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Cite as: [2019] IECA 288

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The President

Edwards J.

Baker J.

THE COURT OF APPEAL

[2019 IECA 288]

[2019 No 398 JR]

BETWEEN

COLM O’FLAHERTY

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SÍOCHÁNA

APPELLANT

JUDGMENT of the President delivered on the 20th day of November 2019

1. This is an appeal from a decision of the High Court (Moriarty J.) of 22nd May 2017,

quashing a decision of the then Garda Commissioner, Mr. Martin Callinan, made in the

context of Garda disciplinary proceedings requiring the applicant, Garda O’Flaherty, to

resign from An Garda Síochána as an alternative to being dismissed.

2. The background to the judicial review proceedings and to the present appeal is that at the

time the judicial review proceedings were launched, the applicant was a 38-year old

Garda, with 18 years of service, last stationed at Togher Street Garda Station in Cork. An

allegation of sexual assault on a named female was made against him, as well as a

number of related allegations of discreditable conduct relating to the same named female.

3. The allegations were brought to the attention of the Garda Síochána Ombudsman

Commission (“GSOC”) who commenced an investigation. At the conclusion of the initial

investigation, a file was forwarded to the DPP who, in or about June 2012, directed that

there should be no criminal prosecution. A further inquiry was conducted under the

auspices of GSOC, addressing the question of whether there was evidence of breaches of

the Garda Síochána (Discipline) Regulations 2007 (S.I. No. 214 of 2007) . In December

2012, a report was furnished to the Garda Commissioner under s. 97 of the Garda

Síochána Act 2005, which recommended the initiation of disciplinary action. A notice

furnished to the applicant, Garda O’Flaherty, referred to six matters stated to amount to

discreditable conduct, corrupt or improper practices, abuse of authority and neglect of

duty.

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4. On 29th April 2013, a Board of Inquiry was established for the purposes of determining

whether the applicant had committed a serious breach of discipline, and if so, to make a

recommendation to the Garda Commissioner as to the disciplinary action to be taken. The

Board, which would ultimately embark on the inquiry, consisted of Ms. Maureen Cronin,

Barrister-at-Law, as Presiding Officer, Chief Superintendent Patrick Mangan, and

Superintendent Dan Flavin.

5. The Board of Inquiry convened at Ballincollig Garda Station on 3rd September 2013. On

that occasion, substantial legal arguments challenging the Board’s jurisdiction were

presented by the solicitor appearing for the applicant, Mr. Dan Murphy, solicitor of the

firm of Carey Murphy Solicitors. The arguments advanced did not find favour with the

members of the Board of Inquiry and they indicated that they would not be withdrawing

from the matter, nor would they be recusing themselves. The further hearing of the

inquiry was adjourned until the following day, and on that day, the applicant pleaded

guilty to each of the eight charges that he faced. The eight charges before the Board of

Inquiry broadly reflected the six allegations identified by the GSOC Investigating Officer.

They were:

(i) Discreditable conduct, reasonably likely to bring discredit on An Garda Síochána, in

that on various dates between August 2010 and November 2010, he sent numerous

mobile phone text messages to a named female person to such an extent as to

cause her to be in fear of him;

(ii) Neglect of duty, failing without good and sufficient cause, between August 2010

and November 2010, to execute, which it was his duty to do, arrest warrants which

he knew existed for the same named female person;

(iii) Improper practice, that is to say that the applicant used his position as a member

of An Garda Síochána for his private advantage, in that being aware that arrest

warrants existed for the named female, used that information in order to maintain a

sexual relationship with that named female;

(iv) Breach of confidence, making an unauthorised communication to the named female

person in relation to information that came to his knowledge in the course of his

duties, being information in relation to a named female person which had been

obtained by accessing PULSE. This was information that was not available to

members of the public;

(v) Discreditable conduct, accessing PULSE information relating to the above referred

to female person for non-business purposes;

(vi) Discreditable conduct, accessing PULSE information relating to the named female

person for non-business purposes;

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(vii) Disobedience of orders, purporting to recruit an informant, namely, the named

female person without adhering to established Garda policy on the management

and use of Covert Human Intelligence Sources; and

(viii) Discreditable conduct, conducting himself in a manner which he ought to have

known would be reasonably likely to bring discredit on An Garda Síochána, in that

when the named female person requested him to stop performing sexual acts on

her, he failed to do so, the named female person being a person that he had met

through his work as a member of An Garda Síochána.

