High Court of Ireland Decisions

1. The Applicant is a student member of An Garda Siochana. He commenced his training in August 1993. In October of that year an incident allegedly took place at Allens Licensed Premises in Templemore during which the Applicant allegedly was drunk, exposed his person and assaulted a fellow student guard. In December he was informed that disciplinary proceedings would be instituted against him.

2. The Applicant successfully challenged those proceedings. The facts and background are set out at length in the judgment of Barr J. delivered on the 4th July, 1995. This was appealed to the Supreme Court which upheld the decision of Barr J. insofar as it quashed the proceedings. The Supreme Court, however, did not agree with Barr J. that further proceedings should be prohibited. The judgment of the Chief Justice (delivered on the 15th February, 1996) specifically refused an Order prohibiting the second-named Respondent from taking further disciplinary proceedings " provided that such proceedings are conducted in accordance with the provisions of the Disciplinary Code and the requirements of natural and constitutional justice".

3. The documents discovered in the present case show that on the very next day the first-named Respondent had already considered the Supreme Court judgment and set out options available to the Respondents in relation to the Applicant. These options included a reinvestigation of the alleged breach of conduct on the 13th October, 1993. By the 27th February it had been decided to readmit the Applicant and to carry out an investigation in accordance with Regulation 33 of the Code of Conduct for Students/Probationers ("the relevant code"). In a letter dated the 28th February to the Chief State Solicitor it was indicated that the decision had been to " re-contract him " and after this, the Superintendent in charge of the student probationer school " will enquire into the incident in Allens Public House on the 30th October, 1993".

4. By the 12th March legal advice had been given which indicated that the Commissioner could start the investigation afresh and go as far as possible without approaching the Applicant. It was indicated he should not be approached until further directions were received from the law officers.

5. The Applicant's solicitors wrote on the 20th February, 1996 with a general enquiry in relation to " our client's assignment " to a Garda Station, and a specific enquiry in relation to the damages indicated by the Supreme Court. After a reminder they received a letter dated the 4th April, 1996 indicating that it was proposed to accommodate the Applicant with a group for Phase II training scheduled for the 15th July, 1996. It was suggested that the Applicant attend at the Garda College, Templemore, on some date between the 9th April and the 1st June " when he will be re-contracted as a student garda " for the remaining period of training until attestation at the end of Phase III. After a further enquiry from the Applicant's solicitor, the first-named Respondent wrote suggesting that the Applicant attend at 10 a.m. on the morning of Tuesday, 28th May, 1996 at the Garda College " for re-contracting as a student garda ".

6. According to his Affidavit the Applicant did so attend on that date (erroneously described as the 20th May in the Affidavit). On the 25th June, 1996 he was served with a notice pursuant to Regulation 33(8) of the Code of Conduct informing him that he may have been in breach of the code, that one Louis Harkin, Superintendent had been appointed Investigating Officer and his attention was drawn to the alleged breaches being drunkenness, indecent exposure and assault.

7. On the 9th September, 1996 Superintendent Harkin informed him that he had taken fresh witness statements and gave him copies. They met by agreement on the 8th October, 1996 when the Applicant gave a statement to Superintendent Harkin. On the 25th November, 1996 he was informed that the first-named Respondent proposed to conduct an oral enquiry on the 3rd December, 1996 into the alleged incident at Allens Licensed Premises on the 13th October, 1993. His solicitors wrote a letter on the 28th November, 1996 seeking an explanation as to the nature and composition of the proposed hearing and further details in relation to it. They also sought an adjournment. In his reply of the 29th November, 1996 the first-named Respondent gave certain replies to which I will return. He also refused an adjournment. A further letter of the 2nd December, 1996 from the Applicant's solicitors raised further queries and repeated unanswered queries, insisting on satisfactory replies and threatening steps to protect their client's interest if the hearing was not adjourned. By letter of the 2nd December the adjournment was conceded to the 17th December, 1996 and certain other replies were furnished.

8. Before the adjourned date was reached, however, an application was made to this Court on the 13th December, 1996 and an Order giving liberty to institute the present proceedings was granted by Mr. Justice McCracken. He also made an Order that the Respondent, their servants or agents be restrained from taking any further steps against the Applicant in relation to the alleged incident until the determination of the application for Judicial Review or until further Order or until the injunction should have lapsed by reason of the Applicant's failure to serve an originating Notice of Motion within the proper time.

