High Court of Ireland Decisions

Neutral Citation No: [2007] IEHC 84

THE HIGH COURT JUDICIAL REVIEW

[2005 No. 233 JR]

BETWEEN

PATRICK FARRELLY APPLICANT AND THE COMMISSIONER OF AN GARDA SÍOCHÁNA IRELAND AND THE ATTORNEY GENERAL

JUDGMENT of Mr. Justice O'Neill delivered on the 13^th day of March, 2007

By order of this court (Hanna J.) made on the 7^th March, 2005, the applicant was given leave to apply by way of judicial review for an order of prohibition in respect of the holding of a sworn inquiry which was to take place on the 8^th March, 2005, to hear and determine allegations against the applicant pursuant to the Garda Síochána (Discipline) Regulations 1989, as set out in Discipline Forms dated the 12^th October, 2004. In addition the applicant was given leave to seek an injunction restraining the first named respondents from proceeding to conduct any further inquiry into the charges of alleged breach of discipline made against the applicant and also a declaration that the applicant was entitled in advance of the disciplinary inquiry to have all documentation and material which was sought in correspondence in respect of the alleged breaches of discipline as set out and referred to at paragraph 3 of the applicant's affidavit and exhibited at PF 1.

The background to this matter is as follows.

The applicant is a member of An Garda Síochána since 1982. On the 14^th March, 1998 the applicant was suspended from duty, and has remained suspended since that date, in receipt of a reduced 75% salary. On the same date i.e. 14^th March, 1998 the applicant was arrested and interviewed in relation to a suspicion of having been involved in criminal conduct related to the possession of stolen motor vehicles. He was released without charge but was again arrested on the 4^th June, 1998 and again questioned. A file was submitted to the Director of Public Prosecutions and in October, 2000 he was charged with several offences alleging handling of stolen motor vehicles. A book of evidence was served in December 2000 and he was returned for trial to the Circuit Criminal Court. Eventually his trial was fixed for the 23^rd October, 2001 and in due course adjourned to the 1^st July, 2002 on which date the applicant was arraigned on four counts to which he pleaded not guilty. The trial proceeded on the basis of evidence being presented in relation to two counts and in respect of one of these counts the trial judge directed the jury to acquit. The jury was discharged in respect of the other count. This other outstanding charge was listed for trial on the 30^th November, 2002. On the 11^th November, 2002 a nolle prosequi was entered by the DPP.

By letter of the 18^th February, 2003, solicitors for the applicant wrote to an Assistant Commissioner at Garda Headquarters requesting details as to why the applicant was further suspended with effect from the 1^st February, 2003 in circumstances where none of the above mentioned charges had resulted in a conviction against him. This letter was responded to by letter of the 25^th February, 2003 wherein it was stated as follows:

"The suspension of your client is considered desirable and is being continued due to the ongoing allegations of serious misconduct made against him concerning:-

•    A court conviction at Drogheda District Court on 17^th January, 2003 for an offence under s. 56 of the Road Traffic Act, 1961/2001,

•    Alleged discreditable conduct in the buying and selling of stolen motor vehicles between 1995 and 1998 and

•    His suspected association and involvement with known criminals on divers dates between 1^st May, 2002 and 1^st October, 2002."

In the meantime on the 14^th February, 2003, disciplinary proceedings pursuant to the Garda Síochána (Discipline) Regulations 1989 were commenced against the applicant when Chief Superintendent Michael Finnegan as "Appointing Officer" pursuant to the regulations, appointed Superintendent Ward as "Investigating Officer" to investigate a number of breaches of discipline alleged against the applicant. These investigations were commenced in the prescribed form, namely by means of what are known as forms B33 and the B33 forms executed by Chief Superintendent Finnegan on the 14^th February, 2003 directed Superintendent Ward to investigate and report on alleged breaches of discipline by the applicant as follows:

(a) That the applicant having being stopped driving motor vehicle numbered AJZ 3135 at Dublin Road, Drogheda on the 14^th February, 2002 and having been required to produce a certificate of insurance or a certificate of exemption from insurance within 10 days, opted to produce the said document at Forkhill, Co. Armagh, knowing that the said location was outside the jurisdiction.

(b) That the applicant was observed associating with known criminals on divers dates between the 1^st May, 2002 and the 1^st October, 2002.

(c) That the applicant, having previously reported his official identification card stolen/lost, was found to be in possession of the said Garda identification card on the 14^th February, 2002.

(d) That official correspondence addressed to the applicant was found at the home of one Nigel Skelly at Kellystown, Grangebellew, Co. Louth, on the 20^th January, 1998.

(e) That the applicant during 1996 sold a Honda Civic motor vehicle bearing registration number L967 SPC to Garda Michael Fagan, this motor car having been stolen in Belfast on the 3^rd January, 1996, bearing its proper registration number PDZ, 3488.

(f) That the applicant was found during 1998 in possession of a Saab motor vehicle bearing registration number 88 KK 446, this motor car having been stolen in Belfast on the 6^th September, 1996 and then bearing its proper registration number AAZ 4407.

(g) That the applicant was convicted of an offence under s. 56 of the Road Traffic Acts, 1961/94 at Drogheda District Court on the 17^th January, 2003.

