Court dismisses appeal against declaration allowing Garda officer access to disciplinary investigation materials.

UNAPPROVED NO REDACTION NEEDED

THE COURT OF APPEAL

CIVIL

Neutral Citation Number [2025] IECA 194

Court of Appeal Record Number: 2024/47

High Court Record Number: 2023/352 J.R. Faherty J. Meenan J. O’Moore J.

BETWEEN/

PAUL BAYNHAM

APPLICANT/APPELLANT

-AND-

COMMISSIONER OF AN GARDA SÍOCHÁNA, MINISTER FOR

JUSTICE, IRELAND AND THE ATTORNEY GENERAL

RESPONDENTS/RESPONDENTS

JUDGMENT of Mr. Justice Brian O’Moore delivered on the 26th day of September, 2025

1. The appellant, Garda Baynham, is a member of An Garda Síochána. On the 7th November 2020, he was suspended from duty pursuant to Regulation 7 of the Garda Síochána (Discipline) Regulations 2007, as amended. The Suspension Notice was signed by Assistant Commissioner, Patrick Clavin. It stated that the suspension would run (at least initially) until the 1st February 2021.

2. Importantly, the Notice contained the following statement: -

“The suspension from duty arises as a result of:

• Alleged and inappropriate interference in the administration of processing of Fixed Charge Penalty Notices and Fixed Charge Notices between 22nd December 2017 to 29th September 2019.

• Allegedly receiving a ‘gift’ as a reward for the alleged inappropriate interference in the administration and processing of a Fixed Charge Penalty Notices and Fixed Charge Notices between 22nd December 2017 to 29th September 2019.”

3. Regulation 7 of the 2007 Regulations provides the following: - “7(1) Where, in the opinion of the Commissioner, the circumstances render such a course desirable in the interests of the Garda Síochána, he or she may suspend a member from duty.

(2) A member so suspended remains suspended until the Commissioner decides that the suspension should cease.

(3) The Commissioner shall review the suspension of a member every 3 months or at such shorter intervals as he or she considers necessary, but any non-compliance with this paragraph does not of itself invalidate the suspension.”

4. At the time these proceedings commenced (with a statement of grounds dated the 12th April 2023), the suspension of Garda Baynham had been reviewed on ten different occasions. The first review was on the 1st February 2021, and the last review (prior to the proceedings being instituted), was on the 1st February 2023. None of those reviews resulted in the ceasing of the suspension of Garda Baynham from duty.

5. These proceedings claim a range of reliefs. These include: -

“(i) A declaration that the continued suspension of the applicant is unlawful, and that the applicant should be reinstated to his employment on full pay and allowances and, if necessary, an injunction in similar terms.

(i)(sic) An order of certiorari quashing the decision dated 7th November 2020 to suspend the applicant, including any and all decisions to extend that suspension, including those dated 26th January 2021, 23rd February 2021, 29th April 2021, 27th July 2021, 29th October 2021, 28th April 2022, 27th July 2022, 18th October 2022 and 25th January 2023.

(ii) An order striking down section 7 of the Garda Síochána (Discipline) Regulations 2007 as ultra vires section 123 of the Garda Síochána Act 2005 (as Amended).

(iii) If necessary, an extension of time for bringing the within proceedings.

(iv) A stay and/or interlocutory injunction prohibiting the First Named Respondent from issuing any further suspension notices and/or suspension renewal (in connection with the matters the subject of the existing suspensions only) pending the conclusion of the within proceedings.”

Damages, further and other relief, and costs were also sought.

6. The judicial review application generated a surprising number of affidavits. In total,

17 affidavits were sworn. These included an affidavit by Assistant Commissioner Clavin (retired at the time that he swore his affidavit in July 2023). No notice to cross-examine deponents was served by either side.

7. As will be seen from the statement of grounds, a range of issues were raised on behalf of Garda Baynham. These included the validity of the regulations under which he had been suspended. Thankfully, not all of these issues remain in play. Indeed, at the opening of his oral submissions, counsel for Garda Baynham commenced by saying: - “This is a reasons case, that is what it’s about.”

Concluding his oral submissions, counsel stated: -

“My client has been suspended for an exceptionally long period of time and still does not understand truly the reasons for that, for that suspension, not for the investigation.”

8. Ultimately, the arguments advanced on behalf of the appellant were somewhat more complicated than those I have just described, but a central part of the appeal did turn on whether or not adequate and proper reasons were provided by the Garda Commissioner to Garda Baynham in respect of the latter’s continuing suspension.

9. The High Court (Phelan J.), in a judgment delivered on the 20th December 2023, in the main dismissed the claims made by Garda Baynham, but granted a declaration that: - “… The Applicant is entitled to be furnished with sufficient information to enable him to be satisfied as to the factors weighed in the decision to further suspend him thereby enabling him to make appropriate representation and/or challenge the suspension decision as appropriate …”

10. This declaration was made contrary to the submissions made by counsel for Garda Baynham. This somewhat surprising situation arose because, as counsel for Garda Baynham explained at the hearing of the appeal (p. 12 of the Transcript): - “Because I indicated to the Court the implications of her decision were that there should be no declaration, but that either the Commissioner should provide the material and the matter be adjourned, or that the suspension should be declared unlawful because of the failure to provide the materials.”

11. Garda Baynham has appealed the refusal of the trial judge to grant him any reliefs (apart from the declaration to which I have just referred). The respondents have crossappealed for an order setting aside this declaration. Notwithstanding the position taken by counsel with regard to the illogicality of the declaration, Garda Baynham resists the setting aside of the declaratory relief ordered in his favour by the High Court judge.

12. It should be noted that, shortly after the hearing of this appeal, it came to the attention of the Court that Garda Baynham had been charged with ten counts of perverting the course of justice. The offences are alleged to have occurred between 2017 and 2019. Directions from the DPP had been sought in July 2020 in respect of two files concerning Garda Baynham; the continuing suspension of Garda Baynham while these directions were awaited loomed large in these proceedings. The Court therefore directed that the parties be asked whether or not the decision to prosecute had any relevance to the appeal. Notwithstanding this development, both parties agreed that the appeal should be decided on the basis of the arguments put before the Court and, notwithstanding the possibility that the appeal may be moot, the Court has decided to do so.

13. This judgment is structured in the following form: -

(1) Did Garda Baynham lack standing? ;

(2) Did the trial judge err in holding that, because Garda Baynham knew the nature of the allegations against him, he must be taken to know the reasons for the

decision to suspend him?

