Supreme Court of Ireland Decisions

Judgment Title: Walsh & ors -v- Garda Complaints Board & anor

Neutral Citation: [2010] IESC 2

Supreme Court Record Number: 147 148 195 196 197 198 & 199/09

High Court Record Number: 2005 604 JR

Date of Delivery: 18/01/2010

Court: Supreme Court

Hardiman J.
Fennelly J.
Macken J.





BETWEEN:


TIMOTHY WALSH, CONLAITH MULHALL, MARY GILMARTIN, SEAMUS FITZGERALD, PATRICK JOSEPH BLACK, BRIAN O’NEILL AND EDWARD MONAGHAN

- and -



GARDA SÍOCHANA COMPLAINTS BOARD

JUDGMENT of Mr. Justice Fennelly delivered the 18th day of January 2010

1. There is a six-month time limit for making complaints against members of the Garda Síochána. It is enacted in the Garda Síochána (Complaints) Act, 1986 (“the Act of 1986”). Where, as in this case, the complaint is made on the anniversary date of the event complained of, it would normally be deemed to be late under a special rule in the Interpretation Act. That rule is that the date of any relevant event is included when counting any period which the Oireachtas requires to be measured. The Act of 1986 lays down a special procedure for considering whether a complaint complies with the statutory requirements. That procedure provides the basis for the Board’s argument that the complaint is in time.

2. The essential facts are very simple. On 3rd September 2004 Dr. David Cloran telephoned the chief executive of the Garda Síochána Complaints Board to make a complaint about conduct of the appellants, which had taken place on 5th March 2004. It is agreed that the telephone call did not amount to the making of a valid complaint: while a complaint may be made orally, section 1(1) of the Act of 1986 provides that “an oral communication transmitted by electronic means” cannot amount to a complaint orally made. At the suggestion of the chief executive, Dr. Cloran followed up the telephone call by a letter of 3rd September 2004 transmitted by fax to a number of the Board supplied by the chief executive. The fax was received by the Board at 00.49.20 hours on 5th September 2004. If it had arrived an hour earlier, it would have been in time.

3. The chief executive decided that the complaint was in time. The appellants, each of whom is a member of the Garda Síochána, sought judicial review of that decision in the High Court. Two of the appellants claimed, in addition, that the chief executive had decided that the complaint had been validly made by means of the telephone call on 3rd September. They pursue that point, insofar as necessary, on the appeal. It will be unnecessary to consider that issue, if the appellants succeed in persuading the Court that the complaint conveyed by fax was, in any event out of time.

4. The appellants failed in the High Court: Hedigan J., in reliance on an English authority concerning a period laid down by contract, held the complaint had been properly made by fax on 5th September.

5. The Act of 1986 establishes the Garda Complaints Board. The Act lays down procedures for the making of complaints either to the Board, at a Garda station, or to a member of the force of defined rank. Only the first is here relevant. Among the definitions laid down by section 1(1) is that “complaint” means “a complaint under section 4(1)(a) of this Act.”

6. Section 4 deals with the making of complaints to the Board. Section 4(1)(a) lays down the procedure, which includes a requirement that a complaint be made “within six months of the date of the conduct.” There is no provision for extension of that time.

7. Section 4(2)(a) provides for the recording of a complaint received by the Board including the “date and time of its receipt” and the sending of a written acknowledgement to the complainant. Section 4(3) (a) is central to the appeal. It obliges the chief executive of the Board to consider the admissibility of a complaint. It reads as follows:


On receipt by the Board of a complaint or of a notification under subsection (2) of this section, the chief executive shall consider whether the complaint is admissible and the complaint shall be admissible if the following conditions are satisfied—
(i) the complainant was a member of the public,

(ii) the complainant was directly affected by or witnessed the conduct alleged in the complaint,

(iii) the said conduct would constitute an offence or be conduct specified in the Fourth Schedule to this Act,

(iv) the date on which the said conduct was alleged to have occurred was on or after the establishment day and within six months before the date on which the complaint was made,

(v) the application of this Act to the said conduct did not, by virtue of section 15 of this Act, stand excluded on the date on which the complaint was made, and

(vi) the complaint is not frivolous or vexatious.

