H486
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Galvin -v- Commissioner of an Garda Siochana & Ors [2011] IEHC 486 (20 December 2011) URL: https://www.bailii.org/ie/cases/IEHC/2011/H486.html Cite as: [2011] IEHC 486 |
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Judgment Title: Galvin -v- Commissioner of an Garda Siochana & Ors Composition of Court: Judgment by: Hedigan J. Status of Judgment: Approved |
Neutral Citation Number: [2011] IEHC 486 THE HIGH COURT JUDICIAL REVIEW 2010 1234 JR BETWEEN KEVIN GALVIN APPLICANT AND
THE COMMISSIONER OF AN GARDA SIOCHANA THE MINISTER FOR JUSTICE, EQUALITY AND LAW REFORM, THE GOVERNMENT OF IRELAND IRELAND AND THE ATTORNEY GENERAL RESPONDENTS Judgment of Mr. Justice Hedigan delivered the 20th day of December 2011. 1. The applicant resides at 81A Furry Park Road, Clontarf, Dublin 3. The first named respondent is the person who enjoys general direction and control of An Garda Síochána, and has his principal offices at Garda Headquarters, Phoenix Park, Dublin 7. The second named respondent is a Minister of the Government and has his principal offices at the Department of Justice, Equality and Law Reform, 72-76 St. Stephen’s Green, Dublin 2. The third named respondent is the Irish Government. The fourth named respondent is sued as legal representative of the first second and third named respondents. 2. The applicant seeks the following reliefs:-
(ii) In the alternative a declaration that the applicant’s purported dismissal from An Garda Síochána is null, void and of no effect. (iii) An order of mandamus reinstating the applicant from the date of purported dismissal. (iv) Damages. (v) If necessary, an order granting an extension of time for the making of this application. (vi) Such further and other relief as seems fit. (vii) An order providing for the costs of the proceedings herein. Background Facts 3.2 As a result of a number of matters relating to the conduct of the applicant, the Garda Commissioner formed the view that his continued membership in the force would undermine public confidence in An Garda Síochána and that dismissal was necessary in order to maintain that confidence. The Commissioner’s opinion in this regard was conveyed to the applicant by way of a letter dated the 14th January, 2010. The letter set out nineteen grounds upon which the Commissioner’s opinion was based. The nineteen findings relied upon by the Commissioner can be categorised as follows:-
(ii) One finding under the Garda Síochána (Discipline) Regulations that the applicant had engaged in corrupt practice, (iii) One finding under the Garda Síochána (Discipline) Regulations of discreditable conduct on the part of the applicant, (iv) Ten convictions in the District Courts relating to a number of properties owned by the applicant, and (v) One case in the District Courts regarding a similar matter which was taken into consideration.
