High Court of Ireland Decisions

1. The Applicant alleges that on the 10th December, 1992 while walking along Richmond Harbour near Portobello Bridge in the City of Dublin, he was approached by two members of the Garda, one male and the other female. The male Garda is the Notice Party to this application. The Applicant believes that both Gardai followed him from the time he left his flat at Lennox Street, a short distance from where he was stopped by them. It was about 7.30 p.m. The Notice Party asked him for his name and address and he gave both. The Notice Party then asked him where he was going. The Applicant replied that he did not have to inform the Notice Party as to where he was going. The Notice Party appeared to take offence at this and said to him " Are you alright? " and then punched him in the chest. The Applicant alleges that the Notice Party repeatedly posed that question to him while simultaneously punching him in the chest. He also contends that the Notice Party invited him (the Applicant) to hit him.

2. The Applicant crossed the bridge in order to get away from the Notice Party but he had to pause at the kerb before doing so. He says the Notice Party caught up with him and grabbed him around the neck and then slammed his head into the parapet of the bridge. The Applicant was then forced down on to the ground and made to adopt a position on his hands and knees in full view of members of the public who were passing. He further alleges that the Notice Party kicked him on the legs and feet. At this stage the Notice Party was joined by a person in civilian clothes who also kicked the Applicant. The Applicant was then forced to lie down on the ground while the Notice Party put handcuffs on him. A patrol car arrived and the Applicant was placed in the back of it and removed to Kevin Street Garda Station.

3. On the way to the Garda Station the Applicant contends that he complained to the other Gardai in the car about the assault but the other Gardai just laughed and one said that the Notice Party had not hit the Applicant hard enough. The Applicant says he was then told that there was a fellow at Kevin Street Station named Gerry who was looking forward to meeting him. He avers that he was terrified of what might happen when he got to the Garda Station and when he arrived there he requested a solicitor and a doctor. No solicitor was contacted nor was he offered facilities to contact one but a doctor did arrive later on. He was detained in a cell and the doctor examined him in the presence of the Notice Party. He says that he showed the doctor his injuries which consisted of cuts to his legs, bruising to his knees and soreness of his feet, knees and the back of his head. The doctor did not offer any treatment and left. The Applicant was never at any stage questioned about any alleged crime or offered any explanation for the Notice Party's behaviour in assaulting him or arresting him or in demanding information from him.

4. Later that night the Applicant was released from custody without charge. He attended at the Casualty Department of the Meath Hospital for treatment to his injuries.

5. On the following day the Applicant made a complaint to the Respondent concerning what had occurred. It was made orally to an official of the Respondent but was reduced to writing on a standard form and was signed by the Applicant.

6. On the 12th March, 1993 the Respondent's Chief Executive wrote to the Applicant's solicitor in the following terms:-

7. On the 26th April, 1993 the Applicant's solicitor was again written to by the Respondent. On this occasion he was informed that the Garda Commissioner was of the view that the complaint made against the Notice Party was not suitable for informal resolution. The Commissioner had, therefore, appointed an investigating officer, namely, Inspector M. McLaughlin of Pearse Street Garda Station. The Applicant's solicitor was told that at the conclusion of his investigation, the investigating officer would submit his detailed report for examination and consideration by the Respondent. The Applicant's solicitor was told that he would be kept informed of developments.

8. On the 9th February, 1993 the Notice Party applied to the District Court for the issue of a summons against the Applicant. A summons was issued on foot of that request. It notified the Applicant that he would be accused of using threatening or abusive or insulting words or behaviour with intent to provoke a breach of the peace at Portobello Bridge on the 10th December, 1992 contrary to Section 14(13) of the Dublin Police Act, 1842. The summons was returnable before a District Judge on the 9th June, 1993. The Applicant appeared in the District Court on foot of that summons on that date and pleaded not guilty to the charge. The case was adjourned to the 2nd December, 1993.

9. On the adjourned date the Applicant again appeared before the District Court. The Notice Party applied for another adjournment of the case. The Applicant's solicitor objected to that course being followed and the summons was struck out.

