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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> McCormack v. Garda Siochana Complaints Board [1997] IEHC 200; [1997] 2 IR 489; [1997] 2 ILRM 321 (28th January, 1997)
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Cite as: [1997] IEHC 200, [1997] 2 IR 489, [1997] 2 ILRM 321

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McCormack v. Garda Siochana Complaints Board [1997] IEHC 200; [1997] 2 IR 489; [1997] 2 ILRM 321 (28th January, 1997)

High Court

McCormack v Garda Siochana Complaints Board and Commissioner of An Garda Siochana

1995 No 338 JR

28 January 1997

COSTELLO J:

1. In December 1994 the applicant was convicted of robbery, burglary and unlawful taking of vehicles and was sentenced to 7 years, 5 years and 2 years respectively in respect of these offenses. By notice of appeal of 15 February 1995 he appealed these convictions and sentences. Whilst in Wheatfield prison (where he still is) he was visited by Garda Edward McHale, the notice party in these proceedings. The applicant claims that Garda McHale was the principal witness for the prosecution at his trial in that the principal evidence against him consisted of three written statements which Garda McHale alleged he had made to him and which he witnessed. These proceedings arise out of allegations of wrongdoing on the part of Garda McHale in connection with the visits paid by him to the applicant. Whilst in prison the allegations became the subject of a complaint by the applicant to the Garda Siochana Complaints Board. They were investigated and by letter of the 6 October 1995 the decision of the Board was communicated to the applicant. This was to the effect that the Board had considered a report from the investigating officer and that it "was of the opinion that neither an offence nor a breach of discipline on the part of the member complained of had been disclosed" and accordingly the Board "will take no further action in the matter". The applicant then instituted these proceedings for judicial review in which he claims an order of certiorari quashing the Board's decision and alternatively relief by way of mandamus. Before outlining the facts in greater detail it will, I think, be helpful if firstly I Summarise the Board's functions under the Garda Siochana (Complaints) Act, 1986.

THE GARDA SIOCHANA (COMPLAINTS) ACT 1986.

The Board was established by virtue of section 3 of the Act. The Act empowers a member of the public who is directly affected by any conduct of a member of the Garda Siochana and who wishes to have the complaint concerning that conduct considered by the Board to make a compliant, inter alia, to a Garda Station. There is a chief executive attached to the Board and when the complaint is made to a Garda station (as happened here) the member in charge is required to notify the chief executive and the Commissioner of the Garda Siochana of the complaint and send to each a copy of it. On receipt of a complaint the chief executive is required to consider "whether the complaint is admissible" and certain statutory conditions must be satisfied before he can so decide. These include a requirement that he consider whether the conduct alleged in the complaint "would constitute an offence or be conduct specified in the Fourth Schedule to this Act". If the chief executive decides that the complaint is admissible (as happened here) he is required so to notify the complainant and the Commissioner and send to the Commissioner a copy of the complaint which had been sent to the Board. The Commissioner is then required to notify the member that a complaint has been made against him by a specified person (section 4).

If the Commissioner considers that the complaint is suitable for informal resolution he may so inform the Board (section 5). If he does not, then he appoints an "investigating officer", that is a person who is a member of the Garda Siochana not below the rank of superintendent (or in certain circumstances not below the rank of inspector) "to investigate an admissible complaint". The investigating officer is required to complete his investigation as soon as may be and to report in writing to the chief executive. The Board is required to supervise generally the investigation of complaints and may give such directions to an investigating officer as appears necessary or expedient. The chief executive may request the furnishing of supplementary reports. The chief executive is required to furnish to the Board all reports received from the investigating officer together with his comments in writing on them and a recommendation by him of the action (if any) that might be appropriately taken by the Board (section 6).

If after considering the report or reports on an investigating officer and the comments and recommendations of the chief executive

"the Board is of the opinion that the complaint concerned is admissible and that the conduct alleged in the complaint may constitute an offence by the member concerned, it shall refer the matter to the Director of Public Prosecutions (section 7 (1)).

