APPROVED [2025] IEHC 173
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THE HIGH COURT
JUDICIAL REVIEW
2024 697 JR
BETWEEN
CAOIMHE BUSHER
APPLICANT
AND
COMMISSIONER OF AN GARDA SÍOCHÁNA, MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS
JUDGEMENT of Mr Justice Nolan delivered on the 26th day of March, 2025
Introduction
1. The Applicant is a probationary member of An Garda Síochána since the 7th September 2018, but has been the subject to an ongoing disciplinary process since June 2020, concerning the manner of her investigation of a road traffic accident in June 2019. She complains that her period of probation is now in excess of six years, which she alleges is unlawful and contrary to Irish and European law.
2. She seeks, by way of judicial review, three reliefs:
i. An order declaring that the length of her probationary period is unlawful,
ii. An order of certiorari quashing the latest extension to her probationary period and the associated ministerial consent (dated 15th and 12th April 2024 respectively), and
iii. An order of prohibition in regard to the disciplinary proceedings.
3. The Respondents say that the Applicant's argument that the length of her probationary period is unlawful and contrary to Irish and European law, is misconceived and that at all times they acted within their powers and have lawfully executed their functions when extending and/or consenting to the extension of the probationary period and have adhered to the provisions of the relevant regulations, being the Garda Síochána (Admissions and Appointments) Regulations 2013, S.I. No. 470/2013 ("the 2013 Regulations").
4. In addition, the First Named Respondent ("the Commissioner") says he has complied with the terms of the Garda Síochána (Discipline) Regulations 2007, S.I. No. 214/2007 ("the 2007 Regulations") in exercising his powers and the disciplinary proceedings are not unlawful, oppressive or tainted by an unjustified delay or otherwise.
Factual Background
5. During the Applicant's probationary period, she investigated a road traffic accident at Shanganagh Road, Shankill, Co. Dublin, on 20th of June 2019. It is alleged that she failed to promptly and properly investigate the accident. As such, it is alleged she was in breach of discipline and guilty of neglect of duty and in addition, it is alleged that she altered the record she had created in relation to the accident on the internal Garda computer system ("the PULSE").
6. On the 26th of June 2020, an investigating officer was appointed, pursuant to the 2007 Regulations, to investigate the alleged breaches of discipline. He concluded his investigation with a recommendation that the matter warranted the establishment of a Board of Inquiry. His report and correspondence are to the fore in this case.
7. On the 14th of July 2021, a Board of Inquiry ("the First Board") was established concerning the alleged breaches of discipline and was adjourned from time to time, primarily because the Applicant was on maternity leave. It was dissolved on the 7th of March 2023, as one of the Board members was retiring. It was necessary to establish a new Board of Inquiry ("the Second Board"). It was established on the 2nd of May 2023, but on the 12th of December 2023, it stood down.
8. Throughout this time, the Applicant's probation was extended on eight occasions from the 17th of September 2020 to the 22nd of October 2024.
The Accident and Initial Investigations
9. The circumstances surrounding the accident and the investigation have not been challenged, none the less, since this matter is at a preliminary stage, all matters must either be accepted in a formal way, or proved in a formal way. On the 20th of June 2019, the Applicant attended a road traffic accident at Shanganagh Road, Shankill, County Dublin. A fourteen-year-old girl had walked out onto to the road from behind a parked bus. She was hit by a car. The Applicant prepared and submitted an investigation file on the 15th of May 2020, some 11 months after the accident. She recommended that no prosecution be brought. However, since she had delayed in submitting the report, from a prosecutorial perspective, it was statute barred. It is alleged that only one witness statement was taken, out of a potential four or five and no CCTV footage from the bus was kept. But importantly, a PULSE entry was made on the 20th of June 2019.
10. A key issue related to whether the driver was accompanied by a fully licensed passenger, in accordance with the Rules of the Road. The initial PULSE entry read "driver had a learner's permit with no fully licensed accompanying driver".
11. Eleven and half months later and after submitting the investigation report, it is alleged that the Applicant re-entered the PULSE system and amended the crucial entry to read, "driver had a learner's permit with fully licensed passenger". The word "no" had been deleted, thus giving a false narrative.