10. That brought the criminal proceedings to an end.

11. While the criminal proceedings against the Applicant were pending in the District Court, his solicitor received a letter from the Respondent. It was dated the 11th June, 1993. It informed the Applicant's solicitor that Inspector McLaughlin had been unable to contact the Applicant despite a number of attempts. It went on to say that when contact was eventually made with the Applicant he refused to make a statement or an appointment to make a statement with Inspector McLaughlin. The letter pointed out that the investigation of the Applicant's allegations, which were of a serious nature, could not proceed without his version of events. It went on to point out that if the Applicant wished the complaint to be pursued, he should make contact with the investigating officer within three weeks of that date.

12. The Applicant's solicitor responded to this letter on the 15th June, 1993. His letter pointed out that the investigating officer had made contact with the Applicant at 11 p.m. on a Sunday night by calling uninvited and unannounced to his residence. The solicitor pointed out that he did not regard that as the normal way to attempt to reassure complainants that their complaints were being investigated in a serious way. His letter went on to point out that the substantive matter of the complaint was at that stage sub judice and that no further statement could be made by the Applicant until the determination of the criminal proceedings.

13. Following the striking out of the criminal proceedings brought against the Applicant, both he and his solicitor attended by arrangement with Inspector McLaughlin at Pearse Street Garda Station. That meeting took place on the 18th January, 1994. At it the Applicant made a statement which broadly corresponds with the allegations set out in the first part of this judgment.

14. The next development in the case occurred when the Applicant's solicitor received a letter from the Respondent dated the 1st June, 1994. It read as follows:-

15. This letter was responded to by the Applicant's Solicitor on the 4th July, 1994. He wrote as follows:-

16. The final letter in this chain of correspondence emanated from the Respondent and was dated the 21st August, 1994. It read as follows:-

17. On the 6th February, 1995 the Applicant sought leave to commence these proceedings from O'Hanlon J. Time for the making of the application was extended to that date and the Applicant was granted leave to apply for -

18. The grounds upon which the Applicant was given leave to seek these Orders were as follows:-

19. No attempt was made by the Applicant to join the Notice Party to the proceedings at that stage nor was the Notice Party even made aware of them. In due course the Respondent delivered a Notice of Opposition and Replying Affidavit and the case then came on before me for hearing on the 26th April, 1996. As the matter was being opened to me by the Solicitor for the Applicant, I became concerned at the failure to join or give notice to the Notice Party of the existence of the proceedings. I took the view that he was a person directly affected by the proceedings and ought to have been joined. Consequently, pursuant to the provisions of Order 84 Rule 22(6) of the Rules of the Superior Courts, I adjourned the hearing and made an Order joining him as a Notice Party and required the Applicant to effect service of all the relevant papers upon him. I furthermore granted an opportunity to him to appear on the substantive hearing. In accordance with that Order he was joined, served and appeared on the hearing.

20. With the consent of the parties, the reliefs sought by the Applicant were extended to include one remitting his complaint to the Respondent for due consideration and adjudication in accordance with the statutory requirements of the Garda Siochana (Complaints) Act, 1986 and the principles of natural and constitutional justice and fair procedures.

21. At the hearing before me the Applicant did not proceed with grounds (iv) and (v) of those permitted by O'Hanlon J.

22. In a few moments I will consider each of the grounds relied upon by the Applicant and the response to them. Before doing so I must examine the statutory framework against which these grounds and the responses to them have to be considered.

23. The Garda Siochana (Complaints) Act, 1986 (the Act) created a statutory system of investigation and independent adjudication of complaints made by members of the public concerning the conduct of members of the Garda. The Respondent was established by virtue of Section 3 of the Act. Section 8 provides for the appointment of a tribunal to hear and adjudicate on complaints referred to it by the Respondent. Section 10 provides for the establishment of the Garda Siochana Complaints Appeal Board which hears and decides appeals from a tribunal established pursuant to the Act.

24. The Act empowers a member of the public who is directly affected by any conduct of a member of the Garda and who wishes to have his complaint concerning that conduct considered by the Respondent to make a complaint. (See Section 4). On receipt of a complaint which complies with the statutory requirements, the Chief Executive of the Respondent is obliged to consider "whether the complaint is admissible" and certain statutory conditions must be satisfied before he can so decide. If a complaint is so admissible and is not resolved under the informal procedure prescribed by Section 5 of the Act, the Commissioner must appoint an investigating officer "to investigate an admissible complaint" . The investigating officer is required to complete his investigation as soon as may be and to report in writing to the Chief Executive of the Respondent. The Respondent is required to supervise generally the investigation of complaints and may give such directions to an investigating officer as appears necessary or expedient. The Chief Executive is required to furnish to the Respondent all reports received from the investigating officer together with his comments in writing on them and a recommendation by him of the action (if any) that might be appropriately taken by the Respondent.

