THE SUPREME COURT
RECORD NO. 205/2013 Denham C.J.
O’Donnell J.
Clarke J.
GARDA JOHN KELLY
Appellant -and-
COMMISSIONER OF AN GARDA SIOCHANA
Respondent
Judgment of O’Donnell J delivered on the 5th day of November, 2013.
1 To the casual observer Drumshanbo County Leitrim (population: 857) might appear a tidy, quiet and even sleepy place. It certainly was not such in the early hours of Sunday the 20th of September 2009. At 3.30am that morning a taxi, driven by Anthony McNulty, was waiting for customers outside Monica’s public house at High Street, Drumshanbo. A local garda, Garda John Kelly, the appellant, approached. It should be said that this incident occurred only two weeks after the conviction in the District Court of the licensee for having persons on licensed premises after the licensing hours. That offence had occurred in January 2009 and had itself been prosecuted by Garda Kelly. It is common case that Garda Kelly spoke to both the licensee, Mr Paddy McGourty, and his wife, Monica McGourty, for whom it seems likely the premises was named. Mrs McGourty, it appears, became so incensed that she left the licensed premises and walked around the town either following Garda Kelly or in front of him and at one stage sat on a window outside another licensed premises looking at Garda Kelly apparently with a view to making the point that a number of other licensed premises were still operating at that time of the morning without attracting Garda Kelly’s attention. This much is not in dispute. However, what happened (or did not happen) between these two incidents is a matter of bitter controversy in this case, and led to the dismissal of the Applicant/Appellant from the Garda Síochána on order of the respondent Commissioner, and thus to these proceedings.
Facts
2 The appellant, Garda John Kelly, was a member of An Garda Síochána and at the time of his dismissal in August 2011 had served 27 years in the force. In 2009, when the events the subject matter of the appeal took place, the appellant was stationed at Drumshanbo Garda Station in County Leitrim. On the 20th September 2009 he entered details on the Garda PULSE system indicating that he had conducted an after hours inspection of Monica’s licensed premises in Drumshanbo on that night, where he had discovered the licensee and his wife to be present along with several customers. The information entered into the PULSE system named the licensee and his wife along with two other individuals, a Mr and Mrs Lynch. The remaining customers were not named. One week later, on the 27th September, the Appellant made a formal statement outlining these events, wherein he stated that he inspected the premises and found seven customers there present and that two other individuals had walked past him as he entered the premises. On the 18th November 2009 this statement was submitted to the local sergeant, a Sergeant Fahy, with a view to a further prosecution of the licensee. 3 Sergeant Fahy returned the appellant’s statement to him on the 20th November seeking clarification on a number of issues contained therein, and, in particular, whether he knew the other individuals present in the public house, or had obtained their names, and seeking confirmation that Garda Kelly had in fact entered the main bar of the premises. The appellant replied to Sergeant Fahy on the 11th January 2010. That correspondence makes it clear that the relationship between Garda Kelly and Sergeant Fahy was not good. Garda Kelly stated the he did not understand the significance of the sergeant’s queries but confirmed that he had entered the premises. He provided a second statement which was not in any way materially different to the first. He also made several accusations against Sergeant Fahy in this correspondence in which he questioned why the sergeant was seeking the clarifications sought, referred to the sergeant’s close scrutiny of the previous prosecution of the licensee and suggested that Monica’s was a favoured local for members of the Garda Síochána residing in the area. Sergeant Fahy then wrote to Inspector Sweeney, the Chief Superintendent at Manorhamilton Garda Station, on the 14th January 2010 notifying him of the situation, complaining that Garda Kelly had not provided answers to his questions in this second statement and accordingly recommended no prosecution be brought. After submitting his response of the 11th January, Garda Kelly had reported sick and unfit for duty and had subsequently spent some time on sick leave. The inspector, by way of response to Garda Kelly’s second statement and Sergeant Fahy’s letter to him, requested Garda Kelly to provide clarification on the matters highlighted by Sergeant Fahy in November.
4 In a letter dated the 2nd February 2010, Garda Kelly provided his answer to this request and also provided a third statement dated the 1st February. This statement differed quite markedly from the first two statements. First, it identified one of the individuals Garda Kelly had said walked past him when he was entering the pub as Robbie Cullen. Second, Garda Kelly now stated that Mr Brendan Lynch, who he had previously named as one of the customers present on the night, had been abusive to him on that occasion and the statement gave details of the language used. In response to this latest statement Sergeant Fahy wrote to Inspector Sweeney and stated that he knew as a fact that another person was on the premises on the night of the 20th September who was known to Garda Kelly and also that at least one other person had already been prosecuted by him for being on a licensed premises after hours. On the 1st March 2010 Robbie Cullen, who was the individual named by Garda Kelly as having passed him on his way into the pub on the night in question, made a formal statement (to Sergeant Fahy) in which he denied being present on the premises at all that night, and furthermore made allegations against Garda Kelly that he had been recently harassing him to provide the names of the customers present on the premises on the night of the 20th September.
5 On the 27th April 2010, Inspector Sweeney wrote to the Chief Superintendent in Sligo informing him of his decision to prosecute the licensee and recommending that the matter of the events of the night of the 20th September be fully investigated. A prosecution of Mr McGourty was initiated but adjourned pending the outcome of the investigation into the events of the night in question. Inspector Sweeney stated in his letter to the Chief Superintendent that he had spoken with Monica McGourty on the 23rd April and that she denied that Garda Kelly had entered the premises. On the 9th April Brendan Lynch and his wife Mary Lynch, who had been named in the first statement of the appellant as customers present on the night in question, also made statements to Inspector Sweeney. They denied that the garda had entered the pub on the night in question. They admitted, however, that they had been present there after hours and named some of the other customers who were there also. Mrs Lynch stated at the hearing of the Board of Inquiry that when she and her husband became aware that Garda Kelly had made allegations against them she went to Sergeant Fahy who told her that she could make a complaint through her solicitor and get a copy of any statement. Mrs Lynch’s solicitor informed her that she could request a copy of the statements of Garda Kelly. This request was made and the Lynchs received copies of the three statements made by Garda Kelly about the night in Monica’s. The third statement, contained the reference to abusive comments alleged to have been made by Mr Lynch. Mrs Lynch said she was shocked because she knew that this certainly did not happen and accordingly the Lynchs made a complaint about Garda Kelly.
