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Cite as: [2009] IESC 6

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Judgment Title: Sheehan -v- The Garda Síochána Complaints Tribunal and the Garda Síochána Complaints Board

Neutral Citation: [2009] IESC 6

Supreme Court Record Number: 457/05

High Court Record Number: 1999 196 JR

Date of Delivery: 28 January 2009

Court: Supreme Court

Composition of Court: Geoghegan J., Fennelly J., Macken J.

Judgment by: Geoghegan J.

Status of Judgment: Approved


Judgments by	Result	Concurring
Geoghegan J.	Appeal dismissed - affirm High Court Order	Fennelly J., Macken J.

Outcome: Dismiss

THE SUPREME COURT

No. 457/2005

Geoghegan J.
Fennelly J.
Macken J.

BETWEEN/

CIARAN SHEEHAN

Applicant/Appellant

and

THE GARDA SÍOCHÁNA COMPLAINTS
TRIBUNAL AND THE GARDA SÍOCHÁNA COMPLAINTS BOARD

Respondents

Judgment of Mr. Justice Geoghegan delivered the 28th day of January 2009

The appellant was at all material times a member of An Garda Síochána. As a consequence of a complaint by a member of the public in relation to the appellant’s behaviour to him in his capacity as a garda, a garda investigation took place with the result that the complaint was referred to the Garda Síochána Complaints Board, the second-named respondent. Before the Board had fully put in motion its procedures, the complainant withdrew his complaint. There was garda suspicion as to the genuineness of that withdrawal, or in other words, as to whether it had been brought about by intimidation by or on behalf of the appellant. Following on questioning of the appellant, there was belief within the Garda Síochána that the suspicion was well-founded and in the event, the complainant reinstated his complaint. The Board was so informed.

All of this led to a further internal investigation by the Garda Síochána as to whether there was or was not intimidation carried out by or at the behest of the appellant. That in turn led to the holding of an official internal garda inquiry outside of the statutory complaints procedure. This inquiry was held in Ennis and for the purposes of the proceedings has always been referred to as the “Ennis Inquiry”. To the extent that the Ennis Inquiry has any relevance to the matters in issue on this appeal, I will return to it at a later stage.

The second-named respondent, which I will hereinafter refer to as “The Board” referred the original complaint to the Garda Síochána Complaints Tribunal, the first-named respondent, which I will hereinafter refer to as “The Tribunal”, in accordance with section 7(5) of the Garda Síochána (Complaints) Act, 1986. In due course, a date was fixed for a hearing by the Tribunal and I will hereinafter refer to that hearing as “The Tribunal hearing”. As delay in setting up the Tribunal hearing is one of the complaints relevant to these proceedings, I will be giving details of dates etc. in due course.

The Ennis Inquiry came on for hearing in advance of the Tribunal inquiry. The members of that inquiry found the appellant to be in breach of four of the charges against him and recommended that the Commissioner of An Garda Síochána exercise the penalty options open to him under the Garda Síochána (Discipline) Regulations, 1989. The Commissioner exercised the option of requiring the appellant to resign from the Force. The appellant lodged an appeal against that decision of the Commissioner. That appeal was heard on the 20th July, 1998 and the Garda Síochána Appeals Board which heard the appeal, reduced the penalty by deciding that the appellant should be reduced to the rank of garda from his previous rank of sergeant rather than be required to resign.

In the meantime, the Tribunal hearing took place with only partial participation by the appellant and his solicitor because they were disputing the jurisdiction of the Tribunal to hold what they considered to be an excessively delayed hearing. The jurisdiction objection was overruled by the Tribunal and the Tribunal proceeded with the hearing. The Tribunal found the appellant guilty of all five breaches of discipline alleged and directed that he should retire or resign from An Garda Síochána within twenty one days pursuant to section 9(4)(b) of the Garda Síochána (Complaints) Act, 1986. The appellant was then informed that he had twenty one days within which to appeal this decision to the Garda Síochána Appeals Board. However, by a letter of the 26th June, 1998, the appellant’s solicitor wrote to the secretary of the Tribunal informing her that he had been instructed to institute judicial review proceedings with a view to having the decision of the Tribunal quashed. No notice of appeal was served within the twenty one days. It appears, however, that following on the decision reached by the Garda Síochána Appeals Board in relation to the penalty imposed by the Commissioner upon the result of the Ennis Inquiry, the appellant decided to appeal the decision of the Tribunal in respect of which he had been intending to seek judicial review. The appeal, however, was outside the statutory time limit of twenty one days. There did not appear to be any power to extend the time but there were informal discussions about this problem with the Chief Executive of the Board and there is conflicting evidence on the affidavits before the High Court as to what exactly transpired in those discussions. It is not seriously in dispute, however, that the appeal was out of time and that there was no legal power to extend the time. Accordingly, the Garda Síochána Complaints Appeals Board refused and properly refused to entertain the appeal.

