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Cite as: [2001] IEHC 220

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THE HIGH COURT

JUDICIAL REVIEW

No. 455JR

BETWEEN

STUART McMAHON

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA

RESPONDENT

Judgment of Mr. Justice Aindrias O Caoimh delivered on the 19^th day of October 2001

This is an application for Judicial Review for the reliefs of

1. An Order of Certiorari quashing the decision of the respondent dated the 23^rd of November 1998 which said decision was furnished to the applicant on the 27th day of November 1998.

2. Damages for breach of contract.

3. Damages for breach of constitutional rights.

The grounds upon which the relief is sought is as follows:-

(i) The decision of the respondent dated the 23rd day of November 1998 was made in breach of the applicant's entitlements to natural and constitutional justice.

(ii) The applicant was not furnished with a statement in writing of the precise nature of the allegations being made against him until the 18th day of November 1998 on which date the Commissioner's notice dated the 4th day of November 199S was furnished to the applicant. The applicant was not informed orally or in writing prior to the interview with him on the 3rd day of June 1998 that a possible outcome of the investigation was the termination of his contract of employment.

(iii) The applicant was not informed prior to the 18th day of November 1998 on which date the aforesaid notice dated the 4th day of November 1998 was served on him stating that his employment could be terminated. The notice dated the 4th day of November 1998 did not specifically warn the applicant that his contract of employment could be terminated nor did it inform the applicant that his contract of employment could be terminated unless other compelling submissions were made by him in response to the allegations.

(iv) The applicant was not furnished with all the information and material relevant to the issues and in particular the applicant's diary was taken from him on the 3rd of June 1998 and his request for a copy of the diary was refused on that date.

(v) The applicant was not interviewed and/or no interview was conducted with the applicant in respect of the termination of his employment. The applicant was not furnished with a copy of the statements on which the respondent relied until the 18th day of November 1998. The applicant was not afforded an adequate opportunity to present a case in response to the allegations made against him.

(vi) The time frame afforded to the applicant to make submissions was inadequate given the extensive nature of the allegations made.

(vii) The applicant or the legal representative on his behalf were not afforded an opportunity of cross-examining or questioning the authors of the statements and reports furnished to the applicant on the 18th day of November 1998.

(viii) The notice dated the 4th day of November 1998 did not inform the applicant that (a) he should seek legal advice; (b) he was entitled to cross-examine or question the contents of the statement and reports and (c) he was entitled to introduce mitigating evidence on his behalf,

(ix) The respondent agreed with the recommendation of the Assistant Commissioner and the Deputy Commissioner and that he should consider dispensing with the applicant's services prior to hearing of the applicant and accordingly the respondent prejudged the issue and/or the respondent's decision was tainted or biased or otherwise,

(x) Allegation number 18 of the respondent's notice dated the 4th day of November 1998 was not put to the applicant in the interview of the 3rd day of June 1998 nor were the specific allegations contained in the said notice and the details in respect of the said allegations were not put to the applicant in the interview of the 3rd of June 1998.

The application is grounded upon an affidavit of the applicant in which states that he is a probationer garda. He says that he was attested to An Garda Siochana on the 6th day of December 1996 and that he is due for confirmation of appointment on the 5th of December 1998 and he was allocated to Cabra Garda Station from Templemore College on the 6th of December 1996 and took up duty in Unit A under the supervision of stationhouse officer Sergeant James Tutty. The applicant says he performed miscellaneous duties in Cabra Garda Station. He says that one of his duties consisted of protection duties at Aras an Uachtarain. He says that members who performed protection duties at Aras an Uachtarain are entitled to claim maximum subsistence when it becomes available if protection duties exceed five hours of a regular pattern. He says that subsistence allowances are paid at a rate of £7.69 for five hours and £12.88 for eight hours. The applicant says that he did not receive instructions in respect of the method of calculating subsistence allowances and in respect of completion of forms claiming subsistence allowances. He says he was first given a form in respect of subsistence allowance in or about the 19th of May 1997. The applicant says that the form was countersigned by Sergeant James Tutty and forwarded to the District Office for payment. The claim was for a total amount of £379.86. He says that he submitted a further claim for subsistence allowance on the 10th of September 1997 and again these were countersigned by his Sergeant James Tutty and forwarded to the District Office and these claims were for a total amount of £618.24. He says he received payment of the said sum of £379.86 and £618.24.