By a further form B33, dated the 10^th June, 2003 Chief Superintendent Finnegan appointed Superintendent Ward as Investigating Officer under the 1989 Regulations to investigate an alleged breach of discipline by the applicant as follows:

(a) That official correspondence addressed to the applicant containing details of motor vehicle 93 D 20849 was found at the home of Nigel Skelly at Kellystown, Grangebellew, Co. Louth on the 29^th January, 1998.

As can be seen from the above this allegation is similar to the one previously mentioned save that the date is changed from the 20^th January, 1998 to the 29^th January, 1998. It was perceived that there was a necessity to execute a new Form B33 to enable Superintendent Ward to investigate this alleged breach of discipline and this came about because it was discovered by Superintendent Ward that the correspondence in question had been found on the 29^th January, 1998 and not on the 20^th January, 1998 as set out in the Form B33 dated the 14^th February, 2003.

A further Form B33 was executed by Chief Superintendent Finnegan on the 4^th July, 2003 appointing Superintendent Ward to investigate and report on the following possible breach of discipline:

(a) That the applicant was convicted of an offence under s. 56 of the Road Traffic Act, 1961/94 at Drogheda District Court on the 17^th January, 2003, and this conviction was affirmed at a sitting of Dundalk Circuit Court on the 6^th June, 2003

In effect this merely updates the previous allegation of breach of discipline as set out in form B33 of the 14^th February, 2003 to cater for the fact that the conviction under s. 56 of the Road Traffic Act, 1961 was affirmed by the Circuit Court on the 6^th June, 2003.

A further form B33 was signed by Chief Superintendent Finnegan on the 16^th July, 2003, again appointing Superintendent Ward as Investigating Officer to investigate the following alleged breach of discipline by the applicant.

(a) That the applicant was in possession of a stolen Saab motor car bearing registration number 88 KK 446 between the 6^th September, 1996 and February, 1998. This car having been stolen in Belfast on the 6^th September, 1996 and then bearing its proper registration number AAZ 4407.

This further investigation which clearly relates to one previously mentioned, was deemed to be necessitated pursuant to the regulations because in the course of the investigation by Superintendent Ward he discovered that the applicant had surrendered the car in question at Swords Garda Station on the 6^th February, 1998. Also during the course of that investigation Superintendent Ward had become aware of a further possible breach of discipline of the applicant on the basis of he having been in possession of this vehicle between the 6^th September, 1996 and February, 1998.

It is averred that Superintendent Ward following his appointments as aforesaid served notice of his appointments and the fact of his investigations on the applicant by serving a number of B33A notices under Regulation 9 of the 1989 Regulations upon the applicant and the applicant acknowledged receipt of these notices by signing the said notices.

Following his appointments as aforesaid Superintendent Ward carried out the required investigations and completed these investigations and submitted written reports in respect of them to Chief Superintendent Finnegan. Specifically Superintendent Ward submitted his report in respect of the investigations into the demand for production of a certificate of insurance and the opting by the applicant to produce this document at Forkhill, Co. Armagh, on the 3^rd December, 2003. On the 15^th December, 2003 Superintendent Ward submitted his report in relation to his investigations into the applicants alleged association with criminals and his alleged possession of motor car AAZ 4407 (the Saab). On the 17^th December, 2003 Superintendent Ward submitted his report in relation to the investigations into the applicant's alleged possession of his identification card while it was reported lost and his alleged possession of motor vehicle PDZ 3488, and the fact that official correspondence addressed to the applicant was found at the home of Nigel Skelly.

Returning to the correspondence, by a letter dated 27^th February, 2003 the solicitors for the applicant wrote to the Assistant Commissioner asking him to consider the reasonableness of the steps being taken and to forward a schedule of all members of An Garda Síochána who had been convicted of an offence whether under the Road Traffic Acts or otherwise in the last 10 years with an indication of what, if any, disciplinary steps had been taken in relation to such members. This letter also enquired as to how, in the light of the fact that the applicant was acquitted in respect of one of the counts upon which he was tried and the other one was withdrawn by the State, was it being contended that he was found guilty of these crimes. Details were also sought of the alleged associations on specific dates, with known criminals.

This letter was replied to by a letter of the 10^th March, 2003 in which the following was said.

"In reply to your request at paragraph 1 of the said correspondence, I wish to inform you that your client is currently the subject of internal Garda disciplinary investigation that is being carried out in accordance with the Garda Síochána (Discipline) Regulations 1989. There is no provisions within the said regulations to provide the information requested by you.

It is denied that the Commissioner or any of his senior officers are acting unreasonably in the application of the Garda Síochána (Discipline) Regulations 1989 in respect of your client.

The appointing officer will effect service of the appropriate documentation on your client in due course outlining the relevant acts of commission or omission alleged against him, in accordance with the said regulations."

This letter was replied to by a letter of the 27^th March, 2003 from the solicitor for the applicant in which he said the following:

"With all due respect the fact that the regulations appear to be silent on the provision of information necessary to our client to protect his interest is immaterial. Our client is entitled to the benefit of fair procedures and those fair procedures include his being furnished with details of the case being made against him in adequate time to prepare his defence.

Our client is greatly concerned that the authorities are re-running a prosecution which they were not in fact prepared to proceed with before a jury as part of an internal disciplinary function. It is accordingly unacceptable that our client be deprived of the information that he has been enquiring for.