6 On foot of Inspector Sweeney’s recommendation, a Superintendent Brunton was appointed Investigating Officer pursuant to Regulation 23 of the Garda Síochána (Discipline) Regulations 2007 (hereinafter “the Regulations”). A thorough investigation was carried out by Superintendent Brunton. Statements were taken from several individuals who admitted being present on the premises on the night in question but denied that Garda Kelly had entered the premises. Robbie Cullen made a statement to Superintendent Brunton in which he repeated that he not been present on the premises on the night in question and also that Garda Kelly had approached him and harassed him about naming persons who were there. A statement was also taken from Anthony McNulty, the taxi driver who claimed that he had seen Garda Kelly enter the premises. Superintendent Brunton’s produced an admirably succinct document entitled “ Statement of Facts established by the investigation conducted by Superintendent Brian Brunton into alleged breaches of Discipline committed by Garda John Kelly 22554A Drunshambo Garda Station”. For present purposes the following portions of that Statement of Facts appear relevant:
“On the 8th of May 2010 I was appointed to investigate alleged breaches of discipline committed by Garda John Kelly 22554A, Drunshanbo Garda Station. During the course of my investigations I established the following facts.
(1) In the early hours of the 28th of September 2009 Garda John Kelly, Drunshambo Garda Station, conducted an inspection of Monica’s licensed premises at High Street Drunshanbo. Garda Kelly subsequently prepared an investigation file in respect of this incident and submitted it to his superiors on the 18th of November 2009 for direction.
(2) Sergeant Chris Fahy, who was then the sergeant in charge at Drunshanbo Garda Station, was concerned about some aspects of the investigation file including the accuracy of the statements made by Garda John Kelly which was submitted as part of the investigation file.
(3) Following the submission of the garda investigation file by Garda Kelly Sergeant Fahy spoke with the wife of the licensee, Ms Monica McGourty. Ms McGourty informed Sergeant Fahy that Garda John Kelly did not enter her pub when he conducted his inspection but had remained outside speaking with her husband, Padraig McGourty. She also provided Sergeant Fahy with the names of the individuals who were on the premises after hours on the night in question.
(4) Following this conversation, Sergeant Fahy returned the investigation file to Garda Kelly on the 20th of November 2009 asking a number of questions and requesting an additional statement from Garda Kelly clarifying issues.
… …
(16) Anthony McNulty, a local taxi driver, supports the version of events of Garda Kelly in that he saw him actually enter the front door of Monica’s bar.
(17) Anthony McNulty would have been sober on the night.
(18) Anthony McNulty had previously been arrested by Garda Kelly for drunk driving arsing out of a road traffic collision. This matter has yet to be heard by the courts.
(19) Anthony McNulty did socialise with Garda John Kelly on one occasion since the incident on the 20th of September 2009.”
In total Superintendent Brunton recorded 26 “facts” and concluded “I believe that the evidence contained in the attached investigation files supports the establishment of the above mentioned facts”.
Since this will become important later, it is necessary at this point to note that this account, by referring to conversation between Ms McGourty and Sergeant Fahy as having taken place following the submission of the Garda file would seem to clearly place it as occurring between the submission of the file on the 18th of November and the raising of queries by Sergeant Fahy on the 20th. Superintendent Brunton also obtained a report from a garda document expert on Garda Kelly’s notebook which found importantly that the information relating to the night of the 20th September 2009 was written using two different pens and, in particular, that the references to Robbie Cullen and to Mr Lynch being abusive (both of which it will be recalled only featured in the third statement delivered in February 2010) were written in a different pen to those recording the rest of the incident.
7 On the 23rd February 2011 a Board of Inquiry (hereinafter “the Board”) was established pursuant to Regulation 25 of the Regulations to conduct a hearing into the matter. A board of inquiry is only established in relation to allegations of serious misconduct, which are matters which may attract significant penalties up to, and including, dismissal from the force. The appellant was accused of six counts of misconduct before the Board including falsehood in relation to each of his three statements, and discreditable conduct in relation to his behaviour towards Robbie Cullen. The hearing took place over 5 days between late June and early July and evidence in relation to the events of the 20th September was heard from a number of witnesses.
8 On the third day of the hearing, Sergeant Fahy gave evidence. During that evidence it emerged, for the first time, that Ms Monica McGourty had approached Sergeant Fahy on the 23rd September, some three days after the incident in question, and, therefore, before Garda Kelly had even made his first statement and long before it had been submitted to Sergeant Fahy. Moreover on that occasion Sergeant Fahy had not merely had a conversation with Ms McGourty but had taken the step of taking a formal statement from Mrs McGourty, which was not however supplied to Superintendent Brunton. Nor its existence disclosed. In that statement she had alleged harassment by Garda Kelly and also, significantly, stated that while he might have put his foot inside the porch she was sure he did not enter the premises on the night in question. The emergence of this statement cast the events in a somewhat different light and, in particular, Sergeant Fahy’s request on the 20th November for confirmation from Garda Kelly that he had entered the premises and that he did not know any other of the occupants. It also cast a different light on Sergeant Fahy’s interaction with the Lynchs and his initial recommendation against prosecution.
