High Court of Ireland Decisions

Neutral Citation No: [2005] IEHC 158

THE HIGH COURT

DUBLIN

[2005] 367 JR

MR. JAMES FITZGERALD

Applicant

-V-

THE COMMISSIONER OF AN GARDA SIOCHANA

Respondent

APPROVED JUDGMENT DELIVERED BY MR. JUSTICE O'NEILL

ON WEDNESDAY, 11TH MAY 2005

THE PROCEEDINGS COMMENCED ON WEDNESDAY, 11TH MAY 2005

AS FOLLOWS:

MR. JUSTICE O'NEILL DELIVERED JUDGMENT AS FOLLOWS:

MR. JUSTICE O'NEILL:

This is an application to discharge an injunction restraining the transfer of the Applicant by the Respondent to Garda Headquarters in Dublin. By order of 11th April 2005, MacMenamin J., gave leave to the Applicant to apply for judicial review, and the following reliefs, stated in summary.

Firstly, declarations that the Respondent prejudged allegations made in a letter of 18th January of 2005, to be the subject of a disciplinary inquiry, in breach of the Applicant's rights to fair procedures.

Secondly, an order of prohibition in relation to that inquiry.

Thirdly, a declaration that the transfer of the Applicant from his post as District Officer in Nenagh to Garda Headquarters in

Dublin was a punishment in respect of the allegations in the letter of 18th January 2005 and a breach of the Applicant's constitutional right to fair procedures, and, ultra vires, the powers of the Respondent.

Fourthly, an injunction restraining the transfer of the Applicant to Garda Headquarters in Dublin.

Fifthly, a declaration that the appointment of Superintendent Kehoe as District Officer in Nenagh was, ultra vires, the powers of the Respondent and void.

Sixthly, an order of certiorari to quash the appointment of Superintendent Keogh. By his order of 11th April of 2005, MacMenamin J. gave leave to the Applicant to seek these reliefs and stayed the inquiry in question, and made an order restraining the Respondent from transferring the Applicant to Dublin.

The facts of this matter may be stated briefly as follows: On 15th March 2005, the Applicant was summoned to Dublin by an Assistant Commissioner for a meeting in Garda Headquarters that day at 5:00 o'clock. That meeting was attended by Assistant Commissioner Rice and Assistant Commissioner Smith, and the Applicant.

There is a considerable conflict as to what happened at that meeting, but it can be said, without any doubt, that at that meeting a letter dated 18th January 2005, an anonymous letter was presented to the Applicant. This letter contained allegations of the most serious kind against the Applicant, which if proved to be true, would undoubtedly have rendered him unfit to continue as a District Officer in Nenagh or indeed anywhere else. As I have said earlier, a dispute exists, on the affidavit, as to what exactly happened at that meeting, and it is not necessary for me to either consider or indeed resolve that dispute.

However, what is quite clear is that a response of one kind or another was demanded of the Applicant, and by a letter of 16th March 2005, a lengthy letter, the Applicant refuted the allegations against him and made it clear that he was not going to alter his position in the Garda Siochana.

Now after that letter the Applicant went on sick leave and he returned on 4th April 2005. He had a meeting that day with Chief Superintendent Murray and he was told then of his impending transfer and his replacement. An article appeared in the Nenagh Guardian announcing the appointment of Superintendent Kehoe as a replacement for the Applicant on 6th April 2005, and on 8th April 2005 Superintendent Kehoe took up duty as District Officer in Nenagh. Then on 11th April 2005, the Applicant made his application to this court for leave to apply for judicial review. The applicant remains on sick leave.

The affidavits contain a great deal of material concerning the substance of the allegations made. Suffice it to say that the Applicant vehemently denies the allegations made, and his solicitor has corresponded with all of the persons named in the anonymous letter and this correspondence has been promptly replied to by all of these persons, each of whom has denied being owed money by the Applicant and two have disassociated themselves from the anonymous letter.

In addition, the Applicant has exhibited letters of commendation from a wide variety of prominent persons in the Nenagh community, testifying to his good character and his extensive involvement in a variety of community activities in Nenagh.

In this application, I am not required to, nor could I resolve and make a determination on the merits or lack of merits of the allegations made against the Applicant. The appropriate approach by me to this application was that set out by Kelly J., in Fitzpatrick -V- The Commissioner of An Garda Siochana, judgment was delivered on 16th October 1996, in which he said the following on pages 8 and 9. He said the following:

"Two things are to be noted concerning the order that was made on 5th April 1996. The first is that although the Applicant was granted an injunction, no undertaking as to damages appears to have been given.