12. Arising out of complaints, Inspector John Dowling of Dun Laoghaire Garda Station, reviewed the file. He identified numerous investigative deficiencies and came to the view that the investigation had been completed in a substandard manner in that it was forwarded for directions when already statute barred, key witnesses were not interviewed, and CCTV footage had not been kept.
13. Having discussed the matter with the Applicant, he came to the view that this represented a clear failing on her behalf, but that these were matters which could have been ordinarily dealt with by local management by way of advice or caution.
14. However, when he carried out further investigations, he identified further anomalies which led him to believe that a concerted attempt to conceal the identification of offences and alter the official record had occurred. He also confirmed that the driver was not accompanied by a full driver's license holder.
15. On the basis of his findings, he forwarded a report to the District Officer with a recommendation that the matter be considered for investigation under the 2007 Regulations.
The Disciplinary Investigation
16. Inspector John O'Driscoll of Dundrum Garda Station carried out an investigation into the alleged breaches of discipline under the provisions of the 2007 Regulations. In his Statement of Facts, dated the 5th of November 2020, (a written report prepared pursuant to the Regulations, which is furnished to the member) addressed to the Commissioner, he set out the circumstances outlined above, in a thoroughly professional and clear manner.
17. However, he did not stop there. He also sent a letter of the same date, marked "private and confidential", also addressed to the Commissioner. In it, he again set out his findings as in the Statement of Facts. The Regulations specifically state that the investigating officer can submit to the Commissioner copies of any written statements made during the investigations and "details of any information document or thing which the investigating officer was made aware of during the investigation". The question could be asked as to whether such a letter falls within the parameters of the Regulations.
18. Having interviewed her, he said it was evident that she knowingly changed the PULSE narrative in order to disguise her failings. He then said "she was adamant in her claim that she tried multiple times to contact each of the aforementioned witnesses. I do not believe her assertion" and that she had "bluffed her way through the interview and never expected that her untruthful account would be verified". He then went on to say, "she gave another example of her bluffing her way through the interview" and that it was "apparent that she lacked credibility". He concluded his letter by saying twice that she did not furnish a truthful account during the course of the interview. He recommended that a Board of Inquiry should be convened to adjudicate on the serious breaches of discipline alleged.
19. Thereafter, the Applicant received notification that a Board of Inquiry would be established, pursuant to Regulation 25 of the 2007 Regulations. She also received, pursuant to Regulation 27, the time, date and place of the hearing, the names of the members of the Board (a solicitor and two senior members of the force) and the provisions of Section 123(7) which mandates her attendance at the Board. She was furnished with the particulars of the serious breaches of discipline alleged, accompanied with the Statement of Facts established by the investigating officer and written statements made during it.
20. She was also sent the "private and confidential" letter of Inspector O'Driscoll, dated the 5th of November 2020, addressed to the Commissioner, together with the full investigation file.
21. The Board was due to start hearings in March 2022 but was adjourned to May 2022. Thereafter, it was dissolved.
The Second Board of Inquiry
22. On the 2nd of May 2023, the Applicant was notified that a Second Board had been established and that the presiding officer would be Mr. Mark Doyle, solicitor. It was scheduled to commence hearing on the 24th of July 2023, in Dundrum Garda Station. By this stage, the charge sheet had grown. There were now eight charges pending against her. These included that she had acted in a discreditable manner when dealing with the incident, that she was discourteous to a member of the public, that she was negligent in the manner in which she conducted her investigation, that she actively interfered with an investigation and had caused and created false and misleading information on the PULSE system and thereafter had misled investigating officers.
The Hearing
23. At the first hearing of the Second Board the Applicant was represented by Mr. Moran solicitor. A number of matters came to light.
24. The first was that the First Board had dissolved, to use the words used in the correspondence, by virtue of the fact that one of its members had reached the retirement age. This was the first she had heard about it. Thereafter, there was a lengthy discussion as to whether the hearing should proceed and if so, on what basis. This gave rise to a number of adjournments and meetings over a two-month period. Ultimately, the Second Board determined that it should proceed since it was properly set up and convened, in the best interests of natural justice and fair procedures.
