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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Mulligan v Commissioner of and Garda Siochana & Ors (Approved) [2025] IEHC 297 (15 May 2025)
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Cite as: [2025] IEHC 297

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APPROVED

REDACTED

AN ARD-CHÚIRT

THE HIGH COURT

                                                                                                                          [2025] IEHC 297

Record No. 2024/1012JR

BETWEEN/

JOHN MULLIGAN

APPLICANT

-AND-

 

THE COMMISSIONER OF AN GARDA SÍOCHÁNA, THE MINISTER FOR JUSTICE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS

JUDGMENT of Mr. Justice Conleth Bradley delivered on the 15th day of May 2025

 

 

 

 

 

CONTENTS

INTRODUCTION.. 3

Preliminary. 3

The judicial review proceedings & the circumstances of the incident being investigated.6

Preliminary Submissions (14th March 2024) 29

Further Submissions (15th May 2024) 30

Letter dated 18th July 2024. 32

DISCUSSION & DECISION.. 34

Vires & Statutory Interpretation. 34

Liaison Officer. 44

The circumstances of the Applicant's suspension. 45

Reasons for suspension. 56

First change of reason for suspension. 57

Second change of reason for suspension. 58

Disciplinary Process. 63

CONCLUSION.. 71

PROPOSED ORDER.. 73

 

 


INTRODUCTION

 

Preliminary

1.      The Applicant is a probationer member of An Garda Síochána ("probationer") who is the subject of a continuing suspension and a Board of Inquiry disciplinary process. The Board of Inquiry ("the Board") has chosen to 'pause' the disciplinary process after the Applicant instituted these judicial review proceedings and pending their determination.

 

2.      The Applicant's challenge relates to both (i) the continuing suspension and (ii) the manner of the disciplinary process and the effect each has on the Applicant, particularly having regard to his probationary status.

 

3.      The focus of the Applicant's challenge, in relation to both of these matters, is against the decisions taken by various persons under the control and authority of the Commissioner of An Garda Síochána ("the Commissioner"). The parties accept, therefore, that the Commissioner is the persona designata in relation to the various complaints made by the Applicant.

 

4.      It is submitted on the Applicant's behalf that the challenge to the continuing suspension raises issues of fairness centred around the giving of reasons and the furnishing of certain documentation and materials. It is argued that the continuing nature of his suspension has now been rendered unlawful arising from the Commissioner's failure to provide adequate reasons and materials as requested by the Applicant through his solicitor in correspondence dated 18th July 2024.

 

5.      The Applicant's arguments around the disciplinary process raise questions of vires and of statutory interpretation in the context of a report dated 14th November 2022 and the appointment of a liaison officer.

 

6.      In summary, the key features of the Applicant's challenge centre on: (i) the nature of the various statutory and regulatory processes which are activated in the circumstances of the suspension and discipline of a probationer; (ii) the applicable chronology i.e., when certain events and decisions by other participants or actors in these processes took place (for example, GSOC [1] and the DPP [2]); and (iii) a general overall complaint of delay, which, it is said, causes unfairness and prejudice to the Applicant, as a probationer.

 

7.      There is also an additional element which relates to the context, sequence and timing of this judicial review challenge. It is argued, for example, that these two central legal arguments were raised before the Board of Inquiry (as the agent of the Commissioner) and the Commissioner and that because the Board ruled against the Applicant, and the Commissioner refused the requests sought, the Applicant had no choice but to challenge the process by way of an application for judicial review notwithstanding that the disciplinary process was extant.

 

8.      Therefore, viewed through the prism of what the Applicant asserts is a failure to give reasons, it is argued that the suspension has, at the stage of the application for leave to apply for judicial review, become or been rendered unlawful due to the Commissioner's failure to meaningfully explain, to the standard required in the case law, why the Applicant remains suspended having regard to various decisions of other participants, which it is stated, has a direct bearing on the Applicant's status as a probationer. Therefore, when viewed along the spectrum of fairness, the Applicant claims that the point has now been reached where the Commissioner has failed to provide adequate reasons, failed to engage with the Applicant's submissions, failed to consider the effect which the continuing suspension has on the Applicant's probationary status and, generally, the suspension is vitiated by delay.

 

9.      Insofar as the second issue is concerned, it is contended that the disciplinary proceedings against the Applicant have been rendered unlawful because the report dated 14th November 2022 is ultra vires the Garda Síochána Act 2005 ("the 2005 Act") in comprising an investigation into a matter which, it is asserted is, in substance, an offence, and also by the appointment of a 'liaison officer', and because of the delay involved. In addition to the point about delay, these arguments essentially raise issues of vires and of statutory interpretation.

10.  The Applicant commenced training on 23rd April 2019 and was attested as a member of An Garda Síochána on 29th November 2019 when his probationary period commenced (and was due to be completed on 29th November 2021). The Applicant was posted to Buncrana Garda Station.

 

11.  The Applicant was suspended from duty in accordance with Regulation 7 of the Garda Síochána (Discipline) Regulations 2007 ("the 2007 Regulations") on 24th August 2020, which has in effect paused his probation, in accordance with Regulation 12(3)(a) of the Garda Síochána (Admissions and Appointments) Regulations 2013 ("the 2013 Regulations"). It is submitted on behalf of the Applicant that the effect of a suspension is particularly prejudicial to a probationer garda and that this, combined with the delay from November 2022 to May 2024, has meant that the Applicant's life and career have effectively been on hold for approximately four and a half years.

 

12.  The Applicant has been continually suspended since 24th August 2020 through a periodic review carried out by an Assistant Commissioner every three months and he has been the subject of disciplinary proceedings since 16th June 2023. During this period, the Applicant has been paid a suspension allowance in lieu of pay, while suspended, which is equivalent to 100% basic pay, including rent allowance.

 

The judicial review proceedings & the circumstances of the incident being investigated

13.  It is well-settled that the parameters of a judicial review application are framed by the leave application, (in this case) the amended Statement of Grounds, the Statement of Opposition and their respective verifying affidavits: Concerned Residents of Treascon and Clondoolusk v An Bord Pleanála & Ors [2024] IESC 28, AP v Director of Public Prosecutions [2011] IESC 2; [2011] 1 IR 729.

 

14.  The underlying themes in the Applicant's grounds in this regard are that the decision-making processes at issue in this case, and for which the Commissioner is responsible, namely the processes of suspension and discipline have treated the Applicant unfairly, both in terms of engagement (exemplified in the refusal to give reasons and materials when requested in, for example, the letter dated 18th July 2024 in the context of the three monthly review of the Applicant's suspension) which, it is asserted, is fundamentally unfair to the Applicant, the overall delay and particularly so, as he is a probationer, and additionally, the manner in which the disciplinary process commenced and, including, for example, the appointment of a liaison officer, both of which it is contended, are ultra vires.

 

15.  On behalf of the Applicant, it is submitted that the period of delay which applies to the Applicant's circumstances is prejudicial because he has been engaged in a disciplinary and suspension process for four and half years and effectively his life and career have been "on hold" during this period of time. As mentioned, the overall period of delay emphasised by the Applicant is from November 2022 to May 2024 and it is stated that this becomes more critical because the suspension effectively stops the probation period running and, therefore, the suspension is of paramount concern.

 

16.  It is submitted on behalf of the Applicant that whilst the initial holding suspension on 24th August 2020 or the first or second review of this suspension (for example, 3rd September 2020 or 23rd October 2020) does not attract the full panoply of rights and fair procedures, it is argued, however, that the Applicant's suspension at this remove  is now protracted and, therefore, it attracts fair procedures and the full panoply of rights come in to play, i.e., that the Applicant's rights continue to accumulate as the process continues and those rights have now effectively crystallised.

 

17.  In terms of the question of time and any alleged delay during the disciplinary process involving the Applicant, (paraphrasing the observations of the High Court (Baker J.) in Canavan v The Commissioner of An Garda Síochána [2016] IEHC 225 at paragraph 46), having regard to the overall time period in this case and the engagement on behalf of the Applicant by his solicitor, an important question is whether or not the Applicant has demonstrated individual prejudice in the conduct of his defence of the disciplinary charges during the entire period of four and a half years.

 

18.          In reviewing the relevant case-law which applied at that time, Baker J. stated that the Supreme Court in Gillen v Commissioner of An Garda Síochána [2012] 1 IR 574 remained authoritative, notwithstanding that it was decided under the Regulations of 1989, which did not contain an express requirement for expedition in a disciplinary investigation, observing that even those express requirements were held by the Supreme Court in that case to be directory rather than mandatory and that a lack of expedition, in and of itself, would not nullify an investigation. In Gillen v Commissioner of An Garda Síochána, the majority judgment of the Supreme Court was given by Finnegan J. who pointed to the requirement that "in each case regard must be had not just to the interests of the individual garda concerned, but also to the public interest in maintaining public confidence in An Garda Síochána." The delay in Gillen was over five years and was not regarded as unreasonable or excessive in the circumstances, albeit on the facts of that case the delay that occurred was in commencing the investigation and appointing an investigating officer, which the court regarded as "understandable and indeed excusable" having regard to the criminal matters which remained to be dealt with.

 

19.  When viewing the Applicant's grounds through, for example, the prism of fairness and the seeking of the reasons and materials which are being considered by the Commissioner, the case-law on reasons, which is now well-settled (for example, Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 IR 752, [2018] 2 ILRM 453) emphasises the following matters: (a) first, the requirement for reasons, if applicable, is not a matter of complying with a formal rule. The underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to engage and respond to issues raised by the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded; (b) second, a distinction can be made between the situation where a person has participated in a process and someone who has not. Thus, where someone has participated in a process and is closely involved, a decision-maker can, in some cases, point to information in documentation which would be obvious to that person, by dint of their participation, for the purposes of explaining a decision. The opposite scenario may, of course, be the case where a person had not been engaged in the process and was not so aware.

 

20.  The question of participation is also linked to the related question of the identification of documents, material or information. Indeed, the decision in Connelly v An Bord Pleanála contemplates that where, for example, reasons may be found in materials outside of both the decision itself and materials expressly referred to in the decision, care needs to be taken to ensure that any person affected by the decision in question can readily determine what the reasons are, notwithstanding the fact that those reasons do not appear in the decision itself or in materials expressly referred to in the decision. The range of persons who are able to challenge a particular decision will vary from case to case as will the extent of their involvement in the process and the requirement that reasons be given for a decision must be adequate necessitates that, where the reasons are not included in the text of the decision itself, they must be capable of being readily determined by any person affected by the decision.

 

  1. The Applicant's Affidavit sworn on 8th August 2024 verifies the Statement of Grounds which, though stamped and filed on 4th September 2024 in the Central Office of the High Court, was amended by the Order of the High Court (Farrell J.) on 9th September 2024 on granting the Applicant leave to apply for judicial review. I will, therefore, refer to the Amended Statement of Grounds dated 9th September 2024. The Statement of Opposition on behalf of the Respondents was date stamped as received by the Central Office of the High Court on 12th December 2024 and was verified by the Affidavit of Superintendent Adrian Kelly sworn on 11th December 2024.

 

  1. At paragraph 5 of his Affidavit sworn on 8th August 2025, Mr. Mulligan states that for the reasons set out in the Statement of Grounds, he believes that the Respondents each or either of them have erred. Mr. Mulligan swears a further Affidavit on 4th September 2025 verifying the Amended Statement of Grounds. A third Affidavit from Mr. Mulligan is sworn on 11th September 2024 seeking a stay or an injunction prohibiting the continuation of the Applicant's suspension and the disciplinary proceedings. This Affidavit indicates that the Presiding Officer of the Board of Inquiry had agreed at that point not to proceed further with the disciplinary investigation pending this judicial review challenge and that the Commissioner had failed to consider the matters raised in the letter written on behalf of the Applicant on 18th July 2024. In the Applicant's Amended Statement of Grounds, the letter from his Solicitor, Mr. Moran, dated 18th July 2024 is described as a "Pre-action letter".

