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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Harrison v Commissioner of an Garda Siochana (Approved) (Rev1)[2025] IEHC 303 (29 May 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC303.html
Cite as: [2025] IEHC 303

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APPROVED                                                                 [2025] IEHC 303

 

 

 

THE HIGH COURT

JUDICIAL REVIEW

 

 

2024 171 JR

 

BETWEEN

 

KEITH HARRISON

 

 

APPLICANT

 

 

AND

 

 

COMMISSIONER OF AN GARDA SÍOCHÁNA

 

 

RESPONDENT

 

 

 

 

JUDGMENT of Mr. Justice Garrett Simons delivered on 29 May 2025

 

 

Introduction

1.             These judicial review proceedings arise out of a disciplinary process being undertaken pursuant to the Garda Síochána (Discipline) Regulations 2007.  The applicant for judicial review is the Garda the subject of the disciplinary process ("the Applicant"). 

2.             The three principal grounds pursued at the hearing before this court are as follows.  First, it is argued that the most recent of a series of three-monthly decisions to continue the suspension of the Applicant are unlawful.  In particular, it is argued that the belated disclosure of the decision not to pursue a criminal prosecution against a third party represents a significant change in circumstances such as to trigger a requirement to notify the Applicant and invite specific submissions on the implications of same for his suspension.  Second, the procedure proposed to be adopted by the Board of Inquiry is challenged.  In brief, the hearing was to commence with the presenting officer reading a series of witness statements into the record in advance of any oral testimony from the relevant witness.  Third, the Applicant takes grave exception to the fact that the existence of a particular witness statement was not disclosed to his side until the hearing before the Board of Inquiry.

 

 

Overview of the alleged breaches of discipline

3.             To assist the reader in understanding the grounds of judicial review, it is necessary to outline the nature of the alleged breaches of discipline.  The ground relating to the continuation of the suspension can only be properly understood by reference to the alleged breaches and the supposed significance of the decision not to pursue a criminal prosecution against a third party.  It should be emphasised that the sole purpose of this exercise is to provide context for the discussion which follows.  It does not entail any finding whatsoever by this court in relation to the merits of the alleged breaches of discipline.

4.             The summary which follows is based on the notice of particulars served by the Board of Inquiry on 7 July 2023.

5.             The first alleged breach relates to the entering into by the Applicant of a sexual relationship with an individual who had made a criminal complaint to An Garda Síochána.  More specifically, it is alleged that a named individual had made a complaint of an assault with a motive of domestic abuse against her then partner and that this complaint had been received and recorded on PULSE by the Applicant.  Thereafter, the Applicant took a formal statement from this individual on 8 July 2019.

6.             This individual will be referred to in this judgment as "the Complainant" to respect her privacy.  It should be explained that this term refers to the complaint of assault against her former partner.  The Complainant is not pursuing any criminal complaint against the Applicant.

7.             The breach of discipline alleged against the Applicant is that to have engaged in a sexual relationship with the Complainant was inappropriate and contrary to the professional duty of care owed by a member of An Garda Síochána to a person alleged to be a vulnerable victim of a crime.  It is further alleged that this conduct was discreditable.

8.             There are then three further allegations which, in brief, relate to contact between the Applicant and the Complainant's previous partner in relation to family law proceedings.  The gist of the allegation seems to be that the Applicant had, in some unspecified manner, been attempting to assist the previous partner.

9.             The Applicant has denied all allegations.

 

 

Board of Inquiry

10.         The Commissioner established a Board of Inquiry pursuant to the Garda Síochána (Discipline) Regulations 2007 on 4 May 2023.  By notice dated 7 July 2023, the Board of Inquiry, through its presiding officer, served particulars of the serious breaches of discipline alleged.  The Board of Inquiry held a preliminary hearing on 21 July 2023. 

11.         Thereafter, the Board of Inquiry issued a decision dated 28 July 2023 refusing to direct the disclosure or discovery of certain documents which had been requested on behalf of the Applicant.  The rationale for the refusal is stated as follows:

"The Board has decided to refuse your client's request in relation to all of the categories sought.

