Supreme Court allows appeal on delay grounds but dismisses claim regarding Chief Executive Officer's power to frame discipline breaches.

Keane C.J.

Murphy J.

Murray J.

McGuinness J.

Geoghegan J.

258/98

THE SUPREME COURT

JUDICIAL REVIEW

BETWEEN/

CHRISTOPHER McCARTHY AND JOHN DENNEDY

Applicants/Appellants

and

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

SÍOCHÁNA

Respondents

JUDGMENT of Mr. Justice Geoghegan delivered the 15th day of March 2002

This is an appeal against the refusal by the High Court (Smyth J.) to grant to the appellants certain remedies by way of judicial

review against the respondents. The application pursuant to leave proceeded along traditional lines with a detailed statement of

grounds which in turn contained eight different reliefs all with the object of stopping complaint proceedings pursuant to the

Garda Síochána (Complaints) Act, 1986, the appellants being two members of the force covered by the grounding complaint.

Having regard to matters raised in affidavits and what appeared to be substantial discovery Kelly J., in the High Court, by way

of case management, directed that the proceedings be converted into plenary proceedings with pleadings in the form of

statement of claim and defence. A very detailed statement of claim was then delivered which contained thirty eight paragraphs

and thirteen reliefs. The defence was for the most part a traverse of the matters alleged in the statement of claim. At the

hearing of this appeal however the appellants relied essentially on two grounds, the first being delay and the second being

ground A(1)(g) originally set out in the statement of grounds in the following way.

"The Tribunal did not address the applicants' arguments or apply the law correctly as to the power of the Chief

Executive Officer of the Garda Síochána Complaints Board on receipt of the completed report of the Investigating

Officers' investigation into the Complaint, to formulate and allege as breaches of discipline to be referred by him to the

Tribunal which bear no relation to the conduct the subject of the complaint."

The second ground can only be explained in the context of the original complaint for the purposes of the 1986 Act which was

made on behalf of a Mr. Derek Fairbrother by Gerry Brady and Company, Solicitors, and was in a letter dated 15th of June,

1988. I think it helpful to cite the letter in full. It reads as follows:

"Dear Sirs

We have been consulted by Mr. Derek Fairbrother of Kilcaskin, 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 of

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 severe injuries

inflicted by a number of members of the Garda Síochána. 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 inquired 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 to 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 inquiries in every way.

We must also call upon you as a senior member of An Garda Síochána 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 on their behalf as well as on the behalf of the Minister for Justice as at this stage it would

appear we will be instituting civil proceedings on behalf of our client.

While we appreciate that your inquiries in this 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 a position to bring our client to yourself or Inspector Meeley for an interview that you communicate

through this office should you wish to contact him. Please understand that this is only meant as an interim arrangement

and until his confidence in yourself and your inspector is restored as we feel it will be when he meets you.

Yours faithfully."

It is obvious that this complaint is essentially one of assault and wrongful imprisonment. In the event, however, the second-

named respondent (the Garda Síochána Complaints Board) following on perusal of the investigation reports, purported to decide

pursuant to s. 7(5) of the 1986 Act to refer and did in fact refer the matter to the first-named respondent (the Garda Síochána

Complaints Tribunal). They did so on the grounds that the Board was of the opinion that the conduct alleged in the complaint

may have disclosed the following two breaches of discipline against the appellants.

In the case of the first-named appellant, Christopher McCarthy that

"on the 12th of June 1988 at approximately 6.10 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."

In the case of the second-named appellant, John Dennedy that

"on the 12th of June 1988 between approximately 6.00 a.m. and 8.00 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 appellants' contention is that the respective breaches of discipline alleged against each of them fell outside the ambit of

the original complaint, that they were never given an opportunity to respond to them and that independently altogether of any

delay point the Board had no jurisdiction to formulate such alleged breaches of discipline and the Tribunal had no jurisdiction to

entertain them.