9 Much was sought to be made of the content of this statement by Garda Kelly’s representatives who suggested that the reference to Garda Kelly putting a foot inside the porch was in some way exculpatory of him. On the final day of the hearing, the 11th July 2011, the tribunal found all six counts had been established and recommended that Garda Kelly be dismissed from service. By letter of the 26th July 2011, the chairperson of the Board of Inquiry sent to the Chief Superintendent for Internal Affairs at garda headquarters, a letter recording the fact that the Board of Inquiry had commenced sitting on the 26th May and concluded on the 11th July. The letter stated that the chairperson was enclosing the report of the Board pursuant to Regulation 30 of the Regulations, comprising, the recommendation of the Board, a list of witnesses the list of exhibits, one extra statement handed in during the hearing( presumably that of Mrs McGourty), and the transcript of the hearing. A copy of the report and transcript of the proceedings was also sent to Garda Kelly’s solicitors. The Commissioner accepted the recommendation of the Board and dismissed Garda Kelly from An Garda Síochána.
10 On the 14th July 2011, the appellant indicated his intention to appeal the decision of the Board of Inquiry. On the 16th August 2011 a formal Notice of Appeal was submitted which merely recited the grounds of appeal contemplated in the Regulations. There was a change of representation on Garda Kelly’s behalf and following the grant of an extension of time, submissions on behalf of Garda Kelly were lodged on the 2nd March 2012. The grounds of appeal submitted by the appellant were in general terms. It was stated that he had not been provided with due process during the investigation or during the hearing of the Board, that the findings of the Board were wrong in law and in fact and that the recommendation of the Board and the decision of the Commissioner were too severe in the circumstances of the case. Some correspondence was exchanged as to possible dates for a hearing. However in mid-March 2012 the Appeal Board dismissed the appeal of Garda Kelly without a hearing, pursuant to Regulation 35(2)(b) of the Regulations on the basis that the grounds of appeal were “without substance or foundation”. Regulation 35 on its face does not require that a hearing be held before an appeal is dismissed on this ground nor does it provide, in terms, that reasons should be given for dismissal. The decision of the Appeal Board was recorded on a pre-printed form on which the other grounds for dismissal under Regulation 35 (i.e. that the appeal was frivolous or vexatious) were deleted by hand. That was the full extent of the information provided to Garda Kelly in respect a decision which had the effect of making final his dismissal from An Garda Síochána.
Proceedings in the High Court
11 Following the dismissal of his appeal by the Appeal Board, Garda Kelly initiated judicial review proceedings in the High Court seeking inter alia orders of certiorari in relation to the decision of the Commissioner of An Garda Síochána to dismiss him from service the recommendation of the Board that he be dismissed, and the dismissal of his appeal by the Appeal Board.
12 In a judgment delivered on the 12th April 2013 the High Court (Hedigan J.) refused, the reliefs sought by the appellant. The learned High Court judge considered that the statement of Ms McGourty should not have come as a surprise to Garda Kelly or his representatives since the Statement of Facts submitted by Superintendent Brunton showed that “ Mrs McGourty had raised concerns in this regard to Sergeant Fahy three days after the incident “. Furthermore, it was noted that the issue could, and should, have been raised during the hearing before the Board of Inquiry. In particular, the High Court judge found that there was no essential contradiction between the first statement of Ms McGourty and her subsequent statements and accordingly, the allegation made on Garda Kelly’s behalf, that Ms McGourty had somehow committed perjury, was itself without any substance or foundation. The High Court also found that no discursive reasoning was required of the Board of Inquiry for its decision. In assessing whether the Appeal Board should have given reasons for its decision, reference was made to each of the grounds of appeal. Each ground was found to be patently insubstantial and unfounded and the learned High Court judge thus concluded that there was no further need for the Appeal Board to give any reasons for its decision although he noted that the mere ticking of a box might not suffice in other circumstances.
The Appellant’s Submissions
13 On the hearing of this appeal, Mr Mark Harty S.C for the appellant made five interrelated points. First, he challenged the reasonableness of the Board of Inquiry’s decision and procedures. Second, he contended that the Board of Inquiry was obliged to, or ought to, have given reasons for its decision. Third, it was said that the Board of Appeal did not define the circumstances under which it was permitted to dismiss an appeal on the grounds that it was frivolous, vexatious or without substance or foundation. In any event, it was argued that the Appeal Board was wrong to dismiss the appeal on this ground. Fourth, it was contended that the Appeal Board in turn was obliged to give reasons for its decision. Finally, it was argued that the decision was in breach of the principle of proportionality.
The Respondent’s Submissions
14 On behalf of the respondent Mr Diarmuid McGuinness SC argued that there was no lack of reasonableness on the part of the Board of Inquiry and that there was ample evidence upon which it could come to the conclusion which it did. Furthermore, there was no obligation on the Board to give reasons. In any event, it is patent that the appellant fully understood the basis of the decision made against him. This was a simple case in which there was a conflict of evidence between Garda Kelly and Mr McNulty on the one hand, and the occupants of the public house on the other. The Board was entitled to accept the evidence of the licensee and the persons on the premises. If this was so, it followed that there was no prospect of the Appeal Board coming to any different conclusion to the Board of Inquiry which had heard and seen the witnesses. Accordingly, the Appeal Board was entitled to dismiss the appeal under Regulation 35. The determination was not disproportionate: the falsification of evidence by a member of An Garda Síochána and the alteration of his notebook, if found to have occurred, was an extremely serious matter and justified dismissal.
Decision
15 In Mallak v. Minister for Justice Equality and Law Reform [2012] IESC 59, in the context of an application for a certificate of naturalisation of the Irish Nationality and Citizenship Act 1956, Fennelly J. conducted a thorough survey of the law relating to the obligation of a decisionmaker to give reasons for his or her decisions and observed that “several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them” (para. 67). That case occurred in the context of an Act which itself was silent as to any obligation to give reasons, but conferred upon the Minister what was described as “absolute discretion” to grant or refuse any application for naturalisation. Fennelly J. concluded however that:
“In the present state of evolution of our law, it is not easy to conceive of a decision-maker being dispensed from giving an explanation either of the decision or the decision-making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process if fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.” (para. 66)
The applicant herein relies on this statement of the law. However, as the survey in Mallak makes clear, the decision of the court is not simply the ascertainment of a general principle applicable without more to all administrative decisions. The principle must be analysed in the context of the relevant statutory or administrative regime.
