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Flood v. Garda Siochana Complaints Board [1999] IESC 56; [1999] 4 IR 560 (19th July, 1999)
Barrington
J.
Keane
J.
Murphy
J.
Barron
J.
401/97
THE
SUPREME COURT
BETWEEN!
PHILIP
FLOOD
Appellant/Applicant
and
THE
GARDA SÍOCHÁNA COMPLAINTS BOARD
Respondent/Respondent
and
PATRICK
WALSH
Notice
Party
JUDGMENT
delivered on the 19th day of July 1999 by BARRON J. [Nem. Diss.]
(2)
The
facts
giving
rise to these proceedings are set out in the judgment of the learned trial
judge under the heading “The Applicant’s Allegations”. In
essence the applicant alleged that he had been assaulted by the notice party
for no reason whatsoever; had been handcuffed and brought to Kevin Street Garda
Station. There he had been examined by a doctor to whom he showed injuries
involving some cuts and bruises. He was later released without charge. On his
release, he attended the casualty department of the Meath Hospital.
1. On
the following day the 11th December 1992 the applicant made a complaint to the
respondent
(“the
Board”)
pursuant
to the provisions of the Garda Síochána (Complaints) Act, 1986
(“the
Act”).
For
a complaint to be admissible, it must comply with the conditions set out in s.
4(3) which are as follows:
“(i)
the
complainant was a member of the public,
(3)
(ii) the
complainant was directly affected by or witnessed the conduct alleged in the
complaint,
(iii) the
said conduct would constitute an offence or be conduct specified in the Fourth
Schedule to this Act,
(iv) the
date on which the said conduct was alleged to have occurred was on or after the
establishment day and within six months before the date on which the complaint
was made,
(v) the
application of this Act to the said conduct did not, by virtue of section 15 of
this Act, stand excluded on the date on which the complaint was made, and
(vi)
the complaint is not frivolous or vexatious.”
2. In
the first instance the Chief Executive of the Board
(“the
Chief Executive”) determines
whether
a complaint is admissible. If he does, or exceptionally where he does not and
the Board does, the matter is referred to the Commissioner of An Garda
Síochána
(“the
Commissioner”).
Unless
the Commissioner is of the opinion that the matter can be resolved informally,
he appoints an investigating officer to investigate. In the
(4)
instant
case, the Chief Executive found the complaint to be admissible and an
investigating officer was appointed by the Commissioner. By a letter dated the
26th April 1993 the solicitor for the applicant was informed that this stage
had been reached.
3. Meanwhile
on the 9th February, 1993, a summons had been sought by the notice party
against the applicant to answer a charge that he did on the 10th day of
December 1992 at Portobello Bridge, a public place in the Dublin Metropolitan
District, use threatening or abusing or insulting words or behaviour with
intent to provoke a breach of the peace whereby a breach of the peace might be
occasioned contrary to s. 14(13) of the Dublin Police Act, 1842. The summons
was returnable for the 9th June, 1993, and on that date was adjourned to the
2nd December 1993. On the latter date the notice party was refused an
adjournment and the summons was struck out. Such proceedings were not
subsequently reinstituted.
(5)
4. While
the proceedings were in being the applicant, on the advice of his solicitor,
refused to make any statement to the investigating officer. Once the
proceedings had been struck out the applicant agreed to make such a statement
and did so setting out the facts of his complaint to the investigating officer
on the 18th January, 1994.
5. The
applicant heard no more until his solicitor received a letter dated the 1st
June, 1994, from the Chief Executive which was as follows:
“Dear
Sir
I
refer to previous correspondence concerning the complaint which you made under
the Garda Síochána (Complaints) Act, 1986.
The
report of the investigating officer appointed to investigate the complaint and
the relevant comments and recommendations of the Chief Executive have been
considered carefully by the Board. Being satisfied that the complaint was
admissible, and that the conduct complained of might constitute a criminal
offence on the part of any member, the Board referred the matter
(6)
to
the Director of Public Prosecutions. The Director has now informed us that
there will be no prosecution.
The
Board is satisfied that the matter has been thoroughly investigated and is of
opinion that neither an offence nor a breach of discipline on the part of any
member has been disclosed. Accordingly, the Board will take no further action
in the matter.
