Supreme Court of Ireland Decisions

1. The Applicants in this case are members of the Garda Síochána, with the rank of sergeant, who have been the subjects of the investigation and adjudication procedure provided for in the Garda Síochána (Complaints) Act, 1986 where complaints are made by or on behalf of a member of the public about the conduct of members of the force.

2. The Applicants’ appeal against the judgement and Order for Mr Justice Smyth in the High Court refusing them certain reliefs against the Respondents which they sought by way of judicial review on the grounds that they had acted ultra vires the powers conferred upon them under the 1986 Act.

3. A complaint which concerned the conduct of the Applicants having been investigated under the procedures laid down in the Act, specific breaches of discipline were alleged against them by the Garda Síochána Complaints Board (the Board) for adjudication by a tribunal appointed by the Board. Before the adjudication process was complete the applicants challenged, in these judicial review proceedings, the lawfulness of the procedures carried out pursuant to the 1986 Act.

4. There are two basic grounds upon which the applicants rely in this appeal. One is the submission to the effect that the Chief Executive of the Board acted ultra vires in formulated and alleging breaches of discipline to be referred to the Tribunal which bore no relation to the complaint initially made against them and the Tribunal in turn acted ultra vires in embarking on an adjudication upon those charges. In the other ground the applicants seek to impugn the proceedings before the Tribunal on the grounds of delay.

5. In order to explain the first ground of appeal to which I have referred it is necessary to set out the sequence of events, which are not really in dispute, commencing with the circumstances which led to the making of a complaint and the ensuing statutory procedures which were followed under the Garda Síochána (Complaints) Act, 1986.

6. On 12th June, 1988 Derek Fairbrother was arrested in the early hours of the morning in the Finglas area by members of the Garda Síochána and brought to Finglas Garda Station. He was detained there for a period of time before being eventually removed by ambulance to hospital.

7. Sergeant McCarthy was on duty in Finglas Garda Station and received a radio message from the arresting gardaí to the effect that they were on the way back to the garda station with the arrested person who was injured. Not being aware of the extent of the injuries, Sergeant McCarthy telephoned for an ambulance as a precautionary measure. After

8. Mr. Fairbrother had been brought to the garda station and placed in a cell Sergeant McCarthy spoke to him. He noticed some blood on the back of his head but there was no bleeding at that time. According to his account he asked Mr Fairbrother if he wished to see a doctor and he replied that he wanted to see his own specialist. Shortly afterwards Sergeant McCarthy met two ambulance men in the hallway of the garda station who had responded to his earlier call. He told the ambulance men to leave as Mr. Fairbrother was in custody and his injuries did not appear to be serious and he would call a garda doctor to examine him. The ambulance men then left. Sergeant Dennedy’s account of what occurred in the garda station included an account of how members of Mr. Fairbrother’s family, including his father, arrived at the garda station at 6.35am demanding to see the prisoner. He described them as being very disorderly, shouting abuse and insults. Because of their behaviour he said he feared for his safety, that of the station orderly and also for the safe custody of the prisoner. He described them as acting like a “ mob” and refused to let any of them see the prisoner. At 6.50am the doctor called by the gardaí arrived. Later an ambulance was called to take Mr. Fairbrother to hospital because, according to Sergeant Dennedy, he refused to be examined by Dr. Williams. Controversy was to arise over the circumstances under which Mr. Fairbrother was arrested, received injuries and his treatment in custody.

9. Arising from these events Derek Fairbrother’s solicitor wrote a letter in the following terms to the Superintendent at the Cabra Garda Station:

10. On June 20th, 1988 the letter of complaint was forwarded to the Chief Executive of the Garda Complaints Board. On June 22nd the Chief Executive, having formed the opinion that the complaint was admissible under the 1986 Act, requested the Assistant Commissioner to appoint an investigating officer and Superintendent Jordan was appointed to investigate the complaint.

11. On 23rd June, 1988 the two respondents were duly notified of the complaint made in the following terms, “ that Derek Fairbrother. . . alleges that on 12th June, 1988 he was wrongfully arrested and imprisoned by the Gardaí and in the course of such arrest and imprisonment was seriously assaulted as a result of which he received very serious and severe injuries inflicted by a number of members of An Garda Síochána .” In August, 1988 the investigating officer submitted a preliminary report to the Chief Executive of the Board subsequent to which the Board referred the entire file to the D.P.P. He decided no to initiate a prosecution but subsequent to that the Board decided to defer a further consideration of the matter pending the disposal of civil proceedings which had been brought by Mr. Fairbrother. The civil proceedings were finally disposed of in November, 1992. Also in that month a new investigating officer had been appointed to replace the previous one, who had retired. In July, 1993 a report of the second investigating officer was submitted to the Chief Executive and a further report of that investigating officer was submitted to the Board in December, 1993. In February, 1994 the Board again referred the file to the D.P.P. who, in April 1994 conveyed to the Chief Executive that he would be initiating no prosecutions.