With characteristic understatement, Moriarty J. commented that the complaints could not

realistically be viewed as being trivial and that they undoubtedly came within the ambit of

the section of the Regulations involving serious breaches of discipline. Such breaches

bring with them potential sanctions ranging from dismissal to substantial reductions in

pay.

6. The circumstances arising from the second day of the inquiry in which Mr. O’Flaherty

came to change his plea and enter pleas of guilty to the “charges” that he faced is central

to these judicial review proceedings and to this appeal. However, at this stage, it is worth

noting that following the entry of the pleas of guilty, the matter was adjourned until 9th

September 2013, in order to allow a plea in mitigation to be advanced on behalf of the

applicant. The Board, having heard those submissions, stated that it would recommend to

the Commissioner sanctions in the form of reductions of either three weeks’ or four

weeks’ pay in respect of each of the disciplinary charges, the total reduction amounting to

€22,693.22.

7. It is clear that the change of pleas, and the entry of pleas of guilty to the disciplinary

charges, came against a background of some form of interaction between Superintendent

Flavin and Mr. Murphy. However, there is no agreement as to the nature of that

interaction. Mr. Murphy characterised what happened as “negotiations”, while

Superintendent Flavin said that what occurred were mere “discussions”. In a situation

where there was a fundamental conflict on the affidavits as to what had transpired, the

High Court heard oral evidence from Mr. Murphy, from Superintendent Flavin and also

from Ms. Cronin, who it will be recalled was the Presiding Member of the Board of Inquiry.

8. Moriarty J, for his part, categorised the interaction between Mr. Murphy and

Superintendent Flavin as “undoubtedly some form of plea bargaining”. It will be necessary

to review in greater detail the disputed evidence in relation to the interaction between

these two gentlemen, but to put the dispute in context, it must be appreciated that both

were very well-versed in the specifics of the Garda Disciplinary Code. There is one aspect

of the Code which was highly relevant to the interaction, to continue to use that neutral

word. While it is for the Board of Inquiry to recommend the appropriate level of sanction

to the Commissioner, the Commissioner is not bound to accept the recommendation. He

can reject the recommendation and consider a more severe sanction. If he is considering

such a course of action, the Disciplinary Code requires that the relevant Member of the

Force be informed of what is under contemplation and that he be provided with an

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opportunity to address arguments as to why the Commissioner should not impose a

sanction greater than that recommended by the Board. If, having considered the

submissions made to him, the Commissioner is still minded to impose a more severe

sanction, then the Member has a right of appeal to a Board of Appeal, comprising an

independent, legally-qualified Chairman, a representative of the Commissioner, and a

representative of the representative body to which the Member belonged. In this case,

the Garda Commissioner, on 2nd October 2013, issued a letter to the applicant. That

letter referred to the fact that the Board of Inquiry had recommended a total temporary

reduction in pay of €22,693.23, but went on to say “having considered the report of the

Board of Inquiry, I propose to impose a disciplinary action which is more severe than that

recommended by the Board of Inquiry, namely, requirement to resign as an alternative to

dismissal in respect of four breaches of discipline. The disciplinary action now proposed

will apply in respect of breaches (iii), (iv), (vii) and (viii)”. The letter also made reference

to the entitlement to make observations within ten days in relation to the proposal for a

more severe sanction and a further reference to the entitlement to appeal.

9. In response to the letter from the Commissioner, Mr. Murphy wrote, referring to his

recollection of what had transpired on the second day of the Board hearing, the day on

which there had been a change of plea, and also summarising the main matters that had

been offered in mitigation. He urged that the Commissioner should not impose a sanction

greater than that recommended by the Board of Inquiry. However, the Commissioner was

not disposed to alter his position. In these circumstances, judicial review proceedings

were initiated and leave to seek judicial review was obtained in the High Court (Hogan J.)

on 24th April 2014. It should be noted that Mr. Murphy, in his capacity as solicitor for the

applicant, invoked the right of appeal, but it was clear that the preferred option was that

of judicial review.

