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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Whelan v. Commissioner of An Garda Siochana [2001] IEHC 230 (21 December 2001)
URL: http://www.bailii.org/ie/cases/IEHC/2001/230.html
Cite as: [2001] IEHC 230
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1996 No. 189 JR
BETWEEN
APPLICANT
RESPONDENT
6 No. 188199 JR
APPLICANT
RESPONDENT
JUDGMENT of O'Sullivan J. delivered the 21st December 2001
The above two cases were heard together and it was agreed by Counsel that they can be dealt with effectively as one case and this judgment deals with both. In it references are to the case of Vincent Whelan (No. 189/JR of 1996) unless otherwise stated as it was his case which was primarily referred to in the proceedings before me.
By Order of Kelly J. of the 23rd May, 1996 the Applicant was given leave to apply for Orders: -
(a) Quashing a decision of the Respondent confining him to indoor duties in his capacity as a member of An Garda Siochana at Arklow Garda Station; and
(b) Requiring the Respondent to deal with complaints made by him in relation to perceived discrimination in so confining him.
Since the making of the Order of the 23rd May, 1996 the Applicant has been restored to full duties and accordingly, any application for the primary reliefs sought in these proceedings is moot.
However, on the hearing of the application by consent of Counsel I authorised the Applicants to seek alternative reliefs in exercise of my jurisdiction under Order 84 Rule 2 of the Rules of the Superior Courts. As a result the Applicants now seek:-
(a) A declaration that the Respondent has been guilty of unfair procedures and of acting contrary to natural justice in relation to the decision to transfer the Applicant (and to rescind same) referred to in the proceedings;
(b) A similar declaration in relation to the decision to confine the Applicant to indoor duties (and to rescind same) as referred to in the proceedings;
(c) A similar declaration in relation to the failure of the Respondent to deal with the Applicant's allegations of discrimination pursuant to an agreed code; and
(d) Orders in the nature of quia timet injunctions restraining the Respondent from confining the Applicant to indoor duties in the future or transferring him otherwise than by reference to reasons or circumstances which come into existence after the hearing of the proceedings.
Background
These applications are the third set of applications brought by these Applicants against this Respondent. All three sets of applications arise out of the same overall sequence of events and it is necessary that I summarise these.
The Applicants brought proceedings in 1993 arising out of their suspension from duties on reduced pay in the context of an investigation into a large number of criminal allegations made against them. The papers containing the result of the Garda investigations into these criminal charges had been referred to the Director of Public Prosecutions who directed that no prosecution should be instituted. The Applicants were restored to their duties and full pay, recouped all withheld pay, but told that they were to be transferred to different stations. At this point O'Hanlon J. was requested to decide on the costs issue arising in these Judicial Review proceedings. In his judgment delivered on the 22nd August, 1994 (page 2) he recalled that he was informed that the ".... basis given for this decision (not to prosecute) was the circumstance that there appeared to be insufficient corroboration of the charges made against the Applicants, and that the witnesses from whom statements had been taken did not appear to be reliable."
He also stated that the allegations if substantiated would have implicated both Applicants in very serious criminal offences such that it would have been inconceivable that they could have continued to remain in the force. Their suspension was appropriate and given the attitude of non co-operation (on legal advice) with the investigating officer, the delay of which the Applicants complained was not of such duration as to constitute a breach of their legal or constitutional rights. O'Hanlon J. refused the Applicants' claim for damages and added ".... and while they would normally be liable for the costs of the Respondent, having failed in their claim, I propose to grant them the further concession of making no order as to costs, and to allow each party to bear their own costs of the proceedings."
A second set of Judicial Review proceedings were brought by the Applicants challenging the said decision to transfer them from Arklow.
This decision was, apparently, based inter alia on continuing anxiety arising out of the complaints made against the Applicants. One of these complaints which had been taken into consideration by the Respondent in making the decision to transfer proved to be a forgery and on this basis the Respondent compromised the case with the Applicants and agreed to an order setting aside the proposed transfer. Accordingly, on the 2nd November, 1995 Carroll J. by consent ordered that the transfer Orders (made on the 19th and 20th May, 1994) be set aside and it was further ordered by consent that the Applicants recover their costs from the Respondent.
The position immediately after the making of this order was, therefore, that the Applicants were restored to full duties in their own area. However, on the 29th November they were informed that they were to be confined to indoor duties.
