Today's article looks at a Supreme Court case where a Garda argued that a five year delay in a disciplinary process had prejudiced his right to a fair hearing.

Case Name And Reference: Gillen v The Commissioner of an Garda Siochana & ors [2012] IESC 3 (26 January 2012)

Court Or Tribunal: Supreme Court

Jurisdiction/Subject Matter: Application by Garda to restrain Employer from continuing with an Investigation. Public interest.


Introduction

A Garda sought to prevent his employer from proceeding with a disciplinary investigation on the ground that the delay of approximately 5 years by the Employer in processing the alleged breaches of discipline on the part of the applicant was inordinate and inexcusable and breached the applicant’s right to natural and constitutional justice and fair procedures, was ultra vires and in breach of statutory duty and breaches his legitimate expectation that serious allegations of misconduct alleged against him pursuant to the Garda Siochána (Discipline) Regulations 1989 would be dealt with expeditiously.

The Supreme Court dismissed the Garda’s application notwithstanding the significant delay, taking into account the public interest in such investigations.


Factual Background

On 4th September 1999 the body of Raonaid Murray was found at Glenageary. She had suffered stab wounds. A murder investigation commenced immediately.

Garda Gillen was appointed as Family Liaison Officer to the Murray family to support and assist the family during the course of the investigation. He was not involved with the murder investigation as such.

A complaint was made by the family alleging that on the 15th October 1999 Garda Gillen had not returned home with another daughter from a public house at an agreed time, had driven their daughter home in circumstances where he had taken alcohol and would have been over the legal limit. The father reserved the right to make a formal complaint at a future date.

The Garda Siochána (Discipline) Regulations 1986 require that matters shall be investigated as soon as practicable by a member not below the rank of inspector


Chronology

The relevant dates accordingly are as follows:

4th September 1999 - Murder.
15/16th October 1999 - Alleged disciplinary offences.
16th October 1999 - Complaint by the family.
28th April 2002 - Inquiry by the family.
12th July 2002 - Family informed that Inspector was dealing with the matter.
26th November 2002 - Letter from the parents enclosing statements detailing the complaint and making a formal complaint.
23rd January 2003 - Chief Superintendent and Inspector met with the family.
23rd March 2003 - Parents confirmed their wish to complain to Garda Siochána Complaints Board.
20th July 2003 - Family wrote to the Chief Executive of An Garda Siochána Complaints Board.
25th March 2004 - Complaint deemed inadmissible by An Garda Siochána Complaints Board.
4th May 2004 - Chief Superintendent appointed to investigate.
4th May 2004 - Notice of appointment of Chief Superintendent served on appellant.
April 2004 to October 2004 - Statements taken.
3rd November 2004 - Garda and solicitor met with Chief Superintendent and the statements taken were read over to them.
22nd November 2004 - The investigation file received.
4th January 2005 - Form B30 and Form B33(B) completed.
21st January 2005 - Garda served with Forms B30 and B33(B).
21st February 2005 - Leave to apply way by way of application for judicial review granted.


Arguments

Garda Gillen relied upon the chronology and submitted it disclosed inordinate and unreasonable delay. He contended that his Employer had not offered any reasonable explanation for the delay. Regulation 8 provides that “where it appears that there may have been a breach of discipline, the matters shall be investigated as soon as practicable by a member not below the rank of Inspector.” As of the 16th October 1999 his superiors were aware that there may have been a breach of discipline and that required investigation as soon as practicable.

The Court noted that there is a dual purpose for 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.

Accordingly, the Court was satisfied that it was not intended that a failure to proceed with expedition as required by the Regulations will necessarily result in disciplinary proceedings becoming void.
In this case, the delay arose because of the family’s wish not to make an immediate formal complaint, which could only have added to their distress at a very difficult time.

While there was an explanation for the period of delay, the Court then had to consider whether the delay has resulted in an interference with Garda Gillen’s right to a fair hearing or if he has been otherwise prejudiced

Garda Gillen contended that he had been prejudiced in two ways:

A. The fact that disciplinary proceedings were pending or depending caused him concern and anxiety.
B. He had applied for a position as a detective prior to the events giving rise to the complaint. He had been interviewed by the Detective Unit and had been recommended for the position. He was notified that he had been successful and had been placed on the reserve list. Had he been appointed he would have become entitled to additional allowances, increased overtime and perhaps better hours. In September 2003 he was made aware that he had been removed from the reserve list and he has not been appointed to the Detective Branch.


Findings and Decision

The Court accepted that every complaint will lead to concern and anxiety but said of itself this is not a reason which will justify prohibition of disciplinary proceedings.

The Court also accepted that pending or depending disciplinary proceedings, as in this case, may result in an inability to advance one’s career or profession. Where the complaint of misconduct is subsequently found to be unsubstantiated this will result in hardship. But it is hardship which is an unavoidable consequence of the complaint.

In short, the Supreme Court said in such circumstances it must balance the public interest against the prejudice to the individual concerned. In this case, the court was satisfied that in this instance the balance falls in favour of the public interest and in favour of the disciplinary process proceeding. The public interest in this case should prevail.

Full decision online:
http://bit.ly/yr7ZB0