Judgment Title: Kelly -v- Commissioner of An Garda Síochána
Neutral Citation:  IESC 47
Supreme Court Record Number: 205/13
High Court Record Number: 2012 284 JR
Date of Delivery: 05/11/2013
Court: Supreme Court
Composition of Court: Denham C.J., O'Donnell J., Clarke J.
Judgment by: O'Donnell J.
Status of Judgment: Approved
Notes on Memo: Quash decision of Board of Appeal
THE SUPREME COURT
RECORD NO. 205/2013Denham C.J.
GARDA JOHN KELLY
Judgment of O’Donnell J delivered on the 5th day of November, 2013.
1 To the casual observer Drumshanbo County Leitrim (population: 857) might appear a tidy, quiet and even sleepy place. It certainly was not such in the early hours of Sunday the 20th of September 2009. At 3.30am that morning a taxi, driven by Anthony McNulty, was waiting for customers outside Monica’s public house at High Street, Drumshanbo. A local garda, Garda John Kelly, the appellant, approached. It should be said that this incident occurred only two weeks after the conviction in the District Court of the licensee for having persons on licensed premises after the licensing hours. That offence had occurred in January 2009 and had itself been prosecuted by Garda Kelly. It is common case that Garda Kelly spoke to both the licensee, Mr Paddy McGourty, and his wife, Monica McGourty, for whom it seems likely the premises was named. Mrs McGourty, it appears, became so incensed that she left the licensed premises and walked around the town either following Garda Kelly or in front of him and at one stage sat on a window outside another licensed premises looking at Garda Kelly apparently with a view to making the point that a number of other licensed premises were still operating at that time of the morning without attracting Garda Kelly’s attention. This much is not in dispute. However, what happened (or did not happen) between these two incidents is a matter of bitter controversy in this case, and led to the dismissal of the Applicant/Appellant from the Garda Síochána on order of the respondent Commissioner, and thus to these proceedings.
4 In a letter dated the 2nd February 2010, Garda Kelly provided his answer to this request and also provided a third statement dated the 1st February. This statement differed quite markedly from the first two statements. First, it identified one of the individuals Garda Kelly had said walked past him when he was entering the pub as Robbie Cullen. Second, Garda Kelly now stated that Mr Brendan Lynch, who he had previously named as one of the customers present on the night, had been abusive to him on that occasion and the statement gave details of the language used. In response to this latest statement Sergeant Fahy wrote to Inspector Sweeney and stated that he knew as a fact that another person was on the premises on the night of the 20th September who was known to Garda Kelly and also that at least one other person had already been prosecuted by him for being on a licensed premises after hours. On the 1st March 2010 Robbie Cullen, who was the individual named by Garda Kelly as having passed him on his way into the pub on the night in question, made a formal statement (to Sergeant Fahy) in which he denied being present on the premises at all that night, and furthermore made allegations against Garda Kelly that he had been recently harassing him to provide the names of the customers present on the premises on the night of the 20th September.
5 On the 27th April 2010, Inspector Sweeney wrote to the Chief Superintendent in Sligo informing him of his decision to prosecute the licensee and recommending that the matter of the events of the night of the 20th September be fully investigated. A prosecution of Mr McGourty was initiated but adjourned pending the outcome of the investigation into the events of the night in question. Inspector Sweeney stated in his letter to the Chief Superintendent that he had spoken with Monica McGourty on the 23rd April and that she denied that Garda Kelly had entered the premises. On the 9th April Brendan Lynch and his wife Mary Lynch, who had been named in the first statement of the appellant as customers present on the night in question, also made statements to Inspector Sweeney. They denied that the garda had entered the pub on the night in question. They admitted, however, that they had been present there after hours and named some of the other customers who were there also. Mrs Lynch stated at the hearing of the Board of Inquiry that when she and her husband became aware that Garda Kelly had made allegations against them she went to Sergeant Fahy who told her that she could make a complaint through her solicitor and get a copy of any statement. Mrs Lynch’s solicitor informed her that she could request a copy of the statements of Garda Kelly. This request was made and the Lynchs received copies of the three statements made by Garda Kelly about the night in Monica’s. The third statement, contained the reference to abusive comments alleged to have been made by Mr Lynch. Mrs Lynch said she was shocked because she knew that this certainly did not happen and accordingly the Lynchs made a complaint about Garda Kelly.