(3) Did the trial judge err in failing to find that the reasons tendered were inadequate?

(4) Did the trial judge err in failing to presume that, in the absence of disclosure by the respondents of the materials relied upon in taking decisions to suspend and review the suspension, that there was no such material?

(5) Did the trial judge err in failing to find that Garda Baynham was treated unequally with other members also under investigation for similar allegations and did the trial judge err in drawing an “inference” that the allegations against Garda Baynham were more serious or greater in number than those against other members?

(6) Did the trial judge err in finding that some parts of the appellant’s case were out of time?

(7) Did the trial judge err in granting declaratory relief in favour of Garda Baynham?

(8) Did the trial judge correctly address the issue of costs?

14. In formulating these issues, I have broadly adopted the wording employed by counsel for Garda Baynham in the written submissions to this Court and followed the sequence of the questions set out by them.

The First Issue

15. At para. 30 of their written submissions, counsel for Garda Baynham state the following:- “The Trial Judge found that the Appellant lacked ‘standing’ and ‘cannot be heard to complain’ about the lawfulness of reasons because he never requested further particulars as to the reasons for his suspension.”

16. Counsel cites three paragraphs of the judgment (82, 85 and 87) to which I will shortly turn.

17. At para. 31 of their written submissions, counsel for Garda Baynham describes this as “a most draconian approach to the reasons – complaint (sic) and must be assessed separately to the question whether the reasons were adequate.”

18. Paragraph 82 of the judgment reads as follows:-

“The fact that additional allegations have been made since the initial suspension is also known to the Applicant. Those allegations, insofar as they are known, fit within the parameters of the first endorsement on his suspension notice and as alleged can amount to what was described in O’Neill v. Commissioner of An Garda Síochána [2020] IEHC

448 as: “an attempt to pervert the course of justice.” In O’Neill, it was found to be self-evident that the Commissioner was entitled to consider suspension from duty of a member suspected of involvement in incidents of alleged perversion of the course of justice as being desirable in the interests of the Force, and he was also entitled to conclude that it was. It seems to me that given that the Applicant was aware since the outset, and at all material times that he is suspended because he is under investigation for suspected involvement in attempts to pervert the course of justice, he must be taken to know the reason for his suspension. The absence of any enquiry on behalf of the Applicant requesting the reasons he stands suspended or the particulars of what is alleged against him is fatal, in my view, to his standing to complain that he does not know what is alleged against him. Accordingly, I have little hesitation in disposing of the Applicant’s complaint that he does not know why he stands suspended, at least in general terms.”

19. The second relevant paragraph is para. 85. This reads:-

“Given that the Applicant is suspended in reliance on the 2007 Disciplinary Regulations which envisage that fair procedures apply in the investigation and determination of a disciplinary matter, he is, in my view, entitled to have the basis for his suspension spelt out to the extent that the investigation of specific allegations have been relied upon in the decision to suspend taken under the same Regulations. In this case, however, it is striking that although he is legally represented, not a single letter has been written on behalf of the Applicant requesting further particulars of what is alleged against him. The Applicant’s failure to make enquiries as to the said allegations and the fact that he has participated in several interviews in the context of a criminal investigations satisfies me that there is a lack of reality to any genuine concern on his part as to what precisely is alleged against him as warranting suspension. In my view he has failed to establish standing to make any complaint in this regard in the absence of correspondence which would be expected where a failure to notify or particularise is pursued in judicial review proceedings.”

20. The final relevant portion of the judgment is para. 87 which reads:- “In this case reasons have been given for the decision to suspend through the endorsement on the Suspension Notice such that the Applicant cannot be heard to complain in these proceedings that he does not know why he was suspended in the absence of any request on his behalf for further particulars but it seems to me that the material considered in the decision-making process is tied to the adequacy of the reasons for the decision. Where the adequacy of the reasons given falls to be tested with reference to the material before the decision maker, or in the absence of the material itself adequate information in relation to that material, it would appear to follow that a challenge to a decision on the basis that it is inadequately reasoned is hampered by the absence of information regarding the material that was before the

decision maker.”

21. A number of things will be immediately obvious from these three paragraphs of the judgment. Firstly, para. 87 says nothing about any lack of “standing” on the part of Garda Baynham, nor does it deal at all with the question as to whether or not Garda Baynham “cannot be heard to complain”.

22. Secondly, and more importantly, paras. 82 and 85 record the judge’s view that (despite the fact that Garda Baynham has been suspended since the 7th November 2020, and despite the fact that he was represented by solicitors), not a single letter had been written on his behalf looking for further particulars of the allegations against him, or requesting the reasons why he is suspended from duty. The trial judge formed the view, from these facts, that Garda Baynham must have understood “what precisely is alleged against him as warranting suspension”; para. 85 of the judgment.

23. This conclusion on the part of the trial judge is eminently sensible. While counsel for Garda Baynham say that the basis upon which the trial judge came to this view “is not sound” as Garda Baynham’s solicitors sought copies of the materials relied upon by the Commissioner in suspending him, that argument is unconvincing. Looking for the materials supporting the decision to suspend is not the same as looking for the reasons for the decision; failing to look for the reasons why he was suspended suggests that Garda Baynham is perfectly aware of those reasons. Indeed, and recognising the possible linkage between reasons and materials, the logical thing for someone in Garda Baynham’s position to do (if he truly did not understand why he had been suspended) would be to ask for the reasons why, and (in conjunction with that) to ask for the materials sustaining those reasons.

24. While counsel for Garda Baynham, at para. 32 of the written submissions, state that the judge’s approach set out in these three paragraphs of the judgment is in “error… for a host of reasons”, in fact, this ground of appeal is not assisted by the various arguments deployed on behalf of Garda Baynham. Many of these (including the references to the Commissioner’s suspension policy) relate to the adequacy of the reasons. This is a separate ground of appeal, amply ventilated in the arguments made elsewhere, which I will consider in due course. With regard to this heading, the relevant portion of the judgment is simply misunderstood by the Baynham side. The relevant paragraphs correctly emphasise the fact that the reasons for the impugned decision were never sought by, or on behalf of, Garda Baynham over a lengthy period despite his representation by experienced and able lawyers. From that, the trial judge came to the view that Garda Baynham must have known the reason for his suspension. While the reference to him lacking standing is not a form of words that I would necessarily have employed, nonetheless the question of the adequacy of the reasons given by the Commissioner 1 was not decided on this basis alone, and certainly not decided by reference to a purported lack of standing on the part of Garda Baynham.

