Title: Thomas Stroker v Edward J Doherty & Others
Author: PFH VALUED CUSTOMER
Company: UCC

The Supreme Court

Thomas Stroker v Edward J Doherty & Others 

1989 No 127 

26 July 1990 

McCARTHY J: 

The second, third and fourth Appellants constituted the Appeal Board which sat on the 16 May, 1988 to review the decision of the Board of Enquiry which heard allegations of breach of Garda discipline against the Respondent, Thomas Stroker, in January 1988. After a lengthy hearing, that Board of Enquiry found that the Respondent had committed four breaches of discipline, numbered 1, 7, 9 and 14 in the papers setting out the breaches. The Appeal Board affirmed the decision in respect of breaches 1 and 14 and set aside the decision in respect of breaches 7 and 9; it affirmed the decision of the Commissioner, the first Appellant, to dismiss the Respondent, who is an ordinary member of An Garda Siochana. He sought and obtained Judicial Review by way of Certiorari in respect of the decision in respect of breach 1 and the decision of the Commissioner to dismiss him. The Commissioner and the member of the Appeal Board appeal against that Order, which did not by way of substitution or direction for a rehearing, permit any variation in the penalty imposed by the Commissioner. 

The relevant facts are not now in dispute. On the 3 May, 1986, in a public house at Ballacolla, County Laois, Thomas Stroker, who was not in uniform and was off duty, his wife Ann, and Kenneth Senior were in company together and, possibly, with some others. Thomas Stroker said to Kenneth Senior "what do you think of Ann, would you ride her, you can have her for the night if you want her". In the Discipline Form B30, it is charged that such conduct was likely to offend public morals and that "the said conduct prejudicial to discipline or likely to bring discredit on the Force is a breach of discipline within the meaning of Regulation 6 of the Garda Siochana (Discipline) Regulations, 1971 and is described at Reference number 1 in the Schedule to the said Regulations." 

On the 13 September, 1986 in the same public house, when Thomas Spillane, the licensee of the said premises, asked Ann Stroker to leave at closing time she failed to do so and Thomas Stroker, her husband, failed to assist in having his wife leave the said premises. It is alleged that "the said conduct prejudicial to discipline or likely to bring discredit on the Force is a breach of discipline within the meaning of Regulation 6 of the Garda Siochana (Discipline) Regulations, 1971 and is described at Reference number 1 in the Schedule to the said Regulations." This finding of a breach of discipline is not in issue in the instant appeal. 

On 21 January, 1986, at Abbeyleix, at an unsworn inquiry, Thomas Stroker was found to have committed a breach of discipline in corrupt or improper practice "that is to say, you made improper use of your position as a member of the Force in that between 10 pm and 11.30 pm on Sunday 9th June, 1985, while in civilian attire on the licensed premises of one Austin Bergin, Ballacolla, Co Laois, on you being refused groceries on credit, you immediately directed the barman, Patrick J Kennedy to clear the premises and that you would return in ten minutes to inspect the licensed premises. You returned in uniform a short time later and inspected the said licensed premises. The said corrupt or improper practice is a breach of discipline within the meaning of Regulation 6 of the Garda Siochana (Discipline) Regulations, 1971 and is described at Reference number 7 in the Schedule to the said Regulations." In respect of that breach Thomas Stroker suffered a temporary reduction in pay of £80. 

In the High Court, Barron, J concluded, in respect of breach 1, that "such a private statement is not a matter which could bring the Gardai into disrepute. The fact that a member of the Gardai is prepared to make lewd statements about his wife to an acquaintance, if not a friend, does not in my view prevent him from operating as a Garda in the community of which that acquaintance is a member. Taking this view it seems to me that the Applicant was wrongly convicted on charge number 1." 