 

In the first place the Board's role is confined under the 2007 Regulations to determining whether a serious breach or breaches of discipline the particulars of which have been communicated to your client in the Form IA(S35) dated 7th July 2023 are made out.  The Board is not satisfied that the background to the investigation and the conduct of the investigation itself is relevant to the function of the Board under the 2007 Regulations or that the various categories of documentation sought in this respect (at 1-8, 10-12) are furthermore necessary for the Board to properly and fairly conduct its functions.

 

Your client will be entitled to cross-examine the witnesses who will be required to give evidence and it is understood that this will include [the Complainant] and [the Complainant's former partner].  That will enable your client to explore issues he says are relevant to the alleged breaches and the 'genesis of these investigations'.  For example the submission made that it is be 'highly unusual' that two former partners of a third party could not discuss facts in relation to their relationships appears to be a matter for substantive submission in due course following cross-examination and it is not accepted by the Board that documentation relating to the investigation concerning these parties (at for example 1-4, 11) is required by your client.

 

The Board is not satisfied that the criteria of relevance and necessity are established in order for your client's rights to fair procedures and natural and constitutional justice to be vindicated in this inquiry.  The fact that a document might be beneficial is clearly not sufficient in this regard.  For example the issue of Garda Harrison's suspension both on an initial and ongoing basis is not a matter for inquiry by this Board which furthermore does not appreciate why Garda Harrison would need sight of the complete criminal investigation file in addressing the disciplinary proceedings (categories 12, 13).

 

Accordingly the Board is not satisfied that the documentation sought is relevant or necessary for the proper determination of the matters before the Board of Inquiry or that your client is prejudiced in relation to the inquiry into the alleged breaches by this refusal."

 

12.         The Board of Inquiry commenced its substantive hearing on 20 November 2023.  At the outset of the hearing, the presiding officer outlined the procedure proposed to be followed.  It involved the swearing in of both the Complainant and the presenting officer.  The presenting officer was then to read into the record of the inquiry the written statements supposedly made by the Complainant.  It was proposed that the Board of Inquiry would then question the Complainant, with the Applicant having a right thereafter to cross-examine her through counsel.

13.         Counsel on behalf of the Applicant objected to this procedure, saying that there was no basis upon which the written statements should be read into the record in circumstances where the Complainant herself was present to give evidence.  It was suggested that the only circumstances in which a written statement might be read into the record is where the statement was that of an unwilling witness.  There was significant debate between counsel and the presiding officer in relation to this procedure.  There then followed a further dispute in relation to the disclosure or discovery of documents, with counsel for the Applicant complaining that certain documentation had not been provided.  Counsel submitted that he was entitled to see every statement made by the Complainant and any notes in relation to the preparation of such statements.

14.         The presiding officer stated as follows (at page 41 of the transcript):

"Just to pause for a moment, can I just say this to you?   The reason I asked you had you any views is because there was a lot of noise coming from your side of the room.  I am not trying to bury this statement nor is the Board.  The purpose of this just to say to you, is the Board is not going to rely on the contents of the statement but I am not stopping you in any sense from asking whatever questions you like of [the Complainant] in relation to the contents of the statement and in due course, when you come to examine Superintendent Walsh, you can ask him about the taking of the statement and the contents of the statement --"

 

15.         Counsel for the Applicant objected to what he characterised as the reading into the record of "the carefully selected works of" the Complainant.  It was then indicated that the Applicant intended to apply for judicial review before the High Court and the hearing before the Board of Inquiry was adjourned to facilitate this.

16.         The High Court (Hyland J.) granted leave to apply for judicial review on 11 March 2024 pursuant to an amended statement of grounds.

