High Court

Church and Murray v Commissioner of Garda Siochana 

1994 No 602P 

18 March 1997 

COSTELLO P: 

The Plaintiffs are members of An Garda Siochana and in 1988 they were both detective gardai serving in the Drugs Squad in Harcourt Street. On 12 September 1988 they carried out a search of premises in Morehampton Road, Donnybrook, known as Sachs Hotel, and also carried out a search in Cabinteely in the home of Miss Brenda Flood, an employee of the proprietor of Sachs Hotel. The search was made pursuant to a warrant which was issued following confidential information which the gardai had obtained from an informant. Mr Smyth, a director of the Company which owns Sachs Hotel, telephoned Garda Church and said he considered that the information which he (Garda Church) had been given was malicious. Mr Smyth asked the garda for the informant's name but this information was refused. 

Later, in August 1991, proceedings were instituted in the High Court by Genport Limited, the Company which owns Sachs Hotel, and by Miss Flood against the Plaintiffs in this action and the State, claiming damages arising from what was claimed was an illegal search. 

In a document entitled "Collator Record" Garda Church, within three days of the search, wrote that the information which he had received may have been given in a deliberate attempt to discredit Miss Flood and her employer. And on 20 September 1988 Mr McNally, Solicitor, with his two clients went to the Central Detective Unit and alleged that the report made to the Plaintiffs was false and asked for the identity of the informant. This request was refused. However, an investigation was then carried out to see whether or not a crime may have been committed by maliciously giving false information to the gardai. During this investigation, which took place later in the year 1988 and into 1989, the Plaintiffs refused to give the name of their informant. Disciplinary proceedings against the Plaintiffs for their refusal were threatened but on 20 October 1989 the Commissioner personally directed that none should be commenced unless he so directed. 

On 26 March 1991, a few days prior to the institution of the proceedings to which I have already referred, Mr McNally wrote to the Commissioner stating that new information was available to show that the information had been given maliciously. Mr McNally wrote again on 16 March 1993 making reference to documents which had been made available on discovery. Following this, a new investigation was authorised on 9 June 1993 with a view to seeing whether or not a criminal offence had been committed. 

By an official circular issued by the Assistant Commissioner, reference 7L/93, dated 7 May 1993 and headed "Intelligence Gathering and Reporting" the Assistant Commissioner dealt expressly with the question of the disclosure of an informant's identity by members of the Force. The circular pointed out that the identity of an informant must not be disclosed save as required by law and added: 

"Even though the identity of an informant must not be disclosed save as required by law, it must be remembered that information in relation to the commission of crime which comes into the possession of a Garda is not his personal property, to be dealt with by him as he will. Consequently, the use of informants and information must never be contrary to legal requirements or the regulations of the Force. In the interests of justice, or of good order and discipline within the Force, it may become necessary that an informant's identity be disclosed. In such case, with the Commissioner's authority, the disclosure will be to a Chief Superintendent nominated by Assistant Commissioner 'C' Branch." 

In the course of the new investigation both Plaintiffs again refused to answer any questions relating to the investigation which they had carried out in September 1988 and in relation to the name of their informant. 

By order of 24 December 1993 the Commissioner required both these Plaintiffs to disclose to Chief Superintendent Reid the identity of the person or persons who had supplied to them information upon which warrants were obtained to search the Hotel and Miss Flood's home. Because this order of the Commissioner is in the centre of this case I should read it in full: 

"I, Patrick J Culligan, Commissioner of An Garda Siochana, hereby direct you to disclose to Chief Superintendent Michael Reid, Crumlin, the identity of the person(s) who supplied to you the information upon which warrants were obtained to search (a) Sachs Hotel, Morehampton Road, Donnybrook, and (b) 3 Sycamore Drive, Cabinteely on 12 September 1988. 

"While this information may have been received by you in good faith, there are circumstances to indicate that it may have been supplied for malicious motives. 

"The Director of Public Prosecutions has been consulted in relation to this matter and has decided that a prosecution for an offence against you should not be instituted. 

