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THE HIGH COURT
1987 No. 5541P
BETWEEN
JOHN KEADY
PLAINTIFF
AND
THE COMMISSIONER OF AN GARDA SIOCHANA AND OTHERS
DEFENDANTS
Judgment of Mr. Justice Costello delivered on the 1st day of December 1988.
In the month of March 1983 the plaintiff, then a member of the Garda Siochana, was served with 29 summonses alleging that he had committed a number of criminal offences relating to the completion of claims in respect of night duty as a member of the Garda Siochana on different dates in the years 1978 to 1980. The charges were not dealt with summarily but at his request he was sent forward for trial on them on indictment. In respect of all them a nolle prosequi was entered on 21st January, 1986. Thereafter disciplinary proceedings under the Garda Siochana (Discipline) Regulations 1971 were instituted arising out of the same facts which had led to the criminal charges and he was served with a Discipline Form dated 1st may 1986 containing a list of 16 alleged breaches of discipline. An inquiry into the allegations was then constituted whose function was to decide inter alia whether he had been guilty of the breaches alleged (Regulation 16). A hearing was held on 3rd November 1986 (at which the plaintiff was represented by senior counsel) and the inquiry decided that he had been guilty of 15 of the 16 breaches alleged against him and so reported to the Commissioner of the Garda Siochana. It was the Commissioner's function to decide what disciplinary action should be taken (Regulation 17). By a decision of the acting Commissioner of 25th February 1987 the plaintiff was dismissed from the force with effect from 16th March, 1987. It is that decision which is challenged in these proceedings. By Order of the 3rd June 1987 the President of the High Court gave leave to the plaintiff to apply for an order of certiorari, for an injunction and declaration by way of application for judicial review in respect of this order of dismissal and directed that the application be by way of originating plenary summons. The decision of the acting Commissioner was challenged on four grounds, of which the first three relate to the alleged invalidity of the decision of the inquiry on which the decision of the acting Commissioner was based. I will consider these three grounds as they were set out in the order giving leave for the review of that decision.
The first ground on which leave was granted was that:
"the subject matter of the alleged breaches of discipline constituted criminal matters and were accordingly ultra vires the powers and functions of the Tribunal of Inquiry".
The plaintiff relies on Article 37 of the Constitution which permits bodies and persons to exercise powers and functions of a judicial nature provided
(a) they are limited and
(b) they relate to matters other than "criminal matters". The plaintiff submits that the inquiry was
(i) exercising powers and functions of a judicial nature and
(ii) that they related to "criminal matters"
and so the inquiry's decision was constitutionally prohibited. I do not think that this submission is well-founded for assuming for the purposes of its consideration that the inquiry was in fact exercising powers and functions of a judicial nature I think that its proceedings related to charges of breach of discipline which could not be regarded as "criminal matters" within the mamning of Article 37.
This is clear from the decision in The State (Murray) v. McRann (1979) I.R. 133. That was a case relating to disciplinary proceedings taken by a prison governor who charged a prisoner with breaches of the prison regulations by committing a common assault. Mr. Justice Finlay, then President of the High Court, rejected the argument that the governor was unconstitutionally exercising functions in relation to a criminal matter. He pointed out:
"A crime or criminal charge must be defined, as it was in Deaton v. The Attorney General (1963) I.R. 170 as an offence against the State itself or as a public offence. A criminal matter within the meaning of Article 37 can be construed as a procedure associated with the prosecution of a person for a crime. It may be the preliminary investigation of such a charge, it may be the trial itself, it could be an appeal from the trial or, presumably, an application for bail pending trial or appeal. The essential ingredient of a criminal matter must be its association with the determination of the question as to whether a crime against the State or against the public has been committed.
At no stage is the governor of a prison who operates rules 68 or 69 concerned with the determination of whether the prisoner has committed a crime against the State or against the public. The Governor is solely concerned with whether a breach of prison discipline has occurred and, if so, which of the permitted penalties should be imposed. The fact that an act or piece of conduct may constitute both a breach of prison discipline and an offence against the State and the public does not make the investigation an investigation of a criminal matter". (p. 135)
Applying these words to the present case I conclude that the Board of Inquiry was investigating allegations of breaches of discipline as laid down in the 1971 Regulations and not breaches of the criminal law and so the proceedings were not unconstitutional for the reasons advanced in support of ground (1).
The second ground set out in the order of 3rd June 1987 was that:
"the subject matters of the alleged breaches of discipline were ultra vires the powers and functions of the Tribunal of Inquiry in that the alleged breaches of discipline were not criminal conduct in respect of which there existed a conviction by a Court as envisaged by Paragraph 16 of the said Regulations".