The applicant says that in or about November of 1997 he was approached by Sergeant Tutty and a Sergeant Fearon who stated that there were discrepancies in claims he had made for subsistence allowances that he had claimed for being on duty at Aras an Uachtarain on dates when the records showed that he was not there. He says that he immediately said he was sorry for the mistake and asked what he could do and stated that he wanted to pay back any monies wrongfully claimed. He said that Sergeant Fearon told him that £12 of arrears could not be claimed and also agreed that when he submitted his next claim he could make allowances for previously submitting incorrect claims. He also asks the Sergeants should he write up a report in the matter and forward same to the Superintendent in charge and he was informed by both of them that this would not be necessary. He said he understood that both Sergeants accepted that he had made a genuine mistake and the matter was then dealt with at station level.

On the 3rd of June 1998 the applicant was cautioned by Inspector Michael Feehan and informed that a criminal investigation was being conducted into subsistence claims he had previously made. He says that this interview took him by complete surprise and he recalled that he hadn't his probationer's diary with him during the course of the interview and he had to leave the interview room to retrieve it from his car.

The applicant says that he was concerned that a criminal prosecution was being contemplated and accordingly he was reluctant to say anything at interview especially as he hadn't been furnished in advance with the charges that were being made against him. He says that he asked at the conclusion of the interview for the return of his diary and was informed that it was being retained as it would constitute evidence. He says that he then asked for a copy of his diary together with a copy of the memorandum of the interview which had just taken place and that he was refused a copy of his diary and the memorandum of the interview. The applicant says that he had no idea that termination of his employment as a member of An Garda Siochana was being contemplated or that anything he said or didn't say at the interview of the 3rd of June 1998 would be used as a basis for termination of his said employment.

The applicant says that on or about the 18th of November 1998 he received a notice from the respondent dated the 4th of November 1998. This notice contained each and every allegation described as being allegations of commission/omission on his part. The applicant complained that the notice did not specifically warn him that termination of his employment was being contemplated by the Commissioner. He says that the notice did refer to regulation 16 of the Garda Siochana (Admissions and Appointments) Regulations 1988 as amended which he now knows confers power on the Commissioner to dispense with services of a probationer garda. The applicant says that the notice was accompanied by what is described in the notice as "documentation in relation to these allegations". The applicant has exhibited this documentation. The applicant says that these documents contained statements including the statements of Sergeant Tutty, Sergeant Fearon and Sergeant Nugent which confirmed his understanding that the matter was being dealt with at station level and their belief that past discrepancies were a genuine mistake on his part. The applicant says that the documentation also contain what is described as "memorandum of interview with Inspector Michael Feehan". He says that the documents also contained a report of Detective Inspector John Mulligan which is undated and a further report of Superintendent Malachy Mulligan to the Chief State Solicitor's Office which is stamped An Garda Siochana Superintendent's Office the 29th of July 1998. Both reports stated that a criminal prosecution was not recommended. The report of Superintendent Mulligan averts to the fact that he had failed to claim eight hours overtime with a loss of £81.55 to himself which would confirm his view that he was inexperienced in filling in claim forms.

The applicant says that notwithstanding statements from his Sergeant and the aforesaid reports of Detective Inspector John Mulligan and Superintendent Malachy Mulligan the documents were furnished to him to disclose that the Director of Public Prosecutions had recommended prosecuting for two offences. He says that not all of the allegations set out in the aforesaid notice dated the 4th of November 1998 were put to him in the interview on the 3rd of June 1998. The applicant says that his recollection of the interview of the 3rd of June 1998 is that the allegations made to him on that date were less specific than the allegations which are contained in the notice from the respondent. The applicant says that the notice dated the 4th of November 1998 was served on the 18th of November 1998 and did not allow him a sufficient time frame within which to fully and adequately respond to the very detailed and extensive allegations which were made against him in the notice. The applicant further complains that he was not advised that he was entitled to question or challenge the contents of the statements and reports or indeed to produce or furnish evidence of mitigation. The applicant further complains that he was deprived of his diary at the time and was not in a position to verify the references relating to his diary entries. He says that he responded to the Commissioner by way of a letter dated the 19th of November 1998. He points out that in his letter he stated that there had never been any admission/omission on his part and he accepted that there were mistakes made and he assured the Commissioner that there wouldn't be any repetition of similar mistakes in the future. He says he was never questioned by or on or behalf of the Commissioner in relation to the allegations and as to any explanation he might have in relation to the allegations. The applicant says that he never anticipated that the Commissioner would dismiss his explanation without further recourse to him and dispense with his services in summary fashion.