 

 

Non-joinder of Board of Inquiry

17.         There has been a procedural skirmish as to whether the Applicant had been obliged to join the individual members of the Board of Inquiry as notice parties to these judicial review proceedings.  It was submitted on behalf of the Commissioner of An Garda Síochána that the individual members of the Board of Inquiry are persons "directly affected by" the judicial review proceedings within the meaning of Order 84, rule 22 of the Rules of the Superior Courts, and, as such, are entitled to be put on notice of the proceedings. 

18.         The short answer to this procedural objection is that the members of the Board of Inquiry are on actual notice of the judicial review proceedings and could have participated had they so wished.  More specifically, it is apparent from the transcript of the hearing on 20 November 2023 that the Board of Inquiry were fully aware that the Applicant intended to pursue judicial review proceedings.  Indeed, the hearing had been adjourned for the precise purpose of facilitating the Applicant in making an application for leave to apply for judicial review.  Thereafter, the Applicant's solicitor had emailed the presiding officer on 22 March 2024 enclosing a copy of the order granting leave to apply for judicial review.  Had the members of the Board of Inquiry wished to participate in the proceedings, they would have been entitled to apply to the High Court to be heard.  Order 84, rule 27 provides that any person who desires to be heard in opposition to an application for judicial review, and appears to the court to be a proper person to be heard, shall be heard, notwithstanding that he has not been served with notice of the application.  The members of the Board of Inquiry did not seek to participate.

19.         This court is satisfied, therefore, that the omission to join the members of the Board of Inquiry as notice parties has not caused any actual prejudice, i.e. by denying the members an opportunity to participate in the proceedings had they thought it appropriate to do so.  If and insofar as the omission to serve the members constitutes a breach of Order 84, rule 22, this court would exercise its discretion under Order 124 not to set aside the proceedings for any supposed non-compliance or as otherwise irregular.

20.         It is possible, therefore, to resolve the procedural objection on narrow, pragmatic grounds.  Strictly speaking, it is not necessary to address the question of principle as to whether a Board of Inquiry should normally be joined to judicial review proceedings.  It may be of assistance, however, to make the following general observations.  There are at least two respectable arguments for saying that the joinder of the Board of Inquiry is not required.  First, it is the practice of many quasi-judicial decision-makers to leave the defence of any judicial review proceedings over to the parties.  This practice may reflect the view that it is preferable for the decision-maker to remain above the fray in order to ensure that they are seen as independent in the event of a remittal.  On this analysis, it might be preferable for the Commissioner to act as legitimus contradictor. 

21.         Second, a Board of Inquiry does not have a separate legal personality.  Rather, Boards of Inquiry are established on an ad hoc basis by the Commissioner of An Garda Síochána.  To this extent, the members of a particular Board of Inquiry might be regarded, in the broadest sense of the term, as "agents" of the Commissioner.  Of course, the members of a Board of Inquiry are required to exercise their adjudicative function in an independent and impartial manner.  An analogy might usefully be drawn with other quasi-judicial decision-making carried out by individuals under the auspices of a public authority such as, for example, the Tenancy Tribunal of the Residential Tenancies Board.  The practice is for the Residential Tenancies Board to act as legitimus contradictor to statutory appeals to the High Court against decisions of the Tenancy Tribunal.

 

 

Analysis of grounds of judicial review

 

(1).    Obligation to review ongoing suspension

22.         The Commissioner of An Garda Síochána is empowered to suspend a member from duty where, in the opinion of the Commissioner, the circumstances render such a course desirable in the interests of the Garda Síochána.  This power is provided for under regulation 7 of the Garda Síochána (Discipline) Regulations 2007.  The Commissioner is obliged, pursuant to regulation 7(3), to review the suspension of a member every 3 months or at such shorter intervals as he or she considers necessary.  It is expressly provided that any non-compliance with this requirement does not of itself invalidate a suspension.

23.         As a result of an amendment introduced under the Garda Síochána (Discipline) (Amendment) Regulations 2011, the power to suspend for up to three months may now be delegated to an officer with a rank higher than a Chief Superintendent.  Here, the power was exercised, sequentially, by two Assistant Commissioners.

