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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> G.W. v The Commissioner of An Garda Siochana (Approved) [2025] IEHC 336 (04 June 2025)
URL: http://www.bailii.org/ie/cases/IEHC/2025/2025IEHC336.html
Cite as: [2025] IEHC 336

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THE HIGH COURT

JUDICIAL REVIEW

 

RECORD NO. 2022/1027 JR

[2025] IEHC 336

BETWEEN

 

G.W.

 

APPLICANT

 

AND

 

THE COMMISSIONER OF AN GARDA SIOCHÁNA

 

RESPONDENT

 

DRAFT JUDGMENT of Ms. Justice Siobhán Phelan, delivered on the 4th day of June, 2025

 

       INTRODUCTION

1.      In these proceedings, the Applicant seeks to challenge the lawfulness of a refusal of station bail following his arrest for a second alleged breach of a protection order made under s. 10 of the Domestic Violence Act, 2018 (hereinafter "the 2018 Act").

 

2.      The refusal of station bail is challenged as unlawful because at the material time the published policy of the Respondent (hereinafter "the Commissioner") was that station bail should be refused in cases of alleged breaches of domestic violence orders as stated at paragraph 6.1 of the "Policy of An Garda Síochána on Domestic Abuse Intervention" (Revised Edition 2017) (Garda HQ Directive 23/2017) (hereinafter "Garda HQ Directive"). 

 

3.      The Applicant maintains that the Garda HQ Directive operated to improperly fetter the discretion of the sergeant or member in charge under s. 31 of the Criminal Procedure Act, 1967 (as amended) (hereinafter "the 1967 Act") to release on station bail pending attendance before an early sitting of the District Court and that the Garda HQ Directive was based on an error of law. 

 

4.      The Garda HQ Directive was cancelled in January, 2025, by Garda HQ Directive 4/2025.  Accordingly, it is conceded on behalf of the Applicant that much of the relief sought at leave stage is no longer being pursued by reason of mootness.

 

5.      Due to their nature, these proceedings were heard before me in camera.  For this reason, personal identifying features have been removed in this judgment. 

 

 

FACTUAL BACKGROUND

6.      The Applicant is a gentleman who, after a long relationship with the mother of his children, left the family home.  Following the ending of this relationship, the Applicant's former partner sought and was granted a protection order on an ex-parte basis by a judge sitting in Dublin District Court in September, 2021.

 

7.      In early October, 2022, the Applicant was arrested and charged with a breach of the said Protection Order contrary to s. 33 of the 2018 Act in that he posted a description of himself on social media declaring "You will never stop me. They are my sons too. I'm coming."  His former partner made a complaint to the Gardaí stating that this put her in fear.

 

8.      Following his arrest and charge, the Applicant was not offered station bail but was detained overnight and brought before the District Court the following day.  Thereafter, the District Court remanded the Applicant on bail, subject to court-imposed conditions.

 

9.      The Applicant filed a Statement of Grounds and affidavits in support of an application to seek leave to proceed by way of judicial review on the 23rd of November, 2022 in respect of the refusal to station bail and the Garda HQ Directive.  Leave to seek relief by way of judicial review was granted ex parte (Hyland J.) on the 8th of April, 2024. 

 

10.  In the affidavits grounding his application, the Applicant did not disclose that his arrest in early October, 2022, was his second arrest for alleged breach of the Protection Order.  He also failed to disclose that on his first arrest he had, in fact, been granted station bail.  

 

11.  Furthermore, the Applicant maintained that the prosecuting member, Garda Keegan, had consented to bail when, as confirmed in subsequent opposition papers and without eliciting any further engagement on the question on behalf of the Applicant, Garda Keegan had opposed bail.

 

12.  The Applicant separately maintained that "no special condition which could not have been imposed by way of station bail was imposed."  Although making this claim in categoric terms, the Applicant did not exhibit the bail bond.  He also failed to disclose the full extent of the conditions which had been imposed, neglecting to refer to the fact that he was directed as a condition of bail to have no further contact with his former partner except in relation to access to his children. 