Secondly, and perhaps more importantly, the injunction granted restrained the respondent from repatriating the Applicant until the determination of these judicial review proceedings.

Normally injunctive relief granted on an ex parte application is of an interim nature and imposes upon a successful Applicant, an obligation to apply for an interlocutory injunction, on notice to the Respondent, within a short period of time. This did not occur in the present case.

On some occasions the court grants what amounts to an interlocutory injunction on an ex parte application, but builds into the order a proviso that the Respondent restrained, thereby is entitled to apply to discharge the order on giving notice to the Applicant. No such entitlement was built into the order in the present case, and indeed even if it had been, it would in effect reverse the onus of proof which the Applicant must normally discharge with a view to obtaining an injunction.

In any event on 24th June 1996, the Respondent issued a notice of motion seeking to vary the order of 5th April 1996, by deleting from it the injunctive relief. That motion came before the court on 1st July, 15th July, 22nd July, 29th July 1996, and on each occasion was adjourned. It finally came on for hearing on 7th and 8th October 1996.

Counsel for both parties agrees that notwithstanding the form of the notice of motion, it was appropriate that the application should be treated as one wherein the Applicant was seeking an interlocutory injunction and the hearing proceeded on that basis".

It is clear that leave having been granted, it follows that there are serious issues to be tried in this action, and no argument was addressed by either side to that issue, the outcome indeed being quite clear.

The real issue in this application centres on the balance of convenience and in whose favour it lies.

At the outset of a consideration of that issue, the court is initially confronted with a long standing approach by the court to decisions made by the Respondent, and its predecessors under, or by virtue of section 8 of the Police Management Act 1925, and in particular decisions to transfer members.

It is clear to me, and indeed, as was submitted by Mr. McGuinness SC, that the courts have afforded a very considerable deference to decisions of this kind by the Respondent, expressed to be made for the good management of An Garda Siochana. The cases of McElhinney -v- The Commissioner An Garda Siochana, judgment delivered 10th May 1995 and Fitzpatrick -v- The Commissioner of An Garda Siochana, judgment delivered 16th October 1996, and Whelan -V- The Commissioner of An Garda Siochana, judgment delivered 21st December 2001 are examples of this approach.

In my view, this case requires a consideration of the appropriate test to be applied before this court would interfere with a decision of this kind by the Respondent, so as to establish a clear threshold for intervention. Clearly, if the Applicant can demonstrate that a decision was made mala fides, i.e., from an improper motive, the Court should restrain it. It should be said, without going any further, that there is no evidence in this case of that kind of thing. Otherwise, in my view, this court should not intervene unless it is established that the impugned decision cannot, on any reasonable view, be said to be in the interests of the good management of the Force.

In this case the Respondent contends that the consequence of the allegations made is to damage the public confidence in Nenagh in the Gardaí, and that public confidence can only be preserved or restored by the removal of the Applicant from his post as District Officer.

Upon the initiation of the inquiry, a decision was taken not to suspend the Applicant, but instead to transfer him to Garda Headquarters in Dublin. This decision was taken by 4th April 2005 before the commencement of these judicial review proceedings.

It was further submitted on behalf of the Respondent, that if the Commissioner was not permitted to proceed with the transfer, damages could never be an adequate remedy for the loss of public confidence in the Force resulting from the continuance of the Applicant in his post, in the event that at the trial or after it, the allegations were found to be true.

Additionally, it was submitted for the Respondent that the judicial review proceedings themselves were an added factor that tended to damage public confidence in the Guards in Nenagh, because it was well known that the primary relief sought in these proceedings was an order prohibition the holding of an inquiry into these allegations.

It was further submitted, that if it was perceived that the Respondent could not effect a transfer of the Applicant, that would result in a public perception that the Respondent was not in a position to manage the Force in the best interests of the Force, which in turn would injure public confidence in the Force.

For the Applicant, it was submitted that his transfer would, in the first instance, cause him financial loss, such as a loss of allowances or expenses. Secondly, that it would cause an intolerable interruption of his family life. Thirdly, that it would irreparably injure his personal and professional reputation because his transfer would be seen by the public and his peers as a recognition that there was substance in the allegations made against him. Fourthly, that it would irreparably injure his future career prospects in An Garda Siochana, in that he would be taken from the division in which he had served for many years, and would have to start all over again elsewhere, and/or would be taken from operational duties where his entire career was spent and in which all his experience and expertise was accumulated.