25. This ground of appeal therefore fails.

Described at para. 37 of their written submissions by Mr. Baynham’s counsel as “the only point properly before the [trial judge]” The Second Issue.

26. This ground of appeal is very similar to the first. It is based on one paragraph of the judgment, namely para. 82 (which I have already set out). For the reasons I have already described, the finding of the trial judge at para. 82 of the judgment is entirely justified given the facts of the case. However, under this heading, counsel for Garda Baynham elaborate upon the Commissioner’s Policy. They refer to the following considerations for suspension, as set out in the Policy:- “Primary considerations for suspension;

(1) Strength of evidence,

(2) Seriousness of allegation,

(3) Risk to members of the public,

(4) Risk to colleagues,

(5) Potential to pervert the course of justice/suborn colleagues,

(6) Options of alternatives to Suspension.

Secondary considerations for suspension;

(1) Likely outcome,

(2) Estimated time to conclude investigation,

(3) Relevant complaint history,

(4) Current performance,

(5) Impact on police/public relations,

(6) Impact on service morale,

(7) Risk to officer/welfare considerations.”

27. Based on this Policy, these submissions of counsel for Garda Baynham continue:- “46. The policy does not countenance suspension merely by reference to the fact of allegations; a number of factors need to be weighed. So, again, knowledge of the fact of allegations does not mean the Appellant is aware why – in the round – his suspension is merited.”

28. In response, counsel for the Commissioner (in their written submissions) make the point that an alleged failure to abide by the Policy is not pleaded as a ground of challenge. In fact, the relevant provisions of the Policy are set out in the Statement grounding the application for judicial review; their precise status may be of importance in considering the issue addressed from paragraph 44 onwards of this judgment. More importantly, counsel refers to the judgment of Fennelly J. in Mallak v. Minister for Justice [2012] IESC 59 (at para. 66) as follows:- “It is not easy to conceive of a decision-maker being dispensed from giving an explanation either of the decision or of the decision-making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decisionmaker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded.”

29. Here, the trial judge found that Garda Baynham was aware of the reasons why he was suspended. The position is similar to that which applied in Brannock v. Commissioner of An Garda Síochána [2023] IEHC 300, where Mulcahy J. found that a guard’s “arrest and prosecution for being drunk in charge of a vehicle rendered it desirable in the interest of An Garda Síochána that he be suspended”; para. 66 of the judgment in Brannock.

30. As I understand the submission at para. 46 of Garda Baynham’s written submissions, I do not agree with it. It is quite possible for the seriousness of an allegation alone to form the basis for a suspension of an officer. Of course, other considerations may, and arguably must, be taken into account. However, an allegation that an officer has been involved in the inappropriate interference in the administration of penalty notices over almost a two-year period, and that the same officer had received a “gift” as a reward for the alleged inappropriate interference in such notices, can in itself form sufficient reason for that Garda’s suspension.

31. In any event, the Policy does not (on the facts of this case) upset the finding of the trial judge that Garda Baynham has been aware that his suspension arose because of his suspected involvement in attempts to pervert the course of justice. The concluding paragraph of the written submissions of Garda Baynham on this point put up the proposition that “independent of what is in the appellant’s own mind, he is entitled to reasons which demonstrated that a decision-maker addressed his or her mind adequately to the relevant factors and issued [sic] arising”; para. 50. This submission simply confuses the issue. The relevant question is whether or not Garda Baynham was aware of the reason for his suspension. The trial judge found, on a perfectly logical basis, that he was.

32. This ground of appeal therefore fails.

The Third Issue

33. This is by far the most significant ground of appeal. On a number of different grounds, the adequacy of the reasons given by the Commissioner for the suspension of Garda Baynham are challenged. Before considering these individual grounds of challenge, it is helpful to set out the relevant facts, as found by the trial judge.

34. The suspension of Garda Baynham occurred in the context of two investigations: “Operation Bath”; and “Operation Modulus”. The investigations concerned the practice of either not writing up fixed charge penalty notices, not prosecuting these in court, or cancelling such notices on the Garda system. The practice was described as “squaring”. In Garda Baynham’s case, thirty-eight investigation files either involving or featuring him, either as a primary or secondary suspect, had been (at the time of the judgment) referred to the DPP. Thirty-six of these files related to Operation Modulus, and were referred to the DPP at various times between July 2022 and January 2023. Two of the files related to Operation Bath and were referred to the DPP in July 2020.

35. At para. 78 et seq. the trial judge summarises her findings with regard to Garda Baynham’s knowledge of the reasons for his suspension. It is helpful to set out these out in full:- “While the Applicant was suspended on the spot and without the facility to make representations in November 2020, he knew that his suspension was in connection with allegations of “squaring” which were under investigation, and he was aware of at least two specified alleged incidents. To this extent, whilst he might have queried what exactly had changed between October 2019 and November 2020, the lawfulness of the decision-making process or the proportionality or rationality of the

decision at that time (but did not), he cannot deny that he was aware of the nature of matters under investigation. It is apparent that this investigation is ongoing and the ‘high level’ reason for the suspension as communicated in successive suspension notices remains unchanged.

79. Furthermore, the Applicant accepts that he has been furnished with some particulars in relation to thirty allegations comprised of the two allegations put to him on his first interview in October, 2019 and twenty-eight which were notified in advance of his second interview in April, 2022. He accepts that he has declined an opportunity to examine the underlying documentation prior to a cautioned interview and has not subsequently sought copies of this underlying documentation. While the reference to some thirty-eight files submitted to the DPP for direction suggests that there may indeed be some allegations which have yet to be notified to the Applicant, the Applicant is clearly aware of the nature of the investigation and allegations thus far and has made no enquiry to establish what the additional matters may be.

80. In written submissions filed for the purpose of the hearing before me it is stated that no allegation of receiving a “gift” was put to the Applicant on the 10th of January, 2019 or at all. If this is true, it is strange indeed that the Applicant has not expressly averred to this fact in grounding the proceedings and that no attempt has ever been made by solicitors on his behalf to establish what this allegation relates to before proceeding to litigation claiming a want of fair procedures. An evidential basis has not been laid for the claim that the factual basis for this allegation has been unfairly withheld from the Applicant. In circumstances where he has not said on affidavit that he does not know what the allegation in relation to receiving a gift relates to and has not exhibited correspondence in this regard, I am faced with an evidential deficit making it impossible for me to conclude that there was a want of fair procedures because this allegation was not “put” to him, and he was not notified of the particulars of the allegation.