A second handicap which has been suffered by our client is the fact that his salary has been substantially withheld. It appears to us that our client's gross annual salary should be €35,900.00 but that in the tax year ended 31^st December, 2001 he was paid the sum of €18,796.00 only…"

This letter was replied to by a letter of the 9^th April, 2003 from Assistant Commissioner M. F. Murphy wherein he says the following:-

"The issues raised by you in the said correspondence are noted and I have apprised the appointing officer in this case Chief Superintendent, Drogheda, accordingly.

With regard to the issue of your client's salary please be aware that your client was granted Suspension Allowance by the Commissioner with effect from his original date of suspension. In accordance with current policy a suspension allowance is being paid to a rate equivalent 75% of the members basic pay and rent allowance calculable by Garda Pay Section, Department of Justice, Equality and Law Reform, Deerpark House, Killarney, Co. Kerry.

Agreement was reached between the Garda Representative Association on the Official side at the Garda Conciliation and Arbitration Council in 1997 whereby a member on suspension may apply to the Commissioner on grounds of "special hardship" to have his suspension allowance increased to a rate above 75% of his basic pay and rent allowance. It shall be within the sole discretion of the Commissioner to accede to such an application subject to the rate of suspension allowance not exceeding 90% of the members basic pay and rent allowance. No such application has been made by your client…"

At this point the correspondence ceases until the 17^th November, 2004.

In the meantime it is averred by Chief Superintendent Finnegan that following receipt by him of reports in respect of the investigations carried out by Superintendent Ward, that he considered these reports and decided to continue the proceedings. Because of what he describes as the sensitive and complex nature of the proposed charges he felt it necessary to seek advice in relation to the drafting of disciplinary charges, and he avers this was an appropriate and necessary step given the requirement and advisability of having the disciplinary charges stated in clear and precise terms. He avers that he sought this advice in May 2004 and received the advice in September, 2004. Following this he caused disciplinary forms to be finalised containing the particulars of the breaches of discipline alleged against the applicant. These breaches of discipline were set out in forms prescribed in the regulations, namely, forms B30 and these were served on the applicant, on the 12^th October, 2004. He was served with 3 booklets of statements and the alleged breaches of discipline, as contained in the B30 forms. The applicant was also served with the names of the witnesses who it was proposed to call before an inquiry and a copy of each statement intended to be used at any such inquiry and particulars of any other information intended to be used at the inquiry.

The statement of disciplinary charges were set out on three B30 forms and as provided for in the forms the applicant indicated his denial of the charges on two of the forms but did not expressly indicate his position in relation to the third form.

On the 12^th November, 2004 the Chief Superintendent Finnegan forwarded all of the documentation in his possession in relation to the alleged breaches of discipline to the first named respondent. The first named respondent thereafter pursuant to regulation 14 of the 1989 Regulations directed a Sworn Inquiry into the alleged breaches of discipline to be established and held on the 11^th January, 2005 at Drogheda Garda Station.

Chief Superintendent William Donoghue, Superintendent Phillip Moynihan and Superintendent Thady P. Muldoon were appointed by the first named respondent to carry out this inquiry. The inquiry was due to sit on the 11^th January, 2005 but it was adjourned by the presiding officer Chief Superintendent Donoghue on the application of the applicant's solicitor, to the 8^th March, 2005.

The correspondence previously referred to resumed with a letter of the 17^th November, 2004 from the solicitor for the applicant to Chief Superintendent Finnegan, which said the following:

"We refer to receipt of documentation in relation to the proposed complaint against Garda Farrelly contained in each of the three separate B30 forms.

We note that the B30 forms were accompanied by lists of witnesses and by witness statements. We note that no exhibit referred to in those statements was furnished and we hereby call for production of all exhibits referred to in the material supplied.

We note it is conceded by the Garda Authorities that there does not exist any material under category C and we would repeat the request that you search for such material and do not rely on any assumption to the effect that Garda Farrelly is himself aware of the whereabouts of such material.

In order to consider the material that has been furnished to us properly we require to be furnished with copies of statements in their original form indicating the date upon which they were made and if originally made in handwriting the handwritten versions together with type scripts thereof.

Where those documents make reference to other documents such as for instance memoranda of interview stated to have been carried out with persons, including but not limited to Garda Farrelly himself.

We require a copy of the custody record in respect of each detention of Garda Farrelly together with copies of all video tapes that exist in relation to interviews conducted with him. Where it requires sight of all warrants claimed to exist justifying detention and/or a search whether of Garda Farrelly or his premises, or of respective any third party or third party premises in respect of which evidence is purported to be adduced.

We note that one charge alleges criminal conduct in relation to a conviction under s. 56 of the Road Traffic Acts. We wish to be advised of the precise position in relation to members of An Garda Síochána who have been convicted under any statute, including but not limited to the Road Traffic Acts and as to the steps taken by An Garda Síochána in relation to them. We do not obviously wish to transgress from the privacy of any individual Garda and are happy to accept that they be identified by reference to members number or case number as appropriate. What we do require is to be advised however is as to the steps taken in each and every case where a member of An Garda Síochána has been convicted of an offence and as to whether in those cases disciplinary proceedings have followed as a matter of course, and if so what the outcome have been.