The Garda Síochána (Discipline) Regulations 2007
16 These Regulations set out a self-contained process for dealing with allegations of breaches of discipline. The Regulations distinguish between less serious breaches of discipline which are capable of being dealt with by the deciding officer and which may result in a reduction of pay not exceeding two weeks’ pay, reprimand, warning, caution or advice (Regulation 14), and more serious breaches of discipline which attract the more elaborate procedures contained in part 3 invoked in this case. A ‘serious breach of discipline’ is defined as one which in the opinion of the Commissioner may warrant any of the following disciplinary actions:
17 Where the Commissioner considers that an allegation warrants it, he or she appoints an investigating officer to carry out an investigation. Under Regulation 24(5) the investigating officer submits to the Commissioner “a written report of the investigation containing his or her recommendation as to whether the facts disclosed warrant the establishment of a board of inquiry, together with copies of any written statements made during it and details of any information, document or thing which the investigating officer was made aware of during the investigation”. Regulation 25 provides that if it appears from the report of the investigation that the member may have committed a serious breach of discipline, the Commissioner establishes a board of inquiry which is charged with determining whether such a breach has been committed and if it finds that it has, to recommend to the Commissioner the disciplinary action to be taken. A board consists of three persons one of whom is the chairman appointed by the Minister from a panel made up of judges of the District Court, and practising barristers or solicitors of not less than ten years standing. One of the other two Board members must be a garda not below the rank of chief superintendent and the final member must be a garda not below the rank of superintendent. The Board of Inquiry is obliged to formulate the particulars of the serious breach of discipline alleged and notify and supply it to the member. That notification is accompanied by a statement of the facts established by the investigation and any written statements made during it. Under Regulation 30, within 21 days after the conclusion of the inquiry, the presiding officers shall “submit a written report to the Commissioner and forward a copy of the report to the member concerned”. (emphasis added). Regulation 30(2) provides as follows:
“(2) The report shall include -
(a) copies of any statements made, including any admission made by the member concerned and any other documents provided to the board, together with the verbatim record of the proceedings,
(b) the determination of the board as to whether the member concerned is in breach of discipline and, if so, as to the act or conduct constituting the breach, and
(c) its recommendation as to any disciplinary action to be taken in respect of the breach.”
Section 3 of Regulation 30 provides that “Where there is a difference of opinion among the members of the board regarding any matter dealt with in its report, only the opinion of the majority regarding that matter shall be included in the report.”
18 Within 14 days of receipt of the report, the Commissioner decides on the appropriate disciplinary action. In the case of a member above the rank of inspector, where the Commissioner considers that the appropriate disciplinary action is dismissal or a requirement to retire or resign or a reduction in rank, the recommendation must be sent to the Minister for consideration by the government. In the case of any other officer, it is for the Commissioner to decide on the disciplinary action save that under Regulation 32, where a Commissioner proposes a more severe action than that recommended by the Board, the member is to be given the opportunity to make representations in that regard. Regulation 33 provides for an appeal against the determination of the Board of Inquiry in relation to the breach of discipline and/or the disciplinary action decided on or to be recommended by the Commissioner. Regulation 33(3) provides for the grounds of appeal. Those are stated to be that:
“(a) specified provisions of these regulations were not complied with;
(b) the determination is not justified, having regard to the evidence heard by the board of inquiry;
(c) all the relevant facts -
(i) were not ascertained,
(ii) were not considered, or
(iii) were not considered in a reasonable manner;
(d) the member was not given a reasonable opportunity to be heard and to respond to matters raised;
(e) the disciplinary action which the Commissioner has decided to take or recommend is disproportionate in relation to the breach of discipline concerned.”
Proceedings on Appeal
19 The Appeal Panel is presided over by a person drawn from a panel made up of judges of the District Court or practising barristers or solicitors of more than ten years standing. The other members of the three person Appeal Board should be either the Commissioner or a person selected by him and, in the case of a member who is a member of a representative body, a member selected by that association. (Regulation 34(5))
20 The procedure for appeal is provided under Regulation 35. It provides that the Appeal Board shall request a written statement of the grounds of appeal and any other submission and then inform the member at least 15 days beforehand of the time, date and place of the hearing of the appeal. Under Regulation 35(2) an appeal board may refuse to consider an appeal where:
“(a) the notice of appeal was not given within the period specified in Regulation 33(1), or
(b) having considered the member’s statement of the ground or grounds of appeal, it is of opinion that the case made by the member is frivolous, vexatious or without substance or foundation.” (emphasis added)
Where matters proceed to a full hearing, the proceedings are regulated by Regulation 36 which permits the Appeal Board at its discretion to “invite any person to give evidence orally or in writing”. Finally, it is significant that among the powers of the Appeal Board are to quash the determination and to substitute another disciplinary action, or quash the determination and decision and decide that another Board of Inquiry should be established to determine whether the member committed a breach of discipline. Regulation 37(3) provides that:
“An Appeal Board shall communicate its decision on the appeal and the reasons for it to the Commissioner and the member concerned within 7 days after the conclusion of the hearing.” (emphasis added)
The Inquiry Process in this Case
21 Superintendent Brunton provided a three page Statement of Facts established by his investigation which sets out in a lucid format the facts found by him. That report, and the statements taken by him in the course of the investigation, together with the account of his interview with Garda Kelly, formed the essential material for the inquiry. Other than the fact that the report does not appear to contain a recommendation as to whether the facts disclosed warrant the establishment of the Board of Inquiry, it appears to be in full compliance with Regulation 24. On 26th July 2011 the presiding member of the Board of Inquiry wrote to the Chief Superintendent of Internal Affairs recording the dates upon which the Board of Inquiry sat. The fourth paragraph of the letter was in the following terms;
“I enclose the report of the Board pursuant to Regulation 30 of the Garda Síochána (Discipline) Regulations 2007, comprising:
(1) The recommendation of the Board;
(2) A list of witnesses;
(3) The list of exhibits;
(4) One extra statement handed in during the hearing;
(5) The transcript of the hearing.”(emphasis added)
22 Attached to the letter of the 26th of July was a standard printed statement containing the information required by Regulation 27(3), and also setting out particulars of the serious breaches of discipline alleged. The final page of the printed form contained the conclusion of the Board of Inquiry which was contained in a standard printed form reciting “that the member concerned is in breach of the following breaches of discipline as alleged”: and which continued in handwriting “1, 2, 3, 4, 5, 6, - All breaches”. Subparagraph B contained the recommendation of the Board to the Commissioner in the following handwritten terms:
“1 Statement of 27.9.2009 – Dismissal.
