Court dismisses appeal on ultra vires grounds but allows it on procedural delay in Garda complaints tribunal case.

THE SUPREME COURT

Record No: 258/98

Keane C.J.

Murphy J.

Murray J.

McGuinness J.

Geoghegan J.

BETWEEN

CHRISTOPHER McCARTHY and JOHN DENNEDY

APPLICANTS/APPELLANTS

and

THE GARDA SÍOCHÁNA COMPLAINTS TRIBUNAL, THE GARDA SÍOCHÁNA COMPLAINTS BOARD AND THE COMMISSIONER OF AN

GARDA SÍOCHÁNA

RESPONDENTS

Judgment of Mr. Justice Murray delivered the 15th day of March 2002.

The Applicants in this case are members of the Garda Síochána, with the rank of sergeant, who have been the subjects of the

investigation and adjudication procedure provided for in the Garda Síochána (Complaints) Act, 1986 where complaints are made

by or on behalf of a member of the public about the conduct of members of the force.

The Applicants’ appeal against the judgement and Order for Mr Justice Smyth in the High Court refusing them certain reliefs

against the Respondents which they sought by way of judicial review on the grounds that they had acted ultra vires the

powers conferred upon them under the 1986 Act.

A complaint which concerned the conduct of the Applicants having been investigated under the procedures laid down in the

Act, specific breaches of discipline were alleged against them by the Garda Síochána Complaints Board (the Board) for

adjudication by a tribunal appointed by the Board. Before the adjudication process was complete the applicants challenged, in

these judicial review proceedings, the lawfulness of the procedures carried out pursuant to the 1986 Act.

There are two basic grounds upon which the applicants rely in this appeal. One is the submission to the effect that the Chief

Executive of the Board acted ultra vires in formulated and alleging breaches of discipline to be referred to the Tribunal which

bore no relation to the complaint initially made against them and the Tribunal in turn acted ultra vires in embarking on an

adjudication upon those charges. In the other ground the applicants seek to impugn the proceedings before the Tribunal on the

grounds of delay.

Facts

In order to explain the first ground of appeal to which I have referred it is necessary to set out the sequence of events, which

are not really in dispute, commencing with the circumstances which led to the making of a complaint and the ensuing statutory

procedures which were followed under the Garda Síochána (Complaints) Act, 1986.

On 12th June, 1988 Derek Fairbrother was arrested in the early hours of the morning in the Finglas area by members of the

Garda Síochána and brought to Finglas Garda Station. He was detained there for a period of time before being eventually

removed by ambulance to hospital.

Sergeant McCarthy was on duty in Finglas Garda Station and received a radio message from the arresting gardaí to the effect

that they were on the way back to the garda station with the arrested person who was injured. Not being aware of the extent

of the injuries, Sergeant McCarthy telephoned for an ambulance as a precautionary measure. After Mr. Fairbrother had been

brought to the garda station and placed in a cell Sergeant McCarthy spoke to him. He noticed some blood on the back of his

head but there was no bleeding at that time. According to his account he asked Mr Fairbrother if he wished to see a doctor and

he replied that he wanted to see his own specialist. Shortly afterwards Sergeant McCarthy met two ambulance men in the

hallway of the garda station who had responded to his earlier call. He told the ambulance men to leave as Mr. Fairbrother was in

custody and his injuries did not appear to be serious and he would call a garda doctor to examine him. The ambulance men then

left. Sergeant Dennedy’s account of what occurred in the garda station included an account of how members of Mr.

Fairbrother’s family, including his father, arrived at the garda station at 6.35am demanding to see the prisoner. He described

them as being very disorderly, shouting abuse and insults. Because of their behaviour he said he feared for his safety, that of

the station orderly and also for the safe custody of the prisoner. He described them as acting like a “mob” and refused to let

any of them see the prisoner. At 6.50am the doctor called by the gardaí arrived. Later an ambulance was called to take Mr.

Fairbrother to hospital because, according to Sergeant Dennedy, he refused to be examined by Dr. Williams. Controversy was to

arise over the circumstances under which Mr. Fairbrother was arrested, received injuries and his treatment in custody.