The applicant points out that by letter dated the 23rd of November 1998 which was served on him on the 27th of November 1998 the Commissioner stated that having examined his submission he still considered that he was unlikely to become an efficient and well conducted member of An Garda Siochana and would dispense with his services with effect from the 2nd of December 1998. The applicant said that it is apparent on the documentation sent to him by the respondent together with his notice dated the 4th of November 1998 that he wasn't provided at the earliest possible opportunity with a written comprehensive statement of the allegations made against him, the possible outcome of such allegations and in particular that the investigation of such allegations could have the result of terminating his employment with An Garda Siochana nor was he furnished at the first available opportunity with the statements and reports obtained by the respondent in this matter. The applicant claims that as a result he has been hampered in presenting a full response or defence against the allegations made against him.

The applicant says that he is particularly concerned that the Assistant Commissioner by way of letter dated the 30th of October 1998 and the Deputy Commissioner by way of letter dated the 3rd of November 1998 advised the Commissioner that he should consider dispensing with his services in accordance with the Garda Siochana (Admissions and Appointments) Regulations 1998. The applicant states that both of the letters advised the Commissioner to take account of the judgment in the Duffy case as it is apparent from the Commissioner's initials and the word "agreed" on the letter dated the 3rd of November 1998 that the Commissioner agreed with the sentiments contained in the said letters. The applicant points out that the recommendations of the Assistant Commissioner and Deputy Commissioner, that the Commissioner consider dispensing with the applicant's services, predated any notice sent to him outlining specific allegations and charges being made against him, the serious consequences of those allegations and charges and in particular the consequence that his employment could be terminated and the facts, materials, statements and reports, setting out the case against him and more particularly his response and defence to the allegations and charges. On this basis the applicant says that he believes and is advised that the decision of the Commissioner is in breach of natural and constitutional justice in that he was unreasonable and that he was in abuse of discretionary power.

On behalf of the applicant it is submitted that the Gardai had prejudged the applicant's position and that the notice dated the 4th of November which was not delivered until the 13th was a sham. He says that he had one clear day to make a submission to the Commissioner. It is complained that no indication was given that unless he responded to the request from the Commissioner that his job was at stake.

It is submitted that the Garda authorities did not want to let the applicant go beyond the 4th of December 1998 because then the Commissioner would have to invoke the 1989 Regulations dealing with Gardai as opposed to probationer Gardai. On behalf of the applicant it is submitted that the disciplinary regulations applied to all members of the Garda Siochana and therefore to the applicant as well. The Commissioner invoked Regulation 16 of the Regulations which was available to him during the probation period of the applicant. It is submitted before this court that the applicant was entitled to the benefit of reliance on the 1989 Regulations. It is submitted that had the Commissioner not made a decision prior to the 4th of December 1998 that he could have relied on the 1989 Regulations.

It is submitted that the Commissioner had to meet the basic tenets of natural and constitutional justice and the applicant had to be given a proper opportunity to test the allegations against him and that no decision should have been made until that procedure came into play. With regard to the decision which had been made by the 4th of December, it is submitted that the decision had already been made. It is submitted that there was no real opportunity to make submissions.

On behalf of the respondent a number of affidavits have been filed. In addition to the affidavits filed a statement of opposition has been filed in which it is pleaded:

1. That the provisions of Regulation 16 of the Garda Siochana (Admissions and Appointments) Regulations 1988 entitled the respondent to dispense with the services of a probationer garda if he or she is not fit physically or mentally to perform his or her duties as a member and is not likely to become an efficient and well conducted member of the Garda Siochana.

2. Prior to making the decision of the 23rd of November 1998 the respondent accorded to the applicant all entitlements to fair procedures, natural and constitutional justice.

