High Court of Ireland Decisions

1. On this application, the Applicant seeks an Order of Certiorari by way of judicial review of a decision of the Respondent made on or about 12th April, 1995 declaring the complaint made by the Applicant to be a vexatious claim within the meaning of Section 4(3)(a)(vi) of the Garda Siochana Complaints Act, 1986 (the Act of 1986). In broad terms the relief is sought on two grounds, namely:-

2. On 5th January, 1994, the Applicant was arrested by members of the Garda Siochana pursuant to Section 30 of the Offences against the State Act, 1939 and he was taken to Dundalk Garda Station where he was detained for approximately six hours before being released without charge. Following his release he sought and was furnished with a copy of his custody record. Subsequently, his solicitors, McGuill & Company, wrote to the Garda Siochana referring to entry 24 on the custody record and stating that the signature there appearing was not the Applicant's signature although it purported to be and queried the circumstances in which some other person appended the Applicant's name to that portion of the document, the reasons therefor and the identity of the person. The response was in the following terms:-

3. Entry 24 on the custody record was an acknowledgement of "receipt of notice of rights". Written in manuscript on the line provided for "signature of person in custody" was "N. Stanley". Regulation 8(4) of the Criminal Justice Act, 1984 (Treatment of Persons in Custody in Garda Siochana Stations) Regulations, 1987 (S.I. No.119 of 1987) provides as follows:-

4. On 24th February, 1994, the Applicant, through his solicitors, made a complaint in writing to the Respondent stating that the signature on the custody record was not the Applicant's signature and that it appeared that the record in relation to his custody had been altered in circumstances which the Applicant believed gave rise to a complaint against the detaining members. The Respondent was requested to appoint an investigating officer to consider the complaint. The complaint was acknowledged by letter dated 8th March, 1994.

5. By letter dated 14th March, 1994 the Chief Executive of the Respondent advised the Applicant's solicitors that he was making certain enquiries concerning the incidents referred to in the complaint to determine the admissibility of the complaint and would be writing again when he had received the information sought. The next letter from the Chief Executive of the Respondent was a letter dated 30th March, 1994 in which he stated as follows:-

6. This letter evoked a response from the Applicant's solicitors in which they stated that they were astounded that it was suggested that filling in the document in the name of a person who did not fill it in constituted neither an offence nor a breach of discipline and they referred to the Forgery Act, 1913. Subsequently, the decision as to admissibility in the letter of 30th March, 1994 was reversed and the Chief Executive wrote to the Applicant's solicitors by letter dated 12th May, 1994 in the following terms:-

7. Subsequently, on 2nd June, 1994 the Applicant's solicitors were notified that Inspector D. McCann of Drogheda Garda Station had been appointed investigating officer.

8. The Applicant gave a statement to Inspector McCann on 28th July, 1994. In the statement, the Applicant stated that at no time did he sign the document and that the writing purporting to be his signature was a forgery. He indicated that he was willing to undergo handwriting analysis and to submit samples of his past handwriting for such analysis if necessary.

9. The Respondent's decision on the complaint was conveyed to the Applicant's solicitors in a letter dated 12th April, 1995 in the following terms:-

10. By letter dated 14th June, 1995 the Applicant's solicitor queried the basis on which the complaint could be vexatious and threatened to seek judicial review of the conduct of the Respondent if reasons were not advanced as to the determination. By letter dated 5th July, 1995 the Deputy Chief Executive of the Respondent responded as follows:-

11. A further letter dated 24th October, 1995 from the Applicant's solicitors elicited a response reiterating the contents of the letter of 22nd November, 1995.

12. In an Affidavit sworn in response to the Applicant's application, the Chief Executive of the Respondent averred that various written statements were obtained by the first investigating officer appointed in connection with the complaint, that he personally interviewed the Applicant on 28th July, 1994 and that he prepared a report on the matter which, together with the written statements obtained by him, were forwarded to the Chief Executive on 6th September, 1994. After the retirement of the first investigating officer, a second investigating officer was appointed on 15th September, 1994. He obtained further written statements and prepared a further report which he forwarded to the Chief Executive on 22nd February, 1995. The Chief Executive averred that he prepared a report dealing with the complaint, the background to the complaint, the investigation which had taken place, and his comments. The Respondent's decision was made following consideration of the reports submitted by the investigating officers, the written statements obtained by them and the reports prepared by the Chief Executive.