 

  1. In addition, the Applicant's Solicitor, Mr. Martin Moran swore an Affidavit on 29th August 2024 which explains the immediate background to this application for judicial review.

 

  1. Mr. Moran had notified the Commissioner by letter dated 14th August 2024, noting that his letter dated 18th July 2024 had not been responded to and informing him that these judicial review proceedings had been instituted and were awaiting a date from the Central Office.

 

  1. The letter of 14th August 2024 called upon the Commissioner to lift the Applicant's suspension immediately and to discontinue the disciplinary proceedings against the Applicant. This correspondence was acknowledged by e-mail of the same date, 14th August 2024, on behalf of the Assistant Commissioner, Governance and Accountability, Inspector Shane O'Carroll. In advance of 19th August 2024, Mr. Moran contacted the Presiding Officer of the Board of Inquiry and informed her of the legal proceedings and on a date prior to 19th August 2024 (Mr. Moran suggests the 16th August 2024) the Presiding Officer, having discussed the matter with the other Board members, informed Mr. Moran that the Board had agreed to adjourn the disciplinary proceedings pending the resolution of these judicial review proceedings.

 

  1. It will be recalled that previously, on 7th August 2024, the Presiding Officer had written to Mr. Moran and had stated that pursuant to the 2007 Regulations, the Board would convene at Monaghan Garda Station on 19th, 20th, and 26th August 2024 commencing at 11:00am, for hearing identified six witnesses.

 

  1. Given the above chronology, it is likely that the drafting of the Board's preliminary ruling pre-dated both 16th August 2024 and 19th August 2024 but was in fact furnished to Mr. Moran on 19th August 2024 at the hearing on that date. This is also important in terms of the context, sequence and timing of this judicial review challenge. The Board's ruling which pre-dated (but was delivered) on 19th August 2024 arose from preliminary hearings held on 14th March 2024 and 15th May 2024 and at paragraph 7 of the ruling the Board described the totality of the submissions which had been made by Mr. Moran Solicitor on behalf of the Applicant as follows:

 

"(1) That there had been inordinate and inexcusable delay in dealing with the matter,

(2) GSOC has failed to comply with the provisions of either section 95 (particularly 95(3) or 97 of the Garda Siochana Act, 2005, in that:

(i) An interim report was furnished to the Garda Commissioner in August 2022 in contravention of the provisions,

(ii) it failed to act lawfully or in compliance with its own rules,

(iii) the investigation carried out was in breach of natural justice, fair procedures and ultra vires the 2005 Act, and

(iv) No real investigation was carried out save for a review of the statements made on the criminal side

(3) GSOC has failed to explain their rationale for the redactions of some of their documents [the Board points out in a footnote that this submission was not pursued and no determination was made in relation to it]

(4) That the appointment of Inspector Coughlan was ultra vires either the Disciplinary [R]egulations or the 2005 Act and that the Board of Inquiry had erred in misconstruing him as the Investigating Officer".  

 

  1. The Board then gave its ruling on these matters holding against the propositions put forward by Mr. Moran Solicitor and concluded as follows at paragraphs (44) and (45):

 

"(44) It is therefore the decision of this Board of Inquiry that, on the balance of probabilities, the Member has not shown a basis for abandoning this Inquiry.

(45) It is therefore the intention of this Board to continue with its hearing today, unless anything further arises."

 

  1. Returning to Mr. Moran's Affidavit, he points out that as neither the Board or separately the Commissioner agreed to 'discontinue' the disciplinary proceedings (and in the Commissioner's case, the suspension), he agreed with the Presiding Officer of the Board, presumably at the resumed hearing in Monaghan garda station on 19th August 2024, that the disciplinary proceedings should be adjourned generally with liberty to re-enter until these judicial review proceedings had concluded.

 

  1. An important question in assessing the disciplinary proceedings is whether 'progress' has or had been made in that process. As set out later in this judgment, I consider that progress was being made in the disciplinary process. Whilst Mr. Moran makes the point that by 19th August 2024 the Board's decisions to that point were comprised in the ruling, which pre-dated, but issued on that date, the Presiding Officer of the Board had, on 7th August 2024, written to Mr. Moran and had stated that pursuant to the 2007 Regulations, the Board would convene at Monaghan Garda Station on 19th, 20th, and 26th August 2024 commencing at 11:00am, for hearing six identified witnesses.

 

  1. In discussing these dates, it will be recalled that Statutory Instrument No. 163/2024 amends Order 84 of the Rules of the Superior Courts 1986 for the purposes of calculating time, and an application for leave to apply for judicial review is deemed to be "made" when the documents grounding the application are filed and issued in the Central Office (or before the High Court in urgent cases) prior to the case being given a date for moving the ex parte application in court.

 

  1. In his Affidavit of 8th August 2024, prior to moving the 'leave application', the Applicant, Mr. Mulligan, states at paragraph (3) that he has read the Statement of Grounds and he verifies that the facts set out therein are true. He refers, at paragraph 4, to an indexed paginated bundle of documents which he exhibits at "JM1" as comprising the following:

 

"(a) Notes of my interview dated 24th August 2020,

(b)"Notice to Garda John Mulligan 3486E at outset of section 95 Investigation"

(c)GSOC's rules pertaining to section 95 investigations,

(d)Letter from GSOC dated 16th June 2022,

(e)Letter from GSOC dated 17th August 2022,

(f)Section 97 report dated 14th November 2022,

(g)Form IA dated 16th June 2023,

(h) Notice of preliminary hearing dated 23rd February 2024,

(i) Transcript of preliminary hearing dated 14th March 2024,

(j) Transcript of preliminary hearing dated 15th May 2024,

(k) Letter from Board of Inquiry dated 21st March 2024,

(l) "Preliminary" and "Further" Submissions made by my agent to the Board of Inquiry,

(m) A copy of the "Policy document on the suspension from duty of members of An Garda Síochána under the Garda Síochána (Discipline) Regulations 2007 as amended."

(n)   All suspension notices issued to date,

(o)   All notices of the extension of my probationary period,

(p)   All consents of the Second Named Respondent to the extension of my probationary period".

 

  1. The contents of these documents held by the Applicant on the eve of this leave application for judicial review are important and describe inter alia 'the circumstances of the incident being investigated' and the engagement or participation of the Applicant in relation to these matters. They are addressed as follows as part of the overall chronology.

 

  1. The "(a) Notes of the Applicants interview dated 24th August 2020" comprise, for example, notes of the interview taken by D/G Doherty and D/G Quigley with the Applicant in Monaghan Garda Station on 24th August 2020 where the Applicant answered questions in relation to the alleged incident. The interview was carried out in two tranches and the notes sets out in detail the Applicant's account of matters.

 

  1. The notice described at "(b) Notice to Garda John Mulligan 3486E at outset of section 95 Investigation" states that it is a written notice to inform the Applicant that an investigation is being conducted by GSOC pursuant to section 95 of the 2005 Act.  It inter alia informed the Applicant that "A section 95 investigation takes place into conduct that may amount to a breach of discipline under Schedule 5 of the Act or the Garda Síochána Discipline Regulations, as appropriate. A Section 95 investigation will only be commenced where the alleged misbehaviour does not appear to constitute a criminal offence." As referred to later in this judgment, this is a matter which touches upon the question of statutory interpretation and the issue of vires.

 

  1. The notice then summarised 'the matter which was being investigated' and described the incident in the early hours of 24th August 2020 at the Applicant's home address where the Applicant allegedly engaged in sexual activity with Ms. XY [3], summarising briefly the Applicant's account, from his statement under caution, of what allegedly occurred, including that on 24th August 2020 he drove his car whilst being over the legal alcohol limit for driving a motor vehicle, and also briefly summarised the allegations of Ms. XY in relation to the alleged sexual engagement with the Applicant.

 

  1. The notice then set out the 'Alleged Breaches of Discipline' as follows:

 

"Your actions on 24 August 2020 where your conduct may have amounted to discreditable conduct.

 

The above matter has been directed for investigation pursuant to section 95 of the Garda Síochána Act, 2005 on the basis that it may disclose a potential breach or breaches of discipline namely discreditable conduct contrary to Schedule 5 of the Garda Síochána Act, 2005.

 

N.B. Please be advised that GSOC has a statutory mandate to investigate alleged garda misbehaviour both criminal and disciplinary and to make recommendations. GSOC has no statutory mandate to discipline or prosecute."

 

38.  The document at "(c)GSOC's rules pertaining to section 95 investigations" sets out the procedural rules for an investigation pursuant to section 95 of the 2005 Act other than an investigation relating to a protected disclosure. It stated that an investigation pursuant to section 95 of the 2005 Act is an investigation into an incident involving conduct by a member of An Garda Síochána that does not amount to a criminal offence but may be a breach of the Garda Síochána Discipline Regulations. The document inter alia stated there were five phases in a section 95 investigation and outlined those as follows: 'Phase 1: Administration', with reference being made to section 95 of the 2005 Act; 'Phase 2: Evidence Gathering', which referred to sections 95, 96 and 98 of the 2005 Act; 'Phase 3: Review', reviews all material obtained during phases 1 and 2 and considers inter alia three matters: (i) is there insufficient or no evidence of disciplinary or criminal misbehaviour; (ii) is there evidence that a member may be in breach of the Garda Síochána Discipline Regulations; (iii) is there evidence of a criminal offence; 'Phase 4: Opportunity to be heard and disclosure' provided that in the context of Garda Members (which includes the Applicant) where GSOC determines, following completion of phases 2 and 3, that a possible disciplinary breach has been disclosed by a garda member(s), the following documents will be served on the garda member(s) concerned by ordinary pre-paid post: (i) a section 95 notice outlining the circumstances of the incident being investigated, details of the alleged misbehaviour and the potential breach of discipline identified; (ii) a copy of the section 95 rules; (iii) a scheduled copy of all relevant documents (subject to redactions as appropriate); (iv) a schedule of documents not disclosed and a rationale for non-disclosure; and, (v) an acknowledgement of service form. Phase 4 also includes the garda in question being afforded 21 days (or longer) from service of the section 95 notice and accompanying documentation to avail of an opportunity (i) to be heard in person or by a legal representative, and (ii) to present evidence and make submissions to GSOC. Phase 4 also included details of GSOC's interaction with the complainant; the 'Phase 5 Section 97 Report' stated that on completion of phases one to four, a 'section 97 report' will be prepared following a review of all available information and documentation. It further stated that the 'section 97 report' is forwarded to the Garda Commissioner and contains the following information:

 

"(i) A statement of the facts established by the investigation;

(ii) A recommendation as to whether disciplinary proceedings should be instituted by the Garda Commissioner;

(iii) A statement of the reasons for the recommendation;

(iv) Any particulars relating to the institution of disciplinary proceedings that GSOC consider appropriate

 

GSOC will advise the garda member(s) subject to the investigation, the complainant (if applicable) and any other person, as is considered appropriate, that a section 97 report has been sent to the Garda Commissioner and what has been recommended by GSOC, as appropriate.

GSOC will advise the complainant, and any other person, as is considered appropriate, of the Garda Commissioner's decision following receipt of GSOC's recommendation(s)."