10. The relevance of the fact that the Commissioner was not bound by the recommendation

of the Board of Inquiry is that both the applicant and his solicitor say they were acutely

conscious of the options available to the Commissioner and that, in entering into

discussions with Superintendent Flavin, they took full account of this. As such, the only

deal or arrangement which would be of any interest to them and which they could even

consider was one where they knew that the ultimate sanction would be a monetary

penalty. They say that all their interactions or discussions or negotiations, whatever term

is to be applied, with Superintendent Flavin were informed by this consideration.

11. On behalf of the applicant, it is contended that in the course of the discussions, the

Superintendent went away for a period of approximately twenty minutes, and on his

return, informed Mr. Murphy that they were in a position to deal with the case in the

manner suggested. Mr. Murphy contends that he received an assurance that contact had

been made at the highest level, at which it had been sanctioned that a plea would be

accepted and that the matter could be dealt with by way of fines. In the course of the

grounding affidavit, the applicant says that he was advised and believed that

Superintendent Flavin had assured Mr. Murphy that if a plea of guilty was entered to the

alleged breaches, it was “guaranteed from the top” that a fine would be the ultimate

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outcome of the disciplinary process. He says that to his mind, “guaranteed from the top”

was open to only one interpretation, that the Commissioner had sanctioned the disposal

of the proceedings in that manner and it was that understanding that guided his actions

thereafter.

The High Court Judgment

12. In the High Court, the applicant relied upon two primary grounds to support his claim, the

doctrine of legitimate expectation and an alleged failure on the part of the Commissioner

to give adequate reasons. In delivering his judgment, the trial judge referred to the

widely-diverging accounts advanced by Mr. Murphy and by Superintendent Flavin in their

affidavits and in cross-examination. He saw the case as being one of a limited minority of

judicial review claims in which a significant factual issue required to be determined in

addition to the claim for relief on procedural grounds. He found Mr. Murphy’s detailed

evidence, which accorded with a prompt initial affidavit, to be more persuasive and

probable than the account provided by Superintendent Flavin. He found himself driven to

conclude that the lengthy exchanges between the two men extended to what might

transpire on the part of the Commissioner, an extension that was initiated by Mr. Murphy

and from which Superintendent Flavin did not demur. He reviewed the legal issues that

had been canvassed, addressing in particular detail the issue of the doctrine of legitimate

expectation. In relation to the absence of reasons issue, he commented that at a

minimum, a format whereby the Commissioner was enabled to indicate tersely that

having considered the Board of Inquiry report, he was disposed to impose a vastly more

serious sanction, jars somewhat in the light of all the recent authorities. However, he

went on to say that the more he had deliberated on this troubling case, the more

persuaded he was that what lies at the heart of it was the doctrine of a legitimate

expectation and the infringement thereof.

13. The trial judge concluded his judgment by saying that in the light of the factual findings

that he had felt constrained on the evidence to make, that he believed that the elements

required to ground a successful claim based on failure to respect legitimate expectations

as set forth by Fennelly J. in the case of Glencar Explorations plc. v. Mayo County Council

(No. 2) [2002] 1 IR 84 had been established. He felt that the appropriate form of relief

was to quash the decision of the Commissioner, substituting a sterner sanction for what

had been recommended by the Board of Inquiry, and then remitting the matter to the

present Commissioner for due consideration of appropriate sanction in the light of all that

had transpired.

The Issues to be Decided

14. The applicant has identified five issues falling to be considered on the appeal, namely:

(i) Can and should the appeal Court interfere with the High Court’s finding of fact?

(ii) The scope of the doctrine of legitimate expectation.

(iii) Is the Commissioner’s decision otherwise void for want of the provision of reasons?

(iv) Is judicial review permissible?

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(v) Is the High Court order appropriate?

The High Court’s Findings of Fact

15. As Moriarty J. pointed out, this was a case where there was a significant factual dispute.

While that is undoubtedly correct, it is worth noting the significant areas on which there

was agreement. Specifically, there was agreement about the fact that there was

interaction between the solicitor, Mr. Murphy, and Superintendent Flavin, a member of

the Board of Inquiry; that the objective for the applicant and Mr. Murphy was to achieve a

situation where the matter was disposed of by way of a monetary penalty, as distinct

from the more severe sanctions available, and that a degree of comfort was offered as to

how the Board of Inquiry would deal with the matter in the event that pleas of guilty were

entered i.e. that it would deal with it by way of a monetary penalty. So much is not in

dispute; what is in dispute is whether such assurances as were offered went further and

bound or purported to bind the Garda Commissioner to not go beyond a monetary fine.