The appellant then sought and obtained leave to apply for judicial review of the decision of the Tribunal. Leave was granted on some but not all of the grounds sought. The application for judicial review came on for hearing before Murphy J. in the High Court and in practice there were two substantive issues raised. One was alleged excessive delay which had the effect of depriving the Tribunal of jurisdiction and the other was alleged improper conduct on the part of the Chief Executive of the Board, a matter to which I will return.

A serious delay issue however was also raised by the respondents in the judicial review. The respondents argued that the judicial review application should not be entertained by reason of excessive delay in initiating it. The learned High Court judge held with the respondents on this objection. He expressed the view that given the length of time from the original complaint in September, 1995, the further delay from the decision of the Tribunal on the 8th June, 1998 to the application for leave to bring the judicial review proceedings made on the 20th May, 1999 was neither prompt nor excusable. He went on to hold that for that reason alone, the court would have to refuse the relief sought.

Notwithstanding that ruling, the learned High Court judge, in case he had been wrong in reaching that conclusion, decided to rule also on the substantive grounds, the subject matter of the judicial review. He held that the appellant would not at any rate have been entitled to any of the reliefs sought on these grounds.

This appeal is an appeal from the said orders of the High Court both in relation to the preliminary delay issue and the substantive grounds issue.

Once the learned High Court judge took it upon himself (as he was quite entitled to do) to give a contingent decision in relation to the substantive grounds, I am of opinion that, in the interests of all parties, this court should decide the substantive issues irrespective of the time point. As I have come to the firm conclusion that the learned High Court judge was correct in his decisions on the substantive grounds, I think it unnecessary to deal with the time point. In adopting that approach, I want to make it clear that I am not in any way casting doubt on the principles enunciated by the learned High Court judge and their particular application in his dealing with the preliminary objections. I simply find it unnecessary to make any decision on the issue.

I turn now, therefore, to deal with the substantive points. To have a proper understanding of them a list of some relevant dates would seem to be appropriate. I would list the following:

12th September, 1995, the original incident was complained of.

3rd November, 1995 to 15th March, 1996, the appellant was on sick leave but the illness had nothing to do with the complained of

incident.

7th March, 1996, notice given to the appellant that a decision had been

made on the 26th February, 1996 to refer the complaint to

the Board.

15th March, 1996, complaint of intimidation following on the events

already referred to in this judgment.

16th March, 1996 to 13th May, 1996, investigation of the intimidation

complaints followed by a decision within days by the

Director of Public Prosecutions that no prosecution

would be brought in respect of them.

3rd October, 1996, the appellant receives notice of appointment of a

superintendent under the Garda (Discipline)

Regulations, 1989 to investigate the intimidation

complaint.

Between November, 1997 and January, 1998, the hearing of the Ennis Inquiry.

On the 28th July, 1997, a new board met and formally appointed tribunals to handle cases referred by the previous Board. The Chairman of the newly established Tribunal set a date for the Tribunal hearing of the 3rd December, 1997. The appellant’s solicitor sought an adjournment of the hearing which was granted and the matter was then to be listed for mention on the 18th December, 1997. On that date, a hearing date of the 26th January, 1998 was fixed for the hearing of the preliminary jurisdiction objection already referred to. Whilst the objection at that time seems to have been based on the overall lapse of time since the events of September, 1995, it was conceded on behalf of the appellant at the hearing of the appeal before this court that the appropriate period of delay to be complained of was the period 21st March, 1996 to the 3rd December, 1997. It was further accepted that there was no complaint in relation to the delay from December, 1997 to June, 1998. At the time, there was also a complaint by the appellant’s solicitors that there was an overlap in relation to some of the matters between the Ennis Inquiry and the Tribunal hearing. I need not develop the argument further as this particular objection was not seriously pursued on the appeal and, in my view, it would clearly be unstateable. A hearing as to whether a complaining member of the public was intimidated into withdrawing a complaint is necessarily entirely separate from a hearing relating to the matters complained of, irrespective of whether there may or may not be some similar evidence or evidence relating to the same point adduced.

