Judgment
Title: | Walsh -v- Revington & ors |
Neutral Citation: | [2015] IESC 34 |
Supreme Court Record Number: | 516/13 |
High Court Record Number: | 2012 885 JR |
Date of Delivery: | 04/23/2015 |
Court: | Supreme Court |
Composition of Court: | Denham C.J., Hardiman J., O'Donnell Donal J., MacMenamin J., Laffoy J. |
Judgment by: | Laffoy J. |
Status: | Approved |
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| Judgments by | Link to Judgment | Concurring | Laffoy J. | | Denham C.J., Hardiman J., O'Donnell Donal J., MacMenamin J. | |
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THE SUPREME COURT
JUDICIAL REVIEW
[Appeal No. 516/13]
Denham C.J.
Hardiman J.
O’Donnell J.
MacMenamin J.
Laffoy J.
BETWEEN
PATRICK WALSH
APPLICANT/RESPONDENT
AND
JOSEPH REVINGTON S.C., ASSISTANT COMMISSIONER ANTHONY NOLAN, GARDA PATRICK O’SULLIVAN AND THE COMMISSIONER OF AN GARDA SÍOCHÁNA
RESPONDENTS/APPELLANTS
Judgment of Ms. Justice Laffoy delivered on 23rd day of April, 2015
Background to appeal
1. The respondent on this appeal, who is now in his mid-forties and is a married man with young children, had been since 1993 and was in September 2007 a member of An Garda Síochána when the factual circumstances which gave rise to the acts and conduct alleged against him at the core of these proceedings occurred during his attendance in a private capacity at the event known as the Electric Picnic which was held at Stradbally Hall, Stradbally, County Laois on the 2nd September, 2007. In broad terms, the alleged acts and conduct on the part of the respondent arose out of an alleged refusal by him to submit to a search by a member of the private security firm engaged by its promoters to control entry to the event, an alleged altercation between the respondent and members of An Garda Síochána who came on the scene, and a search of the respondent carried out by An Garda Síochána pursuant to s. 23 of the Misuse of Drugs Act 1977 (the Act of 1977).
2. The respondent’s involvement in what is alleged to have happened at the event has given rise to a multiplicity of judicial and disciplinary proceedings: criminal proceedings in the District Court; disciplinary proceedings under the Garda Síochána (Discipline) Regulations 2007 (the 2007 Regulations); and judicial review proceedings in relation to the disciplinary proceedings. The disciplinary proceedings have involved two inquiries under the 2007 Regulations, each of which was the subject of an appeal under the 2007 Regulations. The disciplinary proceedings have been the subject of judicial review proceedings in the High Court on two occasions and a grant of leave by the High Court to bring judicial review proceedings on another earlier occasion. The criminal proceedings in the District Court resulted in the dismissal, following a hearing in the District Court on 26th November, 2008, by Judge Gerard Haughton of a charge under s. 3 of the Misuse of Drugs Act 1997 that the respondent was in possession of a controlled drug at the event on 2nd September, 2007.
3. Prior to the determination of the criminal proceedings in the District Court, the respondent had been notified by a Notice of Investigation issued under Regulation 24 of the 2007 Regulations dated 6th September, 2007 that an investigation was being conducted pursuant to the 2007 Regulations into allegations of breach of discipline by him at the event on 2nd September, 2007. As a result of the investigation a board of inquiry was established on 28th February, 2008 (the 2008 Inquiry Board) to determine whether four breaches of discipline alleged against the respondent had been committed by him and, if so, to recommend to the fourth named appellant (the Commissioner) the disciplinary action to be taken in relation to the respondent. The four allegations were as follows:
(a) an allegation of discreditable conduct, in that on 2nd September, 2007 at the event the respondent had been in possession of a controlled drug, amphetamine;
(b) an allegation of discreditable conduct, in that on the same day and at the event the respondent failed to submit to a legal drug search;
(c) an allegation of improper practice, in that the respondent identified himself as an off-duty member of An Garda Síochána when required to submit to a drug search under s. 23 of the Act of 1977 thereby attempting to improperly use his position as a member of An Garda Síochána for his private advantage; and
(d) an allegation of misconduct towards a member of An Garda Síochána, in that the respondent used abusive and insulting language in his failure to submit to a drug search after being directed to do so by the member.
4. The hearing before the 2008 Inquiry Board was deferred pending the hearing of the criminal proceedings in the District Court, as I understand it by agreement, following the respondent having obtained leave to seek an order of prohibition by way of judicial review by order of the High Court dated 19th May, 2008.
5. Following the dismissal of the criminal proceedings in the District Court the 2008 Inquiry Board was informed that the alleged breach set out at (a) in paragraph 3 above was withdrawn. The respondent subsequently initiated judicial review proceedings in the High Court (Record No. 2009/277 J.R.) seeking an order of prohibition by way of judicial review to bar the Commissioner and the 2008 Inquiry Board from continuing the proceedings before the 2008 Inquiry Board. Those proceedings were heard by Kearns P., who, in a judgment delivered on 5th July, 2010 ([2010] IEHC 257), held, inter alia, that the Commissioner was not prohibited or precluded from withdrawing an allegation of breach of discipline before the 2008 Inquiry Board and refused the reliefs sought by the respondent. Accordingly, there were then three allegations of breach of discipline before the 2008 Inquiry Board, that is to say, the allegations referred to at (b), (c) and (d) in paragraph 3 above, which, in line with the approach adopted subsequently, will be referred to respectively as alleged breach 1, alleged breach 2 and alleged breach 3.
6. The hearing by the 2008 Inquiry Board subsequently took place on 30th September, 2010 in the absence of legal representation on behalf of the respondent. The 2008 Inquiry Board in its determination found breaches of discipline on the part of the respondent in relation to alleged breaches 1 and 2, but not in relation to alleged breach 3. It recommended that the respondent be required to retire or resign as an alternative to dismissal. The respondent then appealed that determination to an Appeal Board (the First Appeal Board) established under the 2007 Regulations. The First Appeal Board gave its decision on 24th November, 2011 solely on a preliminary issue concerning the absence of legal representation on behalf of the respondent at the hearing before the 2008 Inquiry Board. It found that due process and natural justice had not been complied with. It quashed the determination of the 2008 Inquiry Board and decided that another board of inquiry should be established by the Commissioner to determine whether the respondent committed a breach of discipline. I consider that what happened between 2nd September, 2007 and that point in time, in particular, what transpired before the 2008 Inquiry Board and the First Appeal Board is largely of historical interest in the context of this appeal. Although the report of the 2008 Inquiry Board was put before this Court on a de bene esse basis in support of an argument made on behalf of the respondent which will be alluded to later, I have not had regard to it and I am at a total loss to see how this Court could legitimately have regard to it on this appeal.
Disciplinary proceedings leading to this appeal
7. Pursuant to the decision of the first Appeal Board, another board of inquiry (the 2011 Inquiry Board), was established on 2nd December, 2011 to determine whether the respondent had been guilty of alleged breaches 1, 2 and 3. Following a hearing in January and February 2012, the 2011 Inquiry Board gave its determination on 28th February, 2012. In the one page document in standard form headed “Result of Inquiry” signed by the three members of the 2011 Inquiry Board on 28th February, 2012, it is recorded that the 2011 Inquiry Board had “determined” as follows:
The 2011 Inquiry Board then set out its recommendation to the Commissioner in respect of disciplinary action as follows:
The content of the “Result of Inquiry” document is reflected in the document entitled “Report of Proceedings” of the 2011 Inquiry Board, which was signed by the presiding officer and was dated 15th March, 2012, and which, running to ten pages, comprehensively covers the inquiry conducted.