Similar information is sought in respect of every member of An Garda Síochána who has been the subject of an adverse finding by a Judge presiding over criminal or civil proceedings where the conduct criticised by the Judge would amount to a breach of discipline. The object behind this inquiry is to assist in advancing before the inquiry relevant information in relation to Garda policy and past practice. Insofar it is alleged that Mr. Farrelly engaged in discreditable conduct in associating at a public place with two named criminals we wish to be advised of the full nature of the observations, by when and by whom they were carried out and whether any evidence exists to support the contention that the contact was criminal in nature. It is noted that no prosecution arose out of the alleged criminal association. Furthermore we wish to be advised of what inquiries were carried out to establish whether any other members of An Garda Síochána who are members of the same gym have associated with either of the persons named in the gym or elsewhere. We note that Garda Farrelly has been the subject of covert surveillance and we wish to be advised of the full nature and extent of the surveillance which were carried out on Garda Farrelly. This will include the supply of all collators notes relating to Garda Farrelly and the observations carried out of his movements. Please note that it is clearly a matter of considerable importance to establish the extent of the surveillance carried out on Garda Farrelly and the outcome whether positive or negative of that surveillance. This strikes us as documentation which ought to have been disclosed in list C and we reserve our position in relation thereto."

This letter was replied to by a letter of the 9^th December, 2004 from Walter I. Rice, Assistant Commissioner in which he says:

"As you are aware the matters alleged against your client are being addressed in accordance with the Garda Síochána (Discipline) Regulations 1989 and to date all relevant documentation has been forward to him in compliance with the said regulations. In particular the provision of witness statements in their original format and the exhibits listed at part B of the form B33b is not provided for in the said regulations, however, these documents will be produced by the presenting officer at the forthcoming sworn inquiry and may be viewed by you at that stage.

Should you wish to obtain any other documentation relevant to your client's case you should make an application to the Sworn Inquiry Board when they convene to inquire into the matters alleged against Garda Farrelly. In an effort to assist the Board in its deliberations you should specify the relevance to your client's case of each of the specific documents sought thereby affording the Board the opportunity to properly consider each application. It will be on this basis that the court will decide what other documents, if any, should be made available to your client…"

That letter was replied to by letter of 14^th December, 2004 from the solicitor for the applicant to the Assistant Commissioner wherein it was said:

"Please note that our contention is that fair procedures require that An Garda Síochána as the prosecuting authority in respect of these disciplinary proceedings must make full and adequate disclosure of all relevant material to our client in order that he may be fully and properly advised in respect of the issues. It is not adequate nor desirable that he be further delayed in considering relevant material by your suggesting an unnecessary application to the Sworn Inquiry Board. There is no reason why the information which is within your control should not be released without delay."

This letter of the 14^th December, 2004 was replied to by letter of the 11^th January, from Walter I. Rice, Assistant Commissioner, wherein he says:

"As previously stated in this office correspondence of the 9^th December, 2004 the provision of the documentation sought by you on behalf of your client is not provided for in the Garda Síochána (Discipline) Regulations 1989. I therefore reiterate the terms of our aforementioned letter of the 9^th December, 2004 and advise that should you wish to obtain any other documentation which is in your view relevant to your client's case you may make the appropriate application to the Sworn Inquiry Board when the Board convenes to inquire into the matters alleged against Garda Farrelly. In an effort to assist the Board in its deliberations you should specify the relevance to your client's case of each of the specific documents sought thereby affording the Board the opportunity to properly consider each application. It is a matter for the Board to decide the additional documents, if any, which should be made available to your client."

This letter was replied to by a letter of the 13^th January, 2005 from the solicitor for the applicant in which he says:

"We acknowledge receipt of yours of the 11^th January, 2005. Whilst of course you should be reserved the right to reply to the Sworn Inquiry Board to direct the release of information to us, it is nonetheless a constant obligation on prosecuting authorities and in this case on the complaining authorities to make a fair disclosure to the person against whom the complaint is made. It is clearly relevant in the circumstances of this case that you would indicate to us the steps which have been taken against other members. It is clear to us that our client is being victimised by An Garda Síochána and we will wish to be in a position to demonstrate that, but obviously the information that is needed illustrate the obvious is in the possession of An Garda Síochána exclusively."

That letter was replied was replied to by letter of the 17^th February, 2004 from the Assistant Commissioner in which he says:-

"As intimated in previous correspondence from this office the disciplinary matters against your client have been addressed in accordance with the Garda Síochána (Discipline) Regulations 1989 and all relevant documentation specified at Regulation 11 of the said regulations has been forwarded to your client. The regulations do not provide for the provision of the material sought by you at this stage in the proceedings. Again I must direct you to the relevant Sworn Inquiry Board who will consider any application you wish to make in respect of specific documents relevant to your client's case."

This letter was replied to by an undated letter from the solicitor for the applicant received on the 22^nd February, 2005 in which it was said:-

"We acknowledge receipt of yours of the 17^th February, 2005. We find the course of action you suggest to be most cumbersome and likely to result in delay. If we are forced to make on the first day of the hearing an application for additional disclosure and that application is granted – as in the interest of justice it must be – we will of necessity then have to seek an adjournment to consider the material that has been requested.

Were you on the other hand to accede to our request on an administrative basis we would be in a position to proceed and deal with the case as scheduled on the 8^th March."

The final letter in the correspondence is a letter of the 1^st March, 2005 from the Assistant Commissioner in reply to the immediately foregoing letter in which he says:-

"Your undated correspondence concerning your above named client which was received at this office on 22^nd February, 2005 refers.

