Lennon v. Commissioner of An Garda Siochana & Ors [2003] IEHC 127 (2 May 2003)
RECORD NUMBER 2002/16026P
BETWEEN
PLAINTIFF
DEFENDANTS
JUDGMENT of Mr. Justice de Valera delivered the 2nd day of May, 2003.
This is an action, commenced by Plenary Summons, in which the Plaintiff seeks:
1. A Declaration that the Defendants and each of them are in breach of contract in refusing to accede to the Plaintiff's request for funding on an on-going basis or on a week by week basis, for the Plaintiff's legal representatives at hearing before Mr. Justice Frederick Morris as Chairman of a Tribunal of Inquiry into complaints concerning some gardaí in the Donegal Division (the Morris Tribunal).
2. A Declaration that the Defendants and each of them are in breach of the Plaintiff's constitutional rights in refusing to provide from funding as referred to at paragraph 1 above.
3. A Mandatory Injunction directed to the Defendants and each of them to provide for such funding for the Plaintiff.
4. Damages for breach of contract.
5. Damages for breach of constitutional rights.
6. Further and other relief.
Certain facts were agreed for the hearing of this action.
1. Kevin Lennon is a serving Superintendent for An Garda Síochána, and was suspended on the 1st day of August, 2002 on 90% salary. Kevin Lennon is currently challenging the legality of that suspension.
2. Apart from the regulations governing his chance of employment, there is no written contract of employment.
3. The Morris Tribunal was set up by Order of the Minister for Justice on the 24th day of April, 2002.
4. The terms of reference of the Morris Tribunal are agreed.
5. On the 10th day of July, 2002, by letter, the Commissioner of An Garda Síochána informed the Plaintiff that the Commissioner of An Garda Síochána would be seeking representation for An Garda Síochána before the said tribunal, but would not be seeking representation for the Plaintiff.
6. The Chairman of the Morris Tribunal sat on the 15th day of July, 2002 to hear applications from persons wishing to be represented before the Tribunal. The Plaintiff applied for representation and was granted a full general representation.
7. The Commissioner of An Garda Síochána has been granted representation before the said tribunal, firstly on his own behalf and secondly on behalf on An Garda Síochána and thirdly on behalf of individual members of the Force.
8. A legal team consisting of solicitor and counsel is representing the Commissioner in his own right and on behalf of An Garda Síochána and on behalf of individual members of the Force before the said tribunal, and the said legal team is being paid or funded on a weekly or monthly basis. That legal team is in constant attendance at the said tribunal.
9. The Commissioner has at the request of the tribunal identified to the tribunal those members of the Force for whom he is providing representation.
10. The Chairman of the tribunal has stated that he is not empowered to grant funding on a week by week or month by month basis, and that any costs will be awarded at the end of the tribunal. The awarding of these costs will be at the discretion of the Chairman of the tribunal. In those circumstances such costs would have to be taxed in default of agreement.
11. The reputation and good name of the Plaintiff could be in jeopardy before the said tribunal. It is the Plaintiff's contention that when he joined An Garda Síochána it was understood and agreed between the Plaintiff and the Defendants that if circumstances arose whereby the Plaintiff would have his good name or reputation put at risk or damage before a tribunal such as the Morris Tribunal, that the Plaintiff would be treated equally with all other members of An Garda Síochána.
In the context of this action this means that the Defendants and in particular the Commissioner would afford to the Plaintiff equal treatment to that afforded to all other garda officers of the same rank (as Superintendent) appearing before the tribunal.
Evidence was given by Assistant Commissioner Murphy that the Commissioner of An Garda Síochána was to be represented by a solicitor and counsel before the Morris Tribunal inquiring into complaints concerning some gardaí in Donegal.
The Commissioner of An Garda Síochána sought from the tribunal, representation for himself and An Garda Síochána following correspondence between the tribunal and the Commissioner, individual members of An Garda Síochána were named for the purpose of this representation.
Certain Superintendents are represented by the Commissioner who declined to nominate the Plaintiff, Superintendent Lennon, among others, for representation.
It transpired, in evidence, that the Commissioner in deciding to whom (among Superintendents of An Garda Síochána) to give representation applied certain criteria. Any Superintendent to whom any of these conditions applied would not be granted representation.
These criteria were:
1. Members currently under suspension arising out of the matters, the subject of the tribunal's terms of reference.
2. Members who are the subject of a garda investigation whether internal or criminal.
3. Members who have refused to co-operate with internal investigations arising out of matters, the subject of the tribunal's terms of reference.
The Plaintiff, Superintendent Lennon, is at present under suspension.
Evidence was also given by Assistant Commissioner Murphy that the Commissioner acknowledged that he was obliged to treat all members of An Garda Síochána equally, within the law, that it was the policy of the Commissioner to treat every member of the Garda Síochána equally and that in the instant matter the Plaintiff had been treated equally.
However, it was also asserted that the Commissioner was entitled to distinguish between members of the same rank, as to who should and more particularly, who should not be granted representation before the tribunal and that such a decision did not constitute unequal treatment.
As the issue of equality of treatment has been conceded by the Commissioner I need not consider that part of the Plaintiff's claim which seeks a declaration that a clause dealing with equality of treatment be implied in this contract. I would like to point out, however, that no satisfactory evidence has been adduced concerning the agreement or the terms thereof concerning the Plaintiff's employment or service by the Defendants despite the references in both the Statement of Claim and Defence.
Assistant Commissioner Murphy, in evidence on behalf of the Defendants, has agreed that it is the Commissioner's view that all members of An Garda Síochána should be treated equally, therefore the only matter to be decided is whether or not Superintendent Lennon has in fact been treated equally in the circumstances.
The case law relied upon by both Plaintiff and Defendants' Counsel refers only to the question of importing terms into the agreement between the Plaintiff and the Defendants. In the light of Assistant Commissioner Murphy's evidence, this no longer applies and no case law has been opened to the Court on what actually constitutes equality of treatment in the circumstances of this action.
It appears to me that the Commissioner's approach to this matter is a reasonable one, it would be, at least, impracticable for the Commissioner to provide a single representation to persons appearing before the tribunal, in this case Superintendents of An Garda Síochána, whose proposed evidence to the tribunal would give rise to, inter alia, a conflict of interest or breach of confidentiality and it is possible to foresee circumstances which might lead to the Commissioner's legal team declining to represent one or more of the garda members now been represented for such reasons in the future.
It would equally be impossible or at least highly impractical for the Commissioner to provide representation (or funds for such representation) separately for each member of An Garda Síochána appearing before the tribunal and there is no evidence to show that such funding of representation is the entitlement of any member either by right or by custom.
Equality in this context means equality of consideration but the Commissioner must be in a position to properly and effectively manage and control his Force (subject to law).
It appears to me that he is entitled to examine the position of members under his direction and control and make regulations for the discipline and management of the Force and if he, with suitable investigation and consideration, comes properly to a conclusion that certain members must at such a stage be treated differently to other members in a similar position as a result of such investigations and consideration this does not constitute unequal treatment.
There has been no suggestion that there was anything improper in the manner in which the Commissioner decided upon and drew up his criteria for inclusion in the representation being provided by him and this consideration and the criteria were applied equally to all Superintendents in the same position as the Plaintiff.
In these circumstances the Plaintiff's action must fail and he is not entitled to any of the reliefs sought by him.