3.3 The applicant was invited to respond to this letter or make any representations which he wished to make by the 9th February, 2010. The applicant acknowledged receipt of this above letter on the 18th January, 2010. By letter dated the 5th February, 2010 the applicant’s solicitors sought an extension of time to enable them to obtain Counsel’s advices in respect of the matter. By letter dated the 8th February, 2010 the Commissioner acceded to this request and extended the timeline to midnight on 23rd February, 2010. Under cover of letter dated 23rd February, 2010 the applicant made an extensive written submission, he stated that:-
The Commissioner, accordingly, has decided to proceed with his decision to seek the requisite consent of the Government to dismiss your client in accordance with the provisions of Section 14 of the Garda Síochána Act, 2005.” 3.5 The Government consented to the Commissioner’s decision on 28th May, 2010. The decision was conveyed to the applicant by way of a letter dated 10th June, 2010. The letter explained that the consent of the Government had been obtained and he was notified of his dismissal with effect from midnight on 16th June, 2010. By signature dated 11th June, 2010 the applicant acknowledged receipt of the above letter. By letter dated the 15th June, 2010 the applicant’s solicitors wrote and stated that:-
Applicant’s Submissions 4.2 Article 40 paragraph 1 of the Garda Síochána (Discipline) Regulations, 1989 allows for the dismissal of a garda in certain circumstances. Those regulations appear to have provided the only basis for dismissal until the commencement of the Garda Síochána Act, 2005 in March, 2006. If the Commissioner wished to dismiss the applicant based on matters pre-dating the passage of the Act as well as matters post-dating the passage of the Act, the only jurisdiction to do so, would have come from Article 40 of the 1989 Regulations. That Article was not cited as providing a basis or partial basis for the dismissal. The power to dismiss was more constrained under the 1989 Regulations than the 2005 Act. 4.3 It is submitted that because the applicant had already been disciplined for at least eight of the alleged breaches of good conduct which formed the basis for the dismissal he had a legitimate expectation that he would not face further discipline. In McGrath v Commissioner of An Garda Síochána [1991] 1 IR 69 a member of An Garda Síochána successfully prevented an investigation into disciplinary allegations of corrupt practice and corrupt or improper practice on the basis that he had been previously acquitted following a jury trial in relation to the same facts. The Supreme Court held (from the headnote):-
4.4 The applicant submits that the decision of the Commissioner was made in breach of natural and Constitutional Justice in that not all of the evidence before the decision-maker(s) was disclosed to him. The applicant was presented with the charges on 14th January, 2010 and given an opportunity to respond to the charges by the first named respondent which opportunity he availed of. However the first respondent took the decision to forward his recommendation for dismissal to the Government on 14th April, 2010 without first informing the applicant. This recommendation contained further evidence about the applicant’s character and negative comment on his original submissions. The applicant only became aware that this further evidence was put to the ultimate decision maker after the institution of these proceedings. He was never given an opportunity to counter the additional evidence which included:-
(b) A report dated 27th July, 2009 by a Superintendent Paul Moran of the events at Dublin District Court on that day (c) A letter from Desmond Byrne, Chairperson of a resident’s association dated 5th February, 2009. 4.5 In Kiely v. Minister for Social Welfare [1971] IR 21 Kenny J. held (from the headnote) that:-
4.6 It is submitted that although an initial opportunity to challenge the evidence was provided, the decision to deploy additional evidence and additional argument to “bolster” the case before it went to the Government in circumstances where the applicant was unaware of that evidence or argument is a breach of constitutional justice. The unfairness visited upon the applicant by the failure to disclose evidence to him is further exacerbated by the fact that the new evidence contained hearsay which the applicant was unable to challenge as he was unaware of it. In this regard the applicant refers to an extract from Administrative Law in Ireland (Hogan and Morgan) at 658:-
Respondents’ Submissions 5.2 It is submitted that the applicant is not entitled to relief by reason of his material non-disclosure when seeking leave. The applicant omitted to exhibit or to refer to several material items of correspondence in the process that led up to his dismissal. The omission of so many key items cannot be dismissed as an oversight or a mistake and indeed the applicant does not suggest that it was. In paragraph E (3) of the Statement of Grounds it is stated that:-