3. The applicant was advised at a meeting on the 2nd of October 1998 of the precise nature of the allegations made against him. The note of 4th of November 1998 referred to in paragraph 2 of the statement of grounds was delivered to the applicant on the 13th of November 1998 and the applicant was given full opportunity to respond to same.

4. The applicant was at all times advised that a possible outcome of the investigation was the termination of his contract of employment.

5. The notice of the 4th of November 1998 did advise the applicant that his contract of employment could be terminated.

6. All information and material relevant to the issues were furnished to the applicant and the applicant never sought the return of his diary as suggested in paragraph 4 of the statement of grounds.

7. The applicant was fully and properly interviewed in connection with the termination of his employment on the 2nd of October 1998.

8. All allegations, statements and materials made by or in the possession of the respondent were furnished to the applicant properly and in good time to enable him consider and respond thereto.

9. The applicant never sought an extension of the time frame accorded to him to make submissions and that time frame was itself reasonable and fair.

10. Neither the applicant nor his legal representatives are entitled to any opportunity of cross-examining or questioning the authors of any statements or reports furnished to the applicant on the 18th of November 1998 and no such opportunity was ever sought.

11. The applicant had no entitlement to introduce mitigating evidence on his own behalf and no such opportunity was ever sought.

12. There was no obligation by notice dated the 4th of November 1998 to advise the applicant of seeking legal advice or of any entitlement to cross-examine or of any entitlement to introduce mitigating evidence (all of which are denied).

13. The respondent made himself the decision to dispense with the applicant's services. Any representations made by the Assistant Commissioner or Deputy Commissioner relating thereto (which are denied) are not relevant to the within proceedings.

14. The respondent did not prejudge the issue or arrive at a biased decision as suggested in paragraph 13 of the statement of grounds.

15. The allegations contained in the notice of the 4th of November 1998 were put to the applicant.

16. The applicant is not entitled to the reliefs sought or any relief.

Aidan Killoran a Superintendent of the Garda Siochana has sworn an affidavit on behalf of the respondent. He points out that the provisions of Regulation 16 of the Garda Siochana (Admissions and Appointments) Regulations 1988 entitle the Commissioner of An Garda Siochana to dispense with the services of a probationer garda if he considers that he or she is not fitted, physically or mentally, to perform his or her duties as a member of the Garda Siochana or is not likely to become an efficient and well conducted member thereof. It was this power which was invoked by the Commissioner in the instant proceedings by notice dated the 23rd of November 1998. The delivery of that notice was preceded by a procedure which he is advised and believes complied fully with all applicable principles of constitutional and natural justice. With regard to the subsistence claims made by the applicant it is stated that assistance is available to members of An Garda Siochana when making claims from supervisors and colleagues. It is stated that the forms on which claims are submitted are self explanatory and provide a clear structural method for computing same. At the conclusion of the form is stated the following terms of a declaration to be signed by the claimant:

"/ certify upon my honour that this account is correct, that I was actually and necessarily detained from my station by duty during the number of nights and hours for which subsistence allowance is claimed: that subsistence is not claimed in respect of any period during which I was either at my home or normal place of residence: that the distances are accurately stated and that the travelling expenses are claimed were actually and necessarily incurred on duty and that no part of the amount of this claim has been previously claimed. I am satisfied that each item of expenses was necessarily incurred. Examined and submitted."

Based upon these facts the deponent says that it is difficult to understand how the applicant herein can in these circumstances rely upon any belief that he did not receive instruction in the method of calculating subsistence allowance or completion of forms relating to same. It is pointed out that in November 1997 a number of discrepancies were identified in claims which had been submitted by the applicant for subsistence allowances. At the time Sergeants Fearon, Tutty and Nugent considered the matter. Sergeants Fearon and Tutty met with the applicant and pointed out the discrepancies. The applicant agreed that some of his claim were not correct. It is stated that he apologised and said it was a mistake. At the time they discussed the matter with the applicant only two false claims had come to light and at that point in time the matter was being considered as a mistake by Sergeants Fearon and Tutty.