The Board however, has a further power. The Act provides for the establishment of Tribunals to investigate complaints relating to breaches of discipline (as distinct from breaches of the criminal law) and so;

"if the Board is of the opinion that a breach of discipline on the part of the member concerned . . . may be disclosed, it shall refer the matter to a tribunal" (section 7(5)).

The Act also makes provision for another contingency. Section 7(3) reads;

"If the Board is of the opinion that neither an offence nor a breach of discipline on the part of the member is disclosed or that the complaint is otherwise not admissible, it shall, as soon as may be, notify the Commissioner, the complainant and the member concerned and shall take no further action in the matter".

This is what happened in this case. It is this opinion and the Board's decision to take no further action in the matter of the complaint that is the basis for these proceedings.

THE FACTS.

The relevant facts may be summarised as follows;

(1) As already pointed out the applicant was convicted of three offenses in December 1994 in the Dublin Circuit Court. He claims that the principal evidence against him were three statements which he made to Garda McHale. His notice of appeal disputes the validity of his detention at the time the statements were obtained and claims that they were "obtained by duress, threat and inducement by Garda Eddie McHale". The notice of appeal exhibited in his solicitor's affidavit is dated the 15 February 1995.

(2) In an affidavit sworn on his behalf by his solicitor it is said that the applicant informed his solicitor that on or about the 14 February 1995 he was notified that a man wanted to see him called "Paddy Maughan", that he was taken to the visiting area, that the person calling himself "Paddy Maughan" was in fact Garda McHale, that the applicant became very annoyed and told Garda McHale that he did not wish to talk to him and that he had no right to visit him in prison, that Garda McHale told him that he would be well advised to withdraw his appeal, that if he persisted in it the prison sentence might be increased significantly, that Garda McHale told the applicant that he had been reprimanded by his authorities in relation to certain aspects of the investigation which gave rise to the prosecution. At this point, the applicant stated he informed his solicitor, Garda McHale was identified by one of the prison officers and heimmediately left the prison.

(3) The applicant also informed his solicitor that he complained about the conduct of Garda McHale to the prison authorities and that he wasinterviewed about it.

(4) On the 24 March 1995 the applicants solicitor wrote to the Superintendent of the Sligo Garda Station a formal letter of complaint. He was forwarded an official form of complaint which he completed and returned to the Superintendent. By letter of the 10 April 1995 he was informed by the chief executive of the Board that the complaint was admissible and that a request had been made for the appointment of an investigating officer. By letter of the 6 October 1995 the applicant was informed of the result of the investigation and that the Board was of the opinion that neither an offence nor a breach of discipline had been disclosed and that no further action in relation to the compliant would be taken.

(5) It is agreed that the allegations made against Garda McHale were allegations of conduct which amounted to breach of discipline as provided for in the Fourth Schedule to the Garda Siochana (Complaints) Act 1986 and also constituted a criminal offence, namely an attempt to pervert the course of justice.

(6) By letter of the 30 November 1995 the applicants solicitors wrote to the Chairman of the Board requesting him to give the reasons for the Boards decision. This was replied to by letter of the 30 November 1995 which stated;

"the position is that it is not the policy of the Board to give reasons on which its decisions are based. In this context the following information may be of interest to you. Following the carrying out of an investigation the report of the investigating officer and the relevant comments and recommendation of the Chief Executive are submitted to the Board. The Board then makes a decision on the complaint at a meeting. The decisions of the Board is recorded in each case but not the reasoning behind the decision. The most that can be said relative to any decision is that it is arrived at on the basis of the evidence gathered during the course of theinvestigation".

This is an important letter and I will return to it later.

(7) The evidence filed on behalf of the respondents was that Inspector Michael Byrnes' of Ronanstown Garda Station who had been appointed the investigating officer by the Commissioner pursuant to the Garda Siochana (Complaints) Act 1986. He stated in his affidavit that in the course of his investigation he obtained all statements, reports, documents and video evidence which he considered relevant "to fully ascertain the facts and the truth of the matters alleged in relation to this complaint". He stated that all the relevant witnesses co-operated fully; that having examined all the evidence he reported to the Board and enclosed with it the investigation file which he had compiled in the course of his investigation.

THE PROCEEDINGS.

