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McGlynn v. Garda Commissioner [1998] IEHC 133 (31st July, 1998)

THE HIGH COURT

1997 No. 411 J.

BETWEEN

JOHN MCGLYNN

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA

RESPONDENT

Judgment of Mr. Justice Dermot Kinlen dated on the 31st day of July, 1998 .

1. On Monday, 24th November, 1997 the Applicant made an ex parte application to the Court for leave to apply by way of Judicial Review of a number of matters.

2. Ms. Justice Laffoy gave leave to apply for Orders of Prohibition and Mandamus by way of application for Judicial Review in respect of an investigation of the Applicant on the grounds set forth at paragraph 5 in a statement dated 21st November, 1997 signed by the solicitor to the Applicant and the affidavit of Thomas Murphy filed on 21st day of November, 1997 verifying the facts in the said statement and the exhibits referred to in said Affidavit.

3. The grounds upon which relief is sought are:-

(A) That in initiating an investigation purporting to be pursuant to the Provisions of the Garda Siochana (Discipline) Regulations, 1989 into alleged breaches of discipline on the part of the Applicant, the Respondent is acting contrary to the rules of natural and constitutional justice and to the serious detriment of the Applicant.

(B) That in initiating an investigation purporting to be pursuant to the provisions of the Garda Siochana (Discipline) Regulations, 1989 into alleged breaches of discipline on the part of the Applicant and, in particular, into the alleged breaches as set out in paragraph 2, 3 and 4 of the Form B30, the Respondent is failing to comply with the Garda Siochana (Discipline) Regulations, 1989 and, in particular, Regulation 38 and is acting ultra vires the said Regulations.

(C) That the Respondent in initiating an investigation purporting to have been pursuant to the provisions of the Garda Siochana (Discipline) Regulations, 1989 into the alleged breach as appears at paragraph (1) of the Form B30 as the only evidence which the Respondent intends to adduce in support of the alleged breach is contained in a memo of interview between the Applicant and Inspector, Andrew Fahy, taken on the 1st February, 1996, which information is been found to have been obtained in breach of the Applicant's constitutional rights by Judge Flan Brennan at Carrickmacross District Court on 22nd July, 1997.

(D) That the Respondent's refusal to cease the said investigation amounts to a failure on his part of vindicate the Applicant's right to constitutional justice and fair procedures.

(E) That there is an obligation on the part of the Respondent to comply with the provisions of the Garda Siochana (Discipline) Regulations, 1989 and, in particular, Regulation 38 thereof which the Respondent has failed to do.

(F) The Respondent has been guilty of delay in that he failed to prosecute the matter under the Garda Siochana (Discipline) Regulations, 1989 within a reasonable time. That statement grounding the application for Judicial Review is dated 21st November, 1997. Laffoy J. made her order on Monday, 24th November, 1997.

4. The statement of grounds for opposition dated 6th February, 1998 is as follows:-

(1) On 2nd February, 1996 an investigation of alleged breaches of discipline committed by the Applicant was commenced pursuant to Regulation 8 of the Garda Siochana (Discipline) Regulations, 1989.

(2) On 3rd February, 1996, the Applicant was admitted to hospital and he was released from hospital on the weekend of the 13th/14th April, 1996.

(3) On 26th April, 1996 the Applicant was served with Form B33(b) in accordance with Regulation 9 of the said Regulations.

(4) Following the service of three summonses on 17th September, 1996 in respect of offences contrary to Section 2 of the Larceny Act, 1916, as amended by Section 9 of the Larceny Act, 1990 and following the dismissal of the said summonses by the District Court on 22nd July, 1997 a Form B30 was prepared on 29th September, 1997 for service on the Applicant alleging four breaches of discipline in respect of discreditable conduct within the meaning of Regulation 6 of the Garda Siochana Disciplinary Regulations, 1989 as described at reference No.1 in the Schedule to the said Regulations. Forms B30 and B33(b) were served on the Applicant on 20th October, 1997. The Applicant did not return a copy of the Form B30 within the statutory 14 days period referred to at Regulation 12(d) of the said Regulations. Proceedings were subsequently referred for consideration of an appointment of an Inquiry Board in accordance with Regulation 14 of the Regulations.