25. On the 12th of December 2023, the Board reconvened. Inspector Randles, the new investigating officer, read into the record the Statement of Facts. Mr. Moran then cross examined him. It was put to him that the investigation had to be impartial and correct, on oath, he agreed. He was then asked about the private and confidential letter of the 5th of November, accompanying the file, sent to the Commissioner, which was before the First Board.
26. After searching for it, the Inspector found the letter. However, it was not before the Second Board. Submissions were then made by Mr. Moran and thereafter, the Board rose to consider the situation.
27. On return, the Chair said that they had considered the letter and had decided that it would be unsafe for it to continue and that it was going to make a recommendation "that having regard to the disclosure of that letter, the contents of that letter and that it wasn't disclosed to this Board, it will be unsafe for this Board to proceed with the matter".
28. Thereafter, the Board furnished its recommendation to the Commissioner. In the recommendation, the Board recited the crucial parts of the letter and noted that it had not been furnished in the original pack of documents. It noted that Mr. Moran submitted that the letter was pejorative, biased, not fair and not impartial so tainting the Statement of Facts.
29. It stated that it had adjourned to consider the position, had read the letter and then said:-
"The board decided it would be unsafe to proceed with the hearing on the basis that having regard to the fact that such a letter existed that it was not furnished to the board and so it recommends that this board should and does stand down".
30. By this stage, the Applicant's probation period had been extended for the eighth time from the 22nd of October 2023 to the 22nd of April 2024, as authorised by the Second Named Respondent ("the Minister").
31. On the 26th of June 2024, the Applicant discovered that it was the intention of the Commissioner to establish a third Board of Inquiry.
32. On the 24th of June, the Applicant applied ex parte, for judicial review and Hyland J. granted leave in the terms as set out above.
Extension to the Probationary Period.
33. In order to extend a probationary period, the Commissioner requires the permission of the Minister, who will grant an extension only in "exceptional circumstances". A significant part of the hearing of this judicial review related to what amounts to "exceptional circumstances". Either way, the Minister agreed to extend the probationary period on the basis of the representations of the Commissioner. The Applicant makes the case that no reasons are given by the Minister and that she simply approved the request without any further consideration.
34. It should be noted that notwithstanding that she has been on probation, she continued to act as if she were a full member of the force. There have been no restrictions on her day-to-day activity. Indeed, as far as the general public is concerned, she is a full-time member. Further, no other disciplinary matters have arisen in the meantime.
35. But considering that she is technically still on probation, she is at some significant disadvantage. She has received no further training, no promotion, no transfers and in essence has been kept in limbo. Her progression through the force has been stalled for a period of six years. Whilst not all of that is due to these proceedings, bearing in mind that she was on maternity leave for two periods, the fact remains that she has not been able to progress her career and that clearly is to her prejudice.
36. Probationary periods for members of An Garda Síochána are governed by the Garda Síochána (Admissions and Appointments) Regulations 2013 (the "2013 Regulations"). In summary, they provide that a probationary period shall be for 2 years (Regulation 3) but that the Commissioner may extend it for reasons set out in Regulation 12.
37. The Regulations prohibit any probation period in excess of three years "save in exceptional circumstances" and then only with the consent of the Minister (Regulation 12(13)), (emphasis added).
38. Periods of maternity leave cause a probationary period to stand suspended (Regulation 12). In the event that the probationary period is not extended, the member becomes a full member of the force without any further steps being required.
39. In this case, the extensions sought and consents given were for the following stated reasons; to protect against the risk of appointment by default of an unsuitable candidate, the nature of the allegations could be sufficient grounds for dispensing with the Applicant's services, that an assessment of suitability had been placed in abeyance pending the disciplinary proceedings and that the Commissioner had not yet made a determination whether to retain the Applicant as a member of the force.
