High Court of Ireland Decisions

Tuohy v. Garda Commissioner [2002] IEHC 114 (13 December 2002)

THE HIGH COURT

JUDICIAL REVIEW

RECORD NO. 2001 245JR

BETWEEN

CORNELIUS TUOHY

APPLICANT

AND

THE COMMISSIONER OF AN GARDA SIOCHANA FRANCIS WARD, ASSISTANT COMMISSIONER RICHARD V. KELLY AND PAUL BROWNE BEING AN APPEAL BOARD APPOINTED UNDER REGULATION 20 OF THE GARDA SIOCHANA (DISCIPLINE) REGULATIONS, 1989

RESPONDENTS

Judgment of Ms. Justice Mella Carroll delivered the 13th day of December, 2002.

1.      The Applicant is an elected representative of the Garda Representative Association (GRA). He was the subject of disciplinary proceedings in May, 1999 under the provisions of the Garda Siochana (Discipline) Regulations, 1989 (SI 94 of 1989) (1989 Regulations).

2.      There were three charges. An investigating officer was appointed to investigate the alleged breaches of discipline. The Applicant was given notice. Following the report of the investigating officer, disciplinary proceedings were continued and a discipline form was served. The Applicant, having been asked on the form if he was admitting or denying the alleged breaches of discipline, failed to return the form within the period required by the Regulations. The Commissioner of An Garda Siochana, the first named Respondent (the Commissioner), appointed three members of the Garda Siochana to hold an inquiry. The first hearing set for 29^th February, 2000 was adjourned at the Applicant's request. The adjourned hearing took place on the 14^th August, 2000. The Applicant was represented by his Solicitor who submitted that the consent of the Minister for Justice Equality and Law Reform (the Minister) was necessary to maintain the disciplinary proceedings against the Applicant by virtue of a memorandum of understanding entered into between the Minister and the AGSI and GRA in 1987. The Solicitor also made another preliminary point non-material to this application. The Board of Inquiry ruled against the submissions.

3.      Having heard evidence the Board of Inquiry held that the first two breaches were established but not the third. The Board decided to fine the applicant £200 in respect of the first breach of discipline and to reprimand him in respect of the second breach of discipline.

4.      The Applicant appealed the decision to an Appeal Board appointed by the Commissioner consisting of the second, third and fourth named Respondents. The appeal was heard on 15^th June, 2001. The Applicant was represented by his Solicitor who repeated the two preliminary points made before the Board of Inquiry. The Appeal Board ruled against the Applicant. The Applicant's Solicitor submitted that the Board of Inquiry in imposing the penalties took into account matters informally dealt with which post-dated the matters the subject matter of the inquiry. The decision of the Appeal Board was to reduce the fine from £200 to £100 and to affirm the reprimand.

5.      The Chair of the Appeal Board, the second named Respondent swore an Affidavit on his behalf and on behalf of the third named Respondent and stated that by a majority decision they decided to reduce the fine and they decided to affirm the reprimand. He said they did not take into account the alleged breaches of discipline which post-dated the events which were the subject matter of the disciplinary proceedings. He was not cross-examined.

6.      The Applicant applied for and was granted leave to issue Judicial Review proceedings on the 4^th April, 2001 for the following relief namely an order of certiorari by way of application for judicial review quashing the decision of the second, third and fourth named Respondents sitting as the Appeal Board which decision was made the 15^th January, 2001 at Garda Headquarters, Phoenix Park, Dublin 8 finding the Applicant guilty of breaches of discipline and imposing a sanction on the grounds set out at paragraph E. These grounds are:

"(i) The Applicant is an elected representative of the Garda Representative Association and as such was entitled to the safeguard against arbitrary disciplinary action which was agreed in 1987 with the Minister for Justice that no disciplinary proceedings should be maintained against the Applicant without the consent of the Minister.

(ii) Disciplinary proceedings were brought against the Applicant without such consent having been obtained by the first named Respondent.