81. The Applicant was fully aware what was going on: he had after all been interviewed under caution in respect of two matters pertaining to the Operation Bath investigation on the 10th October, 2019 in the presence of his solicitor having previously been alerted to these matters of interest to the investigators a week earlier in the presence of his GRA representative. In circumstances where his phone had also been seized on foot of a warrant on the 4th October, 2019 and his notebooks and fixed penalty notebook seized on the 5th November, 2020, his claim not to have been on notice of criminal allegations against him and an ongoing investigation on the date of his suspension on the 7th November, 2020 and that this was the reason for his suspension cannot be accepted, even if he might legitimately wonder why he was suspended then and not earlier.”

36. These findings of fact by the trial judge had not been seriously contested on appeal. As counsel for the Commissioner put it in his submissions to this Court (at p.61 of the transcript):- “These are really key findings that the appellant has not engaged with this morning at all.”

37. The Suspension Notice served on Garda Baynham has been set out at para. 2 of this judgment. To recap, it involves a suspension from duty arising from:-

• Alleged inappropriate interference in the administration and processing of Fixed Charge Penalty Notices and Fixed Charge Notices between 22nd December 2017 to 29th September 2019.

• Allegedly received a “gift” as a reward for the alleged inappropriate interference in the administration and processing of Fixed Charge Penalty Notices and Fixed Charge Notices between 22nd December 2017 to 29th September 2019.

38. While a gallant effort was made in the oral submissions by counsel for Garda Baynham to the effect that the sort of episode giving rise to these allegations could, for example, be a husband speeding to the maternity ward with a pregnant woman, I agree with counsel for the Commissioner that there were unlikely to be thirty-eight such instances. The fact is that the allegations are singularly grave; they go to the root of the role of any police officer. An officer perverting the course of justice by engaging in such behaviour is unlikely to command the confidence and respect of society, something a person policing the public must enjoy.

39. The first specific argument raised on behalf of Garda Baynham under this heading to the effect that “citing the offence/allegation only is not sufficient”, is not one with which I can therefore agree. The nature of the allegations are serious, and the process leading to the making of the allegations is so comprehensive and involved,2 that it was quite appropriate for the Commissioner to form the view that Garda Baynham should be suspended, and that the suspension should continue.

40. The second specific reason as to why it is suggested that the reasons were inadequate (they did not “reengage with the need or justification for suspension” given the length of the suspension) is also unconvincing. This portion of the written submissions of counsel for Garda Baynham conclude:- “54. The simple principle [is] that a suspension of this length … must be shown to the justified, either by reasons or in evidence.”

See affidavit of Chief Superintendent Catriona Gunne and the affidavit of Detective Inspector Mark Watters detailing the nature of the investigations

41. Counsel for the Commissioner submitted that the reason for the suspension of Garda Baynham remained the same notwithstanding the passage of time. I accept this. The nature of the allegations against Garda Baynham were serious to start with and remain serious during the period of his suspension. It was, of course, open to Garda Baynham to make submissions to the effect that the length of his ongoing suspension was causing him serious harm. In this application for judicial review, Garda Baynham gave evidence about the financial and psychological damage which the ongoing suspension has caused him. The totality of the adverse effects of the ongoing suspension is one known solely to Garda Baynham, not to the Commissioner (though the Commissioner would, of course, have been aware of some effects of the ongoing suspension, such as the loss of overtime payments). However, at no stage during the lengthy suspension of Garda Baynham prior to the initiation of these proceedings did he attempt to challenge the renewal of the suspension (which occurred on a three-monthly basis) on the grounds that the ongoing situation was causing him harm, or was in anyway disproportionate.

42. Finally, on this point, the submission to this Court on behalf of Garda Baynham is that the length of the suspension must be justified either by reasons (presumably given to Garda Baynham during the process) or evidence (presumably given to the court). There was, in fact, significant evidence given to the Court, both in the affidavit of Chief Superintendent Gunne and the affidavit of Detective Inspector Mark Watters. In particular, the latter affidavit includes a section (from para. 33 onwards) headed:- “Progress of the investigation since initial suspension.”

which refers to the complexity of the investigations and the nature of the allegations made. Notably, at para. 46 et seq. Detective Inspector Watters swears:- “It cannot be overemphasised that Operation Bath and Operation Modulus have been complex and difficult investigations. It is in the nature of these investigations that they have taken a considerable time, as well as involving considerable Garda resources. They have involved hundreds of suspects interviewed nationally. Approximately 2,500 statements and memorandums of interviews have been produced in the course of the investigations. The investigations have resulted in 198 files in total being submitted intermittently over a 2-to-3- year period.

47. In relation to Operation Bath, initially thirty-six (36) investigation files were submitted to the DPP on 29th July 2020, two of which relation to the Applicant. Operation Bath concluded upon the submissions of the files on the 29th July 2020 in a new investigation (Operation Modulus) then commenced.

48. Operation Modulus contained a number of primary suspects who, save for one exception, all worked together in the same Roads Policing Unit in the same Garda Division.

….

52. As matters presently stand, the Applicant now features in thirty eight 38 of these one hundred and ninety eight (198) separate investigations files for Operation Bath and Operation Modulus which had been sent to the DPP and in which DPP directions to prosecute have been sought.

…

63. While it is appreciated that the Applicant is not privy to all of the intricacies of the investigation into him, I say that his criticisms of the alleged delays in the investigation are misplaced. The investigation into the Applicant has been demanding, and it required a great deal of Garda time, attention, and resources. It is now at a very advanced stage.”

The affidavit of Chief Superintendent Gunne, sworn on the same day as the first affidavit of Detective Inspector Watters, emphasised that, because of the pressure of time in preparing these affidavits, the account containing them was “by no means an exhaustive account of what have been extremely complex investigations”; para. 20 of the affidavit of Chief Superintendent Gunne. Having said that, no further account of the complexity of the investigations was provided at any subsequent time.

43. The length of the suspension is comprehensible by reason of the complexity of the matters referred to the DPP. While the time it took for the Director to decide on charges against Garda Baynham was lengthy, the Commissioner is not responsible for the amount of time that that process took. The evidence, in my view, does explain the length of the suspension. Given the seriousness of the allegations against Garda Baynham, the suspension (albeit a lengthy one) is justified.

44. The third and subsequent bases of this ground of appeal are similar. For example, the first of these relates to the silence (as far as the reasons are concerned) as to the criteria employed to come to the decision to suspend. The second of these relates to the failure of the reasons to refer to relevant factors (and to weigh and assess these factors). The third suggests that the reasons are insufficient to allow the Court to engage in a review of the suspension as there is no indication as to how the decision went the way it did.

