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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McGowan -v- Comissioner of An Garda Síochána [2014] IEHC 173 (03 April 2014)
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Cite as: [2014] IEHC 173
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Judgment Title: McGowan -v- Comissioner of An Garda Síochána Neutral Citation: [2014] IEHC 173 High Court Record Number: 2013 662 JR Date of Delivery: 03/04/2014 Court: High Court Composition of Court: Judgment by: Baker J. Status of Judgment: Approved |
Neutral Citation: [2014] IEHC 173 THE HIGH COURT JUDICIAL REVIEW [2013 No. 662 J.R.] BETWEEN CATHERINE MCGOWAN APPLICANT AND
THE COMMISSIONER OF AN GARDA SÍOCHÁNA RESPONDENT JUDGMENT of Ms. Justice Baker delivered on the 3rd day of April, 2014 1. The applicant is a serving member of An Garda Síochána who is alleged to have committed various breaches of discipline in the course of her investigation, commenced in the year 2005, into a complaint of sexual abuse made by an identified individual against a Catholic priest. 2. On 4th August, 2011, Chief Superintendent Thomas Conway was appointed under the provisions of the Garda Síochána (Discipline) Regulations 1989 ("1989 Regulations") to investigate these alleged breaches of discipline on the part of the applicant. At the conclusion of his investigation, he formed an opinion that the alleged breaches of discipline were of such a serious nature that they warranted the holding of a sworn inquiry, and on or about 19th June, 2013, the applicant was given notice of the respondent's intention to hold such a sworn inquiry and of the appointment of Chief Superintendent Catherine Kehoe, Superintendent Mary Delmar, and Superintendent Patrick Murray to preside over that inquiry which was scheduled to open on 23rd July, 2013. 3. The applicant was notified of the intention to hold the sworn inquiry by a letter of 19th June, 2013, which was accompanied by a so-called "witness notification" which set out the alleged breaches of discipline in respect of which the investigation was to happen. This document requested the attendance of the applicant at the inquiry and it is clear from the recitals in the documents that the purpose of the inquiry was to establish material facts in relation to the alleged breaches. 4. By letter dated 19th July, 2013, Sean Costello & Company Solicitors who acted, and continue to act, for the applicant wrote to the Assistant Commissioner of An Garda Síochána raising a preliminary point that the inquiry proposed to be held under the Regulations was invalid as it was proposed to hold it under the 1989 Regulations, which had by then been replaced by the Garda Síochána (Discipline) Regulations 2007 ("2007 Regulations"). The reply from An Garda Síochána suggested that the matters should be raised by way of submission to the sworn inquiry and Mr. Costello appeared at the opening of the sworn inquiry on Tuesday, 23rd July, 2013, and made this preliminary objection. 5. It is not in doubt that the sworn inquiry proposed to conduct its investigations under the procedures and rules set out in the 1989 Regulations. The applicant argues that as these Regulations had been repealed and as the repealing provisions had the effect of requiring the new 2007 procedures be used in all investigations commenced after 2007 that, even in respect of matters which were alleged to have occurred before that date, the proposed inquiry was invalid. 6. The respondent argues that the effect of the repeal is not as argued by the applicant and that in truth the investigation started in 2005, before the 2007 Regulations came into force and that as the investigation was underway at the time of the repeal of the 1989 Regulations, it was saved, inter alia, by the provisions of s. 27(2) of the Interpretation Act 2005 ("Act of2005"). 7. Counsel for the respondent also argues by way of preliminary objection that the applicant is out of time for bringing this judicial review and/or that the review is barred by delay, and points in particular to the fact that the investigation commenced on 4th August, 2011, and that it was clear from the documentation then served on the applicant that the appointment of the investigating officer was being made under the 1989 Regulations. She states that the applicant acknowledged this by her signature in receipt of this notice and may not at this stage seek to impugn the basis of the inquiry. 8. On 23rd July, 2013, Mr. Costello attended at the inquiry and made objection to the holding of the inquiry on the ground that the regulatory regime pursuant to which it was proposed to conduct the inquiry had been repealed and replaced by the new 2007 regime. 9. The Board of Inquiry heard the objection and held against Mr. Costello's objection and in so doing relied on a judgment of the Supreme Court, also relied on by counsel for the respondent in this case, McGrath v. Commissioner of An Garda Siochana (Unreported, Supreme Court, Finlay C.J., 26th January, 1993) which held that a disciplinary hearing in that case was not properly constituted as it was purported to be brought under regulations which had not been in force at the time of the alleged breaches. I will deal below more fully with the judgment of Finlay C.J. in that case. 10. Application for leave to apply for judicial review was then made on 2nd September, 2013, and leave was granted by White J. for the following reliefs:-