6 On foot of Inspector Sweeney’s recommendation, a Superintendent Brunton was appointed Investigating Officer pursuant to Regulation 23 of the Garda Síochána (Discipline) Regulations 2007 (hereinafter “the Regulations”). A thorough investigation was carried out by Superintendent Brunton. Statements were taken from several individuals who admitted being present on the premises on the night in question but denied that Garda Kelly had entered the premises. Robbie Cullen made a statement to Superintendent Brunton in which he repeated that he not been present on the premises on the night in question and also that Garda Kelly had approached him and harassed him about naming persons who were there. A statement was also taken from Anthony McNulty, the taxi driver who claimed that he had seen Garda Kelly enter the premises. Superintendent Brunton’s produced an admirably succinct document entitled “ Statement of Facts established by the investigation conducted by Superintendent Brian Brunton into alleged breaches of Discipline committed by Garda John Kelly 22554A Drunshambo Garda Station”. For present purposes the following portions of that Statement of Facts appear relevant:
(1) In the early hours of the 28th of September 2009 Garda John Kelly, Drunshambo Garda Station, conducted an inspection of Monica’s licensed premises at High Street Drunshanbo. Garda Kelly subsequently prepared an investigation file in respect of this incident and submitted it to his superiors on the 18th of November 2009 for direction.
(2) Sergeant Chris Fahy, who was then the sergeant in charge at Drunshanbo Garda Station, was concerned about some aspects of the investigation file including the accuracy of the statements made by Garda John Kelly which was submitted as part of the investigation file.
(3) Following the submission of the garda investigation file by Garda Kelly Sergeant Fahy spoke with the wife of the licensee, Ms Monica McGourty. Ms McGourty informed Sergeant Fahy that Garda John Kelly did not enter her pub when he conducted his inspection but had remained outside speaking with her husband, Padraig McGourty. She also provided Sergeant Fahy with the names of the individuals who were on the premises after hours on the night in question.
(4) Following this conversation, Sergeant Fahy returned the investigation file to Garda Kelly on the 20th of November 2009 asking a number of questions and requesting an additional statement from Garda Kelly clarifying issues.
(16) Anthony McNulty, a local taxi driver, supports the version of events of Garda Kelly in that he saw him actually enter the front door of Monica’s bar.
(17) Anthony McNulty would have been sober on the night.
(18) Anthony McNulty had previously been arrested by Garda Kelly for drunk driving arsing out of a road traffic collision. This matter has yet to be heard by the courts.
(19) Anthony McNulty did socialise with Garda John Kelly on one occasion since the incident on the 20th of September 2009.”
7 On the 23rd February 2011 a Board of Inquiry (hereinafter “the Board”) was established pursuant to Regulation 25 of the Regulations to conduct a hearing into the matter. A board of inquiry is only established in relation to allegations of serious misconduct, which are matters which may attract significant penalties up to, and including, dismissal from the force. The appellant was accused of six counts of misconduct before the Board including falsehood in relation to each of his three statements, and discreditable conduct in relation to his behaviour towards Robbie Cullen. The hearing took place over 5 days between late June and early July and evidence in relation to the events of the 20th September was heard from a number of witnesses.
8 On the third day of the hearing, Sergeant Fahy gave evidence. During that evidence it emerged, for the first time, that Ms Monica McGourty had approached Sergeant Fahy on the 23rd September, some three days after the incident in question, and, therefore, before Garda Kelly had even made his first statement and long before it had been submitted to Sergeant Fahy. Moreover on that occasion Sergeant Fahy had not merely had a conversation with Ms McGourty but had taken the step of taking a formal statement from Mrs McGourty, which was not however supplied to Superintendent Brunton. Nor its existence disclosed. In that statement she had alleged harassment by Garda Kelly and also, significantly, stated that while he might have put his foot inside the porch she was sure he did not enter the premises on the night in question. The emergence of this statement cast the events in a somewhat different light and, in particular, Sergeant Fahy’s request on the 20th November for confirmation from Garda Kelly that he had entered the premises and that he did not know any other of the occupants. It also cast a different light on Sergeant Fahy’s interaction with the Lynchs and his initial recommendation against prosecution.