On breach 14, Barron, J concluded that there was a wrong approach in principle to the question of penalty in that it was considered relevant to the penalty that the event had taken place in a small local community, a consideration relevant to both breaches in themselves, but not, it was said, to penalty. In his Judgment Barron, J also, but mistakenly, adverted to the record of Thomas Stroker as a member of the Garda Siochana as being without any blemish. As already stated, in January 1986, there had been a finding of breach of discipline and a consequent penalty. 

The Appellants contend that the learned trial Judge erred in his approach, both as to the law and, in respect of the record, as to the facts. 

The Law 

The decision of an administrative tribunal, such as here, is subject to Judicial Review on certain established principles the operation of which may lead to judicial condemnation or qualification of such decisions. If it be shown that in coming to its decision, the tribunal took into account matters which were not relevant or failed to take into account matters which were relevant, then the decision will be set aside. Further a decision may be quashed for unreasonableness. There have been numerous semantic exercises in describing what constitutes unreasonableness; this Court, in the plainest terms, unanimously expressed the principle in these words: 

"I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires, for the necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision." (The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642 at 658) 

I am bound by that decision with which I respectfully agree. 

Applying that test to the circumstances of this case, I am not prepared to hold that the conclusion of the Appeal Board involved a rejection or disregard of fundamental reason or common sense. There are, no doubt, many who would consider the incident in question as tasteless and offensive but irrelevant to An Garda Siochana as such, whatever about its relevance to the individual Garda; there are some who would consider that what a Garda syas off duty and in plain clothes as strictly his own business; there are others who would consider that, in a small country community, members of the Gardai should be setting an example of decent conduct. Quot homines tot sententiae. 

It follows that the appeal in respect of this breach should be allowed. 

The Penalty 

There was a factual error in the summary made in the High Court -- the record was not without blemish and a serious blemish, however paltry the penalty imposed, it of course, being a first offence. This Court must consider the matter on the basis that there had been a breach in May 1985 (the subject of the unsworn enquiry and finding in January 1986), in May 1986 (the incident involving Mrs Ann Stroker) and in September 1986 (the after hours incident). Barron, J held that the penalty of dismissal was not "appropriate in relation to both convictions". He considered that taking the fact of the Garda concerned being stationed in a small local community was a wrong approach in principle. The location was relevant to the offence but not to the penalty and he concluded "if so, surely it must be wrong to dismiss a Garda from the Force for conduct in one locality which would not have been an offence at all in another locality." I do not follow the logic of this reasoning. If the locality created or worsened the nature of the breach, then the graver was the breach of itself and the graver must be the penalty. Here there had been three serious breaches committed within a period of 16 months. Again, it may be that others would consider a lighter penalty appropriate for one, two or all of the relevant breaches. That is not the test. In my view a like consideration as that affecting the determination of breach applies to the consideration of the penalty imposed. Does the decision as to penalty flagrantly reject or disregard fundamental reason or common sense? The answer is, clearly no. 

The general direction and control of An Garda Siochana is vested in the Commissioner (Section 8 of the Police Forces Amalgamation Act, 1925). By Section 14 of the Act, the Minister for Justice is empowered to make regulations in relation to, inter alia, the discipline of the Gardai; such regulations were made in 1971 by Statutory Instrument Number 316 of that year. It is pursuant to those regulations that the charges under consideration were brought. The consideration 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 the regulation and enforcement of discipline where a decision depends upon the assessment made by the Commissioner or by an Appeal Board, in my view, the Courts should be reluctant to interfere. 

In the result, I would allow the appeal, set aside the Order of the High Court, and dismiss the applicatino for Judicial Review. 

Finlay CJ concurred. 

GRIFFIN J: I also have had the advantage of reading in advance a copy of the judgment about to be delivered by Mr Justice McCarthy and I agree with it and that this appeal should be allowed. I would like to add a few observations on one aspect of the case. 