(b) a declaration by way of application for judicial review that there exists no jurisdiction or lawful authority for the disciplinary proceedings which had been commenced concerning the applicant; and (c) an order of prohibition by way of application for judicial review restraining the holding of a sworn inquiry proposed to be held on 24th September, 2013. First preliminary objection: the applicant is out of time 13. Counsel for the respondent relies on the decision of Irvine J. in Ernst & Young v. Purcell & The Institute of Chartered Accountants Ireland [2011] IEHC 203 where the applicant sought to challenge the appointment of the first named respondent by the second named respondent as a special investigator to investigate alleged disciplinary breaches by the applicant of the rules of his professional body. Irvine J. held that the time for the bringing of an application to challenge the legitimate basis for the appointment commenced on the date when the applicant was notified and given a copy of the relevant instruments of appointment. Counsel argues that as the applicant seeks to challenge the lawfulness of the entire disciplinary process, time commenced to run when the first stage of that process was commenced and notified to the applicant. 14. Counsel for the applicant argues that time began to run at the date the applicant was given notice of the intention of the respondent to hold a sworn inquiry on 23rd July, 2013. Immediately upon receipt of the notice for the sworn inquiry, the solicitor for the applicant wrote to the inspectors raising the point made in these proceedings that as the 1989 Regulations had been revoked the intended sworn inquiry was not properly constituted. 15. Counsel for the applicant argues the applicant might well have taken the view that the holding of the initial inquiry by Chief Superintendent Thomas Conway and the appointment by the respondent of an investigating officer on 4th August, 2011, were matters in respect of which she did not wish to make complaint. The respondent had allowed a period of eighteen months to elapse before determining to establish an inquiry on 18th January, 2013, and the applicant might reasonably have taken the view in the context of earlier delay that the respondent might not convene a Board of Inquiry at all, and in the events this did not occur until 19th June, 2013, six months later. The applicant might have considered that the risk she faced became less with the passage of time. 16. I do not accept that this case may be decided in the light of the authority of the decision of Irvine J. of Ernst & Young v. Purcell & The Institute of Chartered Accountants Ireland and it seems to me what the applicant is challenging in this case is the decision of the respondent to convene a Board of Inquiry into the alleged breaches of discipline. Certain other procedural steps had taken place before the formal inquiry was convened and the applicant was entitled to, and did in fact, take a view that these may not have led to the holding of a sworn inquiry and was prepared not to challenge the earlier procedural steps taken by the respondent. The decision of Irvine J. was based on the fact that the inspector was appointed by instruments of appointment made on an identified date and that the process of investigation was commenced at that date and not at an earlier date. 17. The process available to the respondents under the relevant Regulations contains various stages, any one of which might lead to a decision to proceed or not proceed to the next stage, as the case may be. Those procedural stages have individual and separate procedural requirements and do not lead inexorably to the next. A determination to proceed from one of these procedural stages to the next is one that must be made and that decision to so proceed from one stage to the next is one which is capable of being impugned in proceedings before this court. 18. No application was brought to this court to extend the time for the bringing of this judicial review. It is my view that no application is required and the applicant was entitled to sit back at individual stages in the process in the hope that it would end at a preliminary stage and not proceed to a sworn inquiry. The matters sought to be investigated dated back as far as 2005 and an investigating officer was appointed on 4th August, 2011. Between August 2011 and 18th January, 2013, nothing happened, and again the applicant was entitled to reasonably assume or hope that the matter would end there. Given that the respondent delayed for a total of some eight and a half years between the happening of the events complained of and the final establishment of a sworn inquiry, the applicant could reasonably, and it seems did, take a considered decision not to challenge any of what might be called less formal or potentially less damaging procedures. My view is the applicant is entitled to challenge the individual and separate decision made on 19th June, 2013. It was at that point in time that a real risk to her had crystallised and at that time it was clear that the respondent intended to hold a formal investigation and establish a sworn inquiry for that purpose. Second preliminary objection: delay 20. Counsel for the applicant urges me to accept