My husband and I have not been getting on for the last 3 years. I made a complaint against him before and I have been living a life of mental torture since then. I have been to solicitor Patrick Mullan over this. He seems to blame me for everything going wrong in his life. The mental torture entails calling me names, taunting me about being adopted, accusing me of affairs and all sorts. I have had enough. " 9. In the afternoon of the same day Superintendent Cadogan and Inspector McPolin met with the applicant at his home. He was informed that GSOC were to be involved. Beyond this point there is disagreement. THE INVESTIGATION AND ITS AFTERMATH 11. The applicant said that he was seated at his computer when his wife came into the room following an argument. She grabbed a pile of photos that he was scanning, stated that half of each photo belonged to her and started to tear them in half. He attempted to stop her by grabbing the photographs. While they were pulling against each other Mrs. Herlihy had her back to the door with the glass panel. During the struggle her elbow came in contact with the glass and broke it. She fell to the floor. He saw that she was bleeding from the finger and also had a scrape on her back sustained from the metal door handle when she fell. He denied assaulting his wife. 12. Mrs. Herlihy said that there had been a row over domestic issues. She followed her husband into the computer room where she was told by him that he was scanning the family photos and deleting her image from them. She saw a pile of photographs, grabbed them and started to tear them up. He told her to stop, she refused and he attempted to grab them from her. She said that she was "forced backwards" by this but "was not being pushed by Jim". She said that the upper part of her body hit the pane of glass and caused it to break. 13. According to Mr. Harden a number of other statements were obtained but no further evidence was identified in relation to the alleged assault. 14. GSOC reported that it was of the opinion that no misbehaviour or misconduct on the part of the applicant had been disclosed. A file had been prepared and sent to the DPP, who stated that the matter had been thoroughly investigated but that there was insufficient evidence to warrant a prosecution. 15. The GSOC report also refers to the actions taken on the day of the incident and describes the transfer as "entirely appropriate and proportionate considering the nature of the investigation and the proximity of the family home to Garda Herlihy's original posting". This comment is made in the context of describing the need to take immediate steps to ensure the safety of Mrs. Herlihy. 16. Although the report is dated the 5th December, 2009 it is said by Superintendent not to have been received in Garda Headquarters until the 11th January, 2010. In the meantime the Applicant had sought and been granted leave to bring these proceedings on the 21st December, 2009. The applicant's grounding affidavit, sworn on the 18th December, was obviously drafted in ignorance of the report and makes no reference to it. 17. According to Superintendent Cadogan, Chief Superintendent Finn then directed, in the light of the report, that the applicant should be restored to full operational duties but should remain at Gurranabraher Station. The Superintendent says that this happened on the 25th January (not the 23rd March, as averred to by the Chief Superintendent). Again this decision does not seem to have been put in writing to the applicant or to his legal advisors. The applicant says that he received a telephone call from his Sergeant in Gurranabraher on the 5th February telling him that he would be permitted to resume outdoor duties from the 7th of that month. He says that he met Superintendent Cadogan in the station on the 8th and was told that he had been exonerated by GSOC. The Superintendent agrees that they met but says that the applicant told him that he had "been aware" of the GSOC report for some time. 18. It will be seen from the GSOC investigator's report that there was clearly a significant alteration in the account of the incident given by Mrs. Herlihy and there could not have been any realistic prospect of a conviction in the event of a prosecution. EVIDENCE IN RELATION TO THE TRANSFER THE APPLICANT SUPERINTENDENT CADOGAN 21. The superintendent's contemporaneous note records telling the applicant "I was transferring him to Gurranabraher in light of incident". 22. In his written report to Chief Superintendent of the same date, Superintendent Cadogan says "I informed him that I was transferring him from Blarney Garda Station to Gurranabraher Station pending the outcome of this investigation...He said he clearly understood the position he was in". INSPECTOR MCPOLIN ASSISTANT COMMISSIONER K.G. LUDLOW
CHIEF SUPERINTENDENT WILIAM HAYES
Garda J Herlihy 20677F Blarney to Gurranabraher Transfer is in the interest of efficiency and the member has been spoken to by his District Officer and agreement reached. Garda Herlihy will transfer at his own expense. Forwarded for inclusion in the next Personnel Bulletin, please.