8. Following the determination of the 2011 Inquiry Board and its recommendation to the Commissioner, the Commissioner made a decision pursuant to Regulation 31 of the 2007 Regulations on 26th March, 2012, which was notified to the respondent. It was stated therein that, having regard to the recommendation of the 2011 Inquiry Board, the Commissioner had decided that the following disciplinary action should be taken in relation to the respondent:
“In respect of the breaches of discipline numbered 1 & 2 as attached (Tab A) I hereby order that [the respondent] be dismissed from An Garda Síochána with effect from midnight on the 16 day of April 2012.”
The accompanying “Tab A” was, I understand, the “Report of Proceedings” dated 15th March, 2012 of the 2011 Inquiry Board and the “Result of Inquiry” document dated 28th February, 2012.
9. The respondent, by notice of appeal dated 18th April, 2012, which will be referred to in more detail later, appealed against the determination and recommendation of the 2011 Inquiry Board pursuant to Regulation 33 of the 2007 Regulations. An Appeal Board, consisting of the first, second and third appellants on this appeal (the Second Appeal Board) heard the appeal on 31st July, 2012. The transcript of the hearing records that, at the end of the hearing, following a short adjournment, the Chairperson informed the parties of the Second Appeal Board’s findings as follows:
“The Board of Inquiry and the Board of Appeal are very much in one mind. We find that [the respondent] is in Breach of No. 1, discreditable conduct. He is not in Breach of 2 and 3.”
10. The hearing, which had been adjourned at the request of the respondent’s solicitor, was resumed on 20th August, 2012. Having heard submissions from both sides, the Chairperson communicated the following decisions, as recorded in the transcript:
(a) The Second Appeal Board affirmed the decision of the 2011 Inquiry Board in respect of alleged breach 1, discreditable conduct –
“[o]n the grounds of (sic) the evidence before the Board of Inquiry was credible and consistent.”
(b) The Second Appeal Board quashed the decision of the 2011 Inquiry Board in respect of alleged breach 2, improper practice –
“on the ground that while [the respondent] did identify himself as a Garda there was no evidence before the Board of Inquiry to indicate that he improperly abused his position as a member of An Garda Síochána for his private advantage.”
(c) The Second Appeal Board upheld the decision of the 2011 Inquiry Board in respect of alleged breach 3, “misconduct towards the member” –
“on the grounds of (sic) the Board of Inquiry so determined based on the evidence before it”.
The Chairperson then stated that the Second Appeal Board –
“recommends to the Commissioner that the [respondent] be dismissed on the grounds of breach of, one, discreditable conduct on the grounds that such a penalty be fair and proportionate in all the circumstances.”
11. The decision of the Second Appeal Board was recorded in writing and signed by its three members on 20th August, 2012. The decision, which was based on the standard form “Decision of Appeal Board” (Form I.A. 56), was adapted by certain deletions and one manuscript insertion. It recorded that the Second Appeal Board had decided that it was –
(1) affirming the decision of the 2011 Inquiry Board to find the respondents “in breach” and affirming “the disciplinary action taken by the Commissioner in respect of breach no. 1”;
(2) quashing the decision of the 2011 Inquiry Board to find the respondent “in breach” and “quashing the disciplinary action taken by the Commissioner in respect of breach no. 2”; and
(3) upholding the decision of the 2011 Inquiry Board “in respect of 3. Misconduct towards a member”.
There followed, under the heading “Reason for decision”, four short paragraphs comprising in total approximately ten lines. Setting out the reason for its decision to affirm the decision of the 2011 Inquiry Board “in respect of (1) Discreditable Conduct”, the first paragraph stated, repeating what was recorded in the transcript of the hearing, that it did so “on the grounds that the evidence before the Board of Inquiry was credible and consistent”. Having reiterated the reasons recorded in the transcript for quashing the decision of the 2011 Inquiry Board “in respect of (2) Improper Practice” and upholding the decision “in respect of (3) Misconduct Towards a Member” in the second and third paragraphs, it stated in the fourth paragraph:
“The Appeal Board recommends to the Commissioner that the member be dismissed in respect of the breach at (1) Discreditable Conduct on the grounds that such a penalty is fair and proportionate in all the circumstances.”
The reference to recommending dismissal was inappropriate, in that, in the operative part of the decision as set out at (1) above, the Second Appeal Board affirmed “the disciplinary action taken by the Commissioner in respect of Breach no. 1”
12. On 23rd August, 2012 an order was made by the Deputy Commissioner, as acting Commissioner, which was headed “Order Affirming Dismissal” in which, in implementation of the decision of the Second Appeal Board, it was ordered that the respondent be dismissed from An Garda Síochána with effect from midnight on 25th August, 2012 in accordance with Regulation 37 of the 2007 Regulations.
13. The judicial review proceedings to which this judgment relates were then initiated by the respondent against the three members of the Second Appeal Board and the Commissioner, the fourth respondent on this appeal.
Judicial review proceedings: leave
14. By order of the High Court (Hedigan J.) made on 24th October, 2012, the respondent was given leave to apply by way of application for judicial review for –
(a) an order of certiorari quashing the recommendation or decision of the Second Appeal Board made on 20th August, 2012 recommending that the Commissioner should dismiss the respondent “from the Garda force”; and
(b) an order of certiorari quashing the order of the Commissioner dated 23rd August, 2012 (made by the Deputy Commissioner on his behalf) dismissing the respondent from the force with effect from midnight on 25th August, 2012 on foot of the recommendation and/or decision of the Second Appeal Board of 20th August, 2012.
The respondent was given leave to apply for those reliefs on the grounds set forth in paragraph E of the Statement of Grounds, which in broad terms were that –
15. The bases on which it was contended that there had been a failure to comply with the 2007 Regulations and that the Second Appeal Board and the Commissioner had acted ultra vires and in excess of their statutory duties were outlined with clarity in paragraph E of the statement of grounds and may be summarised as follows:
(a) The decision of the Commissioner dated 26th March, 2012 to dismiss the respondent from the force quoted earlier was based on a combination of the two breaches of discipline determined by the 2011 Inquiry Board to have been committed by the respondent.
(b) On the appeal to it, the Second Appeal Board affirmed the decision of the 2011 Inquiry Board that the respondent had committed one breach of discipline (breach 1) but quashed the decision in relation to the commission of the other breach of discipline (breach 2).
(c) Once the Second Appeal Board had decided to set aside one of the determinations arrived at, it was not permissible (under the provisions of Regulation 37(1)(a) or (b) of the 2007 Regulations) for the Second Appeal Board to simply affirm the Commissioner’s decision.
(d) By affirming in those circumstances “the breach of discipline numbered 1” and quashing “the breach of discipline numbered 2”, the appropriate action for the Second Appeal Board in all the circumstances was for it to quash both the determination of the 2011 Inquiry Board and the decision of the Commissioner and thereafter direct that another board of inquiry should be established pursuant to the provisions of Regulation 37(1)(d) of the 2007 Regulations.
(e) By affirming “the breach of discipline numbered 1” and quashing “the breach of discipline numbered 2”, the Second Appeal Board, acting ultra vires and in breach of its statutory duties, made thereafter a recommendation to the Commissioner to dismiss the applicant, when it had no jurisdiction to make any such recommendation and it was not entitled to make such a recommendation.