It is stated that during an inspection of accounts at Cathal Brugha Garda Station in April of 1998 Inspector Michael Feehan saw that there were a number of discrepancies in the subsistence claims of the applicant. These discrepancies included

1. Claims made twice on the same tour of duty performed at Aras an Uachtarain and

2. Claims made for tours of duty at Aras an Uachtarain which were either performed elsewhere or performed partly at Aras an Uachtarain for which no subsistence is allowable because the tour does not exceed five hours.

It is stated that as a result of these discoveries the applicant was interviewed by Inspector Michael Feehan and Detective Inspector John Mulligan. This interview was held on the 3rd of June 1998. The transcript of the interview indicates that the applicant was cautioned at the time and was not obliged to say anything but anything he did say could be taken down in writing and could be given in evidence against him. It is pointed out that he was advised that on the basis of a preliminary examination of records that there were problems in relation to subsistence claims made by him. He was advised at the time that this was a criminal investigation. Superintendent Killoran points out that the applicant was asked whether his signature appeared on certain forms. He relied in part upon his right to decline to make a statement in case it might incriminate him. He was asked if he had his probationer's diary with him or available. He indicated that it was in his car and he could get it. The applicant then went and produced the diary. He was asked a number of questions in relation to apparent discrepancies between the records and his diary. It is stated that the applicant did not seek the return of his diary at that interview. Inspector Feehan and Detective Inspector Mulligan are stated to have confirmed that no request of this nature was made. The Superintendent points out that a further meeting occurred on the 2nd of October 1998 in which the applicant was advised that a number of matters concerning him were under investigation and that his future in An Garda Siochana would have to be examined. He was alerted to specific dates when he failed to attend to duties as a probationer garda. He was requested to consider these matters further and that he make his views known in writing or verbally. It is stated that this did not occur. In this respect the Superintendent relies on a memorandum of the interview in question.

On the 13th of November 1998 the applicant was served with a notice from the Garda Commissioner dated the 4th of November 1998 outlining allegations of omission/commission relating to discrepancies in claims and other related matters at Cabra Garda Station. The notice in question served on the applicant states as follows:-

"These are serious matters and I have to consider and decide whether you are likely to become an efficient and well conducted member of An Garda Siochana. I have to make a decision in relation to these allegations in accordance with Regulation 16 of An Garda Siochana (Admissions and Appointments) Regulations 1988, as amended".

Superintendent Killoran points out that on the 2nd of October 1998 prior to the service of this notice the applicant had been informed that matters concerning him were under investigation and that his future as a member of the Garda Siochana was in question. The Superintendent points out that while the documentation furnished to the applicant may have indicated that at one point in time there was a belief that the matter was being dealt with at station level and that past discrepancies represented a mistake on the applicant's behalf this was because at the time there were only two claims of which the respondent was aware which were incorrect. Further discrepancies by the applicant were discovered subsequently. Similarly, while Superintendent Mulligan's report does refer to the fact that the applicant failed to claim eight hours overtime with the loss of £81.25 to himself it is stated that there is no assertion that the deponent was inexperienced in the filling in of such forms or submission of claims. It is pointed out that the purpose of providing the applicant with these documents was to furnish him with all material relating to the matter and to afford him the opportunity to make any submission or reply to the allegations against him. In this regard it is stated that he was afforded a reasonable time to do so from the 13th to the 20th of November 1998 and to seek representation in the matter if he so wished. It is stated that no such representations were made. Superintendent Killoran points out that on the 3rd of June 1998 the criminal investigation was in its infancy and as it continued further discrepancies on the part of the applicant came to light. He states that the allegations of commission/omission on the part of the applicant were prepared subsequent to the 3rd of June following on from the criminal investigation. On completion of the investigation, all incorrect claims made by the applicant were put to him and he was afforded the opportunity to make a reply or submission on his own part and was given time to do so and seek representation in that regard on his own behalf. Superintendent Killoran states that not merely does the applicant state incorrectly the date on which the note of the 4th of November was served upon him but he fails to note that this notice itself clearly states

"I hereby give you an opportunity of advancing to me on or before the 20th day of November 1998 any submissions you wish to make concerning the allegations. To enable you to make a full response to the allegations contained herein I am enclosing all documentation relating to these allegations for your information."

