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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Walsh -v- Revington & Ors (No. 2) [2013] IEHC 485 (07 November 2013)
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Cite as: [2013] IEHC 485
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Judgment Title: Walsh -v- Revington & Ors (No. 2) Neutral Citation: [2013] IEHC 485 High Court Record Number: 2012 885 JR Date of Delivery: 07/11/2013 Court: High Court Composition of Court: Judgment by: Hogan J. Status of Judgment: Approved |
Neutral Citation Number: [2013] IEHC 485 THE HIGH COURT [2012 No. 885 JR] BETWEEN/ PATRICK WALSH APPLICANT AND
JOSEPH REVINGTON, ANTHONY NOLAN AND GARDA PATRICK O’SULLIVAN AND THE GARDA COMMISSIONER (No.2) RESPONDENTS JUDGMENT of Mr. Justice Hogan delivered on 7th November, 2013 1. In a judgment delivered on 25th July, 2013, Walsh v. Revington [2013] IEHC 408, I held that the Garda Síochána Complaints Board had acted ultra vires in the manner in which it had dealt with the applicant’s appeal. I accordingly granted an order of certiorari to quash that decision of the Board. The issue which now arises in this sequel to that first judgment is whether I should exercise the jurisdiction vested in the Court by virtue of the provisions of O. 84, r. 27(4) RSC which provides:
(ii) discreditable conduct, namely, failure to submit to a legal drugs search; (iii)improper practice, in that Garda Walsh identified himself as an off-duty member of An Garda Síochána when required to submit to a drugs search for the purposes of private advantage; (iv)misconduct towards a superior officer in that Garda Walsh used abusive and insulting language to Sergeant Murphy. 4. In the wake of this decision the Board of Inquiry which had then been convened subsequently sat to investigate the three outstanding disciplinary charges. By decision dated the 30th September, 2010, the Board concluded that he was guilty of discreditable conduct in that he had failed to submit to a legal drugs search. In this regard the Board concluded that Garda Walsh had submitted to the test administered by the Gardaí only having struggled with Sergeant Murphy and having been overpowered by him. The Board did not find it necessary to determine whether the search organised by the security guards assigned by the concert promoters constituted a legal search for this purpose. 5. The Board also found that the fact that Garda Walsh had identified himself as an off-duty member of An Garda Siochána when required to submit himself to a drugs search under s. 23 of the Misuse of Drugs Act 1977, amounted to improper practice, in that it amounted to an endeavour to use his status as a member of the force for private advantage. The Board did not, however, accept that Garda Walsh had used insulting or abusive language in his dealings with Sergeant Murphy. In respect, however, of the two counts on which Garda Walsh had been found guilty, the Board recommended that he be required to retire or resign as an alternative to dismissal. 6. Garda Walsh successfully appealed these findings to the Appeals Board established pursuant to Article 34 of the 2007 Regulations. That Board recommended that these adverse findings be set aside and that the matter be determined afresh by a differently constituted Board of Inquiry. 7. A new Board of Inquiry was then established on 2nd December, 2011. The new Board determined that Garda Walsh was guilty of two breaches of discipline, namely, discreditable conduct and improper conduct, but rejected the third count. The Board recommended that Garda Walsh be dismissed in respect of breach No. 1 (discreditable conduct) and breach No.2 (improper practice). The Garda Commissioner decided to accept this recommendation and by decision dated 26th March, 2012, it was ordered that the applicant be dismissed from the force with effect from 16th April, 2012. 8. Garda Walsh then appealed that decision in turn to the Appeals Board. In its decision of 31st July, 2012, the Appeals Board affirmed the conclusion in respect of the discreditable conduct, but allowed the appeal in respect of the count of improper practice. The reasons given by the Board were in the following terms:-
(ii) substitute another disciplinary action of a less serious nature; (c) if –
(ii) if it is satisfied that such a decision would not be unfair to the member concerned having regard to the fact that the other breach is not the breach alleged, quash the determination and decision and substitute another disciplinary action in respect of that breach, or
Having heard on oath the facts adduced the Board of Inquiry has determined: …That the member concerned is in breach of the following breaches of discipline as alleged: Breach No. 1 – Discreditable Conduct Breach No. 2 – Improper Practice.”