(5) It is denied that by initiating an investigation or by the continuation of proceedings pursuant to the provisions of the Garda Siochana (Discipline) Regulations, 1989 into alleged breaches of discipline on the part of the Applicant, the Respondent is acting contrary to the rules of natural and constitutional justice or to the serious detriment of the Applicant.

(6) It is denied that by initiating an investigation or by the continuation of proceedings pursuant to the provisions of the Garda Siochana (Discipline) Regulations, 1989 into alleged breaches of discipline on the part of the Applicant and, in particular, into the alleged breaches as set out in paragraphs 2, 3 and 4 of the Form B30 that the Respondent is failing to comply with the Regulations and, in particular, Regulation 38 thereof.

(7) The alleged breaches of the said Regulations are not the same in substance as the offences referred to in the summonses dismissed on 22nd July, 1997 within the meaning of Regulation 38 of the said Regulations. Further and in the alternative, the Applicant was not acquitted of the said offences within the meaning of Regulation 38.

(8) In so far as it appears to be alleged at paragraph 5(c) of the statement grounding application for Judicial Review that the Respondent may not adduce evidence excluded by Judge Flan Brennan at Carrickmacross District Court, same is denied.

(9) It is denied that the Respondent's refusal to cease the said investigation amounts to a failure to vindicate the Applicant's right to constitutional justice and fair procedures.

(10) It is denied that the Respondent has failed to comply with the provisions of the Garda Siochana (Discipline) Regulations, 1989 and, in particular, Regulation 38 thereof.

1(11) It is denied that the Respondent has been guilty of the unnecessary delay.

(12) The Applicant is not entitled to the reliefs claimed or early release.

5. The Applicant is a member of the Garda Siochana and was stationed at Carrickmacross Garda Station in the County of Monaghan. He joined An Garda Siochana on 24th September, 1974 and was initially stationed for some four years at Clones Garda Station. He is a married man and resides with his wife and family in Carrickmacross. On or about

1st February, 1996, the Applicant was directed to attend a meeting with Superintendent Andrew Fahy at Monaghan Garda Station. Having attended at the said meeting, the Applicant was accused of stealing sums of money from colleagues within the Station. During the course of the interview by Superintendent Fahy, he made a number of admissions arising out of which the Applicant was prosecuted for three counts of larceny and summoned to appear at Carrickmacross District Court on 22nd October, 1996. The said summonses were adjourned from time to time and eventually came before District Judge Flan Brennan at Carrickmacross District Court on 22nd July, 1997 for a hearing. During the course of the prosecution evidence, Counsel on behalf of the Applicant made a number of submissions to the District Judge in which he objected to Superintendent Fahy adducing evidence of what was alleged to have been said by the Applicant during the course of being interviewed on the basis that this evidence had been obtained in breach of the Judges' Rules and also on the basis that the Criminal Justice Act of 1984 and the Regulations made thereunder had not been adhered to. The District Judge rose for some time to consider Counsel's submissions and thereafter ruled that the statement was inadmissible as the Applicant was being detained against his will yet he was not an arrested person. The District Judge subsequently dismissed all summonses against the Applicant indicating that the evidence which the prosecution sought to adduce had been obtained in breach of the Applicant's constitutional rights. The District Judge also indicated that he was satisfied there had been no deliberate breach of the Applicant's constitutional rights. The Respondent caused the notice under Regulation 9 of the Garda Siochana (Discipline) Regulations, 1989 together with accompanying documentation to be served on the Applicant on or about 22nd October, 1997. The Applicant is now the subject of an investigation under the Garda Siochana (Discipline) Regulations, 1989 in respect of four alleged breaches of discipline. He contends that the alleged breaches of discipline as set out in paragraphs 1 to 4 on the said B30 are identical to the summonses which were dismissed by District Judge Flan Brennan on 22nd July, 1997. The four summonses were all allegations of an offence contrary to Section 2 of the Larceny Act, 1916, as amended by Section 9 of the Larceny Act, 1990. It goes on to allege that the Applicant stole a sum of £10 from Gary O'Callaghan. One alleges that he stole £30 from Sergeant David Ryan in the personal locker of Garda Gary O'Callaghan and another that he stole £10 from Sergeant David Ryan and stole £5 from Garda (now Sergeant) Regina McArdle.