In the course of these proceedings Mr. Cross SC has informed me that this decision was made in light of continuing anxiety arising from the original complaints and some other later ones against the Applicants. He says it was an administrative decision and not, as claimed by Mr. Keane SC for the Applicants, a punishment or retaliation against the Applicants because they had "won " the second set of judicial review proceedings.
The complaints made in these proceedings relate to subsequent transfer Orders (made on 3rd May 1996); the Orders removing the Applicants from the beat (communicated to the Applicants 27 days after the consent order made in the second Judicial Review proceedings); the failure of the Respondents to deal with complaints made by the Applicants in relation to the foregoing and in addition the Applicants now seek restraining Orders as already described.
The Evidence
The Applicant refers to the earlier proceedings, the forged letter which produced what he described as the "capitulation" by the Respondent in the second set of proceedings, and the fact that he has not yet been able to see it. He perceives a consorted attempt to attack his good name underlying these events. He refers to the post settlement decision communicated to him on the 29th November, 1995 that he would not be allowed to perform the full range of duties as a member of the Garda Siochana and to the fact that he had been formerly carrying out that full range of duties for a period of approximately one year.
He says that he perceived this decision as "yet another covert (im)postion of penalty or censure following the failure of the attempt to wrongfully transfer me to another Garda Station...". He says there are more than sufficient guards to do the station duties and he concludes that the decision is a censure or punishment and an attempt to sully his character.
He then refers to his oral complaint made on the 30th November, 1995 to Sergeant Finn who he understands processed the complaint upwards. He refers to an agreed grievance procedure which he has invoked. He refers to meetings with senior Gardai in relation to his complaint and states that no communication was made to him in response to it. He says that the fact of his confinement to indoor duties and the perception of his position by his colleagues and peers and the natural impact it has on the public at large "has had an appalling effect upon myself and the members of my family." He also refers to some loss of earnings at £2,000 and to the fact that he and his wife have had to receive psychiatric counselling and support. He sees no end to the degree of harassment and discrimination against him.
He says that on the 4th April, 1996 he had met with Chief Superintendent Murphy at Arklow Garda Station who informed him that he was dealing with the complaint but that neither Superintendent Flynn nor himself Chief Superintendent Murphy could deal with the complaint and that he was therefore asked could he agree to proceed to "stage three" which meant that it was to be referred to an Assistant Commissioner for consideration. He agreed to this as did Garda Murphy. This was a brief meeting; the complaint would be sent to the Assistant Commissioner the next day but meanwhile he would be confined to the Garda Station in the interest of the service.
On the 3rd May he was informed by Superintendent Flynn that the Assistant Commissioner was not going to deal with the allegations and "that no rank beneath that of the Assistant Commissioner could deal with the issue ". He says he was also informed that a relevant Assistant Commissioner either would not or could not deal with the complaints "thus rendering defunct the entire grievance procedure, in that all relevant or competent members who could or might or should deal with the complaints or grievances were unprepared to so do." He says that the discrimination complained of would continue indefinitely, the grievance procedure agreed was of no use, no further remedy was available, and both himself and Garda Murphy would be confined to indoor duties "until the final outcome of the present situation " which effectively meant "indefinitely".
He also says in his Affidavit that at the said meeting (3rd May, 1996) he was given to understand that the exemption from being stationed within a twenty mile radius of his home or that of his in-laws was being revoked and he complains that he had no opportunity or reason to enable him to challenge it. This he says would inevitably lead to a transfer similar to the one which was by consent revoked at the conclusion of the second Judicial Review proceedings. All of this was a concerted attempt and the unilateral imposition of discriminatory measures and the denial of natural and constitutional justice because of the lack of procedures whereby he was not able to make an informed or reasoned submission in response to these decisions.
In a replying Affidavit filed on behalf of the Respondent, Superintendent Aidan Killoran emphasised that the Respondent was entitled to allocate members to various tasks and functions as he sees fit as part of his general direction and control of An Garda Siochana vested in him by Section 8 of the Police Forces Amalgamation Act, 1925. He acknowledged that the second set of proceedings were compromised inter alia because a letter relied on turned out to be a forgery. This was not the sole reason relied on by the Respondent to justify the transfer of the Applicant, but because it had formed part of the matters considered it was agreed to have the transfer order set aside.