(f) The Commissioner, acting by the Deputy Commissioner, ordered the dismissal of the respondent from the force on the basis of the impermissible recommendation and/or unlawful decision of the Second Appeal Board so that –
16. The bases on which it was contended by the respondent that the Second Appeal Board had failed to give adequate reasons for its determination were also elaborated on with clarity in paragraph E of the statement of grounds. At the core of the respondent’s argument was dissension which occurred at the hearing by the Second Appeal Board between the respondent’s solicitor and the investigating officer who was presenting the case on behalf of the Commissioner (the presenting officer). That dissension related to what was referred to as the “legal drug search” in alleged breach 1, which it was alleged the respondent had wrongly failed to submit to. The dissension centered on whether the “legal drug search” was –
Against that background, the respondent’s position in these proceedings is that the Second Appeal Board did not give any reasons for rejecting the submissions made on behalf of the respondent in respect of the true meaning of alleged breach 1, suggesting that, by affirming the determination of the 2011 Inquiry Board in relation to alleged breach 1, the Second Appeal Board wholly ignored the legal argument advanced by the respondent’s solicitor, abnegated its duty to inquire into the alleged breach itself, ignored exculpatory material furnished by the respondent, wholly excluded from consideration oral testimony given by the respondent to the Second Appeal and acted irrationally.
The judgments
17. The substantive application was heard by the High Court (Hogan J.) in two stages. First, in his judgment delivered on 25th July, 2013 ([2013] IEHC 408) the trial judge considered whether the Second Appeal Board’s decision was ultra vires. Having noted in his judgment (at para. 14) that the respondent had also challenged the adequacy of reasons given by the Second Appeal Board, the trial judge stated that, in view of the conclusions he had reached in relation to the vires issue, it was unnecessary to express any views in relation to the adequacy of reasons issue.
18. On the vires issue, having quoted Regulation 37(1) of the 2007 Regulations, which addresses the scope of the decision of an Appeal Board and provides for four possible options in relation to a “determination” of the board of inquiry, and having pointed out that the 2007 Regulations do not provide for any special definition of the word “determination”, the trial judge stated (at para. 16):
“In the absence of any such definition I would interpret this word as referring simply to the decision of the Board of Inquiry which was under appeal. What, then, was that decision? It is hard to avoid the conclusion that the particular decision in question was a composite one consisting of two individual adverse findings of discreditable conduct and improper practice and which had recommended dismissal in respect of each individual breach of discipline.”
The trial judge then concluded that –
“there was one single determination of the Board of Inquiry in respect of two separate breaches of discipline” (emphasis in original).
It was recorded in the judgment that a central feature of the respondent’s case was that the Second Appeal Board acted ultra vires in purporting partially to allow the appeal while also recommending the respondent’s dismissal in respect of the discreditable conduct ground.
19. The trial judge pointed out that, as a creature of a statutory instrument, the Second Appeal Board enjoyed only those powers with which it had been expressly vested, or which were necessarily to be implied from its express powers, suggesting that a careful enumeration of the powers in the 2007 Regulations excluded the possibility of any new substantive power being necessarily implied. He stated that in at least two specific respects the Second Appeal Board purported to take action which was not expressly authorised by Regulation 34 (which I believe was intended to be a reference to Regulation 37) of the 2007 Regulations and he continued (at para. 19):
“Given that the decision under appeal was a ‘determination’ of the Board of Inquiry, the Appeals Board could have either affirmed or quashed the determination in question. The Appeals Board has, however, been given no power to affirm one part of the determination on the one hand and to quash another part of that determination on the other. Nor has the Appeals Board been given the power to recommend that the applicant be dismissed in respect of that part of the determination (i.e., the discreditable conduct charge) which the Board purported to affirm.”
It was held that the Second Appeal Board acted ultra vires in those two crucial respects and that the respondent was entitled to an order of certiorari quashing the decision of the Second Appeal Board.
20. In the second stage in the High Court, the question which was addressed was whether it was appropriate to make an order remitting the matter to the Second Appeal Board in accordance with Order 84, rule 27(4) of the Rules of the Superior Courts 1986 (the Rules). Having considered the options which would be open to the Second Appeal Board pursuant to the four paragraphs of Regulation 37(1) of the 2007 Regulations, which will be quoted in full later, if the matter were to be remitted pursuant to Order 84, rule 27(4), the trial judge, in his second judgment delivered on 7th November, 2013 ([2013] IEHC 485 stated (at para. 13):
“In these circumstances, the only realistic option available to the Board consistent with the tenor of its own decision and, indeed, my first judgment, would be to exercise its power under Article 37[(1)](d) namely to quash the determination and to direct a fresh Board of Inquiry should be established by the Commissioner.”
Concluding that judgment, the trial judge stated that he would remit the matter to the Second Appeal Board in accordance with Order 84, rule 27(4). Further, he stated that, if it were necessary to do so, he would grant the respondent an order restraining a further hearing of any disciplinary charges, save on the single charge of discreditable conduct (i.e. alleged breach 1). That last observation followed on from the following observations he had made earlier (at para. 19):
“It goes without saying that it would be manifestly unfair to the [respondent] if by reason of the quashing of the Appeals Board decision he were now to face anything other than the single charge of discreditable conduct. In other words, even though I have determined that the Appeals Board’s decision is ultra vires on the rather narrow ground which I identified, this cannot be allowed to take from the substance of the decision so far as it concerned the [respondent], namely, that the Board of Inquiry’s finding in his favour in respect of the abusive language charge and the Appeal Board’s finding in his favour on the improper practice charge.”
Order of the High Court
21. The order on foot of both judgments was made on 7th November, 2013. In the curial part thereof it was ordered that:
The appeal
22. On the appeal the appellants have sought an order setting aside both judgments and the order of the High Court in toto and granting in lieu thereof an order dismissing the respondent’s claim together with the costs of and incidental to this appeal and the proceedings had theretofore. Their grounds of appeal are centred on and challenge the findings of the High Court that the Second Appeal Board acted ultra vires. Having regard to the course the appeal took, it is appropriate to outline that, in particular, the following findings and conclusions of the trial judge are challenged:
(a) that the decision/determination of the 2011 Inquiry Board was a composite one consisting of two individual adverse findings of discreditable conduct and improper practice;
(b) that there was one single determination of the 2011 Inquiry Board in respect of two separate breaches of discipline;
(c) that the Second Appeal Board had no power to affirm one adverse finding and to quash the other adverse finding made by the 2011 Inquiry Board; and
(d) that the Second Appeal Board had no power to affirm the decision of the Commissioner to dismiss the respondent in respect of the adverse determination made by the 2011 Inquiry Board and its recommendation to dismiss the respondent from the force.
23. Following service of the appellants’ notice of appeal on the respondent, by letter dated 17th December, 2013 the respondent’s solicitors informed the appellants’ solicitors that the respondent intended to put forward arguments in support of the order of the High Court relating to the absence, or adequacy, of reasons given by the Second Appeal Board, asserting that, in the light of the decision of this Court in AA v. The Medical Council [2003] 4 I.R. 302, it was not necessary for the respondent to serve notice of cross-appeal in that regard. As has already been noted, the issue of the absence, or adequacy, of reasons for the decision of the Second Appeal Board was one of the grounds upon which the High Court gave leave to the respondent to seek orders of certiorari. It is common case that the reasons ground was fully argued in the High Court, but, as already noted, the trial judge considered it unnecessary to express any views on that ground, having regard to his conclusions in relation to the ultra vires issue.