 

13.  Exhibiting the bail bond in a subsequent replying affidavit, Garda Keegan's averments in response make crystal clear that in addition to the condition that the Applicant abide by the terms of the previous Protection Order, it was a further condition of his bail as imposed by the District Court judge, that he was not to have any contact with his former partner except for child access purposes.  

 

14.  The Applicant seeks to minimise the significance of the condition of bail that he complies with the Protection Order on the basis that the Applicant was obliged to do so in any event.  He does not address the significance of the fact that by reason of the condition imposed on bail, his continuing liberty was made dependent on such compliance.

 

15.  In May, 2023, the Applicant was convicted of the offence under s. 33 of the 2018 Act dating to early October, 2022, following a contested hearing.  He was sentenced to a term of imprisonment which was suspended on condition that he take up a place in a specified domestic violence course.

 

16.  The Applicant has not sought to respond to or engage with the material fact that the further condition that he have no further contact, direct or indirect, with his former spouse except in relation to access was imposed by the District Court but was not disclosed by him in moving his application ex parte.  Nor has he sought to address the significance of this fact for his contention in presenting his case that the District Court did not impose a condition which the Gardaí could not have imposed, one of the central planks upon which he advances his case.

 

17.  The Commissioner opposes all the claims and reliefs sought by the Applicant on the primary basis that an entirely inaccurate factual position has been presented by the Applicant in moving to seek relief in these proceedings and that the factual basis for the legal complaints advanced has not been substantiated.

 

LEGISLATIVE FRAMEWORK

18.  The Domestic Violence Act, 1996 was repealed by s. 3 of the 2018 Act, reintroducing many of its provisions with small variations and introducing new protections against abuse. 

 

19.  As it had been under the previous Domestic Violence Act, 1996, it remains an offence under s. 33 of the 2018 Act to contravene a protection order.  A person found guilty of such an offence shall be liable on summary conviction to a fine or to imprisonment for a term not exceeding 12 months, or both.  Where a member of the Garda Síochána has reasonable cause for believing that an offence is being or has been committed under s. 33, the member may, on complaint being made to him or her by or on behalf of the person who was the applicant for a protection order, arrest the alleged offender without warrant pursuant to the provisions of s. 35 of the 2018 Act.

 

20.  Section 31 of the 1967 Act deals with release on bail by members of the Garda Síochána of a person brought in custody to a Garda station following arrest on foot of a complaint, including a complaint of an offence under s. 33 of the 2018 Act.  Section 31 of the 1967 Act provides:

 

"(1) Whenever a person is brought in custody to a Garda Síochána station by a member of the Garda Síochána, the sergeant or other member in charge of the station may, if he considers it prudent to do so and no warrant directing the detention of that person is in force, release him on bail and for that purpose take from him a recognisance, with or without sureties, for his due appearance—

(a) before the District Court at the next sitting thereof in the District Court Area in which that person has been arrested or at any subsequent sitting thereof in that District Court Area during the period of thirty days immediately following such next sitting, or

(b) in the case of the District Court in the Dublin Metropolitan District, before the next sitting of that Court or at any subsequent sitting thereof during the period of thirty days immediately following such next sitting.

(2) The recognisance may be estreated in the like manner as a recognisance entered into before a justice is estreated.

(3) If the recognisance is conditioned for the payment of a sum of money, that sum may be accepted in lieu of a surety or sureties.

(3A) Any recognisance taken under this section, or any sum of money accepted under this section in lieu of a surety or sureties, shall be given, by the member of the Garda Síochána taking the said recognisance or receiving the said sum of money, to the District Court clerk for the District Court Area in which the sitting of the Court to which the person has been remanded is situated.

(4) This section does not apply to a person arrested under section 251 of the Defence Act, 1954, on suspicion of being a deserter or an absentee without leave from the Defence Forces. (5) The provisions of this section are without prejudice to the provisions of section 94 of the Children Act, 1908."