Arising from these events Derek Fairbrother’s solicitor wrote a letter in the following terms to the Superintendent at the Cabra

Garda Station:

“June 15th, 1988

To Superintendent E.Sweeney,

Garda Siochana,

Cabra Station,

Dublin 7.

Dear Sir,

We have been consulted by Mr. Derek Fairbrother of Kilcaskan, Mays Court, the Ward, County Dublin in connection with

an incident at Finglas Garda Station within your district between 3.30 and 5.00 a.m. on Sunday morning last the 12th

June, 1988.

Our client alleges that he was wrongfully arrested and imprisoned by the Gardaí concerned and in the course of such

arrest and imprisonment was seriously assaulted as a result of which he received very serious and very sever injuries

inflicted by a number of members of the Garda siochana. The injuries consisted of severe cuts and bruises as a result of

which he lost consciousness and after a time was conveyed to the Mater Hospital by ambulance where he was and still

is detained.

Obviously at this stage we haven’t had an opportunity of obtaining full and detailed instructions from our client but we

are concerned that the matter be brought to your attention as soon as possible so that you may have an opportunity of

having the matter fully investigated and enquired into. In this regard the writer has been in telephone conversation with

you today and tried to make telephone contact with you yesterday. We appreciate your assurances that the matter will

receive your immediate attention and will be fully investigated and reported upon to the Director of Public Prosecutions.

In the meantime, we also confirm that we will arrange for Mr. Fairbrother to make a full and detailed statement to

yourself or your representative as soon as he is available to do so but pending his being so available we will arrange for a

number of members of the public who have come forward as witnesses to the incident to contact yourself or your

representative Inspector Meeley with a view to making statements and assisting your inquires in every way.

We must also call upon you as a Senior member of an Garda Siochana in the District to furnish to us details of all names

and addresses, numbers etc. of the members involved as well as admit liability to our client for all his injuries, losses,

etc. arising from the matter will have to be thorough and neither our client, his family or ourselves wish to in any way

obstruct or interfere with this, we suggest that for the present and at least until such time as the writer is in the

position to bring our client to yourself or Inspector Meeley for an interview that you communicate through this office

should you wish to contract him. Please understand that this is only meant as an interim arrangements until his

confidence in yourself and your Inspector is restored and we feel it will be when he meets you.

Yours faithfully,”

On June 20th, 1988 the letter of complaint was forwarded to the Chief Executive of the Garda Complaints Board. On June 22nd

the Chief Executive, having formed the opinion that the complaint was admissible under the 1986 Act, requested the Assistant

Commissioner to appoint an investigating officer and Superintendent Jordan was appointed to investigate the complaint.

On 23rd June, 1988 the two respondents were duly notified of the complaint made in the following terms, “that Derek

Fairbrother. . . alleges that on 12th June, 1988 he was wrongfully arrested and imprisoned by the Gardaí and in the course of

such arrest and imprisonment was seriously assaulted as a result of which he received very serious and severe injuries

inflicted by a number of members of An Garda Síochána.” In August, 1988 the investigating officer submitted a preliminary

report to the Chief Executive of the Board subsequent to which the Board referred the entire file to the D.P.P. He decided no to

initiate a prosecution but subsequent to that the Board decided to defer a further consideration of the matter pending the

disposal of civil proceedings which had been brought by Mr. Fairbrother. The civil proceedings were finally disposed of in

November, 1992. Also in that month a new investigating officer had been appointed to replace the previous one, who had

retired. In July, 1993 a report of the second investigating officer was submitted to the Chief Executive and a further report of

that investigating officer was submitted to the Board in December, 1993. In February, 1994 the Board again referred the file to

the D.P.P. who, in April 1994 conveyed to the Chief Executive that he would be initiating no prosecutions.

On 20th May, 1994 the Chief Executive of the Board, having determined the particular breaches of discipline to be alleged

against the two respondents, notified them of the breaches of discipline on 20th May, 1994. They were also notified of the

setting up of a tribunal. This was the first occasion on which the respondents became aware of the breaches of discipline being

alleged against them. The breaches of discipline were as follows:

1. In the case of Sergeant McCarthy that “on 12 June, 1988, at approximately 6 a.m., having initially summoned an

ambulance for Derek Fairbrother, you failed contrary to your duty to ensure promptly that the medical treatment and

hospitalisation then immediately required and available for Derek Fairbrother was made available to Derek Fairbrother

without good and sufficient cause.”