13. The purpose of the Act of 1986 as stated in its long title is:-

14. The Act of 1986 set up a multi-layered procedure for the investigation and adjudication of complaints by members of the public against members of the Garda Siochana.

15. What is interesting about the structure of Section 7 is that once the Respondent forms the relevant opinion, it has no discretion as to the action to be taken. The threshold above which the Respondent is obliged to refer the complaint to the next layer of the process (the Director of Public Prosecutions under subsection (1), the Commissioner under subsection (4), or a Tribunal (from which there is a further right of appeal to the Appeal Board under Section 11) under subsection (5), is a low threshold: that conduct "may" constitute an offence, or that a breach of discipline of a minor nature "may" have been committed, or that a breach of discipline of a non-minor nature "may" have been committed.

16. The functions of the Respondent under section 7 are, in my view, aptly characterised as a filtering process. Of the provisions of section 7 to which I have referred earlier, only subsection (3) results in a final outcome and that outcome, that no further action is taken, has definitive finality in that it is not appealable. It was submitted by Mr. Gageby on behalf of the Applicant that subsection (3) of section 7 is difficult to construe. I do not agree. Subsection (3) provides for a range of opinions any one of which, if formed by the Respondent, inexorably leads to the outcome that no further action is taken in the matter. The range of opinions are:-

17. The words "is of opinion that neither an offence nor a breach of discipline on the part of the member concerned is disclosed" in subsection (3) must be construed in the context of section 7 as a whole and in the context of the Act of 1986 as a whole. That must lead to the conclusion that under subsection (3) an offence is not disclosed unless the threshold provided for in subsection (1) - that the conduct alleged in the complaint may constitute an offence - is reached. It also follows that under subsection (3) a breach of discipline is not disclosed unless either the threshold provided for in subsection (4) or the threshold provided for in subsection (5) is reached. I think Mr. Gageby's submission that the formation of an opinion under subsection (1) or under subsection (4) or subsection (5) is subject to a prima facie requirement is correct. If that prima facie requirement is met either in relation to the possibility of the commission of an offence or the existence of a breach of discipline, the first two options provided for in subsection (3) do not come into play. To the extent that the first two options provided for in subsection (3) must be construed having regard to the provisions of subsection (1) or subsection (4) or subsection (5), they are circumscribed. However, the third option, as a matter of construction, is a "stand-alone" option. This is consistent with paragraph (a) of subsection (3) of section 4 which makes admissibility conditional on all of the requirements set out in that paragraph being satisfied. It is also consistent with subsection (1) of section 7 under which the Respondent is obliged to refer the matter to the Director of Public Prosecutions only if it is of opinion that the complaint is admissible as well as that the conduct alleged in it may constitute an offence. Accordingly, as a matter of construction of subsection (3), in my view, the Respondent is obliged to desist from further action in relation to a complaint which it is of opinion is vexatious. As to the meaning of "vexatious", in my view the meaning from the Oxford English Dictionary, Second Edition, Volume xix at page 586 suggested by Mr. Gageby -

18. In countering the Applicant's submission that the Respondent is obliged to give adequate reasons for a decision made by it under section 7(3) of the Act of 1986, Miss Egan, on behalf of the Respondent, submitted that the position of the Respondent is analogous to that of the Director of Public Prosecutions. Implicit in that argument, it seems to me, is the proposition that a decision of the Respondent under section 7(3) is only judicially reviewable on the same basis as a decision of the Director of Public Prosecutions to prosecute or not to prosecute. I will return to that argument later.