28. Chief Superintendent Finn replaced Chief Superintendent Hayes at some point in November, 2009 while the investigation into the incident was still ongoing. In an affidavit sworn on the 8th February, 2012 he avers that on the 23rd March, 2010 he made a decision that the applicant should remain at Gurranabraher. He says that he made this decision because he held (and continues to hold) the view that the applicant's credibility as a member of An Garda Siochana was damaged within the community in Blarney. He bases this view on the high profile of the applicant within the local community as the author of a number of books and commentator on policing affairs, the proximity of Blarney and Ballincollig and what he believes to be the knowledge of the community of the facts relating to the incident including the facts that GSOC were investigating it and that the applicant's wife had applied for a Safety Order in November, 2009. In the circumstances it was in the best interest of the good and proper management of An Garda Siochana that Garda Herlihy remains attached to Gurranbraher rather than Blarney. 29. It must be noted here that this is the only reference in the papers before the Court to a decision being made in March, 2010. Chief Superintendent Finndoes not suggest that it was reduced to writing and does not say that the applicant was informed of it. He goes on to remark that he has not received any request from the applicant to be reassigned to Blarney since that date. 30. In summary, the state of the evidence is as follows:
(b) Inspector McPolin believed that the applicant was being transferred pending the investigation; (c) Superintendent Cadogan believed that he had made it clear to the applicant that he was being transferred permanently but reported to Chief Superintendent Hayes that he had told the applicant that it was pending the outcome of the investigation; (d) Chief Superintendent Hayes, whose decision it was in the first instance, says that he intended it to be permanent but with a review of the situation after the investigation; (e) Assistant Commissioner Ludlow believed it was pending the outcome of the investigation; (f) Superintendent Finn made a separate decision in March 2010, not notified to anyone, that the transfer should be permanent. TRANSFERS AND THE GARDA SIOCHANA CODE
34. Chapter 8 (3) provides that:
(2) A member affected by a transfer order issued by the Divisional Officer or Regional Commissioner may appeal to Assistant Commissioner, Human Resource Management ... (3) Such appeals shall be submitted in writing and forwarded to Assistant Commissioner, Human Resource Management at least three days prior to the transfer date. Only in exceptional cases will appeals received after this date be entertained. (4) … (5) A member will not be at liberty to ask for an appeal to be placed before the Commissioner until the appeal has been formally rejected by Assistant Commissioner, Human Resource Management. (6) … (7) … (8) If the Commissioner decides to reject the appeal a member is then at liberty to ask to have the appeal heard before the Review Body. " 38. The status of the Code, which is an internal document akin to a staff handbook or manual, was considered by McKechnie J. in Noonan v. Commissioner of An Garda Síochána (Unreported, 17th July, 2007). Having considered the doctrine of legitimate expectation as discussed in Glencar Exploration Plc v. Mayo County Council [2002] 1 IR 84 McKechnie J held that a legitimate expectation on the part of a member stems from the existence and publication of the Code. Standing to rely on it arises from membership of An Garda Síochána to whom the Code is addressed. It is accepted by the respondent in these proceedings that this principle applies to the applicant. THE APPLICANT'S APPEAL
Please inform the member accordingly." 42. In accordance with the provisions of the code the applicant then appealed to the Commissioner, by letter dated the 5th November. In this, more detailed letter, he sets out his initial belief that the transfer had been temporary, the fact that he had received no notification other than the oral direction of Superintendent Cadogan, his discovery as to the publication in the Personnel Bulletin and the rejection of his appeal by Assistant Commissioner Fanning. Inter alia, he specifically claims that the transfer was not in accordance with the provisions of the Code and that the method of transfer did not afford him the facility to appeal in accordance with the Code. Receipt of the appeal was acknowledged on the 10th of November. The substantive response came by way of another letter to the Chief Superintendent from Assistant Commissioner Fanning dated the 24th November reading as follows:
Please inform the member accordingly. " 44. In the meantime the applicant had engaged a solicitor, who, also on the 24th, wrote to the Commissioner seeking the response to the applicant's appeal. The two letters obviously crossed in the post. A letter of acknowledgement was sent to the solicitor on the 26th November and on the 16th December, 2009 Assistant Commissioner wrote a substantive reply as follows:
I refer to your letter of the 24.11.09 in the above subject. Before this transfer was activated local management spoke to Garda Herlihy and advised him of his transfer. Garda Herlihy accepted this transfer and transferred at his own expense on the 9th September 2009 from Blarney Garda Station to Gurranabraher Garda Station. A subsequent letter was received at this office from Garda Herlihy stating that at this point he wished to appeal the transfer. Garda Herlihy was advised that there was no provision for a retrospective appeal of transfer. The criteria in relation to transfers and appeals of transfers is outlined in An Garda Siochana Code, Volume 1, a copy of which was issued to Garda Herlihy. I trust this clarifies the matter for you." SUBMISSIONS 47. At the hearing, Senior Counsel for the applicant concentrated on the applicant's right to have the appeals procedure fairly implemented. He argued that the procedure envisages a member getting his or her appeal in before the transfer is effected but that there is provision for exceptional circumstances (in 8.(13)(3) of the Code). The applicant was shut out from the appeal process. In the circumstances there were was no point applying to the Review Body, since the applicant had not actually had an appeal. 48. Much of the content of the respondent's affidavits is concerned with justifying the transfer itself. Emphasis is placed on the need to ensure the well-being of the applicant's wife and the need to assure her that action was being taken. There is also reference to the perceived danger that the applicant's behaviour might be "deteriorating" and that he needed supervision to ensure the safety of the public. Again, it might be thought that the report of the GSOC investigator, with the more considered statement from Mrs. Herlihy, should have dispelled that concern. Further, one might think that a member who was thought to pose any level of threat to members of the public should not really be given the position of member in charge of the station, a post carrying key responsibility for the welfare of prisoners. 49. At the hearing, Senior Counsel for the respondents submitted that the letter of the Code cannot always be followed and that in the circumstances three days notice of the transfer would not have been appropriate. She accepted that if a mistake had been made, it was to apply the three-day time limit for appeals too strictly. However, she said, the second letter to the applicant referred him to the Code. By implication, it is submitted, he was referred to the Review Body procedure. He failed to pursue that remedy and should therefore not be entitled to judicial review. In that respect reliance is placed on the following passage from the judgment of O'Higgins CJ in The State (Abenglen Properties) v. Corporation of Dublin [1984] I.R 381:
CONCLUSIONS 52. I make these observations, not as evidential findings but to highlight the degree of confusion in the case. These impressions are, of course, contradicted by the sworn evidence by those responsible for the decision and in any event could not apply to Chief Superintendent Finn's decision of the 23rd March. 53. In any event, the central fact of the case is that the transfer was effected within two days, thereby making it impossible for the applicant to give three days notice of an appeal as requires by the Code. I am satisfied, on the evidence, that it was not unreasonable for the applicant to believe that he had been told that the transfer was temporary - that, after all, was the impression of Inspector McPolin, the only other witness to the conversation. It was also what Superintendent Cadogan reported having told him. In those circumstances the applicant acted as promptly as possible after the publication of the Personnel Bulletin. To refuse to entertain his appeal, as the Assistant Commissioner and the Commissioner did, on the basis that it was "retrospective" was both unfair and unreasonable. 54. In deciding on the 23rd March, 2010, to confirm the permanency of the transfer Chief Superintendent Finn gave no notification to the applicant either before or indeed after the decision. 55. The applicant was at all stages deprived of an opportunity to make his case against a permanent transfer. 56. It follows that it is unnecessary for the Court to consider whether the arguments put forward as justifying the permanent transfer are correct. These are, for the most part, matters which should have been considered in an appeal on the merits. The applicant has not had such an appeal. 57. In these circumstances the Court is entitled, in accordance with the decision of the Supreme Court in Abenglen, to hold that the existence of a right of final appeal to the Review Body is immaterial.. |