Regulation 6 of the 1971 Regulations provides that an act or omission described at a reference number in the Schedule to the Regulations is to be treated as "a breach of
discipline". There are 17 numbered paragraphs in the Schedule and an act or omission referred to in each of them therefore constitutes a separate breach of discipline.
Paragraph 16 of the Schedule provides that "Criminal conduct, that is to say, conduct constituting an offence in respect of which there is a conviction in a court of law" is to be treated as a "breach of discipline" so that in this case had the Plaintiff been convicted of the offences with which he was charged he could subsequently have been proceeded against under this paragraph of the Schedule. But he was not convicted and he was not proceeded against under this paragraph. The allegations that he was in breach of discipline were brought under paragraph 5 of the Schedule, namely the making of false entries in official documents. It is claimed on the Plaintiff's behalf that it was not constitutionally permissible to charge the Plaintiff under paragraph 5 of the Schedule once the facts on which the charges were based gave rise to criminal proceedings but I fail to see how the prior criminal prosecution could prohibit the holding of a disciplinary inquiry as to whether the facts which it had been alleged amounted to a breach of the criminal law amounted also to a breach of the disciplinary code. I must therefore reject this ground of complaint.
The third ground recited in the order of 3rd June is
"the hearing and determination and the imposition of the penalty of dismissal without any provision for access to the judicial power does not constitute the exercise of limited functions and powers of a judicial nature by a body of persons authorised by law to exercise such functions and powers envisaged by Article 37(1) of the Constitution of Ireland 1937 and accordingly the provisions of the Garda Siochana (Discipline) Regulations 1971 are invalid having regard to the provisions of the Constitution of Ireland 1937".
The argument in support of this ground of complaint is that the proceedings in the inquiry involved an infringement of Article 37 of the Constitution in that the inquiry was exercising functions and powers of a judicial nature and that these were not "limited" and so were constitutionally prohibitied as the inquiry was not a court of law established under the Constitution. It was pointed out that such powers could have been validated by machinery (such as exists in the case of disciplinary matters relating to solicitors) by which the High Court could ultimately take decisions in relation to disciplinary charges and that in the absence of such machinery the Regulations were unconstitutional (considerable reliance being placed on the decision of the Supreme Court in In re. The Solicitors Act, 1954 (1960) I.R. 239).
This argument, it seems to me, is based on a misunderstanding of the functions and powers of the inquiry under the 1971 Regulations and those of the Commissioner. A distinction has to be borne in mind between functions and powers of a judicial nature and functions and powers which have to be exercised judicially - the former must be exercised in courts of law, unless they are of a limited character, the latter need not. The error in the plaintiff's submission is in only considering the effects of the exercise of the inquiry's powers and in concluding that because they may be far-reaching they must be judicial in nature. When powers and functions are impugned because they are of a "judicial nature" and outside the scope of Article 37 it is necessary to consider the legal source of the powers and functions which are being reviewed, their nature, their object, how they can legally be exercised as well as the consequences which flow from their exercise.
In the present case what is here involved is a decision relating to a disciplinary matter in an important branch of the public service. Such a decision it seems to me is properly to be regarded as an administrative one and it would follow that the power to make it is an administrative power and the person or body exercising that power is performing an administrative function. This disciplinary power must of course be exercised judicially - an obligation recognised in the ministerial Regulations by the provision of detailed procedures for furnishing particulars of alleged breaches of discipline and the evidence supporting the charges, and for the holding of hearings by means of a sworn inquiry. But the provision of machinery to enable a function to be performed judicially does not alter the nature of the function being performed. Here the procedures are divided into (a) an inquiry to ascertain whether a breach has occurred and (b) a decision as to the appropriate action to take if a breach of discipline is established. Both parts are concerned with a matter of discipline in the public service and neither the members of the inquiry or the Commissioner can be said to be usurping those functions which under the Constitution can only be performed by a judge administering justice in a court of law. Far from infringing the Constitution it seems to me that the Regulations go to considerable pains to fulfil it. I must therefore reject this ground of complaint also.
The fourth ground on which leave was given in the order of the 3rd June 1987 was that of the alleged invalidity of a decision to dismiss the plaintiff taken by a deputy Commissioner appointed to act in the place of the Commissioner. As the High Court has already decided that such decisions can validly be made this ground of complaint was not advanced at the hearing; it was not abandoned but reserved for the Supreme Court in the event of an appeal.
The plaintiff's claims therefore fail.