6. These were all fellow members of the Force at Carrickmacross Garda Station. The Discipline Form dated 29th September, 1997 to Chief Superintendent Rooney asked the Applicant whether he admitted or denied breaches of discipline numbered 1 to 4 set out on that document. The said breaches of discipline are set out as follows:-

(1) Discreditable conduct, that is to say, conduct which he knew would be prejudicial to discipline in that he removed, without authority, a sum of money which amounted to a minimal value of £5 from Garda (now Sergeant) Regina McArdle which was in her personal locker at Carrickmacross Garda Station on a date unknown in June, 1994.

7. The said discreditable conduct is a breach of discipline within the meaning of Regulation 6 of the Garda Siochana (Discipline) Regulations, 1989 and is described at Reference No.1 in the Schedule of the said Regulations.

(2) Discreditable conduct, that is to say, conduct which he knew would be prejudicial to discipline in that on or about 29th January, 1996 he removed, without authority, the sum of £30, property of Sergeant Dave Ryan, from the personal locker of Garda Gary O'Callaghan at Carrickmacross Garda Station.

8. The said discreditable conduct is a breach of discipline within the meaning of Regulation 6 of the Garda Siochana (Discipline) Regulations, 1989 and is described at Reference No.1 in a Schedule of the said Regulations.

(3) Discreditable conduct, that is to say, conduct which he knew would be prejudicial to discipline in that between 4.30 on 31st January, 1996 and 9.15 a.m. on 1st February, 1996, he removed, without authority, a £10 note from Sergeant Dave Ryan's jacket which was hanging in the briefing room at Carrickmacross Garda Station.

9. The said discreditable conduct is a breach of discipline within the meaning of Regulation 6 of the Garda Siochana (Discipline) Regulations, 1989 and is described at Reference No.1 of the Schedule to the said Regulations.

(4) Discreditable conduct, that is to say, conduct which he knew would be prejudicial to discipline in that on a date unknown between the 15th September, 1995 and 31st January, 1996, he removed without authority the sum of £10 from the personal locker of Garda Gary O'Callaghan at Carrickmacross Garda Station.

10. The said discreditable conduct is a breach of discipline within the meaning of Regulation 6 of the Garda Siochana (Discipline) Regulations, 1989 and is described at Reference No.1 in the Schedule to the said Regulations.

11. Much of the foregoing information is gleaned from the Affidavit of Thomas Murphy. Superintendent Martin Crotty, Personal Section B Branch of the Garda Siochana, Dublin 8 swore an Affidavit dated 6th February, 1998 for the purpose of verifying the statements of grounds of opposition and relevant portions of his affidavit read as follows:-

"4. I say that on the 18th January, 1996 Garda Gary O'Callaghan reported to his Supervisor, Sergeant Dave Ryan, that a sum of money was missing from his personal locker in Carrickmacross Garda Station, Monaghan, Co. Monaghan. Sergeant Ryan's subsequent investigation included the placing of two marked £10 notes in Sergeant David Ryan's jacket in the Parade Room of Carrickmacross Garda Station and the use of a hidden security video camera. On the morning of 1st February, 1996 Superintendent viewed a video tape recorded by this security video camera. On that day, Superintendent Fahy asked Sergeant James Marks to arrange for Garda McGlynn to come to the station. Sergeant Marks asked the Applicant to call to the station which he did. When he came to the station, Sergeant Marks informed him that Superintendent Fahy wished to talk to him in Superintendent Fahy's office. Sergeant Marks and the Applicant went to the Superintendent's office arriving there at 6 p.m."

(5) On 2nd February, 1996, Superintendent Edward P.M. Murray was directed to carry out a criminal investigation of the Applicant. He was also appointed on that date in accordance with Regulation 8 of the Garda Siochana (Discipline) Regulations, 1989 to carry out a disciplinary investigation of the Applicant. The Applicant was suspended from duty at 3 p.m. on 2nd February, 1996 by his Divisional Officer, Chief Superintendent Colm Rooney for a period of three days. The Applicant was admitted to St. Patrick's Psychiatric Hospital on 3rd February, 1996 and, consequently, Superintendent Murray was unable to serve the required notice in accordance with Regulation 9 of the Regulations on Garda McGlynn. It was proposed to continue the suspension of the Applicant. However, this did not occur due to the Applicant's admission to hospital. The Applicant was discharged from hospital on or about the weekend of the 13th and 14th April, 1996.