24. I am satisfied that the situation which has arisen in these proceedings in relation to the reasons issue is analogous to the situation addressed by this Court in AA v. The Medical Council. In that case the respondent had relied on the discretionary nature of the remedies sought by the applicant but the trial judge, having decided that the applicant had not established that he was entitled to any of the reliefs claimed, concluded that it was not necessary for him to express any view on whether, in any event, the applicant should also be refused the reliefs sought in the exercise of the Court’s discretion. In relation to that situation, Keane C.J. stated (at p. 308):
“I am satisfied that, in such a case, this court is not deprived of its jurisdiction to consider whether the applicant should be refused the reliefs sought on discretionary grounds because the High Court has not adjudicated on that issue. It would seem to me unjust that, where a particular ground has been raised and fully argued in the High Court, a party should be precluded from obtaining a decision on that ground in this court through no fault of his own. In the present case, it would mean that the case would have to be remitted to the High Court with an almost inevitable further appeal to this court, resulting in the incurring by a party not in default of significant costs and delay in having the appeal resolved. That does not seem to me to be a just and convenient way of dealing with the appeal.”
It was also held by Keane C.J. that there was no obligation on a respondent to give notice to an applicant under Order 58, rule 10 of the Rules, if he intended to contend in the Supreme Court that the order should be upheld for reasons other than those given by the High Court.
25. On the hearing of the appeal, the Court requested the parties to address the challenge to the decision of the Second Appeal Board on the ground of failure to give reasons on a de bene esse basis and that occurred. Having regard to the decision of this Court in A.A. v. The Medical Council, I am satisfied that it is open to the respondent on this appeal to argue the failure to give reasons ground, notwithstanding that it was not adjudicated on in the High Court.
The issues on the appeal
26. Accordingly, the following issues arise on the appeal:
(a) whether the High Court was correct in finding that the determination of the Second Appeal Board and the consequential decision of the Commissioner in August 2012 were ultra vires, on which issue, as will be explained later, different approaches have been adopted by the parties;
(b) whether the respondent is correct in contending that the Second Appeal Board failed to give any, or any sufficient, reasons for its determination in August 2012 contrary to fair procedures and natural justice; and
(c) if the issue arises, whether the High Court was correct in remitting the matter to the Second Appeal Board pursuant to Order 84, rule 27(4) of the Rules and, if so, whether the rehearing should be limited to a rehearing only in respect of the single charge of discreditable conduct (i.e. alleged breach 1).
27. Before addressing those issues, it is necessary to consider the relevant provisions of the 2007 Regulations in some detail.
The 2007 Regulations
28. The 2007 Regulations were made by the Minister for Justice, Equality and Law Reform (the Minister) in exercise of the powers conferred on him by s. 123 of the Garda Síochána Act 2005. As pointed to by counsel for the appellants, s. 123 gives the Minister power to make regulations concerning the maintenance of discipline in An Garda Síochána, including power to specify in the regulations the acts and omissions that may be subject to disciplinary action. Section 123 envisages that the regulations made thereunder may provide for the procedures to be followed if “it appears or is alleged that an act has been done or an omission made that may be the subject of disciplinary action”. The procedures relevant to this appeal are contained in Part 3 (Regulations 22 to 38 inclusive), which deals with serious breaches of discipline.
29. The starting point in interpreting the relevant provisions of Part 3 is the meaning of “breach of discipline”, which, by virtue of Regulation 5, is any act or conduct by a member which is mentioned in the Schedule. The Schedule itemises thirty acts or forms of conduct which constitute breaches of discipline. Three of the thirty featured in the inquiry before the 2011 Inquiry Board: discreditable conduct (item 1); improper practice (item 8); and misconduct towards a member (item 3). Regulation 22 defines “serious breach of discipline”, with which Part 3 is concerned, as meaning a breach of discipline which, in the opinion of the Commissioner, may be subject to one of the following disciplinary actions:
30. If it appears that a member may be in breach of discipline and subject to one of those specified disciplinary actions, Regulation 23 provides that the Commissioner shall appoint an investigating officer to investigate the alleged breach, the conduct of which investigation is governed by Regulation 24. At the conclusion of the investigation the Commissioner is mandated to establish a board of inquiry, if it appears from the report of the investigation that the member concerned may have committed a serious breach of discipline. The function of the board of inquiry, as set out in Regulation 25, potentially involves two distinct elements, namely –
The remainder of the provisions of Part 3 are very comprehensive and specific.
31. Regulations 25 to 30 inclusive deal with the establishment, functions and procedures, including the report, of a board of inquiry. Regulation 30 deals with the report and requires that within twenty one days after the conclusion of the inquiry the presiding officer shall submit a written report to the Commissioner. Regulation 30(2) provides that the report shall include:
(a) copies of any statements made and other documents provided to the board, together with the verbatim record of the proceedings;
(b) “the determination of the board as to whether the member concerned is in breach of discipline and, if so, as to the act or conduct constituting the breach”; and
(c) “its recommendation as to any disciplinary action to be taken in respect of the breach”.
The requirements of paragraphs (b) and (c) reflect the functions of the board of inquiry as set out in the 2007 Regulations.
32. Regulation 31 deals with the action by the Commissioner on receipt of the report of the board of inquiry. Regulation 31(1) provides that, if the board has recommended that disciplinary action should be taken in respect of a breach of discipline, the Commissioner shall, within fourteen days, “decide on the appropriate disciplinary action”. Regulation 31(2) qualifies that provision to the extent that it provides that, if the member concerned is “of a rank above that of inspector”, and the Commissioner considers that the appropriate disciplinary action should be dismissal, a requirement to retire or resign as an alternative to dismissal or a reduction in rank, the Commissioner shall send a recommendation to that effect to the Minister for consideration by the Government. However, Regulation 31(2) is not applicable to the respondent. Rather, the relevant provision is Regulation 31(1), which requires the Commissioner to decide on the appropriate disciplinary action. In other words, what is the appropriate disciplinary action is at the discretion of the Commissioner and the decision at this stage of the disciplinary process in relation to the disciplinary action is the decision of the Commissioner.
33. Regulations 33 to 37 inclusive deal with an appeal by the member concerned. The member concerned has a right of appeal under Regulation 33 against –
Accordingly, as happened in this case, there may be two separate and distinct elements on the appeal: an appeal against the determination of the board of inquiry as to the existence of a breach; and an appeal against the decision of the Commissioner as to the disciplinary action to be taken. The conduct of such appeal is addressed comprehensively in the succeeding Regulations, which contain provisions governing the following matters: the establishment of the Appeal Board, its constitution, and its functions (Regulation 34); the procedure before the hearing of the appeal (Regulation 35); the proceedings at the hearing (Regulation 36); and the decision of the Appeal Board (Regulation 37). The Appeal Board is empowered to hear oral evidence.
34. The most important provision of the 2007 Regulations for present purposes is Regulation 37(1), which deals with the decision of the Appeal Board where there are two elements in the appeal (the determination of the board of inquiry and the disciplinary action decision of the Commissioner) and which, insofar as is relevant to the respondent’s rank, provides as follows:
The options open to the Appeal Board under Regulation 37(1) reflect the existence of the two separate and distinct elements which arise on an appeal against both the determination of the Appeal Board and the decision of the Commissioner.