As intimated to you in previous correspondence from this office it is not proposed to accede to your request at this stage. Should you wish to apply for an adjournment during the course of these proceedings you should make the necessary application to the presiding officer, Chief Superintendent William Donoghue, Pearse Street Garda Station."

As mentioned earlier on the 7^th March, 2005 this court granted leave to the applicant to seek an order for prohibition in respect of the aforementioned inquiry.

The applicant bases his case for the relief sought on essentially three grounds.

1. The failure of the first named respondent to have provided documentation and exhibits as referred to in the correspondence above prejudices the applicant in the preparation and presentation of his defence and violates his right to a fair hearing and prejudices his chance of obtaining a fair hearing.

2. That the disciplinary charges in respect of the possession of a stolen Honda Civic motor car and the possession of a Saab motor car is an abuse of process because the applicant has been acquitted of the charge relating to the Honda Civic motor car by direction of the trial judge on the 8^th July, 2002 and a nolle prosequi was entered in respect of the Saab motor car on the 11^th November, 2002.

3. Delay in the investigation of the alleged breaches of discipline and the conduct of the proposed inquiry and violation of Regulation 8 of the Garda Síochána (Discipline) Regulations 1989.

The respondents in their statement of opposition raise as a preliminary objection, delay on the part of the applicant in bringing these judicial review proceedings.

This objection should be dealt with first.

In my opinion, as the primary relief sought is an order of prohibition in relation to the Sworn Inquiry directed by the first respondent to be held grounds for seeking judicial review and an order of prohibition in relation to that inquiry arose when the first named respondent pursuant to Regulation 14 of the 1989 Regulations caused an inquiry to be held on the 11^th January, 2005. In my view as the Commissioner had a discretion not to continue the proceedings, the applicant was entitled to await his decision to continue the proceedings by causing the inquiry to be held, pursuant to Regulation 14.

The affidavit of Chief Superintendent Finnegan avers that on the 12^th November, 2004 he forwarded to the first named respondent all of the documents in connection with the allegations of breach of discipline. It would appear that the applicant was informed by way of a letter dated 13^th December, 2004 from Chief Superintendent William Donoghue the presiding officer that the Sworn Inquiry was to be held at Drogheda Garda Station on the 11^th January, 2005, and there is exhibited what appears to be a notification pursuant to Regulation 15 of the 1989 Regulations to the applicant of the fact that inquiry is to take place and of the members of the Inquiry Board.

In my view therefore time for the purposes of the making of judicial review application began to run from the 13^th December, 2004. The ex-parte application for leave was made on the 7^th March, 2005 approximately one week inside the three month period prescribed by O. 84, r. 21 of the Rules of the Superior Court. Apart however from him bringing the application within the three month period the applicant also had an obligation to move promptly. Having regard to the immediacy of the Christmas period and the active correspondence concerning documentation, I am not satisfied that the applicant failed in his obligation to move the application for leave for judicial review promptly. That being so in my view the respondents preliminary objection on the basis of delay on the part of the applicant in bringing these judicial review proceedings fails.

This bring me to the first of the grounds advanced by the applicant namely his claim that the first named respondent has failed to furnish him with documentation to which he is entitled in advance of the Sworn Inquiry.

The range of documentation sought by the applicant is best set out in the letter of the 17^th November, 2004 from the solicitor for the applicant. As is apparent from the correspondence emanating from or on behalf of the first named respondent the documentation sought was refused primarily on the basis that the range of material to be furnished was governed by the 1989 Regulations, that all documentation required to be furnished by those regulations was furnished and it was a matter for the Sworn Tribunal then constituted to deal with any application by the applicant for additional documentation, and much of the documentation sought such as the originals of statements and exhibits listed in the B30 forms would be presented at the Inquiry by the presenting officer.

Insofar as the demand for exhibits is concerned, as that relates to material other than that listed in list B attached to each B30 form, it would be outside the scope or range of material required to be furnished pursuant to Regulation 11 of the 1989 Regulations, and insofar as the term, "exhibit" as used in the correspondence refers to the material listed in list B, it would seem to me having regard to the nature of the documentation listed that it could not be said that the applicant's right to fair procedures was breached by the production of these documents at the Inquiry rather than the furnishing of them in advance of the Inquiry.

In my view neither can it be said that the applicant's rights as aforesaid to fair procedures is breached by only been given copies of the statements rather than the original form of the statement until of course the hearing itself convenes. In relation to the demand for documents referred to in other documents and for the custody record in respect of each of the detentions of the applicant and all video tapes of interviews and also all warrants in respect of the applicant or third parties or third party premises, the applicant has wholly failed to demonstrate in what way his right to fair procedures is infringed by not getting these documents. In this respect he makes no attempt to demonstrate how or in what way the provision of these documents in advance of the Sworn Inquiry is necessary for either the preparation of his defence or the conduct of his defence at the Sworn Inquiry.

Unless these documents were ones intended as other information to be relied upon at the hearing, by the presenting officer, there was no obligation on the first named respondent to have furnished particulars in writing of them such as by listing them as part of list B attached to each form B30.

The applicant next demands to be informed of the position in relation to other members of An Garda Síochána who have been convicted under any statute including but not limited to the Road Traffic Acts, as to steps taken by An Garda Síochána in relation to them and in particular whether in those cases disciplinary proceedings have followed as a matter of course and if so what the outcome has been. The same sort of information is sought in respect of members of An Garda Síochána who have been the subject of an adverse finding by a judge presiding over criminal or civil proceedings where the conduct criticised by the judge would amount to a breach of discipline.