 

21.  The provisions of the Bail Act, 1997 (as amended) (hereinafter "the 1997 Act") are also apposite because they provide in express terms for a jurisdiction on the part of the court to impose conditions when granting bail.  Section 6 of the 1997 Act provides:

 

"(1) Where an accused person is admitted to bail on his or her entering into a recognisance—

(a)the recognisance shall, in addition to the condition requiring his or her appearance before the court at the end of the period of remand of the accused person, be subject to the condition that the accused person shall not commit an offence while on bail, and

(b)the recognisance may be subject to such conditions as the court considers necessary and proportionate having regard to the circumstances of the case, including but without prejudice to the generality of the foregoing, any one or more of the following conditions:

(i) that the accused person resides or remains in a particular district or place in the State,

(ii) that the accused person reports to a specified Garda Síochána Station at specified intervals,

(iii) that the accused person surrenders any passport or travel document in his or her possession or, if he or she is not in possession of a passport or travel document, that he or she refrains from applying for a passport or travel document,

(iv) that the accused person refrains from attending at such premises or other place as the court may specify,

(v) that the accused person refrains from having any contact with such person or persons as the court may specify.

(vi) that the accused person refrains from having contact (direct or indirect) with the person in respect of whom the offence is alleged to have been committed or any member of his or her family unless such contact is approved by the court,

(vii) that the accused person shall not drive a mechanically propelled vehicle (within the meaning of the Road Traffic Act 1961) where the person has been charged with a serious offence relating to the driving of such a vehicle and the court considers it necessary to impose such a condition to prevent the commission of a serious offence connected with the driving of such a vehicle,

(viii) that the accused person shall be at a specified place between specified times during the period commencing at 9.00 p.m. on each day and ending at 6.00 a.m. on each following day."

 

22.  The power to impose conditions on bail granted to the judge under s. 6(1)(b) of the 1997 Act is not extended by that provision to the Garda Sergeant or Member in Charge granting station bail under s. 31 of the 1967 Act. 

 

      GARDA HQ DIRECTIVE

23.  The Applicant maintains that the refusal of station bail in his case was caused by the application of the Garda HQ Directive to refuse station bail to anyone charged with an offence under domestic violence legislation.  Chapter 6.1 of the now rescinded Garda GQ Directive read:

 

"Where an Order under the Domestic Violence Act 1996 (as amended) exists:

An order granted under the Domestic Violence Act, 1996 (as amended) is a direction of the Court to bring a person who contravenes the Order to Court, therefore station bail cannot be granted."

 

24.  The Applicant maintains that this statement contained in the now rescinded Garda HQ Directive was incorrect in law because it was a matter for the Court and not the arresting member or the Gardaí to determine whether a person alleged to be guilty of an offence under the Domestic Violence Act, 1996 (as amended) was, in fact, guilty.  Furthermore, it is contended that the legal effect of a domestic violence is misstated in describing it as a direction of the Court to bring a person to court without bail. 

 

25.  The Applicant further contends that he was denied his constitutional right to liberty when detained by An Garda Siochána overnight before being brought before the District Court for a bail hearing instead of being released on station bail because of the application to him of an unlawful policy direction which policy direction was itself based on an erroneous view of the law.  In oral submissions he advances a claim in damages citing G.E. v. Commissioner of An Garda Siochana [2022] IESC 51 consequent upon this alleged unlawful deprivation of liberty.

 

26.  It bears emphasis that although not rescinded until January, 2025, the Garda HQ Directive in its express terms related to the Domestic Violence Act, 1996 which stood repealed by s. 3 of the 2018 Act at all times material to the Applicant's arrest, charge and release on bail.

 

DISCUSSION AND DECISION

27.  The power to the Gardaí to release on station bail is a discretionary power which falls to be exercised in accordance with conditions imposed by statute.  As noted by Walsh on Criminal Procedure (2nd Edition) at paragraph 17-07:

 

"Whenever a person is brought in custody to a Garda station by a member of the Garda Síochána, the sergeant or other member in charge of the station has jurisdiction to release the person on bail where he considers it prudent to do so and no warrant requiring the person's detention is in force. This is referred to generally as police bail or station bail. Before releasing the person on bail, the member may take from him a recognisance with or without sureties for his due appearance before the District Court at the next sitting of the court in the District Court area in which the person was arrested or at any subsequent sitting of the Court in that area during the 30 days immediately following that sitting."