He says that other matters which caused the Respondent considerable concern had been allegations of payments of money to the Applicant (and in the case of Garda Murphy allegations of payments of money to him and an allegation of sexual assault by him) and due to the wide spread public knowledge of the substance of the allegation against the Applicant and the considerable disquiet which had been expressed concerning the continued service of the Applicant in the Arklow Station, it had been decided to transfer him to Enniscorthy with effect from the 31st May, 1994. However, because the decision was based partly on a forged letter, the second set of Judicial Review proceedings were compromised as indicated. He acknowledges that after this compromise the Applicant was informed on the 28th November, 1995 that he would be detailed for indoor duties. He says that the Applicant was given a reason for this decision, namely, that it was taken in the interest of the service. He says that the Respondent has a duty to ensure public confidence in the Garda Siochana and in the case of the Applicant this was undermined arising out of the allegation which had been made against the Applicant. The substance of the allegation was known in the local community. The decision to confine him to indoor duties was taken as a necessary transfer. No explanation was given as to why the Commissioner had taken this course of action. He avers in this Affidavit that this decision made on the eve of the aforesaid inquiry led him to conclude that this was an attempt by the Respondent to show that "we were not being discriminated against by the Respondent when there was no change whatsoever in our circumstances."
No reply was furnished to this Affidavit but at the hearing before me Mr. Cross SC submitted that these were administrative decisions taken in the ordinary course of the administration of a large and complex force. There was no special significance to be attributed to the timing of this decision.
Mr. Keane SC submitted that timing was crucial not only arising from the overall sequence of events but in particular he complained that within a few short weeks of the Respondents settling the second set of Judicial Review proceedings (whereby transfer
It is clear, also of course, that there can be instances involving administrative decision making functions where the relevant authority is bound by the principles of procedural fairness and this may include giving reasons after the relevant decision has been challenged. (See for example, per Costello P. in McCormack -v- Garda Siochdna Complaints Board (1997) 2 IR; at p. 500, and Blaney J. in International Fishing Vessels Limited -v- Minister for Marine (1989) IR; at p. 155). The latter quotes from the judgment of O'Higgins CJ in O'Brien -v- Board Na Mona (1983) IR 255 at p. 282 to the following effect:-
"In a great number of instances, persons carrying out acts which are clearly in their essence administrative (and, particularly, in cases where such are in effect property rights) have under our law an obligation to act fairly and, in that sense, judicially in the carrying out of those acts and in the making of the decisions involved in them. They can and will be reviewed, restrained and corrected by the Courts if they act in a manner which is considered to be arbitrary, capricious, partial or manifestly unfair. In that sense it can be said that such persons carrying out administrative acts have an obligation to act judicially...".
However, it is also important to note that the Courts have recognised that the Commissioner of An Garda Siochana has a particularly onerous duty in carrying out his functions in the management and control of An Garda Siochana and in this context the Courts will lend great weight to an averment made on his behalf to the effect that a particular decision has been made for a particular reason. Nonetheless in an appropriate case - and each case depends on its own facts - the Courts will if necessary intervene.
The Agreed Complaints Procedure
In response to the complaints alleging discrimination made orally on the 4th April, 1996 the Assistant Commissioner, Personnel Section wrote to the Chief Superintendent in Wexford on the 1st May, 1996. Counsel are in disagreement as to what this letter means and accordingly, it is necessary that I set out the relevant paragraphs as follows:-
"The current restriction of the employment of both members concerned at Arklow Station has not arisen out of internal working relationships. It is an administrative decision which was considered necessary by the Commissioner to assuage genuine public concern regarding allegations against Gardai Murphy and Whelan, the detail of which both have been made fully aware. The measure was considered appropriate by the Commissioner to help to restore public confidence pending a final decision regarding the continued."
Mr. Keane SC submits that this letter means that no relevant senior officer of the Gardai is available to process the complaints of the Applicants pursuant to the grievance procedure. Mr. Cross SC submits that this letter is informing the Applicants that the procedure does not apply because the restriction "has not arisen out of internal working relationships". Rather it is an administrative decision taken in the interests of the Force for the reasons set out in the letter.