It is plainly obvious that information of this kind could not bear at all on these specific charges of breach of discipline made against the applicant. These will have to be proved by evidence relating to the specific circumstances of each charge. The treatment of other members could have no bearing on the determination of whether or not the specific charges against the applicant are proven.

In my view the information sought relating to the treatment of members who were not subjected to any disciplinary process where there had been convictions either under the Road Traffic Acts or in respect of other crimes, is irrelevant to the subject matter of the allegations of breach of discipline against the applicant, and to the right and/or duty of appropriate members of An Garda Síochána, to initiate disciplinary proceedings. Even if it were the case that no disciplinary proceedings were taken in these instances, in my view it cannot be said that the respondent would be estopped from initiating a Sworn Inquiry as provided for under the 1989 Regulations in respect of the applicant. The fact that disciplinary proceedings were not taken heretofore could not operate as a bar to future disciplinary proceedings, nor could it fetter the discretion of various members of An Garda Síochána of appropriate rank as provided for in the 1989 Regulations from discharging the functions as provided for in the 1989 Regulations in regard to breaches of discipline.

The only possible relevance of this information sought by the applicant would be relating to the question of the penalty to be imposed where the Sworn Inquiry found that the breaches of discipline had occurred.

Regulation 20(1)(C). This provides as follows:

"20(1) Where, at an inquiry, a breach of discipline is admitted by the member concerned or is found to have occurred, the inquiry

(a) shall consider any statement or submission in relation to the member's record of service, his conduct in the Garda Síochána, his circumstances and any other relevant material…

(c) if the inquiry is held by three members, may, in relation to the member concerned –

(I) Decide to take one of the following disciplinary actions, namely:

(I) Reduction in pay not exceeding an amount of four weeks pay,

(II) Reprimand,

(III) Warning,

(IV) Caution,

(V) Advice,

or

(II) Recommend to the Commissioner the taking of one of the following disciplinary actions namely:

(I) dismissal,

(II) requirement to retire or resign as an alternative to dismissal,

(III) reduction in rank…

21(1) Upon completion of an inquiry, a written report thereof (which shall include any statement or submission referred to in Regulation 20(1)(A) if in writing and, in the case of such a statement or submission made orally, an account thereof) shall be made and forwarded to the Commissioner by the presiding officer with, where appropriate, the verbatim record of the Inquiry and the report shall state the decision of the Inquiry and, where appropriate, its recommendation as to the disciplinary action to be taken…

(3) The decision of the inquiry under Regulation 19(A) shall be entered on the discipline form which shall therefore be handed to the member concerned who shall note the decision thereon and return it to the presiding officer."

The decision of Sworn Inquiry both as to whether or not there has been a breach of discipline or not and if there has been the penalty to be imposed is circumscribed as to form by regulations 21(1) and 21(3) of the 1989 regulations. A form is prescribed for the purpose of recording the decision of the inquiry. It is in the following form:

"DECISION OF INQUIRY

Having heard *on oath, the facts adduced, the Inquiry has decided –

(A)

*(i) that the member concerned is in breach of discipline alleged at

No (s) …….

*(ii) that the member concerned is not in breach of discipline alleged at

No (s) ……………..

*(iii) that the facts established constitute a breach of discipline, other than as alleged at No…………………..namely,

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

the Inquiry being satisfied that this breach is less serious than the breach

alleged and that the decision is not unfair to the member concerned having

regard to the fact that this breach is not the breach that was alleged:

*(B) to take the following disciplinary action: ____________________________

_____________________________________________________________

_____________________________________________________________

_____________________________________________________________

*(C) to recommend to the Commissioner the taking of one of the disciplinary actions set out in Regulation 20(1)(C)(ii) of the Garda Síochána (Discipline) Regulations, 1989.

Signature of member (s) holding the inquiry:

Presiding Officer __________________________________ Rank ___________

Member _________________________________________ Rank ___________

Member _________________________________________ Rank ___________

I have read the decision at (A)/*(B)/*(C) above.

Signed ______________________________ Member concerned, Rank ________

Dated this ____________ day of _______________________________ 20

*Delete as appropriate."

As is apparent the decisions of Sworn Inquiries as provided for in the 1989 Regulations are not discursive judgments but are merely a record of the decision actually taken without any statement of the reasons for the decision.

That being so in my view previous decisions of Sworn Inquiries in regard to breaches of discipline or alleged breaches of discipline by other members, would be of no assistance to the applicant in making submissions on the question of penalty nor would these decisions be of any assistance to the Sworn Inquiry itself in arriving at an appropriate penalty.

The decisions of these Sworn Inquiries as provided for under the 1989 Regulations are of a wholly different character to the decisions of the Refugee Appeal Tribunal, which are in the nature of a discursive judgment of the issues canvassed in those appeals and do state the reasons for the decision reached. That being so in my view the judgment of the Supreme Court in the case of Atanasov and Others v. The Refugee Appeal Tribunal Ireland and the Attorney General and Others [2006] I.E.S.C. (Judgment delivered 26^th July, 2006), does not have application to decisions of Sworn Inquiries under the 1989 Regulations.

