THE HIGH COURT
		1996 No.  397 JR

BETWEEN
GARY BRIAN McAULEY
		APPLICANT
AND
CHIEF SUPERINTENDENT E.T. KEATING, THE COMMISSIONER OF AN GARDA SIOCHANA, IRELAND AND THE ATTORNEY GENERAL

		RESPONDENTS

JUDGMENT of Mr. Justice Kelly delivered the 24th day of April, 1997.

INTRODUCTION
	The Applicant is a student member of An Garda Siochana.  He commenced his training in August 1993.  In December of that year he was informed that disciplinary proceedings would be instituted against him concerning an incident which allegedly took place at Allens Licensed Premises in Templemore on the 13th October, 1993.  During that incident it was alleged that the Applicant indecently exposed his person and assaulted a female trainee.
	The Applicant successfully challenged the disciplinary proceedings which had been instituted against him.  His claim was ultimately decided in the Supreme Court.
	Subsequent to the Supreme Court judgment, the Applicant continued his training at the Garda Siochana College in Templemore.  The Respondents, however, initiated a further inquiry into the incident which had allegedly occurred at Allens Licensed Premises in October 1993.  They were entitled to do so having regard to the judgment of the Supreme Court.
	On the 13th December, 1996 McCracken J. granted the Applicant leave to commence Judicial Review proceedings against the Respondents in respect of this second investigation.  In addition to granting the Applicant leave to apply for both Certiorari and certain declaratory reliefs, McCracken J. also granted an Interlocutory Injunction.  It provides as follows:-

	"It is ordered that the said Respondents, their servants or agents be restrained from taking any further steps against the Applicant in relation to the said incident at Allens Licensed Premises, Templemore on the 13th October, 1993 until the determination of the application for Judicial Review or until further order or until this Injunction shall have lapsed by reason of the Applicant's failure to serve an originating Notice of Motion herein within the proper time".

	In the events which have occurred, the Applicant contends that the Respondents have breached this injunction.  It is said that they have done so because they have prevented the Applicant from being attested and from progressing to Phase IV of his training programme.  In order to understand this complaint it is necessary to examine what is involved in the training of a garda.

THE GARDA TRAINING COURSE
	Since June of 1996 the Applicant has continued his training at the Garda College in Templemore.  The course which he is following is one which has a duration of two years and consists of five separate but integrated phases.  Phases I, III and V are conducted at the Garda Siochana College.  Phases II and IV are conducted at selected training stations throughout the country.
	Phase I is of twenty-two weeks duration divided up into two terms of eleven weeks each.  Eight subjects are studied during the period.  At the end of the first term examinations are held.  Successful students move on to the second term.  Unsuccessful students are required to repeat the first term in its entirety.  At the end of Phase I examinations are held in all subjects.  Students who are successful progress to Phase II.  Unsuccessful students have to repeat the second term of Phase I in its entirety.  Phase II is of twenty-two weeks duration.  It is conducted at a selected training station under the guidance of a training sergeant.  Phase III is of twelve weeks duration.  It is conducted at the Garda College.  Towards the end of Phase III both project work and theoretical studies from Phase II as well as all material studied to date are subject to examination and assessment.  Students who successfully complete Phases II and III are attested to An Garda Siochana and proceed to Phase IV of the course.  Students who are unsuccessful are required to repeat Phase III in its entirety.
	Phase IV, which is of thirty-six weeks duration, is conducted at selected training stations under the direction of training sergeants.  During this phase, for the first time, students experience the use of garda powers, procedures etc. first hand.  Students attend formal classroom sessions for two days per month and follow the assigned course.  They are also required to complete three projects as well as researching, writing up and submitting a dissertation on a police related subject.
	Phase V, which is of six weeks duration, is conducted at the Garda College.  Towards the end of this phase final examinations are held.  Students who are successful on this phase are deemed to have successfully completed the course.  The Garda Certificate awarded to successful students is based on the combined total of Phase III and Phase V assessment/examination results.  Students who are unsuccessful on this phase are required to repeat Phase V in its entirety.