It is stated that at no stage did the applicant request the return of his diary. In the course of that notice the applicant was clearly advised that the Commissioner had to consider and decide whether he was likely to become an efficient and well conducted member of An Garda Siochana. He was at this stage well aware of all allegations made against him, having been so advised at the meeting of the 2nd of October 1998 at which, in turn, he was also afforded an opportunity to make a response or submission on his own behalf or to take time to do so and seek representation if he wished. It was on this basis submitted that the applicant was not deprived of any procedural protections or rights to fair, constitutional or natural justice.

Sergeant James Tutty has sworn an affidavit in which he states that he is the stationhouse officer with Unit A at Cabra Garda Station. He states that his duty include allocating members to their various duties including protection duties at Aras an Uachtarain. Having allocated members to their duties he states that he then records this allocation in an allocation book at Cabra Garda Station. He says that these entries are made daily and signed by him.

Sergeant Tutty says that in September of 1997 after a conversation with Sergeant Michael Fearon he was aware of certain discrepancies and claims for subsistence allowances made by the applicant. He says that these claims were tours of duty at Aras an Uachtaram. He says that Sergeants Nugent, Fearon and himself discussed the matter and he and Sergeant Fearon later spoke to the applicant. He says that when it was put to the applicant that records showed that he was not on duty at Aras an Uachtarain on the dates for which he claimed subsistence allowance, he immediately said he was sorry for the mistake. It was stated that the applicant asked them what he should do and indicated that he wished to pay back any monies wrongfully claimed. It is stated that Sergeant Fearon told him that £12 in arrears would not be claimed for him. It is stated that the applicant indicated his agreement with this Sergeant Tutty says that he pointed out to the applicant the seriousness of making incorrect claims. He says that he later discussed the problem with Sergeants Nugent and Fearon. He says that they concluded that a mistake had occurred on the applicant's part and they agreed to deal with this at station level. The Sergeant then states that the state of knowledge when together with Sergeants Nugent and Fearon he met with the applicant was based on the number of irregular claims being small. He states that the applicant was still in training and he had to consider that although the form on which his claim is made is an easy one to follow, he was aware that the applicant had some difficulty in filling in other forms which he would have considered easy to follow. Sergeant Tutty points out that the investigation which occurred thereafter shows the applicant in a less favourable light than was perceived by him when meeting with him about his irregular claims in September of 1997. He states that if he was aware of those matters which subsequently came to light he believes that he would have taken a different approach to the applicant at that time.

Sergeant Michael Fearon has sworn an affidavit in which he states that he is a member of the Garda Siochana stationed at Cabra Garda Station. In his affidavit he indicates that in September 1997 while preparing the arrears of subsistence allowance he discovered a number of discrepancies in the applicant's claim. He confirms what is stated by Sergeant Tutty in relation to the discussion between himself and Sergeant Nugent and Sergeant Tutty. He says that they met with the applicant in November of 1997 and that he pointed out the errors. He says that the applicant agreed that the claim submitted by him was for part of the period January to April 1997 and was not correct. He states that the applicant apologised and said that it was a mistake and indicated that he would pay the excess monies back. Sergeant Fearon states that he pointed out to the applicant that he was in the process of claiming arrears of subsistence allowance and that he was entitled to £12 in arrears. He says that he advised him that this could not be claimed and the applicant agreed to this. Sergeant Fearon confirms that Sergeant Tutty pointed out to the applicant the seriousness of the matter. He states that Sergeant Tutty, Sergeant Nugent and he himself subsequently met to discuss the matter. While they agreed that part of the claim in respect of the period January to April 1997 seemed to be a mistake on the applicant's part and that the matter would therefore be dealt with at local level because the applicant had agreed that when submitting his next claim form he would make allowances for previously submitted incorrect claims, at this stage they were not aware of the subsequent apparently false claims that were made by the applicant. He says that had he been aware of these matters a different course of action would have been taken in dealing with the applicant in September of 1997.