13. In these circumstances, the only option realistic available to the Board consistent with the tenor of its own decision and, indeed, my first judgment, would appear to be to exercise its powers under Article 37(d), namely to quash the determination and to direct that a fresh Board of Inquiry should be established by the Commissioner. 14. All other things being equal, it is plain that an order of remittal for this purpose is both necessary and desirable and, subject to some qualifications I will presently address, I accept the incisive submissions of counsel for the Commissioner, Mr. McGuinness S.C., in that regard. Such a step is necessary in the first instance because the legal position of the parties would remain uncertain if the decision of the Appeals Board were simply quashed without any further order. It would not, for example, be clear whether the Board of Inquiry’s original decision still stood and Garda Walsh could not know whether he had been dismissed on one count of breach of discipline or two. It would also be desirable to regularise the position of the parties from the somewhat unhappy situation in which they have found themselves, stemming in part from the somewhat awkward manner in which Article 37 of the 2007 Regulations has been drafted. 15. Counsel for the applicant, Mr. McDonagh SC, has nevertheless argued forcefully that matters are not equal and that it would be unfair to his client if there were to be a remittal resulting ultimately in a further hearing before a fresh Board of Inquiry. He pointed out that Garda Walsh has already faced a criminal trial after which he was acquitted. There was then a hearing before a Board of Inquiry in September, 2010 as a result of which there was a successful appeal to the Appeals Board. The culminated in a second hearing in December, 2011 and a further (partially successful) appeal to the Appeals Board whose decision has now been quashed in these judicial review proceedings. If the matter were to be remitted, then the applicant would be facing a third disciplinary hearing and having already endured the ordeal of a criminal trial. 16. It is true that in McGrath v. Garda Commissioner (No.3), Supreme Court, 26th January, 1993, the Supreme Court granted an order of prohibition restraining the continuation of disciplinary proceedings against the applicant Garda. That, however, had been a case where the disciplinary proceedings had been characterised by a series of errors, not least the application of the new 1989 Garda Siochána Regulations retrospectively to events which were alleged to have occurred in 1983 and 1984. Finlay C.J. stated that in these circumstances:
18. Having reflected on the matter I am not persuaded that the same degree of prejudice is necessarily present in this case. One cannot deny but that in all probability the applicant will have to face yet another disciplinary hearing before a fresh board of inquiry with all the attendant strain and difficulties which this presents. This cannot be satisfactory for everyone concerned, not least for the applicant and his family. Yet I cannot overlook the fact that the Appeal Board found the applicant guilty of a serious disciplinary offence (discreditable conduct) in respect of which it had recommended dismissal. It is true that this decision was found by me to be ultra vires, but this judgment reflected the structure and wording of Article 34 of the 2007 Regulations rather than anything bearing directly on the decision itself. In fairness to the applicant, it must also, however, be borne in mind that he did also challenge the adequacy of the reasons given by the Board, but in the end it was not necessary for me to arrive at any concluded view on this question. 19. Mr. McDonagh S.C. has also argued that if the matter were remitted it would (or, at least, might) bring about a situation where the applicant would be deprived of the benefits of rulings already made in his favour. It goes without saying that it would be manifestly unfair to the applicant if by reason of the quashing of the Appeals Board decision he were now to face anything other than the single charge of discreditable conduct. In other words, even though I have determined that the Appeals Board’s decision is ultra vires on the rather narrow ground which I identified, this cannot be allowed to take from the substance of the decision so far as it concerned the applicant, namely, that the Board of Inquiry’s finding in his favour in respect of the abusive language charge and the Appeal Board’s finding in his favour on the improper practice charge. 20. Nor do I overlook the fact that at earlier stages of the disciplinary process Boards of Inquiry and Appeals Board have taken different views on the precise actus reus of the discreditable conduct charge. Part of the difficulty here arises from the sequence of events giving rise to the charge in the first place. The gist of the allegation was that Garda Walsh struggled and then sought to evade a drugs search which private contractors were first performing on patrons seeking to re-enter the festival and, then, following an altercation, Garda Walsh was then referred to the Gardaí who were on site who conducted the search. 21. There is certainly much force in Mr. McDonagh’s submission that (putting matters no higher) there has been a lack of consistency to date in the scope of the charge of discreditable conduct and whether that charge is directed towards the conduct in respect of the search by the private contractors or the subsequent search by members of An Garda Síochana. Nevertheless, it seems to me that any possible unfairness could be addressed by requiring any newly established Board of Inquiry to clarify the scope of this charge in much the same way as Tribunals of Inquiry have been required by this Court and the Supreme Court to clarify the scope of their terms of reference and the manner in which these are to be interpreted: cf. here the reasoning of Geoghegan J. and the Supreme Court in Haughey v. Moriarty [1999] 3 IR 1. Conclusions |