9 Much was sought to be made of the content of this statement by Garda Kelly’s representatives who suggested that the reference to Garda Kelly putting a foot inside the porch was in some way exculpatory of him. On the final day of the hearing, the 11th July 2011, the tribunal found all six counts had been established and recommended that Garda Kelly be dismissed from service. By letter of the 26th July 2011, the chairperson of the Board of Inquiry sent to the Chief Superintendent for Internal Affairs at garda headquarters, a letter recording the fact that the Board of Inquiry had commenced sitting on the 26th May and concluded on the 11th July. The letter stated that the chairperson was enclosing the report of the Board pursuant to Regulation 30 of the Regulations, comprising, the recommendation of the Board, a list of witnesses the list of exhibits, one extra statement handed in during the hearing( presumably that of Mrs McGourty), and the transcript of the hearing. A copy of the report and transcript of the proceedings was also sent to Garda Kelly’s solicitors. The Commissioner accepted the recommendation of the Board and dismissed Garda Kelly from An Garda Síochána.
10 On the 14th July 2011, the appellant indicated his intention to appeal the decision of the Board of Inquiry. On the 16th August 2011 a formal Notice of Appeal was submitted which merely recited the grounds of appeal contemplated in the Regulations. There was a change of representation on Garda Kelly’s behalf and following the grant of an extension of time, submissions on behalf of Garda Kelly were lodged on the 2nd March 2012. The grounds of appeal submitted by the appellant were in general terms. It was stated that he had not been provided with due process during the investigation or during the hearing of the Board, that the findings of the Board were wrong in law and in fact and that the recommendation of the Board and the decision of the Commissioner were too severe in the circumstances of the case. Some correspondence was exchanged as to possible dates for a hearing. However in mid-March 2012 the Appeal Board dismissed the appeal of Garda Kelly without a hearing, pursuant to Regulation 35(2)(b) of the Regulations on the basis that the grounds of appeal were “without substance or foundation”. Regulation 35 on its face does not require that a hearing be held before an appeal is dismissed on this ground nor does it provide, in terms, that reasons should be given for dismissal. The decision of the Appeal Board was recorded on a pre-printed form on which the other grounds for dismissal under Regulation 35 (i.e. that the appeal was frivolous or vexatious) were deleted by hand. That was the full extent of the information provided to Garda Kelly in respect a decision which had the effect of making final his dismissal from An Garda Síochána.
Proceedings in the High Court
The Appellant’s Submissions
The Respondent’s Submissions
The Garda Síochána (Discipline) Regulations 2007
(b) requirement to retire or resign as an alternative to dismissal;
(c) reduction in rank;
(d) reduction in pay not exceeding 4 weeks' pay.” (Regulation 22)
17 Where the Commissioner considers that an allegation warrants it, he or she appoints an investigating officer to carry out an investigation. Under Regulation 24(5) the investigating officer submits to the Commissioner “a written report of the investigation containing his or her recommendation as to whether the facts disclosed warrant the establishment of a board of inquiry, together with copies of any written statements made during it and details of any information, document or thing which the investigating officer was made aware of during the investigation”. Regulation 25 provides that if it appears from the report of the investigation that the member may have committed a serious breach of discipline, the Commissioner establishes a board of inquiry which is charged with determining whether such a breach has been committed and if it finds that it has, to recommend to the Commissioner the disciplinary action to be taken. A board consists of three persons one of whom is the chairman appointed by the Minister from a panel made up of judges of the District Court, and practising barristers or solicitors of not less than ten years standing. One of the other two Board members must be a garda not below the rank of chief superintendent and the final member must be a garda not below the rank of superintendent. The Board of Inquiry is obliged to formulate the particulars of the serious breach of discipline alleged and notify and supply it to the member. That notification is accompanied by a statement of the facts established by the investigation and any written statements made during it. Under Regulation 30, within 21 days after the conclusion of the inquiry, the presiding officers shall “submit a written report to the Commissioner and forward a copy of the report to the member concerned”. (emphasis added). Regulation 30(2) provides as follows:
(b) the determination of the board as to whether the member concerned is in breach of discipline and, if so, as to the act or conduct constituting the breach, and
(c) its recommendation as to any disciplinary action to be taken in respect of the breach.”
