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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Noonan -v- Commissioner of an Garda Siochana [2007] IEHC 355 (17 July 2007)
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Cite as: [2007] IEHC 355
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Judgment Title: Noonan -v- Commissioner of an Garda Siochana Composition of Court: McKechnie J. Judgment by: McKechnie J. Status of Judgment: Approved |
Neutral Citation number [2007] IEHC 355 THE HIGH COURT [2005 No. 136 J.R.]
THOMAS NOONAN APPLICANT AND THE COMMISSIONER OF AN GARDA SÍOCHÁNA RESPONDENT
1. By order of this Court dated the 14th day February, 2005, the applicant in the above entitled proceedings was granted leave to apply by way of an application for judicial review for the reliefs specified at paragraphs D1, D2 and D3 of the statement grounding the application and was so, on the grounds set forth at paragraph E 1 to 5 thereof. There were two affidavits sworn in support of the application. One by the applicant himself and the second by his solicitor Mr. Dan Murphy of Daniel Murphy & Company. In support of the statement of opposition the principal replying affidavit was sworn by Chief Superintendent William Fennell. All parties made written submissions and supplemented these by way of verbal presentation. There was no oral evidence and the case was thus determined on affidavit evidence only. 2. In essence Garda Noonan seeks an order of certiorari quashing the decision of and recommendation of the Garda Síochána Disciplinary Inquiry made on the 16th July, 2004 and secondly a similar order with regard to the decision of the Commissioner, dated the 3rd August, 2004, to accept that recommendation and to insist upon the resignation of the applicant from An Garda Síochána or otherwise face dismissal in lieu thereof. 3. There is in existence another set of judicial review proceedings between Garda Noonan and the Commissioner. Those proceedings, under record number 2004 No. 1116 J.R have been the subject matter of a separate judgment which has already been given by this Court. 4. Garda Noonan, who is a married man with one child, joined An Garda Síochána in 1975 and has been stationed in Listowel, Co. Kerry since in or about 1980. With the rank of garda he continued in active service with the force until the 17th May, 2001, when he went absent on sick leave. The reasons advanced by him for so doing relate to the injuries which he suffered, in a road traffic accident in January, 1999 when his patrol car was rammed by a lorry. His physical injuries, namely to his back and neck, were later exacerbated by anxiety and depression. He has been treated by many doctors in respect thereof. Many of these, have recommended his participation in physical exercise so as to aid his recovery. To that end he is a registered course designer with the Show Jumping Association of Ireland, and as part of organising and planning the design of such courses, he occasionally involves himself in physical work. This has been ongoing for a number of years but the expected recovery has not as yet taken place. As a result he has never returned to duty and presently stands suspended as part of disciplinary proceedings instituted against him. It is those proceedings which are the subject matter of both sets of judicial review actions. 5. The disciplinary proceedings last mentioned, were instituted under the Garda Síochána (Discipline) Regulations 1989, SI 94/1989 (“The Regulations of 1989”). The following of these regulations are relevant to the issues raised in this case.
Regulation 15:
(2)… (3) “The date of the inquiry may be altered by the presiding officer but shall not be so altered unless the member concerned is notified of the alteration and shall not be altered so as to abridge the period of notice mentioned in paragraph (2) unless the member concerned agrees. (4)…
(b) … (c) If the inquiry is held by three members, may, in relation to the member concerned –
23(1) As soon as practicable after the receipt by him of a recommendation under clause (ii) of Regulation 20(1)(c), the Commissioner shall decide which of the disciplinary actions specified in the said regulation 20(1)(c) should be taken in the matter.
7. After the service of these documents the following events then took place.
11th August, 2003: Prior to this date an application was made on behalf of Garda Noonan to have the inquiry adjourned on the basis that he was medically unfit. This was granted and a new date of 21st October, 2003 was substituted. 21st October, 2003: By this stage Mr. Charles O’Connor, a solicitor from Millstreet, Co. Cork had been retained by the applicant. On 2nd October, an adjournment was sought on the basis of the solicitors prior commitments. This was granted and matters adjourned to 2nd December, 2003. 26th November, 2003: On this date the applicant sent a fax to the Superintendent at Listowel Garda Station which was forwarded to the presiding officer of the inquiry namely Chief Superintendent Fennell. In that fax Garda Noonan sought a further adjournment. He claimed that Mr. O’Connor had a conflict of interest and could not longer act for him. His new solicitor, Mr. Tom Murphy, would not be available. Secondly a witness, said to be vital to Garda Noonan’s case, was on sick leave. Thirdly, a substantial period of time was required in order to prepare for his defence and he also took objection to the manner in which certain documents had been served on him. Reference was made to a medical report from Dr. Billy O’Connor of Listowel.