19. The Applicant's challenge on the ground that the decision of the Respondent was unreasonable and/or irrational is obviously predicated on the assumption that the formation of an opinion by the Respondent under section 7(3) is judicially reviewable on the same basis as the formation of an opinion which precedes a ministerial decision made pursuant to a statutory power, and is reviewable as to whether the opinion was "bona fide held and factually sustainable and not unreasonable" [ The State (Lynch) -v- Cooney [1982] I.R. 337 per O'Higgins C.J. at page 361]. Accepting that that assumption is correct for the moment, the question which arises is whether the Applicant has satisfied the test of unreasonableness which it is acknowledged he must satisfy, namely, that the conclusion of the Respondent was fundamentally at variance with reason and common sense. On this point, the Applicant relied on the decision of the Supreme Court in The State (Creedon) -v- The Criminal Injuries Compensation Tribunal [1989] I.L.R.M. 105. In that case, the decision which was under review was a decision of the Criminal Injuries Compensation Tribunal which rejected a claim made by a widow for compensation in respect of the death of her husband and gave as the reason for the rejection that she had not satisfied the Tribunal that his death arose "because of or in the course of attempting to save human life" as required by the Scheme under which the Tribunal was operating. Having summarised the facts which the widow had established without contradiction before the Tribunal, Finlay C.J. went on to say at p.107:-

20. On that basis, Finlay C.J. was satisfied that the decision did fall within the category of one which was fundamentally at variance with reason and common sense. In my view, nobody reading the summary of the established facts could disagree with that conclusion.

21. In the instant case, the only evidence before the Court of the contents of the material upon the consideration of which the Respondent formed the opinion that the Applicant's complaint was vexatious is of the contents of the statement given by the Applicant to Inspector McCann on 28th July, 1994. It is clear that a number of reports and other statements were before the Respondent. The Court does not know whether the Applicant's assertion that he did not sign the custody record was contradicted or whether there were other revelations as to what occurred in Dundalk Garda Station on 5th January, 1994, on the basis of which a proper and rational finding of vexatiousness could be made, in some other material before the Respondent. There is simply no evidence before the Court from which one could conclude that the opinion formed by the Respondent was at variance with reason and common sense.

22. Moreover, in my view, the fact that the Respondent found the complaint to be inadmissible on the grounds of vexatiousness does not entitle the Court to draw either of the inferences which the Applicant suggested might be drawn. The Court is not entitled to infer that the Respondent did not turn its mind to the question of whether an offence might have been committed, nor is it entitled to draw the alternative inference, namely, that the Respondent formed the opinion that there might have been an offence committed. As a matter of construction of subsection (3), the Respondent is entitled to form an opinion as to whether a complaint is vexatious independently of the formation of any option as to the applicability of any of the other criteria stipulated in section 4(3)(a) or in subsections (1), (4) or (5) of section 7.

23. The thrust of the Applicant's case is that the Respondent should have concluded that the criteria stipulated in subsection (1) of section 7 were complied with - that the conduct complained of was such as might constitute an offence and that the complaint was admissible - so that the Respondent should have referred the matter to the Director of Public Prosecutions. Merely showing that the Respondent had come to a wrong conclusion would not in any event entitle the Applicant to an Order of Certiorari. However, the important point on this review is that as there is no basis on which the Court could conclude that the Respondent was either unreasonable or wrong.

24. Mr. Gageby contended that there were what he called "odd factors" in the case and he described the first decision of the Chief Executive of inadmissibility on the ground that it had not been shown that the conduct complained of would constitute an offence or a breach of discipline as "bizarre". The Chief Executive reversed that decision and the complaint was investigated. In my view, it would not be proper to draw any inference as to how the Respondent adjudicated on the claim from the fact that a decision made by the Chief Executive on admissibility was subsequently reversed by the Chief Executive. As a matter of construction of section 4(3), it is clearly open to the Respondent to form a different opinion to that of the Chief Executive on the issue of admissibility.