12. On 20th May, 1994 the Chief Executive of the Board, having determined the particular breaches of discipline to be alleged against the two respondents, notified them of the breaches of discipline on 20th May, 1994. They were also notified of the setting up of a tribunal. This was the first occasion on which the respondents became aware of the breaches of discipline being alleged against them. The breaches of discipline were as follows:

13. For the sake of brevity and convenience I propose to set out here just some selected provisions of the Act concerning an admissible complaint and the referral of breaches of discipline to a tribunal.

14. The Applicants submit that the specific breaches of discipline notified to them for the first time on May 20th, 1994 and referred to the tribunal for adjudication bear no relation whatsoever to the matters alleged in the original complaint. It was submitted that any charge of a breach of discipline which is brought against a member of the Gardaí following the making of a complaint under the 1986 Act must bear a relationship to that complaint. The original letter of complaint from Mr. Fairbrother’s solicitor was in essence one of wrongful arrest, imprisonment and assault. There was no mention of any complaint in relation to the sending away of an ambulance or the refusal of a family visit. Similarly the investigating officer was appointed to investigate a complaint, notified to the respondents, and which was summarised in terms of wrongful arrest, imprisonment and assault. Again no mention was made of allegations in relation to the sending away of an ambulance or the refusal of a family visit. It was submitted that the scheme of the Act does not envisage the referral to a tribunal breaches of discipline which bear no relationship to the original complaint even if they emerge in the course of an investigation into that complaint.

15. Since the breaches of discipline ultimately alleged against the respondents bore no relationship to the original complaint the consequence is that as regards those breaches of discipline there had been no complaint under section 4(1), there was no consideration of those matters by the Chief Executive as required under section 4(3) for the purpose of determining whether those matters constituted an admissible complaint. In short the respondents submit that all the steps which were taken or required to be taken under section 4, section 5(1), section 6 subsections (1) and (2), section 7 subsections (1), (3) and (4) were taken in relation to the original complaint and not in relation to the specific breaches which are now alleged against each of the respondents. In order that the tribunal would have the power to adjudicate on these specific breaches of discipline all of these statutory steps ought to have been followed in relation to them. Since the alleged breaches of discipline bear no relationship to the original complaint none of those steps or provisions of the 1986 Act were applied in respect of them. Furthermore, in the circumstances of the case, no complaint relating to those breaches of discipline was made within six months from the date of the events the subject matter of the complaint as required by section 4(3)(a)(iv). The respondents were deprived of certain safeguards in the Act by virtue of the fact that the statutory procedures were not followed in relation to the specific allegations of breaches of discipline now made against them. As a consequence the opinion of the Board that a breach of discipline may have been disclosed was ultra vires the powers of the Board, void and of no effect.

16. On this point the first named respondent relied principally on the statement of the learned trial judge in his judgment as follows:

17. It was further submitted that the submissions of the applicants constitute a formalistic approach the interpretation of the 1986 Act and is one which would defeat the policy of the Act. The object of the Act would be frustrated if breaches of discipline arising out of the same subject matter as the original complaint, which came to light in the course of the investigation of that complaint but could not be the subject of a referral to the tribunal. The purpose of the 1986 Act is to facilitate the making of complaints by members of the public, to prescribe a mechanism for their investigation and their final determination. The formalistic interpretation of the Act by the applicants would defeat those objects. This submission is fortified by the policy of the Act as found in section 9(1)(2) which enables the tribunal to make a finding that there has been a breach of discipline other than that referred to the tribunal where the facts established constitute “ another breach of discipline ” (provided that the other breach is less serious than the breach originally alleged). This section underlined the jurisdiction or power of the tribunal to adjudicate and make findings as to breaches of discipline on the part of members of the Garda Síochána which were not specified in the original complaint made as to their conduct.

18. The Garda Síochana Complaints Act, 1986 provides for two distinct procedures,

19. The long title to the Act begins with the words “ An Act to provide for a system of investigation and adjudication of complaints . . . ” The investigation procedures provided for by the Act are triggered, so to speak, by the making of a complaint by a member of the public concerning “ any conduct ” of a member of the Garda Síochána. Assuming that the complaint is not the subject of an informal resolution the investigation procedures conclude with a written report of the investigating officer and its submission to the Chief Executive of the Board. It is only after the completion of the investigation and the consideration of the report that the Board refers the matter to a tribunal where it is of the opinion that a breach of discipline on the part of the member concerned may be disclosed. Section 9(1) then provides that the Chief Executive shall determine the particular breach or breaches of discipline to be

20. All of the arguments of the Applicants hinge on whether the specific charges referred by the Board to the tribunal in this case are so unrelated to the original complaint that the Board acted improperly and ultra vires in making such referral. All the arguments are

21. The investigation procedure is set in train by the making of an admissible complaint. The investigation procedure concerns a complaint as to conduct. Section 4 (1)(a) provides that any member of the public who is directly affected by or who witnesses any conduct of a member may make a complaint orally or in writing concerning such conduct. In the case of a person under the age of 17 years or a person who is mentally handicapped or mentally ill the complaint may be made by other persons, specified in the Act, on their behalf.