19th January, 2004: On this date Mr. Charles O’Connor again appeared on behalf of the applicant. Once more an application was made for an adjournment. Dr. Matt Kinch a consultant psychiatrist gave medical evidence. The matter was once more adjourned, this time to 23rd March, 2004. 23rd March, 2004: On 18th March, Dr. Kinch wrote to the presiding officer and offered as his professional opinion the view that Garda Noonan was medically unfit to attend the hearing scheduled for 23rd March. This unfitness would continue for a ôfurther six/eight weeksö. He ended the letter by stating that he, Dr. Kinch, had ôinstructed him not to attend the re-hearing on Tuesday 23rd Marchö. A further adjournment was granted until 25th May, 2004. 25th May, 2004: On 18th May, Dr. Kinch once again writes to the presiding officer. He continues to maintain that the applicant is psychiatrically unfit to attend the inquiry. As a result he has instructed him not to appear on 25th May. Because of this, the inquiry was adjourned to 6th July, 2004. June – 5th July, 2004: On 18th June, 29th June and on 5th July, 2004, Garda Noonan writes to the Chief Superintendent, with Dr. Kinch also sending a letter on 18th May, 2004. Although the applicant’s letters are marked ôwithout prejudiceö, I have assumed that since these have been exhibited in his affidavit any consequences from this marking have been waived. From these letters it would appear that between 25th May and 6th July, the applicant had difficulty in contacting a solicitor. Indeed those with whom he consulted would now, according to his letters, be required as witnesses for the various reasons therein set forth. Ultimately he was referred to Mr. Daniel Murphy from Cork. Mr. Murphy could not meet the 6th July, deadline but would be in a position to represent him in September. Garda Noonan, supported by Dr. Kinch, alleges that he continues to be medically unfit, that he would not attend the inquiry and would not be represented at it. 6th July, 2004: The inquiry refuses the applicant’s request for any further adjournment and proceeds with its investigation notwithstanding his absence. It continued on 7th, 8th and 9th of July, and on 13th, 14th and 16th. 16th July, 2004: The inquiry found the applicant guilty of the breaches of discipline alleged at Nos. 1 – 6, 13 -21 and 25 - 51 on Form B30, dated the 13th February, 2003 (reference KE. 27. 1/01) and guilty of the breach of discipline alleged at No. 1 on Form B30 dated the 13th March, 2003 (reference KE. 27. 1/02). On the remaining allegations contained, in both discipline forms, the member concerned was found not guilty. The inquiry made a recommendation to the Commissioner under Regulation 21(c)(ii) with regard to its findings on the first mentioned discipline form, and on the single count in the second, he was fined Ç1,500. 3rd August, 2004: By letter of that date the Commissioner accepted the decision and recommendation of the inquiry and relative to sanction requested the applicant to resign from the force by the 24th August, 2004, failing which he would stand dismissed as and from midnight of that date. 12th August, 2004: The applicant applies to have this decision reviewed by an Appeal Board, under Regulation 26 of the 1989 Regulations. 15th December, 2004: The review, which is due to commence on this date, is adjourned to 16th February, 2005. 14th February, 2005: Some days prior to the commencement of the review the applicant moves this Court and obtains leave to institute the within proceedings. That order places a stay on the further determination of the appeal until this case is concluded. 9. There are three Regulations which have potential relevance to this particular issue. Under Regulation 15(3) the presiding officer has power to alter the date of the inquiry but not such as to abridge the right of the member concerned to at least twenty one days notice of its commencement. That officer is also given a similar power under Regulation 18(g) when the member concerned is absent, or when a witness is unavailable or “for any other reason”. It is not altogether clear as to how the later provision supplements the earlier one. Perhaps Regulation 15(3) was intended to apply either before the original specified date was ever reached or alternatively before the inquiry had in fact ever sat; whereas Regulation 18(g) would apply after the commencement of the inquiry. Whichever, it is clear that the powers given to the presiding officer are not powers, the exercise of which is reserved to the inquiry itself. Regulation 34, which is headed “Absence of member concerned”, is also relevant in that an inquiry may proceed, if it is reasonable to do so, even if a Regulation cannot be complied with due to the absence of the garda in question. In view of the particular circumstances of the instant case it is not necessary to decide on the precise interrelationship between Regulation 15(3), Regulation 18(g) and Regulation 34. This, for two reasons. Firstly I am satisfied that the inquiry did in fact properly consider and adjudicate upon the adjournment request on 6th July, and secondly because in any event, the requirements of natural justice and fair procedures dictate that any such inquiry must at all stages act reasonably according to the circumstances. 10. This particular issue was touched upon in Lohan v. Commissioner of An Garda Síochána (Unreported, High Court, McCracken J, 13th May, 1998). At p. 8 of the judgment, McCracken J. when dealing with the appropriate principles said:-