The Pleadings
In her Statement of Grounds, the Applicant raises a number of issues, which I will set out below in more detail. These included the extension of her probationary period, issues in relation to the right to be heard and fair procedures regarding those extensions, the issue as what constitutes exceptional circumstances in the context of the extension of her probationary, the delay in the disciplinary process, and the correspondence of the 5th of November 2020. In their Statement of Opposition, the Respondents state that the Applicant has acknowledged the conditions of service and acceptance of admission as a trainee and therefore, is bound by the Regulations. That her probationary period was extended in a lawful manner, that there was no delay in the disciplinary process given that she was on maternity leave twice, that the First Board was dissolved in accordance with the Regulations and that the new Board was established in accordance with the Regulations. That there existed exceptional circumstances in relation to the periods of extension her probationary period, that all appropriate consents from the Minister were obtained in a lawful way and that it is standard practice for an Inspector's written report of the investigation to be accompanied by a covering letter and that the letter of the 5th of November 2020, was such a letter.
Submissions in Regard to Extensions of the Probation Period
40. Mr. Harty SC for the Applicant says that by repeatedly extending her probation, without assessing her suitability, the Commissioner has acted ultra vires in regard to the Regulations which prohibit a probationary period of such length.
41. As far as "exceptional circumstances" are concerned, he says that there are none and relies upon EU law, that the Applicant enjoys a right to a "reasonable probationary period" and not to be subject to a period of "prolonged insecurity" (Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 on transparent and predictable working conditions in the European Union ("the Directive")). In Roche v Commissioner [2022] IEHC 461 at para. 32, Phelan J. said that "... an extension under Regulation 12(4) must be for the purpose of ascertaining whether the probationer concerned will demonstrate an ability to perform the functions of a member efficiently and effectively or otherwise to conduct herself in a manner befitting of a member and not for any other purpose."
42. Ms. Quigley SC for the Respondents, says at all times, her clients have acted within their powers, lawfully executed their functions when extending and/or consenting to the extension of the Applicant's probationary period and have adhered to the provisions of the 2013 Regulations.
43. In addition, the Commissioner has complied with the terms of the 2007 Regulations, in exercising his respective powers and the disciplinary proceedings are not unlawful, oppressive or tainted by an unjustified delay. Further, she says that in considering the interpretation of the Regulations and the court should have regard to the case of A, B, and C (A Minor Suing by His Next Friend, A) v The Minister for Foreign Affairs and Trade [2023] IESC 10 at [73], where Murray J., in the Supreme Court said:
"The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting or contextualising the apparent meaning of those words."
44. The purpose of extending a probationary period is to facilitate the Commissioner in assessing the suitability of a particular member for retention in the force. If a probationer has not demonstrated to his satisfaction that they will serve as an efficient and effective member, but the Commissioner considers it necessary or expedient to allow further time within which to reach a decision in respect of the member's suitability, he can exercise his discretion and can extend the probationary period. Therefore, the Applicant's probationary period was extended for a proper purpose.
45. As far as the Applicant's EU argument is concerned, Ms. Quigley says Article 1(6) of the Directive gives Member States the option to derogate. In this jurisdiction the legislative provisions which regulate the probationary period of probationers are the 2013 Regulations, made under the Garda Síochána Act 2005. As such, the provisions laid down in Article 8(1) do not apply to probationers and the length of the Applicant's probationary period is not incompatible with the Directive.
46. Furthermore, even if it was the case that the provisions in Chapter III did apply in this jurisdiction, Article 8(3) provides that "Member States may, on an exceptional basis, provide for longer probationary periods where justified by the nature of the employment or in the interest of the worker."
47. Accordingly, longer probationary periods for probationers can be (and are) justified in the 2013 Regulations, due to the nature of the employment in question and the fact that a probationer must demonstrate to the satisfaction of the Commissioner an ability to perform the functions of a member efficiently and effectively or otherwise, to conduct himself or herself in a manner befitting a member.
Discussion in Regard to Extensions of the Probation Period
48. It seems to me that there has been a significant delay in this matter, a portion of which is due to the fact that the Applicant was on maternity leave. However, when you break down the delay, and in particular the time leading up to and after the First Board, it was unfortunate that one member was reaching his retirement. It is also unfortunate that this was not communicated to the Applicant, therefore leaving her in a position of serious concern.