I propose to deal with the delay point first and I will return to the jurisdictional issue.

The question of time arises in two ways though to some extent they overlap. The appellants, for reasons which I will explain,

allege that there has been gross delay in the complaint procedure under the 1986 Act and that this is directly contrary to

provisions in the Act itself which require speed quite apart from any general requirements of expedition by virtue of a

constitutional right to fair procedures. Indeed the appellants go further. In so far as the appellants are relying on express

statutory obligations of expedition they are arguing that breach of any such statutory stipulation renders void all steps taken

thereafter and in putting forward this argument they particularly rely on the decision of this court in McNeill v. Commissioner of

An Garda Síochána [1997] 1 I.R. 479. It is necessary to examine first what the statute does say about time in so far as the

obligations are relevant to this case. The relevant provisions can be summarised as follows:-

1. The specified garda officer must notify the Chief Executive of the Garda Síochána Complaints Board of the complaint

"as soon as may be" after receipt of the complaint.

2. Once the Chief Executive is of opinion under the Act or the Board decides under the Act that the complaint is

admissible the Commissioner has to be notified "as soon as may be" and he in turn is obliged "as soon as may be" to

notify in writing the member concerned that a complaint (the nature of which shall be specified in the notification) has

been made against him by a specified person.

3. The Commissioner is obliged to appoint an investigating officer and the investigating officer is in turn obliged to

complete the investigation "as soon as may be" and if he cannot do it within thirty days he has to furnish an interim

report.

4. When the investigation is completed the report must be furnished to the Chief Executive "as soon as may be".

5. The Chief Executive is then obliged to submit to the Board "as soon as may be" the report together with his comments

in writing thereon and a recommendation as to what action might appropriately be taken by the Board.

6. Subject to special provisions concerning references to the D.P.P. if a criminal offence is disclosed and to postponement

of further procedures if civil proceedings are in being the Board, if it is of opinion that a breach of discipline on the part of

the member concerned may be disclosed, must refer the matter to the Garda Complaints Tribunal. When it does this the

Board must "as soon as may be" notify the complainant and the member concerned of any action of the Board in this

regard.

There are other refinements within these provisions but I think that I have broadly explained the nature of the time obligations

which are involved. It is now necessary to consider the submissions of the appellants.

First of all the appellants argue in a general way that the Oireachtas envisaged that the investigation and prosecution of

complaints against members of the Garda Síochána were to be dealt with as expeditiously as possible. There is no doubt about

that but in interpreting the statutory provisions it must be borne in mind that the Oireachtas clearly intended expedition both in

the interests of the complainant and in the interests of the members complained about. It could never have been intended that

if there was some small delay in the procedures and possibly indeed delay engineered by the Garda authorities themselves, the

matter could never be processed further as this would be grossly unfair to a complainant not in any way responsible for the

delay. On the other hand a disciplinary complaint against a member of the force is a serious matter and under any reasonable

interpretation of the legislation it would have been intended that the expedition was also in the interests of those members.

Accordingly, a reasonable balance must be struck between what could be conflicting interests in determining whether in any

given circumstance there was a delay which offended the time provisions in the Act irrespective of whether the time provisions

are to be regarded as mandatory or directory.

No complaint of delay is made in relation to the period commencing on the 12th of June, 1988 the day of the alleged wrongful

arrest, imprisonment and assault and the 12th of December, 1988 the date upon which the Board decided to postpone further

consideration of the matter to await civil proceedings allegedly instituted by Mr. Fairbrother. I will return to this matter later on

in the judgment because it would appear that the Board purported to exercise powers under s. 6(6) of the 1986 Act to

postpone further consideration of the matter to await proceedings which the Board believed had already been instituted by Mr.

Fairbrother. In fact he did not institute such proceedings for a further fourteen months. He then did so and his action was

ultimately settled but the postponement by the Board accounted for approximately four years of delay altogether.