22. I think it is quite clear that Section 4 does not envisage complaints from the public which are necessarily precise and formal as to whether a garda member has committed an offence or a breach of discipline. It is a complaint about conduct which may be made in writing or orally. A complainant who is not directly affected by the conduct but is a witness to it may make a complaint because of certain conduct which he or she considers improper on the part of a garda member without being able to specify that the conduct is in breach of a particular code of conduct or constitutes a particular offence. A parent or guardian may make a complaint on the basis of what he or she was told by a child under the age of 17 without being privy to all the facts and circumstances but sufficiently informed to conclude that there may have been some improper conduct. To require that members of the public present their complaints in a formalistic and comprehensive form would be an obstacle to the effective complaints procedure envisaged by the Act.

23. A complaint will be admissible under Section 4 if, inter alia , the conduct would constitute an offence or would be conduct specified in the fourth schedule to the Act. The complainant is not required to specify any offence or any conduct set out in the fourth schedule. What happens is that the complaint having been transmitted to the Board, the Chief Executive examines the complaint and considers whether it would constitute an offence or would be conduct specified in that schedule. Many of the matters referred to in that schedule are set out in broad terms such as discourtesy towards a member of the public or neglect of duty, such as failing promptly to do anything which it is a member’s duty to do. In short the Act envisages that a complainant makes a complaint about conduct and once it is found that the complaint is admissible then that conduct is the subject of investigation. Leaving aside the question of informal resolution of complaint, which is not strictly relevant to the circumstances of this case, the whole object of the appointment of an Investigator after a complaint has been found to be admissible is to ascertain whether the facts and circumstances disclose that an offence or a breach of discipline may have been committed by the member or members concerned.

24. I think it is also important to emphasis that under Section 6 an officer of the Garda Siochana is appointed to investigate an admissible complaint, that is the informal complaint in relation to conduct which has been made by or on behalf of the member of the public, and not into any particular offence or breach of discipline. Similarly Section 4(4) speaks of the nature of the complaint being notified to any member of the gardaí concerned. A complaint is not a charge, it is clearly not intended to be a formalisation of allegations so that they fit in with specific offences or breaches of discipline. It is sufficient to inform the member concerned at this stage of the general nature of the complaint.

25. It is quite clear, therefore, that the investigation process which is carefully set out in the 1986 Act, intends that the conduct of the members concerned be investigated in order to ascertain whether a particular offence or breaches of discipline may possibly have occurred.

26. Even though a complaint may in many cases include allegation which amount to a specific charge against a member, it is nonetheless the conduct of the member in relation to the complaint that is investigated by the investigating officer. It is only the D.P.P. which may bring criminal charges against a member in the circumstances envisaged in the Act (when the matter is referred to him) and specific breaches of discipline may only be alleged after the investigation has been complete and the Board has referred the matter to the tribunal. A written complaint or a written note of an oral complaint cannot therefore be treated as a formal document limiting the scope of the investigation to its strict wording. Such an approach would defeat the object of the Act. Members of the public may not always be able to articulate their complaints concerning a conduct of a member in a precise or complete fashion. The clear intention of the Act is that it is sufficient if a complaint made by a member of the public discloses, not grounds for initiating disciplinary procedures against a member, but grounds for initiating an investigation which may or may not ultimately disclose such grounds.

27. It seems to me to follow that an investigation following a complaint concerns an investigation of the conduct of a member of the gardaí on the occasion or in connection with the event or events which are the subject of the complaint. It is only after the completion of the investigation that the breaches of discipline must be specified.

28. It was submitted on behalf of the Applicants’ that the breaches of discipline so preferred cannot be breaches which bear no relation to the original complaint. So put, the Applicants are correct but it seems to me that their understanding of what may constitute a relationship to the original complaint is too narrow and is based on an erroneous view that the complaint must be literally and strictly interpreted.

29. In my view it is sufficient if the breaches of discipline which are eventually preferred against a member are related to or arise out of the conduct complained of having regard to the circumstances or events with which the complaint is concerned. In this respect I think the learned High Court Judge was entirely correct in his approach.

30. If for example a complainant complained of being assaulted whilst detained in a cell in a garda station and an investigation disclosed that the member-in-charge failed to record a visit to his cell by two members of the gardaí in or about the time of the alleged assault, I do not see any reason why a disciplinary charge could not be brought against the member-in- charge (assuming the failure to record constitutes a breach of discipline). The failure to record would certainly be something which related to the circumstances in which the prisoner was held in custody and concerns access to his cell by members of the gardaí at a time relevant to the complaint made. On the other hand if an investigation into the records of the garda station relating to such a complaint also and incidentally disclosed that a member had made an improper claim for overtime or expenses such conduct would be so unrelated and remote from the original complaint that it would have to be treated as a wholly distinct matter to be dealt with separately from the complaint under investigation.