8. The counting of the six-month period is crucially affected by the provisions of the Interpretation Act, 1937. Section 11(h) is included among the rules which are to apply to the interpretation of acts of the Oireachtas. It reads:

Periods of time. Where a period of time is expressed to begin on or be reckoned from a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period, and, where a period of time is expressed to end on or be reckoned to a particular day, that day shall, unless the contrary intention appears, be deemed to be included in such period;

9. The arguments on the hearing of the appeal were concisely focussed on the statutory language. It was agreed that, if section 4(1)(a) were to stand alone, the complaint communicated by fax on 5th would be out of time, because 5th March is itself counted as part of the six months. That period thus expired at midnight on 4th September, less than an hour before the fax reached the offices of the Board.

10. The rule of interpretation laid down by section 11 (h) has been considered and applied in the High Court: McGuinness v Armstrong Patents Ltd. [1980] I.R. 289 (to the limitation period for commencement of a personal-injury action); Freeney v Bray Urban District Council [1982] ILRM 29 (to a period for giving of notice of a planning decision); McCann v An Bórd Pleanala [1997] 1 I.R. 264 (to an appeal against a planning decision). It is not surprising that there was no appeal to this Court in any of those cases. In the first of these cases, McMahon J observed, at page 292, that when “a period of time prescribed by a statute is defined as a period "from" a particular event, the well-settled rule of law in England is that the day of the event is excluded in computing the period.” However, having cited the provisions of section 11(h), quoted above, he continued: “I would gladly adopt any construction of this provision which would achieve uniformity in the laws of England and of Ireland in computing periods of time, but I do not see how the provision can be construed in that way.”

11. At the hearing before us, Mr. Alex Owens, Senior Counsel for the Board accepted this position so far as section 4(1)(a) is concerned. He argued, however, that the result was altered if one took account of section 4(3)(iv). That provision requires the chief executive to consider whether “the date on which the said conduct was alleged to have occurred was …… within six months before the date on which the complaint was made…” He attached particular importance to the use of the preposition “before.” The date of the receipt of the fax would not be included: therefore, 5th March was within six months counting from the day before 5th September.

12. Mr Feichín MacDonagh, Senior Counsel for five of the appellants, submitted that section 4(1)(a) and section 4(3)(iv) were intended to have the same effect. Applying the second part of section 11(h) of the Act of 1937 to the latter provision, he argued that the date on which the complaint was made was the end of a period of time which is “to end on or be reckoned to a particular day…”

13. Mr Luán O’Braonáin, Senior Counsel for the other two appellants submitted that the complaint referred to in section 4(3) must be the same complaint as is referred to in section 4(1)(a). Thus, if it does not comply with section 4(1)(a), it does not fall to be considered pursuant to the latter provision.

14. I am satisfied that the governing provision is section 4(1)(a). Admittedly, this is a provision which occasionally leads to unfortunate and unforeseen results. Events occurring on an anniversary date, say of one year, are considered in common parlance to happen within the year. But the language of section 11(h) is clear and well-established; it adopts a special statutory rule. That rule is now repeated in the Interpretation Act, 2005, which must be regarded as a considered legislative choice.

15. Since the result emerging from section 4(1)(a) is so clear, one has to ask whether the Oireachtas could have intended to produce a different result when enacting section 4(3)(iv). I think not. The task assigned to the chief executive is to verify whether the complaint is admissible. In seeking to establish, whether it was made in time for the purposes of subparagraph (iv), he must ask himself whether the “conduct…… was alleged to have occurred …within six months before the date on which the complaint was made.” In carrying out this exercise, he must necessarily investigate whether the complaint had been made within the period laid down by section 4(1)(a). It makes no sense to interpret the two provisions so as to contradict each other. It is perfectly possible to apply the second part of section 11(h) of the Interpretation Act so as to achieve the same result as flows from the application of section 4(1)(a). The 5th September is a date “where a period of time is expressed to end on or be reckoned…” Thus 5th September is “deemed to be included” in the six months. The result is the same looked at from each end. Does the interpolation of the word “before” in section 4(3)(iv) make a difference? I do not think so. It is insufficient to counteract the general rule. Furthermore, the rule in section 11(h) is subject to the proviso, “unless the contrary intention appears.” For reasons already given, I am satisfied that the governing requirement, evincing sufficient contrary intention, is that the complaint shall have been made “within six months of the date of the conduct.”

16. I would, accordingly, allow the appeal and set aside the order of the High Court. I would substitute, in each case, an order of certiorari quashing the decision of the Board.