9. The Applicant had obtained the necessary academic requirements in order to successfully complete Phase III. He was due to be attested on Wednesday, the 22nd April, 1997 and to be assigned to a Garda Station for Phase IV of the training. However, on the 27th March, 1997 he was notified that he would not be attested nor would he be assigned to a Garda Station due to the fact that the internal investigation had not been concluded.

10. A Motion was brought in these proceedings by the Applicant for a declaration or direction that the decision of the first-named Respondent on the 1st April, 1997 preventing him from being attested and from progressing to Phase IV of his training programme constituted a breach of the Order of Mr. Justice McCracken dated the 13th December, 1996 and this Motion was heard by Mr. Justice Kelly on the 21st April, 1997 who delivered judgment thereon on the 24th. The Applicant was refused the relief he sought, Kelly J. having decided that the refusal of the first Respondent to advance the Applicant into the next phase of his training course was not in breach of the injunction.

11. These proceedings were heard by me on the 1st and 2nd July, 1997.

12. In them the Applicant advances two attacks on the reconstituted investigation as follows:-

13. Additionally, the Applicant seeks a declaration that Regulation 33 of the Garda Siochana Code of Conduct for Students/Probationers is wrongful, null and void and constitutes a breach of the Applicant's constitutional right to basic fairness of procedures. The Applicant was not given leave to seek this additional relief in the initiating Order of McCracken J. but relies on Order 84 Rule 19 of the Rules of the Superior Courts which provides that any relief which the Court considers appropriate may be granted if it arises out of or relates to or is connected with the subject matter of Judicial Review proceedings notwithstanding that it has not been specifically claimed.

14. The Applicant says that he cannot understand why it took seven months from the date of delivery of the Supreme Court judgment to serve him with fresh statements; that this is clearly contrary to the judgment of the Supreme Court in his own case which requires any further proceedings to be conducted in accordance with the provisions of the relevant code and the Applicant points out that in an earlier case of McNeill v. The Commissioner of An Garda Siochana, Ireland and the Attorney General (30th July, 1996), the Supreme Court stressed particularly that the procedure under the disciplinary code under consideration in that case must be dealt with expeditiously " and as a matter of urgency ", (see the judgment of Hamilton C.J. at page 24) and that the judgment of O'Flaherty J. indicated that a timetable that accords with the requirements of those regulations " would have to lay down a much shorter time span: ideally, a matter of weeks, or months at the most ".

15. The Applicant says that not only did seven months elapse before he was served with fresh statements but a further period elapsed before he was notified that there was to be an enquiry on the 3rd December. He complains that this delay is such as to deprive him of his entitlement to a procedure under the relevant code and also of his natural and constitutional procedural rights.

16. Secondly, the Applicant claims that the first-named Respondent has expressed himself on no fewer than three separate occasions as having concluded that the Applicant has committed the offence under investigation. The first of these occasions occurred at approximately 2.30 p.m. on the 25th November, 1996 when the first Respondent met the Applicant at the direction of the first Respondent. The first Respondent came into the picture as follows: after the Applicant had recommenced as a student garda, the allegations of breaches of discipline were reported to the first Respondent on the 12th June and on the 19th he caused these to be fully investigated by Superintendent Louis Harkin pursuant to Regulation 33(8) of the relevant code. The latter, as already indicated, served notice of the new investigation on the Applicant on the 25th June, 1996. The first Respondent directed "a complete and thorough independent impartial fresh look" at the alleged breaches and the circumstances surrounding them. This entailed a very full investigation conducted or directed by Superintendent Louis Harkin which involved the taking of twenty-nine written statements between the 29th June and the 22nd August and others later. The Applicant's class had dispersed to several locations around the country and it was a difficult time to progress the investigation because some people were away on holidays and others were temporarily transferred to border duties to police the BSE crisis. Superintendent Harkin met the Applicant by appointment at Kevin Street Garda Station on the 9th September, 1996 and served a copy of the investigation file upon him. By agreement the Applicant was to contact Superintendent Harkin, which he duly did when they arranged to meet on the 8th October, 1996 when the Applicant made a further statement to Superintendent Harkin. This file was transmitted to the first Respondent on the 15th November, 1996, who directed the Applicant to attend to meet him at Garda College, Templemore, on the 25th. One Sergeant Pascal Connolly was also in attendance on that occasion and prepared a long-hand note of what transpired and this, together with a typed copy, is exhibited to the first Respondent's Affidavit. In the course of this interview, the first Respondent is reported as saying:-

17. The Applicant answered " No Sir".

18. Following this the first Respondent informed the Applicant that he proposed to hold an oral enquiry before coming to a final decision.

