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Dooner v. Garda Síochána (Complaints) Board [2000] IEHC 122 (2nd June, 2000)

THE HIGH COURT

JUDICIAL REVIEW

223 JR 1999

BETWEEN

PATRICK DOONER

APPLICANT

AND

THE GARDA SIOCHANA (COMPLAINTS) BOARD AND

THE COMMISSIONER OF AN GARDA SIOCHANA

RESPONDENTS

JUDGMENT of Mr. Justice Finnegan delivered the 2nd day of June, 2000.

THE BACKGROUND

1. On the 30th January, 1998 the Applicant was driving the Kildare district patrol car at the main Rathangan/Kildare Road. He observed a car being driven by James Muldoon who was known to him and as he had not seen Mr. Muldoon drive before he decided to stop him to ensure that he was properly insured. He flashed his lights to stop Mr. Muldoon who duly stopped and a conversation took place. On the Applicant’s account he was aware that a funeral had taken place as he had noticed a number of people walking from the direction of the graveyard. He noticed as Mr. Muldoon approached the patrol car that he was wearing a black tie. The Applicant deposes that he apologised to Mr. Muldoon for stopping him as he was not aware that he was part of the funeral party. He asked him if his documents were in order and Mr. Muldoon replied that they were and that they had been produced a week earlier at the garda station.

2. Arising out of this incident, Mr. Muldoon made a written complaint for the purposes of the Garda Siochana (Complaints) Act, 1986 at Naas Garda Station on the 4th February, 1998. The terms of the complaint were as follows -

“Garda Dooner stopped me while I was driving my car at Rathangan Road, Kildare near the graveyard. I was collecting my wife whose father had just been buried. He asked me had I tax and insurance. I told him I did and that I had been stopped twice previously by a sergeant. He did not get out of the patrol car and kept asking me questions about who was being buried etc. He let me go after approx. 10 minutes. Garda Dooner had previously seen me walking behind the hearse knowing whose funeral it was. I felt it was unnecessary that he stopped me during the funeral and in the manner in which he did. By this I mean he flashed his lights at me in front of the mourners leaving the graveyard. I feel this was insensitive of him. I personally have had no dealings with him previously but he has harassed members of my family.”

THE COMPLAINTS PROCEDURE

3. The Garda Siochana (Complaints) Act, 1986, Section 4, provides for complaints to be made to the Garda Siochana Complaints Board (“the Board”). Section 4(2) provides that on receipt of a complaint by a member at a garda station he shall inter alia send a copy of the complaint to the Commissioner and to the Board. Section 4(3) provides that on receipt of a complaint by the Board, the Chief Executive shall consider whether the complaint is admissible having regard to the terms of the Act and if he is of opinion that the complaint is admissible he shall send the Commissioner a copy of the same: alternatively, if the Chief Executive is of opinion that the complaint is not admissible the Board may decide that it is admissible in which case again a copy of the complaint is to be sent to the Commissioner. Section 4(4) provides that the Commissioner on being notified of a complaint pursuant to the provisions of subsection (3) shall notify the member concerned that a complaint has been made against him and that in the notification the nature of the complaint shall be specified.

4. The Act in Section 5 provides a procedure for the informal resolution of complaints: the Applicant, as he was entitled to pursuant to Section 5(3), did not consent to this complaint being dealt with by the informal procedure. In these circumstances the matter fell to be dealt with under Section 6 of the Act.

5. Pursuant to Section 6 the Commissioner appoints an investigating officer to investigate the complaint. On completion of the investigation the investigating officer is required to furnish a report in writing thereon to the Chief Executive of the Board and send a copy thereof to the Commissioner. Upon receipt of such report the Chief Executive must submit the same to the Board as soon as may be together with his comments in writing thereon and a recommendation in writing by him of the action (if any) that might appropriately be taken by the Board in relation to the complaint.

6. Section 7 of the Act provides that the Board shall consider the report of the investigating officer and the relevant comments and recommendations of the Chief Executive submitted to the Board and thereupon may pursue any one of a number of courses. Relevant for present purposes is the course provided for in subsection (4). This provides as follows:-

“7(4)(a) Subject to subsection (7) of this section if the Board is of opinion that a breach of discipline on the part of the member concerned may be disclosed but that any such breach is of a minor nature appropriate to be dealt with informally by the Commissioner by way of advice, admonition or warning it shall refer the matter to the Commissioner.