(iii) The second, third and fourth named Respondents hereinafter called the Appeal Board, therefore acted without jurisdiction and otherwise than in the accordance with the principles of natural and constitutional justice in hearing and determining the said disciplinary matters when a necessary precondition to any said hearing and determination was the consent of the Minister for Justice Equality and Law Reform.

(iv) The Appeal Board in imposing a penalty on the Applicant acted contrary to the principles of natural and constitutional justice by taking into account purported Regulation 7 breaches of discipline which were alleged to have taken place later in time than the matters which were before the Appeal Board."

7.      The Applicant relies on a Memorandum of Agreement drawn up in 1987 between the Minister for Justice and the RBISS and RBG now known as the AGSI (Association of Garda Sergeants and Inspectors) and GRA. In paragraph 1.4 it is stated "While the Memorandum is and is intended to be informal rather than legalistic in tone, both sides agreed that it may legitimately be referred to if necessary in any relevant discussions or negotiations that may take place in future in the sense that, if any action is taken or attitude adopted that reasonably appears to be in conflict with the Memorandum, the person who takes that action or attitude will prima facie be at fault."

8.      Paragraph 2.5 states "Because of the tradition in the Force as a disciplined organisation, the representative bodies have indicated that there is reason to believe that some members feel it would not be in the interest of their careers in the Force to offer themselves for election to positions in their representative body or, if elected, to pursue as vigorously as they ought matters affecting the welfare of the members with whom they may be concerned. The Garda Authorities have already made it clear that it is not their policy to discriminate in any way either in the context of promotion or otherwise against members as a consequence of a representative body activity. They recognise however, that, if there were any widespread feeling to the contrary, it not only would be misconceived but could in the long-term have the effect of especially discouraging from representative body activity the most able, dedicated and responsible members, a development that would be clearly contrary to the interests of both sides. The present opportunity is therefore taken to give in writing this categoric assurance that in carrying out his legitimate duties on behalf of a representative body a member does not run any risk whatsoever of discrimination in relation to his career in the Force. It will be understood of course that this does not mean that a member who devotes so much of his time to representative body work that he is unable to study for promotion exams, etc. may not, unavoidably, find himself in a position of some disadvantage. On the other hand, representative body work could provide valuable experience that would give an advantage to such a member if a candidate for promotion, other things being equal."

9.      Paragraph 2.6 states "A related point is the question of discipline. It has been accepted by both sides that it would not be possible to provide in statutory regulations that elected representatives should be immune from the Garda Disciplinary code: both sides are satisfied that there would be legal difficulties in the drafting of such a provision which in any event would be incompatible with the status of a representative as a member of the force. However it is recognised that if a member is to discharge effectively his duties as an elected representative he is liable at times to find it necessary, in the submission of arguments or in the conduct of negotiations or other discussions, to make his points with greater freedom of expression than might be considered appropriate in the context of official work as a member of a disciplined force. Accordingly, while the member must at all times be subject in the formal sense to the disciplinary code, it is agreed that provided he does not exceed what could reasonably be regarded as bone fide representative body duty or act in a way seriously incompatible with his duty as a member of the force, his work as a representative body spokesman will not make him liable to disciplinary action. Moreover so that members may have the reassurance provided by the requirement of a "second opinion", it is further agreed that no disciplinary proceedings shall be maintained (or, in circumstances of urgency, commenced) without the consent of the Minister."

10.      The word "except" or "save" appears to have been admitted from the phrase "in circumstances of urgency" but no point turns on this.

11.      The Applicant claims that since he is an elected representative of the GRA the plain meaning of the words is that no disciplinary proceedings of any kind could be maintained without the consent of the Minister. Since such consent was not obtained, the disciplinary proceedings were ultra vires and the Appeal Board had no jurisdiction to hear the appeal.