The second period of delay was from the 4th of November, 1992 until the 22nd of July, 1993. Mr. Fairbrother's civil action had

been settled on the 4th of November, 1992. By that time the original investigating officer had retired and a new investigating

officer, Superintendent McLoughlin, had been appointed. He considered that the information before him was inadequate and

that he wanted to see transcripts of the trial which he ultimately obtained in March, 1993 and submitted a report in May, 1993.

That report and recommendations that went with it were not put before the Board by the Chief Executive until the 22nd of July,

1993. I can find nothing unreasonable in this particular period of delay and it was not heavily relied on in oral argument.

There are then two further periods of delay alleged, the first running up to the 21st of December, 1993 when the Board

received a further report of Superintendent McLoughlin and the fourth running up to the 14th of February, 1994 when there was

a board meeting and a decision to refer the file to the D.P.P. If the D.P.P. decided there should be no prosecution then the

matter should be referred to a tribunal. It should be mentioned at this point that the file had been previously referred to the

D.P.P. and he had decided on no action. On the 7th of April, 1994 the D.P.P. informed the Chief Executive of the Board that he

did not intend to institute proceedings but the appellants complained that it was not until the 20th of May, 1994 that they were

informed that in the opinion of the Board breaches of discipline may have been disclosed and that the Board had referred the

matter to a tribunal. It is argued that even if the delay caused by postponing consideration of the matter pending the

determination of the civil proceedings brought by Mr. Fairbrother was justified the very fact of that delay provided an added

onus to ensure that the other steps were then taken as quickly as possible and it is argued that that was not done.

I do not consider that there was any fatal delay after the second decision of the Director of Public Prosecutions was

communicated. I am, therefore, of opinion that there is only one serious delay issue in this case and that relates to the

postponement of the civil proceedings. I will now return to this aspect of the matter.

From a statement issued the next day we know that the decision to postpone, pending the outcome of the civil proceedings,

was purported to be taken pursuant to s. 6(6) of the Garda Síochána (Complaints) Act, 1986. That subsection reads as

follows:-

"(6)(a) Where civil proceedings or criminal proceedings are instituted and have not been finally determined and the

Board considers that in those proceedings it is likely that the court will determine an issue relevant to or concerning the

conduct alleged in a complaint, the Board may postpone the taking of any action or further action under this Act in

relation to the complaint until the civil proceedings or criminal proceedings, as the case may be, have been finally

determined.

(b) If the Board considers that the conduct alleged in a complaint has been investigated by a court in civil proceedings

and a determination of the issues which are, in substance, the issues involved in the complaint has been made by the

court in those proceedings, when finally determined, in favour of the member concerned, no action or further action

shall be taken by the Board under this Act in relation to the complaint.

(c) Proceedings shall not be regarded as finally determined for the purposes of paragraphs (a) or (b) of this subsection

until any appeal (including an appeal by way of case stated), rehearing or retrial in relation to those proceedings has

been determined."

By letter of the 20th of December, 1988 the Chief Executive of the Board wrote to the Assistant Commissioner of the Garda

Síochána in the following terms:-

"It was decided that, as civil proceedings have been instituted in relation to the incidents which gave rise to the

complaint and the Board considers it likely that the court will determine an issue or issues relevant to or concerning the

conduct alleged in the complaint, any further action by the Board in relation to the complaint will be postponed until the

civil proceedings have been finally determined."

There is no doubt that the decision taken to postpone, pending the outcome of the civil proceedings, was not a valid decision

under s. 6(6) of the 1986 Act because in fact no such civil proceedings had been instituted. This does not mean, however, that

no postponement however short can ever be valid unless it falls squarely within s. 6(6). The Board, in the ordinary reasonable

processing of a complaint, would be entitled to have regard to some intelligence it received that civil proceedings were about to

be instituted and it would come within the normal ambit of the powers of the Board to postpone a decision to a later date to

check whether proceedings were issued or not and if such proceedings were issued then, of course, the powers under s. 6(6)