Inspector Michael Feehan has also sworn an affidavit on behalf of the respondent. In his affidavit he deposes to the fact that on the 3rd of June 1998 as part of a Garda Siochana investigation into alleged fraudulent financial claims made by the applicant he met the applicant at Cabra Garda Station. He says that he was accompanied by Detective Inspector John Mulligan. He says that he informed the applicant that a criminal investigation was being conducted into subsistence claims which he had made. He cautioned the applicant advising him that he was not obliged to say anything unless he wished to do so but that anything he did say would be taken down in writing and may be used in evidence against him. He said the applicant indicated that the understood the caution and he informed him that he was not under arrest and that he could stop the interview at any time. The deponent says that he and Detective Inspector John Mulligan then conducted an interview with the applicant and this is exhibited before this court. The deponent says that during the course of his interview the applicant produced his Garda Siochana probationers diary. It is stated that the applicant did not seek the return of this diary at the interview in April of 1998. It is further stated that he did not seek the return of this diary thereafter and that the deponent is not aware of any request made by the applicant for the return of same thereafter.

On behalf of the applicant reliance is placed by counsel upon the decision of Mrs Justice McGuinness in the case of Duffy v. The Commissioner of An Garda Siochana (Unreported, High Court, 10 July 1998) and to the further case of McAuley v. The Commissioner of An Garda Siochdna [1996] 3 I.R. 208. In the former of these cases McGuinness J. accepted that there was a distinction between disciplinary proceedings under the 1989 Regulations and the power of the Commissioner to dispense with the services of a probationer on general grounds of unsuitability under Article 16 of the 1988 Regulations. In that case McGuinness J. held that the Commissioner in making a decision to dispense with the services of a probationer under Article 16 was bound by established standards of fair procedures and of natural and constitutional justice. In particular this will include an opportunity being given to the probationer of contradicting any specific allegations against him. By reference to the decision in McAuley's case it is submitted by counsel that the applicant must be told in clear terms that his services may be dispensed with. It is submitted that the applicant must be

1. given copies of statements;

2. allowed to test the veracity and challenge the evidence;

3. must be informed of the seriousness of the charges against him and

4. he must be informed in clear terms that his services might be dispensed with.

It is submitted that in the instant case the applicant should have been entitled to introduce evidence to mitigate the consequences. It is submitted that what was afforded to him was only a sham.

On behalf of the respondent, Mr Roderick O'Hanlon of counsel has referred to the accompanying documentation exhibited by the applicant in his grounding affidavit. On the basis of this material it is submitted that the applicant was given an adequate opportunity of addressing the terms of the notice sent to him, which was received on the 13th of November 1998 and which required a response by the 20th of November. It is submitted by reference to the evidence before the court that the applicant was aware of the nature of the allegations against him. It is further submitted that the notice of the 4th of November could not have borne any other meaning but that it was a reference to Regulation 16. A reading of the notice of the 4th of November indicates that it sets out in clear terms the nature of the allegations of commission/omission alleged against the applicant. The notice states, having referred to eighteen different items, that these are serious matters and the Commissioner states that he had to consider and decide whether the applicant was likely to become a efficient and well conducted member of An Garda Siochana. The notice then continues:-

"I have to make a decision in relation to these allegations in accordance with Regulation 16 of the Garda Siochana (Admissions and Appointments) Regulations, 1988 as amended. Before doing so I hereby give you an opportunity of advancing to me on or before the 20th day of November 1998, any submissions you wish to make concerning the allegations. To enable you to make a full response to the allegations contained herein, I am enclosing all documentation in relation to these allegations for your information."

The documentation included a series of reports and notes of the interviews with the applicant and the statements of members of the Garda Siochana including Sergeant Tutty, Sergeant Nugent, Sergeant Fearon, Sergeant Byrne and Detective Inspector John Mulligan and Inspector Michael Feehan. Further reliance is placed by counsel on behalf of the respondent upon the fact that there is no attempt to challenge the affidavit put in evidence on behalf of the respondent in this case. With regard to the legal issues it was accepted by counsel on behalf of the respondent that the principles of natural and constitutional justice apply. In this regard the principles outlined in the decision of McGuinness J. in Duffy's case are readily accepted by the respondent. It is stated that it is not necessary in a case such as this that a criminal offence be established. The applicant was put on notice in relation to the criminal investigation and it is submitted that this was an appropriate procedure in the case. It was further pointed out that no deferral of the time limit of the 20th of November was requested by or on behalf of the applicant. Had such a request been made the respondent would have to have had an obligation to consider same before making any decision.