19. The second instance which the Applicant relies on is contained in the first Respondent's letter dated the 29th November, 1996 which is a reply to the Applicant's solicitor's letter of the day before setting out several queries in relation to the then proposed oral hearing. The fourth question was:-

20. The answer to this was:-

21. In this letter it should be noted that in response to a fifth question which was

22. The third instance relied upon by the Applicant is contained at paragraph 2 of the first Respondent's letter to the Applicant's solicitors of the 2nd December, 1996. On the same date the Applicant's solicitors wrote setting out a series of questions, number 2 of which was:-

23. The answer to this question was:-

24. The Applicant relies particularly on the judgment of Hamilton C.J. in McNeill v. The Commissioner of An Garda Siochana, Ireland and the Attorney General (30th July, 1996) which deals with the Garda Siochana (Discipline) Regulations, 1989. In particular he places emphasis on the following passage of the judgment, namely:-

25. As already indicated in a separate judgment, O'Flaherty J. had indicated that the timetable which would accord with the requirements of these regulations would have to be much shorter than the seven years involved in that case and ideally a matter of weeks or months at the most. Counsel for the Applicant says that similar phrases appear in the Code of Conduct for Students/Probationers which govern the investigation in the instant proceedings and that the time taken between the Supreme Court judgment delivered on the 15th February, 1996 and the service of new statements on the Applicant on the 9th September, 1996 was unconscionable in the circumstances and in breach of the Applicant's rights to a fair hearing. Furthermore, Counsel says that the discovered documents disclose that on the 27th February, 1996 it had been decided "that a Superintendent be appointed forthwith, on the readmission of McAuley as a student, to carry out an investigation in accordance with Regulation 33" and that the delay between that date and the service of the formal notice on the Applicant on the 25th June was itself unconscionable and in breach of the Applicant's rights.

26. I have carefully considered this submission. I note that in the discovered documents there is a letter of the 28th February, 1996 from an Assistant Commissioner to the Chief State Solicitor specifying, inter alia, that the Applicant would have to be re-contracted "as the initial contract which he entered at the commencement of his Phase I training has long since expired" .

27. Furthermore, the decision disclosed in the letter of the 27th February, 1996 was that a Superintendent be appointed "forthwith on the readmission of McAuley as a student" . There was correspondence between the solicitors for the parties commencing with the Applicant's solicitors letter of the 20th February, 1996 which concentrated on the Applicant's assignment to a Garda Station and payment of compensation. The correspondence continued in April in the manner already described and the Applicant ultimately appears to have recommenced his studentship either on the 28th May or the 6th June. He was served with formal notice of the new investigation on the 25th June.

28. It is clear from the documents in this case that the Respondents took the Supreme Court decision seriously, and were concerned to act strictly in accordance therewith. They were being pressed, quite correctly, by the Applicant's solicitors in relation to the recommencement of his training and also the payment of compensation. Regardless of whether the Respondents were correct or not in their view that the Applicant would have to be re-contracted, this view seems to explain why they felt unable to formally communicate with the Applicant in relation to the renewed investigation until he had recommenced his training.

29. I must also take into account, on this aspect of the case, the direction given by the first Respondent that the new investigation be a "complete and thorough independent impartial fresh look" at the alleged breaches and the circumstances surrounding it. This entailed inevitably the making of contact with the twenty-nine and more gardai who prepared statements and who were dispersed throughout the country. I do not think the Respondents failed to process the investigation " as soon as practicable " in general or specifically in breach of Regulation 33(8) which, where relevant, provides as follows:-

30. On the evidence the complaint was reported to the first Respondent on the 12th June, 1996 and he, one week later, appointed Superintendent Harkin as investigating officer. I do not see any breach of sub-rule (8) on this aspect. Superintendent Harkin was obliged to contact the now dispersed members of the Applicant's class and again I do not see a failure to comply with sub-rule (8) in the manner in which this was done which resulted in the serving of the new statements on the Applicant on the 9th September.

31. In regard to the period before the 25th June, I am not prepared to hold that there was a breach of the regulations because the Respondents were acting under legal advice that they could start the investigation and go as far as possible without approaching the Applicant himself. The full content of this legal advice has not been made available but it is perfectly conceivable that the Respondents considered that they were entitled to approach the Applicant in person only after he had recommenced training. Whether this was on the 28th May or the 6th June, I would consider that the service upon him on the 25th June of the formal notice in relation to the second investigation was done within a reasonable time and would not be a ground for invalidating the procedure simply and solely on the grounds of delay.