The Garda Siochana is a national police force. In every village and small town in which there is a Garda Station, the Gardai will know and will certainly be known to almost the entire community. The members of the higher ranks of Superintendent; Chief Superintendent, Assistant Commissioner, Deputy Commissioner, and Commissioner do not enter the Force through a cadet corps. They join the Force at the rank of Garda, and those who reach the higher ranks do so by graduating through the ranks by way of promotion. In the past 50 years I believe that all those who became Commissioner, save one, reached what is the highest rank in the Force in that manner. 

All those members of the Force who reached the rank of Superintendent and higher ranks have had considerable knowledge and experience of the standards of conduct and of discipline to be expected from members of the Force at all ranks, and are particularly, if not uniquely, equipped to determine whether or not the conduct of any member falls below the required standard. To provide for circumstances in which it is alleged that there has been a breach of discipline on the part of a member of the Force, statutory regulations have been made to ensure a proper and fair investigation of any such allegation. The relevant regulations in this case are the Garda Siochana (Discipline) Regulations, 1971 (SI No 316 of 1971). These provide the detailed procedures to be followed in the course of any such investigation.They also make provision for the procedures to be followed in the event of a decision by the Commissioner, consequent upon the request of the officer who investigates the allegations, to cause an inquiry to be held into the breach of discipline alleged. 

Where, as in this case, the breach of discipline alleged is, in the opinion of the Commissioner, of so serious a nature as to warrant the information at the inquiry to be given on oath, the inquiry is held by three officers (being Superintendents or higher rank) one of whom at least must be of a rank not lower than Chief Superintendent. The inquiry in this case lasted three days during which all the alleged breaches of discipline were fully investigated. Where, again as in this case, the inquiry decides that the member has been in breach of discipline, the Presiding Officer is required to send to the Commissioner a written report thereof, and this report must state the decision of the inquiry and, where appropriate, its recommendation as to disciplinary action. Where a breach of discipline has been found to have occurred, the Commissioner decides what disciplinary action shall be taken, the member being liable (inter alia) to dismissal. 

The member who has been found in breach of discipline is given the right to apply to the Commissioner for a review of a decision, and where dismissal has been the penalty decided upon, the right to have the application referred to an Appeal Board consisting of three persons. The Chairman of the Appeal Board is required to be a District Justice or a Barrister or Solicitor of seven years standing at least. The other two members are chosen from a panel of five, (one Superintendent, two Chief Superintendents and two being either an Assistant Commissioner or Deputy Commissioner). In this case, the Chairman of the Appeal Board was a Senior Counsel, and the two remaining members were a Chief Superintendent and Assistant Commissioner respectively. 

The Appeal Board is required to deal with the matter by considering the verbatim report of the inquiry and any additional information which may be submitted. It may affirm or set aside the decision against which the appeal is taken and, as appears from the judgment of Mr Justice McCarthy, it affirmed the decision in respect of two of the alleged breaches of discipline, and set aside two of which the member had been found in breach, and the decision of the Appeal Board was communicated to the Commissioner for implementation. The Commissioner implemented the decision and ordered the dismissal of the applicant. 

The foregoing is a summary of the statutory scheme provided for the investigation of allegations of breach of discipline by members of the Gardai. Those investigating the breaches are, as I stated earlier in this judgment, appropriately equipped to investigate and deal with such allegations. Where the procedures provided for have been carried out, and where there is no allegation (as in this case) that there was not a full and fair hearing at the inquiry, or by the Appeal Board, the Court, in my opinion has no power by judicial review to substitute its opinion for that of the body provided by law to investigate the matters in question, unless, as stated by Henchy J in The State (Keegan and Lysaght) v The Stardust Victims Compensation Tribunal, [1986] IR 642, at p 658: 

"the impugned decision flies in the face of fundamental reason and common sense." 

In that case, the Chief Justice and I were the other members of the Court, and although we gave separate judgments each of us adopted that statement of Henchy J as stating the correct principle to be applied. 

In my opinion, under no circumstances could it be held in this case that the decision of the Appeal Board, or that of the Commissioner to dismiss the applicant, fell below the required standard.