31. In this particular case the complaint first of all concerned the wrongful arrest and imprisonment of Mr. Fairbrother and went on to complain that in the course of his arrest and imprisonment he was assaulted as a result of which it was alleged he received serious injuries which ultimately led to him being conveyed to the Mater Hospital by ambulance. The complaint requested that the matter be fully investigated and inquired into.

32. The breaches of discipline preferred against the Applicants alleged, as against, Sergeant McCarthy, that he failed to ensure promptly that Mr. Fairbrother was given medical treatment and hospitalisation and secondly as against Sergeant Dennedy, that he failed to allow Mr. Fairbrother to be visited promptly by his family, without good and sufficient cause.

33. As can be seen, the complaint included allegations that Mr. Fairbrother was wrongfully imprisoned in circumstances where he was allegedly suffering from severe injuries. It is clear that any investigation into such a complaint was going to focus, to a significant degree, on the circumstances and conditions of Mr. Fairbrother’s detention in Finglas Garda Station including any aspect of his treatment there by any garda members concerned. An investigation or consideration of facts as to whether he was given the medical attention to which garda members had a duty to ensure was clearly material to the complaint being investigated. Equally where there is a complaint concerning garda conduct towards a prisoner in their custody, who has recently been arrested and is clearly suffering from some injuries, I cannot see how it can be validly contended that the granting or refusal of a visit by members of his family, which included his father, can be said to be unrelated to a complaint concerning the wrongfulness of his imprisonment.

34. For reasons which I have indicated earlier a complaint about the “wrongfulness” of a prisoner’s detention should not be construed in a pedantic or technical fashion. It is clear that the thrust of the complaint concerned the treatment of Mr. Fairbrother by garda members on his arrest and during his imprisonment in Finglas garda station. Once their conduct and the treatment of Mr. Fairbrother is the subject of a complaint then the investigating officer was entitled to consider and report on all the circumstances relating to his treatment while in garda custody.

35. In my view the breaches of discipline alleged against the Applicants were related to the original complaint and certainly were not so unrelated as to render the action of the Board in referring the matter to the tribunal ultra vires their powers.

36. For the same reasons I am of the view that the Applicants were given sufficient notice of the nature of the complaint under Section 4 of the Act when they were so informed in the terms outlined earlier in this judgment. I would add, although I do not think it is in any way decisive, that both Applicants, when they made statements concerning their conduct after being notified of the nature of the complaint specifically addressed, in Sergeant McCarthy’s case, the reasons and circumstances under which he sent away the ambulance and called the garda doctor and in Sergeant Dennedy’s case, the circumstances under which he refused Mr. Fairbrother’s family access to him. That is not decisive because even if they had not mentioned such matters it would not have altered the fact that they are related to the original complaint but clearly the Applicants considered those matters relevant to the complaint.

37. I conclude therefore that the Act distinguishes between an investigative procedure and the adjudication procedure. The object of an investigation into a complaint concerning conduct, like any investigatory procedure, is intended to ascertain whether or not an offence or breach of discipline has been committed. If it is disclosed that a breach of discipline may have been committed then the Board may refer the matter to a Tribunal for adjudication once the breaches of discipline concerned relate to or arise out of the conduct complained of. That was the position in this case. The requirement that allegations of breach of discipline be specified in precise terms only arises at the adjudication stage. It is at that point that the member or members concerned are entitled to know precisely the charges since it is only at that stage that the question of determining whether or not they are guilty of such breaches arises for actual determination.

38. For the foregoing reasons I would dismiss this ground of appeal.

39. I have had the benefit of reading the judgment of Geoghegan J. on the question

40. This is an appeal against the refusal by the High Court (Smyth J.) to grant to the appellants certain remedies by way of judicial review against the respondents. The application pursuant to leave proceeded along traditional lines with a detailed statement of grounds which in turn contained eight different reliefs all with the object of stopping complaint proceedings pursuant to the Garda Síochána (Complaints) Act, 1986, the appellants being two members of the force covered by the grounding complaint. Having regard to matters raised in affidavits and what appeared to be substantial discovery Kelly J., in the High Court, by way of case management, directed that the proceedings be converted into plenary proceedings with pleadings in the form of statement of claim and defence. A very detailed statement of claim was then delivered which contained thirty eight paragraphs and thirteen reliefs. The defence was for the most part a traverse of the matters alleged in the statement of claim. At the hearing of this appeal however the appellants relied essentially on two grounds, the first being delay and the second being ground A(1)(g) originally set out in the statement of grounds in the following way.