5.3 The failure to exhibit or to refer to any of the above correspondence meant not only that the Court was unaware of its existence and content but also meant that the Court was given a wholly misleading sense of the nature of the process and of the various opportunities the applicant had to raise issues such as an oral hearing if he had wished to do so. The omission also meant that the Court was unaware that the applicant was fully legally advised throughout the process and so was in a position to raise any procedural requests or objections. It is further submitted that the applicant is not entitled to relief by reason of his acquiescence. At no stage during the process did he indicate that he had any further submissions to make or request that an oral hearing take place. Instead the applicant fully engaged with the process to the extent of trying to negotiate a six month deferral of any dismissal and it was only three months after he was informed of an adverse decision that he raised the within complaints by means of judicial review proceedings. 5.4 The respondents submit that for reasons such as delay, non-disclosure and acquiescence the applicant’s judicial review never gets out of the starting blocks. Moreover on the merits of the applicant’s complaints, it is submitted that they are of no substance. The applicant claims that a number of matters which the respondent sought to rely on in dismissing the applicant pre-date the coming into operation of section 14 of the Garda Síochána Act, 2005. It is submitted that the Commissioner of An Garda Síochána is therefore seeking to give retrospective application to an Act which has penal effect. The position of the respondents is that the first named respondent is entitled to take into account conduct that pre-dates the commencement of Section 14(2) of the Garda Síochána Act 2005. It is submitted that when one looks at Section 14 it is focused on someone who is unfit to be in the force as of the date when the decision to dismiss him is made. However there is nothing to limit the basis on which that decision is made to events which post-date the commencement of the section. Such an interpretation of the section would be absurd since the only way in which you can judge someone’s fitness to be in the force as of today is to look at their record. The absurdity of any other interpretation becomes clear when one asks whether or not a member would be entitled to point to their prior good conduct (i.e. prior to the commencement of the Act) when seeking to persuade the Commissioner that their continued presence in the force does not undermine public confidence in it. The whole concept of public confidence is clearly one that is based on a person’s historical as well as their recent conduct. Regulation 4(c) provides that the member shall be given an opportunity to make submissions in this regard, and that has occurred with respect to his 2005 convictions. Thus, at its very highest, the applicant’s case on retrospectivity is an empty and technical one, incapable of improving his position in any way. This provides a strong reason for exercising the Court’s discretion against granting judicial review. 5.5 The applicant complains that he has already been disciplined for many of the matters that were taken into account by the Commissioner when deciding that he should be dismissed. The key issue here is that the applicant has not challenged the Constitutionality of Section 14. If it is the case that the Commissioner has correctly interpreted the section as permitting him to take a person’s entire disciplinary and criminal record into account when deciding whether that person should remain in the force then that is the end of the matter since there is no challenge to the validity of the section. The idea that punishment for an instance of wrongdoing means that the same incident can never be taken into account again is entirely unrealistic. Even in sentencing on criminal charges, prior convictions and sentences can constitute an aggravating factor justifying a more severe sentence on a subsequent occasion. Any employer must be free to have regard to a cumulative pattern of misconduct. In Registrar of Companies v Anderson and Another [2005] 1 IR 21 Murray CJ held at 21:-
5.6 The applicant submits that his prior punishments meant that he had a legitimate expectation that he would not be subjected to further punishment. It is manifest that the test for existence of a legitimate expectation is not made out on the facts of this case. It is unclear how the applicant could have reasonably believed that if he continued to accumulate disciplinary findings then no time would ever come when the Commissioner would decide that his cumulative conduct meant that his continued presence in the force would undermine public confidence in it. Nor does the applicant explain how he relied or acted on foot of such an alleged expectation. There simply was no promise or representation, express or implied to the effect that a Garda would not be dismissed once he/she had already been disciplined. 5.7 Judicial review is a discretionary remedy. In Judicial Review, (2nd ed) at p. 421 De Blacam speaking about certiorari notes that:-
Decision of the Court 6.2 At the outset I propose to consider the preliminary objections to the applicant’s judicial review. The first of the preliminary objections concerns delay on the part of the applicant in seeking leave to review the decision of the first named respondent. The decision in question was communicated to the applicant on the 10th June, 2010. The applicant sought and obtained leave to bring the within proceedings on the 16th September, 2010 over three months later. The outer time limit for certiorari is six months. But the rule also requires the application should be made promptly. In this context in De Roiste v Minister for Defence [2001] 1 IR 190 McCracken J held that the primary provision is that an application for judicial review must be made promptly and it is only a secondary requirement that, in any event, the application must be made within the stated time depending on the nature of the application. Similarly in Dekra v Minister for the Environment and Local Government, Fennelly J. noted that:-
