Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
High Court of Ireland Decisions
You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Culbert -v- The Commissioner of An Garda Síochána [2015] IEHC 442 (10 July 2015)
URL: http://www.bailii.org/ie/cases/IEHC/2015/H442.html
Cite as: [2015] IEHC 442
[New search] [Help]
Judgment
| ||||||||||||||||
Neutral Citation [2015] IEHC 442 THE HIGH COURT JUDICIAL REVIEW [Record No.2014/179 JR] BETWEEN BRIAN CULBERT APPLICANT AND
THE COMMISSIONER OF AN GARDA SÍOCHÁNA RESPONDENT JUDGMENT of Ms. Justice Iseult O’Malley delivered the 10th day of July 2015. Introduction 2. In this case the respondent made a decision to dismiss the applicant, after receiving a report from a board of inquiry. The specific issues in the case arise from the fact that, while the applicant’s appeal against the respondent’s decision to dismiss him was pending, the board of inquiry that had considered his case was asked to reconvene in order to give reasons for its recommendation that he be dismissed. 3. In so far as it is relevant to these proceedings, a Garda disciplinary process commences with an internal investigation. Having considered the results of that investigation, the Commissioner may establish a board of inquiry. That body makes findings on the charges made against the member and recommendations as to what, if any, disciplinary action should be taken. The Commissioner then decides whether or not to accept that recommendation. There is a right of appeal to an Appeal Board from the decision of the Commissioner. Background facts 5. The breaches of discipline as alleged against the applicant were disobedience of orders, two counts of falsehood, improper practice and abuse of authority. It is not necessary, for the purposes of this judgment, to set out any of the detail of the matters giving rise to those allegations. There is no dispute about the fact that, if established, they came within the definition of “serious” breaches of discipline as dealt with in Part 3 of the regulations. A “serious” breach is one which, in the opinion of the Commissioner, may be subject to dismissal, requirement to retire or resign as an alternative to dismissal, reduction in rank, or reduction in pay. 6. The board of inquiry convened on the 4th September, 2013. Each alleged breach of discipline was formally put to and admitted by the applicant. Evidence in relation to the charges was adduced. Witnesses as to character were called on behalf of the applicant, and written and oral submissions were presented in mitigation of penalty. 7. At the conclusion of the hearing the board found the applicant in breach of discipline in respect of each of the five counts. In accordance with its statutory functions the board made a report, containing its recommendation to the respondent with regard to the taking of disciplinary action. The recommended action was dismissal. The report was in a standard form and the board did not give reasons for its recommendation. 8. On the 4th October, 2013, the respondent ordered that the applicant be dismissed from An Garda Síochána with effect from midnight on the 25th October, 2013. The decision was communicated by way of a standard form which simply recited that, “having regard to” the recommendation of the board of inquiry, the respondent had decided to dismiss him. 9. Regulation 33 provides that not later than seven days after receiving notification of the Commissioner’s decision, the member concerned may give notice of appeal against the determination of the Board of Inquiry, or the disciplinary action decided on, or both. The regulation further provides at paragraph (3) that the appeal may be based on one or more of the following grounds:
(b) the determination is not justified, having regard to the evidence heard by the board of inquiry; (c) all of the relevant facts - (i) were not ascertained, (ii) were not considered, or (iii) were not considered in a reasonable manner; (d) the member was not given a reasonable opportunity to be heard and to respond to matters raised; (e) the disciplinary action which the Commissioner has decided to take …is disproportionate in relation to the breach of discipline concerned. 11. On the 5th November, 2013, the Supreme Court delivered judgment in the case of Kelly v The Commissioner of An Garda Síochána, discussed further below. 12. On the 6th November, 2013, the respondent established a Board of Appeal in relation to the applicant’s case. 13. The applicant’s solicitor provided the Appeal Board with a written statement of grounds of appeal on the 10th December, 2013, having been requested to do so. The grounds were set out under the following headings:
ii. Failing to conduct a proper hearing iii. Failing to deliberate properly or at all on submissions made on behalf of the appellant iv. Failing to consider alternative sanctions v. Failed to have regard to and consider relevant precedent vi. Failing to consider carefully and fully the evidence of witnesses called on behalf of Garda Culbert vii. Failure by the Board to consider in full and understand the charges brought against Garda Culbert and as such made and improper and unreasonable recommendation to the Commissioner viii. Failing to comply with Regulation 4 of the Garda Síochána (Discipline) Regulations 2007. ix. Failing to appreciate and understand the implementation of Garda policy at operational level x. Submitting Garda Culbert to unfair and disproportionate sanction. xi. Imposed punitive and excessive sanction xii. Failing to consider all of the relevant facts in the case xiii. Failure to notify Garda Culbert in writing of the reasons for his dismissal as required by law. 15. A hearing date of the 27th February, 2014, was set for the appeal. However, on the 28th January the applicant’s solicitor wrote to the chairperson of the Appeal Board seeking a postponement. This was acknowledged on the 1st of February. 16. On the 29th January, Superintendent Synnott of Garda Internal Affairs wrote to the chairperson of the board of inquiry making a request in the following terms:
18. On the 5th February, 2014, the chairperson of the Appeal Board wrote to the applicant’s solicitor, stating that the hearing was being adjourned to the 7th of April
21. This letter was followed a day later by a letter from Superintendent Synnott, informing the applicant’s solicitor that, “in the light of” the decision in Kelly, the members of the inquiry board had reconvened on the 10th February, 2014, in order to provide the Commissioner with a report outlining the reasons for their decision and for the penalty recommended by them. It was stated that a copy of the report would be furnished, upon receipt, to the applicant, his solicitor and to each member of the Appeal Board. 22. The applicant’s solicitor then protested, by letter dated the 14th March, that the proceedings in the matter were taking place “outside of the scope of the legislative framework and in excess of authority conferred”. It was considered that the process was beyond any possibility of correction and an undertaking to set aside the procedures in their entirety was called for. 23. Chief Superintendent McLoughlin, the head of Internal Affairs, replied on the 20th March. He referred to Kelly and said that the applicant in those proceedings had
In compliance with the Supreme Court judgment, this office wrote to the Presiding Officer of D/Garda Culbert’s Board of Inquiry requesting the reasons for the Board of Inquiry’s decision. It is not agreed that your client’s right to a fair hearing encompassing basic fairness of procedures has been compromised as a result of compliance with the Supreme Court ruling.” The decision in Kelly v. The Commissioner of An Garda Síochána [2013] IESC 47 27. The Commissioner accepted the recommendation and dismissed the applicant, who appealed. 28. The appeal board dismissed the appeal without a hearing, under a power conferred by the Regulations to do so where the grounds of appeal were “without substance or foundation”. 29. The applicant then instituted judicial review proceedings seeking to quash, inter alia, the recommendation of the board of inquiry, the decision of the Commissioner to accept the recommendation and dismiss him and the decision of the appeal board to dismiss the appeal. 30. Giving the judgment of the Supreme Court, O’Donnell J. referred to the general proposition of law, exemplified in Mallak v Minister for Justice, Equality and Law Reform [2012] IESC 59, that a decision-maker is obliged to give reasons for his or her decision. The following passage from Mallak was cited:
33. It is noted that under Regulation 30, the presiding officer of a board of inquiry shall, within 21 days of the conclusion of the inquiry, submit a written report to the Commissioner and forward a copy of that report to the member concerned. Regulation 30(2) provides that the report “shall include” (in summary) copies of the material before the board, the transcript of the hearing, the determination of the board as to whether or not the member was in breach of discipline and the recommendation of the board as to any disciplinary action to be taken. 34. It is then for the Commissioner to decide, within 14 days of receipt of the report, on the appropriate disciplinary action. In relation to a member under the rank of inspector, the Commissioner may take any action up to and including dismissal upon his or her own authority. However, if the action proposed by the Commissioner is more severe than that recommended by the board, the member must be given an opportunity to make representations. 35. The regulations relating to the conduct of the appeal process provide specifically, in Regulation 37(3) that the appeal board must communicate its decision and the reasons for that decision in writing. 36. O’Donnell J. noted that the Regulations under consideration were those which applied to allegations of “serious” breaches of discipline.
42. In determining the appropriate remedy in the case, the Court noted that a failure to give reasons would normally lead to the quashing of the unreasoned decision.