45. In this regard, counsel for Garda Baynham argue that even if the motivation of the Commissioner in imposing the suspension is provided in the reasons advanced by him, there is no satisfactory description of the process which led to the decision to suspend, or the factors involved in that decision. In fact, it is argued that even the basic statutory requirement to be met before a garda is suspended is not addressed in the reasons provided. That basic statutory power is set out in Regulation 7, cited at paragraph 3 of this judgment. Counsel for Garda Baynham complain that the Commissioner does not state that the suspension is “in the interest of An Garda Síochána …”. Were this the only point made at this stage, I would find it unconvincing. The suspension has been made pursuant to the 2007 Regulations, and in particular Regulation 7. That is stated on the face of the Suspension Notice. It follows that the Commissioner must have formed the view that the suspension was in the interests of An Garda Síochána.

46. However, there is more substance in the complaints about the failure of the Commissioner to set out, in any way, the factors taken into the account and the analysis of those factors.

47. At para. 26 of this judgment, I set out the Commissioner’s Policy which, as counsel for Garda Baynham correctly submit, sets out a series of considerations to be taken into account when the Commissioner is deciding to suspend a member of the Force. While there was no evidence to this effect, the Commissioner’s written submissions before the High Court (at para. 5) state that “objective criteria contained in a written policy were deployed”. That is what one would expect would be the case. While the final decision of the Commissioner may well have been a justifiable one (namely to suspend Garda Baynham because of the nature of the allegations against him and the comprehensive nature of the process that had led to the making of these allegations), Garda Baynham has never been told how these different factors contained in the Policy were assessed. Garda Baynham’s counsel rely upon Connolly v An Bord Pleanála [2018] IESC 31, and in particular, the frequently cited judgment of Clarke C.J. with regard to reasons. At para. 5.4 of Connolly, the former Chief Justice states:- “One of the matters which administrative law requires of any decision maker is that all relevant factors are taken into account and all irrelevant factors are excluded from the consideration. It is useful, therefore, for the decision to clearly identify the factors taken into account so that an assessment can be made, if necessary, by a court in which the decision is challenged, as to whether those requirements were met.”

48. I pause there to note that nowhere in the decision to suspend (or in any of the contemporaneous documentation leading up to the launch of these proceedings) is there a reference to the Commissioner’s Policy document. However, giving the Commissioner the benefit of the doubt, one can accept the submissions of his counsel (to which I have already referred) before the High Court that the Policy document sets out the factors considered by the Commissioner.

49. The judgment of Clarke C.J. goes on:-

“But it will rarely be sufficient simply to indicate the factors taken into account and assert that, as a result of those factors, the decision goes one way or the other. That does not enlighten any interested party as to why the decision went the way it did. It may be appropriate, and perhaps even necessary, that the decision make clear that the appropriate factors were taken into account, but it will rarely be the case that a statement to that effect will be sufficient to demonstrate the reasoning behind the

conclusion to the degree necessary to meet the obligation to give reasons.”

As I have said, there was a statement made to the High Court to the effect that the factors set out in the Policy (which both sides accept as being relevant) were taken into account by the Commissioner. There is not, to my knowledge, any statement that other factors (potentially irrelevant) were not taken into account.

50. More troublingly, there is no description (even of the most cursory sort) on the part of the Commissioner, as to why consideration of these factors led to the decision to suspend. This is potentially problematic even if, as is submitted on behalf on the Commissioner, the suspension was a holding one. It is clear from the judgment of the trial judge in this case that any suspension of a police officer is a serious matter. The seriousness of the suspension is, in my view, aggravated by its length in this case.

51. Counsel for Garda Baynham rely upon the pithy observation by Woulfe J. in Sherwin v. An Bord Pleanála [2024] IESC 13 (para. 135) to the effect that “relevant factors must be taken into account and analysed.” In the reasons provided by the Commissioner in suspending the Officer (and in continuing his suspension for a lengthy period), there is simply not a shadow of any analysis.

52. In their written submissions, counsel for the Commissioner note the submissions of Garda Baynham to the effect that the reasons were “silent on criteria deployed”, “fail[ed] to avert to relevant factors”, as well as an associated argument that “reasons are insufficient to allow the court to properly engage and review”. Counsel for the Commissioner then go on to state:- “These are issues that should be dealt with under Issue (g) which addresses the crossappeal.”

53. The cross-appeal relates to the decision by the trial judge to grant a declaration that:- “[Garda Baynham] was entitled to be furnished with sufficient information to enable him to be satisfied as to the factors weighed in the decision to further suspend him thereby enabling him to make appropriate representation and/or challenge the suspension decision as appropriate”.

54. It is difficult to know why the submissions on behalf of Garda Baynham, with regard to reasons, should be considered under the rubric of a cross-appeal relating to documentation and information. The obligation to give reasons is separate to any requirement to give information, though they are clearly linked. In any event, nowhere in the written submissions do counsel for the Commissioner address the arguments with regard to reasons which I have set out at some length (beginning at para. 44 of this judgment). There is no reference to Connolly in that section of the submission. There is no reference to the observation by Woulfe J. in Sherwin. There is no engagement at all with the submission that the reasons provided by the Commissioner should have included some form of analysis and, in particular, should have included why he came to the decision that he did, given his own Policy. When asked at the hearing of the appeal about the factors weighed in the balance when the decisions concerning suspension were made, counsel for the Commissioner answered that Garda Baynham “wants more reasons. Not reasons…Because he knows the reasons for suspension”; page 64 of the transcript.

55. More significant is the fact that the trial judge has not decided this aspect of the reasons case. There is no doubt that some version of these arguments (albeit possibly a more restricted one) was presented to the High Court. For example, at para.106 of their written submissions to that court, counsel for Garda Baynham submit;

“Third, there is no evidence of any weighing exercise, either by reference to the factors listed in the Policy or at all.”

Counsel then refer to the judgment of Mulcahy J. in Brannock, and the reasons noted therein. Notwithstanding this express submission the judgment of the High Court does not address this issue.

56. For the sake of completeness, I should note that there are other arguments advanced on behalf of Garda Baynham under this heading. They include a claim that the reasons given for the suspension are inconsistent with the evidence presented on behalf of the Commissioner and with certain findings of the trial judge. I have carefully considered these, and find that they have little merit. I deal expressly with one of them (the allegation of unequal treatment) later in this judgment.