25. If after consideration of a report or reports of an investigating officer and the relevant comments and recommendation of the Chief Executive "the Board is of opinion that the complaint concerned is admissible and that the conduct alleged in the complaint may constitute an offence committed by the member concerned, it shall refer the matter to the Director of Public Prosecutions" (Section 7(1)). Once this occurs the Director of Public Prosecutions in the exercise of his functions under the Prosecution of Offences Act, 1974 may or may not direct a prosecution. In the present case I do not have to consider the statutory provisions which apply if a prosecution is directed. If the Respondent is "of opinion that neither an offence nor a breach of discipline on the part of the member concerned is disclosed or that the complaint is otherwise not admissible, it shall, as soon as may be, notify the Commissioner, the complainant and the member concerned of its opinion and shall take no further action in the matter" (Section 7(3)). A not dissimilar provision is found in Section 7(8). If, however, "the Board is of opinion that a breach of discipline on the part of the member concerned.... may be disclosed, it shall refer the matter to a tribunal" (Section 7(5)). In the event of this occurring, it falls to the Chief Executive to determine the particular breach or breaches of discipline to be alleged and to be dealt with by the Tribunal. Such a tribunal is then obliged to hold an enquiry into the matter save in certain circumstances which are set forth at Section 9 of the Act.

26. In the present case it is clear from the Respondent's letter of the 1st June, 1994 that it formed the opinion specified in Section 7(3) to the effect that neither an offence or breach of discipline on the part of the member concerned had been disclosed. It is that decision and the procedures which were followed in arriving at it that are criticised in these proceedings.

27. Before departing from a consideration of these statutory provisions, the following features of them are worthy of notice:-

28. I will now consider each of the grounds argued on behalf of the Applicant and the Respondent's and Notice Party's response thereto.

29. It is convenient to take the first and second grounds relied upon together.

30. The Applicant contends that there was a wrongful failure by the Respondent to provide the Applicant with an opportunity to consider the evidence or material which was laid before it prior to the Respondent considering the Applicant's complaint. He furthermore alleges that the Respondent wrongfully failed to notify him that it was about to enter upon a determination of his complaint and in addition did not afford him an opportunity to be heard concerning the evidence or material which was placed before it.

31. In advancing this part of his case a number of substantial difficulties confront the Applicant. First, the Act does not prescribe any of the entitlements which the Applicant seeks. There is no statutory requirement that the Applicant should be furnished with the materials which he contends for nor is there any entitlement to appear or be represented before the Respondent prior to its forming an opinion under Section 7.

32. The legal rights created by the Act are, insofar as the complainant is concerned,

33. All of these legal rights were honoured in the present case. Indeed, having regard to the procedures which were followed, it would be difficult for the Applicant to contend otherwise. He relies upon an alleged constitutional entitlement to the additional rights which he seeks to assert.

34. The Act carries a presumption of constitutionality. No attempt has been made in these proceedings to seek to have any part of it declared unconstitutional. That of course does not necessarily exclude the Applicant from making the case which he does. It is clear that the Respondent in exercising its powers and carrying out the obligations prescribed by the Act must do so in such a way as to ensure that its "proceedings, procedures, discretions and adjudications which are permitted, provided for or prescribed by (the Act) are to be conducted in accordance with the principles of constitutional justice" (see East Donegal Cooperative v. Attorney General [1970] I.R. 317 at 341). If, therefore, the Applicant can show that in circumstances where the Act is silent concerning the rights which he contends for, the proceedings, procedures, discretions or adjudications of the Respondent were not conducted in accordance with the principles of constitutional justice, he may well succeed.

35. The Applicant's contention, if successful, would require the importation into the Act of a new procedure involving the disclosure of information to him and an inter partes hearing before the Board prior to it forming an opinion under Section 7 of the Act. There would, therefore, be a trinity of hearings in circumstances where the statute clearly envisages the possibility of only two such hearings.