 

28.  It is well-established that a statutory discretion cannot lawfully be made the subject of a non-statutory condition which operates inflexibly and as though a rule of law.  A non-statutory condition for which no adequate legal basis is identified superimposed on a statutory framework in a manner which operates to restrict or fetter the proper exercise of a statutory discretion may be considered a form of law-making falling foul of Article 15.2 of the Constitution.  Whether the policy is a personal policy (DPP v. Cullen [2014] IESC 7) or a centrally directed policy (Dunne v. Donohue [2002] IESC 35), strict application of a general policy in all cases irrespective of the circumstances of the case is vulnerable to legal challenge. 

 

29.  While disabling a statutory discretion based on the application of a non-statutory, extraneous rule may, depending on all the circumstances including the applicable legal framework, be legally dubious, a person vested with a statutory discretion is normally fully entitled to refuse to exercise his or her discretion based on a fair and proper consideration of relevant factors.  

 

30.  In the case of s. 31 of the 1967 Act, the discretion is a broad one which turns on what the sergeant or member in charge considers "prudent" provided there is no warrant directing detention in force and provided the person is not under arrest pursuant to s. 251 of the Defence Act, 1954.  What may be considered "prudent" is likely to depend on factors (non-exhaustive) such as the nature of the alleged offence, any history of prior offending and the availability of enhanced powers to condition court ordered bail when compared with station bail.

 

31.  There is no impediment to decision-makers adopting or being guided by general policies, not least as a means of promoting the consistent and proper exercise of a statutory discretion by different decision-makers, provided the policy is not operated in a manner which disables the discretion.  While it is open to decision-makers to be guided by general policy considerations, when identifying guiding principles in a policy document, care is required to ensure that general policy matters are informed by a correct interpretation of the law and do not operate in practice to improperly bind the decision-maker.  This is necessary to safeguard against introducing a legal frailty in the decision-making process.

 

32.  Whether there has been an improper interference with a statutory discretion is a question which cannot be divorced from the facts of a given case.  In every case of challenge to the lawful exercise of discretion, the factual basis upon which the discretion in question has been exercised requires to be established.  Where it is contended that the decision is vitiated by the inflexible application of an unlawful policy or mistake of law, it is necessary that the facts establish that the said policy or error of law impacted on the decision, before considering whether the policy itself was unlawful either in its terms or in its application.

 

33.  The Affidavits of Garda Keegan and Sergeant Coyne confirm that station bail under s. 31 of the 1967 Act was refused in the circumstances outlined in their Affidavits, namely from a concern that the Applicant was already on bail for an alleged breach of the Protection Order and Garda Keegan had a concern, articulated to Sergeant Coyne, that he would continue to breach the Protection Order. 

 

34.  Garda Keegan has given further evidence (para. 7 of his Affidavit sworn on the 22nd of November, 2024) that he wanted to bring the Applicant before the next available sitting of the District Court to seek to have bail conditions imposed on him which could not have been imposed under s. 31 of the 1967 Act. 

 

35.  In my view, these are factors which obviously bear on the proper exercise of the s. 31 discretion.  The risk of recurrence of offending behaviour whilst on bail and the need for conditions on bail beyond the Garda member's competence to impose same were properly factors identified by the arresting guard and the sergeant/member in charge involved in the decision not to release on station bail in this case as a prudent exercise of discretion under s. 31. 

 

36.  Garda Keegan has further given evidence that he then objected to bail in the District Court (contrary to the Applicant's averments in moving to seek leave to bring these proceedings ex parte) and that the District Judge imposed conditions which include a condition which could not have been imposed under s. 31 of the 1967 Act.  