(b) a reference under paragraph (a) of this subsection shall not be made unless the member concerned has been given an opportunity to make representations to the Board in relation to the proposed reference and any representations so made have been considered by the Board.”

APPRAISAL OF THE STATUTORY PROCEDURES

7. I am satisfied on a consideration of the statutory provisions mentioned above that the Act envisages two separate and distinct stages -

1. An investigative stage by and under the direction of the Board.

2. A determination by the Commissioner who would impose an appropriate

penalty.

8. The Board’s function and powers are circumscribed by the provisions of Section 7(4)(a) - it must form an opinion, having considered the report of the investigating officer, the relevant comments and recommendations of the Chief Executive submitted to the Board and any representations made by the member, whether a breach of discipline may be disclosed. Specifically the Board does not determine whether or not there has been a breach of discipline this being a matter for the Commissioner. The Board clearly understood this position as in their letter of 29th April, 1999 to the Applicant they informed him of the Board’s opinion that breaches of discipline may be disclosed.

THE REQUIREMENTS OF NATURAL AND CONSTITUTIONAL

JUSTICE HAVING REGARD TO THE STATUTORY PROCEDURE

9. The requirements of natural and constitutional justice in any particular case will vary with the circumstances of the case. In Gunn -v- Bord an Cholaiste Naisiunta Ealaine is Deartha , (1990) 2 IR 168, Griffin J said:-

“Dismissal from one’s employment for alleged misconduct with possible loss of pension rights and damage to one’s good name, may, in modern society, be disastrous for any citizen. These are circumstances in which any citizen, however humble, may be entitled to the protection of natural and constitutional justice.”

10. In the present circumstances the penalties fall far short of dismissal being limited to advice, admonition or warning but may nonetheless have serious consequences for the Applicant in terms of his future good name and his career within An Garda Siochana and may well affect his prospects of promotion and so his earnings throughout the rest of his career and his pension rights. Nevertheless, the requirements of natural justice may not be appropriate in their full stringency as outlined in In Re. Haughey [1971]I.R. 217 where they were held to require in relation to a citizen -

(a) That he should be furnished with a copy of the evidence which reflected on his good name;

(b) That he should be allowed to cross-examine, by Counsel, his accuser or accusers;

(d) That he should be permitted to address again by Counsel the Committee in his own defence.

11. Again, in the judgment of Griffin J in Gunn -v- Bord na Cholaiste Naisiunta Elaine is Deartha he remarks that the minimum a plaintiff is entitled to is to be informed of the charge against him and to be given an opportunity to answer it and to make submissions.

THE CONDUCT OF THE INVESTIGATION

12. I have already set out above the text of the complaint. The Applicant was notified of the making of the complaint and in purported compliance with the provisions of the Act, Section 4(4), the Commissioner notified him of the nature of the complaint in the following terms:-

“The complainant was stopped on the 30/1/1998 in his motor car at Rathangan Road, Kildare Town by Garda Dooner. This allegedly took place during the funeral of his wife's father. He states that he was questioned about tax and insurance on his car and that Garda Dooner spoke to him without getting out of the patrol car. The complainant feels that this action was unnecessary and insensitive as he knew that the funeral was taking place.”

13. I am satisfied that had the full text of the complaint or an accurate and complete report of the same been furnished to the Applicant, the representations made by the Applicant pursuant to Section 7(4)(b) might well have been different, Budd J dealt with a similar circumstance in Tom Cassidy -v- Shannon Castle Banquets and Heritage Limited , unreported, 30th July, 1999. In that case the complainant against the plaintiff made a number of statements which were before the decision-maker and which were not made available to the plaintiff. In this regard Budd J said the following:-