35. By Regulation 37(3) the Appeal Board is required to communicate “its decision on the appeal and the reasons for it” to the Commissioner and the member concerned within seven days after the conclusion of the appeal. By virtue of Regulation 37(5) the Commissioner is mandated “to implement the decision of the Appeal Board” within seven days of communication of the decision. In other words, on the appeal, where the determination of the board of inquiry is affirmed, the decision as to the appropriate disciplinary action is the decision of the Appeal Board, either by affirming the decision of the Commissioner appealed against or substituting another disciplinary action of a less serious nature. It does not make a recommendation, and the Commissioner does not have a discretion, in relation to the disciplinary action at this stage of the proceedings.
36. Against that outline of the relevant provisions of the 2007 Regulations, I will now consider the first issue for this Court, namely, whether the decision of the Second Appeal Board and the consequential decision of the Commissioner in August 2012 were ultra vires.
Ultra vires: explanation of approach of appellant and of respondent
37. As recorded earlier, the purpose of the appointment of an Appeal Board by the Commissioner under Regulation 34 is “to hear and determine the appeal”. Depending on what is appealed against, that function may relate to one or other of two elements, namely, the determination of the board of the inquiry under Regulation 30(2)(b), or the disciplinary action decided on by the Commissioner, or to both. If both elements are in issue on the appeal, then the Appeal Board is required to consider and make a decision on each element in accordance with Regulation 37(1). The decision in the High Court focused on the first element, the treatment by the Second Appeal Board of the determination of the 2011 Inquiry Board, which, for the reasons outlined in the judgment, was found to be erroneous so that the decision on the first element was held to be ultra vires the powers of the Second Appeal Board.
38. As will be clear from the appellants’ ground of appeal on the ultra vires issue summarised earlier (in para. 22), the appellants’ case on the appeal that the decision of the trial judge, which related to the ultra vires issue only, should be reversed is entirely directed to establishing that the trial judge erred in describing the determination of the 2011 Inquiry Board as a composite one or one single determination in relation to two breaches and that, contrary to the finding of the trial judge, the 2011 Inquiry Board was required to make a separate and distinct determination in respect of each alleged breach of discipline before it and that the Second Appeal Board did in fact make a separate determination in relation to each alleged breach of discipline before it. The appellants’ case is that it was open to the Second Appeal Board under Regulation 37(1) to come to a separate distinct decision to affirm or to quash each determination of the 2011 Inquiry Board.
39. On the hearing of the appeal, it was made clear at the outset that counsel for the respondent, while he had no instructions to concede that the submissions to be made by counsel for the appellants on the ultra vires issue were correct, did not propose addressing them in his submissions. Rather, he proposed addressing what he referred to as a subsidiary issue, which he characterised as the Commissioner having “scrambled the egg”. In fact, it became apparent that the case being made on behalf of the respondent that the Second Appeal Board acted ultra vires was based on the grounds set out in the statement of grounds and summarised earlier in paragraph 15.
40. At that stage it was made clear by counsel for the appellants that, notwithstanding the position adopted by counsel for the respondent, the appellants were pressing for a decision of the Court on their case that the judgment of the High Court should be reversed. Accordingly, the ultra vires issue will now be addressed in two stages: first, by reference to the appellants’ grounds of appeal and submissions; and, secondly, by reference to the respondent’s statement of grounds and submissions.
Ultra vires issue: discussion and conclusion on the appellants’ case
41. In essence, the appellants’ case for setting aside the decision of the High Court and seeking an order in lieu thereof dismissing the respondent’s claim, as the grounds of appeal indicate, turns on the proper construction of the provisions of Part 3 of the 2007 Regulations and their proper application to the disciplinary procedures taken against the respondent. As the focus of the judgment of the trial judge was on the exercise by the Second Appeal Board of the first element of its function, so too was the focus of the appellants’ submissions in this Court.
42. Looking at the provisions of Part 3 in the abstract, having regard to the purpose of its appointment, the function of an Appeal Board in relation to the first element is to determine the appeal of the member concerned against the determination of the board of inquiry. Where there is an appeal it is to be assumed that the determination of the board of inquiry appealed against found the member concerned to be in breach of discipline, identifying the breach by reference to “the act or conduct constituting the breach”, as required by Regulation 30(2)(b). The primary task of the board of inquiry is to determine whether the member concerned “is in breach of discipline”, and, if so, to identify “the act or conduct constituting the breach”. It is also to be assumed that the board of inquiry may have inquired into a number of allegations of serious breaches of discipline before reaching the determination that the member concerned “is in breach of discipline”. That is obvious if one backtracks through the earlier procedures in Part 3. The whole process in Part 3 is concerned with ascertaining whether a member “is in breach of discipline”. The investigation which the Commissioner is obliged to set up under Regulation 23 arises where it appears that a member “may be in breach of discipline” and the function of the investigating officer is to “investigate the alleged breach”. The first step in the conduct of the investigation under Regulation 24 is that the investigating officer must inform the member concerned in writing of, inter alia, “the grounds on which it appears that the member may have been in breach of discipline”, obviously pointing to the possibility of more than one allegation of, or constituting, serious breach of discipline. The outcome of the investigation which will give rise to the establishment of a board of inquiry is that it appears from the report of the investigation “that the member concerned may have committed a serious breach of discipline”. The function of the board of inquiry involves the two elements stipulated in Regulation 25, one or other or both of which may ultimately end up before the Appeal Board.
43. Taking an overview of Part 3, as the title of that part indicates, it is about “serious breaches of discipline”. A “serious breach of discipline” is a breach of discipline which may be subject to one of the four disciplinary actions outlined in Regulation 22, which, in descending order of severity range from dismissal to reduction in pay not exceeding four weeks. A breach of discipline is any act or conduct which falls within the thirty types of acts or conduct specified in the Schedule, which vary in seriousness, by way of illustration, from untidiness on duty or in uniform (item 11) to criminal conduct constituting an offence in respect of which there has been a conviction by a court (item 17).
44. The terminology used in the 2007 Regulation in identifying the behaviour, to use a neutral word, to which the disciplinary process set out in Part 3 relates is that the member concerned has “committed a serious breach of discipline” or that “the member concerned is in breach of discipline”. The two terminologies must be construed consistently. Indeed, it is notable that in Regulation 3(1) it is provided that “in breach of discipline” is to be construed in the same manner as “breach of discipline” by reference to Regulation 5.
45. Even without resorting to the general rules of statutory construction contained in s. 18 of the Interpretation Act 2005 (the Act of 2005), as counsel for the appellants submitted is appropriate, which include the rule that, in relation to the construction of an enactment, a “word importing the singular shall be read as also importing the plural”, on a plain reading of Part 3 as a whole the function of a board of inquiry is not limited to conducting an inquiry and making a determination on a single alleged serious breach of discipline. Nor is it limited to making a single composite determination in relation to two or more alleged serious breaches of discipline. For the board of inquiry to be limited in either respect would, as counsel for the appellants submitted, give rise to substantial delays in bringing the disciplinary process to an efficient conclusion, which cannot have been the intention of either the Oireachtas or the Minister. That it is not so limited, in any event, is obvious from Regulation 30(2)(b), which makes it clear that the determination of the board of inquiry is whether the member concerned is “in breach of discipline”, but, over and above that, the board of inquiry has to point to the act or conduct constituting the breach. That provision can only be interpreted as covering the possibility that the board of inquiry may be inquiring into more than one alleged serious breach of discipline. However, if the board of inquiry is to determine that the member concerned is in breach, it must point to at least one serious breach of discipline.