 

39.  Two letters dated 16th June 2022 were sent to the Applicant from GSOC.

 

40.  In a letter dated 16th June 2022 which was referenced "Re: Allegation of Rape Monaghan District", the Applicant was informed in writing by the Investigating Officer, John O'Sullivan from GSOC (referring to their earlier telephone conversation) that pursuant to section 103 of the 2005 Act, the investigation by GSOC pursuant to section 98 of the 2005 Act was complete and a file had been forwarded to the DPP and that GSOC had received the directions of the DPP dated 13th April 2022 that there would be no prosecution of the Applicant in respect of the allegation of rape that had been investigated.

 

41.  This letter dated 16th June 2022 also continued as follows:

 

"GSOC have considered whether any further investigation under section 95 of the Act is required and has decided that further investigation under section 95 of the Garda Síochána Act 2005 is required. This investigation will focus on potential discreditable conduct.

In relation to your request for a copy of the memo of your cautioned interview, GSOC will not be providing this at this time. As stated, there is an active disciplinary investigation ongoing and material relevant to the investigation will be disclosed to you in due course.

If you have any queries, please do not hesitate to contact the undersigned".

 

42.  Significantly, by this letter dated 16th June 2022 from GSOC's Investigating Officer, the Applicant was informed of the following matters:

 

·         that pursuant to section 103 of the 2005 Act, the investigation by GSOC pursuant to section 98 of the 2005 Act was complete and a file had been forwarded to the DPP;

·         the DPP had decided on 13th April 2022 that there would be no prosecution in respect of the allegation of rape;

·         GSOC decided that further investigation under section 95 of the 2005 Act was required which would focus on potential discreditable conduct.

 

43.  The Applicant, or his legal advisers, do not appear to have sought to challenge or dispute these decisions made on 16th June 2022.

 

44.  In the second letter dated 16th June 2022, referenced "Re: Section 95 Investigation otherwise than on foot of a complaint" from Jon Leeman, Senior Investigating Officer in GSOC, the Applicant was informed that on 24th May 2022 GSOC had decided to launch a 'section 95 investigation' on GSOC's own initiative pursuant to section 102(4) of the 2005 Act.

 

45.  This letter enclosed: (i) a notice containing the details of the incident being investigated by GSOC pursuant to section 95 of the 2005 Act including the alleged breach of discipline; and (ii) a copy of the procedural rules for an investigation pursuant to section 95 of the Act.

 

46.  This letter also stated that "The DPP has indicated her desire to be advised when a prosecution (on foot of a Garda investigation) has been commenced into an incident that is also the subject of a Garda Ombudsman investigation. If this is, or becomes, such a case you might please advise her office accordingly".

 

47.  The letter gave details to facilitate the Applicant contacting the GSOC investigating officer, John O'Sullivan.

 

48.  On 17th August 2022, the Investigating Officer from GSOC, John O'Sullivan, wrote to the Applicant inter alia setting out matters in relation to the section 95 investigation pursuant to the 2005 Act and enclosed the following documents: (i) a section 95 notice outlining "the circumstances of the incident being investigated", updated details of the alleged misbehaviour and the potential breaches of discipline that had been identified; (ii) a copy of the section 95 rules; (iii) a scheduled copy of all relevant documents (subject to redactions); (iv) a schedule of documents not disclosed and a rationale for non-disclosure and (v) an acknowledgement of service form. The letter referred to the 21 days (or such extended period if there were good reasons) from the date of service on 18th August 2022 of the section 95 notice and accompanying documentation for the Applicant to avail of the opportunity to (i) to be heard, in person or by a legal representative, and (ii) to present evidence and make submissions to GSOC.

 

49.  On the same date, 17th August 2022, the Investigating Officer from GSOC, John O'Sullivan, wrote to the Chief Superintendent, Internal Affairs at Garda headquarters in relation to the section 95 Investigation under the 2005 Act, and described, following a review of the materials and information, the alleged summary of the potential breaches of discipline which had been identified, which referred inter alia to the Applicant, in the early hours of 24th August 2020, engaging in sexual activity with Ms. XY at his home address, his account of same and Ms. XY's subsequent allegation, the Applicant's description of these matters during his cautioned interview including that on 24th August 2020 he drove his car whilst being over the legal alcohol limit for driving a motor vehicle.

 

50.  The letter of 17th August 2022 further stated that the section 95 investigation had disclosed the following alleged potential breaches of discipline: (1) Potential Discreditable Conduct: GSOC considers that following a review of the available information, that on 24th August 2020 Garda Mulligan stopped sexual activity with Ms. XY due to her level of intoxication, but subsequently engaged in further sexual activity with her; (2) Potential Discreditable Conduct: GSOC considers that following a review of the available information, that on 24th August 2020, Garda Mulligan drove his motor vehicle on a public road whilst being over the legal alcohol limit.

 

51.  The letter stated that the Applicant's actions may have amounted to discreditable conduct and that the matter had been directed for investigation pursuant to section 95 of the 2005 Act on the basis that it may disclose potential breaches of discipline namely discreditable conduct contrary to Schedule 5 of the 2005 Act and enclosed the section 95 notices which would be served on the Applicant on 18th August 2022.

 

52.  Consequent upon the section 95 investigation, the document at "(f)" is the "Section 97 report dated 14th November 2022" (prepared by Designated Officer John O'Sullivan and endorsed by Jon Leeman, DDO on 14th November 2022). This report, minus appendices, runs to approximately 33 pages. The accompanying material includes statements of various persons, statements of various gardaí, memos of the first and second cautioned interviews with the Applicant and a USB stick containing copies of the two cautioned interviews with the Applicant and CCTV from McNally's Garage allegedly appearing to show the Applicant driving.

 

53.  The allegations cited in the report dated 14th November 2022 were as follows:

 

"- GSOC considers that following a review of the available information, that on the 24 day of August 2020 Garda John Mulligan stopped sexual activity with XY due to her level of intoxication, but subsequently engaged in further sexual activity with her.

- GSOC considers that following a review of the available information, that on the 24 day of August 2020 Garda John Mulligan drove his motor vehicle on a public road whilst being over the legal alcohol limit".

 

54.  The report dated 14th November 2022 then sets out the details of the investigation carried out which included a statement from the complainant Ms. XY, the witness accounts from various persons, a summary of the statements from Garda Jennifer Malone and Garda Edward Sheppard who were the first members of An Garda Síochána to meet with Ms. XY and a summary of the account of the Applicant in interview after caution, which whilst not a verbatim account, is very detailed.

 

55.  The report dated 14th November 2022 sets out the GSOC investigation which included inter alia that on 24th May 2022, the Chairman of GSOC directed that the matter be investigated in accordance with section 95 of the 2005 Act, the notification of the investigation to An Garda Síochána and the Applicant on 16th June 2022, the hand delivery by Designated Officer O'Sullivan of disclosure material to the Applicant on 18th August 2022 (and confirmation of receipt was received at GSOC).

 

56.  The report sets out a detailed overview of the alleged evidence and refers to "Section 95 submissions" at paragraph 2.5 as follows:

 

"GSOC Designated Officer (DO) O'Sullivan met with Garda John Mulligan at his home address in Monaghan on 18 August 2022 and personally served disclosure of documents relevant to this investigation, and CCTV of his two caution interviews and CCTV appearing to show John Mulligan driving his car at McNally's Garage, Monaghan.

Designated Officer O'Sullivan informed John Mulligan that he had 21 days from receipt of disclosure to make a submission or be heard in person or by his solicitor. He advised that Martin Moran was his solicitor, and he would be forwarding the material to him.

21 days after disclosure service passed on 08 September 2022. On 15 September 2022 Designated Officer O'Sullivan emailed Martin Moran to establish if he would be making a submission or if his client wished to present evidence to GSOC.

Designated Officer O'Sullivan emailed Martin Moran again on 19th September 2022 and gave a 14-day deadline for submissions to be received, or for his client to be heard in person or by his legal representative. That 14-day deadline passed on 03 October 2022, and no reply has been received."

 

57.  This confirms that as of 3rd October 2022, the Applicant had been furnished with materials and information and had been given an opportunity to make submissions, which had not been availed of.

 

58.  The report then set out a statement under section 97(1)(a) of the 2005 Act.

 

59.  The report set out its recommendation pursuant to section 97(1)(b) of the 2005 Act as follows:

 

"I recommend that disciplinary proceedings should be instituted under the Garda Síochána (Discipline) Regulations, 2007 against Garda John Mulligan for possible breaches in relation to: (1) Discreditable Conduct - By engaging in sexual activity with [Ms. XY], after believing her to be too drunk for sexual activity moments earlier; (2) Discreditable Conduct - By driving his motor car on a public place whilst intoxicated."

 

60.  The report sets out a statement of reasons as per section 97(1)(c) of the 2005 Act and the particulars pursuant to section 97(1)(d) of the 2005 Act as follows:

 

"I recommend that disciplinary proceedings should be instituted under the Garda Síochána (Discipline) Regulations, 2007 against Garda John Mulligan for possible breaches in relation to:

-          Discreditable Conduct, GSOC considers that following a review of the available information, that on the 24 day of August 2020 Garda John Mulligan stopped sexual activity with XY due to her level of intoxication, but subsequently engaged in further sexual activity with her.

The said Discreditable Conduct is a breach of discipline within the meaning of Regulation 5 of the Garda Síochána (Discipline) Regulations, 2007 and is described at number 1 in the schedule to the said regulations.

-          Discreditable Conduct, GSOC considers that following a review of the available information, that on the 24 day of August 2020 Garda John Mulligan drove his motor vehicle on a public road whilst being over the legal alcohol limit.

-          The said Discreditable Conduct is a breach of discipline within the meaning of Regulation 5 of the Garda Síochána (Discipline) Regulations, 2007 and is described at number 1 in the schedule to the said regulations."

 

61.  On 16th June 2023, Assistant Commissioner Jonathan Roberts signed Form I.A33 which established the Board of Inquiry under Regulation 25(1) of the Garda Síochána (Discipline) Regulations 2007 (as amended): (a) to determine whether a serious breach of discipline had been committed by the Applicant; and (b) if so, to recommend to the Commissioner the disciplinary action to be taken.

 

62.  There is no explanation for the delay between the report of 14th November 2022 and the establishment of the Board, seven months later on 16th June 2023. It was submitted on behalf of the Commissioner, that the issue of delay had to be seen in the round and in the context of entire period and all stages of the processes involved.

 

63.  The persons appointed to comprise the members of the Board were Ms. Maeve Boyle, Barrister as Presiding Officer and Chief Superintendent Brian Woods from the Special Detective Unit and Superintendent Fionnuala Olohan, Liaison & Protection as the other two members of a three-person Board.

 

64.  The Board was to meet at 11:00am on Monday 4th September 2023 at Monaghan Garda Station. As two Board members would not be available on that date, by further notice dated 29th August 2023 the Board was adjourned to early November 2023. Due to the bereavement of the Presiding Officer's mother in early November 2023, the Presiding Officer was on compassionate leave at this time and returned on 10th January 2024.

 

65.  The document at "(h) Notice of preliminary hearing dated 23rd February 2024" is the notice of a preliminary hearing which was issued by the Presiding Officer of the Board dated 23rd February 2024 to the Applicant which enclosed the IA33 dated 16th June 2023, the IA 35 dated 23rd February 2024 (which included the notification to the Applicant from the Presiding Officer), the section 95 Investigation Disclosed Documents, the section 97 Investigation Report and GSOC Statement of Facts.