I have therefore come to the conclusion that the applicant is not entitled to be provided with previous decisions of Sworn Inquiries or any records relating to other members who had criminal convictions but were not subjected to the disciplinary process provided for in the 1989 Regulations.

The applicant's demand for particulars of alleged association by him at a public place with two named criminals and in particular when these observations were made and by whom is in my view overtaken by the material furnished to the applicant and in particular the list of witnesses to be called, the statements of these witnesses and also exhibits to be relied upon. Either the case to be made against the applicant on this allegation for breach of discipline is made in the statements or it is not, and therefore the details which the applicant seeks in his letter of the 17^th November, 2004 in this regard of necessity will be included in these statements. If it is not there then it follows it is not part of the case against the applicant.

I am satisfied therefore that insofar as the furnishing of particulars to the applicant is concerned, in the light of the furnishing of the foregoing material to him it cannot be said that there is any reasonable apprehension of a breach of his right to fair procedures in that regard. I am satisfied therefore that this ground for judicial review fails.

The next issue which arises is whether the applicant is entitled to prohibition of any further disciplinary process pursuant to the 1989 Regulations in respect of the allegation of possession of two stolen motor cars namely Honda Civic motor car PDZ 3488 and a Saab motor car AAZ 4407.

The applicant, having been charged with the offences of handling these two vehicles was on the 8^th July, 2002 by direction of the trial judge acquitted of the charge in respect of the Honda Civic, and in respect of the charge of handling the Saab motor car a nolle prosequi was entered on the 11^th November, 2002.

Article 38(1) of the 1989 Regulations provides as follows:

"38.(1) where a member has been convicted or acquitted of an offence proceedings under these regulations for an alleged breach of discipline shall not be commenced or, if already commenced, continued if the breach is in substance the same as the offence of which he has been convicted or acquitted…"

The first thing to be determined therefore is whether or not the substance of the allegation of breach of discipline is the same as the substance of the charges of handling stolen property i.e. the two motor vehicles.

In my view the essential ingredients of both are the same. The first essential ingredient of both is possession of either vehicle. The second essential ingredient of both is that the applicant either knew the vehicles were stolen or the circumstances surrounding his possession of the vehicles were such as to indicate that it is reasonable to conclude that he knew or believed these vehicles to have been stolen. It that context, of course a greater degree of alertness or awareness would be expected of an experienced member of An Garda Síochána but that would be so also in the prosecution of a criminal charge.

The categorisation of the conduct impugned as "discreditable conduct" as distinct from the criminal charge of handling stolen goods cannot in my view be decisive. Where the exact same conduct is the subject matter of the criminal charge and the disciplinary proceeding, a disciplinary proceeding could only proceed if as was discussed in McGrath v. The Commissioner of An Garda Síochána [1999] I.L.R.M. 817, the nature of the disciplinary charge becomes of a wholly different character to the criminal charge. In that case in the High Court Lynch J. postulated a revision of the disciplinary charge, based on the same conduct, so as to transform it from a charge of dishonest behaviour to one of failure to observe accountancy procedures.

In my view in this case no such possibility exists nor indeed is it attempted in the disciplinary charge as expressed in the forms B30.

Discreditable conduct on the basis of possession of vehicle without lawful authority, carries with it all of the character of dishonesty which is an essential feature of a criminal charge of handling stolen property either knowing or believing it to be stolen property.

The difference in standard of proof between a criminal trial and a disciplinary proceeding under Article 38 is not in my view a significant distinction. Article 38(1) does not contemplate any such distinction.

Neither is a distinction to be drawn on the basis that the charge in respect of the Honda Civic ended in an acquittal by direction of the trial judge rather than by a verdict of the jury. Again Article 38(1) does not draw any distinction between acquittals arrived at in either of these ways and hence in my view Article 38(1) applies to acquittals in either of these circumstances. I am satisfied that Article 38(1) prohibits any further prosecution of the disciplinary charge in respect of the applicant's possession of the Honda Civic.

The ending of the prosecution in respect of the charge brought in relation to the Saab is in a somewhat different position. A nolle prosequi excludes any hearing of the case and necessarily a determination by way of acquittal or conviction.

It is clear that Article 38(1) does not prohibit disciplinary proceedings subsequent to the entry of a nolle prosequi. Thus the only basis upon which the applicant could obtain prohibition in respect of the disciplinary process relating to the Saab motor car would be on the grounds of a breach of constitutional right to fair procedures and/or oppression, or as an abuse of process.

In his affidavit the applicant has not deposed to any facts, other than relating to the question of delay, which I will deal with later on in this judgment, and his demand for the materials set out in his letter of the 27^th November, 2004, as discussed above, which would suggest any particular difficulty in defending these allegations of breach of discipline. There is no evidence therefore upon which it could be said that there might be any breach of the applicant's right to fair procedures in the proposed Sworn Inquiry, or that defending himself in that Sworn Inquiry would involve any element of oppression.

I am satisfied therefore that Article 38(1) of the 1989 Regulations does not prohibit disciplinary proceedings in respect of the Saab motor car and there is no evidence that permitting such proceedings to go ahead in the Sworn Inquiry would involve any breach of the applicant's constitutional right to fair procedures nor is there any evidence of oppression of the applicant. In addition, there having been no acquittal and no conviction it cannot in my view be said that the disciplinary proceedings in respect of the Saab motor car, is in any way, an abuse of process.