41. The second ground can only be explained in the context of the original complaint for the purposes of the 1986 Act which was made on behalf of a Mr. Derek Fairbrother by Gerry Brady and Company, Solicitors, and was in a letter dated 15th of June, 1988. I think it helpful to cite the letter in full. It reads as follows:

42. It is obvious that this complaint is essentially one of assault and wrongful imprisonment. In the event, however, the second-named respondent (the Garda Síochána Complaints Board) following on perusal of the investigation reports, purported to decide pursuant to s. 7(5) of the 1986 Act to refer and did in fact refer the matter to the first-named respondent (the Garda Síochána Complaints Tribunal). They did so on the grounds that the Board was of the opinion that the conduct alleged in the complaint may have disclosed the following two breaches of discipline against the appellants.

43. In the case of the first-named appellant, Christopher McCarthy that

44. In the case of the second-named appellant, John Dennedy that

45. The appellants' contention is that the respective breaches of discipline alleged against each of them fell outside the ambit of the original complaint, that they were never given an opportunity to respond to them and that independently altogether of any delay point the Board had no jurisdiction to formulate such alleged breaches of discipline and the Tribunal had no jurisdiction to entertain them.

46. I propose to deal with the delay point first and I will return to the jurisdictional issue.

47. The question of time arises in two ways though to some extent they overlap. The appellants, for reasons which I will explain, allege that there has been gross delay in the complaint procedure under the 1986 Act and that this is directly contrary to provisions in the Act itself which require speed quite apart from any general requirements of expedition by virtue of a constitutional right to fair procedures. Indeed the appellants go further. In so far as the appellants are relying on express statutory obligations of expedition they are arguing that breach of any such statutory stipulation renders void all steps taken thereafter and in putting forward this argument they particularly rely on the decision of this court in McNeill v. Commissioner of An Garda Síochána [1997] 1 IR 479. It is necessary to examine first what the statute does say about time in so far as the obligations are relevant to this case. The relevant provisions can be summarised as follows:-

48. There are other refinements within these provisions but I think that I have broadly explained the nature of the time obligations which are involved. It is now necessary to consider the submissions of the appellants.

49. First of all the appellants argue in a general way that the Oireachtas envisaged that the investigation and prosecution of complaints against members of the Garda Síochána were to be dealt with as expeditiously as possible. There is no doubt about that but in interpreting the statutory provisions it must be borne in mind that the Oireachtas clearly intended expedition both in the interests of the complainant and in the interests of the members complained about. It could never have been intended that if there was some small delay in the procedures and possibly indeed delay engineered by the Garda authorities themselves, the matter could never be processed further as this would be grossly unfair to a complainant not in any way responsible for the delay. On the other hand a disciplinary complaint against a member of the force is a serious matter and under any reasonable interpretation of the legislation it would have been intended that the expedition was also in the interests of those members. Accordingly, a reasonable balance must be struck between what could be conflicting interests in determining whether in any given circumstance there was a delay which offended the time provisions in the Act irrespective of whether the time provisions are to be regarded as mandatory or directory.

50. No complaint of delay is made in relation to the period commencing on the 12th of June, 1988 the day of the alleged wrongful arrest, imprisonment and assault and the 12th of December, 1988 the date upon which the Board decided to postpone further consideration of the matter to await civil proceedings allegedly instituted by Mr. Fairbrother. I will return to this matter later on in the judgment because it would appear that the Board purported to exercise powers under s. 6(6) of the 1986 Act to postpone further consideration of the matter to await proceedings which the Board believed had already been instituted by Mr. Fairbrother. In fact he did not institute such proceedings for a further fourteen months. He then did so and his action was ultimately settled but the postponement by the Board accounted for approximately four years of delay altogether.

51. The second period of delay was from the 4th of November, 1992 until the 22nd of July, 1993. Mr. Fairbrother's civil action had been settled on the 4th of November, 1992. By that time the original investigating officer had retired and a new investigating officer, Superintendent McLoughlin, had been appointed. He considered that the information before him was inadequate and that he wanted to see transcripts of the trial which he ultimately obtained in March, 1993 and submitted a report in May, 1993. That report and recommendations that went with it were not put before the Board by the Chief Executive until the 22nd of July, 1993. I can find nothing unreasonable in this particular period of delay and it was not heavily relied on in oral argument.

52. There are then two further periods of delay alleged, the first running up to the 21st of December, 1993 when the Board received a further report of Superintendent McLoughlin and the fourth running up to the 14th of February, 1994 when there was a board meeting and a decision to refer the file to the D.P.P. If the D.P.P. decided there should be no prosecution then the matter should be referred to a tribunal. It should be mentioned at this point that the file had been previously referred to the D.P.P. and he had decided on no action. On the 7th of April, 1994 the D.P.P. informed the Chief Executive of the Board that he did not intend to institute proceedings but the appellants complained that it was not until the 20th of May, 1994 that they were informed that in the opinion of the Board breaches of discipline may have been disclosed and that the Board had referred the matter to a tribunal. It is argued that even if the delay caused by postponing consideration of the matter pending the determination of the civil proceedings brought by Mr. Fairbrother was justified the very fact of that delay provided an added onus to ensure that the other steps were then taken as quickly as possible and it is argued that that was not done.