12.      The Respondents claim that the appeal was conducted in accordance with the 1989 Regulations. There is no provision in these regulations for the consent of the Minister to be obtained. The Memorandum of Agreement has no legal status and cannot be interpreted as having any impact on the statutory instrument. The statutory instrument sets out a procedure for investigating breaches of discipline. An appointing officer appoints an investigating officer (Reg. 8). When he reports the appointing officer shall decide without unavoidable delay whether or not to continue the proceedings under the Regulations (Reg. 10) and if so a discipline form should be served (Reg. 11). Where the alleged breaches are not admitted or the form is not returned within fourteen days the appointing officer forwards without unavoidable delay to the Commissioner all the documents. The Commissioner, unless he decides not to continue the proceedings, shall cause an inquiry to be held by either one or three members (Regs. 14 and 15). On completion of the inquiry a written report is forwarded to the Commissioner (Reg. 21) who then decides which of the disciplinary actions as specified in Regulation 21 (C) should be taken (Reg. 23). A member may apply to an Appeal Board set up under Regulation 25 for review of a decision of an inquiry or a decision of the Commissioner under Regulation 23 (Reg. 26).

13.      The Respondents submit firstly that the exercise of a discretionary statutory power may not be fettered by any legitimate expectation alleged to exist in favour of another (see Devitt –v- Minister for Education (1989) ILRM 639 at 651 and Dempsey –v- Minister for Justice (1994) 1 ILRM 402 at 405).

14.      Secondly, even if the memo did have any effect it only referred to disciplinary matters connected with representative duties. Thirdly even if the memo did have legal effect and even if it did refer to any disciplinary action, the Applicant is out of time. He should have moved for prohibition when an investigating officer was appointed or at the very latest when the Commissioner decided to cause an inquiry to be held. Instead the Applicant took part and was represented by a Solicitor in the inquiry. He then himself initiated an appeal and took part in that appeal. This delay has not been explained.

15.      In my view the provisions of the statutory instrument (SI 94 of 1989) cannot be affected by any prior Memo of Agreement. The Regulations are complete in themselves and cannot be amended except in accordance with statutory provisions. Therefore in my opinion the Memorandum of Understanding has no legal standing vis-à-vis the Regulations. The discretions given to the appointing officer and to the Commissioner to continue disciplinary proceedings and to hold an inquiry are unfettered discretions. (See Devitt -v- Minister for Education and Dempsey -v- Minster for Justice already cited.)

16.      Secondly I agree with the Respondent's interpretation of para. 2.6 of the memo. It says (subject to a proviso) that his work as a representative body spokesman will not make him liable to disciplinary action. This is followed by the assurance that no disciplinary proceedings shall be maintained without the consent of the Minister. In my opinion the disciplinary proceedings referred to is intended to relate to work as a representative body spokesman not disciplinary proceedings in general. The breaches of discipline alleged against the Applicant had nothing to do with his duties as an elected representative of the GRA.

17.      Thirdly, the Applicant is in any event out of time to bring this application.

18.      Ó Caoimh J. in a case involving the appointment of an investigating officer under Section 6 of the Garda Siochana (Complaints) Act, 1986 (Quigley –v- Garda Siochana Complaints Board and Commissioner of An Garda Siochana) unreported 9^th July, 2002 said at the conclusion of his judgment

"I only wish to add that any challenge to the appointment of an investigating officer should be taken when a matter first arises and the appropriate relief would be in the form of an order quashing the appointment or one restraining the investigation. I believe that the fact that an investigation has been allowed to proceed and based upon that investigation a Tribunal has been asked to investigate complaints referred to it, would be such that this Court may in its discretion refuse an Applicant the relief quashing the investigation on the basis of a failure to move promptly to seek the appropriate relief and in this regard the requirement of an Applicant to move promptly at the leave stage in Judicial Review proceedings as referred to in Order 84 Rule 21 of the Rules of the Superior Court should be borne in mind, insofar as an application for leave to apply for Judicial Review is required to be made promptly."

19.      The last ground put forward by the Applicant alleging that breaches of discipline alleged to have taken place later in time than matters which were agreed for the Appeal Board were taken into consideration has not been proved. There is in fact evidence to the contrary which is uncontradicted.

20.      Accordingly the relief sought is refused.