16. In the course of his judgment, Moriarty J. summarised the respective contentions of the

parties as to what has occurred in the Garda Station. The judge records that Mr. Murphy

said before the inquiry resumed as scheduled at 10am that he approached

Superintendent Flavin and asked to speak privately with him. Mr. Murphy refers to the

fact that Superintendent Flavin told him that he had previously negotiated a similar deal

with a Limerick solicitor. The relevant strengths and weaknesses of each side of the case

were discussed and there was reference to the possibility of an application to have the

inquiry halted by way of judicial review, and that such an application might succeed.

According to Mr. Murphy, he was adamant that before a guilty plea could be proffered, he

would have to be in a position to assure the applicant that a monetary fine would be the

ultimate penalty. This explained the references to the need for any deal to be “approved

at the highest level” and that approval would have to “come from the top down”.

According to Mr. Murphy, Superintendent Flavin left presumably for the purpose of

conferring with the Board and making such other enquiries and contacts to secure

approval as were necessary. He was away for a lengthy period, and upon his return,

discussions were resumed. The Superintendent had stated that they were in a position to

do the deal, but he indicated that it would have to be on the basis that the applicant

pleaded guilty to all of the charges. Mr. Murphy made efforts to limit the number of pleas

that would be required, but was unsuccessful, as Superintendent Flavin was adamant that

a deal would have to be on the basis of a guilty plea to all of the charges. One matter on

which there is agreement is that there was discussion of the fact that the applicant would

be in a position to appeal the amount of any monetary fine. It was explained that this was

because it was recognised that if the matters alleged against the applicant were to be

dealt with by way of a monetary fine, then any such fine was likely to be a very

substantial one.

17. The replying affidavit from Superintendent Flavin was received late. Apparently, the

explanation for this was that the affidavit of Mr. Murphy had been misplaced or misfiled in

Garda Headquarters. The affidavit referred to the fact that Mr. Murphy had sought

permission to speak with the deponent, which was agreed, but it categorically stated that

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no negotiations were entered into. Superintendent Flavin strongly disagreed with Mr.

Murphy’s claim that it had been emphasised that any deal would have to have prior

approval at the highest level of An Garda Síochána if it were to be acceptable. The Board

of Inquiry gave consideration to what their attitude would be, or would be likely to be, in

the event of a plea of guilty and were of the view that if that course of action was taken,

that the matter was capable of being dealt with by way of a monetary penalty. The High

Court judgment refers in some detail to the cross-examinations of the deponents that

took place, but makes the point that each gentleman largely maintained the position that

he had taken when swearing his affidavit.

18. In addressing the conflict on the affidavits and on the oral evidence, the trial judge

referred to the fact that the two men differed as to whether their exchanges could

properly be described as “negotiations” or “talks”, but the crux of the issue was more one

of substance than nomenclature. The judge referred to the fact that Mr. Murphy was

adamant that the Superintendent had left him for limited periods on a number of

occasions, and not just when he went to confer with his Board colleagues in relation to

whether some or all charges would have to be met by a guilty plea. He observed that, in

what was undoubtedly some form of plea bargaining, the immediate concern of Mr.

Murphy was to ensure that the Board would confine its sanctions to financial penalties,

albeit substantial ones. The trial judge noted, however, that more than that was at stake.

Both men had appreciable past experience of Garda disciplinary matters and were aware

that even if substantial financial penalties were recommended that this would not be the

end of the matter. Instead, in a process somewhat akin to undue leniency reviews in

criminal law, the recommendation could be challenged by the Commissioner with a view

to substituting the graver penalty of resignation as an alternative to dismissal from An

Garda Síochána, albeit with the relevant Member having potential further recourse to a

Board of Appeal. The judge said that it was in this context that Mr. Murphy made it clear,

in his affidavits and in oral testimony, that any final resolution of differences had to

encompass any such potential intervention by the Commissioner as opposed to extending

on to a possible final decision of a Board of Appeal. The judge said that the most crucial

averment in the affidavits sworn by Mr. Murphy was that he had fully adverted to these

legal provisions in the course of his discussions with the Superintendent, emphasising the

prerequisite of finality, and that the latter, on return from one of his absences, had

unequivocally stated to him that he could do “the deal” and that it was guaranteed from

“the top” that monetary penalties in this event would be the ultimate outcome of the

entire disciplinary process.