Counsel further referred this court to the decision of Herbert J. in the case of Healy v. The Commissioner of An Garda Siochana (Unreported High Court, 7 November 2000) in which the learned High Court judge reviewed a number of decisions including the McAuley and the Duffy case previously referred to herein. The learned High Court judge indicated that these cases established that whenever circumstances arise in which it becomes necessary to investigate the conduct of a probationer garda and whenever the conduct raises issues which even if not amounting or likely to amount to misconduct as such, or are not deemed to be sufficiently serious as possibly to warrant the termination of his or her services, the probationer garda is entitled as a legal right and not as a matter of grace and favour to the following procedures and protections. He then indicates that the protections and procedures include the right to be given reasons for any investigation being carried out and an opportunity of making a full response. The probationer garda must be alerted to the gravity of the matter and if the possibility of dispensing with his or her services was being or was reasonably likely to be considered this should be indicated to him or her. He indicates that the information must be furnished to the probationer garda at the time of his or her first being interviewed or invited to make a statement or a report with a caution or otherwise whichever should first occur. The information must be furnished if not already given to the probationer garda before any report, statement or recommendation is completed or made by the officer conducting the investigation or by any other superior officer of the probationer garda in connection with the investigation. In all cases the information must be furnished before the matter is referred to the Commissioner of An Garda Sioch&na for the purposes of considering whether preliminary notice should be given to the probationer garda advising him or her that the Commissioner of An Garda Siochana was considering exercising the power of terminating the services of the probationer garda invested in the Commissioner by Regulation 16 of the 1988 Regulations.

It is clear that at the earliest interview a full picture may not have emerged, as clearly was the situation in the instant case and, therefore, the observations of Herbert J. must be seen in that particular light. At page 15 of his judgment Herbert J. indicates that the probationer garda must be given a reasonably adequate opportunity of making whatever response he or she considers appropriate including an opportunity of disputing or contradicting any specific allegations made against him or her. It is indicated that the garda must be given reasonable time within which to consider the matter, to seek advice from members of the legal profession, to obtain statements, to elicit facts in mitigation from persons who have already made statements, reports or recommendations and to prepare submissions regarding the evidence and additionally or alternatively regarding the appropriateness of the intended or contemplated decision terminating his or her services with An Garda Siochana. The learned High Court judge indicates that the probationer garda is entitled to seek an opportunity of challenging any evidence against him or her by cross-examination but in the majority of cases the Commissioner would be justified in not acceding to such a request.

Without restating the entire of the considerations annumbrated by Herbert J. in his judgment, I am satisfied in the instant case the applicant was given an adequate opportunity to address the matters notified to him. It has been submitted by counsel that the applicant was aware from the 3rd of June 1998 of all allegations against him. A meeting was held with him on the 2nd of October 1998. The applicant was aware that certain matters concerning him were under investigation and requested time to reply but did not avail of the opportunity of doing so. This occurred on the 2nd of October 1998 and is deposed to by Superintendent Killoran. Insofar as minutes went to the Commissioner these were on the basis that he should exercise his discretion but did not call for any particular conclusion. In particular there was no request for further time made by the applicant and furthermore no request was made for cross-examination of any witnesses. It is submitted accordingly that the procedure adopted was one which properly vindicated the applicant's rights. In reply to the submissions made on behalf of the respondent, counsel for the applicant points out that at this stage of the criminal investigation in June 1998 there was no intimation to the applicant that his employment as a garda was at risk and that his future was in jeopardy. Counsel relies on the fact that the applicant says that it was only at the end of November that his job was at risk.

Conclusions

In all of the circumstances of the case I believe that the evidence before this court clearly shows that the applicant was accorded the right to which he was entitled of a fair hearing and that in particular that he be given an opportunity of responding to the allegations made against him and, in particular, in circumstances where he was acquainted with the fact that the matter was the subject matter of consideration under Article 16 of the 1988 Regulations, he was invited to make a submission to the Commissioner in this regard. He in fact did reply, whatever about his appreciation of the risk that then pertained. I am satisfied in the terms of the notice of the 4th of November that he must have been clearly aware and should have been aware from its terms that he was at risk of having his services dispensed with at the end of the probationary period by the Commissioner of An Garda Siochana. In conclusion, I am satisfied that the applicant has failed to satisfy this court that he is entitled to the relief sought and accordingly I refuse this application.