(6) On 26th April, 1996, Superintendent Murray interviewed the Applicant at the Applicant's home. A number of questions were put to the Applicant but he replied that he had nothing to say. Superintendent Murray made a memorandum of the interview but the Applicant refused to sign it. On this occasion, Superintendent Murray served a Form B33(a) on Garda McGlynn pursuant to Regulation 9 of the Regulations.

(7) On 5th September, 1996, the Applicant was suspended from duty and he remains suspended to date.

(8) On 17th September, 1996, summonses were served on the Applicant returnable to Carrickmacross District Court on 22nd October, 1996....... The summonses were adjourned on that date and were further adjourned on 28th January, 1997, 7th February, 1997, 14th April, 1997 and 22nd April, 1997. On 22nd April, 1997 the Applicant was put on election. He pleaded not guilty and opted to have the case heard in the District Court. The case was then adjourned to 22nd July, 1997 for hearing. A number of these adjournments were made at the request of the Applicant. It has been noted from the Affidavit of Superintendent Murray and the Affidavit of Superintendent Crotty that the admissions made to Superintendent Fahy and Sergeant Marks were held to be inadmissible by the learned District Judge as the Applicant was not told in the course of the interview or at the time he was formally cautioned that he was free to leave the room during the course of the interview and that accordingly he was held contrary to his constitutional rights when he made the admissions. The Judge viewed a video tape of the Applicant allegedly taking a £10 note from the pocket of Sergeant Ryan's jacket. As the evidence of handing over the marked £10 to Superintendent Fahy was not admissible, the learned Judge dismissed the charge in respect of the acts recorded.

12. Superintendent Crotty continues at paragraph 10 of his Affidavit as follows:-

"I say and believe and I am advised by Superintendent Murray that the summonses were dismissed prior to the learned Judge having heard any oral evidence and having considered the weight of the evidence or making any finding of fact. I say that I am unaware of any indication by the learned Judge that the summonses were being dismissed on the merits and I say that in all the circumstances, the Applicant was not acquitted within the meaning of the Regulations."

13. He then refers to the three orders made in the District Court by the Judge on 22nd July, 1997.

14. It is definitely undesirable to give hearsay evidence when Superintendent Murray presumably could easily have given his own recollection of what happened in the District Court.

15. Superintendent Crotty avers at paragraph 11:-

"I say that following the said hearing in the District Court, Superintendent Murray was directed to continue the disciplinary investigation in respect of the alleged breaches of discipline committed by the Applicant. On 22nd August, 1997, Superintendent Murray forwarded the complete file to the Appointing Officer, Chief Superintendent Colm Rooney. On 29th September, 1997, four breaches of discipline were prepared on Form B30 for service on the Applicant. The breaches, together with Form B33(b), were served on the Applicant on 20th October, 1997. I say and believe that I am so advised that the Applicant did not return a copy of the Form B60 within the statutory 14 day period (Regulation 12) in a admission or a denial and, accordingly, it was taken that the breaches were denied. I say that the proceedings were then referred to the Assistant Commissioner of the B Branch for consideration of the appointment of an Inquiry Board in accordance with Regulation 14 of the Regulations. I say that this is where the matter has stood before the order of this Honourable Court dated 24th November, 1997."

16. Finally, there is a further Affidavit sworn by Thomas Murphy. He is a partner in the firm of Solicitors attending for the Applicant. This Affidavit is supplemental to his original Affidavit sworn on 21st November, 1997 and in response to the Affidavit sworn by Superintendent Martin Crotty on 6th February, 1998. He does not agree with Superintendent Crotty that there was no oral evidence. He says:-

"I say that the learned District Justice heard evidence from several witnesses who were called on behalf of the prosecution (and he sets out a brief outline of the proceedings of the District Court):-

'The first witness was called on behalf of the defence as a character witness. He was Ex-Superintendent Seamus O'Hanlon, who had served at the same station as the Applicant for many years. This witness had certain difficulties in attending the hearing in the afternoon and the prosecution agreed that he be called out of sequence. He gave general evidence on character which was favourable to the Accused. The first prosecution witness called was Garda Gary O'Callaghan. He gave evidence that he had money in his locker in the locker room at his station. He said that no other person had a key to the locker and no one had permission to use it. He gave evidence of various amounts of money going missing on various dates between September, 1995 and January, 1996. He also gave evidence that money had been placed in his locker and marked with indelible ink and he confirmed that that money had been taken. This witness was not cross examined by the defence.