19. The judge observed, as he had previously, that the relatively lengthy dialogue between

Mr. Murphy and Superintendent Flavin was undoubtedly of the nature of plea bargaining,

and although initiated by Mr. Murphy, involved the Superintendent combining an

extended dialogue with Mr. Murphy while primarily engaged in a quasi-judicial role as one

of the members of the Board. Once more, with characteristic understatement, Moriarty J.

described this as “a situation requiring caution”.

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20. Moriarty J. focused on the timescale for the exchanges. He referred to the fact that Ms.

Cronin had referenced the fact that the consultation between Board members in relation

to financial sanctions occupied in the vicinity of one and a half hours, but was of the view

that that left “a gaping hiatus” of two and a half hours between the intended

commencement of the day at 10am and the actual resumption at 2pm. The judge said

that given he was dealing with two intelligent and experienced professionals who knew

the applicable procedures thoroughly, that it seemed to him virtually inconceivable that

any discussions specifically limited to the outcome within the Board could conceivably

have occupied such a timeframe. From his appraisal of the evidence and the inherent

probabilities, he found himself driven to conclude that the lengthy exchanges between the

two extended to what might transpire on the part of the Commissioner, that this

enlargement was initiated by Mr. Murphy and that Superintendent Flavin did not demur.

He felt that the prompt initial affidavit provided by Mr. Murphy was more persuasive and

probable than the account provided by the Superintendent. He referred to what he felt

was a changed dynamic at the sentence hearing when all three Board members

addressed a number of questions directly to the applicant which, on their face, appeared

designed to explore and enhance matters of mitigation that had already been touched

upon.

21. In urging this Court to disagree with the findings of fact made in the High Court, the

appellant Commissioner makes the point that there was, in fact, no finding of clear and

unambiguous representation made to Mr. Murphy by Superintendent Flavin.

22. It is said that this is a case where there was an error by the judge in relation to his

findings of fact and that it is open to this Court to review those findings. It is said that the

Court is not precluded from doing so by the Hay v. O’Grady [1992] 1 IR 210 line of

jurisprudence. In my view, this is a case where the Hay v. O’Grady line of authorities is

applicable and where the findings of fact, depending upon oral evidence and the

recollection of events as they are, are such that the Court should be very slow to

intervene. I would not be prepared to do so. While conscious of the limitations of the

pages of a transcript, I would add that having read the transcript of 12th and 13th July

2013, which embraces the three cross-examinations, had the decision been mine, I would

have reached the same decision as the High Court judge. I would, though, probably have

reached it by a slightly different route. I would not have placed the same emphasis as he

did on the duration of the interaction on that morning in Ballincollig Garda Station. I

would not find it easy to assign a timetable which would depend on whether the

discussions were focused on the ultimate penalty that would be imposed, or whether the

discussions were focused on what penalty would be recommended by the Board of

Inquiry. Rather, I would have tended to approach matters from the perspective that both

those engaged in the discussions were very conscious that the recommendation was

simply that; a recommendation.

23. In those circumstances, it seems to me highly probable that Mr. Murphy would have

sought assurance, or at least some comfort, that the ultimate penalty would accord with

the recommendation. The combined effect of the affidavits sworn by the applicant and

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those sworn by Mr. Murphy seems to me to put beyond doubt that the O’Flaherty team,

comprising himself, his solicitor, Mr. Murphy, and the representative of the Garda

Representative Association were acutely conscious that the Board of Inquiry could only

make a recommendation, and that from their perspective, more than that was required. I

am reinforced in my view that the trial judge was correct in his assessment of the facts by

the response to the statement from the Commissioner that he was proposing a more

severe penalty. There is reference to the communication being greeted with shock and

there is the fact that Mr. Murphy immediately contacted Superintendent Flavin and spoke

to him by phone. If the conversations in Ballincollig had been confined to addressing the

question of what the Board of Inquiry would recommend, one would have expected that

would have been said. Indeed, one might have expected that the suggestions that the

conversations in Ballincollig bound the Commissioner would have been met with surprise

and bemusement, if the question of the ultimate penalty was not under discussion.