Yours
sincerely”
6. The
solicitor for the applicant replied by letter dated the 4th July, 1994, as
follows:
“Dear
Sir
I
refer to your letter of the 1st of June 1994.
I
have considered the contents carefully and there is one aspect of the letter
that puzzles me. In paragraph 2 of your letter, it is stated that the
Board’s opinion is that a crime may have been committed by a garda and
yet, paragraph 3, the opinion of the Board is stated to be that no crime or
disciplinary breach has occurred. I find it difficult to envisage the process
which might lead to both opinions being held by the Board.
(7)
Furthermore,
my client was not informed that the Board was to meet to consider his complaint
and consequently has had no opportunity to address the issues before the Board
or to consider the material laid before the Board. Neither has he had an
opportunity to see and consider the report of Inspector McLaughlin or the
comments and recommendations of yourself to the Board, nor is he aware of, and
therefore unable to comment upon the totality of the evidence proffered to the
Board in their consideration of the matter.
I
will therefore be obliged if you would forward copies of all the material upon
which the Board deliberated, (including the medical reports made available by
the hospital and by the garda doctor who attended my client in the Garda
Station). Finally, please furnish details of the material forwarded to the
D.P.P. and a copy of his decision.
I
look forward to hearing from you.
Yours
faithfully”
7. As
can be seen from the contents of this letter, the applicant was claiming a
right to know what was contained in the investigating officer’s
(8)
report,
and to make representations to the Board before it acted upon that report. His
solicitor received a reply from the Board dated the 21st August, 1994, which
was as follows:
“Dear
Sir
I
refer to your letter of 4th July 1994 in connection with the complaint of the
above under the Garda Síochána (Complaints) Act, 1986.
The
decision of the Board in relation to your client’s complaint was arrived
at pursuant to section 7 of the Act. Subsection (1) of the section requires
that where an admissible complaint alleged conduct which in the opinion of the
Board may constitute an offence, the matter should be referred to the Director
of Public Prosecutions. This requirement relates to the nature of the conduct
alleged, and obliges the Board to make the referral in all cases, even though
the Board may in some such cases be of opinion that the investigating
officer’s report does not bear out the allegation. Your letter
paraphrases incorrectly the terms of the Board’s letter of 1st June.
(9)
The
Board treats as confidential the reports of investigations conducted under the
Act and any statements or other reports or correspondence gathered in
connection with such reports.
Accordingly,
I am unable to provide you with the material sought in your letter.
Yours
sincerely”
8. On
the 6th February, 1995, the applicant was given leave to seek judicial review
for the purpose of quashing the Board’s decision to take no further
action as communicated to his solicitor by letter dated the 1st June, 1994,
upon the following grounds:
“(i) Failure
by the respondent to provide the applicant with an opportunity to consider the
evidence or material to be laid before the respondent prior to the respondent
considering the complaint.
(ii) Failure
by the respondent to notify the applicant that the respondent was about to
enter upon a determination of his complaint and to afford
(10)
the
applicant an opportunity to be heard in relation to the evidence or material
before the respondent.
(iii) That
the respondent acted ultra vires in wrongfully allowing the said decision of
the Director of Public Prosecutions to influence it in deciding to take no
further action in the matter of the applicant’s complaint.
(iv) That
the respondent acted ultra vires in changing its original opinion that the
conduct complained of might constitute a criminal offence on the part of any
member of An Garda Síochána to an opinion that neither an offence
nor a breach of discipline on the part of any member of An Garda
Síochána had been disclosed.
(v) Failure
by the respondent to refer the matter of the applicant’s complaint to a
tribunal established under section 8 of the Garda Síochána
(Complaints) Act, 1986.
(11)
(vi)
Failure by the respondent to give reasons for its decisions.
(vii) Failure
by the respondent to ensure that the applicant’s complaint was dealt with
in accordance with natural and constitutional justice and fair procedures.”
9. When
the matter came on for hearing the relief sought was refused. The matter now
comes before this Court by way of appeal from such refusal.
10. The
grounds upon which relief was sought and which was submitted on behalf of the
applicant on his appeal to this Court were:
(1) That
the Applicant should have been allowed to make representations before the Board
before it formed its opinion;
(2) that
the applicant should have received from the Board the materials upon which it
based such opinion;
(12)
(3) that
the Board ought to have furnished the applicant with its reasons for forming
such opinion; and
(4) the
Board had failed to consider the matter afresh after the decision of the
Director of Public Prosecution not to prosecute.