46. If and when the matter comes before an Appeal Board, as has been pointed out, the first element of its function is to determine the appeal by the concerned member against the determination of the board of inquiry under Regulation 30(2)(b), and its decision on that element may result in the Appeal Board availing of one of the four options provided for in Regulation 37(1), which has been quoted earlier. However, where, as happened in this case, the appeal of the member concerned is against more than one adverse finding of the board of inquiry, which resulted in a determination that he is “in breach of discipline”, in my view, Regulations 33 to 37 are not open to an interpretation other than as requiring that the Appeal Board consider and make a decision on each of the components of the determination of the board of inquiry, that is to say, on each of the appealed allegations of serious breach of discipline found against the member. In other words, the Appeal Board must consider and decide on each component of the determination of the board of inquiry identified in accordance with Regulation 30(2)(b), which resulted in the conclusion that the member concerned was in breach of discipline. In those circumstances, the findings of the Appeal Board on the appealed determination, including its various components, form the basis for the proper exercise by the Appeal Board of its powers under s. 37(1) in relation to the first element of its function, that is to say, the choice of action to be taken in relation to the appealed determination of the board of inquiry.
47. Returning to the Act of 2005 insofar as it is necessary to do so, its application results in a similar interpretation of the 2007 Regulations. As was submitted on behalf of the appellants, the rule in s. 18 quoted earlier will not prevail where a contrary intention can be found in the legislation, as s. 4 of the Act of 2005 provides that a provision in that Act applies to an enactment “except insofar as the contrary intention appears in the enactment”. In my view, there is no contrary intention observable in the 2007 Regulations that precludes construing “determination” in Regulation 30(2)(b) or in Regulation 37(1) as importing “determinations” or in construing “act” in the context in which it is used in Regulation 30(2)(b) as importing “acts”, insofar as that is necessary in order to apply paragraphs (a) to (d) of Regulation 37(1) to the outcome of an appeal in relation to each of the components of the determination of the board of inquiry appealed against by the member concerned.
48. As regards the application of the 2007 Regulations, on their proper construction, to the process under review in this case, it will be recalled that the 2011 Inquiry Board determined that the respondent was “in breach” and then itemised two breaches: “Breach no. 1” (discreditable conduct) and “Breach no. 2” (improper practice). It expressly determined that, as regards “Breach no. 3” (misconduct towards a member), the respondent was not in breach. The notice of appeal dated 18th April, 2012 served by the respondent was in a standard form and it merely identified the appeal by reference to the relevant file number. As the respondent did not delete any of the appeal options open to him, it was proper to interpret the appeal on the basis that the respondent was appealing both the determination of the 2011 Inquiry Board and the decision of the Commissioner in relation to the disciplinary action. The only other information contained in the notice of appeal was that the respondent based his appeal on the following grounds:
The reference at (III) was apparently to Regulation 33(3)(c), which provides that the appeal may be based on the ground that all the relevant facts were not ascertained, were not considered or were not considered in a reasonable manner. The ground in Regulation 33(3)(e), which was obviously being invoked at (IV), is that the disciplinary action which the Commissioner has decided to take or recommend is “disproportionate in relation to the breach of discipline concerned”.
49. Considering what the Second Appeal Board did on the appeal against the determination of the 2011 Inquiry Board in the context of the notice of appeal, as has been outlined earlier, it indicated at the conclusion of the first day of the hearing that the respondent was in breach of alleged breach 1 (discreditable conduct), but was not in breach of alleged breach 2 or alleged breach 3. In its decision in writing the Second Appeal Board affirmed the decision of the 2011 Inquiry Board in relation to alleged breach 1 and quashed the decision in relation to alleged breach 2. Leaving aside the upholding of the decision of the 2011 Inquiry Board in relation to alleged breach 3, given that that decision was not one which was adverse to the respondent and that it is reasonable to infer that it was not being appealed against by the respondent, that was all that the Second Appeal Board needed to do in relation to the first element of its function. The overall effect was to affirm the determination of the 2011 Inquiry Board to a sufficient extent that the 2007 Regulations were complied with. The respondent had been found by the 2011 Inquiry Board to have been in breach of discipline and the act or conduct constituting the breach had been identified as including alleged breach 1. That finding was affirmed by the Second Appeal Board on the appeal in relation to alleged breach 1, as it was entitled to do, in accordance with Regulation 37(1)(a). Accordingly, the decision of the Second Appeal Board as regards the first element of its function was not in contravention of the 2007 Regulations and was not ultra vires on the basis found in the High Court. Therefore, that aspect of the order of the High Court must be set aside.
50. Finally, I would emphasise that I have reached that conclusion on the basis of the proper construction of the powers expressly conferred by the 2007 Regulations. It has not been necessary to resort to an argument made on behalf of the appellants that an Appeal Board has an implied power to affirm part of the determination relating to one of a number of breaches of discipline and to quash that part of the determination relating to another or other breaches of discipline. Nor has it been necessary to consider what, if any, implications flow from the word “may”, rather that the word “shall”, as used in Regulation 37(1) and, in particular, whether Regulation 37(1) is directory rather than mandatory.
Ultra vires issue: discussion and conclusion on the respondent’s case
51. The nub of the respondent’s case that the decision of the Second Appeal Board was ultra vires and that the consequent decision of the Commissioner to implement it in accordance with Regulation 37(5) was also ultra vires was the assertion that the Commissioner, in making the order dated 26th March, 2012 dismissing the respondent from the force following the determination and recommendation of the 2011 Inquiry Board, “scrambled the egg”. From that point, the respondent’s case follows the grounds as set out in the statement of grounds and summarised earlier in paragraph 15 in a logical progression.
52. To recapitulate, following its determination that the respondent was in breach of alleged breaches 1 and 2, the 2011 Inquiry Board recommended that the Commissioner take disciplinary action in the form of dismissal in respect of each of those breaches. As was submitted on behalf of the respondent, the Commissioner was not bound to accept either or both recommendations. His function under Regulation 31 was to decide the appropriate sanction to be imposed having regard to the findings of the 2011 Inquiry Board as to the respondent being in breach. The decision the Commissioner made on 26th March, 2012, as quoted at paragraph 8 above, was to order the dismissal of the respondent “[i]n respect of breaches of discipline numbered 1 & 2”. The respondent’s case before the High Court and on the appeal was that the decision to dismiss the respondent was based on the combination of the two breaches of discipline found by the 2011 Inquiry Board.
53. On the respondent’s appeal to the Second Appeal Board, as regards the first element of the appeal, namely, the determination of the 2011 Inquiry Board, the Second Appeal Board affirmed one breach as found by the 2011 Inquiry Board and quashed the other. The second element of the function of the Second Appeal Board was to decide in accordance with Regulation 37(1) what to do in relation to the decision of the Commissioner of 26th March, 2012. What the Second Appeal Board purported to do was to affirm the disciplinary action taken by the Commissioner in respect of breach No. 1 and to quash the disciplinary action taken by him in relation to breach No. 2, which the appellants submit is impermissible. The respondent’s case is that given that the Commissioner’s decision to dismiss was in respect of both breaches found by the 2011 Inquiry Board, but the Second Appeal Board’s decision affirmed only one of those breaches, the only option open to the Second Appeal Board was to quash both the determination of the 2011 Inquiry Board and the decision of the Commissioner dated 26th March, 2012 and to decide that another board of inquiry should be established in accordance with Regulation 37(1)(d).