2 Statement of 21.9.2010 – Dismissal.
3 Statement of the 1.2.2010 – Dismissal.
4 Notebook entry – Dismissal.
5 Discreditable conduct, attempted pressure of Robert Cullen, Reduction in pay of €500.
6 Foul language to Robert Cullen 1.3.10. Reduction in pay €300.”
23 It is readily apparent that there is no narrative or other account provided by the Board of Inquiry other than the handwritten finding of breach of the numbered paragraphs and the recommended sanctions. On the 12th of August 2011 the recommendations were accepted by the Deputy Commissioner of An Garda Síochána. Subsequently in March 2012 the solicitor for the appellant received a letter from the chairman of the Appeals Board containing a further pre-printed form which was headed “Refusal to Consider Appeal, Regulation 35 Garda Síochána (Discipline) Regulations, 2007”. A number of irrelevant matters had been deleted and the completed form read as follows:
“Commissioner,
The Appeal Board set up to hear an appeal by John Kelly, Garda, 2554A, Drumshanbo Garda Station, has decided to refuse to consider the appeal on the following grounds;
(b) having considered the member’s statement of grounds the board is of the opinion that the case made by the member is; without substance or foundation.
(c) having considered the member’s grounds of appeal, the board is of the opinion that the case made by the member is; without substance or foundation.”
24 The form was signed by the chairman and members on different dates between the 14th of March 2012 and the 20th of that month. The replying affidavit sworn on behalf of the respondents in this matter did not deal with the mechanics of the Appeal Board’s decision. However the letter of the 13th of March 2012 enclosing the decision under Regulation 35(3) from the chairperson of the Appeal Board was exhibited in the affidavit, and it recorded the fact that the Board met on Monday 12th March 2012 at Garda headquarters. No explanation was however provided for the fact that the decision was signed on three different dates by the three different members of the Appeal Board. It appears possible either that the Appeal Board did not decide on the 12th to dismiss the appellant, or that the meeting of the 12th did not involve physical attendance.
25 Shortly before the hearing in the High Court an open letter was written on behalf of the appellant offering to compromise the matter on terms that there would be a fresh Board of Inquiry. That letter was not responded to. The matter proceeded and in a detailed judgment the learned High Court judge rejected the appellant’s complaints. It appears that in the High Court the appellant made much more of what he alleged was inconsistency between the statement of Ms McGourty which emerged at the hearing of the Board of Inquiry, and the other statements made by her to Superintendent Brunton. As already mentioned, it was suggested in the first place that the newly discovered statement was exculpatory, and secondly, that in her evidence, and in particular her denial that Garda Kelly had entered the premises, Ms McGourty had been guilty of perjury. This allegation and indeed the suggestion that the statement was exculpatory of Garda Kelly seem very wide of the mark and the judge correctly rejected these allegations. Moreover, the high octane nature of the perjury allegation may have obscured the separate complaint made and pursued more vigorously in this Court, as to the significance of the emergence of the fact rather than the contents of the statement, and the fact that it had not been revealed in either the statements or direct evidence of Ms McGourty or Sergeant Fahy. In that regard, the High Court judge considered however there was no substance to the complaint. He said:
“Superintendent Brunton’s statement of facts dated the 28th of October, 2010 served under cover of letter dated the 5th of April 2011 shows Mrs McGourty had raised concerns in this regard to Sergeant Fahy three days after the incident.” (para. 6.3)
26 It will be apparent from the terms of Superintendent Brunton’s Statement of Facts set out above that it did not show that Ms McGourty had raised concerns “three days after the incident”. On the contrary, while the statement of facts did refer to a conversation between Mrs McGourty and Sergeant Fahy it seemed to place any such conversation between the submission by Garda Kelly of his report and statement on the 18th of November and Sergeant Fahy’s request for further information of the 20th of November. It also seems apparent that Superintendent Brunton was unaware of the existence of the statement until it emerged during the course of the hearing. It seems clear therefore that the High Court never addressed the significance of the fact that a formal statement had been taken by Sergeant Fahy on the 23rd of September and not disclosed by him to Superintendent Brunton or anyone else, and furthermore that neither Ms McGourty nor Sergeant Fahy referred to this significant event in their statements of evidence, or respective oral evidence, when given to the Board of Inquiry. This is of some significance in its own terms on this appeal, but it also casts light on the wider issues. It is precisely because the High Court judge delivered a comprehensive judgment that it is possible to identify this error and then consider what, if any, significance it had. It is not however possible to ascertain what view, if any, either the Board of Inquiry or the Appeal Board took of this matter and if, for example, they shared the apparently mistaken view of the High Court, because the decision of each body is contained in an uninformative and unilluminating standard form.
Analysis
27 A superficial reading of the Regulations might point to the explicit obligation in Regulation 37(3) imposed upon a board of appeal after a full hearing to communicate both its decision on the appeal and “the reasons for it” to the Commissioner and suggest therefore that the absence of similar explicit language from Regulations 30 and 35 should mean that no equivalent obligation was placed on a board of inquiry under Regulation 30, or a board of appeal when exercising jurisdiction to dismiss under Regulation 35. However, before such a superficial reading might be accepted, it would be necessary to consider why such an apparently arbitrary distinction might be provided for in the Regulations, and to ask whether such an interpretation is consistent not just with the terms, but also with the structure, function and logic of the Regulations.