could be exercised. A postponement per se therefore, even in circumstances where a wrong citation of the powers under which

it was done is given, would not necessarily be grounds for a court to render void any further proceedings, still less would it be

grounds for automatically avoiding further proceedings. But that is not what happened here. In this case the Board, through its

own negligence or the negligence of its servants or agents, postponed the investigation on some hearsay evidence that civil

proceedings had been brought. It seems that no check was subsequently made to ascertain whether such proceedings had

been brought and, if so, what was their progress. If for instance it had been discovered that an error had been made but that

proceedings were in fact brought a month later it would not have been unreasonable for the Board to have reconvened and

made a fresh decision under s.6(6). Even if the Board had not done that there could be circumstances where a court might

refuse the discretionary order of certiorari. But the appellants are clearly entitled to invoke in their aid the gross culpable delay

in this case. Fourteen months elapsed before any proceedings were even instituted and yet nobody within the Board or on the

staff of the Board checked up on this or discovered it. If the Board had had any intimation originally that whereas civil

proceedings were probably going to be brought it might take twelve or fourteen months to initiate them it would have been a

wrong exercise of any discretion whether under the Act or without the Act to postpone the investigation. In the context of

what actually happened it is now necessary to consider what is meant by the statutory words "as soon as may be". Provisions

in statutes requiring expedition but not specifying any precise time limit have traditionally taken different forms such as "as soon

as possible", "as soon as practicable" and as in this case "as soon as may be" etc. A good deal of the case law in relation to

these respective expressions is of limited assistance in my view because their meaning is always contextual to the statute or

document in which they appear. An obvious example of this is MacC and MacD v. Eastern Health Board [1996] 2 I.R. 296 where

the Supreme Court had to consider in the context of an Adoption Act the expression "as soon as practicable" and held that

such words did not equate with the words "as soon as possible". In MacNeill v. Commissioner of An Garda Síochána recited

above the Supreme Court had to consider expedition obligations contained in the Garda Síochána (Discipline) Regulations 1989

(S.I. No. 94). It was argued in that case on behalf of a member of the force seeking to judicially review the Commissioner that

in addition to the ordinary obligation imposed on any moving party to proceed with hearing with due expedition there was a

particular obligation cast upon the respondents in the circumstances of that case in that Regulation 8 of the Garda Síochána

(Discipline) Regulations 1989 required that the matter be investigated "as soon as practicable" and that throughout the

regulations there was a repetition of these words. Hamilton C.J. in his judgment made the following observation:-

"In these proceedings, the court is not really concerned with the principles established with regard to the effect of delay

on either civil or criminal proceedings because the proceedings instituted by the respondent against the applicant are

neither civil nor criminal. They are in respect of breaches of discipline alleged to have been committed by the applicant

as a member of the Garda Síochána and must be dealt with in accordance with the provisions of the Discipline

Regulations, which set forth in detail the procedure for dealing with alleged breaches of discipline by a member of the

Garda Síochána.

If the procedures set forth in the Discipline Regulations are followed and the principle of fair procedures applied, then the

court should not intervene."

The former Chief Justice then referred specifically to the relevant provisions of the regulations which in each case contained an

obligation of expedition though expressed in different ways. The expressions "as soon as practicable", "as soon as may be" and

"without avoidable delay" were all used in different regulations. The learned Chief Justice expressed the view that the use of

each of these phrases clearly indicated the intention of the Minister for Justice as expressed in the regulations that the alleged

breaches of discipline by members of the Garda Síochána be dealt with expeditiously and as a matter of urgency. On the facts

of that particular case, Hamilton C.J. came to the conclusion that the obligation placed on the garda authorities to investigate

alleged breaches of discipline as soon as practicable was not complied with and that the obligation was "mandatory". He then

went on to express the view that because of the failure by the garda authorities to discharge that obligation all steps taken

since the presentation of the written report of the investigating officer were void and of no effect. This last observation was

not essential to the decision made and the relief granted in the form of an injunction and it may well be that it should be

regarded as obiter dicta. There is nothing in the report of the case to indicate that there had been any particular argument as

to whether breach of an expedition obligation rendered subsequent steps voidable or automatically void. At any rate O'Flaherty