Before embarking on the exercise of weighing these factors, it is worthwhile to consider the reliefs sought in these judicial review proceedings. The primary relief sought, if granted, would have the effect of halting the inquiry into the allegations made in the letter of 18th January 2005 permanently. The relief sought in relation to the transfer, if granted, could only have a temporary effect. It could not be contended that the Respondent, even if it is found that the current proposed transfer is void would be restrained from ever transferring the Applicant from Nenagh. These are important considerations which form the backdrop against which the above factors must be considered and weighed.

In my view, notwithstanding the fact that when the decision to transfer was made, the judicial review proceedings were not in existence and, therefore, cannot have been part of the material considered for the purpose of that decision, nevertheless, the consequences of these proceedings do now have to be taken into account in assessing the balance of convenience.

I am of the opinion that it could not be said that the view formed by the Respondent, as urged by Mr. McGuinness, to the effect that public knowledge of the fact that the relief claimed in the judicial review proceedings would halt any inquiry by the Respondent into these allegations would damage public confidence in An Garda Siochana, is as an opinion, not reasonably tenable.

A fortiori, if the Applicant were successful in winning that relief at the conclusion of the proceedings, it could well be said that from the point of view of the public confidence in the Gardaí in Nenagh, that would be the worst of all worlds.

In that situation, in my view, it could not seriously be contended, but that the good management of the Force required the removal of the Applicant from his post as District Officer in Nenagh.

I am quite satisfied that if the Respondent were to continue to be restrained from transferring the Applicant, now, damages could never be an adequate remedy to compensate for the damage to An Garda Siochana caused by the inevitable loss of public confidence, which that situation would produce.

I have no doubt that if the Applicant were to be successful in halting the inquiry permanently, his transfer from Nenagh would be an overwhelming imperative to preserve public confidence in the Garda Siochana in Nenagh, and even though the Applicant might succeed in having declared void the current transfer, as said earlier, the effect of that victory could only be temporary and could not negate the undoubted legal power of the Respondent to transfer the Applicant thereafter in the circumstances described.

I would also be of the opinion that having conducted discreet enquiries, which suggested to the Respondent that there was some substance in the allegations, it could not be said that the view formed by the Respondent to the effect that the continuance of the Applicant as District Officer in Nenagh was likely to damage public confidence in the Gardai, was not an opinion that was reasonably tenable.

I am also satisfied ultimately that if these allegations were to be inquired into and found to be true, damages could not be an adequate remedy to compensate for the public loss of confidence in the Gardaí, that would result from the Applicant's continuance as District Officer in Nenagh.

I now turn to consider the factors advanced by the Applicant as tilting the balance of convenience in his favour. Firstly, insofar as the Applicant would suffer any losses of income, allowances or expenses because of his transfer, these losses are easily quantifiable and can be compensated for in damages.

Secondly, although it may impose some hardship, it is an undoubted fact that the Respondent does have an undisputed right to transfer members of the Force. The proper and legitimate exercise of that right by him, inevitably, involves, moving families from one part of the State to another and, temporarily, the partial separation of the member transferred from his family. Being a member of the Force involves an acceptance of that fact. For that reason, in my view, the Applicant cannot complain or seek to put in the balance of convenience in his favour, the disruption in his family life which may result from his transfer. Thirdly, if ultimately in these proceedings the Applicant succeeds in demonstrating that his constitutional right to fair procedures has been breached, by reason of the matters of which he complains, it is well settled that he would be entitled to damages for any losses suffered. Indeed, if he demonstrates that any breaches of his constitutional rights were conscious and/or deliberate breaches, he could be or would be entitled to aggravated or exemplary damages. Injury to reputation, personal or professional, and injury to career prospects or loss of opportunity are matters which are regularly the subject matter of awards of damages in these courts. In my view, these apprehended injuries or losses are compensatable in damages.

For all of these reasons, I have come to the conclusion that the balance of convenience lies in favour of the Respondent, and accordingly, I will discharge the injunction restraining the Respondent from transferring the Applicant to Garda Headquarters in Dublin.

END OF JUDGMENT

Approved: O'Neill J.