As I have already explained, the Tribunal rejected the jurisdiction objection and ruled that the hearing should proceed. When the Tribunal next convened on the 7th May, 1998, it was informed by the appellant’s solicitor that neither he nor his client would be taking part in the proceedings though they reserved the right to put questions in relation to what they regarded as the jurisdiction issue. The Tribunal appears to have been taken aback by this approach and presumably in order to consider how it would deal with the case in that light, the hearing was adjourned until the 8th June, 1998. The hearing then proceeded and six witnesses were called on behalf of the Board. The appellant gave no evidence and there was only very limited cross-examination. I have already summarised the conclusions of the Tribunal.

It was submitted on behalf of the appellant that there was unwarranted delay which deprived the Tribunal of jurisdiction, it being argued that the statutory provisions envisaged a speedy investigation and hearing.

I will now outline the ruling on this matter by the learned High Court judge in his reserved judgment. The judge first pointed out that the delays due to the appellant’s illness and the further delays from the date in November, 1997 when a date of hearing was fixed up to June, 1998 were also due to the appellant. He conceded that there was some delay caused by the changeover of board from the 1996 Board to the 1997 Board. But overall, he concluded that in so far as there was any unexplained delay he was satisfied there was no prejudice to the appellant. Indeed he makes the following observation:

“It seems to the court that, while there was no urgency apparent in getting the matter to an expeditious conclusion, the applicant requested and benefited from the delays. It appears to the court that the adjournments were taken by the Tribunal and not influenced by its Chief Executive who, in any event, did not have power to adjourn the matter.”

I might add that the Chief Executive referred to, Mr. Hurley was, in fact, Chief Executive of the Board rather than the Tribunal. In my view, the learned High Court judge was correct in rejecting the arguments based on delayed hearing. The statutory procedures would appear to me to have been meticulously followed subject to the allegation that the Chief Executive of the Board, Mr. Hurley, in some way improperly interfered with the business of the Tribunal, a ground to which I will be specifically returning. It is also, of course, suggested that Mr. Hurley himself contributed to the delay by in some way insisting that the Tribunal hearing could not go ahead contemporaneously with the Ennis Inquiry. It is not credible to suggest that either party could have thought that that could reasonably happen. If proper full hearings were to be held in each inquiry or indeed even if only a jurisdiction point was being raised in one of them, the appellant would, as a minimum have to be present in reality. I am quite clear, therefore, that the Ennis Inquiry is wholly irrelevant to any matters on issue in this case. There was, obviously, no question of double jeopardy but neither was there some untoward delay caused by waiting for the Ennis Inquiry to terminate. Nor can I see any objection to the Ennis Inquiry proceeding ahead of the Tribunal hearing. In the events that happened that is just how the dice fell. But as I have already pointed out they are entirely separate issues and all arguments relating to the Ennis Inquiry on this appeal would seem to me to be irrelevant.

The alleged impropriety of Mr. Hurley is really the only matter left to be disposed of. It can be dealt with very shortly. There is simply no evidence that Mr. Hurley acted inappropriately. By “inappropriately” I mean that he in any way interfered with or attempted to manipulate the Tribunal hearing. Not only has the appellant not made out that case on his own evidence but at any rate in so far as there is any contest of fact on the affidavits, there has been no cross-examination. In those circumstances, the onus on the appellant is not discharged.

I am quite satisfied, therefore, that even if it would be appropriate to extend the time (a matter which I have not considered) the relief sought in the judicial review would have to be refused.

I would, therefore, dismiss the appeal.

Sheehan v. The Garda Síochána Complaints Tribunal & anor.