the conclusion of Edwards J. in Gibbons v. Commissioner of An Garda Síochána [2007] IEHC 266, where the learned judge rejected a similar argument by the respondent that the applicant was fully aware of all relevant matters for the purposes of instituting judicial review proceedings some years before the relief was sought by way of judicial review. He accepted the argument of the applicant that the respondent had suffered no prejudice by reason of any alleged delay, and that the applicant had acted promptly and within the three months specified in the Rules of the Superior Courts for the seeking of leave. The facts of that case are sufficiently similar to the instant case and I follow and accept the authority of the decision of Edwards J. 21. In the circumstances, I hold that the application was brought within time, and that the court should not exercise its discretion to strike out the proceedings for delay. I say this in particular for the reasons outlined above and because, in my view, the respondent did not suffer actual prejudice in the matter as the 1989 Regulations had been repealed some years before the procedure commenced and this is not a case where the procedural rules had been newly changed. The relevant disciplinary regimes 23. S.I. No. 214 of 2007 enacted the 2007 Regulations which made very substantial changes both to the procedure and substance of the 1989 Regulations. The 2007 Regulations came into force on 1st June, 2007, and Regulation 51 expressly revoked the 1989 Regulations. 24. Regulation 13 contains transitional provisions and provides as follows:-
(3) Where, in any disciplinary proceedings referred to in paragraph (2), it is determined that there has been a breach of discipline by a member, any disciplinary sanction imposed on the member in respect of the breach shall not exceed the sanction that could have been imposed in respect of that breach at the time the breach occurred. 27. The relevant Regulation is the substituted 13(2) and it is not argued that Regulation 13(1), which was the saving provision found in the 2007 Regulations before the substitution, has any application as disciplinary proceedings were not commenced before the commencement of those Regulations in 2007. Regulation 13(2) has the effect that the 2007 Regulations apply to disciplinary proceedings initiated after the commencement of the Regulations in 2007 where the proceedings relate to a breach which occurred prior to the commencement of those Regulations. 28. The events which gave rise to the investigation occurred, or at least began, in the year 2005 and disciplinary proceedings were commenced after the coming into operation of the 2007 Regulations. The respondent argues that as Regulation 13(2) did not come into operation until November 2011, the respondent was entitled to conduct the inquiry under the 1989 Regulations and that the repeal of those Regulations in 2007 did not have the effect of leaving a lacuna in procedure for the conduct of garda disciplinary inquiries. She argued that in August 2011, when the investigation commenced, there was no mechanism available for the conduct of the investigation except the 1989 Regulations. She states that in those circumstances, the investigation was commenced lawfully in August 2011, in accordance with the law that then existed. The 2007 Regulations were amended in November 2011 but the amending provisions of Regulation 13(2) were not in force nor capable of being used in practice at the time this investigation commenced in August 2011. She relies on the saver provisions contained in s. 27 of the Act of 2005 which provides as follows:-
(a) revive anything not in force or not existing immediately before the repeal, (b) affect the previous operation of the enactment or anything duly done or suffered under the enactment, (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the enactment, (d) affect any penalty, forfeiture or punishment incurred in respect of any offence against or contravention of the enactment which was committed before the repeal, or (e) prejudice or affect any legal proceedings (civil or criminal) pending at the time of the repeal in respect of any such right, privilege, obligation, liability, offence or contravention. (2) Where an enactment is repealed, any legal proceedings (civil or criminal) in respect of a right, privilege, obligation or liability acquired, accrued or incurred under, or an offence against or contravention of, the enactment may be instituted, continued or enforced, and any penalty, forfeiture or punishment in respect of such offence or contravention may be imposed and carried out, as if the enactment had not been repealed. 