49. Nonetheless, it seems to me, notwithstanding the delay, part of which has to take into consideration that the State was in lockdown due to the COVID pandemic, that, in itself, is not a good enough reason to prohibit a third Board of Inquiry from being established. I am satisfied that the argument in relation to the EU law and in particular, Article 1(6) of Directive 2019/1152, means that the provisions of the article do not apply to the Applicant. I am not satisfied that even if they did, the length of the Applicant's probationary period is incompatible with the Directive because the delay, if any, has been explained and is excusable. Whilst the delay is of a similar length and magnitude to that of the case of Gillen v Commissioner of An Garda Síochána [2012] IESC 3, to which I will refer to below, the process commenced relatively quickly after the initial events and certainly after the investigation. The delay has been caused by the dissolving of the First Board and the events which occurred leading up to and including the Second Board standing down. Therefore, on those two grounds, I cannot find for the Applicant.
Right to be Heard and Fair Procedures
50. The next issue the Applicant raises relates to, what I might call, the "consents" issued by the Minister authorising the extension of her probationary period. She says they are unlawful since they were issued in breach of fair procedures and that there were no "exceptional circumstances" pertaining nor were adequate reasons given.
51. The Applicant complains that she was not put on notice of the communication between the Commissioner and the Minister. Further, that her consent was not sought to extend the probationary period. In those circumstances, she did not have an opportunity to be heard. She was not copied in on correspondence or notified of any intended decision.
52. All of this, she says, is in breach of fair procedures. She says the law is that a person whose interests are potentially affected by a decision is entitled to both notification of a proposal to make such a decision and to be heard in relation to why that decision should not be taken. In this case, her rights and interests were clearly affected by the Minister's decision to extend her probation. Given that she was exercising a discretion, there is even more reason why she should have notified the Applicant.
53. In response, the Respondents say there is a general principle that a preliminary investigation does not have to adhere to the rules of fair procedure, provided that the entire process, including the appeal, does afford fair procedures. In Crayden Fishing Co Ltd v Sea Fisheries Protection Authority [2017] 3 IR 785, O'Donnell J. (as he then was) in the Supreme Court held that the default position is that a person conducting a preliminary investigation, which itself does not lead directly in law to a binding and adverse decision, is not normally under an obligation to comply with the requirement of a fair hearing.
54. In a quote which has appeared in many a judgment, O'Donnell J. said, "courts have remained slow to require the full panoply of a fair hearing at a preliminary stage".
55. The Respondents submit that the Commissioner at all times acted and adhered to the provisions of the 2013 Regulations and acted within his powers and lawfully executed his functions under the provisions. Those provisions do not envisage affording probationers an opportunity to influence either the Commissioner or the Minister in exercise of their respective discretions. They argue that the facts of this case are very different to those set out in the case of Dellway v NAMA [2011] 4 IR 1, to which the Applicant refers.
Discussion- Right to be Heard and Fair Procedures
56. Whilst on the face of it, the argument that the Applicant should have the ability to make submissions to the Minister in relation to the extension of her preparatory may seem attractive, it seems to me that that would be to extend such fair procedures far beyond that which the law permits. No decision has yet been made in relation to the suitability of the Applicant to remain in the force. All that has occurred is that her probationary period has been extended. While she may well believe that is an unsatisfactory state of affairs, she is in a much better position than if the Commissioner had determined that she was unsuitable to remain.
57. I think it would be requiring too much of the Respondents for the court to mandate that every internal procedural step, which potentially impacts a member of the force, requires engagement. In those circumstances, I agree with the Respondents' submission that the Applicant is conflating the taking of a necessary procedural or interlocutory step in the decision-making process with that of a final determination, permanently affecting her rights and interests. The step taken did not involve the making of any findings or adjudication regarding her suitability or the imposition of any penalty and therefore, it seems to me that it would be beyond the remit of the courts to put in place a requirement that such a procedural or interlocutory step should be notified to a person affected by the decision. Therefore, on that ground, I cannot find for the Applicant.
58. Nor do I think that the Minister is obliged to give separate reasons for exercising her discretion in extending the probationary period. The reasons have been set out in the correspondence addressed to her and in my view, that is sufficient.