53. I do not consider that there was any fatal delay after the second decision of the Director of Public Prosecutions was communicated. I am, therefore, of opinion that there is only one serious delay issue in this case and that relates to the postponement of the civil proceedings. I will now return to this aspect of the matter.

54. From a statement issued the next day we know that the decision to postpone, pending the outcome of the civil proceedings, was purported to be taken pursuant to s. 6(6) of the Garda Síochána (Complaints) Act, 1986. That subsection reads as follows:-

55. By letter of the 20th of December, 1988 the Chief Executive of the Board wrote to the Assistant Commissioner of the Garda Síochána in the following terms:-

56. There is no doubt that the decision taken to postpone, pending the outcome of the civil proceedings, was not a valid decision under s. 6(6) of the 1986 Act because in fact no such civil proceedings had been instituted. This does not mean, however, that no postponement however short can ever be valid unless it falls squarely within s. 6(6). The Board, in the ordinary reasonable processing of a complaint, would be entitled to have regard to some intelligence it received that civil proceedings were about to be instituted and it would come within the normal ambit of the powers of the Board to postpone a decision to a later date to check whether proceedings were issued or not and if such proceedings were issued then, of course, the powers under s. 6(6) could be exercised. A postponement per se therefore, even in circumstances where a wrong citation of the powers under which it was done is given, would not necessarily be grounds for a court to render void any further proceedings, still less would it be grounds for automatically avoiding further proceedings. But that is not what happened here. In this case the Board, through its own negligence or the negligence of its servants or agents, postponed the investigation on some hearsay evidence that civil proceedings had been brought. It seems that no check was subsequently made to ascertain whether such proceedings had been brought and, if so, what was their progress. If for instance it had been discovered that an error had been made but that proceedings were in fact brought a month later it would not have been unreasonable for the Board to have reconvened and made a fresh decision under s.6(6). Even if the Board had not done that there could be circumstances where a court might refuse the discretionary order of certiorari. But the appellants are clearly entitled to invoke in their aid the gross culpable delay in this case. Fourteen months elapsed before any proceedings were even instituted and yet nobody within the Board or on the staff of the Board checked up on this or discovered it. If the Board had had any intimation originally that whereas civil proceedings were probably going to be brought it might take twelve or fourteen months to initiate them it would have been a wrong exercise of any discretion whether under the Act or without the Act to postpone the investigation. In the context of what actually happened it is now necessary to consider what is meant by the statutory words " as soon as may be" . Provisions in statutes requiring expedition but not specifying any precise time limit have traditionally taken different forms such as " as soon as possible" , " as soon as practicable" and as in this case " as soon as may be" etc. A good deal of the case law in relation to these respective expressions is of limited assistance in my view because their meaning is always contextual to the statute or document in which they appear. An obvious example of this is MacC and MacD v. Eastern Health Board [1996] 2 IR 296 where the Supreme Court had to consider in the context of an Adoption Act the expression " as soon as practicable" and held that such words did not equate with the words "as soon as possible". In MacNeill v. Commissioner of An Garda Síochána recited above the Supreme Court had to consider expedition obligations contained in the Garda Síochána (Discipline) Regulations 1989 (S.I. No. 94). It was argued in that case on behalf of a member of the force seeking to judicially review the Commissioner that in addition to the ordinary obligation imposed on any moving party to proceed with hearing with due expedition there was a particular obligation cast upon the respondents in the circumstances of that case in that Regulation 8 of the Garda Síochána (Discipline) Regulations 1989 required that the matter be investigated " as soon as practicable" and that throughout the regulations there was a repetition of these words. Hamilton C.J. in his judgment made the following observation:-