36. In its essence the Applicant's complaint is one of unfairness of procedure on the part of the Respondent giving rise to an interference with his constitutional entitlements. In order to support this contention he relied upon a large number of cases. They were, inter alia, Beirne v. The Commissioner of An Garda Siochana [1993] I.L.R.M. 1, The State (Shannon Atlantic Fisheries Limited) v. The Minister for Transport and Power and McPolin [1976] I.R. 93, Geraghty v. The Minister for Local Government [1976] I.R. 153, The State (Daly) v. The Minister for Agriculture [1987] I.R. 165, Thompson v. The Minister for Social Welfare [1989] I.R. 619, O'Brien v. Bord na Mona [1983] IR 255 and The State (Gleeson) v. The Minister for Defence [1976] I.R. 280.

37. In my opinion these cases all arise in an entirely different context to the one which is contemplated by Section 7 of the Act. I am of the view that the Applicant's case is based upon a mistaken understanding as to the nature of the decision-making process which is required of the Respondent under Section 7 of the Act. All that the Respondent does under Section 7 of the Act is form an opinion. It does not appear to me that the formation of such an opinion must have imported into it procedures of the type contended for by the Applicant so as to ensure compliance with constitutional justice. Not every act or task undertaken by the Respondent must necessarily have imported into it procedures of the type contended for here in order to ensure constitutional propriety. As was said by Henchy J. in The State (Gleeson) v. The Minister for Defence [1976] I.R. 280 at 295

38. In my view the formation of an opinion by the Respondent under Section 7 is not a decision or decisive process which, in order to be compatible with the Constitution, requires the importation of the procedures sought by the Applicant. The rights contended for are not applicable in the circumstances of an opinion being formed by the Respondent such as the one in suit. The Act itself does not in any way affect the Applicant's existing constitutional or legal rights. Such rights are not in any way adversely affected by the operation of the Act or by the formation of the opinion in suit by the Respondent. No fetter is placed upon the Applicant's entitlement to proceed through these Courts with a view to asserting his entitlements against the Notice Party should he see fit so to do.

39. In coming to this conclusion I bear in mind that if the Applicant is correct in what he says, it must follow that the Notice Party could have no lesser rights in that regard than the Applicant. I am also of opinion that in seeking to address this head of complaint, I am entitled to look at the Act as a whole and the way in which it operates. Given the elaborate procedures which are prescribed in the event of a case proceeding to be dealt with by a tribunal or on appeal therefrom, I am of opinion that the procedures adopted by the Respondent in forming the opinion which it did under Section 7 of the Act did not offend against any principle of constitutional justice.

40. I think the Respondent is correct when it says that the position under Section 7 is in many ways analogous to a complaint of a criminal nature made to the Garda Siochana which is investigated by them and then referred to the Director of Public Prosecutions for decision as to whether to prosecute. In such circumstances there is no entitlement of the injured party to see material which is considered by the Director or to make submissions in relation to it or to be heard by the Director. In the present case the Applicant had an opportunity to express his version of the events which were the subject matter of the complaint by way of statement to the investigating officer. There is affidavit evidence that that statement did form part of the material considered by the Board when it formed the opinion which it did.

41. In my view no case has been made out by the Applicant under this head of claim and accordingly I reject it.

42. The Applicant alleges that the Respondent acted ultra vires by allowing the decision of the Director of Public Prosecutions to influence it in deciding to take no further action in respect of the Applicant's complaint.