11. While
the letter of the 1st June might suggest that the decision to take no further
action was taken after the decision of the Director of Public Prosecutions not
to prosecute, the affidavits filed on behalf of the Board show that this
decision was made at the same time as the decision to refer the matter to the
Director of Public Prosecutions.
12. The
submissions on behalf of the applicant must be considered in the context of the
relevant provisions of the Act.
13. S.6
deals with the investigation of complaints. Although it is to be carried out by
an investigating officer appointed by the Commissioner, the Board may supervise
and may also require the Chief Executive to
(13)
investigate.
However, where an offence is alleged, the Board may not supervise without the
consent of the Director of Public Prosecutions and when the Chief Executive is
required to investigate he must consult with the Director of Public
Prosecutions as to how to do so. In addition, it is provided by s. 6(1)(b) that
“where
it appears to an investigating officer that the conduct alleged in a complaint
may constitute an offence, the law and practice applicable to the investigating
of offences shall
...
apply
in relation to the investigation.”
This
latter provision is in turn subject to the provisions of s. 4(6) of the Act
which provides that where a complaint has been made under the provisions of the
Act the member concerned shall not be charged with an offence relating to the
conduct alleged except with the consent of the Director of Public Prosecutions.
14. S.7
provides for the actions which may be taken by the Board. The relevant
provisions of s. 7 are as follows:
(14)
“(1)
If after consideration of-
(a) a
report or reports of an investigating officer submitted to the Board under
section 6 of this Act and the relevant comments and recommendation of the chief
executive so submitted to the Board, the Board is of opinion that the complaint
concerned is admissible and that the conduct alleged in the complaint may
constitute an offence committed by the member concerned, it shall refer the
matter to the Director of Public Prosecutions.
(2) If
after consideration of such a report or reports of an investigation as
aforesaid and (where appropriate) of such comments and recommendation as
aforesaid, the Board is of opinion that the matter is not one to which
subsection (1) of this section applies, the Board shall, subject to section
6(6) of this Act, deal with the matter in accordance with the subsequent
provisions of this section.
(3) If
the Board is of opinion that neither an offence nor a breach of discipline on
the part of the member concerned is disclosed or that the complaint is
otherwise not admissible, it shall, as soon as may be, notify the Commissioner,
the complainant and the
(15)
member
concerned of its opinion and shall take no further action in the matter.
(4)(a) Subject
to subsection (7) of this section, if the Board is of opinion that a breach of
discipline on the part of the member concerned may be disclosed but that any
such breach is of a minor nature appropriate to be dealt with informally by the
Commissioner by way of advice, admonition or warning, it shall refer the matter
to the Commissioner.
(5) Subject
to subsection (7) of this section, if the Board is of opinion that a breach of
discipline on the part of the member concerned (other than a breach referred to
in subsection (4) of this section) may be disclosed, it shall refer the matter
to a tribunal.
(7)(a) Where
a member has been convicted or acquitted of an offence, a breach of discipline
shall not be referred to the Commissioner or a tribunal if the breach is in
substance the same as the offence for which he has been convicted or acquitted.
(b)
(i)
Paragraph
(a) of this subsection shall not be construed as applying in relation to a
breach of discipline which
(16)
consists
of conduct constituting an offence in respect of which there has been a
conviction by a court.
(8) Subject
to section 6(6) of this Act, whether the Director of Public Prosecutions has
decided whether proceedings for an offence should or should not be instituted
in respect of a complaint referred to him under subsection (1) of this section,
the Board may either, if it thinks it proper to do so, deal with the matter
under subsection (4) or (5) of this section or decide to take no further action
in the matter.”
15. S.
6(6)(a) is as follows:
“Where
civil proceedings or criminal proceedings are instituted and have not been
finally determined and the Board considers that in those proceedings it is
likely that the court will determine an issue relevant to or concerning the
conduct alleged in a complaint, the Board may postpone the taking of any action
or further action under this Act in relation to the complaint until the civil
proceedings or criminal proceedings, as the case may be, have been finally
determined.”