Leave to institute proceedings by way of judicial review was given by order of the 21 September 1995, the application to be by way of originating notice of motion. The applicant claimed an order of certiorari quashing this "decision communicated by letter of the 6 October 1995 that neither an offence or a breach of discipline had been disclosed and that no further action would be taken on the complaint". An order of mandamus was also sought directing the Board to refer the complaint to the Commissioner or a Tribunal as provided for by the Garda Siochana (Complaints) Act 1986. Alternatively an order was sought directing the Board to state its reasons for its decisions and in the further alternative an order directing the Board to consider whether or not the complaint was suitable for informal resolutions under section 5 of the Act. Statements of opposition were filed by both the Board and Garda McHale (who was joined as a Notice Party to the proceedings). At the hearing counsel for the applicant limited the claim to an order of certiorari, with an alternative claim for an order of mandamus that the Board be required to state the reasons for its decision. (An application to amend the notice of motion to claim further relief was also made, which I will consider later in this judgment).

In his statement grounding the application for judicial review the applicant advanced six grounds on which the claim for relief was advanced. At the hearing two only were relied on. It was claimed;

(a) that the Board's decision constituted an abuse of its jurisdiction in that it plainly and unambiguously flew in the face of fundamental reason and common senses, and

(b) the Board's failure to state reasons for its decision entitled the applicant to an order for certiorari or alternatively an order of mandamus directing the Board to state its reasons.

I will consider these claims now.

(a) Irrationality.

On this application this court is not acting as a court of appeal from the Board's decision. The applicant may ask the court to exercise its jurisdiction to quash an order which is unlawful, but not to quash it because it is factually incorrect. To establish a case that the decision should be quashed the application must show that the Board exceeded its powers and acted ultra vires. For this purpose he relies on the well known principle that a Board on whom functions have been conferred by statute must act reasonably and if it acts unreasonably it will act in excess of jurisdiction and illegally. What is "reasonable" in the context of administrative decisions is well established; to establish irrationality it must be shown that the decision-maker acted plainly and unambiguously in the face of reason and commonsense (see The State (Keegan) v Stardust Compensation Tribunal [1986] IR 642, 658). That is what the applicant in this case alleges.

The provisions of the statute were followed by the Board. The complaint was considered by the chief executive who decided that conduct alleged against Garda McHale would, if true, constitute an offence or be conduct specified in the Fourth Schedule to the Act or amount to a breach of discipline. The complaint was investigated and reported on by the investigating officer. The chief executive furnished a copy of this report to the Board together with his comments and recommendations. The Board considered these documents and formed the opinion that neither an offence nor a breach of discipline had been disclosed. Accordingly the Board decided to take no further action in the matter.

I fail to see how in the light of these facts it can be said that the Board acted plainly and unambiguously in the fact of reason and common sense. The only argument advanced on the applicant's behalf was that once the chief executive found that the allegation was admissible then the Board should have concluded that the conduct alleged have constituted an offence (section 7(1) or that a breach of discipline may have been disclosed (section 7(5)) and that it was irrational for it to conclude otherwise and decide not to take any further action in relation to the complaint. But these conclusions do not follow as a result of the finding of admissibility by the chief executive. This finding merely concludes that if the allegation of misconduct are true then the acts complained of would constitute an offence and/or a breach of discipline -- it is not a finding that an offence or breach of discipline may have actually occurred. Once declared admissible the allegations are then investigated and the Board is required to reach an opinion in the light of the facts disclosed by the investigation. The inference to be drawn from the opinion arrived at by the Board is that the evidence obtained in the investigation contradicted that of the applicant; there is certainly no inference to be drawn that its opinion must have been an irrational one. Nor can the Court infer that there was no evidence before the Board to rebut that of the applicant and evidence that its decision was therefore irrational, -- such an inference would be wholly unjustified.

(b) Failure to state reasons.

The applicant has in addition submitted that the Board's failure to state the reasons for its decision justified the court in quashing it by an order of certiorari. Alternatively, it is claimed that the court should now order, by an order of mandamus, the Board to state its reasons.