24.         The High Court (Baker J.) in Canavan v. An Garda Síochána [2016] IEHC 225 had suggested that a decision to suspend a Garda pending the completion of a disciplinary process might be characterised as a "holding suspension" (in contradistinction to a punitive suspension).  The High Court further held that whereas a holding suspension may initially be justified without giving the Garda the benefit of procedural fairness, the balance is tipped towards a requirement of such fairness when the suspension has been a lengthy one and no substantive progress has been made in the disciplinary process.

25.         Baker J. described the purpose of the three-month periodic review as follows (at paragraph 31):

"[...] It seems to me that the three month period must be seen as a timeframe within which the reasons for the imposition of the sanction itself should be considered. Thus, while there might be cases where three months is not sufficient for a full inquiry to be carried out, the three month framework is intended to impose a form of time limit within which it is expected that there would be some engagement with the facts, to ascertain whether they justify the continued suspension."

 

26.         More recently, the approach to be taken to the suspension of a Garda has been summarised as follows by the High Court (Mulcahy J.) in Brannock v. Commissioner of An Garda Síochána [2023] IEHC 300 (at paragraphs 50 to 52):

"Although the debate at hearing was concerned with the question of whether the suspension in this case was a 'holding suspension', which would not be subject to a requirement for fair procedures, or a 'long-term' suspension, which would.  It seems to me that use of these labels tends to cloud rather than illuminate the nature of the decision, and the extent of fair procedures which must be afforded.

 

The case law illustrates that the extent of fair procedures which must attend any decision to suspend falls along a spectrum depending on the circumstances.  Relevant considerations include the length of the suspension, whether it is open-ended, whether it is with or without pay, whether it occurs in the context of clearly defined investigative or disciplinary procedures, whether or not it is intended to be punitive.  In this latter regard, it seems that a suspension, even if not intended to be punitive may have to be regarded as such if it continues for a sufficiently long period, especially if there is no progress in an investigation or disciplinary proceedings.

 

In the particular context of the suspension of a member of An Garda Síochána, regard must also be had to the Suspension Policy in determining the fair procedures to which a member is entitled.  Although the Policy does not have statutory force, the Commissioner has adopted a policy which provides that particular steps will be taken before suspending a member. It would be difficult for the Commissioner to argue that a decision taken without following the steps set out in that policy was in accordance with fair procedures, nor did he seek so to do.  To make a decision in accordance with the Suspension Policy required the taking of the views of the Divisional Officer in relation to particular considerations.  It also required the giving of a reason for the decision."

 

27.         Finally, the High Court (Phelan J.) held as follows in Baynham v. Commissioner of An Garda Síochána [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 of the given case.  In my view the decision to continue suspension over such a protracted period with an apparent intention to do so indefinitely requires steps to be taken to ensure the process is fair in terms of the information available to the Applicant so that they can know the considerations informing the decision to suspend not least to enable advice to be taken, to be heard in respect of the decision and to challenge decisions within the process as unlawful as appropriate."

 

28.         At paragraph 112 of the same judgment, it is stated as follows:

"I am satisfied that on the facts and circumstances of this case and at a remove of more than three years from first suspension, the Applicant is prima facie entitled, as an incident of his right to fair procedures, to know the material relied upon or the gist of the material relied upon in making the decision to further suspend him in order to enable him to make informed submissions and/or correct any errors of fact and/or challenge the decision in judicial review by reason of factors such as a failure to have regard to relevant considerations, having regard to irrelevant considerations, rationality or proportionality, as appropriate.  The proper protection of his constitutional right to a good name and to due expedition in the investigation process demands no less."

 

29.         In reliance on this case law, the Applicant makes two related arguments as follows.  First, it is argued that there has been a significant change in circumstances since he was first suspended and that he should have been invited to make submissions in relation to this change.  Second, a more general argument is made that the overall period of suspension is such that it is unlawful and excessive.  These two arguments are addressed in turn below.