57. This Court is therefore presented with a difficulty. The fact that the reasons for suspension presented by the Commissioner do not include any form of analysis (particularly given the factors outlined in the Commissioner’s own Policy) may justify the grant of some of the reliefs sought in these proceedings. However, the trial judge has not decided the issue, and it would as a rule be undesirable that this Court would determine on appeal an important question not resolved at first instance. It is open to this Court to refer this issue alone back to the High Court. However, before doing so it would be preferable to hear the parties on the appropriate way forward. There may also be an issue as to whether this matter has been adequately pleaded in the first place; in that regard, I would refer to the submissions which are recorded at paragraph 28 of this judgment. The appeal will therefore be listed on the 8th of October 2025 at 9.30 am to decide whether this specific aspect of the reasons element of the case should be sent back to the High Court, determined by this Court, or resolved in a different way.

The Fourth Issue

58. At para. 81 of their written submissions, counsel for Garda Baynham posit the following:- “The Trial Judge however fell into error in failing to recognise that, in light of the failure of the Respondent to provide evidence which would elucidate its reasoning and process, the Court ought not to have presumed such evidence or materials existed.”

59. A less prodigal use of the double negative would have made this paragraph easier to understand. The statement required to ground the application for judicial review does not, either directly or obliquely, assert that there were in fact no materials generated by the process giving rise to the suspension of Garda Baynham (or, indeed, that there was no such process at all). It is undoubted that there was a detailed investigation into the activities of Garda Baynham. It is equally clear that one outcome of that investigation process has been the suspension of Garda Baynham. In those circumstances, the trial judge was quite entitled to come to the view that there had, in all likelihood, been a process (whether satisfactory or unsatisfactory) involving the production of materials resulting in the decision to suspend Garda Baynham. Even if the trial judge was wrong in that regard (and I do not think she was), I do not believe that her judgment is to be set aside on that basis. It is notable that the authority upon which counsel for Garda Baynham primarily rely – State (Daly) v. Minister for Agriculture [1987] I.R. 165 is a judgment which was distinguished by O’Hanlon J. in Doran v. Commissioner of An Garda Síochána [1994] 1 ILRM 303 as (in the latter case):- “The applicant was at all relevant stages well aware, in general terms, of the matters which were causing concern to his Superior Officers in the Garda Síochána”

60. For reasons which I have already set out, that is plainly the case in these proceedings.

61. I agree with counsel for the Commissioner that, notwithstanding the statement (in the submission of counsel for Garda Baynham) that “it is technically the case that the decisionmaker swore affidavits in the instant case…”, there is nothing technical about that evidence. The evidence is detailed and persuasive as to the background to the decision to suspend.

62. This ground of appeal therefore fails.

The Fifth Issue

63. This ground of appeal concerns the allegation by Garda Baynham that he was treated unequally in comparison to other members of the Force. In order for such an allegation to get off the ground, there would have to be evidence of such unequal treatment. This would require evidence from Garda Baynham’s side to the effect that there were comparators whose situation was (in every material respect) comparable to that of Garda Baynham. No such evidence was adduced. Three Gardaí swore affidavits to the effect that their cases were “similar to that of Garda Paul Baynham.” Some details are then given by each officer, but nowhere near the level required to establish that all or any of these are true comparators. There was some evidence, again at a high level, from Garda Baynham in his third affidavit. There was also evidence from a former President of the Garda Representative Association, Garda Thornton, to this effect:- “3. I am familiar with the position of members subject to investigation as part of Operations Bath and Modulus.

4. I say that all such members in fact liaised with me for support and assistance during the investigations and for the purpose of obtaining legal assistance and representation under the GRA scheme.

5.Moreover, many of the members in question further liaised with me as they had their mobile phones seized. Members whose phones were seized availed of the scheme which the GRA put in place to replace their seized mobile telephone device so that they were not out of pocket in having to replace same.

6. I say that matters deposed to at paras 31 to 35 of Paul Baynham’s third affidavit, a final draft of which I have seen are correct.

7.In particular, I say that approximately 130 members of An Garda Síochána were the subject of investigation under Operation Bath and Modulus.

8. I say that they are or were suspected of, and were subject of investigation with regard to, the same offences as Garda Baynham.

9. I say that the vast majority of those members have not been suspended. Many of those members have indeed been allowed to work, permitted to give evidence in court proceedings, appointed to specialist roles within An Garda Síochána and promoted, including promotions to Detective roles and national units.

10. I say that from my knowledge of the circumstances of the various members under investigation I cannot understand the reason why some small number of members such as Garda Baynham have been subjected to long term suspension whilst the vast majority of members have not been suspended at all.”

64. This evidence does not relate to any individual guard. It does not address whether or not, for example, the allegations involving the other officers were more or less numerous, more or less serious, or have reached a more advanced stage than those concerning Garda Baynham. These are just some of the possible differences that might be relevant. It was not for the Garda Commissioner to fill in the gaps in the evidence on this topic. Instead, the onus was on Garda Baynham’s side to have given evidence with regard to one or several (or, indeed, all) of the comparators who (he alleges) were treated differently to him. This has not been done.

65. The inadequacy of the evidence on this point was starkly illustrated at the hearing of the appeal. In his speech in reply, counsel for Garda Baynham was asked whether or not any of the cohort of approximately 130 members had had their files referred to the DPP at the time of their suspension. The answer was that this was irrelevant as Garda Baynham had not had any file referred to the Director at the time of his own suspension. As counsel for the Garda Commissioner pointed out, this answer was incorrect. However, apart altogether from that exchange, it then transpired that (of the cohort of approximately 130 gardaí referred to by Garda Thornton), only approximately 98 had had files referred to the DPP at the time of their suspension. It appears, therefore, that the cohort of comparators had shrunk by approximately a quarter in the course of the appeal hearing as a result of one simple question put to Garda Baynham’s legal team. This is on the basis, which, cannot really be disputed, that there may be a material difference between the suspension of a guard who has had a file referred to the DPP for perverting the course of justice and one who has not.

66. It is also argued that the trial judge erred in drawing an inference that the allegations against Garda Baynham “are either more numerous or more serious than allegations against others”; para. 141 of the judgment. Even if the trial judge was wrong in so finding, this would not make the allegation of unequal treatment a statable one given the lack of evidence sustaining this part of Garda Baynham’s case.

67. The trial judge observed 3 that she “did not understand this claim to be seriously pressed.” For the reasons I have given, it was never a coherent part of Garda Baynham’s claim, and it is surprising that it is being appealed. In any event, this ground of appeal fails.