It is important to identify precisely what the applicants case is. The Board arrived at an opinion that neither an offence nor a breach of discipline had been disclosed and having done so it made a decision to take no further action in the matter. The reasons for the decision were self-evident; it followed from the opinion the Board had reached and there was no need for the Board to say so. The applicant's case must therefore be that the Board had a duty to provide reasons for its opinion that no breach of discipline and no offence had been disclosed.

If a duty to give reasons exists and is breached this may constitute a ground for an order of certiorari or mandamus. But even if no such duty exists failure to give reasons may furnish a ground for challenging of an administrative decision. There may be exceptional cases in which the refusal to give reasons for a decision might justify the court in inferring that no good reasons for the decision existed and that therefore it was arbitrary and irrational and should be quashed on this ground (see Padfield v Minister for Agriculture Fisheries and Food, [1968] AC 997, 1032, 1053, 1061). But no such inference can be drawn from the facts of this case and I was not asked to do so. Accordingly I will consider whether or not a duty to give reasons existed on the facts of this case.

The rules of natural justice are rules of the common law which are applied in our courts when considering the validity of administrative decisions. It is well established by the courts in England that the rules of natural justice do not require that reasons should be given for administrative decisions (R v Gaming Board for Great Britain [1970] 2 QB 417) and in England it was considered necessary for Parliament to step in and to require that "tribunals" (as defined) should be required to do so (Tribunals and Inquiries Act, 1971), whilst in Australia (another common law country) the federal parliament went further and enacted that this principal should be extended to administrative decisions generally (Administrative Decisions (Judicial Review) Act 1977). In this country the Oireachtas has remained inactive in this field. In theory our courts would be free to extend the common law principles of natural justice as they are judge-made rules but it would seem preferable that the existence, scope and nature of the duty to provide reasons for an administrative decisions should be considered in the light of the constitutional requirement relating to what the courts have termed "constitutional justice", rather than as an extension of the common law rules of natural justice.

It is now established as part of our constitutional and administrative law that the constitutional presumption that a statute enacted by the Oireachtas intended that proceedings, procedures discretions and adjudications permitted, provided for, or prescribed by Acts of the Oireachtas are to be conducted in accordance with the principles of constitutional justice (see East-Donegal Co- Operative Ltd v Attorney General [1970] IR 317, 341). It follows therefore that an administrative decision taken in breach of the principles of constitutional justice will be an ultra vires one and may be the subject of an order of certiorari. Constitutional justice imposes a constitutional duty on a decision-making authority to apply fair procedures in the exercise of its statutory powers and functions. If it can be shown that that duty includes in a particular case a duty to give reasons for its decision then a failure to fulfil this duty may justify the court in quashing the decision as being ultra vires.

It is not the law of this country that procedural fairness requires that in every case an administrative decision-making authority must give reasons for its decisions. Where a claim is made that a breach of a constitutional duty to apply fair procedures has occurred by a failure to state reasons for an administrative decision the court will be required to consider (a) the nature of the statutory function which the decision-maker is carrying out (b) the statutory framework in which it is to be found and (c) the possible detriment to the complainant may suffer arising from the failure to state reasons. To give an example of a possible detriment; if a statute permitted an appeal to the court from the decision of an administrative authority on a point of law the failure to give reasons for a decision may well amount to a breach of a duty to apply fair procedures if it could be shown that their absence rendered ineffectual a statutory right of appeal.

There may also be circumstances in which (a) no unfairness arose by a failure to give reasons when the decision was made but (b) the concept of fair procedures might require that reasons should subsequently be given in response to a bona-fide request for them. Therefore in such cases the court would not grant an order of certiorari (because the decision itself was not an ultra vires one) but it would have jurisdiction to grant an order of mandamus directing the decision-making authority to carry out its constitutional duty (which the Court had found existed) to provide reasons when asked.

Finally, there may be circumstances in which the duty to apply fair procedures may not oblige a decision-making authority to state reasons for its decision at the time or after it has made it but which might oblige the authority to explain to an affected person the material on which the decision was based.