The inference appears to be that in the opinion of the writer of the letter a decision must arise out of internal working relationships before it can be made the subject of a complaint processed under the agreed grievance procedure. To see whether this is a correct interpretation, I must now set out the relevant portions of that procedure. The relevant document sets out in its introduction the following:-
"(1) The Employment Equality Act, 1977 makes it unlawful for a person who is an employer to discriminate against an employee or a prospective employee in relation to access to employment, conditions of employment, training or experience for or in relation to employment, promotion or re-grading in employment or classification of post in employment."
The document goes on at paragraph 3 to identify certain specific activities which will be taken to involve discrimination and these relate to decisions relating to a person's sex or marital status.
The document goes on at paragraph 4(2) to provide inter alia that:-
"Complainants have the right to pursue their grievance, in stages, to senior officer level."
It subsequently specifies that every effort will be made to finalise the grievance procedures as soon as possible.
The issue between the parties is as to whether this procedure covers or does not cover the complained of decisions, namely to restrict the Applicants from outdoor duties and to transfer them. In my opinion these decisions clearly relate to conditions of employment and I am unable to accept that there is anything in the document which provides that only decisions arising out of internal working relationships as distinct from an administrative decision taken in the interest of the Force can be made subject to this procedure. In my opinion the agreed grievance procedure did cover the complaints made by the Applicants and they were entitled to have these complaints dealt with under that procedure.
The decision to confine the Applicants to indoor duties.
This decision was communicated to the Applicants on the 29th November, Superintendent Aidan Killoran but this was not done. Furthermore, in view of my conclusion in relation to the availability of the complaints procedure to the Applicants, I consider that this procedure was the appropriate channel for them to process their complaints. The fact that this was denied them, may entitle them to a declaration that they were so denied but does not in my view entitle them to a declaration or a finding that the decision of the 29th November, 1995 itself involved a deprivation of fair procedures. I am not satisfied that the evidence establishes that it does.
The decision to transfer dated the 3rd May. 1996
Mr. Keane SC has described the denial that this decision was unreasonable contained in the Affidavit of Superintendent Aidan Killoran (at paragraph 15) as bland. Here he denies that the decision was unreasonable and avers that "full consideration was given to all issues, including hardship to the Applicant and to the original station to which the Applicant was to be transferred was selected having considered all the issues. The Applicant is quite wrong in asserting that the revocation of the code exemption constitutes another form of unwarranted discrimination or discrimination at all: all allegations that there were previous attempts to discriminate against the Applicant are without foundation."
Within three weeks of being informed of this further decision to transfer them, the Applicants applied to the High Court and were given liberty to bring the instant proceedings. The Applicants were informed that this decision was revoked (as was the decision to confine them to office duties) on the 4th July, 2000, that is on the eve of the inquiry to District Judge O' Buachalla. The application to review this decision was coupled with an application for a Mandamus directed against the Respondent ordering him to deal with their complaints. It seems to me that the latter was the core relief to which the Applicants are entitled. With regard to the decision to transfer (now revoked) in my view the Respondent was entitled to take into account the entire of the background to this case, including the original complaints which were the subject matter of the first set of Judicial Review proceedings, his perception (and it is the Respondent and no other who is charged with managing and controlling An Garda Siochana under Section 8 of the Police Forces Amalgamation Act, 1925) that public confidence in the Applicants had been damaged and it is a matter for the Respondent to judge if and when it becomes appropriate to impose restrictions on the Applicant and if and when to lift them. I am not satisfied on the evidence (there was no cross examination of either sides' Deponents) that the Applicant has made out a case for a declaration that this decision to transfer him was done in a way which involved a breach of fair procedures. Once again I emphasise that I come to this conclusion in consideration, inter alia, of my view that the complaints procedure was in fact available to the Applicants and it was through this channel that their complaint relating to their perception of discrimination and unfair treatment, should have been processed.
Claim for injunctions
It follows from the foregoing that the Applicants have not made out a case for an injunction which would be in a form of a quia timet injunction. It is well established law that the onus on an applicant seeking such an injunction is very high indeed and it is clear from the foregoing that the evidence adduced by the Applicants comes nowhere near meeting the threshold required for such relief.
In the circumstances there will be a declaration that the Applicants were entitled to have had their complaints dealt with under the agreed grievance procedure and that the Respondent's failure so to do constituted a breach of fair procedures.