28 The starting point for the analysis of the Regulations is that part 3 of the Regulations applies only to matters which are described as allegations of “serious breaches of discipline” which are defined as matters which might lead to one of the identified penalties including dismissal, which was indeed the penalty imposed in this case. It is to be expected therefore that the procedure established leading to such a result would be both careful and elaborate, as indeed they are. It is of course true, as was argued forcefully on behalf of the respondent in this appeal, that it must necessarily be the case that on the central issue in relation to which there was conflict, namely, whether Garda Kelly entered the main bar on the 20th September 2011, the Board of Inquiry must have been satisfied that he did not do so and it must also follow that the Appeal Board necessarily agreed and indeed considered that this issue was beyond any possible argument. But that was not the only issue here. This was not a simple conflict between two opposing accounts. It was in truth something of a tangled web with competing allegations of collusion and concoction made either explicitly or implicitly on both sides. In addition to the question of whether Garda Kelly was in the main bar on the night in question there were other ancillary facts which could not be said to be irrelevant, particularly in the context of regulations which permitted a significant variety of graded punishments and which distinguish for example between simple dismissal, and a requirement to resign from the force
29 Taking only one, albeit important, example, a question arose as to the significance of the fact that it only emerged at the hearing before the Board of Inquiry that Ms McGourty had given a formal statement to Sergeant Fahy three days after the incident, and before any statement had been made by Garda Kelly. A decision maker coming to the conclusion that there had been a breach of discipline disclosed in this case, might consider that there was nothing untoward at all about this, and that Ms McGourty and Sergeant Fahy had acted perfectly properly. It may also be possible that a decision maker could consider that their motives were not entirely honourable, and that there was indeed an element of collusion or concealment, perhaps even engendered by hostility to Garda Kelly’s attempts to enforce the law, but that all of this was strictly irrelevant to the question of a breach of discipline and could not at all influence the penalty to be applied. Finally, it is possible that the decision maker might be mistaken to a greater or lesser degree about the precise facts or may not have addressed the issue at all. Similar issues arise in relation to the account given by Mr McNulty the taxi driver who supported Garda Kelly’s account. If his evidence was accepted then on what basis was Garda Kelly in breach of the regulations? If, as appears more likely, his account was rejected, was that because he was considered to be mistaken, or was it that the Board considered his evidence unreliable (at its lowest) because of the evidence of his subsequent social contact with Garda Kelly and the fact that Garda Kelly was the prosecutor in a drink driving case against Mr McNulty which was due to be heard? It is however impossible to know what view the respective decision makers took in this case on these facts, or, as importantly, whether they took the same view, because neither of them had explained their respective decisions, in even the most rudimentary way. The remarkable and somewhat unsettling fact is that Garda Kelly was dismissed by the application by the Appeal Board of a test the content of which was and remains unknown, to facts which are themselves, even now, unclear. In relation to the actual decision leading to his dismissal, not only does Garda Kelly not know the view the Board of Inquiry took of the facts, but, and perhaps more importantly, he does not know at this stage what the Board of Appeal thought the Board of Inquiry had decided in relation to all the facts. He does not know by what test that body had concluded, on the documents alone and without any submissions that his appeal was so lacking in substance or foundation in every single respect, so that the appeal could be dismissed without the necessity even for a hearing of the appeal. It is difficult to square such an outcome with the lengths to which the Regulations go to ensure that the procedure adopted is manifestly fair.
The Reasons for the Board of Inquiry Decision
30 Unlike the decision on naturalisation at issue in Mallak the decision here cannot be described as conferring a privilege. Again unlike Mallak, the decision is subject to a formal appeal process. Accordingly, it might be possible to say that the case is a fortiori the position in Mallak and that reasons are required as a matter of the general law. However, in my view, such a conclusion can be arrived at without recourse to more general propositions, and by an analysis of the Regulations themselves.
31 The procedures and decision of the Board of Inquiry must be placed in their context within the Regulations. A board of inquiry can only be established if under Regulation 25 “it appears from the report of the investigation that the member concerned may have committed a serious breach of discipline”. That report is provided under Regulation 24(5) and is submitted to the Commissioner in written form containing a recommendation on the facts disclosed together with copies of any written statements. Since this is a document to permit the Commissioner to make a decision as to whether or not to establish a Board of Inquiry, it seems to necessarily follow that it must contain some narrative and conclusion as to the facts, as indeed the Regulation 24 report of Superintendent Brunton did in this case. It is described in Regulation 24 as a “written report of the investigation” and, therefore, could not be merely a collation of documentation without any narrative. It is therefore of some significance that when Regulation 25 comes to address the obligations of the Board of Inquiry, it uses the same words and imposes an obligation to provide a ‘report’ to the Commissioner. This suggests that the Regulations envisage a report containing some account of the Board’s reasoning. It would be surprising if the report which is the basis of the disciplinary charges against Garda Kelly could be much more informative than the report concluding that the charges were established.
32 As counsel for the appellant has pointed out, the Board of Inquiry does not conform to the model of the decision maker coming to a dispute with no prior knowledge, which can be encountered in other areas of the law. There is an inquisitorial element to this procedure. It is for the Board of Inquiry to formulate the breaches of discipline alleged and provide particulars thereof, and to provide notice of such allegations to the member concerned. It follows therefore that the Board of Inquiry will have had some degree of prior engagement with the facts, and importantly in the present context, will have made some assessment of their significance. It is also important that while the Board of Inquiry makes a decision in relation to the fact of breach, that decision is not final and may be appealed to the Appeal Board. Furthermore, the Board itself does not impose a sanction, but rather recommends it. It is for the Commissioner to decide, in the light of the Board’s determination of the facts, and recommendation as to penalty, what penalty he or she considers appropriate. Thus, in every case the conclusion of the Board’s inquiry must go to another decision maker (the Commissioner and in some cases the Government) and in many cases will be considered by a third decision maker (the Appeal Board). Thus, when the Regulations impose an obligation on the Board of Inquiry to “submit a written report to the Commissioner” such an obligation must be read in the light that the Regulations themselves contemplate important decisions being made, and possibly reviewed, on foot of that written report. This in itself is suggests that the Regulations contemplated a narrative setting out the views, and therefore the reasons, of the Board.