(17)
16. Save
for the last one, the grounds upon which relief is sought deal with the issue
of fair procedures. The last ground deals with the nature of the function of
the Board following upon the investigation of a complaint pursuant to the
provisions of s. 6 of the Act.
17. A
consideration of s. 7 makes it clear that the function of the Board is to
ensure that there is a case to be met. It decides nothing else. If there is no
case to be met, the Board is not required to take any further action: s. 7(3).
If the Board forms the view that there is a case to be met as regards a breach
of discipline, it refers the matter for determination in accordance with the
provisions of s. 7(4) or s. 7(5).
18. The
Board has no power to refer a matter for determination in the case of an
offence whatever its views. It must refer the matter to the Director of Public
Prosecutions: s. 7(1). It may be that this provision applies equally only to
offences in respect of which the Board considers
(18)
that
there is
a
prima facie
case
to answer; a construction which may well be supported by the use of the words
“may
constitute an offence”
used
in the subsection.
19. There
is, however, no need to decide such an issue. The matter was referred to the
Director of Public Prosecutions. There is nothing in the section to suggest
that the opinion of the Board can be in any way altered by the decision of the
Director whether to prosecute or not. In this case, the Director decided not to
prosecute. The Board, having already decided that there was no case to meet in
relation to breach of discipline, was entitled to take no further action: s.
7(8).
20. Undoubtedly,
s. 7 is difficult to construe. The Oireachtas might well consider whether it
should be necessary for the Board, when the complaint alleges a criminal
offence to refer it to the Director of Public Prosecutions not only when the
Board, after investigation in accordance
(19)
with
the law and practice applicable to the investigation of offences, considers
there is a case to answer, but in all cases.
21. There
remains for consideration the right of the applicant to fair procedures. In
essence, he alleges a breach of natural justice and a breach of the principles
of fair procedures in the failure by the Board to put him in the picture and
allow him to make representations following the report of the investigating
officer and the comments and recommendation of the Chief Executive.
22. The
right to know the case you have to meet and the right to have time to prepare
an answer and an opportunity to present that answer applies to a person who
stands accused or to a person in respect of whom a tribunal has to act
judicially or quasi judicially. That is not the case here. The Board is forming
an opinion as to whether an investigation should proceed to a further stage.
(20)
23. The
Board has the statutory power to form an opinion. As with all statutory powers,
it cannot be unfettered, it must be exercised in accordance with fair
procedures. This means that the opinion must be reached
bona
fide,
be
factually sustainable and not be unreasonable. See the judgment of
O’Higgins C.J. in
The
State (Lynch) v. Cooney,
[1982] IR 337 at p. 361. In the instant case, the affidavit sworn by the Chief
Executive on behalf of the Board avers to the fact that
“other
accounts given to the investigating officer of the events described... differ
markedly from the account given by the complainant.”
24. It
is submitted on behalf of the Board that its opinion should not be open to
review in the same way as a decision by the Director of Public Prosecutions not
to prosecute is not open to review save in the case of
mala
fides
or
an inappropriate practice. The situation is not entirely identical nor is the
public interest the same. There are sound public interest
(21)
reasons
for the restricted basis of review of such decisions by the Director of Public
Prosecutions. In the case of the Board, the public interest is to ensure that
complaints against members of An Garda Síochána will be
investigated and ruled upon fairly and impartially. To that end, the Act sets
up appropriate procedures. There is nothing in the evidence to suggest that
these procedures have not been followed. Judicial review is not a rehearing.
Its function is to see that the procedures by which any opinion or decision was
reached were fair and where prescribed that they were followed. Insofar as the
principles in
The
State (Lynch) v. Cooney
are
applicable, there is no suggestion that the Board did not act
bona
fide.
It
has averred that there was a conflict of fact. A decision that no further
action should be taken is sustainable in such circumstances and not
unreasonable. It is submitted that the failure to charge the applicant on
(22)
the
evening of his arrest nor to pursue the charge in Court showed that the
decision to take no further action was unreasonable. I cannot agree.
25. There
remains the issue as to whether or not the Board should have given any further
reasons for its decision to the complainant. The reason which it gave is
sufficient. It is not a case where the principles of natural justice apply.
Equally, so far as the principles in
The
State (Lynch) v. Cooney
apply,
they have been fulfilled.
26. I
would dismiss the appeal herein.
© 1999 Irish Supreme Court
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