J., who concurred with the Chief Justice in relation to the allowing of the appeal and the granting of the reliefs, expressed no

view on this aspect of the matter. Until it arises in some other case therefore I would express doubt as to whether breach of an

expedition obligation in relation to different steps in a procedure is necessarily tantamount to failure of a condition precedent to

the taking of the next step. But what is important about the MacNeill case is that the Supreme Court held by a majority of two

judges to one that on the facts of that particular case there was a breach of the statutory obligation of expedition and that

was on the basis that the Oireachtas intended that members of the force subjected to disciplinary scrutiny were entitled to

have their investigations heard and determined quickly. But the procedures under the discipline regulations do not arise out of a

complaint by the public and that is a major difference between the MacNeill case and this case. In so far as this court has to

consider what might be regarded as unreasonable delay from the point of view of the respondents the MacNeill case is relevant,

but in balancing that against the reasonable rights and expectations of the complainant from the public different considerations

apply. Nevertheless the words of Lord Donaldson of Lymington M.R. in Regina v. Chief Constable of the Merseyside Police ex

parte Merrill 1 WLR 1077 at 1088 are equally applicable to this jurisdiction. Referring to English regulations which required public

complaints against police to be dealt with expeditiously he observed as follows:-

"The public interest in complaints against police officers being fully investigated and adjudicated is undoubted, but it

must be done speedily."

In that particular case heard by the English Court of Appeal, Lord Donaldson, delivering the judgment of the court with which

Woolf LJ (as he then was) and Sir Denys Buckley concurred, found on the facts that there was excessive delay and held that

the disciplinary proceedings should be quashed, notwithstanding the view which he took that the time limits were all directory

rather than mandatory. I would observe in passing that when Hamilton C.J. used the word "mandatory" in the MacNeill case it

cannot be regarded as certain that he was doing so in contradistinction to "directory". I take the view that "as soon as may

be" means as soon as may be reasonably practicable in all the circumstances and if I am right about that then it may not make

very much difference whether on a theoretical basis the words requiring expedition in the 1986 Act or indeed in the Garda

Discipline Regulations are to be regarded as mandatory or directory, nor indeed on the legal principles to be applied is there all

that difference between the views expressed by Denham J. in her minority judgment in MacNeill from the views expressed by

Hamilton C.J. and O'Flaherty J. The difference was in the application of the principles to the particular facts.

But on the application of those principles to the facts of this case, when striking the balance which one must do between the

rights of the complainant and the rights of the persons complained about there was gross and unlawful delay caused in this

case by the postponement by the Board of further consideration of the complaint pending the outcome of what were then non-

existent civil proceedings. For this reason I would allow the appeal and would grant the first and twelfth reliefs sought in the

statement of claim, that is to say a declaration that a decision of the Board of 12th of December, 1988 to postpone taking any

further action pending the determination of proceedings taken by Derek Fairbrother was ultra vires the Board and null and void

and an injunction restraining the Tribunal from holding the said inquiry or from giving any further consideration to the matters

alleged against the applicants having regard to the excessive delay in the processing of the complaint.

Strictly speaking it is not necessary for the court to consider the second issue on the appeal, but as it may arise in the future it

would seem desirable to do so.

