JUDGMENT of Mr. Justice William M. McKechnie dated the 26th day of January, 2012
Background
1. This case is the latest in a line of several where the correct interpretation of the Garda Síochána (Discipline) Regulations 1989 (S.I. No. 94 of 1989) (the “1989 Regulations”) has to be considered. The issue in the instant appeal is, in my view, a single one; namely, what are the consequences which follow from a breach of Regulation 8, for I cannot conceive of it being even arguable that a breach of such regulation has not occurred.
2. The background circumstances of this judicial review arise out of the death of Raonaid Murray who was found brutally murdered on the 4th September, 1999, at Silchester Crescent, Glenageary, a short distance from her family home at 17, Silchester Park. This heinous crime was investigated by the National Bureau of Criminal Investigation, in conjunction with the Garda Technical Bureau. Tragically, for all concerned, but in particular for her family, this murder has not as yet been resolved and the investigation remains ongoing.
3. The appellant, Ian Gillen, is of course a member of An Garda Síochána, having joined the force in July 1982. At the relevant time he was and still remains attached to Kill O’The Grange Garda Station, Co. Dublin. His role in the above murder inquiry was not as part of the investigating team, but rather was that of Liaison Officer. In this capacity he was expected to offer all practical help to the family, such as communicating their wishes or concerns to the investigating team, arranging direct contact with members of that team, acting as a buffer between the press and the public at large, and generally adopting a proactive supporting position. He was appointed to this role immediately after the murder was discovered and continued, as such, until the events giving rise to this case occurred.
4. On the night of the 15th October, 1999, Garda Gillen took Ms. Sarah Murray, a sister of Raonaid’s, with the permission of her parents, to a local public house to watch a rugby match live on television. They were joined, as planned, by Ms. Audrey Territt and Ms. Jane Bridgeman who were, respectively, a cousin and friend of Ms. Murray’s. Unfortunately, Garda Gillen failed to bring Ms. Murray home at the pre-arranged time. He eventually did so, but not before having driven all three to a club in Dalkey whilst under the influence of alcohol, or so the allegation goes. These and other related matters gave rise to a discussion which Sarah Murray had with her parents later that evening. As a result, Mr. and Mrs. Murray had a meeting with Garda Gillen the following morning and challenged him as to his behaviour the previous night. Being dissatisfied with his response and evidently more so with his conduct, they arranged an interview for later that day with Detective Superintendent Donnellan (as then), who was a senior member of the investigating team. While reserving their right to make a “complaint” at some unspecified future time, they nonetheless related certain information to the Detective Superintendent (D/S) who, after questioning the appellant and having consulted Chief Superintendent (C/S) Cullinane, removed Garda Gillen from his position as Liaison Officer and also removed his name from a reserve list of promotional candidates to the rank of Detective in the Dublin Metropolitan Area. He was replaced in the former role by Sergeant McGraynor, who continued, without mishap, to assist the family thereafter.
5. Arising out of those events, disciplinary proceedings were initiated in May 2004 against the member concerned under the 1989 Regulations. The subsequent investigation led to a decision being made to charge the appellant with three alleged breaches of discipline. He was served with the appropriate form, B.30, on the 21st January, 2005. He obtained leave from the High Court on the 21st February, 2005, to challenge the Commissioner’s right to continue with the disciplinary process. In fact, that decision was made by the Appointing Officer, but nothing turns on this. Murphy J., in a judgment delivered on the 31st of July, 2006, dismissed his claim. It is that judgment and the resulting order which the appellant now appeals to this Court.
6. The most important dates and events constituting the background to this case can be stated and described as follows:-
4/9/1999: Miss Raonaid Murray murdered;
5/9/1999 (c): Appellant appointed Liaison Officer;
15/10/1999: Date of offending behaviour;
16&17/10/1999: Garda Gilllen challenged by family. Family, whilst reserving their right, make complaint to D/S Donnellan, who consults C/S Cullinane. Appellant removed as Liason Officer. His name was also removed from a “reserve list” for promotion;
28/4/2002: Written enquiry by family: has internal disciplinary action been taken?
12/7/2002: Family informed that Inspector Pat Ward has been assigned to deal with matter: family decline offer of meeting but indicate that, when ready, they will contact the Inspector;
26/11/2002: The family submit a three-page written complaint with supporting statements from Ms. Murray, Ms. Bridgeman and Ms. Territt;
12/12/2002: C/S Long, who receives the complaint, writes to the Assistant Commissioner recommending the appointment of a Superintendent from Internal Affairs to deal with the complaint;
23/01/2003(c): In response Superintendent Donohue and Inspector Featherstone are appointed: they meet the family who require more time to consider options;
27/03/2003: Family decide to complain to An Garda Síochána (Complaints) Board, established under the Garda Síochána (Complaints) Act 1986;
20/07/2003: Family make written complaint to the Board;
25/03/2004: Complaint declared inadmissible by reason of the fact that it was not made within six months from the date of the conduct complained of;
04/05/2004: C/S Rock appointed by Assistant Commissioner Smyth under the 1989 Regulations to investigate such conduct which allegedly occurred on 15/10/1999;
21/05/2004: Appellant notified of such appointment and served with details of the alleged breaches (Form B33);
May 2004/Oct. 2004: Investigation ongoing;
03/11/2004: The evidential results of the investigation were broadly outlined to Garda Gillen who denied the charges;
22/11/2004: Investigation file sent to Assistant Commissioner Smyth, the Appointing Officer;
14/01/2005: Decision by such officer to continue with the proceedings. Form B30 completed as is Form B33B, which includes the names and statements of intended witnesses;
21/01/2005: Appellant served with both forms;
21/02/2005: Leave (Macken J.) is obtained from the High Court to move judicial review proceedings.
The Regulations
7. Regulations 8, 9 and 10 of the 1989 Regulations play a central role in the sequential process of how and when an investigation is initiated into an alleged breach of discipline and in the crucial decision as to whether or not to proceed to inquiry thereafter. As such, it is necessary to quote the relevant sections from each such regulation. These are as follows:-
“8(1) Subject to Regulation 7, where it appears that there may have been a breach of discipline, the matter shall be investigated as soon as practicable by a member not below the rank of inspector (in these Regulations referred to as an investigating officer).
(2) An investigation officer shall be appointed by a member (…the appointing officer…) who is not below the rank of chief superintendent.