24. I would therefore approach this appeal on the basis that insofar as the hearing in the High

Court involved findings of fact, that those findings of fact cannot be disturbed.

Legitimate Expectation

25. In relation to the issue of legitimate expectation, the appellant Commissioner says that as

a matter of law, a claim of legitimate expectation cannot succeed where the effect is to

fetter a statutory discretion or to thwart the exercise of a statutory power or function. So,

the appellant says that even if representations were made by Superintendent Flavin to

Mr. Murphy and could theoretically constitute a representation that could be relied upon

against the appellant, that in this case, the representations cannot have the legal effect

contended for by the applicant for judicial review.

26. It is said that no legitimate expectation has been or can be established. The first fact that

a claim in seeking to invoke the doctrine must establish is the existence of a clear and

unambiguous representation. The appellant says that there was no such representation in

this case and points to aspects of the evidence where Mr. Murphy accepted that

Superintendent Flavin had not said that contact had been made at the highest level, had

not said that the proposal had been sanctioned at that level, and that, moreover, Mr.

Murphy accepted that he had not asked Superintendent Flavin whether he had rung the

Commissioner’s office, or the Commissioner himself, or, indeed, whether there had been

any contact with Garda Headquarters in relation to the issue.

27. The respondent to this appeal categorises the Commissioner as someone who “went back

on his side of the bargain”. I am not convinced, however, that the state of the evidence

justifies references to “going back on a bargain”. Mr. Murphy may well have believed that

Superintendent Flavin was indicating to him that the matter could be dealt with, both at

Board of Inquiry level and Commissioner level on the basis of the imposition of a

monetary penalty. However, the sense one has is that there was a degree of

circumspection on the part of both parties to the exchanges. Given the sensitive nature of

what was underway, which Moriarty J. referred to as giving rise to a need for caution, that

circumspection is entirely understandable. However, it does not appear that

Superintendent Flavin ever said in explicit terms that he had been in contact with the

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Commissioner or in contact with Garda Headquarters. It equally seems to be the case that

Mr. Murphy never put direct questions to Superintendent Flavin to that effect. It seems

that the exchanges involved impressions and understandings being formed. It remains

the situation that at the close of the evidence in the High Court, there was no evidence of

any contact with Garda Headquarters and no evidence that the Commissioner, or any

other figure of authority in An Garda Síochána, had committed to dealing with the matter

by way of a monetary penalty. The respondent to this appeal might well make the point

that if there was no contact with the Commissioner or with Garda Headquarters, and if it

was the case that nobody at Commissioner level or very senior level in the Gardaí knew of

what was being discussed in Ballincollig, that one might have expected clear and

unequivocal evidence to that effect. Nonetheless, I am left in a situation where it seems

to me that the evidence is too tenuous and too speculative to permit of the invocation of

the doctrine of legitimate expectation.

Adequacy of the Commissioner’s Reasons

28. I turn, now, to the question of the adequacy of reasons. I do so, notwithstanding the

argument made on behalf of the appellant Commissioner that the judge in the High Court

had decided that the case was, at its heart, a legitimate expectation case, and that that

had to be seen as a rejection of the issue, and that for it to be considered by this Court, it

would have been necessary for there to have been a cross-appeal. I do not believe that

this objection is well-founded. Yes, it is true that the judge decided the case on legitimate

expectation grounds, but far from rejecting the applicant’s arguments in relation to

reasons, he commented that the actions of the Commissioner, in indicating tersely that

having considered the Board of Inquiry report he was disposed to impose a vastly more

serious sanction, were at odds with the recent authorities. It seems to me that this

remark indicates that, far from rejecting the arguments, the judge was, in fact,

sympathetic to them, but preferred to decide the case on a different basis. For my part,

where there is a detailed report of a Board of Inquiry and the Commissioner either

accepts that report or departs from it, I would often be easily persuaded that the

Commissioner’s reasons are self-evident. In a case such as this, where a Board of Inquiry

recommends a monetary penalty and the Commissioner takes the view that dismissal, or

requiring the Member’s resignation, is the appropriate sanction, I would need little

persuading that it was self-evident that the Commissioner had formed the view that the

misconduct in issue was too serious to be dealt with by way of a monetary penalty, and

that it was not appropriate to retain the individual concerned as a serving member of An

Garda Síochána.