“There was a failure to comply with audi alteram partem, the principle that an opportunity must be given for the other side to be heard. The actual manuscript of the interviews made by Ms. Hughes was not furnished. Even an amalgamated and amended version with variations with additional complaints and matters added was not supplied despite the strong and repeated demands of the plaintiff and his solicitor. Such information as was given about the complaints was given piecemeal and verbally. Even the memo of the statement taken on the 19th January, 1999 was outlined in part and was never furnished in full until after 12th March, 1999 (note the date of the decision). This conduct was correctly characterised by counsel for the plaintiff as trial by ambush in that the information about the complaint was given “drip by drip” and the Defendant avoided giving one clear statement of the accusations being made and what matters were likely to be taken into account. This was effectively a negation of the role of the plaintiff’s solicitor. If she had been given a proper statement or unexpurgated manuscript note of the details of the complaint then the plaintiff’s solicitor would surely have explored the several inconsistencies therein and would have compared contradictions in the versions from the Plaintiff as to what had occurred. She would in all probability have sought to cross-examine the complainant and might well have sought to call other witnesses and have required that the complainant be confronted by the accused. This would have been reasonable in the context particularly of his denial of her version of events, the lack of corroboration of her account, the long time-lag between 12th October, 1998 when the incidents were alleged to have occurred on 21st December, 1999 when she first made her complaint and also the apparently normal relations pertaining in the meantime.

Counsel for the plaintiff in closing laid particular stress on the point that the decision-maker here acted on the basis of information which had not been disclosed to the Plaintiff.”

14. Budd J referred to the decision of the Supreme Court in Georgopoulos -v- Beaumont Hospital Board , (unreported) delivered on the 4th day of June, 1997 and particularly the statement at page 22 thereof:-

“It is submitted on behalf of the appellant that the Irish Courts have accepted that a breach of fair procedures occurs when a decision-maker acts on the basis of information which has been obtained outside of the hearing and which is not disclosed to the party adversely affected. I unreservedly accept this submission provided it relates to facts which are relevant to the matters in issue before the tribunal.”

15. The most important omission from the notification is the statement in the complaint in relation to the Applicant that “he has harassed members of my family”. Again, the Applicant was not notified of the following sentence in the complaint -

“Garda Dooner had previously seen me walking behind the hearse knowing whose funeral it was.”

16. In the absence of knowledge of these two statements, the Applicant was at a serious disadvantage in responding to the complaint actually made. The former suggests a course of conduct on the part of the Applicant which would justify a finding of abuse of authority or discreditable conduct rather than discourtesy which is suggested by the notification sent to the Applicant. An accurate notification would have enabled the Applicant to place relevant information before the Board as to the course of his dealings with members of the Complainant’s family. Had he been aware of the latter statement he could have called in aid, the observer in the patrol car who accompanied him on the occasion giving rise to the complaint to corroborate his statement to the Board that he was initially unaware of that the Complainant was attending a funeral. In these circumstances I am satisfied that there was a serious non-observance of the rules of natural justice. The Board referred the matter to the Commissioner who already had in his possession as a result of the provisions of the Act, Section 4(2)(b)(ii) a copy of of complaint and who proceeded to make a finding without affording the Applicant sight of the complaint or indeed the other material laid before him. In order to comply with the rules of natural justice the text of the complaint or an accurate statement thereof and such material ought to have been made available to the Applicant and an opportunity afforded to him to respond to the same either by the Board before submitting the material to the Commissioner or by the Commissioner before making a determination. Further, it would be appropriate that an opportunity be afforded to the Applicant by the Commissioner to make submissions as to penalty and no such opportunity was given: the Commissioner without affording the Applicant such an opportunity decided to deal with the same pursuant to Section 7(4) of the Act by way of advice.

AMENDMENT OF GROUNDS

17. The grounds relied upon by the Applicant in his statement grounding application for Judicial Review are insufficient to address the Applicant’s true cause of complaint and in opening Counsel for the Applicant sought leave to amend the grounds. I deferred consideration of that application until conclusion of the hearing.

18. The Rules of the Superior Courts, Order 84, Rule 23, provides as follows:-

“23(1) A copy of the statement in support of an application for leave under Rule 20, together with a copy of the verifying affidavit must be served with the notice of motion or summons and, subject to paragraph (2), no grounds shall be relied upon or any relief sought at the hearing except the grounds and relief set out in the statement.