9(1) As soon as practicable after his appointment, an investigating officer shall inform the member concerned in writing –
(a) that it appears that the member concerned may have been in breach of discipline, and
(b) that he is investigating the matter.
(2) …
(3) …
10(1) Upon completion of an investigation under Regulation 8, the investigating officer shall as soon as may be submit to the appointing officer a written report of the investigation, together with copies of any statements made.
(2) Upon receipt of a report under the Regulation, the appointing officer shall without avoidable delay -
(3) …” (Emphasis added).
8. In addition, note should be had of Regulations 6 and 7. In summary, the combined effect of these regulations is to make provision for, inter alia:-
(a) what act or omission constitutes a breach of discipline (Regulation 6 (R. 6) and the Schedule);
(b) the informal disposal of a breach of discipline which is minor in nature (R. 7);
(c) the appointment of an Investigating Officer who is appointed by a rank not lower than Chief Superintendent (Appointing Officer) to investigate any alleged breach of discipline (R. 8, Form B33);
(d) the member concerned to be informed of such investigation and of the matters, in brief outline, being enquired into (R. 9, Form B33A);
(e) the Investigating Officer to report to the Appointing Officer on the completion of the investigation (R. 10);
(f) the Appointing Officer to decide whether or not to continue with the proceedings and, if so, for the completion of a discipline form in which the alleged breaches of discipline are set forth (R. 10(2), Form B30);
(g) the service on the member concerned of the discipline form and for the giving of information regarding witnesses, their statements and other relevant information (Regulations 11 & 12, Form B33B); and
(h) the holding of an inquiry into the alleged breaches (R. 14).
The Charges Alleged
9. As appears from the discipline form in this case, Form B30, the appellant was charged with three breaches of discipline, arising out of separate acts of personal behaviour on the night/early morning of the 15th/16th October, 1999, each of which is alleged to constitute a breach of discipline within the meaning of R. 6 and Ref. No.1 of the Schedule. The three alleged breaches are:-
"(1) failure to abide by an agreement with the parents of Sarah Murray to take their daughter home from Baker’s Corner Public House after the first half of an international rugby match;
(2) driving Sarah Murray, Audrey Territ and Jane Bridgeman from Baker’s Corner Public House to the Club Bar in Dalkey, having already consumed a number of pints of beer; and
(3) in the presence of Jane Bridgeman, urinating on a tree at the scene where the crime allegedly took place.”
The Pleadings
10. In the statement grounding the application for judicial review, Garda Gillen seeks a declaration that the Commissioner’s failure to act expeditiously in the initiation of proceedings against him amounts to delay, described as being both inordinate and inexcusable. This, he alleges, has breached (i) his right to natural and constitutional justice; (ii) his legitimate expectation as to expedition; and (iii) the relevant provisions of the 1989 Regulations. As a result, he seeks to prohibit the further continuation of the disciplinary process now standing against him.
11. In his supporting affidavit, the appellant says that after being removed from his position as Liaison Officer on the 16th or 17th October, 1999, he heard nothing further about this matter until September 2003 when Inspector Lundon relayed information obtained from Superintendent Neill, to the effect that the Murray family made a complaint against him, although he, the Inspector, had not been appraised of its precise nature. Apart from these meagre details, the member concerned was not further enlightened even by subsequent correspondence and discussion(s) had with his superiors, save that in February/March 2004 C/S Long denied having any knowledge of such complaint.
12. In addition, the appellant asserts individual prejudice in two particular ways, firstly, that as a result of the decision to proceed, which inevitably will be followed by the holding of an inquiry, he is gravely worried, concerned and distressed to such an extent that he has required support from Dr. Corry, a psychiatrist, and, secondly, that his promotional prospects have been interfered with, in that, without his knowledge, his name has been removed from a “reserve list” for promotion to a higher rank (para. 4 supra). This information only emerged when he obtained a copy of a letter dated the 2nd November, 2004, sent by Detective Chief (D/C) Superintendent Donnellan (as then) to C/S Rock. In addition, he complains generally about the overall unfairness and injustice of having to meet these charges so many years later.
13. It should be noted that the member concerned vigorously denies all such charges.
14. The first respondent (or “the Commissioner”), in opposition, asserts that the leave application was not applied for promptly, or in any event within the required three month period. Therefore, it should have been refused by virtue of Order 84, rule 21 of the Rules of the Superior Courts. In this regard, it is said that time began to run from the 21st May, 2004, when Garda Gillen was served with Form B33 (para. 6 supra).
15. In addition, but without prejudice to the point last made, the Commissioner says that as the Murray family in October 1999 reserved “their right to make a complaint” at some future time, no investigation could be commenced until the family had made a decision in this regard, or at least until a formal written complaint was received from them. Moreover, it is pleaded that once a complaint was made under the Garda Síochána (Complaints) Act 1986 (“the 1986 Act”), then by virtue of s. 15(2) thereof, the internal disciplinary inquiry had to be stood down pending a decision on such complaint from the Garda Síochána Complaints Board (“the Complaints Board”). Once that decision was made, as it was in March 2004, the subject process was immediately commenced and thereafter it proceeded diligently and with due expedition. All other matters alleged are denied as traversed.
16. Several affidavits were filed in support of the Commissioner’s position who was the only respondent to take part in this action. D/C Superintendent Donnellan recalls a meeting with Mr. and Mrs. Murray on the 16th October, 1999, at which they complained about Garda Gillen’s behaviour on the previous night. He makes specific mention of Sarah Murray having been returned late and of the appellant driving, having consumed alcohol. He took the action mentioned at para. 4 above. Further, he accepts that the Murray family reserved their right to make a complaint in the future, which right he acknowledged. However, as appears from his letter of the 2nd November, 2004, the D/C Superintendent asked Mr. Murray at that time “…if he was satisfied that I would deal with the complaint and he said he was but he wished to reserve the right to make a complaint about the matter in the future. I took this to mean if he was not satisfied with the action I took in relation to the complaint he reserved the right to make a complaint about the matter in the future. I explained the action that was taken in relation to Garda Gillen to Jim and Deirdre Murray and they did not say at any time that they were not satisfied with the action taken” (Exhibit 1.G. 6 in the appellant’s grounding affidavit). Finally, he acknowledges that the decision to initiate disciplinary proceedings is a matter for the Commissioner. Nonetheless, he says that it was appropriate to have regard to the views of the Murray family.