25. In support of his contention that the Applicant's failure to give its reasons for finding that the Applicant's complaint was vexatious constituted a breach of his right to fair procedures, Mr. Gageby relied on two decisions of this Court, namely, the decision of Barron J. in The State (Daly) -v- The Minister for Agriculture , [1987] I.R. 165 and the decision of Blayney J. in International Fishing Limited -v- The Minister for the Marine , [1989] I.R. 149.

26. The earlier of the two authorities concerned a decision by the Minister for Agriculture to terminate the employment of a veterinary inspector because the conditions of probation attaching to his probation had not been satisfied. Despite a request, he was not informed of the grounds on which the decision was made. Having referred to the judgment of O'Higgins C.J. in The State (Lynch) -v- Cooney , Barron J. stated that the relevant statutory provision, section 7 of the Civil Service Regulation Act, 1956, as amended, could not be construed as giving the Minister a power to act in any manner he pleased and he continued:-

27. On the foregoing basis, Barron J. held that the Minister had failed to show that he had acted intra vires and he quashed the Minister's decision.

28. The other authority concerned the failure of the Minister for the Marine to give reasons for his refusal to grant a licence for sea fishing under the Fisheries (Consolidation) Act, 1959. In his judgment, Blayney J. stated that the Minister, in deciding to grant or refuse the licence, was obliged to act fairly and judicially in accordance with the principles of constitutional justice and that, unless the Minister gave reasons, it could not be said that the procedure he adopted in giving his decision was fair. He outlined two facts in particular which led him to this conclusion. The first is dealt with in the following passage from his judgment at page 155:-

29. The second fact which influenced the decision of Blayney J. was that the giving of reasons by the Minister might enable the applicant to meet the grounds on which the licence had been refused and, having done so, to reapply to the Minister.

30. Miss Egan, on behalf of the Respondent, submitted that the position of the Applicant in the instant case was distinguishable from that of the applicants in The State (Daly) -v- Minister for Agriculture and International Fishing Vessels Limited -v- Minister for the Marine . In each of those cases the applicant was directly affected by the Minister's decision in that the applicant in the former was directly affected by the termination of his employment and the applicant in the latter was directly affected by the refusal to grant the licence. By contrast, she argued, it is the member against whom the complaint was made who is directly affected in the instant case, not the Applicant. The Applicant was not deprived of any remedy in consequence of the opinion formed by the Respondent. It was still open to him to initiate a private prosecution or a civil action.

31. Miss Egan also submitted that the position of the Respondent exercising its functions under section 7 is analogous to the position of the Director of Public Prosecutions in deciding whether or not to prosecute. In this connection she referred to two decisions of the Supreme Court. In the first, The State (McCormack) -v- Curran , [1987] I.L.R.M. 225, Finlay C.J. dealt with the basis on which a decision of the Director of Public Prosecutions is judicially reviewable in the following passage at page 237:-

32. A similar view was adopted by Walsh J. who stated at page 238:-

33. Thus, Blayney J. starts from the premise that the decision of the Minister is open to full judicial review. However, it is clear from the decision in The State (McCormack) -v- Curran ... that the discretion of the Director of Public Prosecutions is reviewable only in certain circumstances as set out by Finlay C.J. at p. 237 of the report:-

34. It would seem then that as the duty to give reasons stems from a need to facilitate full judicial review, the limited intervention available in the context of the decisions of the Director obviates the necessity to disclose reasons."

35. Setting out her decision in the same case, Denham J. stated as follows at page 606:-

36. Mr. Gageby's response was that the Applicant was affected by the exercise by the Respondent of its functions under section 7. Not only had the Applicant the right to make the complaint but he also had the right to have it properly processed and adjudicated on in accordance with law. The finding of vexatiousness had implications for him. In effect, he contended, the Respondent was claiming to be immune from the supervisory jurisdiction of the High Court. If the submissions made on behalf of the Respondent were correct, the Applicant would be debarred from seeking a review of the first "odd" decision of the Chief Executive on the issue of admissibility. As to the suggested analogy with the Director of Public Prosecutions, Mr. Gageby submitted that the policy considerations which applied to the Director did not apply to the Respondent. In any event, he suggested that the earlier "bizarre" decision of the Chief Executive was a springboard for an allegation of mala fides .