 

66.  The Form I.A(S) 35 at "D. Particulars of the serious breach(es) of discipline alleged" set out three alleged particulars of 'Discreditable Conduct', each of which was alleged to be a breach of discipline within the meaning of Regulation 5 of the Garda Síochána (Discipline Regulations) 2007 and described at reference number 1 in the schedule to the said Regulations: the first alleged that the Applicant admitted under caution to having engaged in sexual activity with Ms. XY on about 23rd/24th August 2020 in an upstairs bedroom of his home  knowing or believing or being reckless as to whether she was too intoxicated to engage in same; the second alleged that the Applicant admitted under caution to having engaged in sexual activity with Ms. XY on about 23rd/24th August 2020 in a downstairs room of his home knowing or believing or being reckless as to whether she was too intoxicated to engage in same; the third alleged that the Applicant admitted under caution to having driven a mechanically propelled vehicle whilst intoxicated in a public place on or about 23rd/24th August 2020.

 

67.  The Applicant was notified that pursuant to the provisions of Regulation 27(5) of the 2007 Regulations, the Board would convene at Monaghan Garda Station on 14th March 2024, commencing at 11:00am for the purposes of a preliminary hearing to deal with directions, witnesses and a number of other preliminary matters but that no evidence would be heard on that date.

 

68.  By letter dated 7th August 2024, the Presiding Officer of the Board wrote to the Applicant's Solicitor, Mr. Moran and stated that pursuant to the 2007 Regulations, the Board would convene at Monaghan Garda Station on 19th, 20th, and 26th August 2024 commencing at 11:00am, for hearing and listed six witnesses who would be summoned to attend before the Board and asked Mr. Moran to notify the Applicant.

 

69.   The document at "(i) Transcript of preliminary hearing dated 14th March 2024" is the transcript of the hearing held on 14th March 2024 at which Mr. Moran, the Applicant's solicitor appeared before the Board.

 

70.  The document at "(j) Transcript of preliminary hearing dated 15th May [sic.] 2024" is the transcript of the hearing on 15th May 2024 where Mr. John O'Sullivan, Inspector Kenneth Coughlan and Mr. Martin Moran, Solicitor, appeared before the Board.

 

 

Preliminary Submissions (14th March 2024)

  1. The documents referred to at "(l)"Preliminary" and "Further" Submissions made by my agent to the Board of Inquiry" comprise written submissions made by the Applicant's Solicitor, Mr. Moran, to the Board.

 

  1. As referred to earlier, Mr. Moran, for example, made a number of preliminary submissions to the Board's hearing on 14th March 2024, a number of which were directed at the role of GSOC. These submissions included an assertion that there had been inordinate and inexcusable delay stating that the incident was alleged to have taken place on 24th August 2020 and that the Board sat for the first time on 14th March 2024.

 

  1. The submissions of 14th March 2024 also canvassed the subsequent argument made on behalf of the Applicant at the hearing before me which centred on the question of vires (and statutory interpretation) and the "Section 97 report dated 14th November 2022" when it was submitted that GSOC had not complied with sections 95, 95(3) and 97 of the Regulations 2007 and at paragraph (f) of the preliminary submissions of 14th March 2024, it was inter alia claimed that "GSOC have attempted to substitute a criminal investigation conducted by them into a disciplinary process after the DPP has made a decision not to prosecute the criminal allegation. This is not allowed".

 

Further Submissions (15th May 2024)

  1.  In 'Further Submissions' in addition to the preliminary submissions were made, following the further hearing at Monaghan Garda Station on 15th May 2024, the following seven points were made by Mr. Moran Solicitor, on behalf of the Applicant:

 

"(1)There has been no explanation for the inordinate and inexcusable delay.

(2) GSOC have failed to comply with their mandatory obligation under section 97 of the Garda Síochána Act 2005.

(3)The first report dated the 17th of August 2022 forwarded to Internal Affairs is ultra vires the regulations.

(4)The first report of the 17th of August 2022 is unlawful and not in compliance with fair procedures.

(5)GSOC have failed to comply with their own rules.

(6)The reported investigation by GSOC is in breach of natural justice, fair procedures and is unlawful. It is also ultra vires the Garda Síochána Act 2005.

(7)The Board of Inquiry erred in misconstruing the role of the Investigating Officer. Further the decision made by the Chief Superintendent McGovern dated the 28th of June 2023 is ultra vires the Regulations."

 

75.  The documents at "(m) A copy of the "Policy document on the suspension from duty of members of An Garda Síochána under the Garda Síochána (Discipline) Regulations 2007 as amended" and "(n) All suspension notices issued to date" relate to the Applicant's suspension and are referred to later in this judgment.

 

76.  The documents described as "All notices of the extension of my probationary period, All consents of the Second Named Respondent to the extension of my probationary period" refer to the Applicant's probationary period. The Applicant had completed nine months of his probation period at the time of his suspension.

 

Letter dated 18th July 2024

77.  In the foregoing, I have set out the proximate context which led to the letter dated 18th July 2024 being issued. The question arises as to why, when the disciplinary process before the Board was in being, and participated in by the Applicant and his solicitor, the within proceedings were commenced.

 

78.  The central tenet of the argument on behalf of the Applicant is that the requirement for fair procedures, reasons and expedition become increasingly engaged the longer the process continued and on the facts of this case, the issues crystallised in July 2024 and the immediate context to this application for judicial review lies in this letter dated 18th July 2024 from the Applicant Solicitor's to the Garda Commissioner.

 

79.  On 18th July 2024 (received on 24th July 2024), the Applicant's Solicitor wrote to the Commissioner stating inter alia that the Applicant's suspension had been unlawfully delayed and was unjustified and that the entire process had the effect of being both punitive and disproportionate.

 

80.  The letter requested that the Commissioner consider alternatives to suspension.

 

81.  The letter inter alia pointed out that the Applicant remained on probation and that the Commissioner had ample time for considering whether the Applicant demonstrated "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" as per Regulation 12(4) of the 2013 Regulations.

 

82.  The letter stated that the nature of the allegation had been vehemently denied at all times and that it was scandalising, stigmatising and hanging over the Applicant for too long despite the direction from the DPP that there would be no prosecution. The letter stated that these factors strongly suggested that the suspension should be lifted immediately without prejudice to the Applicant's right to make fuller submissions upon receipt of the requested materials.

 

83.  Insofar as the disciplinary investigation was concerned, the letter requested that this also had been subject to serious delays and should be discontinued and that two submissions had been made to the Board in relation to the lawfulness of the inquiry (and these were enclosed with the letter).

 

84.  Without prejudice to the assertion that the suspension should be immediately lifted, the letter of 18th July 2024 requested the following matters to allow the Applicant address, by way of further submissions, the question of his suspension and why it should be lifted, namely, reasons, materials and an oral hearing on the question of whether to renew his suspension.

 

85.  Insofar as reasons in relation to the Applicant's suspension were concerned, the letter of 18th July 2024 stated that "the purported reasons" set out in the various suspension notices furnished were inadequate and stated that:

 

"They do not explain why in the round his suspension is merited. We therefore require a full and complete set of reasons as to why our client's suspension was, and is, continuing, including reasons as to whether and how the criteria in the Commissioner's Policy Document (including those relating to long terms suspensions), have been met."

 

86.  In relation to materials, the letter stated that copies of all documents, including the views of the Applicant's Divisional Officer, which had been considered in deciding to extend the Applicant's suspension to date and a copy of all documents, including the views of the Applicant's Divisional Officer, which "might be reviewed" by the Commissioner in deciding whether the Applicant's suspension "should be further extended."

 

87.  The letter, therefore, called upon the Commissioner to immediately provide the reasons and materials sought concerning the Applicant's suspension, lift the Applicant's suspension and terminate the disciplinary proceedings and bring the Applicant's probationary period to an end. The letter reserved the Applicant's entitlement to bring these proceedings.

 

DISCUSSION & DECISION

 

Vires & Statutory Interpretation

88.  In terms of the question of vires and the report of 14th November 2022, it is argued on behalf of the Applicant that GSOC's position is circular and potentially unending in that GSOC cannot state that the alleged incident is a criminal offence, investigate it as a criminal offence, and send the file to the DPP and when the DPP says it will not prosecute, that does not change GSOC's determination that it is a criminal offence. In those circumstances it is submitted that GSOC should not be allowed to commence an investigation of the matter pursuant to section 95 of the 2005 Act as if it was a criminal offence and that GSOC were functus officio once it was determined that there was no prosecution i.e., in summary, the Applicant submits that the GSOC report dated 14th November 2022 (the detail of which is set out earlier in this judgment) was ultra vires in comprising an investigation into a matter which, it is said, was treated by it, in substance, as being an alleged offence.

 

89.  For the following reasons, I do not consider that the GSOC report dated 14th November 2022 is ultra vires as contended for on behalf of the Applicant.

 

90.  In a number of relatively recent decisions, the Superior Courts have restated that the ascertainment of the literal words and plain meaning in a statutory provision cannot be viewed in isolation from the text of the legislation as a whole, its context (both immediate and proximate) or the purpose for which it was enacted.

 

91.  In The People (DPP) v Crawford [2024] IESC 44, Donnelly J., by reference to these authorities, set out the applicable approach, at paragraph 92 of her judgment, as follows:

 

"(92) In recent years, this Court has addressed the issue of statutory interpretation in a number of important judgments (see especially People (DPP) v AC [2021] IESC 74, [2022] 2 I.R. 49 and Heather Hill Management Company v An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313). In the case of A, B and C v The Minister for Foreign Affairs and Trade [2023] IESC 10, 1 I.L.R.M. 335, Murray J. said that the cases on statutory interpretation including Heather Hill Management Company CLG and Anor v An Bord Pleanála:

"have put beyond doubt that language, context and purpose are potentially in play in every exercise in statutory interpretation, none ever operating to the complete exclusion of the other. The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in that section must still be construed having regard to the relationship of the provision in question to the statute as a whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. 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"."

 

92.  Part 4 of the Garda Síochána Act 2005 addresses a wide range of matters covered by 'Complaints, Investigations and other Procedures' from sections 82 (definitions) to section 112 (qualified privilege for certain statements and publications).

 

93.  As recently observed by the Supreme Court (Murray J.) in Donegal County Council v Quinn & Anor [2025] IESC 19, at paragraph (3), if the first and universal rule of statutory construction is directed to what the words used in the provision mean, the question of why they were intended to bear any asserted meaning will often be a close runner-up. 

 

94.  The provisions applicable in this case are contextualised in the 'Section 97 Investigation Report following a Section 95 Investigation' dated 14th November 2022 (prepared by Designated Officer John O'Sullivan and endorsed by Jon Leeman, DDO) exhibited in the Affidavit of Superintendent Adrian Kelly on behalf of the Commissioner sworn on 11th December 2024 (at paragraph 7) and summarised earlier in this judgment.

 

95.  Section 101 of the 2005 Act provides for the making of a report consequent upon an investigation under section 98 of the 2005 Act.

 

96.  Section 101(2)(a) and (b) of the 2005 Act provides that "[i]f the Ombudsman Commission, after considering the designated officer's report, is of the opinion that the conduct under investigation may constitute an offence by the member of the Garda Síochána concerned, it shall (a) send a copy of the report and of the investigation file to the Director of Public Prosecutions together with any recommendations that appear to the Commission to be appropriate (b) at the Director's request, provide him or her with any other information relating to the investigation that appears to the Director to be necessary for performing his or her functions under the  Prosecution of Offences Act 1974" (underlining added).

