High Court of Ireland Decisions

1. The facts are not in dispute and are simply stated. The Applicant became a probationer member of An Garda Siochana on the 7th February, 1994 and remained such until his services were dispensed with by the Respondent with effect from 12 midnight on the 11th April, 1997. In ordinary course he would have become a full member on the next day having successfully completed all phases of his training.

2. On the 18th October, 1995 at the request of a Mr William Comerford with an address in Liverpool who was a long-standing friend of his father, the Applicant collected a Mercedes motor car (registration number LZL 489) from Dublin Airport and on his way to his father's house at Bishopstown, County Westmeath was involved in a collision at the Lucan By-pass. This accident was investigated by Garda John Cleary of Lucan Garda Station. At the scene the Applicant produced a certificate of insurance which both parties to these proceedings accept appeared to be in order and also his own full driving licence which again was in order. He accepted responsibility for the accident and exchanged names with the driver of the other car. While on the scene Garda Cleary noticed that the tax disc displayed had expired. This was brought to the Applicant's attention as he had not been aware of it previously. Some sixteen months later the insurance company repudiated insurance upon the basis that the car was owned not by William Comerford but by the Applicant's father. This arose because the Applicant had, in ordinary course, reported the accident to the insurers and completed an accident report form. The Respondent accepts that the Applicant at all times believed he was insured to drive the vehicle.

3. A second road traffic incident occurred on the 26th February, 1997 when the Applicant was driving his own motor vehicle (registration number IF 36) again at Lucan when he was again stopped, coincidentally by Garda Cleary, who demanded production of his licence and certificate of insurance or exemption. The Applicant undertook to produce these within 10 days but in fact failed to do so in time. He subsequently produced the documents which, the Respondent accepts, were in order and covered him for the 26th February, 1997.

4. By letter of the 14th March, 1997 the Respondent wrote to the Applicant giving him notice that he proposed to dispense with his services as a probationer Garda in accordance with the appropriate regulations "... on the grounds that I consider that you are not likely to become an efficient and well conducted member of An Garda Siochana" .

5. He then set out in six separate paragraphs the reasons for his reaching this conclusion. They were in summary:-

6. Of these the first ground was correct but was discovered only sixteen months later when the insurance company repudiated liability; the second is the subject of legal dispute between the parties in the sense that the Applicant submits that there was no reasonable way that he "ought to have known" that the apparently valid certificate did not in fact cover his driving on that occasion; the third ground is correct as there clearly was no tax disc; the fourth ground was not correct because his own insurance policy covered his driving on the 26th February, 1997; the fifth ground was not correct as he had a valid licence on that occasion and the sixth ground was correct but he subsequently tendered the appropriate licence and insurance which it is accepted covered his driving on the 26th February, 1997.

7. In summary then, two of the six grounds were quite incorrect, a third is the subject of deep debate between the parties and a fourth is technically correct but was at least in substance cured subsequently. The two further unambiguously correct grounds relate to his driving of his father's friend's car without tax and as it subsequently transpired, without insurance.

8. The first of these two incidents occurred on the 18th October, 1995 but it was not until the 5th February, 1997, some sixteen months later, that the insurance was repudiated by the insurance company. Thereafter an investigation commenced in the Garda Siochana initiated, it seems, by a report from Garda Cleary. He reports the incident on the 18th October, 1995 and the ultimate repudiation of insurance. That gave rise to a further check on Mr Comerford's car and to the information, contained in Garda Cleary's letter, that the Gardai had their suspicions about the Applicant's father in connection with this car and indeed the Applicant's brother in connection with the Applicant's own car which was involved in the check-point on the 26th February, 1997. Garda Cleary notes that the Applicant's father's yard had been searched a number of times by the stolen car squad from Harcourt Square. The Applicant's father was the owner of a scrapyard and dealt in old lorries but not, apparently, in cars. Garda Cleary's report refers to the check on the 26th February, 1997, the fact that the Applicant undertook to produce a certificate of insurance and licence at Ronanstown Garda Station and to call to Lucan Garda Station on the following night but had failed so to do. As I already indicated this was subsequently corrected although not within the 10 days required. This report was submitted by Sergeant Mulhearn to the Superintendent at Ballyfermot. Sergeant Mulhearn wrote a short covering letter in which he included his own comment as follows