30.         The Applicant contends that there has been a significant change in circumstances since he was first suspended, namely that it has since been disclosed that a decision had been made on 3 June 2020 not to pursue a criminal prosecution in respect of the complaint of assault made by the Complainant against her then partner in July 2019.  It will be recalled that this complaint had been received and recorded by the Applicant.

31.         It is argued that it follows as a corollary from the fact that there is to be no criminal prosecution in respect of the alleged assault by her then partner that the Complainant cannot properly be described as a "vulnerable victim of a crime".  It is next argued that this development, at the very least, reduces the seriousness of the alleged breach of discipline which is framed in terms of a breach of the duty of care which a member of An Garda Síochána owes to a vulnerable victim of a crime.  It is also said that it goes to the strength of the evidence of any alleged breach of discipline.  Indeed, the implication seems to be that the alleged breach cannot now be sustained.  The final step in the argument is to say that the decision not to prosecute should have been brought to the express attention of the Applicant and he should have been invited to make submissions thereon to the Assistant Commissioner as part of the three-monthly review of the suspension.

32.         With respect, the decision not to prosecute does not materially affect any assessment of the seriousness of the alleged breach of discipline.  The essence of the alleged breach of discipline is that it is contrary to their professional duty of care for a Garda to engage in a sexual relationship with a person who has made a complaint of domestic abuse to that Garda.  The alleged breach of discipline is directed towards the power dynamic between a person making a complaint of domestic abuse and the Garda to whom that complaint is made.  It is apparent from the wording of the particulars of the alleged breach of discipline that the concern is that a person who has made a complaint of domestic abuse should be treated as vulnerable by the Gardaí.  The professional duty of care is said, in the particulars of breach, to apply to "a person alleged to be the vulnerable victim of a crime".  The professional duty is directed to the status of the person at the time of the reporting of the alleged crime.  The professional duty is not necessarily contingent on there being a successful criminal prosecution thereafter. 

33.         The nature and extent of the professional duty owed to a person making a complaint of domestic abuse is a matter to be addressed, in the first instance, by the Board of Inquiry, with a right of appeal thereafter to an Appeal Board.  For the purpose of the present proceedings, the crucial point is that the fact there is to be no criminal prosecution in respect of the alleged domestic abuse does not necessarily remove the sting from the alleged breach of discipline.  There are many reasons for which a criminal prosecution might not be pursued in the context of alleged domestic abuse: it cannot automatically be inferred that the person making the complaint was not vulnerable.  Moreover, the alleged breach of discipline has to be seen in the context of the other three alleged breaches.  The essence of these is that the Applicant made contact with the Complainant's former partner in an attempt to prejudice family law proceedings.

34.         This court is satisfied that the belated disclosure of the decision made on 3 June 2020 not to pursue a criminal prosecution does not represent a significant change in circumstances such as to trigger a requirement to notify the Applicant and invite specific submissions on the implications of same for his suspension.  The essence of the alleged breach of discipline remains the same. 

35.         This then leads to the Applicant's more general argument in relation to the lawfulness of his continued suspension.  The Applicant argues, variously, that the continued suspension is unfair, unjustified and amounts to a form of sanction or penalisation.  This court is satisfied that each of the three-monthly decisions to renew the suspension were "reasonable" and "rational" in the administrative law sense.  Having regard to the seriousness of the allegations against the Applicant, it was open, as a matter of law, for the respective Assistant Commissioners to form the view that a renewal of the suspension was "desirable in the interests of the Garda Síochána" within the meaning of the Garda Síochána (Discipline) Regulations 2007.  The alleged breaches of discipline are very serious, touching as they do upon the interaction between Gardaí and the victims of alleged domestic abuse.  Without in any way trespassing upon the merits, it can fairly be observed that there is strong evidence of the Applicant having entered into a sexual relationship with the Complainant within weeks of the complaint of domestic abuse.  The allegations in relation to the family law proceedings are also very serious.  It is reasonable and rational for the Assistant Commissioner to decide that a Garda against whom such serious allegations have been made on the basis of credible evidence should be suspended pending the determination of a disciplinary process before a Board of Inquiry. 