6.3 The second of the preliminary objections concerns non disclosure on the part of the applicant when he sought leave. The applicant failed to exhibit several material items of correspondence in the process that led up to his dismissal. On the 14th January, 2010 the Garda Commissioner informed the applicant of his decision to dismiss him and invited the applicant to submit a response. By letter dated the 5th February, 2010 the applicant’s solicitors sought an extension of time to put in a replying submissions. This letter was not exhibited and no explanation for the non disclosure of this letter is offered. By letter dated 23rd February, 2010 the applicant offered to commence a six month probationary period at the end of which he would accept dismissal if still unsatisfactory. The applicant’s explanation for not bringing this letter to the attention of the Court when seeking leave is that the letter in question was designated “private and confidential”. By letter dated 5th March, 2010 the Commissioner rejected this proposal. No explanation for the non disclosure of this letter is offered. In his statement of grounds the applicant claimed that the first respondent failed to warn the applicant that he had taken the decision to refer the matter to the Government. The applicant was notified of this on the 19th April, 2010, again the applicant failed to exhibit this letter when seeking leave. The applicant fails to properly explain why this letter was not disclosed, he merely states that the letter is undated (when in fact it is dated) and says that it “appears” to have been sent to his then solicitors. He does not explain whether or not he is suggesting that his then solicitors did not act on the letter or pass it on to him. By letter dated 15th June 2010 the applicant’s solicitors wrote and asked for the decision to dismiss him to be deferred until he had consulted with counsel. The non disclosure of this letter is also not explained. By reply dated 16th June 2010 the Commissioner indicated that he was not willing to alter his decision. No explanation for the non disclosure of this letter is offered. It is clear to me that the failure to exhibit this correspondence meant that the Court was given a misleading sense of the process being challenged. I find the reasons proffered in explanation for this non disclosure to be devoid of merit. When seeking leave for judicial review an applicant must act uberrima fides. It is not open to an applicant to deprive the court of the opportunity to consider key items of correspondence. It seems to me that there has been material non-disclosure by the applicant when he applied for leave. 6.4 The third preliminary objection raised by the respondents, concerns acquiescence on the part of the applicant. Active participation in a hearing has long been held to be sufficient to deprive an applicant of the right to complain about it subsequently. In Hayes v. Financial Services Ombudsman (Unreported, High Court, 3rd November 2008), MacMenamin J stated at paragraph 40 that:-
6.5 Individually and cumulatively the above findings are dispositive of this case. However I think I should express a view on the merits of the case. The applicant complains that the recommendation for dismissal sent to the Government contained negative comment about the applicant which he only became aware of after the institution of these proceedings and which he was therefore unable to counter. This additional evidence included:-
(b) A report dated 27th July, 2009 by a Superintendent Paul Moran of the events at Dublin District Court on that day (c) A letter from Desmond Byrne, Chairperson of a resident’s association dated 5th February, 2009. 6.6 It is not for this Court to say what amounts to conduct sufficient to warrant dismissal on the basis that retention would undermine public confidence in the force. This is a matter for the Garda Commissioner and the Government on consent. In the circumstances however, it appears that there are ample grounds upon which it was reasonable to conclude that a person who, in addition to a number of disciplinary offences, has ten District Court convictions is not an appropriate person to serve in An Garda Síochána. It seems to me that the decision of the Commissioner was eminently reasonable. Furthermore I consider that in the context of determining whether the Court should exercise its discretion to quash and order mandamus, it must take account of the fact that since his dismissal, the applicant has been jailed by the President of the High Court for what he described as “a most serious contempt” arising out of the very District Court proceedings that formed a part of the reasons for the Commissioners action herein. Taking this into account, even were the applicant to have surmounted the preliminary objections herein and even had he proved his entitlement to relief on the merits herein, I would have refused to exercise the court’s discretion in his favour. I refuse the relief sought in this application.
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