9. The Superintendent at Ballyfermot submitted it to the Chief Superintendent of the Dublin Metropolitan Area South under cover of a letter of the 4th March, 1997. He summarised the report briefly and pointed out that any proceedings in relation to the incident on the 18th October, 1995 were now statute barred and pointed out also that the Applicant's father was "suspected as a handler of stolen vehicles" . He also noted that the Applicant was currently driving a motor car which was registered to Denis Bracken (the Applicant's father) but was linked in a suspicious way to David Bracken (the Applicant's brother) who "is suspected of being involved in the stealing of car radios...". All these documents were then sent to the Assistant Commissioner of "B" Branch (that is the disciplinary or personnel branch) under cover of a letter from Chief Superintendent Crummy dated the 5th March, 1997 who indicated that "... a Court case may yet follow for driving a vehicle without tax at a minimum" and who commented that the revelations in respect of the two cars mentioned and the father and brother of the Applicant "... are disturbing and would be expected to be known to local Gardai at the time Garda Bracken made application for the Gardai" . He also noted that his appointment was due to be confirmed on the 12th April, 1997.

10. The Affidavit of Assistant Commissioner Hugh Sreenan filed on behalf of the Respondent takes up the sequence of what occurred in the Garda Siochana. He received the reports to which I have already referred on the 6th March, 1997 and says that they showed evidence of serious misconduct by the Applicant and led him to the conclusion that the Applicant had shown disregard for the law which was unacceptable and incompatible with the duties and obligations of a member of An Garda Siochana and that he formed the belief that the Applicant was unlikely to become an efficient and well conducted member of An Garda Siochana.

11. He goes on to say that while some of the reports contained information or comment relating to the Applicant's family "I was not influenced in any way by that information but I relied solely upon the Applicant's own conduct and behaviour".

12. He goes on to make the point that the activities of the Applicant's family were well known to the Garda authorities long before the present matter came to light and in fact reports thereon were sent to the Commissioner when a decision had to be taken as to whether to accept or reject the Applicant's application for membership of An Garda Siochana.

13. He says the matter was sent to the Respondent by the Deputy Commissioner on the 13th March, 1997 and he exhibits his own report of the 13th March, 1997. In that report, addressed to the Deputy Commissioner in the "background" paragraph he notes that the Applicant's application for entry to An Garda Siochana was not recommended by his local district officer, his divisional officer and the Assistant Commissioner "as members of his family are involved in crime". His application for membership was recommended by Deputy Commissioner, Administration and approved by the Commissioner. The Applicant made steady progress throughout phases I-III and attracted no unfavourable attention from his supervisors. On the 13th April, 1995 he was attested to the force and allocated on phase IV to Harcourt Terrace station and Ronanstown Station on the 16th February, 1996 and he was due to be confirmed by the Commissioner on the 14th April, 1997.

14. In his own report Assistant Commissioner Sreenan refers to the facts and notes that civil litigation revealed that the Applicant had not been covered to drive on the 18th October, 1995. He observes that he was not happy with the quality of the original investigation of the road traffic accident on the 18th October, 1995 but was satisfied that had Garda Cleary not acted when he eventually discovered that the Applicant had not been insured none of the subsequently emerging information would have come to light. He says the question of a criminal prosecution is being considered in relation to the circumstances arising on the 26th February, 1997. He does not say who was the possible accused. He concludes that the Applicant was not insured to drive on both occasions; that on the 18th October, 1995 he produced a certificate of insurance "which he purported covered his driving when he knew or ought to have known did not cover his driving"; he drove a vehicle without a tax disc on that date and failed to produce within 10 days of the 26th February, 1997 a licence and certificate of insurance.

15. He goes on to comment

16. Assistant Commissioner Sreenan continues in his Affidavit to note that this material was submitted to the Respondent, that the Applicant's Solicitors were given an opportunity to make submissions, which they ultimately did, which he read and considered and reported on to the Deputy Commissioner on or about the 4th April, 1997. In this report he notes that the Applicant had understood that he was insured for driving on the 18th October, 1995 but comments that the Act places the onus on the driver to ensure that there is proper cover; he notes that the statutory onus is on the driver to ensure that there is a tax disc; accepts that the Applicant's car, which he was driving on the 26th February, 1997 was in fact insured and that he had a full driving licence; refers to the Applicant's claim that he produced licence and insurance certificate to Sergeant Butler at Ronanstown station but comments that Sergeant Butler had dealt with this aspect in an unsatisfactory manner. His conclusion is that there is little in this response that would make him alter his original recommendation that the Applicant be discharged from the force. He says "the bottom line is that P/Garda Bracken drove an uninsured and untaxed motor vehicle. The minimum that I would expect from any Garda is that he would verify that all documentation was in order before driving the vehicle. Clearly P/Garda Bracken did not do this. Relying on a message re insurance cover displayed very poor judgement and a laissez faire attitude in fulfilling his responsibilities under the RTA. I also note that P/Garda Bracken had possession of a set of keys for the uninsured vehicle."