Exceptional Circumstances
59. The Applicant makes the case that the reasons given, as set out above, in regard to "exceptional circumstances", are, in fact, nothing of the kind. They boil down to the fact that the Commissioner has not yet decided whether to retain the Applicant as a member of the force and has simply deferred matters until the completion of the disciplinary proceedings. The reasoning contained in the extension notices, including that dated 15th April 2024, is unlawfully brief. They fail to acknowledge the Applicant's rights under EU law and fail to move into the "middle ground" of discursive detail described by Clarke C.J. in Connelly v An Bord Pleanála [2018] IESC 31.
60. Further, since the Minister has elected not to put any evidence before the court, all that is before it is the Statement of Opposition which claims that the Minister considered the exceptional circumstances. No reasons are given.
61. In reply, Ms. Quigley says the Commissioner was exercising his discretion and relies upon the decision of Hogan J. in J. McE. v The Residential Institutional Redress Board [2016] IECA 17, where he said that the fact that the term "exceptional circumstances" were not defined provided "some textual evidence that the discretion to extend time is thus expressed to be of the highest level of generality". Whilst he was discussing the matter in the context of extending time for an Applicant to seek compensation, the point made is that the Oireachtas intended to leave the Minister with the greatest possible flexibility to deal with the wide variety of possible circumstances.
62. Further, in oral submissions the point was made that these are exceptional circumstances and that the Minister is entitled to a degree of deference as to whether in the exercise of her statutory functions, she formed the view that the circumstances outlined are sufficiently 'exceptional' to justify the extension.
Discussion- Re Exceptional Circumstances
63. It seems to me that the court must give a degree of deference to the Minister. It is not for the court to substitute its own views in relation to what does or does not constitute exceptional circumstances. This all has to be seen in the context of the case. Through the prism of the Respondents, the fact that the disciplinary process involved a probationer, that she twice went on maternity leave, that a member of the first Board of Inquiry retired within the process, could well said be said to be exceptional circumstances.
64. I do not accept the submission of the Applicant that the reasons are unlawfully brief so as to run afoul of the observations of Clarke CJ. in Connelly, where he referred to the "middle ground" of discursive detail. I think the information was clear and understandable.
65. In that judgment, he went on to say at para 10.14:
"The law on reasons does not require that one agrees with the reasons given. In a challenge based on allegedly inadequate reasoning, the law only entitles an interested party to know what the reasons were... It is no part of the function of this Court in this case to review whether there was a sustainable basis for any of the views expressed by the Board in that regard let alone to second guess the judgment of the Board as to whether it reached the correct conclusions."
66. Even if they were not, it seems to me that it would be dragging the court into the process too much for it to mandate, at this remove, what constitutes exceptional circumstances and therefore, I cannot find for the Applicant on this ground.
Delay in the Disciplinary Process
67. The Applicant submits that the disciplinary process against her is tainted by delay. The accident happened in June of 2019, the investigating officer was appointed in June 2020, he issued his Statement of Facts in November of 2020, but the Commissioner only decided to impanel the First Board in July of 2021. The period is neither explained nor justified. After the Second Board was established in May of 2023, this delay is neither explained nor justified. In December of 2023, the Applicant's solicitor, Mr. Moran, submitted that the process was inordinately and inexplicably delayed. The Applicant says that the law relating to delay in Garda disciplinary investigations is that there is an obligation to proceed with expedition. In this regard, the Applicant relies upon Martin v. Nationwide Building Society [2001]1 IR 228 and Gillen to which I referred to above. In that case, Finnegan J. (as he then was) noted " ... the court must consider whether there has been substantial compliance which would depend upon the facts of each individual case and will involve consideration of whether any prejudice has been caused or injustice done by regarding an act done out of time as valid."
68. The Applicant goes on to say that this delay permeates the whole case, thereby, accentuating her arguments under EU law and fair procedures.
69. In response, the Respondents say there has been no significant delay. For the Applicant's argument to succeed, there must be no justification for the delay and actual prejudice to the Applicant. Here, there is clear justification similar to that set out above. As far as actual prejudice is concerned, there is none.