57. The former Chief Justice then referred specifically to the relevant provisions of the regulations which in each case contained an obligation of expedition though expressed in different ways. The expressions " as soon as practicable" , " as soon as may be" and "without avoidable delay" were all used in different regulations. The learned Chief Justice expressed the view that the use of each of these phrases clearly indicated the intention of the Minister for Justice as expressed in the regulations that the alleged breaches of discipline by members of the Garda Síochána be dealt with expeditiously and as a matter of urgency. On the facts of that particular case, Hamilton C.J. came to the conclusion that the obligation placed on the garda authorities to investigate alleged breaches of discipline as soon as practicable was not complied with and that the obligation was " mandatory". He then went on to express the view that because of the failure by the garda authorities to discharge that obligation all steps taken since the presentation of the written report of the investigating officer were void and of no effect. This last observation was not essential to the decision made and the relief granted in the form of an injunction and it may well be that it should be regarded as obiter dicta . There is nothing in the report of the case to indicate that there had been any particular argument as to whether breach of an expedition obligation rendered subsequent steps voidable or automatically void. At any rate O'Flaherty J., who concurred with the Chief Justice in relation to the allowing of the appeal and the granting of the reliefs, expressed no view on this aspect of the matter. Until it arises in some other case therefore I would express doubt as to whether breach of an expedition obligation in relation to different steps in a procedure is necessarily tantamount to failure of a condition precedent to the taking of the next step. But what is important about the MacNeill case is that the Supreme Court held by a majority of two judges to one that on the facts of that particular case there was a breach of the statutory obligation of expedition and that was on the basis that the Oireachtas intended that members of the force subjected to disciplinary scrutiny were entitled to have their investigations heard and determined quickly. But the procedures under the discipline regulations do not arise out of a complaint by the public and that is a major difference between the MacNeill case and this case. In so far as this court has to consider what might be regarded as unreasonable delay from the point of view of the respondents the MacNeill case is relevant, but in balancing that against the reasonable rights and expectations of the complainant from the public different considerations apply. Nevertheless the words of Lord Donaldson of Lymington M.R. in Regina v. Chief Constable of the Merseyside Police ex parte Merrill [1989] 1 WLR 1077 at 1088 are equally applicable to this jurisdiction. Referring to English regulations which required public complaints against police to be dealt with expeditiously he observed as follows: -

58. In that particular case heard by the English Court of Appeal, Lord Donaldson, delivering the judgment of the court with which Woolf LJ (as he then was) and Sir Denys Buckley concurred, found on the facts that there was excessive delay and held that the disciplinary proceedings should be quashed, notwithstanding the view which he took that the time limits were all directory rather than mandatory. I would observe in passing that when Hamilton C.J. used the word " mandatory" in the MacNeill case it cannot be regarded as certain that he was doing so in contradistinction to "directory". I take the view that "as soon as may be" means as soon as may be reasonably practicable in all the circumstances and if I am right about that then it may not make very much difference whether on a theoretical basis the words requiring expedition in the 1986 Act or indeed in the Garda Discipline Regulations are to be regarded as mandatory or directory, nor indeed on the legal principles to be applied is there all that difference between the views expressed by Denham J. in her minority judgment in MacNeill from the views expressed by Hamilton C.J. and O'Flaherty J. The difference was in the application of the principles to the particular facts.

59. But on the application of those principles to the facts of this case, when striking the balance which one must do between the rights of the complainant and the rights of the persons complained about there was gross and unlawful delay caused in this case by the postponement by the Board of further consideration of the complaint pending the outcome of what were then non-existent civil proceedings. For this reason I would allow the appeal and would grant the first and twelfth reliefs sought in the statement of claim, that is to say a declaration that a decision of the Board of 12th of December, 1988 to postpone taking any further action pending the determination of proceedings taken by Derek Fairbrother was ultra vires the Board and null and void and an injunction restraining the Tribunal from holding the said inquiry or from giving any further consideration to the matters alleged against the applicants having regard to the excessive delay in the processing of the complaint.

60. Strictly speaking it is not necessary for the court to consider the second issue on the appeal, but as it may arise in the future it would seem desirable to do so.

61. In relation to the jurisdictional issue I would accept the general principle put forward by the appellants that the alleged breaches of discipline cannot stray too far from the subject matter of the complaint. It is quite clear, however, from the terms of the Act when read as a whole that the precise breaches of discipline referred to the Tribunal need not have been specifically mentioned in the complaint provided they clearly emerge in the context of the events investigated into in connection with the complaint. Any doubts I might have had about this are removed by the terms of s. 9 of the 1986 Act where even the Tribunal, not to say anything about the Board, is entitled to decide that the facts established constitute " another breach of discipline" provided that a decision of that kind cannot be made unless the Tribunal is satisfied that the other breach concerned is less serious than the breach alleged and that such a decision would not be unfair to the member concerned having regard to the fact that the other breach concerned is not the breach that was alleged. The sending away of the ambulance and the refusal of visitors if they occurred would have been all part and parcel of the events investigated into and were referred to in statements made by the gardaí themselves.

62. Indeed, it clearly emerges from statements of Sergeant McCarthy and Sergeant Dennedy why they did what they did in respect of the ambulance and family visiting respectively. Neither of them in my view have any valid cause for complaint that he did not have a proper opportunity to deal with the respective revised complaint against him. They both made full statements as to their conduct on the night in question and the reasons for the decisions they made. In a statement of the 9th of December, 1993 Sergeant Christoper McCarthy says that his statement to Detective Inspector Colm Browne on the 7th of July, 1988 "is a true and accurate account of the events and deals with the whole incident in more detail than my report of the 22/6/88." In that statement of the 7th of July, 1988 Sergeant McCarthy gives a detailed account of the events. At 5.15 a.m. on Sunday the 12th of June, 1988 a telephone call was received at his Station from Garda Radio Control to the effect that a plain clothes unit required urgent assistance at the bottom of the Finglas Dual Carriageway. He directed two gardaí to go immediately to the assistance of the unit. Shortly afterwards he received a radio message from one of those gardaí to the effect that they were on their way back to the station with an injured man. He then says the following:

63. Sergeant McCarthy was relieved by Sergeant Dennedy at 6.00 a.m. and at 6.05 a.m. while Sergeant McCarthy was on his way out of the Station a garda car pulled up and they brought in a man who was struggling with them. When they got the man out of the car he threw himself on the ground and started to roll around on the ground and shouted abuse and obscenities at the gardaí. The man pulled himself under another garda car and at this stage there was blood on his head. Sergeant McCarthy then inquired from the other gardaí if the man was a prisoner and how he sustained the injuries. He was informed by a Garda Landers that he had been arrested for dangerous driving and that due to violence used he had to use a baton to effect the arrest. There was further uproar which is not necessary to go into but at a certain stage Sergeant McCarthy directed the gardaí to take the man inside who was Mr. Fairbrother as it turned out and bring him straight to a cell, as taking him to the public office would create further problems. It proved very difficult due to resistance to bring him into the Station. On the way in Sergeant McCarthy met Sergeant Dennedy who suggested that he should telephone for a doctor. The sergeant came to the conclusion that the man was suffering from the effect of drugs. He offered him a doctor and the man replied that he wanted his own specialist and a senior counsel. He stated that he was well able to pay for them. The sergeant saw what appeared to be a cut on the top back of the man's head and there was some blood around which appeared to be the area of the cut but he was not bleeding at that stage. As far as the sergeant was concerned according to his statement the man appeared strong and lucid. The sergeant goes on to say in his statement that the condition of the man did not appear to be such as to necessitate immediate removal to hospital prior to the arrival of the doctor. The sergeant then left the cell area and entered the hallway where he met two ambulance men who had responded to the call which he had earlier made. One of the ambulance men said that if he had to take 'that madman' 'a couple of guards would have to go with him'. Sergeant McCarthy then told the ambulance man to leave it for the present as he had earlier misinterpreted the call that the injured man was in custody and his injuries did not appear to be serious and it was intended to get the garda doctor to examine them. What Sergeant McCarthy was in effect saying was that at the time that he called the ambulance he did not know that the man was in custody. It is no function of this court to consider whether the sergeant was right or wrong in what he did in relation to the ambulance but it seems clear that his full account of what happened is in that statement. Not only is it his full account but the sergeant clearly ensured that his reasons for sending the ambulance away were included in the statement. I consider therefore that there was full jurisdiction to deal with the revised complaint against Sergeant McCarthy and that there was no deprivation of his right to defend himself.

64. I now turn to the complaint against Sergeant Dennedy. This complaint related to his refusal to allow family visitors to the prisoner. Sergeant Dennedy made a statement on the 8th of December, 1993 in which he identified an earlier statement of his dated the 7th of July, 1988 as giving a true account of what went on at Finglas Garda Station on the 12th of June, 1988. That statement of the 7th of July, 1988 goes into eight pages and is a comprehensive account of Sergeant Dennedy's involvement. The relevant part of his statement reads as follows:

65. It is perfectly clear that in that statement Sergeant Dennedy fully set out his reasons for not allowing the family visitors in and it is irrelevant whether they are good or bad reasons. That would be a matter for other bodies to decide.

66. If, therefore, the delay issue did not arise I would dismiss the appeal but in the event, having regard to the grounds put forward on the delay issue I would allow it on that issue only.

67. I would like to add one rider to my judgment. Counsel for the Tribunal, Mr. Rory Brady, made interesting submissions before this court as to the jurisdiction of the Tribunal to entertain the appeal. He argued that once there was a reference in the matter to the Tribunal the Tribunal was invested with jurisdiction and that prior defects in procedures did not deprive it of that jurisdiction. He went on to argue that the Tribunal itself was empowered to consider and determine both the delay issues and the issues relating to the framing of the alleged breaches of discipline but had not had an opportunity to do so. Mr. Brady also submitted that by arguing those issues before the Tribunal the appellants had effectively accepted the jurisdiction of the Tribunal and was thereby precluded from taking the separate route of judicial review. Counsel for the appellants, Mr. Cush, correctly pointed out that the context in which these matters were argued before the Tribunal was the context of the MacNeill decision which on one interpretation would have deprived the tribunal of all jurisdiction. If this court were to accept Mr. Brady's submission that the tribunal had jurisdiction to deal with the issues raised in these proceedings and was not precluded by either of the grounds relied on in those proceedings from considering and coming to conclusions on the complaints - it would still be open to this court to hold, in the judicial review proceedings, that the tribunal was in error as a matter of law in concluding that the delay did not vitiate the proceedings. The court, in the result, would arrive at the same conclusion as that which I have reached in this judgment but by an unnecessarily protracted and more expensive route.