In relation to the jurisdictional issue I would accept the general principle put forward by the appellants that the alleged

breaches of discipline cannot stray too far from the subject matter of the complaint. It is quite clear, however, from the terms

of the Act when read as a whole that the precise breaches of discipline referred to the Tribunal need not have been specifically

mentioned in the complaint provided they clearly emerge in the context of the events investigated into in connection with the

complaint. Any doubts I might have had about this are removed by the terms of s. 9 of the 1986 Act where even the Tribunal,

not to say anything about the Board, is entitled to decide that the facts established constitute "another breach of discipline"

provided that a decision of that kind cannot be made unless the Tribunal is satisfied that the other breach concerned is less

serious than the breach alleged and that such a decision would not be unfair to the member concerned having regard to the

fact that the other breach concerned is not the breach that was alleged. The sending away of the ambulance and the refusal

of visitors if they occurred would have been all part and parcel of the events investigated into and were referred to in

statements made by the gardaí themselves.

Indeed, it clearly emerges from statements of Sergeant McCarthy and Sergeant Dennedy why they did what they did in respect

of the ambulance and family visiting respectively. Neither of them in my view have any valid cause for complaint that he did not

have a proper opportunity to deal with the respective revised complaint against him. They both made full statements as to their

conduct on the night in question and the reasons for the decisions they made. In a statement of the 9th of December, 1993

Sergeant Christoper McCarthy says that his statement to Detective Inspector Colm Browne on the 7th of July, 1988 "is a true

and accurate account of the events and deals with the whole incident in more detail than my report of the 22/6/88." In that

statement of the 7th of July, 1988 Sergeant McCarthy gives a detailed account of the events. At 5.15 a.m. on Sunday the 12th

of June, 1988 a telephone call was received at his Station from Garda Radio Control to the effect that a plain clothes unit

required urgent assistance at the bottom of the Finglas Dual Carriageway. He directed two gardaí to go immediately to the

assistance of the unit. Shortly afterwards he received a radio message from one of those gardaí to the effect that they were

on their way back to the station with an injured man. He then says the following:

"At this stage I was not aware that this man was a prisoner and neither was I aware as to the extent of his injuries so

as a precautionary measure I telephoned Finglas Fire Station and requested that an ambulance be sent to the Garda

Station."

Sergeant McCarthy was relieved by Sergeant Dennedy at 6.00 a.m. and at 6.05 a.m. while Sergeant McCarthy was on his way

out of the Station a garda car pulled up and they brought in a man who was struggling with them. When they got the man out

of the car he threw himself on the ground and started to roll around on the ground and shouted abuse and obscenities at the

gardaí. The man pulled himself under another garda car and at this stage there was blood on his head. Sergeant McCarthy then

inquired from the other gardaí if the man was a prisoner and how he sustained the injuries. He was informed by a Garda Landers

that he had been arrested for dangerous driving and that due to violence used he had to use a baton to effect the arrest.

There was further uproar which is not necessary to go into but at a certain stage Sergeant McCarthy directed the gardaí to

take the man inside who was Mr. Fairbrother as it turned out and bring him straight to a cell, as taking him to the public office

would create further problems. It proved very difficult due to resistance to bring him into the Station. On the way in Sergeant

McCarthy met Sergeant Dennedy who suggested that he should telephone for a doctor. The sergeant came to the conclusion

that the man was suffering from the effect of drugs. He offered him a doctor and the man replied that he wanted his own

specialist and a senior counsel. He stated that he was well able to pay for them. The sergeant saw what appeared to be a cut

on the top back of the man's head and there was some blood around which appeared to be the area of the cut but he was not

bleeding at that stage. As far as the sergeant was concerned according to his statement the man appeared strong and lucid.

The sergeant goes on to say in his statement that the condition of the man did not appear to be such as to necessitate

immediate removal to hospital prior to the arrival of the doctor. The sergeant then left the cell area and entered the hallway

where he met two ambulance men who had responded to the call which he had earlier made. One of the ambulance men said

that if he had to take 'that madman' 'a couple of guards would have to go with him'. Sergeant McCarthy then told the

ambulance man to leave it for the present as he had earlier misinterpreted the call that the injured man was in custody and his

injuries did not appear to be serious and it was intended to get the garda doctor to examine them. What Sergeant McCarthy

was in effect saying was that at the time that he called the ambulance he did not know that the man was in custody. It is no

function of this court to consider whether the sergeant was right or wrong in what he did in relation to the ambulance but it

seems clear that his full account of what happened is in that statement. Not only is it his full account but the sergeant clearly

ensured that his reasons for sending the ambulance away were included in the statement. I consider therefore that there was

full jurisdiction to deal with the revised complaint against Sergeant McCarthy and that there was no deprivation of his right to

defend himself.