36.         It should be reiterated that the question of whether the alleged breaches of discipline are well founded or not is a matter to be addressed, in the first instance, by the Board of Inquiry, with a right of appeal thereafter to an Appeal Board.  These judicial review proceedings are directed to the narrower issue of the lawfulness of the suspension.  This court's consideration of the seriousness of the allegations and the strength of the evidence is confined to an assessment of the reasonableness of the continued suspension. 

37.         This court is also satisfied that the Applicant has been provided, at all times, with an adequate explanation of the reasons for his suspension.  The reasons have been set out in correspondence and, more recently, are endorsed on the three-monthly review notices.  As appears, the reasons are that the Applicant is being investigated for alleged breaches of discipline; the alleged breaches are regarded as serious; and the Applicant has been suspended pending the investigation of the alleged breaches.  The Assistant Commissioner has had regard to the fact that matters have proceeded as far as the establishment of a Board of Inquiry.  The most recent notices also reference these judicial review proceedings.  The Assistant Commissioner swore an affidavit in these proceedings on 9 July 2024 and there has been no application to cross-examine him on the contents of same.

38.         It is difficult to understand what more the Applicant expects by way of reasons.  This is not a case where a Garda is at the periphery of a large-scale investigation into a number of officers and might not be fully aware of the details of the investigation.  Here, Garda Harrison knows precisely what is being alleged against him.  He has been served with particulars of the serious breaches of discipline alleged and has been served with a number of statements recording the events alleged to constitute the breaches.  It is apparent from the terms of the three-month reviews that the Assistant Commissioner regards it as a serious breach of discipline for a Garda to enter into a sexual relationship with a person making a complaint of domestic abuse.  The Applicant might disagree with this view, but he cannot sensibly say he does not understand why the Assistant Commissioner, consistent with the latter's view of the inappropriateness of such conduct, has continued the Applicant's suspension pending the determination of the disciplinary process. 

39.         The judgment in Baynham v. Commissioner of An Garda Síochána (cited above) suggests that the subject of a suspension may be entitled to know the material relied upon, or at least the gist of the material relied upon, in making the decision to further suspend him.  For completeness, it should be recorded that this court is satisfied that the Applicant has been aware at all times of the gist of the material relied upon.  The circumstances surrounding the alleged breach of discipline are known to the Applicant: he had recorded a complaint of domestic abuse and subsequently entered into a sexual relationship with the Complainant.  Whereas the Applicant is entitled to dispute whether these circumstances comprise a breach of discipline, he cannot realistically say that he is unaware of the nature of the allegations against him.  More recently, the Applicant, through the Board of Inquiry, has been provided with a detailed bundle including various witness statements.

40.         It is correct to say that the Applicant has been suspended for a significant period of time: he had first been suspended in March 2021.  The length of the suspension has, however, to be seen in the context of the progression of the disciplinary process.  It is apparent from the correspondence in April and May 2022 that the Applicant did not object to the disciplinary process being deferred pending the outcome of the criminal investigations.  The disciplinary process resumed thereafter, and a Board of Inquiry was established on 4 May 2023.  The Board of Inquiry, through its presiding officer, served particulars of the serious breaches of discipline alleged by notice dated 7 July 2023.  The Board of Inquiry held a preliminary hearing on 21 July 2023 and the substantive hearing commenced in November 2023.  But for the intervention of these judicial review proceedings, the disciplinary process would likely have already concluded. 

 

 

(2).    Board of Inquiry's proposed procedure

41.         The second principal ground of judicial review comprises a challenge to the procedures adopted by the Board of Inquiry.  The Applicant objects to the proposal whereby written statements supposedly made by the Complainant would be read into the record prior to any questioning of her by either the Board of Inquiry or counsel on behalf of the Applicant.  Objection is also made to what is said to be deficiencies in the disclosure or discovery of documents.