29. In the present case, I would have no difficulty with the terms of the letter of 2nd October

2013. While it is the case that the letter merely notes that the Board of Inquiry had

recommended a total temporary reduction in pay of €22,693.23, he went on to state

“having considered the report of the Board of Inquiry, I propose to impose a disciplinary

sanction which is more severe than that recommended by the Board of Inquiry, namely, a

requirement to resign as an alternative to dismissal in respect of four breaches of

discipline”. It is true that the Commissioner does not state expressly how and why he

came to that view, but I am convinced that on the facts of the case, that there can be no

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real uncertainty about his approach. It is clear from this that he was of the view that what

the Board of Inquiry was proposing did not meet the gravity of the situation.

30. However, I am of the view that the response to the observations and submissions

submitted on behalf of the appellant by letter of 11th October 2013, was deficient, and

deficient to a serious degree. That letter draws attention to what it is said to be a

significant error in the report of the Board of Inquiry and goes on to say:

“[t]he fact is that the Board did not resume at 10am on Wednesday 4th September as is

stated, rather it sat at 11am and adjourned until 2pm when the change of plea was

formally communicated to the Board. The guilty plea reflected a major change of course

as the proceedings had hitherto been contested and serious legal and procedural issues

were vented, with serious implications for the jurisdiction of the Tribunal that might have

had to be litigated in the High Court. Instead, Mr. Murphy of this office and

Superintendent Flavin held discussions and on the understanding it was ‘guaranteed from

the top’ that a fine would be the ultimate outcome of the disciplinary process, Garda

O’Flaherty indicated a willingness to plead guilty. To that end, he was required to plead

guilty to all the charges and he accepted that requirement. There was contact with Garda

Headquarters during this process, and it is in that context and on his strict understanding

and reasonable expectation that the Commissioner would not demur from the agreement

that Garda O’Flaherty entered a plea to the charges. The Tribunal report does not address

that at all, and when that is factored into the equation, we hope that the agreement will

be honoured. The letter from Chief Superintendent McLoughlin merely states, having

considered the submission made on behalf of your client in the letter of 11th October, the

Commissioner is not prepared to alter his decision to increase the disciplinary action

recommended by the Board of Inquiry in respect of the breaches of discipline numbered

(iii), (iv), (vii) and (viii) as set out on the form dated 11th June 2013.”

31. In my view, the letter of 11th October demanded a specific response. At a minimum, it

was necessary for the Commissioner to say whether he accepted that there had been

interaction between Mr. Murphy and Superintendent Flavin, but that anything said

between them did not bind the Commissioner, and to respond to the suggestion that

there was contact with Garda Headquarters during the process and that Mr. Murphy had

been led to believe that it was “guaranteed from the top” that a fine would be the

ultimate outcome. In my view, what occurred in Ballincollig was sufficiently unorthodox

that when it was brought to the attention of the Commissioner, it was incumbent on him

to address specifically what was being said. His failure to do so must leave Garda

O’Flaherty with a legitimate sense of grievance. I am of the view that the Commissioner’s

failure to respond to the case that was being made to him means that the decision to

require resignation as an alternative cannot stand.

The Remaining Issues

32. I agree with the High Court that the appropriate course of action now is that the matter

should be remitted to the present holder of the Office of Commissioner for due

consideration by him of what would be the appropriate sanction in the light of all that has

transpired. In coming to that view, I do not ignore the arguments that have been

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advanced in relation to the fact that there is an alternative remedy by way of an appeal

under the 2007 Disciplinary Regulations, and that, indeed, an appeal has been lodged. I

do not agree with any suggestion that the applicant for judicial review was estopped from

pursuing judicial review proceedings by virtue of the fact that his solicitor filed a Notice of

Appeal to the Appeal Board. Like the High Court, I am satisfied that that was a legitimate

precaution or “belt and braces” approach taken by the solicitor to protect the position of

his client.

33. Thus, while my reasoning diverges to some extent from that of the High Court judge, I

would uphold his decision and dismiss the appeal.

Result: Dismiss Appeal