 

97.  Section 102(4) of the 2005 Act provides that GSOC "may, if it appears to it desirable in the public interest to do so and without receiving a complaint, investigate any matter that appears to it to indicate that a member of the Garda Síochána may have (a)committed an offence, or (b) behaved in a manner that would justify disciplinary proceedings."

 

98.  Section 102(5) of the 2005 Act provides that "[i]f a member of the Garda Síochána is convicted of an offence in respect of a matter reported to the Director of Public Prosecutions under this section or if the Director decides not to institute a prosecution in relation to that matter, the Ombudsman Commission is not precluded from conducting or continuing an investigation into the matter under  section 95  by reason only that the conduct under investigation is in substance the same as the conduct constituting the offence of which the member is convicted or in respect of which no prosecution is instituted".

 

99.  In this case, there was an initial investigation under section 102 of the 2005 Act ("other investigation by GSOC") because of the initial allegation of rape, which then became a section 98 investigation. GSOC carried out an investigation under section 98 of the 2005 Act which led to a report under section 101 of the 2005 Act (later, on 17th February 2021, Ms. XY stated that she wished to withdraw from her complaint and did not wish to proceed with the complaint). Section 101 of the 2005 Act provides for a report following an investigation under section 98 of the 2005 Act. Section 101(2)(a) of the 2005 Act provides that if GSOC, after considering the designated officer's report, is of the opinion that the conduct under investigation may constitute an offence by the member of the Garda Síochána concerned, it shall send a copy of the report and of the investigation file to the DPP together with any recommendations that appear to GSOC to be appropriate. [4] In the Applicant's case, this report was sent to the DPP who were asked to consider two charges, an alleged breach of section 2 of the Criminal Law (Rape) Act 1981 and an alleged breach of section 4 of the Criminal Law (Rape) Amendment Act 1980. In a letter dated 16th June 2022 which was referenced "Re: Allegation of Rape Monaghan District", the Applicant was inter alia informed in writing by the Investigating Officer John O'Sullivan from GSOC, in referring to their telephone conversation, that the investigation by GSOC pursuant to section 98 of the 2005 Act was complete, that a file had been forwarded to the DPP and that GSOC received the directions of the DPP dated 13th April 2022 that there would be no prosecution in respect of the allegation of rape that had been investigated. This is the process which is provided for in sections 98 and 101 of the 2005 Act.

 

100.      Further, section 98(4) of the 2005 Act provides that "An investigation of a matter under this section does not preclude the subsequent investigation of the matter under  section 95." (Underlining added).

 

101.      Section 95 of the 2005 Act deals with the investigation by Ombudsman Commission of complaints that do not appear to involve offences and provides as follows:

 

"95(1) If the Ombudsman Commission decides to investigate a complaint about conduct that does not appear to constitute an offence, it shall give the complainant and the member of the Garda Síochána concerned an opportunity—  

(a) to be heard, in person or by a legal representative, and  

(b) to present evidence and make submissions to the Commission.  

(2)  Subsection (1)  applies also in relation to a complaint about conduct that appears to constitute an offence, but that is determined on investigation under  section 98  not to constitute an offence.  

(3) Subject to this section, the Ombudsman Commission may make rules governing the procedure to be followed in investigations under this section.  

(4) As soon as practicable after the conclusion of an investigation under this section, the Ombudsman Commission shall make a report in accordance with  section 97  to the Garda Commissioner.  

(5) An investigation of a matter under this section does not preclude the subsequent investigation of the matter under  section 98."

 

102.      As stated, on 13th April 2022, the DPP directed that there would be no prosecution in the matter and GSOC subsequently initiated an investigation in accordance with section 95 of the 2005 Act.

 

103.      Section 95(2) of the 2005 Act applies section 95(1) also in relation to a complaint about conduct that appears to constitute an offence but where it is determined on investigation under  section 98 of the 2005 Act, that it does not constitute an offence. Section 98(4) of the 2005 Act provides that an investigation of a matter under section 98 does not preclude the subsequent investigation of the matter under section 95.

 

104.      This led to the 'Section 97 Investigation Report following a Section 95 Investigation' dated 14th November 2022.

 

105.      In terms of context, therefore, Part 4 of the 2005 Act, and section 95(2) contain inclusive and not restrictive provisions with the objective of Part 4, and the provisions which are applicable in this case, intended to address the precise circumstances of Mr. Mulligan's case where the invocation of the statutory process had earlier resulted in the DPP stating that there would be no prosecution and thereafter GSOC decided that further investigation under section 95 of the 2005 Act was required which would focus on potential discreditable conduct.

 

106.      The allegations cited in the report dated 14th November were as follows:

 

"- GSOC considers that following a review of the available information, that on the 24 day of August 2020 Garda John Mulligan stopped sexual activity with XY due to her level of intoxication, but subsequently engaged in further sexual activity with her.

- GSOC considers that following a review of the available information, that on the 24 day of August 2020 Garda John Mulligan drove his motor vehicle on a public road whilst being over the legal alcohol limit".

 

107.      The report set out its recommendation pursuant to section 97(1)(b) of the 2005 Act as follows:

 

"I recommend that disciplinary proceedings should be instituted under the Garda Síochána (Discipline) Regulations, 2007 against Garda John Mulligan for possible breaches in relation to: (1) Discreditable Conduct - By engaging in sexual activity with [Ms. XY], after believing her to be too drunk for sexual activity moments earlier; (2) Discreditable Conduct - By driving his motor car on a public place whilst intoxicated."

 

108.      The report set out a statement of reasons as per section 97(1)(c) of the 2005 Act and the particulars pursuant to section 97(1)(d) of the 2005 Act as follows:

 

"I recommend that disciplinary proceedings should be instituted under the Garda Síochána (Discipline) Regulations, 2007 against Garda John Mulligan for possible breaches in relation to:

-          Discreditable Conduct, GSOC considers that following a review of the available information, that on the 24 day of August 2020 Garda John Mulligan stopped sexual activity with [Ms. XY] due to her level of intoxication, but subsequently engaged in further sexual activity with her.

The said Discreditable Conduct is a breach of discipline within the meaning of Regulation 5 of the Garda Síochána (Discipline) Regulations, 2007 and is described at number 1 in the schedule to the said regulations.

-          Discreditable Conduct, GSOC considers that following a review of the available information, that on the 24 day of August 2020 Garda John Mulligan drove his motor vehicle on a public road whilst being over the legal alcohol limit.

-          The said Discreditable Conduct is a breach of discipline within the meaning of Regulation 5 of the Garda Síochána (Discipline) Regulations, 2007 and is described at number 1 in the schedule to the said regulations."

 

109.      Contrary to the contentions made on behalf of the Applicant, therefore, there is no conflation or ambiguity in the provisions of Part 4 of the 2005 Act which apply in this case. There is no basis, therefore, for contending that the report of 14th November 2022 was ultra vires the 2005 Act.

 

110.      Further, under the 2007 Regulations, a sanction is a matter for the Commissioner on the recommendation of the Board of Inquiry. In terms of sanctions for breaches of discipline, Regulation 10 of the 2007 Regulations addresses a minor breach of discipline by way of the sanction of advice, caution or warning; Part 2 of the 2007 Regulations addresses a less serious breach by way of reprimand, warning, caution, advice or the deduction of one or two weeks' pay; Part 3 of the 2007 Regulations deals with a serious breach of discipline through the sanction of a loss of four weeks' pay, reduction in rank, a requirement to resign or retire or dismissal.

 

Liaison Officer

111.      Regulation 29(5) of the 2007 Regulations provides that the Board, subject to the 2007 Regulations, "may regulate its own procedure".

 

112.      On 21st March 2024, the Presiding Officer of the Board notified the Applicant's Solicitor Mr. Martin Moran, in writing, that "Inspector Coughlan was appointed as Liaison Inspector to the Board of Inquiry on 28th June, 2023" and this is the document referred as "(k) Letter from Board of Inquiry dated 21st March 2024."

113.      Further, at the hearing before the Board on 19th August 2024, the Board furnished its written ruling on the preliminary issues and two sets of submissions which had been raised by the Applicant's solicitor and stated inter alia as follows at paragraphs 41, 42 and 43:

 

"(41)... Inspector Coughlan was nominated as Liaison Officer - as is clear from the email that he produced to the Board - by his local Superintendent and it is for a Board in this context to decide whether or not he is required to assist them.

(42) For the avoidance of doubt the Board, exercising its powers pursuant to Regulation 29(5) chose to avail of the assistance of Inspector Coughlan, and appointed him as their Liaison Inspector and he serves at its pleasure.

(43) Finally, Inspector Coughlan gave very clear evidence to the effect that he had not investigated any of the alleged breaches of discipline. Thus, it has not misconstrued Inspector Coughlan's role and whilst nothing turns on it, the Board, having re-examined the transcript of Day 1 noted a number of occasions upon which Inspector Coughlan was mis-described - and not by it (and references by footnote 17, p5 line 5 of transcript 1; p21. Line 1 of transcript 1; p.22, lines 2-4 transcript 1; p. 22,, lines 14-29 transcript 1; p.23, lines 12-14 transcript 1)."

 

114.      I consider that there is no basis for suggesting that the appointment of Inspector Coughlan as a liaison officer is ultra vires or unlawful. Further, it was accepted on behalf of the Applicant that the Liaison Officer had not at this stage performed any function and, therefore, whatever about arguments in relation to his appointment, they did not provide a basis for stopping the disciplinary process. The decision of the High Court (Baker J.) in Kelly v The Garda Commissioner [2015] IEHC 297 raised a different point about the tendering of "lengthy and discursive" results by an investigating officer in an appeal process where it was inter alia held by Baker J. (at paragraph (60) that the investigating officer "had no role or entitlement during the appeal to comment upon evidence, to draw together threads of evidence and to analyse that evidence in the context either of conflicting, or arguably conflicting, statements from different witnesses". Notably, the High Court in that case did not quash or prohibit the appeal hearing from continuing.

The circumstances of the Applicant's suspension

115.      Put briefly, it was alleged that during the Applicant's probationary period, when off-duty, an incident occurred in the early hours of 24th August 2020 where the Applicant was allegedly engaged in sexual activity with Ms. XY and later operated a vehicle whilst over the legal alcohol limit. On foot of an initial complaint and  allegation made against the Applicant (which was later withdrawn by the complainant on 17th February 2021), the Applicant was arrested and interviewed under caution on 24th August 2020.

 

116.      During the interview on 24th August 2020, the Applicant stated inter alia that he was innocent and gave an account as to his interactions with the individual in question and described it as a consensual sexual encounter. The Applicant alleged that the individual in question left the house in which the encounter took place, was drunk, unaccompanied and in the early hours of the morning. The Applicant stated that he got into and operated his car in an attempt to find her despite being over the legal limit, as he was concerned for the welfare of the individual in question.

 

117.      The suspension of a member of An Garda Síochána (including a probationer) is prescribed by Regulation 7 of the Garda Síochána (Discipline) Regulations 2007-2011 (Statutory Instrument Numbers 214 of 2007 and 620 of 2011), which came into effect on 1st June 2007 and 22nd November 2011.

 

118.      Regulation 7 provides as follows:

 

"7(1) Where, in the opinion of the Commissioner, the circumstances render such a course desirable in the interests of the Garda Síochána, he or she may suspend a member from duty.

 

(2) A member so suspended remains suspended until the Commissioner decides that the suspension should cease.

 

(3) The Commissioner shall review the suspension of a member every 3 months or at such shorter intervals as he or she considers necessary, but any non-compliance with this paragraph does not of itself invalidate a suspension.