32. With regard to the period which elapsed between the 9th September, when the Applicant was served with the fresh statements and the 25th November, when he was directed to and did meet the first Respondent, I consider that this period of time elapsed to some extent with the consent of the Applicant himself. In those circumstances I do not think that the passage of this period of time could be a safe ground for invalidating the procedure simply and solely on the grounds of delay.

33. Accordingly, in my view, the Applicant is not entitled to any relief on the ground that the procedure adopted by the Respondents was either in breach of the regulations or the Applicant's procedural rights by reason of delay.

34. In considering the Applicant's case in relation to delay, I have borne in mind that the period of delay in the George McNeill case was some seven years and also the fact, as adverted to by Kelly J. in the judgment on the interlocutory application in these proceedings, that if the Applicant is successful any monetary loss arising because of his continuing reduced earnings in the printing section of the Garda College pending the determination of these proceedings, can be recompensed by an award of damages.

35. The specific form of bias alleged in this case is prejudgment. There is no suggestion of personal animosity, or any form of personal self-interest on the part of the first Respondent.

36. I have been referred to a number of authorities in relation to prejudgment bias and accept as settled in this country that the appropriate test is what is referred to as the objective test. This is contrasted with the subjective test. A subjective test would relate to the actual state of mind of the deciding officer. The objective test was set out by Finlay C.J. in O'Neill v. Beaumont Hospital Board (1990: ILRM: 419 at p. 438) where he said:-

37. The foregoing passage was cited with approval in the judgment of the Supreme Court delivered by Denham J. in Dublin Well Woman Centre Limited and Others v. Ireland and Others (1995: 1: ILRM: 408 at 420) where the learned Judge went on to emphasise (page 421):-

38. The following passage from the judgment of Lord Denning M.R. in Metropolitan Properties Company (FGC) Limited v. Lannon (1969: 1: QB: 577 at page 599) was also cited by Denham J. in the Well Woman case:-

39. Counsel for the Respondents urges upon me that the three instances to which I have referred above in which the first Respondent declares himself to have decided that the Applicant had committed a breach of discipline must be seen in context. Specifically the context was that an elaborate exercise was engaged in at the direction of the first Respondent whereby further statements were collected from members of the Garda Siochana dispersed around the country which were presented to the Applicant in preparation for a hearing at which the persons who made those statements would be present to give oral evidence which could be subjected to cross examination by the Applicant at a hearing which would not necessarily be confined to one or any particular number of days. The Applicant could bring witnesses of his own and give evidence on his own behalf. There was nothing to indicate that the full appropriate range of oral hearing procedures would not be available to the Applicant.

40. When seen against this background, it is submitted, the phraseology of the first Respondent's statements appears more as unhappy slips than as indications that the first Respondent has actually made up his mind and prejudged the issue which was to be determined at the enquiry itself. It is to be noted that in the manuscript (and typed) notes of the first Respondent's interview with the Applicant on the 25th November, 1996 when the first Respondent notified the Applicant of the proposed oral enquiry, he said specifically:-

41. I have been asked to consider the judgment of Finlay C.J. in O'Neill v. Beaumont Hospital Board (loc. cit.) among other authorities. It is perhaps the authority which most nearly approximates the circumstances of the instant case. It is clear from the judgment of the then Chief Justice that the evidence on which the plaintiff relied was to a large extent contained in minutes of a meeting of the relevant Board which was held after the institution of the proceedings and indeed after the purported decision of the Chief Executive Officer (which decision had already been set aside in an earlier judgment). In relation to these minutes the Chief Justice said the following:-

42. Later on in the judgment reference is made to two other persons whose statements recorded in the minutes are such that they too could be construed, ("though it may be somewhat more ambiguous than the position of the Chairman") as having committed themselves to a firm judgment on the actual facts as distinct from the correctness of the procedure or even the correctness of the decision of the Chief Executive Officer on what he believed to be the facts. The following is what the then Chief Justice said in relation to the persons who made these two statements:-

43. From the foregoing excerpts I divine that the statement uttered by the Chairman of the Board was more forthright than the recited utterances of either Mr. McClean or Mr. McLoone. These in turn, however, strike me as of a different order than the written statements relied upon by the Applicant in this case and already recited above. I say that the utterances of Mr. McClean and Mr. McLoone are of a different order than those relied upon by the Applicant in the present case because, in Mr. McClean's case, his statement refers to total support for the decision (that is a decision already taken against the applicant in that case) and to the fact that he had consulted with the medical administrator and that effectively a decision the other way would have done a disservice to the hospital. The statement of Mr. McLoone agreeing with the Chairman's view in relation to procedural matters went on to indicate that there appeared to be no argument on the merits that the right decision (i.e. against the applicant) had been taken.