43. It is clear from the correspondence in the present case that the decision to refer the matter to the Director of Public Prosecutions was taken by the Respondent pursuant to Section 7(1) of the Act. Under that subsection if the Respondent is of opinion that the complaint concerned is admissible and that the conduct alleged in the complaint may constitute an offence committed by the member concerned, it shall refer the matter to the Director of Public Prosecutions. In the evidence adduced on behalf of the Respondent, it averred that under Section 7(1) of the Act if it is of the opinion that a complaint concerned is admissible and that the conduct alleged in the complaint may constitute an offence committed by the member concerned, it is obliged to refer the matter to the Director of Public Prosecutions. The Respondent says that this is so irrespective of the content of the report made by the investigating officer to it or of any recommendation made by the Chief Executive or of any view or decision arrived at by it as to the merits or substance of a complaint made to it. It is, it says, the alleged criminal nature of the complaint which required the Respondent under the Act to refer the matter to the Director of Public Prosecutions. The Respondent has further averred that in this case as the conduct alleged in the complaint might have constituted an offence committed by the member concerned, it referred the matter to the DPP as it was so obliged. At the same time, however, on the merits of the complaint it reached its own provisional view that neither an offence nor breach of discipline on the part of the member concerned had been disclosed and, accordingly, it did not in fact allow the decision of the DPP to influence it in arriving at its final decision. It has been said on oath that the Respondent did not change an opinion which it previously held and it did not change an opinion that it had previously formed because of the fact of the non-institution of criminal proceedings. It says that the two opinions which it did form pursuant to Section 7(1) and Section 7(3) are not mutually inconsistent because the first is an opinion as to the nature of the allegation and the second is an opinion as to whether there is sufficient evidence based upon the investigation report to show whether an offence or breach of discipline has actually occurred.

44. In my view the Respondent was correct in its approach to this matter. The opinion which must be formed by it under Section 7(1) is one as to the nature of the allegation made by a complainant. If the conduct alleged in a complaint may constitute an offence committed by the member concerned, the Respondent must refer the matter to the Director of Public Prosecutions. But when it comes to form an opinion under Section 7(3) (or Section 7(8)), it is dealing with a very different question. It is there forming an opinion that neither an offence nor a breach of discipline on the part of the member concerned is disclosed. It is essentially dealing with the question as to whether there is sufficient evidence based upon the material before the Respondent to show whether an offence or breach of discipline has actually occurred. The two issues are quite different and, in my view, the Respondent was quite entitled to reach its own provisional view that neither an offence nor breach of discipline on the part of the Notice Party had been disclosed whilst at the same time carrying out its statutory obligation under Section 7(1). The fact that the DPP made his decision permitted the Respondent in the present case to give effect to its provisional view in accordance with Section 7(3) and to proceed to notify the appropriate parties and therefore take no further action. There is no evidence that the Board regarded itself as bound to adhere to the direction of the DPP and, indeed, the evidence which has been adduced and which has not been controverted is to the contrary. There is no evidence of any delegation of function by the Respondent to the DPP nor do I infer any such delegation of function.

45. It appears to me that the way in which the Respondent approached its task pursuant to Section 7 conformed with the statutory requirements and I do not find any evidence to support the Applicant's contention under this heading. It seems to me that the Applicant's complaint arises as a result of a failure to identify the different function which is being fulfilled by the Respondent in forming the opinion which is referred to in Section 7(1) and that which is referred to in Section 7(3). I reject this head of complaint.

46. As I have already indicated, grounds (iv) and (v) were not pursued at the hearing so I now turn to consider the next ground relied upon by the Applicant.

47. The Applicant contends that the decision of the Respondent which is criticised in these proceedings is flawed by reason of the failure on the part of the Respondent to give reasons for that decision. There can be little doubt but that the letter of the 1st June, 1994 is not very informative as to the reasons why the Respondent came to the conclusion which it did. It does however indicate the material which was before the Respondent when it made its decision. The subsequent letter of the 21st August, 1994 sheds no further light on the topic. Paragraph 6 of Mr. Hurley's replying Affidavit is more informative. There he avers that whilst the investigating officer received a version of events from the complainant, other accounts given to the investigating officer of the events in question differed markedly from the account given by the complainant. This material was before the Respondent when it made the decision in suit.

48. Reasons for a decision may be expressly or, on occasions, impliedly required by statute. An implicit entitlement to reasons may arise where a right of appeal exists from the decision and the reasons my be required so as to enable the affected individual to exercise that right in an effective way. Even without a right of appeal natural justice or fairness may require that reasons be given in an individual case.