 

(4) Where the function of suspending a member is delegated by the Commissioner to a member of the rank of Chief Superintendent, the member of that rank may not suspend a member for a period exceeding 10 days, but the Commissioner may extend the suspension.

 

(5) A member who is suspended and is required by the Commissioner or the Government, as the case may be, to retire or resign as an alternative to dismissal, remains suspended during the period of any notice of retirement or resignation that may be given."

 

119.      The Suspension Policy referred to in these proceedings (and referenced in the case law) is a non-statutory policy which informs the decision-making in relation to the suspension of a member of An Garda Síochána pending disciplinary investigation. The document is entitled 'An Garda Siochana Policy Document on the suspension from duty of members of An Garda Siochana under the Garda Siochana (Discipline) Regulations 2007 (as amended)'.

 

120.      At paragraph (5), this policy document inter alia provides for long term suspension and states that the views of the member's Divisional Officer will be sought on the following matters (i.e., primary considerations for suspension) when the issue of a member's long term suspension is being considered: (1) strength of evidence (2) seriousness of allegation, (3) risk to members of the public, (4) risk to colleagues, (5) potential to pervert the course of justice/suborn colleagues, (6) options of alternatives to suspension. The document lists the following secondary considerations for suspension: (1) likely outcome, (2) estimated time to conclude investigation, (3) relevant complaint history, (4) current performance, (5) impact on policy/public relations, (6) impact on service morale, (7) risk to officer/welfare considerations.

 

121.      At paragraph (6), the policy document refers to the "review of suspension" and states that Regulation 7(3) of the Garda Síochána (Discipline) Regulations 2007 as amended provides that "the Commissioner shall review the suspension of a member every 3 months or at such shorter intervals as he or she considers necessary" and adds that "in order to fulfil this obligation the Commissioner will review suspensions with a view to renewing the suspensions on the 1st day of every third month (i.e. 1st February, 1st May, 1st August, and 1st November), or as soon as possible thereafter."

 

122.      At paragraph (7), the policy document sets out 'alternatives to suspension' and states that in certain cases an alternative to suspension may be considered in consultation with the member's Divisional Officer and that members may be employed on other duties, indoor duties etc. pending determination of the case against them. Transfer in lieu of suspension will only be used where there are sufficient grounds for suspending the member concerned.

 

123.      It is noted that at paragraph (8), under the sub-heading "reason(s) for suspension", the document provides that "In all cases where a member of An Garda Síochána is suspended they will be informed of the reason(s) for his/her suspension." At paragraph (12) under the sub-heading "Timely investigation of disciplinary matters" it states that "Any discipline investigation will proceed expeditiously in accordance with the provisions of the Garda Síochána (Discipline) Regulations 2007 as amended and relevant case law."

 

124.      Appendix 1 of the policy document entitled 'Appendix 1 Notice to Members on Suspension' was for the stated purpose of answering some of the questions that a suspended member may have, and to remind them of the entitlements and conditions that apply to members who are suspended from duty.

 

125.      This is referred to in the body of the policy document at paragraph 13 which provides for the 'Notice to the member upon suspension' and states that "[a] notice will be served upon the member on suspension. The notice will set out the conditions attached to suspension and the entitlements or otherwise of the suspended member - Appendix 1."

 

126.      It contains a 'Note' at the beginning of the document which states that "A member who is suspended is presumed innocent of any wrongdoing until the case is proved. Suspension does not imply otherwise."

 

127.      The document then addressed the following matters:

 

"REASON FOR SUSPENSION

The reason for your suspension is attached.

STATUS

You will not exercise any Garda powers during your period of suspension or purport to conduct yourself as a member of An Garda Síochána. You will, however, be subject to the provisions of the Garda Síochána Code, relevant H.Q. Directives, the Garda Síochána (Discipline) Regulations 2007 as amended, and the Garda Síochána Act 2005 and you will therefore still comply with any lawful orders issued to you. You will abide by codes, regulations and relevant legislation normally applicable to all members of An Garda Síochána during the period of your suspension.

UNIFORM AND EQUIPMENT

On suspension you will be required to surrender your identification card with immediate effect for the duration of your suspension. In addition, you will be required to surrender any firearm, official mobile phone, access control card and any official item deemed appropriate by your District Officer. Arrangements will be made by your District Officer for collection of the aforementioned items. You will not, while under suspension, wear the Garda uniform or any part of the Garda uniform.

SUSPENSION ALLOWANCE

During your period of suspension from duty you will be paid a suspension allowance in lieu of pay except in the following circumstances; (a) where a member is detained in pursuance of a court sentence, (b) where a member is placed in custody (in prison or elsewhere) between conviction by a court and sentence, (c) in any other circumstances where a member is refused bail, or (d) where a member's whereabouts is unknown to his/her District Officer.

No suspension allowance will be paid to you if you have not been in receipt of pay prior to suspension. Suspension allowance equivalent to 100% of basic pay, including rent allowance, will be paid to you while you are subject of suspension.

The payment of suspension allowance may be reviewed at any time at the discretion of the Commissioner. However, the payment of suspension allowance will automatically be reviewed in the following circumstances:

1) if you are detained in pursuance of a court sentence,

2) if you are placed in custody (in prison or elsewhere) between conviction by a court

and sentence

3) in any other circumstances if you are refused bail, or

4) if your whereabouts is unknown to your District Officer.

Where the payment of suspension allowance is subject to review, (except in those circumstances as described at 1-4 above), you will be invited to make submissions against the proposed review within a specified timeframe. You will be notified of the result of the review.

DISTRICT OFFICER

You will be required to meet your District Officer or another nominated person on a monthly basis at a date, time and location as specified by your District Officer.

You are required to submit to your District Officer, the address at which you will be ordinarily resident for the duration of the suspension and will give a written undertaking to notify your District Officer of any change of address while on suspension.

Where meeting with your District Officer would involve lengthy travel arrangements you may agree with the District Officer to meet at a location suitable to you both at your own expense.

LIAISON OFFICER

A Liaison Officer, selected by the Divisional Officer, will be notified of your suspension and will liaise with you during the period of your suspension and handle matters such as service of papers and any other such matters.

EMPLOYEE ASSISTANCE SERVICE

The Garda Employee Assistance Service provides a confidential, professional support and referral service to all members and their families. While on suspension you may avail of this service. You will be given contact details by your Liaison Officer. Engagement with the service is voluntary.

SICKNESS

If you should become sick whilst suspended from duty you will report your illness/injury in the same way as if you had been on normal duty. In addition, you will submit sick certificates in the normal manner for the duration of the illness/injury.

MEDICAL EXPENSES

Any medical expenses incurred by you during the period of suspension may be claimed in the normal manner.

COURT

During your suspension you may be required to attend court either as a witness or to prosecute cases. In such cases you will not be reinstated for the court case. You will appear in plain clothes and give your evidence. If you are the prosecuting member in a case, a member of higher rank will be directed to take over the prosecution and you will be called as a witness.

Accordingly, you shall notify your District Officer of any prosecutions or outstanding investigations which were being conducted by you prior to your suspension.

Should you be required to attend court you will notify your Liaison Officer as soon as you become aware of your requirement to attend. When attending court, you are entitled to claim any expenses incurred in the normal manner.

VISITS TO GARDA PREMISES

You will not be allowed access to Garda premises (except official Garda accommodation) without prior permission from your District Officer. Should you require access to any Garda premises you will contact your Liaison Officer who will seek permission on your behalf from the District Officer. The District Officer will decide if access will be granted.

Any access granted may be subject to whatever conditions specified by your District Officer. Access will be supervised by the Liaison Officer or other member nominated by your District Officer.

PROMOTIONAL EXAM/INTERVIEW

If you wish to sit a promotion examination, you will make a written application through the normal channels.

If you wish to apply to undergo interview for promotion and are eligible to do so you will make a written application through the normal channels.

VACANCIES

During the period of your suspension arrangements will be made to keep you informed of all vacancies arising during the period of your suspension. This is for the purpose of facilitating any applications you wish to make.

C.P.D.

You will not undergo C.P.D. training during your suspension. Should you resume duty following your suspension, you will be given the appropriate C.P.D. training.

WITNESSES

You will not interfere or attempt to interfere with any witnesses involved in any criminal or disciplinary proceedings under investigation.

ACCESS TO INFORMATION

During the period of your suspension, you will not be allowed use of or access to any official Garda I.T. or communications system. You will not be allowed access to any official information or records. However, should you require access to official information you will forward an application to your District Officer via the Liaison Officer setting out the reasons for the access. The District Officer will decide if access will be granted.

Any access granted may be subject to whatever conditions are specified by your District Officer. Access will be supervised by the Liaison Officer or other member nominated by your District Officer.

REPRESENTING AN GARDA SÍOCHÁNA

During the period of your suspension, you are not permitted to engage in any official activity in which you purport to represent An Garda Síochána.

OTHER EMPLOYMENT

While on suspension your working week will be considered as 9am to 5pm each day on a Monday to Friday basis.

The list of prohibited spare time activities will apply.

You will not be permitted to take up other employment between 9am to 5pm Monday to Friday."

 

128.      Again, as at the beginning of the document, the end of the document contained the following "NOTE: A failure by a suspended member to observe any of the conditions as set out above may become the subject of discipline proceedings in accordance with the relevant Garda Síochána (Discipline) Regulations."

 

Reasons for suspension

129.      The Applicant was first suspended from duty on 24th August 2020 until 3rd September 2020 by Chief Superintendent John O'Reilly, [5] when he was served with a Form IA71 notifying him of the time and period during which he was suspended from duty.

 

130.      In these first tranche of notices of suspension, the reasons given stated as follows:

 

"The suspension from duty arises as a result of:

 

An allegation that you engaged in sexual activity with [Ms. XY [6]], without her consent, on 24th August 2020." [7]

 

131.      The Applicant's suspension has been ongoing since that date and is periodically reviewed by a delegate of the First Named Respondent approximately every three months.

 

132.      The same reason was given in the notifications of suspension for the following periods:

 

Date of Notice

Period of suspension

Assistant Commissioner

3/9/2020

10am (3/9/20) - 6am (1/11/20)

A/C Patrick Clavin

23/10/20

6am (1/11/20) - 6am (1/2/21)

A/C Patrick Clavin

26/1/21

6am (1/2/21) - 6am (1/5/21)

A/C Patrick Clavin

29/4/21

6am (1/5/21) - 6am (1/8/21)

A/C Patrick Clavin

27/7/21

6am (1/8/21) - 6am (1/11/21)

A/C Patrick Clavin

29/10/21

6am (29/10/21) - 6am (1/2/22)

A/C Patrick Clavin

25/1/22

6am (1/2/22) - 6am (1/5/22)

A/C Patrick Clavin

 

First change of reason for suspension

133.      The Form IA71 served on the Applicant on 28th April 2022 set out a different reason from that contained in the previous notices. The time and period of the suspension was from 6:00am on 1st May 2022 to 6:00am on 1st August 2022. It stated that the reason for the suspension was as follows:

 

"The suspension from duty arises as a result of:

 

The circumstances surrounding your sexual activity with [Ms. XY [8]] on 24th August 2020."