The nature and scope of the statutory functions which the Board in this case was required to perform are very different from those considered in earlier cases by the Irish courts. The Board's functions are different to those in a case relating to a tribunal established to consider evidence and award compensation to victims of criminal injury in which the Supreme Court held that a tribunal of such a kind was required to explain reasons for its decision (see Creedon v Criminal Injuries Compensation Tribunal [1988] IR 51). Nor are the Board's statutory functions similar to those of a Minister on whom a discretionary power to grant or refuse a license to fish has been conferred and in respect of which it has been held that reasons for a decision to refuse a license should, in the circumstances of the case being considered, have been given (see International Fisheries Limited v Minister for the Marine [1989] IR 149. Again, the Board's functions are entirely different to those of elected representatives of a local authority on whom a statutory power was conferred to direct that permission be granted to develop land under the Planning Acts (see P & F Sharpe v Dublin City Manager [1989] ILRM 565) O'Keeffe v An Bord Pleanala, [1993] 1 IR 64 (Supreme Court) and [1993] 1 IR 39 High Court and in respect of whom the Supreme Court has decided that an obligation to disclose the material on which a decision was based may, in certain circumstances, be imposed. It has been held that a Minister who decides to dismiss a Civil Servant should be required to give reasons (see The State (Lynch) v Cooney [1982] IR 337) but, again, the Minister's statutory functions were different in kind to those of the Board in this case. In this case the Board is not carrying out a quasi-judicial function such as a tribunal awarding compensation is performing, nor is it exercising a statutory discretion to permit an economic activity to be pursued or a development of land to take place. Its function is to reach an opinion on questions of fact after assessing evidence and considering the recommendations of its Chief Executives. The conclusions of the courts in earlier cases on the issue now raised are therefore only of very limited assistance in determining the issues that arise in this case.

It seems to me that that issue can largely be determined by considering whether some detriment is suffered by the applicant by the failure of the Board to give reasons for the opinion which it reached because if no detriment is suffered then no unfairness can be said to exist.

There is no appeal (either on a point of law or on the merits) from the Board's conclusions following its deliberation on the results of the investigation into a complaint made under the Act. The Board's reasons are therefore not required to make effective any statutory right of appeal. What remains to be considered, therefore, is whether in this case the failure to state a reason in some way renders ineffectual or otherwise prejudices his right to apply to the court for an order of certiorari or mandamus. It was held in the International Fisheries Limited case that the refusal to give reason deprived the applicant in the circumstances of that case of the ability to form a view whether grounds existed on which the Minister's decision might be quashed, that the applicant was therefore placed at a disadvantage and that procedures which produced such a result were constitutionally unfair. But a person aggrieved by a decision has no right to obtain reasons for it merely for the purpose of seeing whether or not the decision-maker had erred and I do not think that the judgment in that case is to be so construed.

In this case the absence of reasons does not deprive the court of an ability to exercise its supervisory jurisdiction. This is clear from the nature of the statutory function which the Court has jurisdiction to supervise. There are detailed statutory provisions establishing the procedures to be followed by the Board and the court is aware therefore of the manner in which the Board reaches an opinion and the nature of the material on which the Board's opinion should be based. In addition the Board in this case has in fact informed the applicant in the letter of the 30 November 1995 of the material on which its opinion was based. Reasons are not therefore required to enable the court to exercise its jurisdiction. In reality they are being sought in this case to enable the applicant to see whether or not the Board made an error in the carrying out of its functions and there is no duty imposed on administrative decision-makers by the constitution to comply with a request made for this purpose. I must hold therefore that the applicant has not established that there was any unfairness on the part of the Board in failing to provide reasons for the opinion it reached either at the time it was communicated to the applicant or in response to the subsequent request. Indeed it seems to me that there are cogent arguments for suggesting that, just as the prosecuting authorities in the State (the Director of Public Prosecutions and the Attorney General) have always declined to give reasons for a decision not to prosecute because of the possibility of unfairness in certain cases should it do so, so the Board should not be required to give reasons for the opinion it reaches after an investigation of a complaint under the Act because of the possibility that unfairness in certain circumstances may result.

Finally, there was no unfairness in this case because of failure to provide the applicant with information concerning the material on which the Board's opinion was based as this information was in fact given in the letter of the 30 November 1995.