THE APPLICANT'S POSITION
	The Applicant has attained the necessary academic requirements in order to successfully complete Phase III.  He was due to be attested on Wednesday, 2nd April, 1997 and to be assigned to a Garda Station for Phase IV of the training.  However, on the 27th March, 1997 he was notified that he would not be attested nor would he be assigned to a Garda Station due to the fact that the internal investigation had not been concluded.  The Applicant was informed that he would remain in the Garda College and would be assigned to work in the printing room.  All the members of the Applicant's class of fellow students who passed their examinations were duly attested on the 2nd April, 1997. 
	When the Applicant was informed of these matters, he caused his solicitor to write to the Chief State Solicitor complaining that the failure to attest the Applicant was in breach of the Order of McCracken J.  The letter indicated that unless the Respondents confirmed by 11 a.m. on the 2nd April, 1997 that the Applicant would be attested and assigned to a Garda Station, the matter would be brought to the attention of this Court at the earliest possible opportunity and an application would be made for the attachment and committal of the Respondents.
	On the 2nd April, 1997 the Applicant's solicitor's letter was responded to.  The letter of reply made it clear that the first-named Respondent, who is the academic co-ordinator of the Garda College, did not intend to consider attesting the Applicant or assigning him to a Garda Station until the determination of the disciplinary inquiry which is at present stayed by the Order of McCracken J.  Following receipt of that letter, the present motion was brought on the 11th April, 1997 and was heard by me on the 21st April, 1997.
	It is alleged by the Applicant that the refusal on the part of the Respondents to permit him to proceed to Phase IV of his course is by way of a punishment for him instituting these proceedings.  Furthermore, it is common case that the Applicant has been assigned to duties in the printing section of the Garda College.  The Applicant contends that these are menial duties and result in a loss of earnings to him.  Had he proceeded to Phase IV of his training, his salary would increase to a sum of £12,500 per annum, plus allowances.  At present he is being paid £54.78 net per week.
	In the circumstances it is said that the refusal on the part of the first-named Respondent to permit the Applicant to proceed to Phase IV of his training is unfair, arbitrary and is in conflict with the terms of the Order of McCracken J.  It is said that the conduct of the first-named Respondent is "a step" taken against the Applicant in relation to the incident under investigation.
	The Respondents deny that they are in breach of the terms of the Order of McCracken J.  They contend that the move from Phase III to Phase IV is not dependant solely on the academic attainments of a student garda.  They accept that the Applicant here has reached the necessary academic standard to move from Phase III to Phase IV but, they contend, the assessment of his professional development remains incomplete.  They say that it will not be possible to decide on his professional development until the final determination of the investigation into the alleged breach of discipline at Allens Licensed Premises on the 13th October, 1993.  They say they cannot attest the Applicant because of the existence of the alleged breach of discipline by him.  The first-named Respondent says that he must be satisfied that the Applicant has reached the professional standards required to become a member of the Garda before he can attest him to the Force.  That can only be done when all outstanding matters of discipline have been resolved.  They say the allegations which constitute the alleged breach of discipline indicate serious lapses in the professional requirements of the Applicant for progression to Phase IV.  They call my attention to the statement contained in the summary of the academic and professional requirements of the Garda College concerning the purpose of professional assessments carried out on student gardai.  That summary states, insofar as it is relevant:

	"Professional assessments provide detailed information for Garda Management at the critical periods towards the end of Phase III and Phase V when decisions have to be made as to the suitability of a student for attestation to the service or retention therein.  Student/Probationers who are unwilling or unable to meet the professional assessment criteria will be deemed unsuitable for a career in An Garda Siochana".