Sergeant David Ryan was then called and sworn. This witness gave evidence of placing marked notes in Garda O'Callaghan's locker. He said that the locker was checked several times. He said that some of the money was taken but there was no evidence that the locker had been forced open. He said that he took the remaining money to the Superintendent and reported the matter. He said that he placed the jacket in a briefing room with two marked £10 notes in it. He said that he took the serial numbers of the notes. He said that when he returned to the jacket some time later, one note was missing. He said that he was aware of the existence of a surveillance camera in the room. He said that he knew the tape was recording and identified the Applicant as being the person on the tape. He said that he then notified the Superintendent.

This witness was cross examined by the defence. He said that he was a good friend of the Applicant and that he socialised with him. He said that the Applicant was a good worker and obeyed the direction of his superiors. He said that he would have no problem if the Applicant had gone to the jacket. He said that once he had reported the matters to the Superintendent it was he, the Superintendent, who had carried out the investigation. He said that the locker room was always open and it is an area in the station where other guards would be moving frequently. He said that there was no way of knowing if a guard would enter the briefing room at any time.

Superintendent Andrew Fahy was then called and sworn. This witness gave evidence that he received a report of certain matters which he was obliged to investigate. He said that he decided to interview the Applicant and asked Sergeant Marks to direct the Applicant to call to see him. He said that the Applicant arrived at his office at about 6 p.m. on 1st February, 1996. He said that after telling the Applicant to sit down and relax, he then advised him of what he was investigating. He said that the atmosphere was cordial. He said that he found it difficult to get the Applicant to talk to him. He indicated that the matter was very serious and he understood that the Applicant realised the seriousness of it. He said that he was hoping that the Applicant would be able to offer some explanation in relation to his actions. He was asked if he wished to contact anybody but the Applicant declined to do so. He indicated to the Court that the Applicant was not under arrest and was free to leave at any time. Evidence was then given about what had been said during the course of the interview. Mr. Moylan, S.C. on behalf of the Accused, objected to this evidence and was allowed to cross examine the Superintendent on the taking of the note of the interview. Superintendent Fahy was cross examined and confirmed that he had seen the video and identified the Applicant from the video. He said that he had wished to speak to the Applicant to find out did he have a problem, such as drink or gambling. He said he was aware that the Applicant had lost a close friend and colleague a couple of months before the interview and that he was also aware that the Applicant had suffered a family bereavement shortly before the interview. He said that he did not consider the Applicant as a criminal suspect and he said that he was in a difficult position as he was an employer as well as investigating the incident. He said that he did not caution the Applicant immediately as he required an explanation from him.

Sergeant Marks was then called and sworn. He said that he had been asked by the Superintendent to get the Applicant to call to his office. He said that the Applicant was sitting in his car across the street from the station. He said that he told the Applicant that the Superintendent wanted to see him although he did not tell him what it was about. He said that he proceeded with the Applicant to the station and also proceeded with him up the stairs to the Superintendent's office.

He was then cross examined by Mr. Moylan, S.C. and confirmed that he did not arrest or restrain the Applicant. He said that he and the Applicant were both off duty at the time of the interview. He said that he had not directed the Applicant to attend with the Superintendent and it appeared that he was suggesting that it would have been different if he had been on duty. He said that he was also aware of what was being investigated and that he was aware of the video evidence. After this cross examination, Mr. Moylan made submissions to the learned Judge in relation to the evidence which had been heard. The principal submission made by him was that the Applicant was at all material times a suspect in the investigation of a criminal offence and that the Judges' Rules had not been adhered to in relation to the interview which was conducted. He was satisfied that the interview had continued for one hour and some minutes before a caution was administered. He said that there was no taping of the first part of the interview. The Superintendent, during the course of his evidence, did admit that he may have been incorrect in regards to the strict letter of the criminal law but he did not intend to arrest the Accused without affording him an opportunity of putting forward some explanation.