33 Regulation 30 provides that the report “shall include”, copies of the statements made and documents submitted with the verbatim record of the proceedings required by the Regulations, the determination of the Board as to whether there is a breach of discipline and “if so [the determination] as to the act or conduct constituting the breach”, and the Board’s recommendation as to disciplinary action. In my view, it is not unduly pedantic to point out that the Regulations provide that the report shall include these matters, rather than, as the letter of the Board of Inquiry of the 26th of July 2011 apparently considered, that the report should, comprise, the matters set out in Regulation 30(2) and no more. In other words, the Regulations themselves contemplate most naturally that the report will be something over and above the raw data collected in the course of the inquiry. This might be said to follow from the basis principles of fairness identified so eloquently in Mallak, but it also follows, in my view, from a functional approach to the Regulations. The Commissioner of An Garda Síochána has many other important functions besides making determinations on discipline within the force, and it seems very unlikely that the Regulations would have contemplated that he or she should approach the important task, of determining appropriate sanctions in cases of serious breach of discipline, within the limited timescale provided for, by perusing not just the full witness statements and exhibits, but as in this case the transcripts of five days of hearing, without any narrative indicating the analysis of that material which the Board of Inquiry must have carried out to come to the conclusions it did.
34 By the same token it is relevant to consider the other contemplated recipient of the report of the Board of Inquiry. Regulation 33 contemplates an appeal by the member concerned in the case of a breach of discipline found. It is not necessary here to resolve any question as to the nature of the appeal contemplated. It was argued on behalf of the Commissioner that it was no more than a review akin to judicial review of the proceedings of the Board of Inquiry. On the other hand, counsel for the appellant pointed to the power of the Appeal Board to hear evidence on oath from any party and contended that in an appropriate case there could be a rehearing. But even taking the narrower approach suggested on behalf of the Commissioner, it seems to follow that, if the Appeal Board is to carry out such a function, it must know not just the decision arrived at by the Board of Inquiry but why and how it did so. That must mean more than a simple determination of a breach of discipline and what can be logically deduced therefrom, and should necessarily include the Board’s conclusions in relation to matters of importance raised in this case on behalf of the Garda Kelly, including, the significance of the emergence of Ms McGourty’s statement and the evidence of Mr McNulty, the taxi driver.
35 This conclusion might also be arrived at by an analysis of the language of the Regulation itself. Regulation 33 sets out grounds of appeal. Among those grounds are, subsection (3)(c), that all the relevant facts were not ascertained, were not considered, or were not considered in a reasonable manner, and subsection (3)(e), that the sanction is disproportionate in relation to the breach of discipline concerned. These grounds seem of necessity to contemplate that the relevant facts, and indeed all the relevant facts, will be ascertained by the Board of Inquiry, will be considered and in particular, will be considered in a reasonable manner. It is difficult to see how a mere record of the fact of breach of discipline itself demonstrates that all relevant facts have been ascertained and considered in a reasonable manner. If it is proper to consider the manner in which facts were ascertained and considered and in particular the reasonableness of the consideration, it follows that the Appeal Board must have some method, most obviously in a narrative and reasoned decision, to determine what facts have been ascertained, how they have been considered, and whether indeed such consideration is reasonable. Again, in my view it is at least arguable that a consideration of whether a disciplinary action is disproportionate to the breach of discipline concerned suggests an analysis of something more than the factual conclusion of breach, and implies an assessment of the precise nature and character of the breach found, something that cannot be carried out from a statement of the fact of contravention alone.
36 In my view, therefore, a proper interpretation of the Regulations requires that reasons be given for any determination made by the Board of Inquiry unless it can be said that the issue is so self-evident and narrow that the mere fact of the decision discloses the reason. That cannot be said to be the case here.
Dismissal of Appeal under Regulation 35(2)
37 The Regulations do not define the circumstances in which it will be appropriate to dismiss an appeal under Regulation 35(2) because it was either “frivolous”, “vexatious”, or, as in this case, “without substance or foundation”. Since the decision of the Appeal Board is contained in a single standard form, it does not explain how the Appeal Board understood the test, or indeed the factual circumstances that led it to conclude that the test was satisfied. In the written submissions filed on this appeal on behalf of the Commissioner, no interpretation of the regulation was advanced. The principal ground upon which this aspect of the case was defended was the fact, admittedly of significance, that the High Court judge had himself found that the decision was justified, and that the appeal was without substance or foundation There is undoubtedly a place for the approach that it is often easier to recognise a situation than to analyse it and define it, and I would not lightly discount an experienced judge’s conclusion on issues such as this which is in any event akin to a familiar legal test. However, for a number of reasons I cannot accept that this aspect of the case can be disposed of this simply. First and perhaps most fundamentally, neither the High Court nor this Court is an appeal board empowered under Regulation 35(2). It is just as important here as when upholding a challenged decision that the court should maintain the principle that its function in judicial review is not to substitute its decision for the decision of the body entrusted with that decision by statute. Furthermore, I have already found that the Board of Inquiry was obliged to give reasons for its decision. These reasons were not available to the High Court judge, and I am not prepared to assume that if they were, the High Court judge or this court would inevitably have come to the conclusion that an appeal which involved an analysis of that reasoning, and a consideration of the proportionality of the penalty, was nevertheless doomed to fail. In any event, the High Court judge did not give any consideration to the question of the emergence of the McGourty statement because he considered that its existence had already been disclosed in Superintendent Brunton’s report. Finally, it appears to me that the High Court did not give sufficient consideration to the fact that the test applied by the Board of Appeal was applied on the papers and without any representation from either party, rather than as it was in the High Court after two days of elaborate argument with both sides represented. Accordingly, in my view it is necessary to consider the meaning of the test under Regulation 35(2), its proper application, and the consequences for this case.