54. I am satisfied that the submissions made on behalf of the respondent are correct. The decision of the Commissioner dated 26th March, 2012 on its face clearly and unambiguously stated that it was ordering the dismissal of the respondent “[i]n respect of breaches of discipline numbered 1 & 2”. If the Second Appeal Board had affirmed both breaches, it would have been open to it to affirm the decision of the Commissioner. However, as it affirmed only one of the breaches, and quashed the other, it was not open to the Second Appeal Board to affirm the decision of the Commissioner in relation to one breach only. Whether the Commissioner intended to do so or not, he did scramble both breaches of discipline found by the 2011 Inquiry Board into justification for an order for dismissal of the respondent. Having affirmed only one of those breaches, the Appeal Board could not unscramble the Commissioner’s decision so as to justify dismissal of the respondent for that one breach of discipline.
55. It is also true that the second element of the function of the Second Appeal Board was to make a decision in relation to the appropriate disciplinary action, not to make a recommendation to the Commissioner. In this regard there is ambiguity on the face of the decision of the Second Appeal Board in that it purported to affirm the disciplinary action taken by the Commissioner in respect of alleged breach 1, while in the reasons section of the decision document it recommended to the Commissioner that the respondent be dismissed. While that suggests a misunderstanding on the part of the members of the Second Appeal Board as to their function, the fatal flaw in its decision is that the Second Appeal Board purported to affirm the Commissioner’s decision, which power was not conferred on it by the 2007 Regulations having regard to the circumstances.
56. Accordingly, the respondent is entitled to:
Inadequate reasons issue
57. As has been recorded earlier, by virtue of Regulation 37(3) of the 2007 Regulations, the Second Appeal Board was required to give reasons for its decision and it did so, the reasons having been outlined earlier. However, the respondent contends that the reasons given were not adequate reasons and on the judicial review application he grounds his application for an order of certiorari quashing the decision of the Second Appeal Board on the contention that it was arrived at contrary to fair procedures and natural justice having regard to the inadequacy of the reasons given. As I have concluded that the decision of the Second Appeal Board should be quashed on the grounds set out in the next preceding paragraph, it is strictly speaking not necessary to form a definitive view on this ground. Nonetheless, I consider it appropriate to make some observations.
58. The requirement that a decision making body give reasons for a decision made by it under the 2007 Regulations was considered by this Court recently in Kelly v. Commissioner of An Garda Síochána [2013] IESC 47, in which judgment was delivered by O’Donnell J. on 5th November, 2013, after the trial judge had delivered his first judgment in this case. O’Donnell J. analysed the provisions of the 2007 Regulations in relation to giving reasons in two contexts, neither of which applies in this case. First, he considered the requirement to give reasons at a board of inquiry level, which requirement he determined existed, although it was not specified in the 2007 Regulations. In that context, at para. 36 of his judgment he stated:
“In my view, therefore, a proper interpretation of the Regulations requires that reasons be given for any determination made by the Board of Inquiry unless it can be said that the issue is so self-evident and narrow that the mere fact of the decision discloses the reason.”
Earlier, at para. 35, he had commented that –
“. . . the Appeal Board must have some method, most obviously in a narrative and reasoned decision, to determine what facts have been ascertained, how they have been considered, and whether indeed such consideration is reasonable.”
Secondly, he considered the requirement in the context of the application of Regulation 35(2) of the 2007 Regulations. That provision provides that an Appeal Board may refuse to consider an appeal where, inter alia, –
“having considered the member’s statement of the ground or grounds of appeal, it is of opinion that the case made by the member is frivolous, vexatious or without substance or foundation.”
As is recorded in the judgment, the Appeal Board in that case, informed the solicitor acting for the member concerned that the Appeal Board had decided to refuse to consider the appeal on the grounds set out as that, having considered the member’s statement of grounds, it was of opinion that his case was “without substance or foundation”. Accordingly, the appeal, having been purportedly disposed of in that manner, it never got to the point of a decision by the Appeal Board, for which the Appeal Board would have been obliged to give reasons in accordance with Regulation 37(3). If it had, no doubt the observations of O’Donnell J. quoted above would have been applicable to its approach to the exercise of its functions, so that they are of relevance to the issue in this case.
59. Once again, in considering what happened in this case on the appeal of the respondent to the Second Appeal Board, it must be borne in mind that its function was to determine the appeal from the 2011 Inquiry Board. The Second Appeal Board had been furnished with all of the documentation which the 2011 Inquiry Board was obliged to include in its report in accordance with Regulation 30(2)(a), which included the transcript of the proceedings before the 2011 Inquiry Board. However, there were features of the hearing before the Second Appeal Board which have a bearing on the scope of its obligation to give reasons and the adequacy of the reasons given. Two examples will illustrate the point.
60. First, although the presenting officer, who presented the case before the 2011 Inquiry Board on behalf of the Commissioner, called five witnesses, who had been present at the event in September 2007, to give evidence, the respondent, although invited to do so, did not give any evidence at that hearing. However, the respondent was tendered as a witness before the Second Appeal Board, which heard his evidence. He was cross-examined by the presenting officer and he was questioned by members of the Second Appeal Board. So there was additional evidence called before the Second Appeal Board which had not been before the 2011 Inquiry Board. Secondly, as the transcript of the hearing before the Second Appeal Board discloses, there was also the dissension between the respondent’s solicitor and the presenting officer on behalf of the Commissioner, which has been referred to earlier in outlining the grounds advanced by the respondent in support of the asserted inadequacy of the reasons given by the Second Appeal Board, which dissension arose from arguments as to facts and the law advanced by each side.
61. Each of those features on its own raises questions as to the adequacy of the sole reason given by the Second Appeal Board for affirming the decision of the 2011 Inquiry Board as to alleged breach 1 (discreditable conduct). The reason merely states:
“. . . the evidence before the board of inquiry was credible and consistent”.
Taking those features together in the context of the question raised before the Second Appeal Board as to the true meaning of the “legal drug search” in alleged breach 1, it cannot be said that the issue for resolution by the Second Appeal Board is so self-evident and narrow that the mere fact of the decision to find the respondent in breach discloses the reason. Even on the foregoing limited analysis it has to be concluded that the reason given for the adverse finding made against the respondent, which the Second Appeal Board considered justified his dismissal from the force, was inadequate to meet the respondent’s entitlement to fair procedures.
Remittal
62. Although having come to the conclusion that the decision of the High Court should be set aside, so that the question whether, pursuant to Order 84, rule 27(4) of the Rules, the matter should be remitted to the Second Appeal Board for re-hearing falls away, the conclusions I have come to on the respondent’s case as regards the decision of the Second Appeal Board dated 20th August, 2012 and the consequent decision of the Commissioner dated 23rd August, 2012, in practical terms, have the same effect as the decision of the High Court would have had, namely there will be an order that both decisions be quashed. The consequence of that order will be that the determination of the 2011 Inquiry Board made on 28th February, 2012 and the subsequent decision of the Commissioner dated 26th March, 2012 will stand, although they have been appealed against by the respondent. That being the case, clearly justice requires that either that consequence is eliminated or, alternatively, the respondent is put in the position of being able to pursue his appeal against the determination of the 2011 Inquiry Board and the subsequent decision of the Commissioner by a process that is just and fair. As regards the first option, to eliminate the consequence suggested, it seems to me that this Court would have to quash the determination of the 2011 Inquiry Board and the subsequent decision of the Commissioner. If that course were to be adopted, further considerations would be whether the Court should make an order of prohibition prohibiting the continuation of the disciplinary proceedings against the respondent or, alternatively, remit the matter to the Commissioner to appoint a new board of inquiry to re-hear the matter. The second option is to put in place an order which will enable the respondent to pursue his appeal.