17. In his affidavit, Superintendent Neill sets out the background information from which the chronology outlined at para. 6 supra is compiled. Some of that information is further referred to in more detail later in this judgment. He says that once the Chief Executive of the Complaints Board made his decision on the 25th March, 2004, to reject the complaint as being inadmissible, the internal disciplinary inquiry was set in motion almost immediately, and thereafter was proceeded with as soon as practicable at all levels. To demonstrate this, he identifies the relevant dates and events which occurred between the 4th May, 2004, and the 14th January, 2005. He denies that these charges have in any way affected the appellant’s promotional prospects and points out that on one occasion only since 1999 has Garda Gillen attended for interview, seeking a rank superior to that which he obtained when joining the force.
18. In addition, he claims that for a variety of reasons, including the absence of a written complaint, respect for the wishes of the Murray family and their decision to invoke the provisions of the 1986 Act, it was neither possible nor appropriate for the Commissioner to utilise the 1989 Regulations at any time sooner than what he did.
High Court Judgment
19. In his judgment delivered on the 31st July, 2006, Murphy J. stated: (i) that the delay, in its individual segments and overall, was unduly lengthy and could be criticised: (ii) that such criticism also applied to the Complaints Board, it being difficult to understand why it took twelve months to rule the complaint inadmissible, notwithstanding the clear wording of s. 4(1)(a) of the 1986 Act; and (iii) that whilst some form of internal investigation was taking place, those involved at that time, being Inspector Ward, Superintendent Donoghue and Inspector Featherstone, did not appear to have been appointed under Regulation 8 of the 1989 Regulations.
20. The decision of the learned trial judge, however, seemed to turn on his view as to what the applicant had to establish in order to succeed. At p. 20 of the judgment he said:-
“To succeed the applicant has not only to prove delay but that it is unreasonable so as to be an unfair procedure and thus unjust and unconstitutional.”
Addressing himself to this question, the learned trial judge, having carefully considered the evidence, concluded that no prejudice had been established, that credible evidence existed on which a tribunal could come to a decision against the appellant and that the “length of delay as compared with the more serious allegations of a criminal nature are not unreasonable such as to render the procedures unfair, unjust or unconstitutional”. On one or more of such bases he refused relief.
Submissions on Appeal: The Appellant
21. The central submission made on behalf of Garda Gillen is that, given the timeframe outlined above, the initiation of proceedings against him in May 2004, breached the mandatory provisions of the 1989 Regulations in that such proceedings were not commenced “as soon as practicable”, as provided for by R. 8 thereof. That phrase should be understood in the manner outlined in Re Butler [1970] I.R. 45 and, in particular, in a passage at p. 55 of the judgment of Budd J. In essence, the word “practicable” has the same meaning as “feasible”. As so understood, it is suggested that no justification has been offered to explain or excuse the inordinate and inexcusable delay in commencing the statutory process as provided for by such regulation.
22. It is further claimed that the reasons advanced by the Commissioner in justifying this delay are not capable of sustaining the underlying assertion. The process is not dependent on a written complaint, nor can it be controlled by civilians. Whilst the wishes of the Murray family are noted, such cannot be used to defer or postpone the making of the decision imposed on the Commissioner by the regulations. All necessary information was available by the 17th October, 1999. Therefore, if it was intended to formally discipline the appellant, the same should have been commenced soon thereafter.
23. In support of these submissions, the Court has been referred to McNeill v. Garda Commissioner [1997] 1 I.R. 469 (“McNeill”) and, in particular, to passages at pp. 479 and 484 of the report. McCarthy & Dennedy v. An Garda Síochána Complaints Tribunal [2002] 2 ILRM 341 (“McCarthy”) is also relied upon with particular emphasis being placed on the following from the judgment of Geoghegan J. cited at p. 357 of the report:-
“…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 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 and this would be grossly unfair to a complainant not in any way responsible for the delay.”
The learned judge continued:-
“…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.”
Reference is also made to Ruigrok v. Commissioner of An Garda Síochána [2005] IEHC 439, (Unreported, High Court, Murphy J., 19th December, 2005) (“Ruigrok”).
24. Finally, the appellant also responds to the finding by the trial judge that the leave application was not made promptly or in any event within three months from the relevant date.
The Commissioner
25. In reply, whilst the Commissioner also referred to Ruigrok and to the decision of in Re Butler, his essential submission draws heavily on the dissenting judgment of Denham J. in McNeill, and on subsequent cases which afford support for such view. Having referred to a number of “delay” cases, including Barker v. Wingo (1972) 420 U.S. 514., the learned judge, who effectively based her decision on that American authority, concluded her judgment by saying at p. 496:-
“…Delay is always undesirable. But to succeed the applicant has not only to prove delay but that it is unreasonable so as to be an unfair procedure and thus unjust and unconstitutional. In the circumstances of this case considering the factors as stated previously, I am satisfied that the applicant has not discharged the burden of establishing that the delay in itself in this situation was so long as to be unreasonable, an unfair procedure and thus unjust and unconstitutional. I would dismiss the appeal.”
26. Much reliance is also placed upon the decision of McCarthy, (paras. 23, 60 herein), not only in terms of its ratio decidendi, but also in terms of what Geoghegan J. had to say about McNeill, in particular about the observations of Hamilton C.J. who had suggested that the relevant provisions of the 1989 Regulations were mandatory in nature, and as a result further proceedings would be prohibited if a breach was established. Geoghegan J., who described this observation as potentially being “obiter”, went on to express “doubt as to whether a 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”. Kennedy v. Commissioner of An Garda Síochána [2008] IEHC 72, (Unreported, High Court, MacMenamin J., 14th March, 2008) (“Kennedy”) was also referred to and, in particular, the view of MacMenamin J. who declared that:-
“…a close analysis of the three judgment in McNeill renders it impossible to conclude that it is authority for the preclusion of the normal delay jurisprudence, a matter referred to only in the judgment of Hamilton C.J.”
27. The Commissioner also submits that there is “no reality” to an investigation being initiated or pursued under the 1989 Regulations unless the complaint is in writing and unless witnesses are both willing and available to participate. The instant situation is contrasted with the making of a complaint under the 1986 Act, with reference being made in that regard to a passage from the judgment of Murray J., at p. 352 of McCarthy.