30. Counsel argues that the relationship between the 1989 Regulations and the 2007 Regulations is similar to that described by the Supreme Court as existing between the 1971 Regulations and the 1989 Regulations in McGrath v. Commissioner of An Garda Síochána. She says this is because the purpose and effect of both sets of Regulations is to create offences and to provide for procedures and, that applying the reasoning of the Supreme Court, the Act of 2005 saved the old procedural and substantive regime and for the same reasons as explained by Finlay C.J. 31. It is noteworthy that the judgment of Finlay C.J. in McGrath v. Commissioner of An Garda Síochána was to the effect that the creation of the offences by the 1989 Regulations could not apply to conduct and events before they were brought into force. The learned Supreme Court judge did not consider the procedural regimes sought to be created by the new 1989 Regulations and the Supreme Court's reasoning related to the substance of the allegations of misconduct and not the procedural regime created by the 1989 Regulations. To that extent it seems to me that McGrath v. Commissioner of An Garda Síochána raises different questions from those raised in this application where the plaintiff challenges the unlawfulness of the holding of the investigation itself rather than the substance of the alleged breaches of discipline. Further, that case concerned the purported application of Regulations not yet enacted at the time an alleged infringement occurred and the corollary of what occurred in this case, where repealed enactments were sought to be relied on. Are there accrued or acquired rights? 33. Counsel for the applicant argues that the Act of 2005 does not save the proceedings and that the purpose of that Act is not to create a cause of action. He says the express saver provisions in the Regulations themselves preclude the operation of any saver provisions ins. 27 of the Act of2005. Discussion 35. The effect of the general saver provisions in the Act of 2005 was considered in a number of cases concerning applications for compensation under s. 55 of the Local Government (Planning and Development) Act 1963 ("Act of 1963"), which had been repealed by the Local Government (Planning and Development) Act 1990 ("Act of 1990"). In J. Wood & Co. Ltd. v. Wicklow County Council [1995] 1 I.L.R.M. 51 the applicant had sought planning permission before the Act of 1963 was repealed and sought compensation arising from the refusal to grant planning permission under the repealed Act of 1963. Costello J. held, at p. 56, that an applicant who had applied for development permission under the Act of 1963 "had acquired no right to compensation under the 1963 Act until a decision on the application had been made." 36. A similar decision was reached by the Supreme Court in McKone Estates Ltd. v. Dublin County Council [1995] 2 I.L.R.M. 283 and on a different statutory point in O'Flynn Construction Ltd. v. An Bard Pleanala [2000] 1 IR 497, relied on by counsel for the applicant, where the Minister for the Environment and Local Government made a new replacement statutory instrument, the Local Government (Planning and Development) General Policy Directive (Shopping), 1998 (S.I. No. 193 of 1998), which, inter alia, repealed the Local Government (Planning and Development) General Policy Directive, 1982 (S.I. No. 264 of 1982), on which the applicant sought to rely. Finlay Geoghegan J. stated, at p. 502:-
38. I am also persuaded by the judgment of Dunne J. in Start Mortgages Ltd. & Ors. v. Gunn & Ors. [2011] IEHC 275, in which she further considered the question of the preservation of rights. She distinguished her own judgment in O'Sullivan v. Superintendent in Charge of Togher Garda Station and held that the right to apply for an order for possession under the repealed s. 67(2) of the Registration of Title Act 1964 ("Act of 1964") was not an acquired or accrued right on the date of registration of the charge. She held that certain secured creditors who had the benefit of a registered charge could seek relief under s. 67(2) of Act of 1964 if proceedings had been commenced or the monies secured by the charge had become due in one of the number of ways in which she, and later judgments, identified. In explaining her decision in O'Sullivan v. Superintendent in Charge of Togher Garda Station, she pointed out that the applicant acquired the right to apply for a restoration of the driving license immediately upon the conviction and the consequential disqualification. As she put it:-
41. The investigation by the respondent of the alleged breaches of discipline on the part of the applicant commenced on 4th August, 2011. The investigation was purported to be held under the 1989 Regulations which had been repealed with effect from 1st June, 2007. The question I am asked is similar to that of Dunne J. in Start Mortgages Ltd. & Ors. v. Gunn & Ors., namely did the respondent have a vested right at the date of the repeal of the 1989 Regulations, on 1st June, 2007, to commence the process of investigation. Regulations 8(1) and 10(1) & (2) of the 1989 Regulations provide:-
10(1) Upon completion of an investigation under Regulation 8, the investigating officer shall as soon as may be submit to the appointing officer a written report of the investigation, together with copies of any statements made. (2) Upon receipt of a report under this Regulation, the appointing officer shall without avoidable delay- (a) decide whether or not to continue the proceedings under these Regulations, and (b) if he decides to continue the proceedings, cause to be entered on a form (in these Regulations referred to as a discipline form) such particulars of the breach of discipline alleged as will leave the member concerned in no doubt as to the precise nature of it. 43. In the circumstances I find that the respondent did not at the date of repeal have a right to avail of the repealed enactment which could be saved by the Act of 2005. The express transitional provisions in the 2007 Regulations
Conclusion |