I now turn to the complaint against Sergeant Dennedy. This complaint related to his refusal to allow family visitors to the

prisoner. Sergeant Dennedy made a statement on the 8th of December, 1993 in which he identified an earlier statement of his

dated the 7th of July, 1988 as giving a true account of what went on at Finglas Garda Station on the 12th of June, 1988. That

statement of the 7th of July, 1988 goes into eight pages and is a comprehensive account of Sergeant Dennedy's involvement.

The relevant part of his statement reads as follows:

"At 6.35 a.m. a man arrived at the Station. He gave me his name as Noel Fairbrother Senior, Kilcoskan, The Ward, Co. Dublin.

He informed me that we had his son Derrick detained at the station. This was the first time that I was aware of the prisoner's

identity. Mr. Fairbrother who smelled strongly of alcohol wanted to know the reason for his son's arrest. I informed him that it

was for breach of section 53 of the Road Traffic Act, which I explained was dangerous driving and (some words blotted out) I

had regarding his son's arrest and also told him that a garda doctor was on his way to examine the prisoner. Suddenly about

nine people joined Mr. Fairbrother at the counter. They were extremely disorderly, shouting and roaring and hurling abuse and

insults. I would describe their behaviour as something similar to a lynch mob. I pointed out to them that disorderly conduct in

a garda Station was an offence under the Dublin Police Act. Mr. Fairbrother and the others demanded to see the prisoner but

because of their behaviour I was satisfied that the visit could not be supervised adequately under Article 11.4 of the

Treatment of Persons in Custody Regulations, 1987. I also feared for my own safety, that of the Station Orderly, Garda

Callaghan and also the safe custody of the prisoner and I refused to let them see the prisoner."

It is perfectly clear that in that statement Sergeant Dennedy fully set out his reasons for not allowing the family visitors in and

it is irrelevant whether they are good or bad reasons. That would be a matter for other bodies to decide.

If, therefore, the delay issue did not arise I would dismiss the appeal but in the event, having regard to the grounds put forward

on the delay issue I would allow it on that issue only.

I would like to add one rider to my judgment. Counsel for the Tribunal, Mr. Rory Brady, made interesting submissions before this

court as to the jurisdiction of the Tribunal to entertain the appeal. He argued that once there was a reference in the matter to

the Tribunal the Tribunal was invested with jurisdiction and that prior defects in procedures did not deprive it of that

jurisdiction. He went on to argue that the Tribunal itself was empowered to consider and determine both the delay issues and

the issues relating to the framing of the alleged breaches of discipline but had not had an opportunity to do so. Mr. Brady also

submitted that by arguing those issues before the Tribunal the appellants had effectively accepted the jurisdiction of the

Tribunal and was thereby precluded from taking the separate route of judicial review. Counsel for the appellants, Mr. Cush,

correctly pointed out that the context in which these matters were argued before the Tribunal was the context of the MacNeill

decision which on one interpretation would have deprived the tribunal of all jurisdiction. If this court were to accept Mr. Brady's

submission that the tribunal had jurisdiction to deal with the issues raised in these proceedings and was not precluded by either

of the grounds relied on in those proceedings from considering and coming to conclusions on the complaints - it would still be

open to this court to hold, in the judicial review proceedings, that the tribunal was in error as a matter of law in concluding that

the delay did not vitiate the proceedings. The court, in the result, would arrive at the same conclusion as that which I have

reached in this judgment but by an unnecessarily protracted and more expensive route.