11. The case of Lawlor v. District Judge Hogan [1993] I.L.R.M. 606 is also of interest where Murphy J. at p. 610 of his judgment stated:-
(2) The right of an accused to be present and to follow the proceedings against him is a fundamental constitutional right of the accused which every court must be bound to protect and vindicate. (3) If a trial judge is satisfied that the accused has consciously decided to absent himself from the trial (at a time when his presence is not essential to enable some particular procedure to be complied with) then the trial judge is entitled in his discretion to proceed with the trial in the absence of the accused.
12. To succeed on this first issue the applicant must satisfy this Court that the decision taken on 6th July, 2004 was in breach of the Regulations and/or was so unreasonable that no rational inquiry could have reached such a decision. The first complaint in this regard is that the documentation sent to the presiding officer in support of Garda Noonan’s application for an adjournment, was not circulated to his fellow inquiry members. Accordingly as this material was not known to two members they could not have considered it as a team and consequently it could not be said that the decision to refuse the adjournment and proceed with the hearing was taken by the inquiry itself. In support of this argument it is pointed out that the transcript of 6th July, 2004, does not contain any reference to this documentation or to a decision of the inquiry having been taken thereon. Disregarding the point as to whether or not the presiding officer could have reached this decision on his own, the following would appear to emerge from the overall evidence. The applicant is correct in indicating that the transcript of 6th July is silent on these material points. However in paras. 11 and 12 of his affidavit sworn on 4th May, 2005, Chief Superintendent Fennell (the presiding officer) swears that each letter and document received from the applicant, including his letters dated 18th June, 29th June and 5th July, 2004, as well as Dr. Kinch’s report of 18th May, (see p. 7 supra) were all circulated by him to the other members of the inquiry and this was done prior to making the decision to proceed in the absence of the applicant. Moreover he avers that the inquiry team discussed the issue of Garda Noonan’s non attendance and whether the matter should proceed in his absence. This again was done prior to the commencement of the hearing. This evidence stands substantially unchallenged. In addition at p. 13 of the transcript dated 16th July, 2004, the presiding officer is recorded as stating:-
13. In addition it should be said that the affidavits do not give a comprehensive picture of the background as it was known to the inquiry team on 6th July, 2004. That team had been in place since 11th August, 2003. They had sat on 2nd December, 2003 and on 19th January, 2004 and on both occasions heard evidence not only from doctors called on behalf of the applicant but also from Superintendent O’Brien on behalf of the presiding officer. On any reading of the transcripts of these hearings, it is quite clear that there was a substantial body of evidence introduced which could legitimately have cast serious doubts on the claim of the applicant that he was medically unfit to attend at the inquiry on either of those dates. For example Dr. O’Connor, who gave evidence in December, and who had been treating Garda Noonan for several years, only first noticed the question of depression or anxiety some short few days prior to 2nd December. In his view it was critical to get a consultant to assess Garda Noonan. The consultant, or at least one of them, was a neurosurgeon in Dublin whose only possible comment relative to depression was that he noted “quite expressionless features” of the applicant. On 19th January, 2004, Dr. Kinch who had seen him for the first time only on 3rd December, said he was hopeful that the applicant would be fit within a number of months. His evidence was tested in cross examination and whilst the ultimate decision favoured a further adjournment, it could not be said that there was no countervailing evidence against that decision. On 6th July, Sergeant Barry gave evidence that he had spoken with the member concerned on 2nd July and on 5th July, and had informed him that the inquiry would not be adjourned and that whatever submissions he wanted to make would have to make at the inquiry. In response, Garda Noonan indicated that he would not be in attendance and would not be represented. Indeed that was the situation. Neither the applicant nor any person on his behalf, whether lawyer or doctor attended at the inquiry on 6th July or on any date thereafter. Accordingly I am entirely satisfied, from a careful consideration of the entire documentation, that the decision of the inquiry to proceed on 6th July could not be said to be irrational or otherwise unreasonable. I am firmly of the view that there was sufficient material before it which would justify it in reaching a lawful decision to proceed with the inquiry. 