37. As I have stated earlier, in my view, the function exercised by the Respondent under section 7 is a filtering process. It is a filtering process which affects both the person making the complaint and the member against whom the complaint is made. Neither proponent has an appeal either on the merits or in point of law. However, each proponent is entitled to ensure that the opinion formation function is exercised in accordance with law and to invoke the supervisory jurisdiction of this Court to this end. I do not find it necessary to come to a conclusion as to whether the exercise of the function provided for in section 7 is amenable to full judicial review in the sense outlined in The State (Lynch) -v- Cooney or only to a more restricted form of judicial review analogous to that which the exercise by the Director of Public Prosecutions of his statutory function is subject, although I am not convinced by Mr. Gageby's argument that the same policy considerations as affect the Director do not affect the Respondent in the formation of an opinion which automatically leads to a referral to the next stage in the complaints procedure, which may, inter alia , bring the matter under the aegis of the Director. The important point, it seems to me, is that even if the function of the Respondent under section 7 is subject to the full rigours of judicial review, the only basis on which a statement of the reasons why the Respondent formed a particular opinion would be of benefit to either of the proponents affected by the opinion would be to challenge the opinion on the basis that it was erroneous. Neither proponent is entitled to seek to challenge the exercise by the Respondent of its function under section 7 on the ground that it formed the wrong opinion. Therefore, the failure to state reasons is neither unfair nor unjust to the Applicant.

38. The provisions of the Act of 1986, the effect of which I have outlined earlier, provide a comprehensive statutory scheme for the first two layers in the process of investigating and adjudicating on a complaint made by a member of the public against a member of the Garda Siochana and, in my view, the scheme is not only comprehensive but fair and reasonable. A complainant whose complaint comes before the Respondent under section 7 is assured that his complaint will have been investigated by a senior member of the force whose report and the report of the Chief Executive of the Respondent will be before the Respondent. In the Applicant's case, it is clear on the evidence that the statutory procedure was followed and that the appropriate material was before the Respondent. That the Chief Executive saw fit to reverse a decision made by him in the first layer of the process, in my view, is not a reason for impugning the conduct of the second layer of the process. The position of the Applicant is in stark contrast to the position of the applicant in The State (Daly) -v- The Minister for Agriculture who, almost two years to the day after his employment had commenced, without any warning whatsoever and without any intimation of what, if any, investigation or assessment of his performance had been carried out, received a letter to the effect that the conditions of his probation had not been satisfied and that his employment was terminated and who never received any inkling whatsoever of the reasons for that conclusion or the evidence or material on which that conclusion was based.

39. The Applicant challenged the Respondent's asserted entitlement to confidentiality in relation to reports, statements etc. obtained by it in the course of the investigation of the complaint on the basis that the claim to confidentiality had not withstood an application for discovery against the Respondent in Skeffington -v- Rooney , (1994) 1 I.R. 480 in which this Court, Barr J., having inspected the relevant documents, held that the plaintiff was entitled to discovery. The decision of Barr J. has since been upheld by the Supreme Court (see Skeffington -v- Rooney [1997] 2 I.L.R.M. 56). The thrust of the Applicant's reliance on that decision was that the Applicant should not have to "squeeze" documents out of the Respondent; rather that the Respondent should disclose to the Applicant that there were valid reasons for the formation of its opinion. The Applicant has sought an Order of Certiorari on the basis of the evidence before the Court. The Court has to determine that application on the basis of the evidence before it and has done so. The fact that the plaintiff in another action obtained non-party discovery against the Respondent does not affect that determination.

40. The Applicant's application is refused.

41. Almost three years have elapsed since I heard this application. I feel I should make it clear that the inexcusable delay in delivering judgment was not due to any systems failure; it was solely due to failure on my part and I regret it. I intend avoiding any recurrence in future by fixing the date for judgment at the end of the trial or application.