At para. 140 of her judgment

The Sixth Issue

68. The trial judge concluded (at para. 157):-

“In proceedings of this nature, it cannot be overlooked that the Applicant’s solicitors have at no time sought further particulars of the reasons for his suspension in correspondence. What they have sought is the material relied upon in arriving at the

decision to extend a suspension in July 2022. When this material was not provided, the refusal communicated by letter in September 2022 was not challenged within the time limits prescribed under the Rules of Court. In fact, these proceedings were not commenced until April, 2023. In consequence the refusal to provide material when requested in July 2022 cannot now be impugned in these proceedings.”

69. As counsel for the Commissioner argue, it is of some significance that Garda Baynham’s relevant pleaded claim (at para. 44 of the Statement grounding the application for judicial review) is that “The Commissioner acted ultra vires in breach of fair procedures in refusing to disclose materials requested by letter dated 15th July 2022.” In other words, the Legal Ground pleaded by Garda Baynham is that the refusal of the information sought was a legally invalid act, being one which was ultra vires the Commissioner.

70. The basis of the appeal against this portion of the judgment appears to be found at para.

103 of Garda Baynham’s written submissions. This reads: -

“The letter dated 13 September 2022 and each of the suspension notices are simply ‘intermediate steps’ in an ongoing process not substantive determinations of the appellant’s position.”

71. This characterisation is not correct. In fact, the letter of 13th September 2022 could not have been clearer. It reads as follows:- Your clients are fully aware of the reasons for their suspension as per Form 1A

71 issued to them and it is not appropriate at this stage in the proceedings to furnish any further material.”

72. This was, therefore, a decision that no further material was going to be provided. While there is mention of “at this stage”, this must be seen by reference to the earlier statement (in the same letter) to Garda Baynham remaining “suspended…pending the

conclusion of the Criminal/Discipline investigations.” The letter must be read as meaning that the requested material would not be given to Garda Baynham until these other investigations concluded. There was therefore a substantive determination of Garda Baynham’s position; he was not entitled to this information.

73. However, on the basis of the findings of the trial judge (to the effect that this was information which should have been provided to Garda Baynham), the refusal gave Garda Baynham an entitlement there and then to challenge it. Indeed, on Garda Baynham’s own pleadings the refusal was invalid from the time it was made and consequently could have been challenged immediately. Garda Baynham did not do so within the specified time, and the trial judge decided that he was out of time to do so when proceedings eventually issued.

74. Garda Baynham’s counsel placed great stress on a series of cases which, they maintain, establish the following proposition (at para. 106 of their submissions):- “The law is clear that it is generally unnecessary to challenge intermediate steps in an ongoing process. As the law prefers an applicant to engage with the process and challenge all such issues arising at the end of the process.”

75. That may well be the case in planning law, where it is preferable that the final decision of the relevant authority is made before determinations made along the way could be challenged; see the judgment of Costello J. in Spencer Place Development Co. Ltd. v. Dublin County Council [2020] IECA 268. It may also be the case that the courts are reluctant to intervene in employment matters (such as disciplinary process) in a premature manner. However, the different lines of authority to which Garda Baynham’s counsel refer lead to the conclusion that Garda Baynham should have waited until “the end of the process” before raising the issue of access to documentation. He has not done so. Instead, he has decided (while the suspension is ongoing) to challenge it. He is duly entitled to do so. However, if that is his decision, he should have done so in a timely manner.

76. Strikingly, notwithstanding the summary contained in para. 106 of their written submissions, counsel for Garda Baynham (in concluding their submissions on this issue)

state (at para. 123):-

“It cannot be the case that earlier decisions along the way in an ongoing suspension process can be ringfenced from challenge, just because three months have elapsed. There is no basis in law for such an argument. It would mean that a court could never review the entirety of the process. It is submitted that the entirety of ongoing process must be capable of review at any time during its currency.”

77. Having submitted at para. 106 that an applicant should challenge all issues arising “at the end of the process”, counsel go on to submit that a review should be possible “at any time during the currency of the process”. The discordance between the two positions is notable. However, the true position is quite a straightforward one. The documentation/information sought by Garda Baynham was refused in September 2022. A further “Suspension Notice” – as they are described in Garda Baynham’s pleadings – was issued on 18th October 2022. Garda Baynham’s position is that the October 2022 Suspension Notice was legally infirm because information to which he was entitled had been refused to him. However, he did not challenge the refusal.

78. I should add that, with regard to the status of the Suspension Notice, I would respectfully agree with the finding by Allen J. in O’Neill v. Commissioner of An Garda Síochána [2020] IEHC 448 at para. 71, where he says:- “While it is not unreasonable for Superintendent O’Neill to take the view that he has been the subject of a continued suspension since 17th May 2019, the fact is that he has been the subject of successive orders, all but the last of which have expired and are spent.”

79. I do not accept the submission made on behalf of Garda Baynham that the underlying initial suspension is the relevant order. While it is the case that, pursuant to Regulation 7(2), the absence of a review every three months would not invalidate the suspension of an officer, the fact is that suspension notices were issued on a three-monthly basis. These suspension notices, therefore, constituted the operative legal instrument which had the effect of suspending Garda Baynham for the relevant three-month period. The notices did not, contrary to the submissions made on behalf of Garda Baynham, constitute “intermediate steps”; they are, as counsel for the Commissioner submit, “successive orders”.

80. Accordingly, the letter of 13th September 2022 had, to employ the wording of Murray

J. in Arthropharm (Europe) Limited v. The Health Products Regulatory Authority [2022] IECA 109 at para. 68(1), “a formal consequence adverse to the interests of the applicant…” The formal consequence was that information to which the trial judge held he was entitled had been refused. The fact that the refusal was couched in terms that included the phrase “at this stage” is irrelevant. Garda Baynham was facing a potential further suspension order (which in fact was made in October 2022) without information to which he was lawfully entitled. The consequence was one clearly adverse to his interests. The time ran from the making of that decision.

81. This ground of appeal therefore fails.

The Cross-Appeal

82. Undoubtedly the pleadings in any judicial review application are exceptionally important. Here, the trial judge was not asked by either party to make the declaration she eventually made. Notwithstanding this she did so. The form of the declaration is set out earlier in this judgment.

83. The Commissioner cross-appealed against the making of this declaration primarily on the grounds that the relief was not one sought by Garda Baynham in the first place. Before dealing with this, I will consider briefly the other grounds for the cross-appeal.