"This information is required by me in order to ensure proper direction and control of the Force and, in particular, the proper investigation of alleged public mischief by a person or persons unknown. 

"Failure or refusal by you to supply this information on or before 11 January, 1994 will be considered by me to be of such gravity as to merit seeking your dismissal from the Force pursuant to Regulation 40 of the Garda Siochana (Discipline) Regulations, 1989." 

The Plaintiffs consulted their solicitors. Their solicitors wrote requesting an extension of time to consider the matter, which was granted, and on 25 January they again wrote on behalf of their clients maintaining that the information which their clients had received from an informant must remain privileged from all disclosure unless such disclosure was ordered by the High Court. Objection was taken on behalf of the Plaintiffs to the proposal to operate the summary procedures contained in Regulation 40 and a request was made to revoke the directions which had been given. It was intimated that if this was not done, an application by way of Judicial Review would be brought to quash the order of 24 December 1993. 

Instead of Judicial Review proceedings, proceedings by way of Plenary Summons were instituted on 2 February 1994 and there was brought an application for an interim injunction and then an application for an interlocutory injunction. The Motion for interlocutory relief was treated as the trial of the action and I heard that Motion based upon the affidavit evidence together with evidence which was given orally by both parties supplementing their affidavit evidence. 

The first relief claimed in the proceedings relates to the power of the Commissioner to apply Regulation 40 and to deal with the refusal of the Plaintiffs in a summary manner. The declaration sought is that such a proposal is not permitted by the rules and is ultra vires. The second relief sought is a claim for a declaration that the notice of 24 December 1993 is ultra vires the Defendant's powers conferred under the 1989 Regulations. 

At the hearing I was informed that the Plaintiffs' case was that the direction or order given on 24 December 1993 was ultra vires and illegal because the Commissioner had no legal power to direct the Plaintiffs to disclose the identity of their informant. I was informed that the Plaintiffs would obey the order if I decided as a matter of law that they were wrong in their view. It followed from this submission that the point relating to the proposed operation of Regulation 40 by the Commissioner was now moot. If I decided that the Plaintiffs should obey the order, then they would do so and no disciplinary proceedings of any sort, including the exercise of the powers conferred under Regulation 40, would take place. On the other hand, if I decided that the Plaintiffs were entitled to refuse to disclose the information and that the order of 24 December 1993 was ultra vires as a matter of law, then the Plaintiffs were not acting in breach of discipline and no disciplinary proceedings could be taken against them. 

The issue, therefore, in the case before me was simple and straight- forward. It was not whether the Commissioner would be acting ultra vires if he dismissed the Plaintiffs under Regulation 40; it was whether he acted ultra vires in issuing the order of 24 December 1993. 

I turn, then, to consider this issue. Relevant to the attitude of the Plaintiffs to what occurred in this case is a manual entitled "Crime Investigation Techniques". This manual contained guidelines for the use of members of the Force. It was issued on the authority of the Commissioner in 1979. At page 262 of the manual, dealing with informants and information obtained from informants, it is stated that "to divulge the name of an informant is a breach of faith and in all probability will prevent the obtaining of any information on future occasions. The name of a private informant must never be given in a report and indeed need not be given to a superior. The wish to remain anonymous on the part of anyone who gives information must be respected." 

I am quite satisfied that the Plaintiffs wrongly construed this manual. This manual was a guideline only. It was not a legal textbook and did not purport to interpret the law. Above all, it did not entitle a member of the Force to disobey the orders of a superior or to ignore official circulars. Furthermore, the evidence satisfies me that, notwithstanding the guidelines, in practice and in certain circumstances which demanded that it be done, superior officers did seek the names of informants from gardai and that this information was given. Circular 7L/93 clarified the situation for the benefit of all members of the Force but did not make any material change in what had been the practice theretofore. The 1979 manual did not justify the Plaintiffs in disobeying the orders which they had been asked to comply with and did not entitle them to ignore the provisions of circular 7L/93. 