	The first-named Respondent has asserted upon oath that the appointment regulations require that he, as academic co-ordinator, must be entirely satisfied that the student "has reached the professional standards to become a member of An Garda Siochana" before attestation can take place.  Because of the alleged undetermined breach of discipline against the Applicant, the first-named Respondent is not in a position to affirm the Applicant's attestation.  But the failure to do so, it is said, is not unfair or arbitrary nor does it breach the Order of McCracken J.
	Finally, it is denied that the work being carried out by the Applicant at present is menial.  Whilst he is working in the printing section of the College, his on-going training and development has not been overlooked.  His duties are as follows:   9 a.m. to 3 p.m. attached to the printing section;  3 p.m. to 5 p.m. each day study and updating on new procedures and practices.

THE ORDER OF THE 13th DECEMBER, 1996
	The net issue which I have to decide on this application is whether the refusal on the part of the first-named Respondent to permit the Applicant to proceed to Phase IV of his training constitutes the taking of a further step against him in relation to the incident at Allens Licensed Premises on the 13th October, 1993.  If it is, then it is in breach of the terms of the Order of McCracken J.
	I have come to the conclusion that the Respondents, and in particular the first-named Respondent, are not in breach of the Order of this Court and that the refusal to permit the Applicant to proceed to Phase IV of his training does not constitute a further step being taken against him in relation to the incident under investigation.   I have come to this conclusion for a number of reasons.
	First, it appears to me that the move from Phase III to Phase IV of a student garda's training is a very important one because it is during Phase IV of the course that a student garda experiences for the first time the use of garda powers.  When involved in Phase IV, the student garda operates as a member of the force and is entitled to exercise all of the powers of a garda in relation to his dealings with the public.  It appears to me, therefore, that the regulations quite rightly require that the academic co-ordinator must be entirely satisfied that a student garda has reached the professional standards necessary to become a member of the garda force.  The summary of the academic and professional requirements of the Garda College which have been exhibited before me, make it clear that the professional assessments which are carried out provide detailed information for Garda Management at what are described as the critical periods, i.e. towards the end of Phase III and Phase V when decisions have to be made as to the suitability of a student for attestation to the service or retention therein.  The present position is that the necessary professional assessment cannot be made in respect of the Applicant because there is an alleged, but undetermined, breach of discipline insofar as the Applicant is concerned.  Therefore the first-named Respondent simply is not in a position to make the necessary assessment so as to decide whether or not the Applicant should be attested to the force.  The refusal to permit the Applicant to proceed to Phase IV is not, therefore, a further step being taken against the Applicant but merely an inability on the part of the first-named Respondent to carry out the necessary assessment which must be done before the Applicant can be attested to the force.
	Secondly, I am of the view that the Order of McCracken J., like all prohibitory injunctions, had as its object the maintenance of the status quo pending the determination of this Judicial Review.  Such being the case, it appears to me that what was intended by that Order was the prohibition of any further steps, procedural or otherwise, of a disciplinary nature being taken against the Applicant arising from the incident under investigation.  What has happened in the present case is not disciplinary.  It is merely an inability on the part of the first-named Respondent to allow progression to Phase IV for the reasons already outlined.
	Thirdly, if I were to accede to the Applicant's argument, I would be in effect granting a mandatory order against the Respondents compelling them to allow the Applicant to proceed to Phase IV, notwithstanding their inability to be satisfied that he has reached the necessary professional standards to be attested to the force.  That, in my view, would be a very serious interference by this Court with the duties and obligations of the first and second-named Respondents who are charged with responsibility for the proper management and functioning of the gardaí.  The decision as to the suitability of a student garda to be attested to the force and permitted to exercise the serious and far-reaching powers of a garda is not one for this Court.  It is a matter for the garda authorities and this Court will only intervene in circumstances where such a decision is tainted by illegality.  In my view, the Order of the 13th December, 1996 was not intended to nor can it be construed as having a mandatory effect which would effectively over-ride the appointment regulations and the obligations imposed by them upon the first-named Respondent.
	Finally, insofar as the Applicant contends that he is prejudiced by what has occurred, I am quite satisfied that any financial loss which he is sustaining by not having his salary increased to that of a student garda at Phase IV of his training can be recompensed in an award of damages should he be successful in this Judicial Review.
	In these circumstances the relief sought by the Applicant is refused.