84. It is asserted that Garda Baynham was provided with sufficient information to allow him to make whatever representations he saw fit or to challenge the suspension orders. While Garda Baynham had an ability to make representations, arguably he did not have the full picture because, as I point out at paras. 47 and 50 of this judgment, nowhere in the reasons provided by the Commissioner is there a description of any weighing or analysis of factors taken account of by the Commissioner, nor is there any assurance that irrelevant considerations had not been taken into account. At para. 100 of her judgment, the trial judge expressly addressed the desirability of Garda Baynham having materials that would allow him to consider a challenge on the basis that the decision to suspend “fails to have regard to relevant considerations and/or is affected by irrelevant considerations and/or is disproportionate and/or unreasonable or otherwise unlawful having regard to the material before the Assistant Commissioner when making his decision and the evidence upon which it was based.” To that, I would add that disclosure of such materials might also illuminate any analysis of competing factors, and any balancing exercise carried out by the Commissioner (or his delegate).

85. The grounds of cross-appeal go on to refer to the argument that Garda Baynham had an opportunity to make any representations he wanted challenging his suspension, and the fact that he did not do so “was entirely a matter of his own choosing.” It is true to say that Garda Baynham could well have made submissions on a number of grounds, most notably the hardship that the ongoing suspension was causing him. It is extraordinary that he did not do so. However, the fact that certain submissions (such as those I have described) could have been made does not mean that Garda Baynham should be denied access to materials which would allow him to make submissions of a different sort (or to supplement the submissions which he could in any event have put forward).

86. While the Commissioner also relies upon an alleged material nondisclosure on the part of Garda Baynham, and while arguments to that effect are included in the written submissions of the Commissioner, this was not really pressed at the hearing of the appeal. In any event, the type of material nondisclosure suggested in this case is not of the sort that would justify the severe consequence of denying Garda Baynham basic reliefs to which the trial judge found he was otherwise entitled to arising from his constitutional right to fair procedures.

87. I will now deal briefly with the pleading issue. Notwithstanding the fundamental requirement in judicial review cases for pleadings which are crisp, focussed and comprehensive, there may be truly exceptional cases where relief is granted, which is not in the precise form sought in the pleadings.

88. In this case, the original statement of grounds refers to the request for materials and its refusal, in the context of setting out the correspondence between the parties. As already noted, para. 44, under the heading “Legal Grounds of Challenge”, alleges that the Commissioner “acted ultra vires in breach of fair procedures in refusing to disclose materials requested by letter dated 15 July 2022.”

89. The issue of Garda Baynham’s entitlement to these materials, therefore, has been in the proceedings from the outset.

90. In Garda Baynham’s written submissions to the High Court, the correspondence of July and September 2022 is considered between paras. 63 and 72, and the failure to provide the materials sought is described by counsel for Garda Baynham as “a further egregious breach of fair procedures…”.

91. As an aside and in the context of the sixth issue in this appeal, it is worth noting that para. 66 of his High Court submissions reads:- “No reasonable person in receipt of the reply dated 13 September 2022 could feel that fair procedures were extended to him.”

92. This is in sharp contrast to the following submission to this Court (at para. 114):- “The letter dated 13th September 2022… expressly stated that the materials would not be provided ‘at this stage’. It was therefore capable of reversal in as much as it was open to the Commissioner to provide those materials at a later date – the possibility of which was clearly left open. Therefore, the three month time period did not run from September 2020 and the appellant was entitled to wait until the process either finalised (which never happened) or became sufficiently oppressive that you could invoke the powers of the High Court.” There is a radical difference in the case made to the High Court (to the effect that no reasonable person could feel that they were getting the fair procedures to which they were entitled), and the case made to this Court ( that the Commissioner might change his mind, had expressly left open the opportunity to do so, and that Garda Baynham was quite entitled just to wait and see how things developed).

93. Notwithstanding the fact that the trial judge found that Garda Baynham was out of time to challenge the refusal of the material in September 2022, the trial judge went on to consider the question of his entitlement to that material. As noted, the correctness of that

decision is not challenged in the notice of cross-appeal. The argument made at para. 100 of the written submissions of the Commissioner’s counsel (to the effect that the finding that there was a breach of fair procedures “falls away, as there should not have been a finding that [ the Commissioner] was to provide materials relied upon to [Garda Baynham]…”) is somewhat circular and does not engage with the substantive rationale of the trial judge in finding Garda Baynham was entitled to these materials.

94. I am also conscious of the fact that Garda Baynham’s suspension is continuing. His access to these materials may therefore be important for him in the future. If he does not obtain them by virtue of the declaration made by the High Court, he may well have to institute fresh proceedings to obtain materials which the High Court has already decided should be provided to him.

95. In addition, it should be noted that, as set out at para.12 of this judgment, notwithstanding the possible significance of the charging of Garda Baynham both the solicitors for Garda Baynham and the solicitors for the Commissioner took the approach that the judgment should be delivered. One reason given was that the judgment could impact on a number of similar cases. The Court has come to the view that giving the judgment, for those reasons, is the appropriate thing to do.

96. In those circumstances, it would seem strange to set aside the declaration made in Garda Baynham’s favour as: (a) the basis for the declaration was not seriously challenged in the cross appeal; (b) the main reason for the challenge to the declaration is in essence a pleading point and (c) setting aside the declaration in Garda Baynham’s favour may lead to some uncertainty with regard to not just his case but a number of other cases, which would clearly be undesirable.

97. I would conclude this section of the judgment by remarking that the wording of the declaration has not been the subject of any cross-appeal. This is slightly surprising. In particular, a declaration that Garda Baynham is entitled to information “to enable him to be satisfied …” about certain matters introduces an element of subjectivity which is undesirable. At the very least, one would have thought that the words “reasonable” or “reasonably” might have been properly introduced in the form of the Order. That may be something upon which the parties might reflect.

Costs

98. While there is an appeal in respect of the order for costs made by the trial judge, this has not featured at all in the submissions. In any event, I see no reason to upset the costs order of the High Court. With regard to the costs of this appeal, the parties can be heard on that when the Court is considering whether the outstanding reasons issue should be sent back to the High Court.

99. With the exception of one aspect of the reasons issue, I would therefore dismiss the appeal and the cross-appeal. The appeal will be listed for mention at 9.30 am on the 8th day of October 2025 to deal with the issue set out at paragraph 57 of this judgment.

100. Faherty and Meenan JJ agree with this judgment and with the orders which I propose.