44. Bearing these in mind and the observations of the then Chief Justice that these statements were "of less unambiguous purport than the statement of the Chairman", one is compelled to infer that the Chairman's statement which is not set out in any of the judgments reported, was even more emphatic. It is referred to in the judgment of the Chief Justice in the following terms:-

45. I think the statements which grounded a successful challenge on the issue of prejudgment bias in O'Neill v. Beaumont Hospital are in a different category to those relied upon by the Applicant in the present case. The statements relied upon in the present case do indeed appear as a matter of form to indicate that the first Respondent has decided the issue which is about to be the subject of an oral enquiry. However, these statements are not the only statements made by this Respondent. In particular, when specifically notifying the Applicant that there would be an oral enquiry, he said:-

46. In one of the letters containing a version of the allegedly prejudgmental utterances there is also contained a statement in relation to the hearing that:-

47. Furthermore, the first Respondent specifically pointed out to the Applicant that there were some conflicts on the investigation file and at paragraph 8 of his Affidavit this Respondent says:-

48. Later on at paragraph 10 this Respondent says:-

49. The second modern Irish authority on this topic is Dublin Well Woman Centre Limited and Others v. Ireland and Others (1995: 1: ILRM: 408) and this authority also is relied upon by the Applicant.

50. The Supreme Court judgment, delivered by Denham J., held that:-

51. The judgment of Denham J. emphasised that the background to the Dublin Well Woman Centre Limited case was " ....of particular importance and relevance ".

52. Of particular relevance and importance in that background were the following features:-

53. In these circumstances there was the possibility, that notwithstanding the clear absence of actual or subjective bias, an independent observer could reasonably perceive - on the grounds of pre-existing non-judicial position and actions - a link on the part of the learned trial Judge with views publicly articulated in the context of a highly emotive and divisive topic in the community.

54. Once again, I have to say that I consider that the circumstances underlying the Supreme Court judgment in the Dublin Well Woman Centre Limited case are of a different character to those in the present case. There is no question in the present case of a topic which is emotive and divisive in the community. There is no question of a high profile public debate. There is no question of a perceived link or connection between the first Respondent and any statement published in such a context let alone addressed to the Taoiseach of the country. In this case, on the contrary, Counsel for the Respondents could plausibly argue that the utterances complained of were "slips of the tongue". He has been able to place beside them the several other features to which I have already referred and which would be inconsistent with a prejudgment by the first Respondent of the matter which he has to deal with in this case.

55. I must apply the objective test as described in the above authorities to a determination as to whether in all the circumstances the first Respondent is culpable of prejudgment bias. In my view he is not. I think a reasonable man, apprised of all the circumstances which I have set out in this judgment, might well come to the conclusion that the first Respondent had expressed himself in an infelicitous fashion, or that a legal adviser would have insisted on rephrasing the utterances relied on. I also think, however, that the same reasonable man would be obliged to take note of the careful if not elaborate preparations conducted by or at the direction of the first Respondent in advance of the oral hearing, his manifest and repeatedly stated concern to comply with the requirements of the relevant code and indeed his explicit statement to the Applicant on the 25th November, 1996 that he proposed to hold an oral enquiry before coming to a final decision, quite apart from his sworn statement to like effect in his Affidavit. In my judgment the Applicant's apprehension of bias is not a reasonable apprehension as identified in the relevant authorities and I must refuse the application on this ground also.

56. Counsel for the Respondent objects to the Applicant's application seeking, in the alternative to the two reliefs already referred to, an Order granting him leave to apply for Judicial Review by way of a declaration that the provisions of Section 33 of the Garda Siochana Code of Conduct for Students/Probationers are wrongful null and void and constitute a breach of the Applicant's constitutional right to basic fairness of procedures.

57. Counsel for the Respondents says that there have been many Motions in these proceedings, including a Motion for Discovery, and at no stage was this issue formally notified. Clearly the Notice of Motion dated the 20th December, 1996 includes this relief and it would therefore have been something of which all parties were or could have been conscious when the interlocutory matter was dealt with before Mr. Justice Kelly in April of this year. Be that as it may, Counsel for the Respondent says he was not prepared to deal with the matter at the instant hearing and Counsel for the Applicant indicated that it might be a topic that could be left over in the event that the Applicant failed on the other issues. In these circumstances I do not consider it appropriate to give the Applicant leave to seek Judicial Review in relation to this alternative relief arising out of the hearing before me on this occasion. In the result the Applicant's claim will be dismissed.