I turn, then, to the grounds on which as a matter of law it is submitted on the Plaintiffs' behalf that the order of 24 December 1993 was ultra vires the Commissioner's powers. Section 8 of the Police Forces Amalgamation Act 1925 provides: 

"The general direction and control of the amalgamated force shall, subject to regulations made under or continued in force by this Act, be vested in the Commissioner of the amalgamated force." 

It is pursuant to the powers conferred on the Commissioner by Section 8 of the 1925 Act that it is claimed that he had authority to issue the impugned order. 

In answer to this submission, the Plaintiffs make four submissions. Firstly, it is claimed that they are entitled to the benefit of privilege on the grounds of public policy and that the information which they obtained and the name of their informant are protected by what is referred to as privilege. In support of this submission reference was made to two decided cases, Director of Consumer Affairs v Sugar Distributors Ltd [1991] ILRM 395, and Burke v Central Independent Television PLC [1994] (2) IR 61, in which the courts declared that the names of informants were privileged on the grounds of public policy. But this was a statement of the law of evidence relating to privilege from non-disclosure in civil proceedings. The law of evidence has no application when considering whether or not an order of the Commissioner is ultra vires his statutory powers. 

The second submission of the Plaintiffs was that when they obtained the information, that is, in September 1988, they were under no duty to disclose it and that the order of 24 December 1993 could not retrospectively require them to disclose it. I cannot agree with this submission. Firstly, in 1988 the Plaintiffs were required to obey the orders of their superiors and the 1979 manual did not justify them in refusing to obey legitimate orders. Secondly, circular 7L/93 underlined and made clear that the members of An Garda Siochana were required in certain circumstances to give the names of informants, the explanation for so doing being made perfectly clear. So in 1988 and in 1989 the Plaintiffs were required to give the information to their superiors. They were again required to do so on 24 December 1993. The new order which was made on that date was not invalid because it related to events which had occurred some years previously. 

The third point made by the Plaintiffs was based on the grounds of delay. The Plaintiffs had refused to divulge the information sought from them in 1989. Disciplinary proceedings were then threatened but were not instituted. The order of 24 December 1993 was issued four years later and it is claimed that the Commissioner's delay in instituting and making this order disentitled him to issue it. In relation to this point, reliance was placed on McNeill v Commissioner of an Garda Siochana (an unreported decision of the Supreme Court of 30 July 1996). In that case the Plaintiff, a member of An Garda Siochana, successfully challenged the validity of disciplinary proceedings taken against him under the Garda Siochana Disciplinary Regulations on the grounds of delay. As the act which is impugned in this action is not the institution of disciplinary proceedings but the validity of an order of the Commissioner, the decision in McNeill has no relevance to the issues that arise as to whether or not the Commissioner had the power to make the order by virtue of the statute. There was, in fact, no delay in instituting the Commissioner's proposal to operate Regulation 40 in December 1993. These proceedings would have been instituted immediately had the information sought been refused. The Regulation 40 proceedings would have been adopted within weeks of the refusal of the Plaintiffs to obey the order of 24 December 1993. The delay in the new disciplinary proceedings and the consequent order of 24 December 1993 arose because a new investigation based upon new evidence had been instituted. 

The fourth ground on which invalidity is claimed by the Plaintiffs is that they apprehend that their informant would be placed in considerable danger if the informant's name is revealed and that to do so may also have serious consequences for the safety of themselves and their families. Again, I must hold that this is not a ground of invalidity. The Plaintiffs' apprehensions of the consequences of obeying the Commissioner's order do not establish that it is invalid. There are perfectly valid reasons why the information sought is required and why the Plaintiffs were ordered to divulge it: it was required in the public interest for the purpose of investigating a possible crime. There can be no suggestion, nor was any such suggestion made, that the order is invalid on the grounds of irrationality. There is nothing irrational about the order and there is no ground for challenging its validity. I must therefore refuse the relief claimed. 

To avoid any doubt, what I propose to do is to make a declaratory order to the effect that the Commissioner's order of 24 December 1993 was legally valid and that the Plaintiffs are and were required to obey it.