28. Moreover, it is suggested that by virtue of s. 15(2) of the 1986 Act, the process provided for therein takes precedence over any investigation under the 1989 Regulations. Therefore, as and from the 20th July, 2003, when the family made a complaint under the Act, all further steps within the internal process had to cease.
29. Further, it is denied that Garda Gillen has suffered any prejudice by reason of the existing proceedings under the 1989 Regulations.
30. In conclusion, this Court is invited to embark upon a balancing exercise, involving on the one hand society’s right to prosecute, and on the other, the member’s right to expedition, with the outcome, in all circumstances, being determined by the individual facts of each specific case. As no prejudice exists in the instant case, it is suggested that having regard to all relevant circumstances the learned trial judge was correct in dismissing the applicant’s case.
Conclusion
31. Before dealing with the substantive issue, it will be convenient to dispose of the point raised by the Commissioner in his pleadings regarding compliance with O. 84, r. 21 of the Rules of the Superior Courts. In his judgment the learned trial judge dismissed the review application on the basis of the applicant’s delay in seeking leave, but, on a “without prejudice” basis, went on to consider the arguments raised. In view of this very proper course adopted by the judge, I would not consider it necessary to deal with the issue but for the fact that it may have some more general relevance than simply to this case. It is therefore worthwhile to say something briefly about the point.
32. Without deciding at what earlier stage(s) of the process it might be appropriate to seek judicial review, I am quite satisfied that the decision by the Appointing Officer to continue with the proceedings (R. 10(2)), is a critical step in imperilling the character, good name and livelihood of the member concerned and accordingly is an event which, in principle, must be amendable to judicial review. It is that decision which gives rise to the service of Form B30, which is the discipline form. If, as was suggested, the May 2004 decision to commence the process was to be regarded as the only point of challenge, I have no doubt but that the response would allege prematurity and would assert that, until a decision to continue had been made, the applicant could not be said to be in danger from what was, up to then, purely a matter of investigation. In my view, therefore, the appellant could not be criticised for exercising deferment in the manner in which he did. The decision to proceed was not made until the 14th January and was not known to him until the 21st January, 2005. He sought and obtained leave within four weeks. Therefore, he acted with great promptitude and well within time. His judicial review could not therefore turn on this point.
Nature and Meaning of the Regulations
33. It has been said in several cases that proceedings against members under the regulations are neither civil nor criminal in character (McNeill: Hamilton C.J. p. 479; Denham J. p. 493; Ruigrok: Murphy J.; and Gibbons v. The Commissioner of An Garda Síochána [2007] IEHC 216, (Unreported, High Court, Edwards J., 30th July, 2007)), they are disciplinary in nature, determined by an inquiry tribunal and on appeal, by an Appeals Board. Further, they are what they purport to be, namely, a means of asserting and maintaining general order and discipline so that the public can have confidence in a well structured and functioning Garda Síochána. Because of the unique role which the Gardaí play in our democratic society, it is no surprise to see that since the foundation of the State, matters of discipline have been regulated by statute, first commencing with the Garda Síochána (Discipline) Regulations 1926, and presently resting with the 1989 Regulations, which replaced their immediate predecessor of 1971. On entering the force this system applies and continues to apply to all members in service, in respect of matters within the scope of the regulations, as determined by R. 6 and the Schedule thereto. It is therefore quite clear that the regime is not common law based - it is rooted solely in the regulations.
34. The following passage from the judgment of Hamilton C.J. in McNeill at p. 479 of the report is entirely to the same effect. The learned Chief Justice said:-
“The provisions of the said regulations are binding not only on the applicant but on the respondent and the entire question of delay must be considered in the context of such regulations and the requirements thereof.
In these proceedings, the court is not readily concerned with the principles established with regard to the effect of delay on either civil or criminal proceedings because the proceedings instituted by the respondent against the applicant are neither civil nor criminal. They are in respect of breaches of discipline alleged to have been committed by the applicant as a member of the Garda Síochána and must be dealt with in accordance with the provisions of the Disciplinary Regulations, which set forth in detail the procedure for dealing with alleged breaches of discipline by a member of the Garda Síochána.”
35. If this be correct, as I respectfully believe it is, two consequences follow: firstly, as a self-contained disciplinary code, which is neither civil nor criminal in nature, case law which has been developed by reference to such proceedings is not relevant and, secondly, the issue of regulation breach, and, if established, the issue of resulting consequences are purely matters of statutory interpretation. This is not to say, of course, that the concept of time, time periods, or, if you wish, delay, may not be relevant. On the contrary, such matters may be of considerable importance so as to determine whether the impugned step was or was not carried out within the timeframe as specified. In this sense, and for this purpose, both delay and explanation may be undoubtedly relevant.
36. However, this relevance is not referable to the generalised rules on delay, whether civil or criminal. This is simply because the issue is not a delay issue - it is a compliance issue. Notwithstanding such however, there will be some cases where before one can say whether the required step was carried out, for example, “as soon as practicable”, an evaluation of the material circumstances in a particular time period may be required. If such an exercise becomes necessary, its conclusion is not measured against thresholds such as inordinate or inexcusable delay or similar terms. It is not embarked upon for this purpose. It is undertaken to determine breach or no breach. That is the reason why it is relevant. Unless this is kept clearly in mind it is most likely that the incorrect question will be focused upon, giving rise, most probably, to the incorrect answer.
37. In stating as I have, I should make it clear that I am addressing the interpretative point only; expedition or delay may also be raised under a number of other headings as, for example, where a breach of fair procedures or a denial of constitutional justice is in issue. Such may arise in a variety of ways depending on circumstances. In my view, however, the principal point in determining breach or no breach does not depend on the application of the general rules of delay; rather one must turn to the regulations themselves so as to determine any disputed issue arising out of their operation.
Issue No. 1: Alleged Breach of R. 8 of the 1986 Regulations
38. The regulations have established a scheme whereby discipline within the force is operated and controlled by the force itself. This is subject only to the appointment of an Appeals Board (R. 25) and to a limited number of other exceptions such as the requirement to obtain ministerial approval for the dismissal of a non-probationary member under R. 40. So, in essence, the force operates, supervises and implements discipline for its members in accordance with this regime.