 

37.  The Applicant has not contested the contents of either Garda Keegan's affidavit or Sergeant Coyne's affidavits filed in response to his in any way and there was neither an application to cross-examine the Garda deponents on their affidavits nor an explanation for the false and misleading case presented.  In RAS Medical Ltd v Royal College of Surgeons in Ireland [2019] IESC 4, [2019] 1 IR 63, the Supreme Court (Clarke C.J.) held (at para. 92) that:

 

"it is frankly not appropriate for parties to enter into controversy as to the facts contained...in affidavit evidence...without exploring the necessity for at least some oral evidence. If it is suggested that there are facts which are material to the final determination of the proceeding and in respect of which there is potentially conflicting evidence to be found in such affidavits..., then it is incumbent on the party who bears the onus of proof in establishing the contested facts in its favour to use appropriate procedural measures to ensure that the potentially conflicting evidence is challenged. Where, for example, to individuals have given conflicting affidavit evidence and where it is considered that a resolution of the dispute between those witnesses is necessary to the proper disposition of the case, then there has to be cross-examination and the onus in that regard rests on the party on whom the onus of proof lay to establish the contested fact."

 

38.  Insofar as the Applicant has asserted anything contrary to the evidence of Garda Keegan and Sergeant Coyne in his Affidavit, the onus was on him to prove such matters.  In my view he has failed to do so in respect of central, foundational elements of his case.  Arising from the consideration of RAS Medical, insofar as there is any conflict of evidence in this case, it cannot be resolved in favour of the Applicant. 

 

39.  It is particularly noteworthy when considering the factual matrix to this claim that the Applicant failed to disclose the earlier charge of breach of the Protection Order, or that he was, in fact, released on station bail when that earlier alleged breach occurred.  The Applicant has not responded to the affidavits of Garda Keegan or Sergeant Coyne to dispute their evidence that his arrest in October, 2022, was a second arrest for an alleged offence, this time occurring while he was already on bail for a similar alleged offence.  While he does not now dispute that he had been granted station bail at Terenure Garda Station at the time of the first alleged breach, he makes no attempt to explain his failure to mention this when swearing an affidavit to ground his ex parte application for leave to proceed by way of judicial review.  His failure to disclose these highly relevant facts in moving an application for leave ex parte is not immaterial. 

 

40.  Surely, if the Gardaí were operating a fixed policy of refusing station bail (be it lawful or otherwise) as he contends, he would not have been granted station bail at all.  The Applicant's own experience of being granted station bail on the first occasion and refused it on the second give the lie to his belief that he was refused station bail in reliance on an unlawful, fixed policy.  Rather than address this inconvenient fact in moving his application ex parte, the Applicant simply elected to ignore the fact that this was his second arrest for the same offence and that, inconsistent with the theory of his challenge, he had been granted station bail on his previous arrest. 

 

41.  I am quite satisfied that the Applicant's account in bringing proceedings was seriously incomplete to the point of being misleading.  The very tenability of his claim is fundamentally undermined by his selective approach to the facts. I find the failure to fully disclose what the Applicant might consider inconvenient facts when this ought to have been disclosed on an ex parte application requiring candour to be undermining of his bona fides and general credibility. 

 

42.  The Affidavit evidence from Garda Keegan and Sergeant Coyne establishes that Garda Keegan's primary concern on the occasion of the arrest in October, 2022, was that the Applicant was already on bail for an alleged breach of the Protection Order and that alleged breach had occurred in August, 2022.  Arising from the concerns expressed to him by Garda Keegan, namely, that if the Applicant were released on station bail that he would continue to breach the Protection Order in circumstances where he was on bail for an application breach of the same Protection Order only weeks earlier and his expressed wish to bring the Applicant before the District Court so that conditions could be imposed, Sergeant Coyne states at paragraph 7 of his Affidavit that he exercised his discretion under s.31 of the Criminal Procedure Act, 1967 to refuse station bail to the Applicant.  This decision by Sergeant Coyne was grounded on specific factual considerations, which are outlined in the Affidavits from both Gardaí. 

 

43.  Garda Keegan avers further to his belief that he sought the bail conditions imposed by the District Judge, although he is candid about his lack of certainty about this in the absence of his court notes. 