2. In the case of Sergeant Dennedy that “on 12 June, 1988, between 6 a.m. And 8 a.m. at Finglas Garda Station, Finglas,

Dublin you failed contrary to your duty to allow promptly a prisoner in your care, Derek Fairbrother, to be visited by his

family without good and sufficient cause.”

The 1986 Act

For the sake of brevity and convenience I propose to set out here just some selected provisions of the Act concerning an

admissible complaint and the referral of breaches of discipline to a tribunal.

“4.—(1) ( a ) A member of the public who is directly affected by, or who witnesses, any conduct of a member and who

wishes to have a complaint concerning that conduct considered by the Board shall himself or through his solicitor or, in

the case of a person under the age of seventeen years, through a parent or guardian or, in the case of a person who is

mentally handicapped or mentally ill, through a parent or guardian or some other person interested in his welfare make a

complaint in relation thereto orally, or send or give it in writing, to the Board at the office of the Board, to a member at

a Garda Síochána station or to a member above the rank of chief superintendent at a place other than a Garda Síochána

station within six months of the date of the conduct.

4.—(( 3 ) ( a ) On receipt by the Board of a complaint or of a notification under subsection (2) of this section, the chief

executive shall consider whether the complaint is admissible and the complaint shall be admissible if the following

conditions are satisfied—

(i) the complainant was a member of the public,

(ii) the complainant was directly affected by or witnessed the conduct alleged in the complaint,

(iii) the said conduct would constitute an offence or be conduct specified in the Fourth Schedule to this Act,

(iv) the date on which the said conduct was alleged to have occurred was on or after the establishment day and

within six months before the date on which the complaint was made,

(v) the application of this Act to the said conduct did not, by virtue of section 15 of this Act, stand excluded on

the date on which the complaint was made, and

(vi) the complaint is not frivolous or vexatious.

7.—((5) Subject to subsection (7) of this section, if the Board is of opinion that a breach of discipline on the part of the

member concerned (other than a breach referred to in subsection (4) of this section) may be disclosed, it shall refer

the matter to a tribunal.

9.—(1) Where a matter is referred to a tribunal under section 7 (5) of this Act—

( a ) the chief executive shall determine the particular breach or breaches of discipline to be alleged against the

member concerned before the tribunal,

( b ) the chief executive shall notify each member of the tribunal of the breach or breaches of discipline aforesaid

and the names and addresses of the witnesses whom he wishes to attend before the tribunal, and

( c ) the tribunal shall hold an inquiry into the matter unless the conduct alleged in the complaint concerned, or

conduct which is in substance the same, is admitted by the member concerned.”

Submissions of the Applicants

The Applicants submit that the specific breaches of discipline notified to them for the first time on May 20th, 1994 and referred

to the tribunal for adjudication bear no relation whatsoever to the matters alleged in the original complaint. It was submitted

that any charge of a breach of discipline which is brought against a member of the Gardaí following the making of a complaint

under the 1986 Act must bear a relationship to that complaint. The original letter of complaint from Mr. Fairbrother’s solicitor

was in essence one of wrongful arrest, imprisonment and assault. There was no mention of any complaint in relation to the

sending away of an ambulance or the refusal of a family visit. Similarly the investigating officer was appointed to investigate a

complaint, notified to the respondents, and which was summarised in terms of wrongful arrest, imprisonment and assault. Again

no mention was made of allegations in relation to the sending away of an ambulance or the refusal of a family visit. It was

submitted that the scheme of the Act does not envisage the referral to a tribunal breaches of discipline which bear no

relationship to the original complaint even if they emerge in the course of an investigation into that complaint.

Since the breaches of discipline ultimately alleged against the respondents bore no relationship to the original complaint the

consequence is that as regards those breaches of discipline there had been no complaint under section 4(1), there was no

consideration of those matters by the Chief Executive as required under section 4(3) for the purpose of determining whether

those matters constituted an admissible complaint. In short the respondents submit that all the steps which were taken or

required to be taken under section 4, section 5(1), section 6 subsections (1) and (2), section 7 subsections (1), (3) and (4)

were taken in relation to the original complaint and not in relation to the specific breaches which are now alleged against each

of the respondents. In order that the tribunal would have the power to adjudicate on these specific breaches of discipline all of

these statutory steps ought to have been followed in relation to them. Since the alleged breaches of discipline bear no

relationship to the original complaint none of those steps or provisions of the 1986 Act were applied in respect of them.