39. Regulation 8 is the central regulation in this case. In fact, it is the only regulation really in issue, but an understanding of its true meaning is informed by a consideration of some other regulations, most of which are either set out or referred to at paras. 7 and 8 above. Regulation 8 only comes into play where “it appears that there may have been” a breach of discipline, a breach presumably of a type not appropriate for disposal under the informal procedure set out in Regulation 7. Where it so appears the relevant sequence of what should occur is that:-
• the matter shall “be investigated as soon as practicable”: this by an investigating officer;
• “as soon as practicable” after such appointment, that officer shall inform the member concerned and give him/her brief details of the allegations under investigation;
• once the investigation is complete the investigating officer shall “as soon as may be”, report to the person who appointed him; and
• that person, the appointing officer, shall “without avoidable delay” decide whether or not to proceed and, if so, he must create a discipline form in which the alleged breaches are specified (emphasis added) (Regulations 8–10).
40. These are the most direct provisions applicable on the “expedition point”, but it is also useful to note that once the discipline form is served, the member concerned has only fourteen days in which to admit or deny the charges, after which the appointing officer shall “without avoidable delay” cause an inquiry to be held in relation to such charges (emphasis added) (Regulation 14(1)).
41. Be that as it may, it can confidently be said that, whilst the relevant phraseology differs slightly as between the various steps specified in the regulations, there can be no doubt but that each step in the process has a demand of expedition within it and an infusion of urgency to it.
42. This element of exigency can be found in all of the regulations enacted since 192. However, the original regulations, together with a minor amendment made in 1942, were in different format than the later regulations and, therefore, are not in context informative. The present regulations very much mirror image their predecessor, but it is of significant interest to note that the time elements expressed as being “as soon as practicable” in R. 8 and “as soon as may be” in R. 10(1) were inserted for the first time into the 1989 Regulations. Therefore, it is clear that the Minister for Justice, at that time, injected an added time urgency, in each of those important steps of the process, evidently doing so for some purpose and for some reason. This must be regarded as being above and beyond the general desirability of expedition, as the same must be taken as applying in any event.
43. The reason for such urgency or expedition, call it what you wish, was captured by O’Flaherty J. in McNeill at p. 485 where he said:-
“The Disciplinary Regulations require that the matter should proceed with a degree of expedition at every stage. And for good reason; members of the Garda Síochána have special privileges as well as special responsibilities not shared by ordinary citizens; therefore, if suspicion descends on a member of the Garda Síochána it is important from a public policy point of view that the matter should be investigated and dealt with quickly. The air should be cleared one way or the other…similarly, from the perspective of members of the Garda Síochána: they are entitled to hold their heads up in the community in which they serve; they are entitled to expect that if a charge is contemplated that it should be brought forward with a degree of expedition and they should be given a chance to meet it...”
I respectfully agree.
44. As noted, R. 8 requires the investigation to be carried out “as soon as practicable”. I am not certain how useful it is to try and re-describe that requirement so as to get closer to its true meaning. Contrasting it with a phrase such as “as soon as possible”, or with the adverb “forthwith”, undoubtedly can offer a sense of its positioning, but overall I think that the phrase speaks much for itself. In so far as assistance can be obtained however, I have found the judgment in Re Butler helpful. In that case a condition of an insurance policy required notification of an accident to be given “as soon as practicable” after its occurrence. Budd J. who described the word “practicable” as meaning “capable of being…carried out in action…feasible”, went on to say that “in order to discover what is practicable in the circumstances, [this] involves determining what difficulties there are that should properly be taken into consideration having regard to that which is enjoined to be done.” This means that with such an exercise, care must be taken to ensure that only factors material to the feasibility of acting in the manner required are taken into account, and that all other circumstances not relevant to the execution of the act(s) under review, are isolated and disregarded. Put another way, in the context of the instant case, one must ask what difficulties existed between October 1999 and May 2004, capable of legal recognition and this having legal effect under the regulations, which made the invocation of the process unattainable or unachievable before the latter date?
45. Against this background the first issue for consideration relates to the delay in the initiation of the investigation which did not take place until the 4th May, 2004. In respect of what occurred after the appointment of C/S Rock on that occasion, I see no complaint regarding expedition or otherwise, subject only to the decision taken on the 14th January, 2005, to proceed with the inquiry which gave rise to the leave application. As appears from para. 10 supra, it is claimed that this delay not only breached a number of non-regulation rights, but also breached Regulation 8 itself. Although in my view this is demonstrably so, nevertheless I should deal with the point before considering the consequences of the breach, which in reality is undoubtedly the essence of the issue. In fact, it is the essence of the case for the reasons later explained; the other points raised are not established on the facts.
46. What is relied upon by the Commissioner as an answer to this breach allegation is, firstly, the reservation by the Murray family of what is described as “their right” to make a formal complaint at some time in the future, and the “respect” which the Commissioner says he accorded to these views; secondly, the absence of any written complaint until quite late in the day; and thirdly, the statutory consequences of s. 15(2) of the 1989 Act, which arose following the making of a complaint by the family in July 2003.
47. It is common case that the entirety of the offending conduct, as alleged, took place on the 15th/16th October, 1999. It is this conduct only which gave rise to the three alleged breaches of discipline preferred against Garda Gillen, namely, a failure to return Sarah Murray home on time; driving a motor vehicle having consumed alcohol; and thirdly, urinating at or near the spot where the murder had taken place. It is uncontroverted but that D/S Donnellan (as then) was informed of the events giving rise to the first two mentioned breaches on the morning of the 16th October. It is unclear when he became aware of the circumstances surrounding the third breach as neither in his statement of the 2nd November, 2004, or in his replying affidavit does he make mention of such. Notwithstanding this, it is fact that from the outset he was aware of the identity, whereabouts and availability of. Murray, Territt and Bridgeman, the three witnesses in question, and also that he had ready access to them. As representing the Garda force, he had the means of interviewing these individuals and obtaining full statements from them. Had he chosen to do so, I have every reason to believe that he would have been fully appraised of all matters which had occurred the previous evening. Moreover, even an interview with Sarah Murray herself would have been sufficient as the only witness to the third allegation, Jane Bridgeman, had told her “the next day” of what had occurred. (See the letter of the 26th November, 2002, together with her accompanying statement). Therefore, with every justification, I proceed on the basis that all relevant evidence was either known by or was immediately available to An Garda Síochána by the 17th October, 1999. Nothing within the disciplinary system was done with this information until May 2004, about four years and seven months after its availability. The reasons offered for such inactivity are referred to at para. 46 supra and are dealt with in the succeeding paragraphs.