The learned Judge rose to consider the issues raised. He stated some five to ten minutes later, that he was of the view that the Superintendent had acted on the night in question for the best possible reasons. He said the fact that the Accused was a Garda and was going to his normal place of work or practice should not affect his ruling. He said that he was of the view that when the caution was administered he was less than free but yet he was not arrested. He said that there was no half-way-house between detention and liberty. He said that the Accused was under a compulsion and that, in the absence of following the appropriate procedures, what occurred at the interview was tainted with illegality and therefore the statements were inadmissible. Following this ruling, two counts before the Court were dismissed.

The case then proceeded and Sergeant Peter Kavanagh was called and sworn. This witness gave evidence of installing the video camera in the briefing room and he explained how the video worked. The video was shown to the learned Judge. This witness was not cross examined.

Sergeant David Ryan was then recalled. Sergeant Ryan identified the £10 note which he had marked and showed the mark on the said note to the trial Judge.

Mr. Moylan, S.C., on behalf of the Accused, objected to the introduction of this evidence on the basis that it had been obtained while the Accused had been illegally detained in accordance with his prior ruling.

The learned Judge ruled in favour of this submission and ruled the evidence to be inadmissible. Consequently, on this ruling, the third summons before the Court was dismissed.'"

17. It was not disputed by the Respondent that Mr. Murphy's Affidavit was a correct summation of the history of what happened in the District Court. I have already recited paragraph 10 of the Affidavit of Superintendent Martin Crotty where he swears that the summonses were dismissed prior to the learned Judge having heard any oral evidence. I do not accept the evidence of Superintendent Crotty because that of Mr. Murphy obviously is much more reliable (as he was the Solicitor present in Court) than that of Superintendent Crotty giving hearsay (and inadmissible) evidence.

18. This Court is satisfied that at the hearing before District Judge Flan Brennan of Carrickmacross District Court, the Applicant was represented by Solicitor and Counsel and the State was represented by the State Solicitor. This Court is also satisfied that there was a substantive hearing of the case and that the prosecution called a number of witnesses including Superintendent Fahy, Sergeant Marks, Sergeant Dave Ryan, Garda Gary O'Callaghan and Sergeant Peter Kavanagh and possibly others. During the course of the trial a number of submissions were made by Counsel on behalf of the Accused with the result that the learned trial Judge ruled the statements made by the Accused were made in breach of the constitutional rights and disallowed any evidence in relation to the statement. The video tape was played in Court and viewed by the trial Judge. The prosecution closed its case.

19. This Court had no doubt that there was a full and substantive hearing. At that stage the defence applied for a direction. This was granted. The charges were dismissed.

20. A letter signed by Superintendent Martin Crotty on behalf of the Assistant Commissioner and date stamped 12th November, 1997, reads as follows:-

"The breaches of discipline preferred against your client, Garda John McGlynn, were drafted without reference to the summonses which were previously issued. The breaches do not allege criminality on the part of Garda McGlynn. Also, four breaches of discipline were preferred against Garda McGlynn while he was prosecuted for three alleged larcenies.

It is further submitted that the Regulations 38(2)(b) of the Garda Siochana (Discipline) Regulations, 1989 applies in this case and not Regulation 38(1). The District Judge ruled that the admissions by Garda McGlynn were unconstitutional from a legal prospective. However, that does not place the admissions in other evidence outside the realms of disciplinary proceedings which purports to establish if a member of An Garda Siochana has breached internal working regulations."

21. The curial part of the orders on all four summonses is as follows:-

"And it was adjudged as follows: 'Dismissed'."

22. The Order is signed by the Judge.

23. However, it is submitted by the State that there were three summonses before disciplinary complaints. However it is basically based on the same evidence which has been held to be inadmissible. The decision of the District Judge has not been appealed by Certiorari or otherwise.

24. For the reasons already given the Court has indicated that it accepts the Affidavit of Mr. Murphy rather than that of Superintendent Martin Crotty. Since the District Court is a Court of record it creates an estoppel. To make the same charges implying that one is criminal and the other is merely disciplinary is to be semantic. In the circumstances the Court does direct that these enquires be suspended and I will make such an Order as the parties may agree in consequence of the findings already made.