Furthermore, in the circumstances of the case, no complaint relating to those breaches of discipline was made within six months

from the date of the events the subject matter of the complaint as required by section 4(3)(a)(iv). The respondents were

deprived of certain safeguards in the Act by virtue of the fact that the statutory procedures were not followed in relation to

the specific allegations of breaches of discipline now made against them. As a consequence the opinion of the Board that a

breach of discipline may have been disclosed was ultra vires the powers of the Board, void and of no effect.

Submissions of the First Named Respondent

On this point the first named respondent relied principally on the statement of the learned trial judge in his judgment as follows:

“Much argument rested in the format of this complaint. In my view, however, the Act permits of the making of an

informal complaint or the making of a complaint in the fashion done here or the making of a complaint orally. The

complaint is not a form of pleadings or cast in stone, it is meant to convey sense. In my view no undue pedantry is

warranted. There is no obligation to set out in exhaustive attribilious detail each and every characteristic that goes into

the sense of the complaint. It is essential that it contains the substance of the complaint made.”

It was further submitted that the submissions of the applicants constitute a formalistic approach the interpretation of the 1986

Act and is one which would defeat the policy of the Act. The object of the Act would be frustrated if breaches of discipline

arising out of the same subject matter as the original complaint, which came to light in the course of the investigation of that

complaint but could not be the subject of a referral to the tribunal. The purpose of the 1986 Act is to facilitate the making of

complaints by members of the public, to prescribe a mechanism for their investigation and their final determination. The

formalistic interpretation of the Act by the applicants would defeat those objects. This submission is fortified by the policy of

the Act as found in section 9(1)(2) which enables the tribunal to make a finding that there has been a breach of discipline other

than that referred to the tribunal where the facts established constitute “another breach of discipline” (provided that the other

breach is less serious than the breach originally alleged). This section underlined the jurisdiction or power of the tribunal to

adjudicate and make findings as to breaches of discipline on the part of members of the Garda Síochána which were not

specified in the original complaint made as to their conduct.

Decision

The Garda Síochana Complaints Act, 1986 provides for two distinct procedures, investigation and adjudication.

The long title to the Act begins with the words “An Act to provide for a system of investigation and adjudication of complaints

. . . ” The investigation procedures provided for by the Act are triggered, so to speak, by the making of a complaint by a

member of the public concerning “any conduct” of a member of the Garda Síochána. Assuming that the complaint is not the

subject of an informal resolution the investigation procedures conclude with a written report of the investigating officer and its

submission to the Chief Executive of the Board. It is only after the completion of the investigation and the consideration of the

report that the Board refers the matter to a tribunal where it is of the opinion that a breach of discipline on the part of the

member concerned may be disclosed. Section 9(1) then provides that the Chief Executive shall determine the particular breach

or breaches of discipline to be alleged against the member concerned before the tribunal. Subsequently the adjudication process

proceeds before the tribunal.

All of the arguments of the Applicants hinge on whether the specific charges referred by the Board to the tribunal in this case

are so unrelated to the original complaint that the Board acted improperly and ultra vires in making such referral. All the

arguments areconsequential to that premise which, if incorrect, must fail.

The investigation procedure is set in train by the making of an admissible complaint. The investigation procedure concerns a

complaint as to conduct. Section 4 (1)(a) provides that any member of the public who is directly affected by or who witnesses

any conduct of a member may make a complaint orally or in writing concerning such conduct. In the case of a person under the

age of 17 years or a person who is mentally handicapped or mentally ill the complaint may be made by other persons, specified

in the Act, on their behalf.