 

 

44.  In my view, not only were the concerns which resulted in the refusal of station bail as articulated on affidavit rationally held but the bona fides of Garda Keegan's concerns in relation to the refusal of station bail because of specific concerns that the Applicant might breach the protection order again, this being a second alleged offence occurring while the Applicant was on bail, are evidenced by the fact he appeared to object to bail in the District Court, contrary to what the Applicant averred in moving by way of judicial review.  The Applicant's averment in grounding these proceedings (at para. 9) that he was granted bail in the District Court "with the consent of the Prosecuting Member" is a contention which he has not sought to stand over by further evidence or cross-examination and I reject it as unsubstantiated.  The objection of the prosecuting guard to bail is another inconvenient fact which does not sit with the Applicant's narrative.

 

45.  Garda Keegan has gone further than outlining the concerns which led him to consider release on station bail imprudent in raising his concerns with Sergeant Coyne and has asserted at paragraph 16 of his first Affidavit that this decision was not because of the Garda HQ Directive.  I have no reason to doubt the veracity of Garda Keegan's averment in this regard insofar as his state of mind was concerned noting that for his part the Applicant has never suggested that the Garda HQ Directive was identified by either Garda Keegan or Sergeant Coyne as a basis for refusing station bail. 

 

46.  Leaving aside the problems for the Applicant's case created by the fact that no reference was made to the Garda HQ Directive in refusing him station bail, the Applicant does not address how, if the Gardaí were really applying an inflexible, unlawful policy and that a mistaken understanding of the law was being applied, as he contends, it came to be that he was granted station bail on his first alleged offence.  The impugned and now rescinded Garda HQ Directive clearly did not operate on that prior occasion to preclude release on station bail, demonstrating that the Garda sergeant or member in charge at that time did not consider themselves constrained to refuse station bail by reference to its terms.  The Applicant does not explain why it might be otherwise on this occasion, the difference being that on this occasion station bail was refused but in the light of a repeat allegation of breach which reasonably gave rise to increased concerns.

 

47.  Contrary to the Applicant's position as deposed to in grounding these proceedings at ex parte leave stage, I am satisfied that the Applicant was remanded by the District Court on bail on his own bond of €500 and on the condition that he abide by the terms of the protection order and have no contact with his former partner except for child access purposes.  This is borne out not alone by Garda Keegan's evidence but by the terms of the bail bond which has been adduced in evidence by Garda Keegan.

 

48.  In considering the basis for refusing station bail which included the wish to secure conditions from the District Court, the express reference in s.6(1)(b) of the 1997 Act to the jurisdiction of the court to impose additional conditions in the recognisance is an important consideration.  It shows that the intention of the Oireachtas was that the power to impose such conditions is for the relevant court and not the member in charge or sergeant when granting station bail.  No similar express power is provided in s.6 of the 1997 Act to a Garda when granting station bail to a person.  In addition, no such express power is provided to the sergeant or member in charge of a Garda Station in s.31 of the 1967 Act.  Section 6 of the 1997 Act is explicit in providing that the "court" can impose additional conditions on bail terms imposed.  

 

49.  Insofar as an additional condition was imposed in this case, most specifically that the Applicant have no contact with the alleged injured party save for child access, this was a condition which I am satisfied the District Court had power to impose but is not a condition which could have been lawfully imposed by way of station bail.  Likewise, the court-imposed condition that the Applicant comply with the terms of the Protection Order afforded an additional layer of protection not available on the grant of station bail because it made the Applicant's continued liberty on bail dependent on such compliance. 

 

50.  While the District Judge decided to grant bail in the face of Garda Keegan's objections and notwithstanding that this was a second arrest for alleged breach of the Protection Order, the Judge clearly considered that it was necessary to impose as a condition of bail that the Applicant stay away from the injured party in the case and only have contact in relation to access.  This demonstrates that Garda approach in refusing to release on station bail simpliciter was endorsed by the District Judge.

 

51.  As with other inconvenient facts, the Applicant simply ignores, in his pleadings and submissions, the fact that the District Court endorsed the refusal of station bail simpliciter by adding conditions.  I am satisfied that insofar as Garda members were motivated by a wish to secure future compliance with the Protection Order through the imposition of conditions on bail in view of a repeat allegation of non-observance, the Garda members were correct in the view that it would be prudent to ask the Court to deal with bail given the court's greater powers. This was a sound basis for refusing station bail.