 

134.      The same reason was given in the notifications of suspension for the following periods:

 

Date of Notice

Period of suspension

Assistant Commissioner

28/04/22

6am (1/5/22) - 6am (1/8/22)

A/C Patrick Clavin

27/7/22

6am (1/8/22) - 6am (1/11/22)

A/C Patrick Clavin

18/10/22

6am (1/11/22) - 6am (1/2/23)

A/C Jonathan Roberts

25/1/23

6am (1/2/23) - 6am (1/5/23)

A/C Jonathan Roberts

19/4/23

6am (1/5/23) - 6am (1/8/23)

A/C Jonathan Roberts

26/7/23

6am (1/8/23) - 6am (1/11/23)

A/C Jonathan Roberts

23/10/23

6am (1/11/23) - 6am (1/2/24)

A/C Jonathan Roberts

 

Second change of reason for suspension

135.      The Form IA71 served on the Applicant on 25th January 2024 set out a different reason for suspension from that contained in the previous notices. The time and period was from 6:00am on 1st February 2024 to 6:00am on 1st May 2024. It stated that the reason for the suspension was as follows:

 

"The suspension from duty arises as a result of:

 

·         The circumstances surrounding your sexual activity with an intoxicated minor on 24th August 2020.

·         A Board of Inquiry has been established to address the discipline matters arising."

 

136.      The same reason was given in the notifications of suspension for the following periods:

 

Date of Notice

Period of suspension

Assistant Commissioner

25/1/24

6am (1/2/24) - 6am (1/5/24)

A/C Jonathan Roberts

24/4/24

6am (1/5/24) - 6am (1/8/24)

A/C Jonathan Roberts

29/7/24

6am (1/8/24) - 6am (1/11/24)

A/C Jonathan Roberts

 

137.      The latest notification of suspension, as of the date of these proceedings is, therefore, 29th July 2024.

 

138.      In the High Court judgments of Brannock v Commissioner of An Garda Siochana [2023] IEHC 300, per Mulcahy J. at paragraph 50, and in Baynham v Commissioner of An Garda Síochána & Ors [2023] IEHC 735, per Phelan J. at paragraphs 66 and 67, (in the context of discussing the limitations of making a distinction between a "holding suspension" which would not give rise to fair procedures in contrast to a "long-term suspension" which would attract fair procedures), it was held, after reviewing the applicable case law (which included the decision in Canavan v The Commissioner of An Garda Síochána [2016] IEHC 225) that that the extent of the procedural safeguards which must attend any decision to suspend falls along a spectrum which depends on 'all of the circumstances' being considered. Indeed, the decisions of Canavan, Brannock and Baneham and the seminal authority of the Supreme Court in Connelly v An Bord Pleanála [2018] IESC 31, [2021] 2 IR 752 (referred to earlier) suggest that the extent of fair procedures to be applied in a disciplinary and suspension process must be viewed by reference to the totality of the circumstances in each situation.

 

139.      I do not consider, therefore, when assessing this application for relief by way of judicial review, that the circumstances of Mr. Mulligan's situation, including the disciplinary process and suspension process, should be examined in isolation or in 'legal silos'. To do so would also appear to militate against how the discretionary supervisory jurisdiction of the High Court in an application for judicial review should be exercised, as this requires an examination of the entire situation.

 

140.      In examining these matters, therefore, it can be observed that the suspension notices paralleled (though not always contemporaneously) the circumstances of the inquiry into the initial allegation, the positions adopted by the DPP and GSOC, the further investigation by GSOC, the ultimate decision by it to recommend a disciplinary investigation, the appointment of a Board of Inquiry and the carrying out by that Board of its disciplinary functions. The Applicant was made aware of developments as they occurred and was offered the opportunity to engage with these processes. As stated, ultimately, there was, up to the point of the institution of these proceedings, an ongoing disciplinary process where the Board of Inquiry was carrying out its investigation as part of that process and the suspension process recognised contextual developments, i.e., laterally, that there was a disciplinary process being carried out by the Board and, previously (and implicitly) that the DPP had stated there would be no prosecution. In fact, GSOC had expressly informed the Applicant on 16th June 2022 that the DPP had decided on 13th April 2022 that there would be no prosecution.

 

141.      Initially, for example, the suspension notices from 24th August 2020 to 28th April 2022 referred to the alleged offence in stating that "The suspension from duty arises as a result of an allegation that you engaged in sexual activity with [Ms. XY] without her consent, on 24th August 2020."

 

142.      The first change of reasons in the notice of suspension on 28th April 2022 implicitly recognised a change in the circumstances. The reason for suspension, for example, had changed from "The suspension from duty arises as a result of an allegation that you engaged in sexual activity with [Ms. XY] without her consent, on 24th August 2020" to "The suspension from duty arises as a result of the circumstances surrounding your sexual activity with [Ms. XY] on 24th August 2020."

 

143.      On 13th April 2022, the DPP had directed that there would be no prosecution in respect of the allegation of rape and the Applicant had in fact been informed of that by GSOC in one of the two letters sent on 16th June 2022.

 

144.      The suspension notice served on the Applicant on 25th January 2024 set out a different reason for suspension from that contained in the previous notices and stated that "The suspension from duty arises as a result of: the circumstances surrounding your sexual activity with an intoxicated minor on 24th August 2020; A Board of Inquiry has been established to address the discipline matters arising." At this point, the name of the complainant is removed and reference is made to an intoxicated minor.

 

145.      It is submitted on behalf of the Applicant that the suspension should have been lifted and the period of probation recommenced in or around this time, i.e., 13th April 2022, when the DPP had stated there would be no prosecution. In a similar vein, it is submitted that the DPP's directions were in April 2022 and the GSOC recommendation was 14th November 2022. It is argued on behalf of the Applicant, notwithstanding that the Applicant's solicitor did not write at that time, the Commissioner or an official under his control should have 'considered', as part of a continuing obligation whether or not the suspension should have been lifted.

 

146.      However, this suggestion fails to recognise the full picture which existed at that time and also minimises what the Applicant was in fact aware of.

 

147.      First, as just mentioned, the Applicant had been expressly informed by GSOC in one of the two letters sent on 16th June 2022 that on 13th April 2022, the DPP had directed that there would be no prosecution in respect of the initial serious allegation.

 

148.      Second, the first change of reasons in the notice of suspension on 28th April 2022 implicitly recognised this change in circumstances. The reason for suspension, for example, had changed from "The suspension from duty arises as a result of an allegation that you engaged in sexual activity with [Ms. XY] without her consent, on 24th August 2020" to "The suspension from duty arises as a result of the circumstances surrounding your sexual activity with [Ms. XY] on 24th August 2020."

 

149.      Third, on 16th June 2022, the Applicant had, therefore, been informed by GSOC of a number of matters, including that the investigation by GSOC pursuant to section 98 of the 2005 Act was complete and that (as just mentioned), after the file had been forwarded to the DPP, the Director had decided on 13th April 2022 that there would be no prosecution in respect of the initial allegation and in a second letter dated 16th June 2022, referenced "Re: Section 95 Investigation otherwise than on foot of a complaint" from Jon Leeman, Senior Investigating Officer in GSOC, the Applicant was informed that on 24th May 2022 GSOC had decided to launch a 'section 95 investigation' on GSOC's own initiative pursuant to section 102(4) of the 2005 Act which would focus on potential discreditable conduct [9]. As set out above, there followed a detailed process, together with communications, which afforded the Applicant an opportunity to meaningfully participate in this inquiry which culminated in the report of 14th November 2022. The Applicant does not appear to have sought to challenge or dispute these decisions made on 16th June 2022.

 

Disciplinary Process

150.      In relation to the disciplinary process, when viewed in the context of the considerations of the decisions in Canavan, Brannock and Baynham cases, as referred to earlier, by letter dated 7th August 2024 the Presiding Officer of the Board had in fact written to the Applicant's Solicitor, Mr. Moran and stated that pursuant to the 2007 Regulations, the Board would convene at Monaghan Garda Station on 19th, 20th, and 26th August 2024 commencing at 11:00am, for the continuation of the hearing and it listed six witnesses who would be summoned to attend before the Board and asked Mr. Moran to notify the Applicant. There was, therefore, a reasonable prospect that the Board would have significantly advanced, if not completed, its work shortly thereafter. Up to that point, the Applicant had been participating in the process, making detailed preliminary submissions on 14th March 2024 and 15th May 2024 and it was the fact of these judicial review proceedings which led to the pausing of the disciplinary hearings.

 

151.      Accordingly, as referred to earlier in this judgment, the disciplinary process had 'progressed' and could not be characterised as 'open-ended'. In addition, Mr. Mulligan was not financially prejudiced, being paid a suspension allowance in lieu of pay which was equivalent to one hundred per cent of basic pay, including rent allowance.

 

152.      The notices for suspension served on the Applicant must be seen against the contextual narrative, the Applicant's participation in the processes and his state of knowledge. The reasons for the suspension were set out in the notices: initially the suspension notices referred to the alleged offence; subsequent notices impliedly reflected the fact that the DPP had directed that there would be no prosecution; the more recent notices acknowledged that the Board of Inquiry was carrying out its investigations. As mentioned, those disciplinary investigations had an end in sight, or at the very least envisaged substantial progress in August 2024 having delivered its ruling on the series of preliminary issues raised on behalf of the Applicant.

 

153.      Further, in assessing the prejudice which the Applicant asserts, I have had regard inter alia to the following matters: (a) on behalf of the Applicant, it is submitted that the delay here is prejudicial because he has been engaged in this process for four and half years and effectively his life and career have been "on hold" during this period of time because of his probationary status; (b) it is submitted on the Applicant's behalf that he has neither been charged nor prosecuted with any offence and that no findings of wrongdoing have been made against him in disciplinary proceedings to date or at all; (c) as a suspended member of An Garda Síochána, the Applicant is being paid a suspension allowance in lieu of pay which is equivalent to one hundred per cent of basic pay, including rent allowance; (d) the other matters which apply to a suspended garda set out in 'Appendix 1 Notice to the Members on Suspension' and referred to earlier in this judgment.

 

154.      In assessing the Applicant's claim of prejudice I consider the following matters are also relevant.

 

155.      In Canavan v The Commissioner of An Garda Síochána [2016] IEHC 225, the High Court (Baker J.) stated that the "short window" between October 2015 and January 2016 in that case was explicable having regard to the fact that the decision of the DPP was awaited on a possible prosecution. The court held that if that period was discounted, the delay was not such as to vitiate the inquiry because a distinction could be drawn between circumstances where an investigation had commenced and was progressing slowly and one where the investigation had not yet commenced within a reasonable period of time.

 

156.      It is submitted on behalf of the Applicant that it cannot be presumed, if the disciplinary process had continued in August 2024, it may have determined matters to finality. As set out above, in Mr. Mulligan's case the Board of Inquiry had, in fact, been established on 16th June 2023. I consider that the initial 6-7 month delay, between November 2022 and June 2023, in establishing the inquiry has to be seen in the overall context of the investigation process and I am of the view that the Board was progressing and had indicated an acceptable timeline for its further hearings in August 2024. To recap the Board, for example, was scheduled initially to meet at 11:00am on Monday 4th September 2023 at Monaghan Garda Station. As two Board members would not be available on that date, by further notice dated 29th August 2023 the Board was adjourned to early November 2023. Due to the bereavement of the Presiding Officer's mother in early November 2023, the Presiding Officer was on compassionate leave at this time and returned on 10th January 2024. The Board sat on 14th March 2024 and on 15th May 2024 for the purposes of a preliminary hearing and on 19th August 2024, it delivered a detailed ruling addressing all of the preliminary points made by Mr. Moran Solicitor on behalf of the Applicant. The Board had indicated on 7th August 2024 that it intended to continue with the disciplinary process and had intended to sit for three days in August 2024. The Board was progressing, was not open-ended and envisaged an end in sight. Subsequently, when informed that this application for judicial review had been instituted, the Board paused the disciplinary proceedings in August 2024.