Discussion - Delay in the Disciplinary Process
70. Much like the argument in relation to the issue of delay in relation to the extension of the Applicant's probationary period, it seems to me that there has not been any significant delay such as would taint the process. Such delay as has occurred is and has been explained and justified. I don't intend to repeat the reasons that I set out above in relation to the first ground, but it seems to me that that is not a good enough reason to stop the process. I think there has been substantial compliance, to use the wording of Finnegan J. in Gillen. Nor is it clear to me that there has been any prejudice caused or injustice done arising from any delay.
71. I do not believe that the period has been inordinately and inexplicably delayed. There have been reasons for the delay. In the circumstances, I have already found them to be reasonable and I do so again. In all the circumstances, it seems to me that I cannot hold with the Applicant on this ground.
The Correspondence dated the 5th of November 2020
72. The last and final submission the Applicant makes relates to the 'private and confidential' letter of the 5th of November 2020, from the investigating officer.
73. The Applicant says that the role of an investigating officer is simply to investigate the allegations and advise the Commissioner whether to impanel a Board of Inquiry and in this regard, she relies upon Regulations 24 and 25 of the 2007 Regulations. Thereafter, the Board of Inquiry ultimately decides whether there has been a breach of discipline.
74. The letter was part of the papers furnished to the First Board. For reasons which have never been explained, it did not form part of the papers furnished to the Second Board.
75. In this regard, the Applicant refers to the affidavit sworn by Superintendent Hoey of Internal Affairs within An Garda Síochána, where he swore at para. 12 that it is standard practice for an investigation file to be accompanied by a covering report, for the information of the Commissioner, prior to his decision to establish a Board of Inquiry. He went on to say as follows:-
"This covering letter will not be furnished to a Board of Inquiry that could be established pursuant to the 2007 regulations, to determine if the applicant in this case has committed a serious breach of discipline, so same could not and would not be "tainted" by the contents of this covering report."( emphasis added)
76. In reply, the Respondents say the investigating officer complied with the provisions of the 2007 Regulations and that it was standard practice for the Statement of Facts or report to be accompanied by a letter.
77. The actions of the Second Board in standing down do not give rise to a finding or deal with the merits and therefore, that matter cannot be res judicata. They rely upon the views of the Chair of the Board, who specifically made no finding, notwithstanding having been challenged on the issue by Mr. Moran to so do, at the hearing in December.
78. In this regard, both parties rely upon a case of Simons J. in Ivers v Commissioner of An Garda Síochána [2024] IEHC 626.
Discussion- on the letter of the 5th of November 2020
79. The letter of the 5th of November has to be seen in the context of the 2007 Regulations. Regulation 24(5) provides as follows:
"Within 7 days after the investigation has been completed, the investigating officer shall submit to the Commissioner a written report of the investigation containing his or her recommendation as to whether the facts disclosed warrant the establishment of a board of inquiry, together with copies of any written statements made during it and details of any information, document or thing which the investigating officer was made aware of during the investigation."
80. The purpose of the report, or Statement of Fact, as it has been referred to, is to report on his investigations and determine, in an impartial and correct manner, as Inspector Randles agreed, whether the facts disclosed warranted the establishment of a Board of Inquiry. He is also to furnish copies of any written statements made during it and details of information documents or anything which he was made aware of during the investigation. As I observed above, it is an open question as to whether that includes sending a robust accompanying letter over and above his Statement of Facts, as happened here.
81. However, as is patently clear from the affidavit of Superintendent Hoey, none of that was to be furnished to the Board of Inquiry. He says it clearly "The covering letter will not be furnished to a board of inquiry", but it was.
82. It is clear from what he said next, that the reason why it should never be furnished to a Board is to avoid tainting the Board by the contents of the letter.
83. This is so because the Board is set up to determine "whether the member concerned is in breach of discipline and, if so, as to the act or conduct constituting the breach and its recommendations as to any disciplinary action to be taken in respect of the breach" to quote Regulation 30(2)(b) and (c).
84. In those circumstances, fair procedures are upheld. The case is put by the prosecuting officer and answered by the member of the force accused, and the Board makes its decision based upon the evidence legally before it and only the evidence legally before it.