(2) The Court may, on the hearing of the motion or summons, allow the applicant or the respondent to amend his statement, whether by specifying different or additional grounds of relief or opposition or otherwise, on such terms, if any, as it thinks fit, and may allow further affidavits to be used if they deal with new matters arising out of an affidavit of any other party to the application.

(3) Where the applicant or respondent intends to apply for leave to amend his statement, or to use further affidavits he shall give notice of his intention and of any proposed amendment to every other party.”

In Molloy -v- Governor of Limerick Prison , unreported, Supreme Court, July 12th, 1991, Finlay C.J. in considering this rule said as follows:-

“I take the view that the proper interpretation Order 84 Rule 23(2) is that the Court may after the time that either a notice of motion with a return date has passed the date of the return date, or in the case of applications for Judicial Review, where liberty has been granted to issue them by summons after the summons has been issued, that the Court may, on the basis that either the summons or motion concerned is then properly to be described as ‘a hearing’ ‘pending hearing’ or ‘at hearing’ in the High Court, that the Court may on the application of an applicant amend the documents concerned as provided for in that sub-rule."

19. No notice of intention to apply for leave to amend was given to the respondent in compliance with Order 84, Rule 23(3) but I have power to deal with the application nonetheless by virtue of the Rules of the Superior Courts, Order 124.

20. The amendments sought by the applicant are to add two additional grounds as follows:-

(g) The decisions of the first named respondent and the second named respondent are unreasonable and irrational.

(h) The first named Respondent and the second named respondent acted contrary to the rules of constitutional and natural justice in failing to afford the applicant his right to audi alteram partem by failing to inform the applicant of all material portions of the complaint made and considered by them to enable the applicant to respond to the same.

21. The approach to be adopted on an application for leave to amend grounds is that set out by Costello P in McCormack -v- Garda Siochana Complaint Board , (1997) 2 IR 489 at 503-504 where he said:-

“It seems to me that only in exceptional circumstances would liberty to amend a grounding statement be made because the Court’s jurisdiction to entertain the application is based on and limited by the order granting leave. But when facts come to light which could not be known at the time leave was obtained and when the amendment would not prejudice the respondents then it seems a proper exercise of the Court’s power of amendment to permit the amendment rather than require the new ‘grounds’ be litigated in fresh proceedings. Accordingly, I propose to allow the amendment.”

22. The Respondents’ Replying Affidavit was sworn in this matter on the 29th October, 1999 and exhibited the complaint made and this was the first occasion upon which the Applicant had sight of the same. As of the date of the hearing herein the Applicant had no knowledge of the material which was placed before the Second named Respondent. Upon having sight of the terms of the complaint the Applicant ought within a reasonable time thereafter have applied by Notice of Motion to amend. However, having regard to the manner in which the hearing proceeded, I am satisfied that no injustice would be worked on the Respondent by allowing the amendment at this late stage. Counsel for the Respondents did not require an adjournment and dealt comprehensively and able with the proposed amended grounds. In the circumstances of this case and in the light of my finding of clear and serious breaches of the rules of natural justice, I propose exercising my discretion in favour of the Applicant and allowing the amendment of the statement of grounds by the addition of the ground mentioned above at (h) and I further propose exercising my discretion under Order 124, r. 1 in relation to the Applicant’s failure to give notice of his intention to amend his grounds.

23. I propose granting the Applicant the relief sought in the statement grounding application for Judicial Review at 4(b) and (e) and accordingly make Orders as follows:-

(a) An Order of Certiorari by way of application for Judicial Review of the decision of the First named Respondent made on the 8th day of March, 1999 in concluding breaches of discipline on the Applicant’s part may have been disclosed the breach being of a minor nature and therefore appropriate to be dealt with informally by the Second named Respondent by way of advice, admonition or warning.

(b) An Order of Certiorari by way of an application for Judicial Review of the decision of the Second named Respondent made on the 27th day of May, 1999 indicating his intention to deal with the complaint made against the Applicant by way of advice under Section 7(4) of the Garda Siochana (Complaints) Act, 1986.