18 Within 14 days of receipt of the report, the Commissioner decides on the appropriate disciplinary action. In the case of a member above the rank of inspector, where the Commissioner considers that the appropriate disciplinary action is dismissal or a requirement to retire or resign or a reduction in rank, the recommendation must be sent to the Minister for consideration by the government. In the case of any other officer, it is for the Commissioner to decide on the disciplinary action save that under Regulation 32, where a Commissioner proposes a more severe action than that recommended by the Board, the member is to be given the opportunity to make representations in that regard. Regulation 33 provides for an appeal against the determination of the Board of Inquiry in relation to the breach of discipline and/or the disciplinary action decided on or to be recommended by the Commissioner. Regulation 33(3) provides for the grounds of appeal. Those are stated to be that:
(b) the determination is not justified, having regard to the evidence heard by the board of inquiry;
(c) all the relevant facts -
(i) were not ascertained,
(ii) were not considered, or
(iii) were not considered in a reasonable manner;
(d) the member was not given a reasonable opportunity to be heard and to respond to matters raised;
(e) the disciplinary action which the Commissioner has decided to take or recommend is disproportionate in relation to the breach of discipline concerned.”
19 The Appeal Panel is presided over by a person drawn from a panel made up of judges of the District Court or practising barristers or solicitors of more than ten years standing. The other members of the three person Appeal Board should be either the Commissioner or a person selected by him and, in the case of a member who is a member of a representative body, a member selected by that association. (Regulation 34(5))
20 The procedure for appeal is provided under Regulation 35. It provides that the Appeal Board shall request a written statement of the grounds of appeal and any other submission and then inform the member at least 15 days beforehand of the time, date and place of the hearing of the appeal. Under Regulation 35(2) an appeal board may refuse to consider an appeal where:
(b) having considered the member’s statement of the ground or grounds of appeal, it is of opinion that the case made by the member is frivolous, vexatious or without substance or foundation.” (emphasis added)
“An Appeal Board shall communicate its decision on the appeal and the reasons for it to the Commissioner and the member concerned within 7 days after the conclusion of the hearing.” (emphasis added)
The Inquiry Process in this Case
(1) The recommendation of the Board;
(2) A list of witnesses;
(3) The list of exhibits;
(4) One extra statement handed in during the hearing;
(5) The transcript of the hearing.”(emphasis added)
22 Attached to the letter of the 26th of July was a standard printed statement containing the information required by Regulation 27(3), and also setting out particulars of the serious breaches of discipline alleged. The final page of the printed form contained the conclusion of the Board of Inquiry which was contained in a standard printed form reciting “that the member concerned is in breach of the following breaches of discipline as alleged”: and which continued in handwriting “1, 2, 3, 4, 5, 6, - All breaches”. Subparagraph B contained the recommendation of the Board to the Commissioner in the following handwritten terms:
2 Statement of 21.9.2010 – Dismissal.
3 Statement of the 1.2.2010 – Dismissal.
4 Notebook entry – Dismissal.
5 Discreditable conduct, attempted pressure of Robert Cullen, Reduction in pay of €500.
6 Foul language to Robert Cullen 1.3.10. Reduction in pay €300.”
23 It is readily apparent that there is no narrative or other account provided by the Board of Inquiry other than the handwritten finding of breach of the numbered paragraphs and the recommended sanctions. On the 12th of August 2011 the recommendations were accepted by the Deputy Commissioner of An Garda Síochána. Subsequently in March 2012 the solicitor for the appellant received a letter from the chairman of the Appeals Board containing a further pre-printed form which was headed “Refusal to Consider Appeal, Regulation 35 Garda Síochána (Discipline) Regulations, 2007”. A number of irrelevant matters had been deleted and the completed form read as follows:
The Appeal Board set up to hear an appeal by John Kelly, Garda, 2554A, Drumshanbo Garda Station, has decided to refuse to consider the appeal on the following grounds;
(b) having considered the member’s statement of grounds the board is of the opinion that the case made by the member is; without substance or foundation.
(c) having considered the member’s grounds of appeal, the board is of the opinion that the case made by the member is; without substance or foundation.”