48. This timeframe can conveniently be looked at through different periods, the first of which ends in April 2002 during which, after the initial steps were taken, nothing else occurred. The second period can be regarded as commencing on the 28th April, 2002, and ending on the 20th July, 2003. The former coincides with a written inquiry from the family as to what internal action had been taken against the appellant. The latter relates to the making by the family of a complaint to the Complaints Board under the 1986 Act, although, in fact, they had indicated an intention of doing so some four months earlier. During that fifteen month period Inspector Ward, Superintendent Donoghue and Inspector Featherstone were, at different times, appointed to become “involved” in this matter. I use such description as it remains quite unclear as to the “capacity” in which they were involved, who or under whose authority they were “appointed” or what their “remit” was. The thinking behind this has not been explained. What is certain, however, is that they were not appointed under Regulation 8. In addition, it should be noted that during this period the family made a formal written complaint in November 2002 with supporting statements. Apart from expanding on detail, I do not believe that anything of substance materially different to what was available to D/S Donnellan in October 1999 emerged from this documentation. The explanation for this period of inactivity is similar to that given to cover the first period.
49. The third period coincides with the making of a complaint in July 2003 under the 1986 Act, and its rejection in March 2004 by the Chief Executive who ruled it inadmissible for being out of time.
50. The final period can be regarded as running from the date of that decision up to the service of Form B30 on the appellant which took place on the 21st January, 2005. No complaint is made in respect of this period, it being accepted that the requirements of the regulations were satisfied at each stage of the process, once C/S Rock was appointed under the 1989 Regulations on the 4th May, 2004.
51. The grounds advanced to justify the Commissioner’s inactivity under the regulations from October 1999 to April 2002 can briefly be restated as being, firstly, the reservation by the Murray family of their right to subsequently complain, secondly, the respect which the force saw fit to give to that view, and thirdly, the absence of a written complaint, which was first made only in April 2002. If these reasons were given in earnest and intended to be taken seriously, they display a fundamental misunderstanding of the role of the Commissioner and that of his officers under the regulations, and also a total disregard of the rights of the member concerned. Once it emerges that a breach may have occurred, which the regulations cover, and which has not been otherwise disposed of, an appropriate officer is obliged to engage with the process until a decision is reached, either by discontinuance or inquiry verdict. The regulations make no mention whatsoever of a complaint, let alone one in writing, and are entirely oblivious as to the manner by which the authorities become aware of a possible breach. Once it is known, it is decision time - proceedings are or are not appropriate.
52. This situation is strikingly different to the initiation process under the 1986 Act where its procedures are activated only on receipt of a complaint from a member of the public. That is not the situation in the instant case. Moreover, it would be untenable, from the viewpoint of the Commissioner, the member concerned and the public at large, and would be in clear violation of the statutory regime if the maintenance of discipline and the upholding of proper standards in the force were to be controlled or overtly influenced by civilian members of society, no matter how sympathetic the underlying context might be. If that were so, the consequences would be grossly disabling in that the Gardaí would be powerless even to investigate until the civilian said so or otherwise decided to commit his evidential information to writing. This is not what the regulations have provided for. Once information is available the procedure is available and the process is in play. Finally, I cannot find within the papers any evidential basis for suggesting that the family’s reservation was to continue until the murder had been resolved. If that is correct, the observations mentioned in this paragraph are even more to the point, as, if persisted with, nothing would have occurred to date and perhaps never would. Such would result in the unilateral paralysis of the regulations which simply could not be as intended.
53. In addition, I cannot understand what importance is sought to be given to D/S Donnellan’s acknowledgement of the family’s right to reserve. It clearly could not and does not have legal significance. It may well be that it was intended to be no more important than simply an acknowledgement of what the family had said, although this is not what the Commissioner portrays it as being or how he wishes the court to understand it. However, in my view, it is a strong possibility that by removing the appellant at the time, the Senior Officer felt that the problem had been resolved ( summarily), and that in the expectation of no further family intervention, recourse to the regulations would not be had (para. 16 supra). In any event, I am satisfied that the reasons so advanced for this period are entirely unrelated to the requirements of R. 8 and therefore cannot properly be taken into account. It follows, in my view, that this delay of over two and a half years must be interpreted as meaning that the investigation was not initiated “as soon as practicable”. In the circumstances, the phrase is incapable of any other meaning. Consequently, by reference to this period alone there has been a breach of this statutory obligation.
54. I would reach a similar conclusion with regard to the following period ending in July 2003. Once more, unregulated and non-structured contact and communication with the family, and utter subservience to their indefinite holding position, are not material factors in the regime under consideration. Furthermore, there were two specific events during this time which require comment: the first is that by reference to s. 4(1)(a) and s. 4(1)(3)(a)(iv) of the 1986 Act, it is obviously clear that for a complaint to be valid it must be made within six months from the date of the offending behaviour, which in this case was October1999. Whilst I am not suggesting that the Garda had a duty to so advise the family in this regard, it is nonetheless rather surprising that such possibility was never apparently even raised with them. In fact, in later correspondence the family, either by outright complaint or at least with a sense of grievance, claimed that the Gardaí should have informed them of this time limit in October 1999, and certainly should have done so during the later engagement between July 2002 and March 2003. No explanation has been forthcoming in this regard. An additional striking feature of this period was the Commissioner’s entire failure to have any regard to the position of the appellant, which is in sharp contrast to his attitude towards the family.
55. The second observation is that a full written complaint was made by the family to the Gardaí in November 2002. Therefore, the Commissioner could no longer rely on the absence of such a complaint for not moving. His inactivity therefore over the following eight months, particularly in light of the previous period, is in my view likewise unjustified for the reasons given above.
56. The nine months from July 2003 to March 2004 is explained by suggesting that once a complaint had been made to the Board, then under s. 15(2) of the 1986 Act no internal investigation can be commenced, and if in existence must be stood down. I am far from agreeing that this is the correct construction of the provision in question. However, being satisfied that by reference to the periods above mentioned there has been a breach of R. 8, I do not consider it necessary to further deal with this point.
57. In conclusion on this issue, I have no doubt but that an investigation could have been carried out in the immediate aftermath of the October 1999 incident. All of the evidence was known and all of the witnesses readily available. Whilst sensitivity was required because of the ongoing murder investigation, a conduct inquiry standing outside the investigation could well have been accommodated within the required time. I cannot identify any factors properly to be considered which might remotely bring the initiation of this process within Regulation 8. It therefore follows that the provision has been breached.