85. The Inspector found that she was untruthful and had acted in the manner he set out. He simply did not believe her. Nobody could be in any doubt as to what his views were. The letter went far beyond the Statement of Facts. For example, in relation to whether she attempted to contact a witness, in the Statement of Facts he noted the two witnesses had given evidence to him that the Applicant did not make contact with them concerning the accident, while she was adamant that she tried many times. In the letter, he said that she had bluffed her way through the interview and never expected that her untruthful account in relation to the witnesses would be verified. He said she never bothered to interview other witnesses and gave the impression that witnesses were uncooperative. He said "clearly the member never even tried to contact the injured pedestrian mother. This is another example of her bluffing way through the interview. It is very apparent the member lacks credibility and this is evidenced from the statements taken from X&Y".
86. All of this went before the First Board, but never got onto the record because that Board was dissolved. It then found its way before the Second Board through a circuitous route. This is the Board that makes its recommendations on the evidence and only the evidence before it. Yet, the Board did not have the letter until it was put to Inspector Randles.
87. Once the letter was introduced into evidence, it was clear that it presented the issues in a very different light to the Statement of Facts. It was and is prejudicial. In essence, he made findings of guilt. While he may be entitled to his views, under no circumstances should the First Board have been informed of those views or received that letter. But it did and in turn, it was given to the Applicant. Once the Second Board saw it, they came to the view that they could not continue in their role and stood down.
88. To quote Mr. Doyle, the Chair; "having regard to the disclosure of that letter, the contents of that letter and that it wasn't disclosed to this board, it would be unsafe for this board to proceed with the matter". Therefore, not only was the issue the existence of the letter, but also its contents and that initially, it had not been disclosed but now it had. This is clearly in breach of the practice and procedure as to how a Board of Inquiry carries on its business. That much is clear from the affidavit of Superintendent Hoey.
89. Further, Regulation 31(1) of the 2007 Regulations states that if the Board has recommended that disciplinary action should be taken in respect of a breach of discipline, the Commissioner shall, within 14 days after receipt of the report and subject to paragraph (2), decide on the appropriate disciplinary action to be taken. Therefore, the Commissioner does not have discretion as to whether to impose disciplinary action. He is mandated to do so, the only question is what severity of disciplinary action should be imposed.
90. By allowing the letter to circulate before the Board, no matter which board, the views of the investigating officer will be known well before any evidence is given. The concern must be that the guilt of the Applicant would be determined before the Board gets to hear any evidence, thus setting at naught the whole purpose of the Board of Inquiry. Given the mandatory effect of its decision upon the Commissioner, fair procedures will clearly have been breached.
91. The canary is out of the cage. The Respondents can never get it back into the cage. If the process is not stopped, a third Board of Inquiry will find itself in exactly the same position, on being informed of its contents. Further, that third Board will be told that the Second Board had decided to stand down, because they came to the view that it was unsafe to proceed.
92. In those circumstances, it seems to me that exactly the same thing will happen if a third Board is established, unless prevented by this court.
93. It is not a matter of res judicata. It is not an issue that has been adjudicated upon. It is an issue of breach of fair procedures. Therefore, the helpful observations of Simons J. in relation to res judicata, as set out in Ivers, are not relevant to this case.
94. In Rowland v An Post [2017] IESC 20, the Supreme Court said that a court should only intervene in an ongoing disciplinary process where it was clear that the process had gone "irremediably wrong" and that it was, more or less, inevitable that any adverse conclusion reached would be bound to be unsustainable in law. That is where we are now. This process has gone irredeemably wrong. It cannot be redeemed. This letter will always follow any subsequent Board of Inquiry and once the letter is produced, the same thing will happen.
95. I have concluded that this process is "irredeemably wrong" or damaged and is tainted by the letter of the 5th of November 2020. In those circumstances, it would be entirely wrong to allow it to continue.
96. Therefore, on that ground alone, I find for the Applicant. Accordingly, I shall make an order of prohibition in regard to the disciplinary process instituted against the Applicant.
97. As to legal costs, my provisional view is that the Applicant, having been successful in the judicial review proceedings, would be entitled to recover her costs against the other side in accordance with the default position under Section 169 of the Legal Services Regulation Act 2015.
98. This matter will be listed before me on the 10th of April 2025 at 10.30 o'clock for submissions on the form of the final order and on legal costs.