42.         The striking feature of the present case is that the Applicant has moved for judicial review prior to the conclusion of the disciplinary process.  The Board of Inquiry has not produced its statutory report; indeed, the hearing before the Board of Inquiry has not yet concluded.  The first issue to be addressed by this court, therefore, is whether the application for judicial review is premature. 

43.         There is a reluctance on the part of the courts to interfere too readily in an ongoing disciplinary process.  The appropriate approach has been outlined by the Supreme Court in Rowland v. An Post [2017] IESC 20, [2017] 1 IR 355.  It was held there that the court should only intervene in an ongoing disciplinary process where it is clear that the process has gone irretrievably wrong and that it is more or less inevitable that any adverse conclusion reached at the end of the process would be bound to be unsustainable in law.  In any case where the moving party cannot establish that the case meets that standard, it will ordinarily be inappropriate for the court to intervene at that stage but rather the process should be allowed to continue to its natural conclusion at which stage it can, if any party wishes it, be reviewed.

44.         The circumstances of the present case do not reach this threshold.  Whereas the procedure proposed to be adopted by the Board of Inquiry might be regarded as unusual, it is not one which can be said, at this remove, to be inherently unfair. 

45.         The procedures to be followed by a Board of Inquiry are prescribed under the Garda Síochána (Discipline) Regulations 2007 and are subject to the overarching requirements of natural and constitutional justice.  Regulation 29 provides, relevantly, that information at an inquiry shall be given on oath or affirmation and that a verbatim record of the proceedings shall be made by a stenographer or by electronic or other means.  At a hearing, the Board of Inquiry may permit any person to give evidence orally or in writing.  A Board of Inquiry is required (i) to give the member concerned an opportunity to be heard and to respond to any matters raised, and (ii) to have regard to the right of the member concerned to challenge and test the evidence of any person.

46.         It is correct to say that the usual approach at a sworn inquiry would be for a witness to give their evidence in chief and then to be cross-examined.  To this extent, the proposal to read into the record the written statements supposedly made by the Complainant, prior to receiving any oral testimony from her, is unusual. 

47.         The logic of the Applicant's objection seems to be that it is never permissible to adduce written statements in circumstances where the witness is available to give oral testimony.  With respect, this is not correct as a matter of law.  Even in the context of a hearing otherwise conducted on oral testimony, it is, in principle, permissible to lead evidence of the fact that a witness had made previous statements.  An obvious example is where the parties have exchanged witness statements in advance.  It might be agreed that those witness statements should be treated as the evidence in chief, with the witness then being made available for cross-examination.

48.         Another example is where a witness has made a prior inconsistent statement.  If and insofar as there might be a conflict between a witness's oral testimony and a prior statement of theirs, then there may be an application to put that prior statement to the witness.  The existence of a prior inconsistent statement, if established, is something which might go to the credibility of their oral testimony. 

49.         There is no "bright line" rule which precludes a Board of Inquiry from ever admitting witness statements.  Rather, the touchstone against which the procedures of a Board of Inquiry must be assessed is whether proper regard has been had to "the right of the member concerned to challenge and test the evidence of any person" (regulation 29(7)).  It is simply not possible to know at this remove whether the proposed procedure would have breached this requirement.  This is because the Applicant moved for judicial review precipitously and without waiting to see how the oral hearing would evolve.  It is not possible to say, therefore, what the run of the evidence might have been.

50.         It will be recalled that the Complainant had been sworn in as a witness and the proposal had been that she would be available for questioning by counsel on behalf of the Applicant.  In consequence of the oral hearing being disrupted by the judicial review proceedings, we do not know, for example, whether there would have been any inconsistency between the oral testimony of the Complainant and the content of any written statements.  We do not know what weight, if any, the Board of Inquiry might ultimately have given to the written statements in assessing credibility.  Similarly, it is premature to reach any finding as to the fairness or otherwise of the limiting of the disclosure to be made to the Applicant. 

51.         This ground of judicial review must, therefore, be dismissed on the basis that it is premature.  It cannot be said that the procedure which the Board of Inquiry proposed to adopt is inherently unfair. 