I think it is quite clear that Section 4 does not envisage complaints from the public which are necessarily precise and formal as

to whether a garda member has committed an offence or a breach of discipline. It is a complaint about conduct which may be

made in writing or orally. A complainant who is not directly affected by the conduct but is a witness to it may make a complaint

because of certain conduct which he or she considers improper on the part of a garda member without being able to specify

that the conduct is in breach of a particular code of conduct or constitutes a particular offence. A parent or guardian may

make a complaint on the basis of what he or she was told by a child under the age of 17 without being privy to all the facts and

circumstances but sufficiently informed to conclude that there may have been some improper conduct. To require that members

of the public present their complaints in a formalistic and comprehensive form would be an obstacle to the effective complaints

procedure envisaged by the Act.

A complaint will be admissible under Section 4 if, inter alia, the conduct would constitute an offence or would be conduct

specified in the fourth schedule to the Act. The complainant is not required to specify any offence or any conduct set out in

the fourth schedule. What happens is that the complaint having been transmitted to the Board, the Chief Executive examines

the complaint and considers whether it would constitute an offence or would be conduct specified in that schedule. Many of

the matters referred to in that schedule are set out in broad terms such as discourtesy towards a member of the public or

neglect of duty, such as failing promptly to do anything which it is a member’s duty to do. In short the Act envisages that a

complainant makes a complaint about conduct and once it is found that the complaint is admissible then that conduct is the

subject of investigation. Leaving aside the question of informal resolution of complaint, which is not strictly relevant to the

circumstances of this case, the whole object of the appointment of an Investigator after a complaint has been found to be

admissible is to ascertain whether the facts and circumstances disclose that an offence or a breach of discipline may have been

committed by the member or members concerned.

I think it is also important to emphasis that under Section 6 an officer of the Garda Siochana is appointed to investigate an

admissible complaint, that is the informal complaint in relation to conduct which has been made by or on behalf of the member

of the public, and not into any particular offence or breach of discipline. Similarly Section 4(4) speaks of the nature of the

complaint being notified to any member of the gardaí concerned. A complaint is not a charge, it is clearly not intended to be a

formalisation of allegations so that they fit in with specific offences or breaches of discipline. It is sufficient to inform the

member concerned at this stage of the general nature of the complaint.

It is quite clear, therefore, that the investigation process which is carefully set out in the 1986 Act, intends that the conduct

of the members concerned be investigated in order to ascertain whether a particular offence or breaches of discipline may

possibly have occurred.

Even though a complaint may in many cases include allegation which amount to a specific charge against a member, it is

nonetheless the conduct of the member in relation to the complaint that is investigated by the investigating officer. It is only

the D.P.P. which may bring criminal charges against a member in the circumstances envisaged in the Act (when the matter is

referred to him) and specific breaches of discipline may only be alleged after the investigation has been complete and the Board

has referred the matter to the tribunal. A written complaint or a written note of an oral complaint cannot therefore be treated

as a formal document limiting the scope of the investigation to its strict wording. Such an approach would defeat the object of

the Act. Members of the public may not always be able to articulate their complaints concerning a conduct of a member in a

precise or complete fashion. The clear intention of the Act is that it is sufficient if a complaint made by a member of the public

discloses, not grounds for initiating disciplinary procedures against a member, but grounds for initiating an investigation which

may or may not ultimately disclose such grounds.

It seems to me to follow that an investigation following a complaint concerns an investigation of the conduct of a member of

the gardaí on the occasion or in connection with the event or events which are the subject of the complaint. It is only after the

completion of the investigation that the breaches of discipline must be specified.

It was submitted on behalf of the Applicants’ that the breaches of discipline so preferred cannot be breaches which bear no

relation to the original complaint. So put, the Applicants are correct but it seems to me that their understanding of what may

constitute a relationship to the original complaint is too narrow and is based on an erroneous view that the complaint must be

literally and strictly interpreted.

In my view it is sufficient if the breaches of discipline which are eventually preferred against a member are related to or arise

out of the conduct complained of having regard to the circumstances or events with which the complaint is concerned. In this

respect I think the learned High Court Judge was entirely correct in his approach.