 

52.  I find that the Applicant was in error in contending that the Court did not impose a condition of bail additional to that which could have been imposed as a condition of station bail.  In my view, the additional conditions of bail imposed by the District Court supports the evidence of Garda Keegan and Sergeant Coyne and undermines the Applicant's evidence. 

 

53.  It is fair to observe that aspects of the Applicant's evidence have been shown to be false and incomplete.  In consequence I find his evidence entirely unreliable.  In contrast, Garda Keegan and Sergeant Coyne outlined clearly the circumstances and reasoning behind the decision to refuse station bail in this case.  The said circumstances and reasoning patently did not involve an application of, reference to or consideration of the Garda HQ Directive. 

 

54.  The Applicant has failed to prove the factual assertions he relies upon in any way whatsoever.  Any "beliefs" held by him are only that - beliefs.  Indeed, the evidence in the case contradicts the Applicant's assertions including the fact that he had previously been granted station bail.  In fact, notwithstanding his professed belief, the Applicant has never suggested that any reference was made to the Garda HQ Directive in refusing him station bail.  

 

55.  It is not enough to point to the existence of a paragraph in a policy document as the Applicant does in this case.  It is only at the point where it has been demonstrated that the decision taken was based influenced by the impugned policy that a court would be entitled to entertain a legal argument in relation to the lawfulness of the decision by reference to the said policy.

 

56.  I accept entirely the Affidavit evidence of Garda Keegan and Sergeant Coyne where any conflict arises with the evidence of the Applicant.  I am quite satisfied that Garda Keegan's concerns about the Applicant further breaching the Protection Order were reasonable, legitimate concerns which were based on evidence. Furthermore, Sergeant Michael Coyne exercised his discretion to refuse bail appropriately and in a lawful manner. 

 

57.  This case can be resolved on its own facts and does not require a consideration of the lawfulness of the now rescinded Garda HQ Directive.  The Applicant has failed to prove that the impugned policy or asserted mistake of law had any impact whatsoever on the decision to refuse station bail in this case. 

 

58.  Both Garda Keegan and Sergeant Coyne were fully aware that it was open to grant station bail under s. 31 of the 1967 Act but in Sergeant Coyne's opinion, for the reasons given, it was not prudent to do so.  In circumstances where I have no hesitation in accepting the evidence of Garda Keegan and Sergeant Coyne in the face of the Applicant's less than proper approach to the full truth, I am bound to find that these proceedings were commenced on an entirely false premise.

 

59.  In addition and for completeness, it bears note that the refusal to grant station bail did not result in a protracted deprivation of liberty.  The Applicant was brought before a sitting of the District Court the very next day.  In the circumstances, it cannot be contended that the refusal of station bail was either unreasonable or disproportionate.  Furthermore, the District Judge was satisfied that it was appropriate to condition release on bail in a manner which would not have been possible had station bail been granted.  No challenge has been taken to the conditions imposed by the District Judge which were clearly intra vires s. 6(1)(b) of the 1967 Act and rationally connected to the evidence before the District Court and the objections of Garda Keegan to bail.

 

CONCLUSION

60.  Whether a discretion has been affected by an unlawful policy direction is a matter of fact to be established on evidence.  Nothing in the way in which the decision to refuse station bail in this case was conveyed suggests that the decision to refuse station bail was influenced by Garda HQ Directive.  On the contrary, on the facts established in evidence, it appears that the decision to refuse station bail in this case was informed by the particular facts and circumstances of this case and was not the result of an application of any a priori or ex ante rule that station bail was not available in respect of an alleged domestic violence offence in breach of court order.  I reach this conclusion having regard to the evidence of both Garda Keegan and Sergeant Coyne and the evidence offered by the Applicant.  The Applicant has failed to establish facts adequate to ground the legal complaint he makes and therefore his claim has not been substantiated.

 

61.  For the reasons given, I refuse all relief on this application and dismiss the proceedings.  I will hear the parties in relation to any consequential matters, if necessary.

 

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