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Cite as: [2002] IEHC 7

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Kelly v. Garda Siochana Complaints Board [2002] IEHC 7 (15th February, 2002)

THE HIGH COURT

2001/134JR

BETWEEN

ANTHONY KELLY

APPLICANT

AND

THE GARDA SIOCHANA COMPLAINTS BOARD

RESPONDENT

JUDGMENT of O’Sullivan J. delivered the 15th day of February, 2002.

INTRODUCTION

1. On the 9th of May, 2000 the applicant made a complaint to the respondent that members of the Garda Siochana had hassled him on the 8th of May. He refused to sign the complaint. However on the 28th of July he sent in further material relating to this complaint and this time signed it.

2. On the 9th of October, 2000 he was sent a letter from the Garda Siochana Complaints Board stating that the Deputy Chief Executive had considered the complaint and a report into the incident which gave rise to it and stating that he was of opinion that the complaint was not admissible because it was, in particular, vexatious. He was also advised that if he wished to appeal he should do so within a month.

3. His solicitor wrote back on the 10th of November, 2000 expressing gratitude that an appeal would be heard notwithstanding that the month had gone by and seeking clarification of the statutory basis for the appeal and also seeking copies of the statements and other papers which were before the Deputy Chief Executive when he arrived at his decision, citing that fair procedures require that the Plaintiff be entitled to these.

4. He received a reply dated the 11th of December, 2000 stating that there was no specific provision in the Garda Siochana (Complaints) Act, 1986 which deals with appeals of inadmissibility decisions but that it was the Board’s policy to provide for and hear such appeals. In his reply the material requested was denied because it was stated that the Board regarded all documentation gathered in the course of an investigation of a complaint as confidential to it.

5. The appeal was not proceeded with but on the 12th of March, 2001 leave was given (time having been extended) to the applicant to apply for Judicial Review of the decision of the respondent deeming his complaint inadmissible on a number of grounds. The Applicant’s solicitor swore an affidavit grounding the application in which the foregoing facts are set out and the appropriate documents exhibited. The respondent filed a replying affidavit of Bryan O’Brien, Deputy Chief Executive of the respondent in which, inter alia, he says that

“The decision which I reached was bona fide sustainable by the facts and not unreasonable. In reaching my decision, I considered the Applicant’s statements, and background report from the Garda Authorities which included comprehensive statements from the Gardai who were present on the night in question. In particular a number of witnesses gave accounts of the incident which differed marked(ly) from the account given by the complainant.”

THE SUBMISSIONS

6. Mr. Frank Callanan S.C. submits on behalf of the applicant as follows:-

(1) The Deputy Chief Executive’s opinion that the Applicant’s complaint was vexatious and therefore not admissible was clearly based on a conflict of evidence between the Applicant’s complaint and the statements of the Garda witnesses. The existence of such a conflict means that the complaint cannot be vexatious because the very purpose of the Act is to deal with complaints where it is predictable that there will in many cases be such a conflict.

(2) The Statutory Jurisdiction to dismiss a complaint as vexatious is conferred by Section 4(3)(a)(vi) of the 1986 Act. The previous five subparagraphs are all dealing with clearly defined and relatively nett circumstances: it would be out of keeping with this to construe the concept of vexatiousness broadly - rather, in this context, it must be narrowly construed and limited to complaints which are patently vexatious without room for controversy. They must, in other words, be clearly, without room for debate, instituted without sufficient grounds and for the purpose of causing trouble or annoyance to the Defendant (to adopt the Oxford English Dictionary definition accepted by Laffoy J. in Stanley v. Garda Siochana (2002: I.L.R.M.: 121)). Accordingly to construe “vexatious” widely enough to include a complaint where there is a conflict of evidence is to construe it too widely. Once there is a conflict the complaint cannot be vexatious;

(3) The scheme of the Act (which contemplates complaints which could lead to, possibly, criminal prosecution; breaches of discipline of a minor nature and complaints which may be frivolous or vexatious) indicates an intention to deal comprehensively with all complaints which shows, once again, that the proper construction of “vexatious” in subparagraph (vi) is the narrow one contended for;

(4) The three decisions on the Act (Flood, McCormack and Stanley) are all dealing with a stage in the complaints process which is later than the one in this case. No case deals with the initial opinion of the Deputy Chief Executive that a complaint is not admissible, and accordingly these cases are not on all fours with the present one and should not apply to it.

(5) The applicant is entitled to be given a reason for the decision which he was not. He was merely told that his complaint was inadmissible because it was vexatious. He was denied access to the material before the Respondents and was not even given a description of this information (which is given at paragraph 7 of the replying affidavit - cited above) or informed that these statements conflicted with his own complaint. Accordingly the applicant did not have the information which would enable him to exercise a meaningful right of appeal.

7. In his submissions before me Mr. Callanan accepted that the principles of procedural justice did not apply to the formation of the opinion in this case that the Applicant’s complaint is not admissible. It is not, therefore, necessary for me to refer to the several explicit passages in the Irish authorities on this Act establishing this proposition.