38 On the hearing of this appeal counsel for the Commissioner accepted that the test posed by Regulation 35(2) was akin to the jurisdiction exercised by courts under Order 19 Rule 28 to dismiss claims or appeals because they are frivolous, vexatious, or disclose no reasonable cause of action or under the Court’s inherent jurisdiction because they are bound to fail (Barry v Buckley [1981]IR 306), and that accordingly the “without substance or foundation” test was akin to the test of whether or not a case or appeal was “bound to fail”. That is a test applied by the courts and is a salutary jurisdiction but it is one which is approached with some caution. I would also add the caveat that in this case it is important to remember that the jurisdiction is exercised on the papers alone, and without representations made by either party. There is always a greater risk that a point made in the papers may appear much simpler or less meritorious than it truly is, and accordingly, I consider that the jurisdiction under Regulation 35(2) is one which should be exercised with caution. It must be remembered that the end point of the process may be, as it was in this case, the dismissal of a serving garda with all the consequences that entails, financial, psychological, and social for the member and his or her family.
39 At first sight it might be thought that the different grounds in Regulation 35(2) are to be treated disjunctively. I accept that the concept of ‘frivolous’ or ‘vexatious’ claims or appeals may involve a consideration of motive or intent of the claimant or appellant and therefore a somewhat subjective test, (although it possible that proceedings may be frivolous or vexatious without being intended to be so) whereas the concept of ‘without substance or foundation’ appears to require a purely objective analysis. However, I consider that each of the tests must be set in the context of Regulation 35(2) as a whole, and the interpretation of the individual phrase can benefit from the light cast on it by the surrounding words. The wisdom expressed in the Latin expression, noscitur a sociis it that it is possible learn something about a word, like a person, from his or her friends neighbours and associates.
40 I consider that the terms can usefully be approached as describing a category of cases where it is appropriate to dismiss the case or appeal without a formal hearing . While logically the concepts of “frivolous”, “vexatious” and “without substance or foundation” are distinct concepts there is a significant degree of overlap between them. Almost all appeals or claims which are properly described as frivolous or vexatious, can also be said to be without substance or foundation. The addition of the concept of ‘without substance or foundation’ extends the category somewhat, since there can be cases objectively determined to be hopeless but which are nevertheless advanced bona fide and with all seriousness but which on analysis are bound to fail. Nevertheless, in applying the test it is useful to consider the matter cumulatively, recognising the test is to be applied on the papers, and as describing those cases which can be summarily disposed of, without a hearing. It thus appears to me that the test is intended to apply in this context, without any extensive thought or debate or analysis, to cases whose frailty is almost self evident. Indeed, if analysis of any depth is required it might be said that it is not appropriate to dismiss a case on the papers alone without a substantive hearing. A board of appeal which is considering the exercise of its powers under Regulation 35(2) is not asked to predict the likely or even overwhelmingly probable outcome of an appeal. This is all the more so when it is recognised that the issue in an the appeal is not merely the question whether the board was correct to find the individual breaches of discipline, but also whether the particular graded penalty applied was appropriate. In exercising a jurisdiction under Regulation 35(2), the Board of Inquiry is required to come to the conclusion that there are no conceivable circumstances in which it can be envisaged that any board of appeal could contemplate the possibility that it might come to a conclusion in some respects different from that of the Board of Inquiry and the Commissioner. This is a legal test. It is not a particularly complex text, or one which only a lawyer can perform, but it is probably assisted by the recognition encapsulated in the judgment of Megarry J. in John v. Rees [1970] Ch. 345:
“As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.” (at p. 402)
It is entirely possible that the Appeal Board correctly and scrupulously applied this precise test before dismissing the appeal. But, the difficulty in this case, which in my view is fatal, is that neither this Court nor the High Court has any way of knowing that it did so.
41 I consider for reasons essentially similar to those applied to the decision of the Board of Inquiry, that the Appeal Board was also obliged to give reasons for its decision under Regulation 35(2). It is true that there is no appeal from a decision of the Appeal Board, but that only emphasises the fact that this is a terminating decision in every sense of that word. The only possibility for challenging the decision is by way of judicial review, and in my view, it is required that the Appeal Board provide reasons for its decision which has the effect of upholding the dismissal of a garda from the force. I consider that this conclusion follows from an analysis of the Regulations, particularly when approached in the light of the common law principles outlined so clearly in Mallak. Viewed in this way it becomes apparent that it is impossible to accept the simplistic analysis of the Regulations which would derive from the express reference to reasons in Regulation 37(3)the negative conclusion that reasons are not required elsewhere in the code. Indeed, viewed in the light of the structure and function of the regulations, it makes little sense to provide for a requirement on an Appeal Board to give reasons for its decision after a full appeal, unless the scheme also requires the giving of reasons at the earlier stages in the process.
Conclusion
42 Normally a failure to provide reasons where required will lead to the quashing of the unreasoned decision. However no complaint is made about the five day hearing before the Board, and it was not argued that the conclusion of the Board was not open to it on the evidence before it. Furthermore the Applicant made a realistic offer in advance of the High Court hearing suggesting that the Appeal Boards decision could be set aside to permit a full appeal. In this case I consider it to be both wasteful and unhelpful to require a further first instance rehearing of these matters. It is in everyone’s interest, not least that of Garda Kelly and his family, that this matter be brought to a conclusion. The frailties complained of by the Applicant arise from the point when reasons were not given for the Boards decision. If such reasons are now provided the Applicant will be entitled to appeal. Any Appeal Board will have not only the material before the Board of Inquiry and the reasons offered but also the consideration of the matter that has been a product of the judicial review procedure. Accordingly in the particular circumstances of this case, I would quash the decision of the Appeal Board upholding the Commissioner’s decision dismissing the applicant and direct that the Board of Inquiry furnish reasons for its decision, and that the matter should then proceed from that point. I would however give the parties liberty to apply in the event of any practical difficulty.
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