49. Costello P. had to consider this topic recently in the context of the Respondent. In McCormack v. The Garda Siochana Complaints Board and the Commissioner of An Garda Siochana (judgment delivered 28th January, 1997) he said:-

50. The decision of Costello P. is not of course binding upon me but is of considerable persuasive effect. He was considering precisely the same question as I have to decide here. He was dealing with the same body exercising the same jurisdiction as is in suit in these proceedings. I propose to follow the decision of Costello P. and to reject this head of complaint made by the Applicant. Just as in McCormack's case, the present Applicant was informed that the Respondent had before it at the time that it made its decision the report of the investigating officer appointed to investigate his complaint and the relevant comments and recommendations of the Chief Executive, all of which were considered carefully by the Respondent. In McCormack's case the President attached some emphasis to a letter of the 30th November, 1995 which emanated from the Respondent in response to a request for reasons. That letter, inter alia, made it clear that the decision in that case was arrived at on the basis of the evidence gathered during the course of the investigation. Whilst there is no such specific statement in the letters in the present case, it seems to me that the Affidavit of Mr. Hurley makes it clear that the decision was arrived at on the basis of the evidence gathered during the course of the investigation

51. It follows that the Applicant is not entitled to succeed on this ground.

52. The Applicant alleges that the Respondent failed to ensure that his application was dealt with in accordance with natural and constitutional justice and fair procedures. This ground clearly encompasses a number of the specific complaints which I have already addressed in this judgment and which I do not, therefore, propose to repeat. I will only address matter that has not already been the subject of consideration in this judgment.

53. The principal complaint which is made under this heading is that the Respondent, in coming to the conclusion which it did, acted unreasonably or irrationally in forming the opinion that a breach of discipline was not disclosed by the complainant and furthermore that such conclusion was reached in disregard of fundamental reason or common sense.

54. Finlay C.J. also quoted a passage from the judgment of Lord Greene M.R. in Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223 at 230 as follows:-

55. As was stated by Costello P. in McCormack's case

56. That is the allegation which is made by the Applicant in this case. The onus of establishing that the decision was irrational lies on the Applicant. Just as occurred in McCormack's case, the provisions of the statute were followed by the Respondent in this case. The complaint was considered, investigated and reported on by the investigating officer. The Chief Executive reported thereon to the Board. The Board made its decision having regard to the material which was put before it. It is clear from the Affidavit of Mr. Hurley that amongst the material put before the Board were other accounts of the incident which were given to the investigating officer which differed markedly from the account given by the complainant. The Respondent considered these documents and formed the opinion that neither an offence nor a breach of discipline had been disclosed. Accordingly, it decided to take no further action in the matter. Just as Costello P. in McCormack's case failed to see how, in the light of facts similar to these, it could be said that the Respondent acted plainly and unambiguously in the face of reason and common sense, neither do I see how such a criticism can legitimately be made in this case. As he said

57. In the present case the position of the Respondent is, if anything, stronger. I do not have to draw an inference that the evidence obtained in the investigation was at variance with that of the Applicant. I have been specifically told that on oath by Mr. Hurley when he averred that other accounts given to the investigating officer differed markedly from the account given by the complainant.

58. Two further points deserve to be made. First, I do not consider that this case falls within the scope of the decision of Barron J. in The State (Daly) v. The Minister for Agriculture [1987] I.R. 165. In that case the Minister failed to disclose the material upon which he acted or the reasons for his action. Accordingly, there was no matter from which the Court could determine whether or not such material was capable of supporting his decision. The Minister continued to refuse to supply that material and so the Court presumed that there was no such material. In the present case, the Court has been informed of the material which was before the Respondent and furthermore has been given an insight into the contents of that material in that it clearly contained accounts of the incident which differed from that given by the complainant.

59. Secondly, this is not an appeal on the merits from the decision of the Respondent. In R. v. The Chief Constable of North Wales Police Ex Parte Evans [1982] 1 WLR 1155, Lord Brightman said:-

60. Even if this Court would have reached a conclusion different from that of the Respondent, it is not entitled on Judicial Review to substitute its view in that regard for the one formed by the entity charged by statute with forming the appropriate opinion. This limitation on the power of Judicial Review must be borne in mind so as to ensure that this Court does not trespass upon matters in respect of which it has neither competence nor jurisdiction. I would not be justified in interfering with the decision of the Respondent merely on the grounds that on the facts presented to it, I would have reached different conclusions. Once I am satisfied (as I am) that the appropriate procedures were followed and that the decision impugned is not irrational, the decision of the Respondent must be upheld .

61. This application is dismissed.