Issue No. 2: Consequences of Breach
58. As outlined above (para. 39), the key regulations not only specify time periods but they also require that the matters referable to such periods “shall be…done…” (emphasis added). For example, under R. 8 “the matter shall be investigated…”. Likewise with Regulations 9 and 10. However, the regulations do not go on and spell out the intended consequences of a failure to comply with such requirements. Yet the court must reach a decision in this regard. It does so as a matter of interpretation having considered the regulations as a whole.
59. In the McNeill judgment (see also para. 34 supra), Hamilton C.J., who described the obligations arising under R. 8 as mandatory, held that by reason of its breach, all steps subsequently taken were “void and of no effect”. An injunction to reflect this view would therefore issue. The steps in question were the decision to continue with the proceedings, the service of certain documents on the member concerned and the establishment of an inquiry under Regulation 14. I cannot see any distinction in principle between McNeill and the instant case in this context, even though the review proceedings in this case were taken at an earlier stage of the process. Logically, therefore, if this view of the Chief Justice is correct then, any further movement with the instant inquiry must be prohibited. There were two other judgments delivered by the court, a concurring one by O’Flaherty J. and a dissenting one by Denham J.
60. In the years which have followed McNeill, it is fair to say that whilst some judgments have fully endorsed the rationale of the Chief Justice, others have been less enthusiastic in doing so. A case relevant in this context is the McCarthy decision, which is also referred to in the earlier part of this judgment where the submissions are outlined. That was a case arising under the 1986 Act where two issues arose, but only one of which is of interest to us, and that is the delay point. Under the relevant provisions of the Act, both the Chief Executive of the Board and the Commissioner are obliged to do various things “as soon as may be”. It was alleged that such provisions were breached and as a result the intended inquiry should be stopped. The relevant sections of the court’s judgment on this issue, given by Geoghegan J., (para. 23 supra) can be summarised as follows:-
(i) that such expedition which the provisions clearly intended had to
embrace the interests of both the complainant, being a member of the public and the Garda complained against;
(ii) that it could never have been intended that some “small” delay, possibly engineered by the Gardaí themselves, would have the effect of stopping the inquiry as this would be grossly unfair to a complainant who may not himself have been in any way responsible for such delay;
(iii) that in any event the hearing of a disciplinary complaint against a member was a serious matter and on any interpretation of the legislation had to be dealt with expeditiously; accordingly,
(iv) irrespective of whether such provisions were to be regarded as mandatory or directory, a reasonable balance had to be struck between these conflicting interests when determining if the delay relied upon offended the timeframe given.
61. The learned judge also referred to McNeill and in the process made the following observations:-
(i) that the finding of Hamilton C.J., to the effect that compliance with R. 8 was mandatory and that if breached all steps taken thereafter were void and of no effect, was not essential to his decision and should be regarded as “obiter”;
(ii) that O’Flaherty J. had expressed no view on this aspect of the case;
(iii) that he doubted whether a breach of an expedition obligation in the context of a stepped process was fatal, or, as he described it, was a condition precedent to the taking of the next step. However, he reserved a final view until the issue arose;
(iv) that it cannot be regarded as certain that the use by the Chief Justice of the word “mandatory” was intended in contra-distinction to “directory”; but that in any event,
(v) the distinction between “mandatory” and “directory” and the differences of approach between the majority and minority view in McNeill may not be significant if his view of the phrase “as soon as may be” was accepted as meaning “as soon as may be reasonably practicable in all the circumstances”.
62. Another case dealing with the regulations is Kennedy, referred to above. In November 2002 the Garda authorities had grounds for believing that the applicant may have accessed pornographic websites on his work computer, during the course of his employment. Almost immediately a criminal investigation commenced, which continued until the D.P.P. entered a nolle prosecui in February 2005. On the 15th July, 2003, disciplinary proceedings under the 1989 Regulations were initiated with the appointment of an Investigating Officer. Whilst various steps were taken under the regulations, a decision was made in January 2004 to defer the investigation until the criminal case had been concluded. Immediately after the nolle prosecui was entered, the Garda authorities decided to recommence the investigation. However, from February 2005 to May 2005 the applicant was on sick leave suffering from stress. Correspondence then followed: the investigation file was sent to the appointing officer in June 2005 and by July of that year a disciplinary form, Form B30, had been served on the member concerned. Subsequently he obtained leave to judicially review the decision of the Appointing Officer to establish a Board of Inquiry under R. 14 of the 1989 Regulations.
63. The learned judge, MacMenamin J., extensively reviewed the facts of the case and commented on both McNeill and McCarthy. He held that there had been no breach of the regulations and accordingly refused relief. The basis for this decision was that in the circumstances, particularly in light of the criminal proceedings, the process under the regulations had been carried out “with the required expedition”. He, therefore, did not have to address the question of relief, which of course is the only context in which the controversy about whether the regulations are “mandatory” or “directory” can arise.
64. Nonetheless, in his decision, the judge distinguished the case before him from McNeill and did so in a manner which reflected his overall approach to the law in this area. In addition, however, he took the view that McNeill was a case which should be considered as having been decided on its own special facts and cited in support what he described as the “subsequent authoritative decision” in McCarthy. Moreover, he also took the view that the regulations were directory and not mandatory and that McNeill was not an authority for the proposition that the ordinary delay jurisprudence on the civil side should be excluded from applying to a regulation issue.
65. With great respect I am not entirely sure if Geoghegan J. would subscribe to this re-characterisation of his judgment in McCarthy. As explained above, the learned judge when making observations on McNeill was quite specific in reserving for another occasion his view as to whether the relevant parts of the 1989 Regulations were or were not mandatory. Such regulations of course were not in issue in McCarthy - no point in that case was related to or dependent on them. The judge’s reservation is, therefore, not surprising. Moreover, he was at pains to point out that the legislative process in McCarthy related solely to the 1986 Act under which a complaint by the public is necessary, a distinction which he described as constituting “a major difference between the McNeill case and this case”. I respectfully agree with these views.