43. On behalf of the applicant Mr. Burns S.C. accepts that, in the wake of Kelly, the respondent was attempting to rectify the situation in this case. However, he says that the respondent should have applied to the High Court to quash the report of the Board of Inquiry. The procedure adopted ignores the fact that in Kelly, the Supreme Court granted an order of certiorari coupled with a remittal and directions from the Court as to how the matter should proceed. 44. It is submitted that once the Commissioner has acted on the recommendations of the Board of Inquiry, the latter body is functus officio. The implication of what has occurred is that Garda Internal Affairs considers that it has the right to go back to the board of inquiry and request further steps to be taken, without reference to the member. The reconvened meeting of the Board took place without notice to the applicant, in circumstances where its failure to give reasons was one of his grounds of appeal. If the applicant had been aware of the proposal to hold that meeting he would have made representations to the effect that it could not lawfully be held. 45. It is pointed out that the letter from Chief Superintendent McLoughlin makes it clear that the requested report from the board of inquiry will go to the members of the Appeal Board. There was no suggestion that the respondent might reconsider the matter in the light of the report, and it is absurd to ask the board of inquiry for its reasons after the respondent has acted upon its recommendation. 46. Mr. Burns says that the entire process has been tainted before ever reaching the Appeal Board, and that the applicant is now entitled to a rehearing before a board of inquiry. This argument is based on the fact that the appellant had, in his appeal grounds, made criticisms of the conduct of the hearing at first instance. If all that is asked for at this stage is that the reasons be given by the board of inquiry, it is not unreasonable to think that the members of that board might be tempted to add to the reasons they had at the time. 47. In relation to the final order of the Supreme Court in Kelly, Mr. Burns says that the Court was expressly making a decision as to the best way to proceed in the particular circumstances of the case. The judgment should not be taken as authority for parties to take a “DIY” approach. Reliance is placed upon the statement by O’Donnell J. that the normal remedy in cases of a failure to give reasons is to quash the unreasoned decision, and it is submitted that there are no countervailing considerations to disentitle the applicant from that relief. He is also, it is contended, entitled to prohibition because of the “whole series of irregularities”. 48. It is accepted that the pleadings do not expressly seek certiorari in respect of the respondent’s decision, but it is submitted that it must fall, being based upon an unreasoned decision, and being itself unreasoned. The Respondent’s submissions 50. It is submitted that in Kelly the Supreme Court was dealing with a matter that turned entirely on disputed facts. The Court specifically linked the necessity for the board of inquiry to give reasons to the appeal board process. There was no reference to the Commissioner, because it would be unrealistic to expect him or her to read the material. The Court did not expect a reasoned decision from him, and therefore the Appeal Board would not be expected to consider his reasons. 51. It is contended that the applicant is out of time to challenge the respondent’s decision, and the respondent reserves her position as to what effect an order quashing the board of inquiry’s decision would be in circumstances where the case is really about what happened afterwards. 52. In answer to a question as to what the purpose of asking the board of inquiry for its reasons at this stage was, Mr. Power said that knowing the reasons would inform the decision of the Appeal Board. It would consider the respondent’s decision in the light of those reasons. The applicant has been premature in bringing these proceedings and should instead be making submissions to the Appeal Board either to the effect that the reasons should not be considered, or as to the weight to be attributed to the reasons in these circumstances. 53. It was confirmed that the reconvened meeting took place without any representation from the Garda authorities, and it was therefore submitted that there was no prejudice to the applicant arising from the fact that he was not notified in advance. 54. Mr. Power says that since the board of inquiry is obliged to give reasons, it cannot be said to be functus officio until it does. Conclusions 56. It has to be borne in mind that it is the Commissioner who bears the statutory responsibility for deciding on the disciplinary sanction in these matters, not the board of inquiry. 57. That being so, I can see no point to the procedure adopted in this case. The idea that the appeal against the Commissioner’s decision should proceed on the basis that the appeal board will have the board of inquiry’s reasons for its recommendation, where the Commissioner who accepted the recommendation did not, seems somewhat unreal. 58. The Supreme Court decided “in the particular circumstances” of Kelly that it would be wasteful and unnecessary to direct a full first instance rehearing. It chose instead to direct that the board of inquiry should give its reasons
60. It seems to me that in making the order that it did, the Supreme Court was exercising the discretion that a court always has in relation to remedies in judicial review. “The particular circumstances” of the case is a phrase that means what is says, and was not intended to lay down a general rule as to what should happen in pending disciplinary cases. 61. In the circumstances of this case, I do not believe that an order of prohibition would be appropriate. The applicant admitted his guilt of the charges laid against him. The hearing before the board of inquiry was conducted on that basis, and the appeal was against sanction only. Prohibition will be granted in those circumstances only in the rarest of circumstances - see the judgment of the Supreme Court in S.A. v Director of Public Prosecutions [2007] IESC 43. In a context such as this, I consider that the court is entitled to take into account the public importance of the role of members of An Garda Síochána, the proper investigation of any misconduct on their part and the statutory origin of the role of the respondent in determining disciplinary sanctions. 62. I do consider it appropriate to remit the matter, to be reheard by a board of inquiry. I do this partly on the basis that I have no evidence as to what happened at the reconvened meeting of the board on the 10th February, 2014. I do not know whether the members of the board had a firm, collective view as to what their reasons had been for a decision made some three months earlier or whether they might have wished to consider the transcripts further. If for some reason they did not finalise their decision at that stage, it might not be helpful to ask them to do so at this stage. In any event, this is a far less complex matter than Kelly in terms of the logistics of a fresh hearing. 63. I have considered whether or not it would be practicable, for the purposes of an order of certiorari, to distinguish between the determination of guilt and the recommendation as to penalty but I think that this might only lead to further complications in the event that a differently composed board has to be appointed. 64. I therefore propose to grant an order of certiorari in relation to the determination and recommendation of the board of inquiry. 65. It follows that although no specific relief was sought in respect of the Commissioner’s decision, it must necessarily be treated as void. |