14. The second issue is grounded upon an allegation that under Regulation 18(g) the member concerned should have been notified at the end of each day’s hearing of the inquiry’s intention to continue hearing on the day following. Subparagraph (g), of this Regulation which is quoted at para. 5 supra, confers on the presiding officer, power, in the absence of the member concerned, to adjourn an inquiry and “if practicable” to inform that member of the adjourned date. What occurred in this case was that the inquiry commenced on 6th July and continued until 16th July with the exception of 12th and 15th July. Subject to those dates therefore, once the inquiry commenced it ran to its conclusion. For example in late afternoon on 6th July it adjourned to 7th July and so on. Regulation 18(g) in my view was never designed to cover this situation. Rather it was intended to make sure that the member concerned who would already have been notified of the commencement of the inquiry, would also be notified of any date to which the inquiry was adjourned. In my view there were no adjournments during the currency of this inquiry. Subject to a scheduling of witnesses and other procedural matters, the inquiry, once commenced ran to its conclusion. I therefore do not believe that there is any substance in this point. 15. In addition, it is claimed that the “second inquiry” into the four alleged breaches of discipline contained in the discipline form of 13th March, 2003 did not commence until 13th July, and accordingly the applicant should have been specifically so notified. In my view this point is entirely without substance. Virtually from the very beginning, the board of inquiry with the knowledge and acceptance of the applicant, decided that both would be linked together and that all procedural decisions made referable to one would equally apply to the other. For example on 14th October, 2003, all fifty five alleged breaches of discipline were adjourned to 2nd December and again on 18th March, 2004, all fifty-five were adjourned until 25th May. Moreover on several subsequent dates, including the date of the verbal notification given by Sergeant Barry to the applicant, the latter was fully aware at all stages that the commencement date of both inquiries was 6th July, 2004. The fact that a decision was made to precede with the more substantial allegations first and to immediately follow-on with the remaining four charges, was a matter purely of procedural practicality. In my view the course adopted was entirely reasonable. In addition the applicant has suffered no prejudice whatsoever in this regard given his declared intention of neither appearing or of being represented. 16. There were two further matters referred to in the submissions made on behalf of the applicant. The first was that the Garda Síochána Code was breached and the second was that the applicant should have been specifically notified, after being found in breach of discipline, that the inquiry then proposed to consider what recommendation it would make regarding the imposition of penalties. Neither of these grounds were permitted by the leave order of 14th February, 2005. In any event given my findings on Regulation 18(g) and Regulation 34 no issue arises under the Code. With regards to the second point there is no doubt but that in certain limited circumstances there may be an obligation on a decision making body to specifically inform an effective person of its intention to impose penalties. See Brennan v. Windle [2003] 3 IR 494. This type of requirement may arise as part of a more generalised obligation to ensure that the operation of any legal framework is conducted in such a manner that the legal and constitutional rights of any impacted party are fully protected. Each case must therefore be considered by reference to its own circumstances. In the instant matter I have no doubt but that there was no such obligation on the inquiry. Given the background as above outlined and knowing the applicant’s declared intention of neither being present or being represented I am satisfied that in continuing to consider its recommendation on the issue of penalty there was no breach of fair procedures. For the above reasons I would dismiss this case. |