I must therefore hold that the Board was not in breach of its constitutional duty to apply fair procedures and the applicant's claim for relief must be dismissed.

APPLICATION TO AMEND

The applicants complaint was contained in a letter of the 24 March 1995 from the applicants solicitors. The complaint was that Garda McHale had obtained access to the applicant in prison by using a false name and that he attempted to persuade him to withdraw his appeal. The complaint form which was sent to his solicitor was completed and under the heading "Details of Complaint" the applicant's solicitor stated "as set out in attached letter of complaint". Attached to the form was the letter of the 24 March 1995. In opposition to the applicant's claim an affidavit of Inspector Byrnes' sworn on 2 May 1996 was filed. Inspector Byrne was appointed investigating officer under the Act and he exhibited the "nomination of appointing officer" appointment, dated the 12 June 1995. Under the heading "Nature of Complaint" the document reads, "The complaint alleges that on the 14 February 1995 Garda McHale visited him, (John McCormack) an inmate at Wheatfield Prison, and in order to gain entry to meet the complainant Garda McHale used an assumed name "Paddy Maughan". It was urged on behalf of the applicant that it must follow that only part of the complaint was investigated by Inspector Byrne (namely the obtaining of access to the applicant by use of a false name) and an application to amend the "Statement grounding application for judicial review" dated 20 December 1994 by adding additional grounds on which relief was sought as set out in paragraph (e) of the Notice was made by adding;

"(i) That the respondents or each of them failed to properly or at all to investigate the complaints made by the applicants.

(ii) That the second respondent erred in requiring the investigating officer to investigate only the matters set out in the Notice of Appointment, and thereby failed to instruct the said investigating officer to make a full or proper investigation of the complaints made".

I reserved my judgment on the application to amend but obtained submission on the assumption that the amendment sought would be made.

It seems to me that only in exceptional circumstances would liberty to amend a grounding statement be made because the courts jurisdiction to entertain the application is based on and limited by the order granting leave. But when facts come to light which could not be known at the time leave was obtained and when the amendment would not prejudice the respondents then it seems a proper exercise of the courts power of amendment to permit the amendment rather than require that the new "grounds" be litigated in fresh proceedings. Accordingly, I propose to allow the amendment.

The decision impugned in these proceedings is that of the Board, following its consideration of Inspector Byrne's report and the comments and recommendations of the chief executive. The claim that the Board has failed to investigate the complaint properly is based on the fact that the Notification of Appointment only referred to part of the complaint contained in the letter of the 24 March 1994. If this submission was correct it seems to me that this would not have meant that the Board acted without jurisdiction, but that it failed to exercise properly its statutory powers. Therefore the applicants remedy, if any, was an order of mandamus not an order of certiorari. If the point is a good one the Court would have jurisdiction to direct the Commissioner to carry out a full investigation and the Board to consider the subsequent report.

Had I considered that a case had been that the Inspector had failed adequately to investigate the complaint I would have adjourned the hearing so that evidence on this point (which had not been raised previously) could be obtained. Having considered the evidence, however, I have concluded that this course is not necessary. It is clear from Inspector Byrne's affidavit that he had in his possession the applicant's solicitors letter of the 24 March 1994 and he must have been aware that the complaint was not just that a subterfuge was used to visit the complainant but also was one of wrongdoing amounting to an attempt to pervert the course of justice. His affidavit states that "in the course of my investigations I obtained all Statements, reports, documents and video evidence which I considered necessary to fully ascertain the facts and the truth of the matters alleged in relation to this complaint" and I think this means that he investigated all aspects of the alleged wrongdoing. It is also of relevance to note that the letter of the 24 March 1994 was sent to the Board and it is inconceivable that had Inspector Byrne only investigated the complaint that Garda McHale had procured a visit by using a false name and had failed to investigate the serious complaint that he had also attempted to pervert the course of justice the Board would have failed to exercise its statutory powers section 6(3)(a) and direct an investigation into this part of the letter of the 24 March 1994.

I conclude, therefore that the applicant has failed to make out a claim for any relief on the amended "Statement of Grounds".


© 1997 Irish High Court


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