This brings me finally to the question of delay. As is apparent from the applicant's affidavit and in particular paragraphs 17 and 26 thereof the applicant complains of delay on the part of the Garda authorities in advancing these disciplinary proceedings. Although a complaint was made that there has been inordinate delay the applicant does not point to any prejudice to him resulting from that delay.

A controversy arose at the outset of the case as to whether or not the applicant had been given leave to apply for judicial review on the ground of delay.

The order of Hanna J. made the 7^th March, 2005 gives leave to the applicant to apply for the reliefs at paragraph (A), (B) and (F) of paragraph D in the statement of grounds for judicial review.

Relief (A) is in the following terms:

"An order of prohibition by way of an application for judicial review in respect of the decision taken by the first named respondent on or about the 13^th December, 2004 to hold a Sworn Inquiry at Drogheda Garda Station on the 11^th January, 2005 and thereafter on the 8^th March, 2005 and to proceed and hear and determine an inquiry into allegations against the applicant pursuant to the Garda Síochána (Discipline) Regulation 1989 as set out in discipline forms dated the 12^th October, 2004."

Relief (B) is as follows:

"An injunction by way of application for judicial review restraining the first named respondent, its servants or agents from proceeding to conduct any further inquiry into the charges of alleged breach of discipline made against the applicant pursuant to the Garda Síochána (Discipline) Regulations 1989 which formed the subject matter of these proceedings."

Relief (F) is in the followings terms:

"A declaration that the applicant is entitled, in advance of the above mentioned disciplinary inquiry to have all documentation and material already sought in correspondence in respect of the alleged breaches of discipline as set out and referred to at paragraph three of the applicant's affidavit and exhibited at PF1."

The grounds upon which relief by way of judicial review is sought as set out in the statement of grounds at paragraph E do not make any complaint about delay. As noted earlier paragraphs 17 and 26 of the affidavit of the applicant sworn on the 4^th March, 2005 do contain a complaint about delay in the processing of the disciplinary charges.

By letter dated the 7^th March, 2005 written by the solicitor for the applicant to the Commissioner of An Garda Síochána for the purposes of informing the Commissioner of the making of the order ex-parte granting leave to the applicant to apply for judicial review the following is said:

"We refer to the above mentioned matter and the Sworn Inquiry due to commence tomorrow 8^th March.

We are writing to advise that we appeared before Mr. Justice Hanna at the ex-parte list in the High Court in Dublin this morning. He granted Mr. Farrelly leave the reliefs outlined at paragraph A, B and F of the statement of grounds (enclosed)…"

It was submitted on behalf of the applicant that Hanna J. had granted leave in respect of delay, or in the alternative, the court should permit an appropriate amendment of the statement of grounds. It was further submitted that in a situation of uncertainty the court should not draw the exclusionary inference.

The respondents have submitted that the order of Hanna J. is clear and did not permit the applicant to apply for judicial review in respect of relief D which is in the following terms:

"A declaration by way of an application for judicial review that the first named respondent, its servants or agents have been guilty of excessive delay in the conduct of an inquiry into alleged breaches of discipline by the applicant and that the said delay constitutes a breach of natural and constitutional justice the applicant's right to basic fairness of procedures and s. 3(1) of the European Convention on Human Rights Act, 2003 and Article 6 of the European Convention on Human Rights."

It was further submitted by the respondents that it was clear that the applicant had failed to obtain leave in respect of the delay issue and that the applicant has not appealed the order of Hanna J. and it is not open to the applicant now to invite this court to amend the order of Hanna J. to permit the applicant to pursue relief on the ground of delay, as that would be tantamount to an appeal against the order of Hanna J.

There is no doubt that the applicant in his statement of grounds does raise the issue of delay and seeks a specific relief in relation to it at paragraph D as quoted above. Although the grounds upon which relief was sought do not include any complaint about delay as mentioned earlier, there was a complaint about delay in the applicant's affidavit sworn on the 4^th March, 2005.

Thus it cannot be said that the issue of delay is one which was left out of the proceedings and in respect of which it would be appropriate at this stage to consider an amendment of the statement of grounds so as to include it. There can be no doubt that it was included in the statement of grounds and that leave was sought in respect of it and in my view it is clear that the applicant failed to obtain leave on this ground. This conclusion is amply reinforced by the content of the letter of the 7^th March, 2005 from the applicant's solicitor to the Commissioner of An Garda Síochána quoted above. Immediately after that application was made the applicant's solicitor appears to have been of the view that relief was granted only in respect of paragraphs A, B and F of the reliefs claimed in the statement of grounds.

I am therefore compelled to the conclusion that Hanna J. rejected the applicant's application for leave on the delay issue and as the issue was clearly included in the statement of grounds it does not appear to me that an amendment of the statement of grounds to permit an application in respect of the delay issue, is appropriate. It is not open to me to interfere with the order of Hanna J. in this regard because to do so would as submitted for the respondent amount to an appeal against the order of Hanna J.

In these circumstances, I am driven to the conclusion that this court does not have jurisdiction to entertain the applicant's case on the delay issue and accordingly no relief can be granted on that ground.

In conclusion therefore I am of the view that the only relief to which the plaintiff is entitled is an order of prohibition in respect of the disciplinary proceedings relating to the Honda Civic motor car.

Approved: O'Neill J.