 

157.      Whilst it is accepted that the probation period of an attested member of An Garda Síochána is intended to be for a period of two years (and possibly extended for a third year), the fact that the Applicant's probation period has itself been paused arises by operation of law, in this case, by secondary legislation.

 

158.      On admittance to the Garda Training College, the Applicant, for example, signed the Acceptance Declaration as set out in the 'Conditions of Service and Acceptance of Admission as Trainee' under the 'Garda Síochána (Admissions and Appointments) Regulations, 2013 Garda Trainees' on 24th April 2019, which stated, at paragraph 11(3), under the sub-heading "Discipline– Behavioural Standards for Trainees" that "On appointment as a member of An Garda Síochána, the member will become a Probationer Garda and will be subject to the Garda Síochána (Discipline) Regulations 2007-2011 and the relevant provisions of the Garda Síochána (Admissions and Appointment) Regulations 2013."

 

159.      Further, Regulation 12(3)(a) of the 2013 Regulations provides that "Where a probationer is absent due to a period of suspension having been imposed on him or her, the period of the absence shall not be reckonable for probationary purposes whether such suspension is imposed under the Regulations of 2007 or otherwise".

 

160.      In this case, the Applicant was participating in the disciplinary process and the Board set a hearing date of three days in August 2024, where if it had sat, the matters may have been further progressed with a probability of an end in sight. However, these judicial review proceedings were instituted at that time. The Board did not agree to discontinue the disciplinary process as requested on behalf of the Applicant, but rather, agreed to adjourn the disciplinary proceedings because of the fact of these proceedings and pending their outcome.

 

161.      In addition, adopting the observations of the Supreme Court (Finnegan J.) in Gillen v Commissioner of An Garda Síochána [2012] 1 IR 574, at p. 14, "every complaint will lead to concern and anxiety and it is not something particular to the applicant in this case. Of itself this will not be a reason which will justify prohibition of disciplinary proceedings."

 

162.      In terms of the disciplinary process involving Mr. Mulligan, having regard to overall time period in this case and the engagement on behalf of the Applicant by his solicitor, the Applicant has not demonstrated individual prejudice in the conduct of his defence of the disciplinary charges.

 

163.      Whilst I have applied the principles of law discussed in Gillen v Commissioner of An Garda Síochána [2012] 1 IR 574, Baynham v Commissioner of An Garda Siochana [2023] IEHC 735, Canavan v The Commissioner of An Garda Síochána [2016] IEHC 225 and Brannock v Commissioner of An Garda Siochana [2023] IEHC 300, these cases all emphasise the importance of the individual facts in each case which is why the full context of Mr. Mulligan's case is important and, therefore, in my view, distinguishes his case from those cases.

 

164.      The investigations in Baynham v Commissioner of An Garda Siochana, for example, related to a practice, colloquially described as "squaring", whereby fixed charge penalty notices were either not written up, not prosecuted in court or cancelled on the system. By November 2020, Mr. Baynham had not been made aware of any specific change in circumstances for over a year, at that point, which might warrant his suspension. Further, in contrast to the position of Mr. Mulligan, the various suspension notices in Mr. Baynham's case did not change as 'the contextual narrative' changed and made no reference to an ongoing criminal investigation or disciplinary investigation or the requirements of discipline in the force or in the interests of the force.

 

165.      That did not apply in Mr. Mulligan's case. The rationale for the suspension notices in his case, since the initial serious allegations, have changed on two occasions as the contextual narrative changed with the DPP directing no prosecution and the Board of Inquiry carrying out its investigations. It was the Applicant who initially participated in the disciplinary process and then sought to have it discontinued and laterally paused.

 

166.      Further having regard to the facts in Mr. Mulligan's case, I do not consider that the balance has 'tipped' such that fair procedures require the granting of the reliefs sought in this judicial review application. Paraphrasing Phelan J. in Baynham v Commissioner of An Garda Siochana [2023] IEHC 735 at paragraph 77, what precisely respect for fair procedures entails in terms of an obligation to provide information and how that obligation may be discharged varies and is always dependent on the circumstances and facts of a given case.

 

167.      In Baynham v Commissioner of An Garda Siochana, for example, the High Court (Phelan J.) at paragraph 65 explained inter alia that the decision of the High Court (Baker J.) in Canavan "appears to have been because of the length of the suspension and the lack of progress in relation to any disciplinary process in circumstances where there was no ongoing criminal investigation." (Underlining added).

 

168.      As indicated, in Baynham (at paragraph 71) and Brannock (at paragraph 53), given that the suspension of a member is not a sanction available to the Commissioner under the 2007 Disciplinary Regulations, the suspension must be understood not as a punitive measure but as a measure available when a disciplinary process or criminal or investigation process is contemplated under the Regulations is underway, at least for so long as there remains an active process in being. In Mr. Mulligan's case, the disciplinary process is not open-ended or protracted. Progress was being made and the completion of the disciplinary investigation was in sight as of August 2024 when these proceedings were instituted.

 

169.      Further in Baynham, Phelan J., at paragraph 71 of her judgment, referred to the observations of O'Donnell CJ in O'Sullivan v HSE [2023] IESC 11 at paragraph 26 of his judgment, that suspension on full pay pending determination of disciplinary proceedings is "in the language of the caselaw a holding suspension" and Phelan J. observed as follows:

 

"Although the suspension in this case is a "holding" suspension as the outcome of a third-party investigation is awaited, a holding suspension loses some of its character a such for the purpose of a consideration of the requirements of fair procedures where there is a failure to progress the process for which suspension has been triggered. Accordingly, in deciding whether a lower or higher level of procedural fairness is required in deciding to continue or maintain a suspension, consideration needs to be given to whether there has been progress in the process such that it can be concluded quickly." (Underlining added).

 

170.      Similarly, the circumstances and facts in the Canavan case are distinguishable from Mr. Mulligan's case. The initial allegation, for example, in the Canavan case was made in the most general terms with a lack of specificity, i.e., that the applicant in that case had failed to prosecute in the most general way and it took a year for the applicant to be interviewed (from May 2014 to May 2015) and he was not suspended immediately but sometime thereafter. In Canavan, therefore, the question of suspension and the delay of two years was in the context of the lack of progress in relation to any disciplinary process in circumstances where there was no ongoing criminal investigation.

 

171.      In contrast, in Mr. Mulligan's case, during the various stages of the processes, he was (to borrow the phraseology referred to in Connolly v An Bord Pleanála) 'a participant' who was, through his Solicitor, engaged in the processes and was made aware of developments, including inter alia the notices of suspension, the fact that the DPP directed that there would be no prosecution, his engagement with Inspector O'Sullivan in the preparation of a section 97 report.  On 19th September 2022, for example, a further 14-day deadline for submissions to be received on behalf of the Applicant passed on 3rd  October 2022, and no reply was in fact received. Later, the Applicant was notified of establishment of a Board of Inquiry and he participated in that process from March 2024 to mid-August 2024.

 

CONCLUSION

 

172.      In these proceedings, I have reviewed with the manner in which the suspension and disciplinary processes have been conducted and the engagement by the parties in that process in the specific context of the grounds which the Applicant, as a probationer, has relied upon in his judicial review application.

 

173.      Having regard to the chronology and the engagement of the various officials (for example, GSOC, the DPP, the Commissioner, and the Board) on the one hand, and the participation and engagement by Applicant, together with his legal advisor, on the other hand, at each stage of the process, I do not consider that the periods of time concerned amount to a delay which warrants the granting of relief by way of judicial review of the disciplinary process or the process of suspension or that either process has been unfair.

 

174.      It is accepted on behalf of the Applicant that courts, generally, are reluctant to grant orders of prohibition stopping the continuation of an extant disciplinary process.

 

175.      In Canavan v The Commissioner of An Garda Síochána [2016] IEHC 225, the High Court (Baker J.) refused to grant an order of prohibition in an ongoing disciplinary inquiry and observed at paragraph 41 of her judgment that the courts have shown a reluctance to interfere with the course of a disciplinary inquiry under the Garda Regulations.

 

176.      Whilst declaratory relief was granted in Canavan v The Commissioner of An Garda the contextual narrative in Mr. Mulligan's case is very different to the facts which applied in Canavan. I have already outlined earlier how I consider that the facts of Mr. Mulligan's case also differ from those in Baynham v Commissioner of An Garda Siochana.

 

177.      In summary, in Mr. Mulligan's case, he was, for example, suspended at the time of the alleged incident; the suspension process was reviewed every three months; the suspension notices, which have issued throughout the period of suspension have reflected the changes in the contextual narrative; in relation to the disciplinary process, Mr. Mulligan was informed later that the initial investigation by GSOC pursuant to section 98 of the 2005 Act was completed and that a file had been forwarded to the DPP who had decided on 13th April 2022 that there would be no prosecution; GSOC had decided that a further investigation under section 95 of the 2005 Act was required; Mr. Mulligan was given every opportunity to participate in that process; a disciplinary process was recommended on 14th November 2022 and established in June 2023; for the reasons outlined, that inquiry engaged with the Applicant in 2023 and 2024 and sat on three dates in March, May and August 2024; the Board gave a ruling on preliminary matters in August 2024 and directed three days for hearing to continue that month;  and, when the Applicant issued these judicial review proceedings the Board decided to pause the investigation process pending this judicial review; during this period the Applicant received 3 monthly suspension notices which offered different reasons for suspension on three occasions which reflected the overall context of which Mr. Mulligan was aware.

 

178.      For the reasons outlined in this judgment, I do not consider that the consequences of the suspension in pausing the probationary period amount to a delay which warrants an intervention by way of judicial review.

 

179.      I, therefore, refuse the Applicant the reliefs sought by way of judicial review.

 

PROPOSED ORDER

180.      Accordingly, I propose to make an order refusing the Applicant the reliefs claimed by way of judicial review.

 

181.      I shall put the matter in for mention at 10:30 on Thursday 22nd May 2025 to address the question of costs and any ancillary and consequential matters which arise.

Appearances

182.      Mark Harty SC and James Keane BL appeared for the Applicant, instructed by Martin Moran Solicitor.

 

183.      Bernadette Quigley SC and Claire Cummins BL appeared for the Respondents, instructed by the Chief State Solicitor's Office.

 

 

CONLETH BRADLEY

Thursday 15th May 2025



[1] The Garda Síochána Ombudsman Commission.

[2] The Director of Public Prosecutions.

[3] The complainant's name is redacted to Ms. XY throughout this judgment.

[4] Underlining added. Section 102(b) of the 2005 Act provides that if GSOC, after considering the designated officer's report, is of the opinion that the conduct under investigation may constitute an offence by the member of the Garda Síochána concerned, it shall at the DPP's request, provide her with any other information relating to the investigation that appears to the DPP to be necessary for performing her functions under the Prosecution of Offences Act 1974.

 

[5] This matter is addressed in Superintendent Adrian Kelly's Affidavit sworn on 11th December 2024 at paragraph 13.

[6] As redacted.

[7] This is the reason set out in the second notice in time, on 9th September 2020, which is exhibited in Superintendent Adrian Kelly's Affidavit sworn on 11th December 2024.

[8] As redacted.

[9] Section 102(4) of the 2005 Act provides that GSOC may, if it appears to it desirable in the public interest to do so and without receiving a complaint, investigate any matter that appears to it to indicate that a member of the Garda Síochána may have (a) committed an offence, or (b) behaved in a manner that would justify disciplinary proceedings.

 

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