8. Mr. Shane Murphy S.C. for the respondent submitted as follows:

9. The Applicant’s case boiled down to two propositions namely

The decision was irrational in the Wednesbury sense and therefore ultra vires; and
The applicant was entitled to reasons in the absence of which the decision should be quashed.

10. Mr. Murphy submitted :-

(1) That the rights enjoyed by the applicant were set out by Kelly J. in Flood .v. Garda Siochana Complaints Board [1997] 3 IR 321 as follows:

The right to make a complaint;
The right to have its admissibility determined in accordance with the Act;
The right to have it investigated if admissible and not informally resolved;
The right to have the report of the investigation considered by the respondent in accordance with s. 7 of the Act.

11. In the present case only the first two were relevant and each of them had been granted.

(2) The central assertion made against the decision is that it is irrational to hold vexatious a complaint merely because there are statements to the contrary in an Act designed to deal with complaints some of which will inevitably be controversial.

12. Mr. Murphy S.C. submits to the contrary. He submits that there is no logic in the proposition that just because a complaint is countered by an opposing statement it cannot be vexatious. If the essence of vexatiousness is the making of a complaint without sufficient grounds for the purpose of annoying or causing trouble to the respondent then the making of such a complaint is or is not vexatious on its own merits, so to speak, regardless of whether there is any statement to the contrary. The submission that a complaint must be non-vexatious if opposed means that the Deputy Chief Executive must exclude from his mind a consideration which he is obliged to take into account in the event that the complaint is met with opposing statements.

13. The evidence in the present case is simply that there were such opposing statements and the Deputy Chief Executive formed the opinion that the complaint was vexatious.

14. The test of irrationality in the Wednesbury sense was adopted and reiterated in O’Keeffe v. An Bord Pleanála [1993] 1 IR 39) which made it clear that if there is any material upon the basis of which the deciding authority could come to the conclusion actually reached then the courts will not interfere on the grounds of alleged irrationality, notwithstanding the fact that the Court might itself have come to a different conclusion. There is no evidence as to what material was before the Deputy Chief Executive and it is not a ground for asserting irrationality, without more, merely to state that because there were opposing statements the complaint cannot have been vexatious within the statutory subparagraph. This is a case, on this point, on all fours with the decision of Laffoy J. In Stanley v. Garda Siochana Complaints Board (2002: I.L.R.M.:121) where the Court concluded (page 130)

“There is simply no evidence before the Court from which one could conclude that the opinion formed by the respondent was at variance with reason and common sense”.

With regard to the argument that no reasons were given, this is not in fact the case. The applicant was told that his complaint was inadmissible because it was vexatious. This was a sufficient reason for him to decide whether or not to appeal and contest the proposition on appeal that his complaint was in fact vexatious. He could have done this, but did not do so.

(4) Furthermore as a matter of discretion the Court should refuse the applicant relief because the granting of relief would not redress any wrong done to him which it would be appropriate to redress in this way. The reality is that the applicant did not like the decision that his complaint was inadmissible because vexatious.

CONCLUSIONS

15. The central point made by the applicant is that the decision that his complaint was vexatious was irrational. The main argument supporting this submission is that once a complaint is opposed by counter statements then it cannot be vexatious. I fail to see this. If a complaint is vexatious then it remains vexatious whether there is an opposing statement or not. The Act in my view casts upon the Deputy Chief Executive an obligation, upon receipt of a complaint, to consider whether it is admissible and this includes considering whether it is or is not vexatious. It is the Deputy Chief Executive and no one else who has to form the relevant opinion. It is accepted by the applicant, correctly in my view, that procedural principles do not apply to the formation of this opinion. I do not think that there is evidence that the opinion reached is irrational in the Wednesbury sense nor do I accept the proposition that just because there are statements to the contrary, the complaint cannot be vexatious within the meaning of the relevant subparagraph.

16. With regard to the submission that the applicant was entitled to reasons for the impugned decision, in the first place my view is that the applicant was given a reason for the decision and that the reason was sufficient for him to exercise the non statutory appeal procedure available. Secondly, in the context of making of an application for Judicial Review he has been able, in light of the reason given, to articulate his challenge to the validity of the decision with commendable clarity through his Senior Counsel. Thirdly, I see no difference in principle between the decision under attack in the present case and the decisions under attack in Flood and McCormack in each of which cases it was held by the High Court that the applicant was not entitled to reasons. If, contrary to my view, no reasons or no adequate reasons were in fact given, I would follow these decisions and hold that there was no entitlement to them.

17. Finally, I see no reason to construe sub-paragraph (vi) in the narrow manner contended for by the applicant as this would mean that all contested complaints cannot be inadmissible regardless of whether they are vexatious or not and I do not think that this is the correct interpretation of the Act.

18. In the circumstances, the Applicant’s case will be dismissed.