 

 

(3).    Complainant's statement of April 2021

52.         It appears that the Complainant made a witness statement on 22 April 2021 in which she stated that she did not wish to have the Applicant prosecuted for an alleged offence of coercive control under the Domestic Violence Act 2018.  The Applicant takes grave exception to the fact that the existence of this witness statement was not disclosed to his side until the hearing before the Board of Inquiry on 20 November 2023.

53.         The Applicant has sought to rely on the belated disclosure of this witness statement to challenge the continuation of the disciplinary proceedings.  It is pleaded, variously, that the Commissioner: (i) has acted ultra vires in persisting with the disciplinary investigation; (ii) has acted in breach of natural and constitutional justice; (iii) does not have a bona fide belief that the Applicant has committed a breach of the Garda Síochána (Discipline) Regulations 2007; and (iv) had displayed bias against the Applicant.

54.         With respect, none of these pleas are well founded.  The pleas seek, mistakenly, to assimilate a criminal prosecution with disciplinary proceedings.  The two serve very different purposes (McKenna v. Commissioner of An Garda Síochána [2016] IEHC 175 (at paragraphs 29 and 34)).  It is not a necessary precondition to the legitimate pursuit of disciplinary proceedings that the impugned conduct must also constitute a criminal offence.  There is a public interest in ensuring that members of An Garda Síochána are held to a high ethical standard and a Garda may be disciplined and even dismissed notwithstanding that there is no criminal offence.

55.         Indeed, disciplinary proceedings can, in principle, be pursued even where the Garda has been acquitted of a related criminal offence: McKenna v. Commissioner of An Garda Síochána [2018] IECA 69.

56.         Moreover, the decision on whether to pursue a criminal prosecution is ordinarily a matter for the prosecuting authorities (whether the Director of Public Prosecutions or the local police pursuant to a direction under section 8 of the Garda Síochána Act 2005).  The views of the alleged victim or complainant are not necessarily determinative.  The Complainant's witness statement of 22 April 2021 does not have the seismic importance which the Applicant seeks to attach to it.

57.         For completeness, if and insofar as the Applicant seeks to pursue declaratory relief in relation to the decision to commence and continue the disciplinary investigation ((D) (iv) and (v)), such an application is out of time.  The relevant decisions to commence the investigation were taken well before the three month time-limit for the institution of judicial review proceedings under Order 84. 

 

 

Conclusion

58.         The Applicant's continued suspension is lawful.  Having regard to the seriousness of the breaches of discipline alleged and the apparent strength of the evidence underlying those allegations, it was reasonable and rational for the Assistant Commissioner to extend this suspension on each of the three-monthly reviews.

59.         This court is satisfied that the belated disclosure of the decision made on 3 June 2020 not to pursue a criminal prosecution does not represent a significant change in circumstances such as to trigger a requirement to notify the Applicant and invite specific submissions on the implications of same for his suspension.  The essence of the alleged breach of discipline remains the same. 

60.         The challenge to the proposed procedure to be adopted by the Board of Inquiry is premature having regard to the principles in Rowland v. An Post.  It cannot be said, at this remove, that the disciplinary process has gone irretrievably wrong.

61.         The witness statement of 22 April 2021 does not have the significance which the Applicant seeks to attribute to it.  Certainly, neither the existence of, nor the late disclosure of, this statement vitiates the disciplinary process.

62.         Accordingly, the application for judicial review must be dismissed in its entirety.  As to legal costs, the default position is that the Commissioner, having been "entirely successful" in resisting the judicial review proceedings, would be entitled to recover his costs as against the Applicant.  The proceedings will be listed before me on 19 June 2025 and the Applicant will be afforded an opportunity to make submissions as to why the default position should not apply.

 

 

Appearances

Mark Harty SC and Peter Paul Daly for the applicant instructed by Kilfeather & Company

Shane Murphy SC and Niall Nolan for the respondent instructed by the Chief State Solicitor

 

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