66. As seen, the making of a complaint under the 1986 Act is critical; it is at the very heart of the process and is a necessary pre-condition so as to trigger an investigation. The complaint, which must be made by a member of the public, is then, at the behest of the Commissioner, investigated by the Gardaí. One can readily understand judicial concern at an over strict interpretation of the 1986 Act in this regard. As Geoghegan J. said, a “small delay” engineered by the Gardaí, inadvertently or intentionally, could deprive the complainant of having an admissible grievance investigated which was the entire purpose of the Act in question. The 1989 Regulations are entirely different. Their engagement is not complaint dependent; their purpose is to preserve good order and discipline so that public confidence is maintained in the force. There is no question of the Gardaí being able to manipulate the scheme for self gain. The regulations, in my view, as McNeill held, are a self-contained code and must be looked at as such. Therefore, I cannot agree that the judgment in McCarthy can be regarded as having altered the majority view in McNeill.
67. I do of course accept that Geoghegan J. appears to have some reservations about McNeill, in particular, for present purposes, about the mandatory/directory issue. Whilst Hamilton C.J. did not further elaborate on what should follow a finding that R. 8 had been breached, it nonetheless seems abundantly clear that the order as made was in direct response to a finding that compliance with R. 8 was mandatory. To put the matter another way, the only legal basis upon which he could have concluded, as he did, and issue the injunction as the court did, was that a breach of the regulation could not be excused, i.e. it was not directory in nature but mandatory in effect. I can see no other basis upon which the learned Chief Justice could have made the order which he did.
68. A declaration “per se”, that the regulation had been breached was not sufficient to dispose of McNeil. The relief sought was to stay the inquiry. Such was done and I firmly believe that the legal justification for so doing was that as described. Whilst O’Flaherty J. did not expressly address this issue, the type of wording used by him, “…a timetable that accords with the requirements of the regulations would have to lay down a much shorter time span: ideally a matter of weeks or months at most…”, would suggest that he too shared the same view of the provisions as did the Chief Justice. Moreover, he also allowed the appeal which must be taken as endorsing the relief thus granted.
69. That such consequences follow from a breach of a statutory provision, which is mandatory and not simply directory, was standard law and known to be such at the time. In The State (Elm Developments Ltd) v. An Bord Pleanála [1981] I.L.R.M. 108, Henchy J. said:-
“If the requirement has not been observed it may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it.”
Therefore, it seems reasonable to conclude that the majority of the court had this in mind when granting the relief sought.
70. Denham J., by reason of her dissenting view, dismissed the appeal and therefore did not have to address the consequences of any alleged breach.
71. If I was to disregard for a moment McNeill and assume that the issue under discussion is untouched by judicial authority, it would be necessary to determine, as a matter of interpretation, what consequences follow from a breach of R. 8, which is the only regulation in issue in this case. If the regulations had specified such consequences this inquiry would not be required as the results would be obvious, but of course they are not. In this context, I propose to stick with the longstanding and useful distinction between “mandatory” and “directory” requirements of a statute or regulation, despite some recent criticism of this approach as being too rigid. In my view, it remains of value and I use it as traditionally understood, namely, that if a requirement is mandatory (sometimes otherwise described as “strict” or “imperative”), the court will not excuse its non-performance, whereas if directly (something otherwise described as “permissive”), the court will.
72. In each of the relevant regulations the enactment says that what is enjoined to be done, “shall be” carried out within the descriptive timeframe as mentioned. The word “shall” can only mean “must”, which in turn suggests an intention that the obligation must be carried through. Similar phraseology permeates many of these regulations. Therefore, by the use of such words themselves, it can be said, at least prima facie, that the requirement is mandatory, although this cannot be considered determinative as the search for its true meaning is wider than that. In The State (Elm Developments Limited) v. An Bord Pleanála [1981] I.L.R.M. 108, Henchy J., at p. 110 discussed this very issue. The learned judge said:-
“Whether a provision in a statute or a statutory instrument, which on the face of its is obligatory (for example, by the use of the word “shall”), should be treated by the courts as truly mandatory or merely directory depends on the statutory scheme as whole and the part played in that scheme by the provision in question. If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, now-compliance may be excused.”
73. By reference to the object of the regulations and the scheme by which such is to be secured, the question therefore is how important a part does R. 8 play in this disciplinary process or regime? Is it a provision of substance or not? Is it of prime importance or purely secondary in effect? Does it play an essential role or one that is merely supportive? Does it have a core function within the overall scheme or not?
74. In my view there cannot be any doubt as to its central importance. The significance of R. 8 when invoked is that the Commissioner has commenced a process under and by which the conduct of the member concerned is being inquired into. Thereafter his position is altered; he is under investigation which may ultimately have truly significant consequences for him, his career and his family. In addition, this is the process by which good order and discipline is regulated within the force, so that the public at large can have confidence in it. Without the taking of this first step the object and purpose of the regulations cannot be furthered. Whilst there are a number of steps in the process, that first step is key. Therefore, given the pivotal role which the Gardaí play in our society, and indeed which members of society play in supporting the Gardaí, it is critical for all concerned that the mere suggestion of misconduct should be dealt with expeditiously. Clouds of suspicion, mistrust and uncertainty cannot be let gather. Consequently, I am satisfied that the intendment of parliament in creating R. 8 was to make adherence to the timeframe therein specified mandatory, with the consequences that a breach thereof cannot be excused. Accordingly, quite independently of McNeill, I would arrive at the same conclusion as I believe the majority did in that case.
75. In coming to this view, I should say that such requirement cannot be considered as imposing an onerous burden on the Commissioner or his officers who are involved in implementing the regulations. Nor can the consequences be described as a disproportionate response to a R. 8 breach. The Oireachtas, through the Minister, was careful in his choice of wording when establishing the timeframe in question. The investigation was not required to be carried out “forthwith” or “instantly” or “as soon as possible”, and neither were any of the other steps. The phrases used are less exacting than any of those just mentioned, in respect of which (see Whelton v. O’Leary & Anor [2010] IESC 63, (Unreported, Supreme Court, McKechnie J. 21st December, 2010)). Such phrases have built within them sufficient flexibility to accommodate the most trying of circumstances provided such are causative in a regulation context. Therefore, any suggestion that the utility of such regulations may be affected by the conclusion as reached in this judgment is one which must be rejected.
76. In the above circumstances it is not necessary to deal in any detail with the specific prejudice as claimed by Garda Gillen (para. 12 supra). It is sufficient to say that I do not think either claim is made out on the facts.
77. For the above reasons I would allow the appeal.