If for example a complainant complained of being assaulted whilst detained in a cell in a garda station and an investigation

disclosed that the member-in-charge failed to record a visit to his cell by two members of the gardaí in or about the time of the

alleged assault, I do not see any reason why a disciplinary charge could not be brought against the member-in- charge

(assuming the failure to record constitutes a breach of discipline). The failure to record would certainly be something which

related to the circumstances in which the prisoner was held in custody and concerns access to his cell by members of the

gardaí at a time relevant to the complaint made. On the other hand if an investigation into the records of the garda station

relating to such a complaint also and incidentally disclosed that a member had made an improper claim for overtime or expenses

such conduct would be so unrelated and remote from the original complaint that it would have to be treated as a wholly distinct

matter to be dealt with separately from the complaint under investigation.

In this particular case the complaint first of all concerned the wrongful arrest and imprisonment of Mr. Fairbrother and went on

to complain that in the course of his arrest and imprisonment he was assaulted as a result of which it was alleged he received

serious injuries which ultimately led to him being conveyed to the Mater Hospital by ambulance. The complaint requested that

the matter be fully investigated and inquired into.

The breaches of discipline preferred against the Applicants alleged, as against, Sergeant McCarthy, that he failed to ensure

promptly that Mr. Fairbrother was given medical treatment and hospitalisation and secondly as against Sergeant Dennedy, that

he failed to allow Mr. Fairbrother to be visited promptly by his family, without good and sufficient cause.

As can be seen, the complaint included allegations that Mr. Fairbrother was wrongfully imprisoned in circumstances where he

was allegedly suffering from severe injuries. It is clear that any investigation into such a complaint was going to focus, to a

significant degree, on the circumstances and conditions of Mr. Fairbrother’s detention in Finglas Garda Station including any

aspect of his treatment there by any garda members concerned. An investigation or consideration of facts as to whether he

was given the medical attention to which garda members had a duty to ensure was clearly material to the complaint being

investigated. Equally where there is a complaint concerning garda conduct towards a prisoner in their custody, who has

recently been arrested and is clearly suffering from some injuries, I cannot see how it can be validly contended that the

granting or refusal of a visit by members of his family, which included his father, can be said to be unrelated to a complaint

concerning the wrongfulness of his imprisonment.

For reasons which I have indicated earlier a complaint about the “wrongfulness” of a prisoner’s detention should not be

construed in a pedantic or technical fashion. It is clear that the thrust of the complaint concerned the treatment of Mr.

Fairbrother by garda members on his arrest and during his imprisonment in Finglas garda station. Once their conduct and the

treatment of Mr. Fairbrother is the subject of a complaint then the investigating officer was entitled to consider and report on

all the circumstances relating to his treatment while in garda custody.

In my view the breaches of discipline alleged against the Applicants were related to the original complaint and certainly were

not so unrelated as to render the action of the Board in referring the matter to the tribunal ultra vires their powers.

For the same reasons I am of the view that the Applicants were given sufficient notice of the nature of the complaint under

Section 4 of the Act when they were so informed in the terms outlined earlier in this judgment. I would add, although I do not

think it is in any way decisive, that both Applicants, when they made statements concerning their conduct after being notified

of the nature of the complaint specifically addressed, in Sergeant McCarthy’s case, the reasons and circumstances under which

he sent away the ambulance and called the garda doctor and in Sergeant Dennedy’s case, the circumstances under which he

refused Mr. Fairbrother’s family access to him. That is not decisive because even if they had not mentioned such matters it

would not have altered the fact that they are related to the original complaint but clearly the Applicants considered those

matters relevant to the complaint.

I conclude therefore that the Act distinguishes between an investigative procedure and the adjudication procedure. The object

of an investigation into a complaint concerning conduct, like any investigatory procedure, is intended to ascertain whether or

not an offence or breach of discipline has been committed. If it is disclosed that a breach of discipline may have been

committed then the Board may refer the matter to a Tribunal for adjudication once the breaches of discipline concerned relate

to or arise out of the conduct complained of. That was the position in this case. The requirement that allegations of breach of

discipline be specified in precise terms only arises at the adjudication stage. It is at that point that the member or members

concerned are entitled to know precisely the charges since it is only at that stage that the question of determining whether or

not they are guilty of such breaches arises for actual determination.

For the foregoing reasons I would dismiss this ground of appeal.

I have had the benefit of reading the judgment of Geoghegan J. on the question of delay. I agree with his judgement and that

the appeal be allowed on that ground.