17. This report did not make any reference to the fact that the Applicant on the 18th October, 1995 produced an apparently valid certificate of insurance which was only repudiated by the insurance company some sixteen months later. I will shortly consider the implications of these observations in relation to verifying all documentation being in order and the Applicant's failure to do this, given that the Applicant, on the relevant occasion, had in his possession an apparently valid insurance certificate, on the basis of which he subsequently submitted a full report to the company involved.

18. Assistant Commissioner Sreenan forwarded this report to the Deputy Commissioner who, under cover of his own report of the 7th April, 1997, sent it on to the Respondent. The Deputy Commissioner adopted the conclusion of Assistant Commissioner Sreenan in saying "There is little in his (the Applicant's) response that would lead me to alter my original recommendation that he is generally unsuitable for membership of An Garda Siochana".

19. On the basis of that report the Respondent formally wrote to the Applicant dispensing with his services with effect from 11th April, 1997. The Applicant challenges that order in these proceedings.

20. He bases his challenge on two broad grounds namely:-

21. The Respondent relies on the Affidavit of Assistant Commissioner Sreenan where he says that he was not in any way influenced by the information on the Applicant's family but relied solely upon the Applicant's own conduct and behaviour. In this connection he refers at paragraph 5 in his Affidavit to his report of the 13th March, 1997. The Respondent's Counsel submits that the only reference to the Applicant's family is in the "background" section of the report but that the decision-making portion thereof is not influenced by this.

22. It is clear that Assistant Commissioner Sreenan and by extension the Respondent considers that on the 18th October, 1995 the Applicant "ought to have known" that the insurance certificate did not in fact cover his driving on that occasion. Driving without insurance is a more serious offence than driving without tax displayed and this would have been one of the important elements to be reckoned in the balance against the Applicant.

23. In taking this view the Assistant Commissioner seems to me to be at odds with the principle enunciated in a unanimous Supreme Court Judgment delivered by the then Chief Justice Finlay C.J. in Kinsella -v- The Motor Insurers' Bureau of Ireland (1997: 3: IR: 586). In the course of his Judgment the then Chief Justice said

24. Whilst I accept, of course, that the construction of clause 5(2) of the agreement under consideration in Kinsella gives rise to different considerations than does the construction of the statutory provisions requiring the driver of a motor vehicle to be insured, I am satisfied nonetheless that the approach of the Supreme Court in Kinsella is one which should influence my approach to the question whether the Applicant "ought to have known" on the 18th October, 1995 that in fact he was not insured. Even without the observations of the then Chief Justice in Kinsella I would have thought that it is illogical and in the teeth of common sense to expect the driver of a vehicle who is given what appears to be a perfectly valid insurance certificate covering his driving thereof to in fact anticipate that due to circumstances not known to him and not under his control the policy would be repudiated by the insurance company some sixteen months later. The Respondent was not dealing with the question whether there was an offence, technical or otherwise; he was dealing with the Applicant's suitability as a member of An Garda Siochana. In the replying Affidavit filed on behalf of the Respondent, Assistant Commissioner Sreenan insists that the bottom line was that the Applicant drove an uninsured and untaxed motor vehicle. To my mind to leave that conclusion without qualification in its bald simplicity is a failure to have regard to the fair procedures to which the Applicant is entitled and in particular a failure to take in to account the fact that on no reasonable basis could the Applicant at the time have known that he was in fact driving an uninsured vehicle. I do not think that it is reasonable to require a Garda to do any more than assure himself that the appropriate documentation for the car which he is driving is in order and if Assistant Commissioner Sreenan and the Respondent mean that a Garda should check with the insurance company, notwithstanding the apparent validity on its face of the relevant certificate, then I consider that this is unreasonable. That is, of course, in the absence of suspicious circumstances. The Court is assured, of course, by the replying Affidavit filed on behalf of the Respondent that the suspicious circumstances (none of which relate to the Applicant himself) did not influence the Assistant Commissioner nor, it follows, the Respondent in reaching the impugned decision.

25. In my view, in reaching that decision the Respondent failed to take into account or to do so adequately, a very material consideration, namely that it was unreasonable to expect the Applicant to be aware on the 18th October, 1995 that he was in fact driving without insurance.

26. This ground is sufficient, on its own, to justify an Order quashing the decision and in those circumstances it is not necessary for me to proceed to consider the other submissions made on behalf of the Applicant. The Applicant is accordingly entitled to an Order in the terms of paragraph A of the Notice of Motion dated the 26th October, 1997.