24 The form was signed by the chairman and members on different dates between the 14th of March 2012 and the 20th of that month. The replying affidavit sworn on behalf of the respondents in this matter did not deal with the mechanics of the Appeal Board’s decision. However the letter of the 13th of March 2012 enclosing the decision under Regulation 35(3) from the chairperson of the Appeal Board was exhibited in the affidavit, and it recorded the fact that the Board met on Monday 12th March 2012 at Garda headquarters. No explanation was however provided for the fact that the decision was signed on three different dates by the three different members of the Appeal Board. It appears possible either that the Appeal Board did not decide on the 12th to dismiss the appellant, or that the meeting of the 12th did not involve physical attendance.
25 Shortly before the hearing in the High Court an open letter was written on behalf of the appellant offering to compromise the matter on terms that there would be a fresh Board of Inquiry. That letter was not responded to. The matter proceeded and in a detailed judgment the learned High Court judge rejected the appellant’s complaints. It appears that in the High Court the appellant made much more of what he alleged was inconsistency between the statement of Ms McGourty which emerged at the hearing of the Board of Inquiry, and the other statements made by her to Superintendent Brunton. As already mentioned, it was suggested in the first place that the newly discovered statement was exculpatory, and secondly, that in her evidence, and in particular her denial that Garda Kelly had entered the premises, Ms McGourty had been guilty of perjury. This allegation and indeed the suggestion that the statement was exculpatory of Garda Kelly seem very wide of the mark and the judge correctly rejected these allegations. Moreover, the high octane nature of the perjury allegation may have obscured the separate complaint made and pursued more vigorously in this Court, as to the significance of the emergence of the fact rather than the contents of the statement, and the fact that it had not been revealed in either the statements or direct evidence of Ms McGourty or Sergeant Fahy. In that regard, the High Court judge considered however there was no substance to the complaint. He said:
26 It will be apparent from the terms of Superintendent Brunton’s Statement of Facts set out above that it did not show that Ms McGourty had raised concerns “three days after the incident”. On the contrary, while the statement of facts did refer to a conversation between Mrs McGourty and Sergeant Fahy it seemed to place any such conversation between the submission by Garda Kelly of his report and statement on the 18th of November and Sergeant Fahy’s request for further information of the 20th of November. It also seems apparent that Superintendent Brunton was unaware of the existence of the statement until it emerged during the course of the hearing. It seems clear therefore that the High Court never addressed the significance of the fact that a formal statement had been taken by Sergeant Fahy on the 23rd of September and not disclosed by him to Superintendent Brunton or anyone else, and furthermore that neither Ms McGourty nor Sergeant Fahy referred to this significant event in their statements of evidence, or respective oral evidence, when given to the Board of Inquiry. This is of some significance in its own terms on this appeal, but it also casts light on the wider issues. It is precisely because the High Court judge delivered a comprehensive judgment that it is possible to identify this error and then consider what, if any, significance it had. It is not however possible to ascertain what view, if any, either the Board of Inquiry or the Appeal Board took of this matter and if, for example, they shared the apparently mistaken view of the High Court, because the decision of each body is contained in an uninformative and unilluminating standard form.
The Reasons for the Board of Inquiry Decision
Dismissal of Appeal under Regulation 35(2)
41 I consider for reasons essentially similar to those applied to the decision of the Board of Inquiry, that the Appeal Board was also obliged to give reasons for its decision under Regulation 35(2). It is true that there is no appeal from a decision of the Appeal Board, but that only emphasises the fact that this is a terminating decision in every sense of that word. The only possibility for challenging the decision is by way of judicial review, and in my view, it is required that the Appeal Board provide reasons for its decision which has the effect of upholding the dismissal of a garda from the force. I consider that this conclusion follows from an analysis of the Regulations, particularly when approached in the light of the common law principles outlined so clearly in Mallak. Viewed in this way it becomes apparent that it is impossible to accept the simplistic analysis of the Regulations which would derive from the express reference to reasons in Regulation 37(3)the negative conclusion that reasons are not required elsewhere in the code. Indeed, viewed in the light of the structure and function of the regulations, it makes little sense to provide for a requirement on an Appeal Board to give reasons for its decision after a full appeal, unless the scheme also requires the giving of reasons at the earlier stages in the process.