63. Counsel for the respondent submitted that to remit the matter for a re-hearing would be unfair to the respondent and that to allow the disciplinary process to be further prolonged would amount to an injustice. In support of his argument that what would ensue from a remittal would be likely to be unfair, counsel analysed a number of possible scenarios. One possible scenario would be to remit the matter to the Second Appeal Board, suggesting, however, that remitting the matter to the same individuals who made up the Second Appeal Board could not safely take place. Further, it was submitted that, in any event, the respondent should not lose the benefit of the determination in his favour on alleged breach 2 (improper practice). Another possibility analysed was to remit the matter to the Commissioner to enable him to establish a new appeals board. However, if that course was adopted, it was submitted that it would be contrary to fair procedures if any matter other than alleged breach 1 (discreditable conduct) was put before the new appeal board. It was suggested that, accordingly, it would be necessary for this Court to make an ancillary order to ensure that the authority of the new appeal board was confined to consideration of that single issue. A further submission was made by reference to the Report of the 2008 Inquiry Board as to what happened at the hearing before that board and by reference to the transcript of the hearing before the Second Appeal Board on 31st July, 2012 as to what happened on that occasion, suggesting that what was disclosed pointed to the fact that, even if the authority of a new appeal board was confined to alleged breach 1, an adverse finding could not be made against the respondent in relation to that alleged breach. As I have already indicated, I do not consider it appropriate for this Court on this application to have regard to the report of the 2008 Inquiry Board. It may be that the submission made on behalf of the respondent would be appropriate in another forum. I express no view on it.
64. Counsel for the respondent also supported his argument against remittal on the basis that the respondent has endured enough over the past seven and a half years, not merely the loss of his livelihood and the ability to provide for his family, but also the devastating loss of his career. Counsel referred the Court to the decision of this Court in McGrath v. Commissioner of An Garda Síochána (Appeal No. 2001/92) in which an ex tempore ruling was delivered by Finlay C.J. on 26th January, 1993, where at page 10, having recited the previous disciplinary proceedings and litigation arising therefrom, the Chief Justice stated:
“The appeal must be allowed and there should be an order of prohibition prohibiting the continuance of these disciplinary proceedings. Having regard to the fact that the authorities in July of 1991, chose to invoke the 1989 regulations and since that time for the last 18 months those Regulations have been, as it were, sought to be enforced against the Applicant in respect of the events which occurred in 1983 and 1984, I have no doubt that it would be unjust and an unfair procedure for them to be permitted now in the light of the decision of this court and the prohibition of those proceedings as invalid to institute any other proceedings in any form in respect of these events asserting that there were breaches of disciplinary code and I would so declare in addition by way of judicial review to the making of the order of prohibition.”
65. In reply, counsel for the appellants submitted that there is nothing in this case, which, as a matter of justice, would compel the termination of the disciplinary proceedings. It was also submitted that the circumstances in the McGrath case differ from the circumstances in this case, which, in my view, is correct. The emphasis in the passage from the judgment of Finlay C.J. in the McGrath case quoted above was on the fact that the events in issue occurred in 1983 and 1984 and that in July 1991 the regulations which were enacted in 1989 were invoked against the Applicant/Respondent in that case. Indeed, in the McGrath case, disciplinary proceedings arising out of the events in issue under Garda Síochána (Disciplinary) Regulations 1971 had been before the High Court by way of judicial review in 1989 and by way of appeal before the Supreme Court in 1990, (c.f. the decision of the High Court reported at [1989] I.R. 241; and the decision of the Supreme Court reported at [1991] 1 I.R. 69). In contrast, in this case, the disciplinary proceedings under Part 3 of the 2007 Regulations were commenced within four days of the happening of the alleged breaches, that is to say, in early September 2007. The first board of inquiry, the 2007 Inquiry Board, was established in February 2008. Its inquiry was deferred on the initiative of the respondent and by agreement pending the determination of the criminal proceedings in the District Court. After the determination of those proceedings the alleged breach which had been the subject of the District Court proceedings (possession of a controlled drug) was dropped. However, the inquiry by the 2008 Inquiry Board was stalled until 2010 as a result of the unsuccessful judicial review proceedings which were determined against the respondent by Kearns P. in July 2010. While it is true that since then, the respondent has been involved in two inquiries and two appeals under the 2007 Regulations, the determination of the 2008 Inquiry Board was quashed by the First Appeal Board in November 2011, the inquiry by the 2011 Inquiry Board and the appeal to the Second Appeal Board both took place in 2012, the judicial review proceedings took place in the High Court in 2013 and the respondent is now successful on this appeal in having the decision of the Second Appeal Board and the consequent decision of the Commissioner to dismiss the respondent quashed.
66. In Gillen v. Commissioner of An Garda Síochána [2012] 1 I.R. 574, lack of expedition in prosecuting Garda disciplinary proceedings was considered by this Court. In his majority judgment, Finnegan J. stated (at para. 32):
“I am satisfied that in having regard to the dual purpose of the statutory requirement for expedition in Garda disciplinary proceedings, in each case regard must be had not just to the interests of the individual Garda concerned, but also to the public interest in maintaining public confidence in the Garda Siochána. It was, of course, open to the legislature to provide a strict time limit for each stage of the disciplinary proceedings or an overall time limit but this was not done. I am satisfied that it was not the intention that a failure to proceed with expedition as required by the Regulations of 1989 will necessarily result in disciplinary proceedings becoming void. Each case will turn on its own particular circumstances. The court will have regard to all the circumstance in determining whether or not the failure progress the disciplinary proceedings has been such that to allow them to continue would be to disregard the legislative intention.”
Although the passage of seven and a half years in this case from the time the alleged breaches occurred to now is more attributable to the respondent having availed of the appeal procedures and litigation, as he was entitled to do, and in some cases justified in doing because he was successful, I consider that in determining whether to prohibit the continuation of the disciplinary proceedings similar considerations apply.
67. Considering what has happened in this case since July 2010, the conduct of the disciplinary proceedings has undoubtedly been erroneously conducted against the respondent on behalf of the authorities. However, the outcome of this appeal will be to rectify the erroneous conduct. When balanced against the public interest in maintaining public confidence in An Garda Síochána, what the respondent has had to endure since July 2010 in connection with the disciplinary proceedings does not warrant the exercise by this Court of its discretion to prohibit the continuation of the disciplinary proceedings.
68. That a new Appeal Board would be faced with the same problems created by the decision of the Commissioner dated 26th March, 2012 as have had to be addressed in this judgment is undoubtedly the case. Therefore, from a practical point of view, I think that the most expeditious and efficient way of dealing with the matter and, consequently, the fairest way, is to remit the matter to the Commissioner with a direction to establish a new board of inquiry to perform the same functions as the 2011 Inquiry Board was required to perform. I do not consider that it would be appropriate for this Court to interfere at this juncture with the exercise of the function of the Commissioner under the 2007 Regulations and, in particular, as to the scope of the functions of the new board of inquiry.
Summary of conclusions and order
69. Being satisfied that the appellants are entitled to an order setting aside the judgments and order of the High Court on the grounds argued on their behalf, there will be an order setting aside the curial parts of the order of the High Court other than the provision in relation to the stay on execution and liberty to apply.
70. However, being satisfied that the respondent has made out a case for the reliefs sought on the judicial review, the following orders will be made:
(a) an order of certiorari quashing the decision of the Second Appeal Board made on 20th August, 2012 in its entirety;
(b) an order of certiorari quashing the order of the Commissioner dated 23rd August, 2012 dismissing the respondent from An Garda Síochána; and
(c) an order remitting the matter to the Commissioner with a direction to establish a new board of inquiry –